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

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

  1. I am finding the arguments against Leveson hard to digest, I get it academically but the pragmatist in me keeps thinking that state regulation of broadcast journalism has not delivered the fears that are being whipped by “don’t implement Leveson”. I’ve worked in both environments, one even with the odious Kelvin Mackenzie, we’re going to be back here in a few years time as we always are, because there is a culture in vast swathes of the tabloid press that is and has always been quite shocking. It justifies its actions with “freedom of the press” and “public interest” whilst openly within its walls holding both with contempt. I found the framework of the Broadcasting Act environment a better and actually more liberating environment for a journalist, the other was just extreme pressure to deliver what the proprietor wanted, which for the record was a hack piece called “Is Glenn Hoddle Mad?” where they wanted me to hound him and dig up anything to make this proposition true. The real problem is who owns the press in the argument about freedom of the press and so far it doesn’t seem that Leveson has really tackled that.

  2. That of course is going to be interesting, Leveson may just be at the tail end of the era of print journalism and therefore not actually worth doing anything about – maybe the market will resolve. Blogs of course are really more in tune with the notion “freedom of the press” than tabloid papers are, however this will solidify and the medium will become irrelevant as the principles that were true for papers, becomes true for electronic media – it is the cycle of things.

  3. I just can’t see the issues being resolved under the current arrangements, though I concur it would be best if they could be. I agree with those who say existing laws should be strengthened (eg the right to privacy), implemented fully, and that access to justice should be affordable, with payouts large enough to act as deterrent.

    However I heard Leveson say that after 7 Inquiries in 70 years nobody has appetite for an 8th. I don’t think the proposal is that the State should act as the complaints body, but should merely define what independent governance looks like? At the end of the day all legislation is the thin end of some wedge or other and its role is surely to moderate excesses.

  4. Very disappointed at Shami Chakrabati’s comment “‘The outcome they should be seeking is a free and vibrant press with access to justice for the public when things go wrong” This govt has destroyed Access to Justice, and she of all people should know this. Whole point of Leveson is that protection is needed for the vast majority of people who cannot get redress in court. #LegalAid for libel?! ROFL!

  5. James – we do need to reduce the costs of libel and privacy – mediation would be cheaper? Leveson was right on the need for the press tribunal to be free and the costs sanction if recourse to the courts is taken. Don’t need full implementation of Leveson to change law and adopt some of his excellent ideas?

  6. Actually – I’ve changed my mind! If press freedom is protected by Article 10 ECHR, then we should make the most of spreading the word on this because Paul Dacre’s mind cannot hold that level of cognitive dissonance and will be worth paying the price just for this: http://youtu.be/HY-03vYYAjA

  7. Carl Bernstein warned the other night on Channel 4 News, that press regulation would come to “bite us on the ass”.

    Of course, there should be provision for redress – and that should be via the courts. Don’t hold your breath on that one, as the Conservatives have made it their mission to rid society of pernicious non-rich individuals seeking justice via the courts by way of elimination of legal aid, costs etc.

    You want a regulator? And that must be because we heart the ones we already have, like the BSB, SRA, IPCC an on.

    I worked at the Standards Board for England during the Ken door-stepping case. The largely toothless SBE threw a great deal at Ken – all for Ken to exercise his pesky Human Right to be offensive – by drawing the distinction between the man and the office.

    Herewith a link to Ken’s case. http://www.bailii.org/ew/cases/EWHC/Admin/2006/2533.html

    I have no idea how much it cost Ken to run a High Court appeal of the APE’s (SBE’s quango-court) decision. I’m guessing his highly competent solicitor and barrister were not affordable to the average man or woman on the street.

    Recently, we’ve heard of Barristers challenging BSB & COIC decisions

    http://www.lawgazette.co.uk/news/deech-hits-back-over-bar-tribunal-collapse-claim

    If Barristers themselves are unable to run their own High Court appeals – and have to challenge donkey decisions by way of challenging the Quango itself – how on earth do people expect mere mortals to effectively challenge quangocrats flawed decision-making?

  8. I have a simple principle that, in the area of free speech, I don’t like special provisions in law for the definition of particular groups on somewhat arbitrary grounds. If something is illegal in the areas of free speech, expression and the methods used in gathering information, it should be applied to all (as should any “public interest” defence). If some activities (like harrassing celebrities, their children etc.) are considered to be unacceptable, then the protection should be enshrined in law and apply to all (indeed we now have specific “stalking” legislation which, arguably, will cover this). The definition of what is or is not a “significant” media publication is inevitably going to be rather arbitrary. We now live in a world where an obscure web presence can suddenly come to prominence. Such things will ineviably undermine some centrally controlled “ethics comittee”, however constituted.

    I also think the whole Leveson thing is now concentrating far too much on the area of “media ethics” and how to regulate those, and has completely failed to deal with the issue over why existing laws were not enforced properly. It seems to be a modern disease to always see the fix for any perceived problem in the passing of new legislation and creation of new regulatory regimes rather than making the existing ones work properly.

  9. Surely, only individuals can have human rights, not the Press?
    What about the things the tabloid press has falsely accused the EU of wanting to ban? Famous Five books from schools, selling eggs in dozens, milk jugs, classic cars, Free speech doesn’t or shouldn’t allow newspapers to publish deliberate untruths.
    From the Daily Mail’s website recently. “Christmas has been renamed in various places ‘Winterval’.”Teenager Elle Fanning (she’s only 14) shows off her womanly curves as she pays homage to New York landmark”. Free speech?

  10. I think the invocation of “but we regulate the broadcast media” as an argument that it’s therefore okay to regulate the press, is questionable on both a political and a legal level. Note that Hugh Tomlinson QC claims that it would not be an illegitimate aim or disproportionate for the purposes of Art 10(2) of the European Convention of Human Rights, because that same body tolerates, in its jurisprudence, the extensive regulation of the broadcast media.

    This ignores Art 10(1) and its specific wording, the second sentence of which provides that “this article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.”

    So there is a specific exception made to legitimise routine state interference with freedom of expression in so far as it relates to broadcast media. Certainly that list is not exhaustive, but the fact that there was felt a need to include this stipulation strongly suggests that it was not intended to allow the state effectively (by stealth or otherwise) to bring all print media under a common state stipulated scheme in matters of ethics and good practice, rather than simply including it within the universal considerations of defamation or the criminal law.

    At a political level, to create a system whereby refusal to participate in a statutory underpinned scheme leads to punitive effects in litigation, even when the publication is in the right, surely constitutes not just a disproportionate interference with their article 10 rights to function as a vehicle for free expression, but also arguably under art 11 to undermine the right of individuals to associate or not to associate with others. We shouldn’t be using the state to herd press groups into joining particular bodies against their volition where they are otherwise obeying the law in every respect.

  11. Many good comments above, especially from Jon and James.

    I think it’s hard to have any discussion of this without mentioning the legal doctrine of proportionality – this goes for any discussion of article 10, impossible to do in isolation without reference to whether it’s necessary and proportionate to allow freedom of expression in the face of a competing interest in the law.

    This is a fundamental issue in the English and European law, and goes as much as to whether we should remove a bar on some prisoners or vote, as it does to whether a new independent regulator, with a statutory underpinning, would have ‘unintended consequences’.

    I am of course mindful that the legal doctrine of proportionality lies at the heart of many decisions, including not just the legal regulators.

  12. Bless you think that there is freedom of expression in the UK. What is Santa bringing you? As for Liberty they were far too gezellig (cozy) with ZaNuLabour 1997-2010, during the greatest erosion of civil liberty in British peacetime history. See what I did there?

  13. You were right to suggest on Twitter that I wouldn’t agree with you!

    I don’t think there’d be an issue in article 10 terms even with Leveson’s “backstop regulator” – if there were, Denmark’s system of press regulation would already have been ruled contrary to the Convention, and Ireland’s might be in question too.

    On the contrary, the main issue most countries have had in human rights terms has been regulatory and legal systems that gave freedom of expression disproportionate weight against privacy – for instance in the first Hannover v Germany ruling. Recently there have been a couple of relatively press-friendly rulings (like Hannover 2 and Axel Springer) but I think there’s a decent argument that the UK is as much or more at risk of breaching article 8 by not implementing Leveson than it is of breaching article 10 by doing so.

    In any event, we should not buy the press propaganda that Leveson is proposing a compulsory backstop regulator. He’s not. He’s recommending voluntary self-regulation, with benefits attached. The way this is being distorted by commercial interests is breathtaking.

    The suggestion that we can implement Leveson without legislation is wrong – as his report makes clear. Legislation to recognise the voluntary self-regulator, and so enable to courts to give libel and privacy advantages to its subscribers, is essential to his proposals. If you’re against that, you’re flatly against Leveson, and are in fact supporting that status quo – self-serving and ineffective “self-regulation” whose main purpose is to protect the press against complaints.

    As for the argument that “existing law should be enforced”: how? If you think about this for a while you realise that this can only be done by the police and the courts. If the context were any different, the press would be howling their objections against anyone recommending this heavy “state control”. In reality, arguments for enforcing existing law better are just arguments for the status quo – a press than can abuse its power with impunity.

    I’m genuinely surprised by Shami Chakrabarti’s approach – I think she’s clearly wrong in legal terms, and it’s odd to see her line up with the press in policy terms.

    Finally, Leveson didn’t deal extensively with ownership or with the internet because that wasn’t his remit: his inquiry was into the culture, practice and ethics of the press. Even so, his proposals work very well for bloggers and even tweeters. If the press could manage to wipe the foam from around its mouth and get on with designing the proper voluntary self-regulation it should have had since 1992, and which Leveson has recommended, any tweeter could join it. Those who didn’t would know they were at much greater risk, should they libel someone, breach their privacy or breach an injunction, that their voluntarily regulated peers.

    The press would be freer than ever, if it took up Leveson’s challenge. Its anti-Leveson reflex is both depressing and genuinely sad.

  14. Carl – the Art 10 point is not winnable probably. But my post does not rely on Article 10. It is based on a quite different premise – government interference.

    I am not a natural regulator of….anything, though – so accept my deficiencies in that regard :-)

  15. Pingback: Law and Media Round Up – 2 December 2012 « Inforrm's Blog

  16. “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.”

    If we are to take Ian Hislop’s undoubtedly sincere remarks at face value, then we should expect David Cameron to be enthusiastic about #Leveson’s proposals. The press would no longer be in the position to exert its enormous influence on politics. The press would need to handle government with care. This would not be the outcome of the proposals as they are aimed at independent and effective self-regulation. It is because the politicians can’t be trusted that we need an independent regulator if we are to have any sort of regulator at all. OfCom are independent and effective. This is not exactly hard to achieve where there is a will.

  17. And just to play devil’s advocate for a moment, I thought I’d respond to something Carl said about the voluntary nature of the regulatory membership. Index on Censorship have pointed out that the report states that a regulator cannot be considered effective unless it covers all the significant news publishers. This would mean that the backstop validator would require industry wide adoption. It’s voluntary, but as soon as we see a major publisher pull out, the whole system becomes invalid. Is that really voluntary? How will that work? I can see some problems with this. The regulator is caught in the middle. It must satisfy the industry in order to achieve full membership, while also always satisfying OfCom. Can a publisher effectively hold the regulator to ransom?

  18. “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.”
    Except of course that she didn’t, as made clear by Liberty, here:
    http://www.liberty-human-rights.org.uk/news/2012/liberty-leveson-and-the-culture-practice-and-ethics-of-t.php
    “1. The Leveson Report recommends a robust independent self-regulation of the press of a kind that has not been provided or suggested by the industry up to now. Liberty is in complete agreement with the Judge’s view… ” etc.
    and:
    “4. Leveson does not recommend compulsory statutory regulation of the press and Liberty believes that he is right not to do so.”
    Not that it is in the interests of the corporate press to make these distinctions, they would rather misrepresent Leveson’s report as government regulation; which it is definitely not.
    Rather disappointed that a QC can’t make the distinction though.

  19. Tend to agree – Government to Recognition Body to Regulatory Body to press. Seems like a conduit down which “influence” might flow. Even if Leveson’s scheme cannot fairly be described as State regulation, Parliament would be taking a big step in that direction if it legislates the full Leveson model.

    Far more effective remedies are needed for bad reporting. Civil actions in the courts are now beyond all but the very wealthy.

    Protection of the media seems to me to be at least implicit in Article 10 (Freedom of speech). If that is right, then do we need a further duty on politicians to protect press freedom?

  20. Perhaps that potential “conduit down which “influence” might flow” is why we need (as a prerequisite to setting up such “a robust independent self-regulation of the press of a kind that has not been provided or suggested by the industry up to now”) is why legislation is needed? To ensure that any attempt to use such a conduit would be recognised as a serious illegality rather than just ‘bad form’.

  21. Interesting how lightly the politicians got off in Leveson’s report. Anyone would think they had hardly done anything to raise serious suspicions about their activities. A few points for them “to consider” – little else.

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