Leveson: We could be walking into problems with Article 10, European Convention on Human Rights.

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ARTICLE 10, European Convention on Human Rights
Freedom of expression
1. Everyone has the right to freedom of expression. This right
shall include freedom to hold opinions and to receive and impart
information and ideas without interference by public authority
and regardless of frontiers. This Article shall not prevent States
from requiring the licensing of broadcasting, television or cinema
enterprises.
2. The exercise of these freedoms, since it carries with it
duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law and
are necessary in a democratic society, in the interests of national
security, territorial integrity or public safety, for the prevention
of disorder or crime, for the protection of health or morals, for
the protection of the reputation or rights of others, for preventing
the disclosure of information received in confidence, or for
maintaining the authority and impartiality of the judiciary.

Having now read a fair bit of the important sections of The Leveson Report, I am coming to the view that the main benefit of The Leveson Report lies in catharsis – many have had their opportunity to express dissatisfaction with the way the Press has behaved – and that we should be very wary of implementing the Leveson Report proposals with ‘statutory underpinning’.  Had the existing law – civil and criminal – been enforced by government, police and private individuals whose reputations had been traduced – there would, it is argued reasonably, have been no need for The Leveson Inquiry

I am wary of any regulation of the Press by government – quite apart from the fact that it may breach Article 10 of the European Convention on Human Rights, raising the possibility that such statutory underpinning could be tested before the European Court of Human Rights with unfortunate results -  and,  possibly unintended consequences.

David Rose writing in the Mail on Sunday, notes:

“At the heart of her objections to the Leveson report is that any new law that made the government quango Ofcom the ‘backstop regulator’ with sweeping powers to punish newspapers would violate Article 10 of the European Convention On Human Rights which guarantees free speech and is enshrined in  Britain’s Human Rights Act, too.”

One of Lord Justice Leveson’s key advisers last night delivered  the bombshell verdict that his demand for compulsory press regulation would be illegal.

In an exclusive interview with The Mail on Sunday, Shami Chakrabarti, director of the civil rights group Liberty, said any such clampdown would breach the Human Rights Act and be open to legal challenge.

Her intervention is hugely significant because as one of only six ‘assessors’ who helped guide the inquiry and its conclusions, her position threatens the viability of key parts of the report.

Director of Liberty, Shami Chakrabarti argues:

She said: ‘We were chosen as advisers because of our areas of expertise. Mine is human-rights law and civil liberties. In a democracy, regulation of the press and imposing standards on it must be voluntary.

‘A compulsory statute to regulate media ethics in the way the report suggests would violate the Act, and I cannot support it.

‘It would mean the press was being coerced in being held to higher standards than anyone else, and this would be unlawful.’

Of Hacked Off, Ms Chakrabarti said: ‘I understand that people who have been wronged want action. But they should be interested in outcomes, rather than particular processes.

‘The outcome they should be seeking is a free and vibrant press with access to justice for the public when things go wrong.

While Lord Justice Leveson produced  a through report into the press, the police and politicians and their interconnections – constructing an elegant solution to the problem with his proposals for self regulation underpinned by law – as the editor of Private Eye, Ian Hislop points out in a pithy statement to The Independent:

Why can’t we just enforce the laws? The ones we already have against phone hacking, harassment, libel, bribery etc etc. For instance Leveson is very critical of the treatment of Christopher Jefferies but I don’t understand why the Attorney General couldn’t have rung the editors of the papers concerned that morning to say “Stop! This is contempt of court.” Why not prosecute those editors?

If the reason is because the Attorney General’s boss is the Prime Minister, and the Prime Minister is too close to the newspaper proprietors, then that in itself is a perfectly good argument not to have state regulation because the politicians can’t be trusted. In so many of the appalling cases that have turned the public mood against the press it seems to me there is a failing not only by the press but by the police and the legal establishment.

The report’s not “bonkers” but I don’t like the principle that it is under-pinned by the state and I don’t like the idea that all significant news providers are answerable to Ofcom. Maybe I will have to declare the Eye “insignificant”.

I’m still reading The Leveson Report – and open to persuasion.  I do hope politicians take time to digest the entire Leveson Report before rushing to legislate on press freedom – a matter of great importance to our society and our standing in the world.

It might be an idea to provide resources to enforce existing laws and encourage press self regulation underpinned not by further legislation but by existing criminal and civil laws – and reform the law of libel and privacy to provide  a cheaper resolution basis when things go wrong while they are at it? We certainly need to reduce the ‘chilling’ effects of high costs in libel and privacy actions.  Is that so difficult to achieve through law? Leveson was right on that issue. The Press has to step up to the plate and provide a credible and respected medium for self regulation.

These are my initial views – a dissent to the clamour of many for state intervention, to be sure, but views which, I believe, I am still free to express – for the moment, at least.   Enforce the existing laws? Don’t risk further government intervention down the line by providing a statutory framework for the press now?  These ideas don’t seem that radical to me – but do feel free, please, to convince me of the error of my initial thoughts on this important issue.

On the other hand – we might not have Article 10 problems.  Hugh Tomlinson QC considers this here:  Is compulsory regulation of the print media compatible with Article 10 ECHR? – Hugh Tomlinson QC

Leveson and Legality: implementation of the Report would not be Illegal – Hugh Tomlinson QC