The battle over press regulation

The consultation on press regulation launched in November 2016 by the culture secretary, Karen Bradley, together with two related judicial review claims, is bringing the issue of press regulation into sharp focus at the outset of 2017.

Section 40 of the Crime and Courts Act 2013 provides that any publisher of news-related material which is not a member of a state-approved regulator can be required to pay the legal costs of both parties in any legal claim, such as a claim for libel or breach of privacy, even if the publisher is successful in the claim. While not yet in force, it has been enacted by parliament and only needs to be commenced by the culture secretary.

In October 2016, the Independent Monitor for the Press (Impress) had its application for royal assent approved by the Press Recognition Panel (PRP). Impress was established by press reform campaigners following the Leveson inquiry as an independent press regulator and it currently regulates 40 specialist and local publishers.

This recognition by the PRP means Impress became the first state-approved regulator of the press. Having a state-approved regulator theoretically paves the way for the government to bring section 40 into force.

Impress has its critics, not least the News Media Association (NMA), which appears to be proceeding with challenging the approval by the PRP in an application for judicial review.

The complaint of the NMA focuses on the source of funding for Impress and whether it is an entirely independent organisation, established by relevant newspapers and media outlets, with an acceptable standards code.

Impress is funded largely by the Independent Press Regulation Trust, a registered charity, which is itself significantly funded by charitable trusts connected to Max Mosley. The NMA’s challenge raises the concern that there is no guarantee this funding will last, and that the source of these funds is ‘an insurmountable obstacle to true independence’. Further, the NMA asserts that Impress does not represent any national newspapers and was not established by ‘relevant publishers’, which schedule 4 of the Royal Charter on Self-Regulation of the Press requires.

The NMA believes that when considering the application, the PRP simply ran through the recognition criteria, and it could not be determined on what basis the PRP decided they had been met. It also points out that the standards code to be adopted is listed in the recognition criteria as being the responsibility of, and one adopted by, the board of the regulator. However, Impress has sought to adopt the editors’ code of practice, a pre-existing standard against which the Independent Press Standards Organisation regulates its members. This is therefore not the responsibility of Impress. While Impress has consulted on its own code, this is not yet in place.

A further application for judicial review has been filed by Jacqui Hames, Byline Media, and an anonymous phone-hacking victim, who challenge the lawfulness of the consultation itself and its perceived attempts to ‘shelve’ the latter part of the Leveson inquiry.

The second part of the Leveson inquiry was always envisaged and promised, and the judicial review challenge states that, as a result of this, the consultation is misleading and unbalanced, rendering it plainly unfair, and further, that the document itself is biased.

The effect of both challenges will be that any decisions on press regulations are delayed, but that does not negate the fact that the prospect of the implementation of section 40 is causing considerable alarm for the press. Full implementation could have serious implications for publishers which are not Impress members, particularly smaller publishers that would not be able to pay high levels of costs. Such publishers may find themselves going out of business when faced with libel or privacy claims.

This position could encourage claimants to bring unmeritorious claims, or threaten such claims, in the knowledge that they will face no costs consequences and that the publishers will be penalised. This is likely to be a powerful weapon to be used against smaller outlets intending to publish. Even national newspapers are likely to find themselves hesitating in such a situation.

The alternative position is that newspapers and media firms have to sign up to Impress when they have serious concerns regarding the remit of the organisation and its code of conduct, and the impact this will have on freedom of speech, the independence of the press, and public scrutiny. It may be that a partial implementation of section 40 is the solution, with members of Impress gaining protection from paying opponents’ legal costs but the position for non-members remaining as it currently is, with the normal costs rules.

Tammy Evans is a senior associate at Wedlake Bell

@WedlakeBell wedlakebell.com