Yesterday marked the publication date of the 2000 page report into the moral, ethics and standards of the Press, by Lord Justice Leveson. We at Pinder Reaux, along with other specialist media lawyers have read and analysed the report with interest, and have translated and extracted the key points that are pertinent to parties defamed, harassed or those that have had their privacy breached by the Press. 12 months later and £4million of tax payer’s money used, we can tell you that we were definitely expecting big things. However, speaking frankly, as specialist media lawyers, we are left deflated and extremely disappointed with the outcome of the report.
The essential point, which everyone, including the Press, specialist media lawyers and the public at large were seeking, was how the Press would be regulated in the future to avoid similar scandals to that of phone hacking happening again. Lord Justice Leveson’s response - a regulator of the Press to be introduced, backed by statute, with Ofcom as a back stop, which will offer harmed parties a quick, and inexpensive arbitration system with penalties for those to fail to follow it. This may be a slight red herring as the civil procedure rules have pre-action protocols that must be followed before cases are started in Court. In libel defamation cases, one of the Judge’s first questions is whether or not the pre-action protocol has been followed. If the Claimant cannot answer in a positive fashion, it is highly likely they will be looking down the barrel of costs consequences further down the line, and in turn will be bending the ear of their specialist media law team accordingly.
Although something that Leveson does recommend is an increase in the scope of various media related legislation, including the introduction of custodial sentences for breach of section 55 of the Data Protection Act 1998 i.e. the unlawful obtaining of personal data. However, at the same time, it also provides an enhanced public interest defence for the press. Is this not sitting on the proverbial fence?. We think so.
The two issues that forced the inception of the Leveson Inquiry were the phone hacking scandal and the allegation of police corruption. Leveson found no evidence of widespread corruption of the police by the press, so it appears that these issues have nowhere else to go. We can literally hear the sighs of relief from those that commenced individual actions as victims of the ‘phone hacking scandal’ against the News of the World ,as had they simply relaxed in their chairs and waited for Leveson to make a dramatic finding, they most likely would have been heartily disappointed yesterday.
Leveson suggests that a regulator be set up, backed by law, but the government is tasked with protecting the free speech of the Press. Our Prime Minister Mr Cameron has already come out and said that he is unlikely to be enacting law to back up this proposed regulator, although Deputy Prime Minister Nick Clegg has made statements to the contrary. The idea that a regulator should be appointed and then backed by government made law, but the government should be tasked with protecting the Press’s freedom of speech, are ideas that appear incompatible. How it will work in real life, where real people are concerned, is the million dollar question, especially when Mr Cameron has already come out against such measures. As Ms Sally Bercow recently tweeted, “WTF is the point of wasting all that time & energy on Leveson if you’re going to ignore his proposals Dave?” Why indeed? Leveson was brought it to bring certainty to the Press, but where we go from here is anybody’s guess.
On the plus side, any potential future Claimant in media tort cases, including defamation cases should now be able to gain exemplary (prohibitive) damages, referred to on the street as “big money”, with more regularity. Should Lord Justice Leveson’s regulator come to pass, and the newspapers do not sign up to it, then the High Court Judges are likely to view this through a knitted brow and shake of the head, whilst considering it to be an automatic disregard for acceptable standards, which should have the Claimant rubbing their hands together with glee, given the thought of exemplary damages that will inevitably be coming their way.
It may be the case that as the Leveson report is digested and interpreted over time, a greater understanding of its function will be forthcoming. However it appears to have distinct shortfalls, it makes no mention of bribery and hacking (despite the on-going criminal investigation into the activities at the NOTW) and so, is unlikely to be the U-turn document that victims that have suffered due to a lack of press standards and integrity were expecting. The Press on the other hand, will probably be feeling quite good about it, even if Mr Miliband and Mr Clegg plan to vote for the backing of the new regulator.
Head of Internet and Media Law @ Pinder Reaux
Pinder Reaux & Associates