"GUARANTEE OF MEDIA FREEDOM

(1) The Secretary of State for Culture, Media and Sport and other Ministers of the Crown and all with responsibility for matters relating to the media must uphold the freedom of the press and its independence from the executive. (2) The Secretary of State for Culture, Media and Sport must have regard to: (a) the importance of the freedom and integrity of the media; (b) the right of the media and the public to receive and impart information without interference by public authorities; (c) the need to defend the independence of the media. (3) Interference with the activities of the media shall be lawful only insofar as it is for a legitimate purpose and is necessary in a democratic society, having full regard to the importance of media freedom in a democracy;"

¶6.41 Without necessarily suggesting that the clause should be worded in exactly this way, as I am

sure there would be benefit from further consideration around the precision with which the intention is expressed, this seems to me to be an admirable proposal, which should provide some comfort to those who have any concerns about the risk of Government decisions impacting adversely on the freedom of the media. In the circumstances:

¶K

1781

¶Chapter 7 | Conclusions and recommendations for future regulation of the press

I recommend that, in passing legislation to identify the legitimate requirements to be met by an independent regulator organised by the press, and to provide for a process of recognition and review of whether those requirements are and continue to be met, the law should also place an explicit duty on the Government to uphold and protect the freedom of the press.

Summary of recommendations 7.1 From the outset, I have encouraged the industry to come together to create an independent

regulatory regime that satisfies the need to provide public confidence. In my judgment, the proposals so far put forward by the industry do not do that. I have been very specific about where I consider those proposals would need revision in order meet expectations, but essentially they fail in respect of independence and inclusiveness. I regard both of these points as absolutely essential in any new effective regulatory regime.

¶7.2 I have therefore set out a vision of a voluntary independent self-organised regulatory system

that would provide an appropriate degree of independence from the industry, coupled with satisfactory powers to handle complaints, promote and enforce standards, and deal with dispute resolution.58

¶7.3 In order to provide incentives to publishers to join such a voluntary independent regulatory

system, I have recommended a series of incentives that will provide benefits to those who sign up to the system.59 Significantly, these include consequences in relation to the costs of litigation in privacy, defamation and other media cases (even if successful), if, by non- membership of the regulatory system, it has deprived a claimant of a quick, fair, low cost arbitral route. On the basis that the court could also conclude that a publisher that did not subscribe and was found to have infringed the civil law rights of a claimant, it might also be possible to conclude that the breach is evidence of wilful disregard of standards and thereby potentially lead to a claim for exemplary damages. I believe that these proposals should provide a powerful incentive for all publishers to want to be a part of such a self-regulatory system.

¶7.4 In order to give effect to those incentives I have recommended legislation that underpins the

independent self-organised regulatory system and facilitates its recognition in legal processes. This legislative proposal does no more than ensure an appropriate degree of independence and effectiveness on the part of the self-regulatory body if the incentives described are to be made use of. This is not, and cannot be characterised as, regulation of the press.

¶7.5 A number of newspaper groups are fiercely supportive of the proposal put forward by

Lord Black. But others have indicated that they still have problems of principle with what is proposed by Lord Black, as do I. Let me be clear: even if all the national newspaper publishers were to sign up to the contracts proposed by Lord Black, I would still recommend that significant changes would need to be made to that system in order to meet the requirements, particularly in relation to independence, that I set out above.

¶7.6 Let me further be clear that if an adequately independent regulatory body were to be

established by industry and signed up to by all major news publishers, I still recommend the underpinning statute to provide for recognition of that body, a mechanism to ensure K

1782

¶PART K | Regulatory Models for the Future

that it maintained the standards expected of it and support for an arbitration system. Such recognition would be important evidence that the system met legitimate public demands for independence, it could provide relevant evidence of systems and standards that would doubtless assist the courts and could also impact both on damages and in relation to costs. It would also be the only way to ensure that participants in the system could access the benefits that I have set out in relation to costs.

¶7.7 I repeat the refrain that what I want is for the industry to come together to organise their own

independent regulatory system. If they cannot agree on a single regulatory system, I have left the door open, however undesirable it might be, to there being more than one such independent regulatory system. I cannot see any legitimate reason why the press should not accept this approach and provide the public with the independent regulation that it deserves.

¶7.8 As for the challenge that this goes too far, I simply do not accept that these provisions will

have a chilling effect on free speech or press freedom. Neither do I accept that politicians will be more willing and able to amend the provisions which I have suggested (as opposed to legislating afresh which is always open to them). I reject the suggestion that it will cause a degeneration of the rights of the press or a descent into state control.

¶7.9 I have made it clear that I firmly believe it is in the best interest of the public and the industry

that an independent self organised regulatory body is set up, and recognised in statute so that its members can benefit from the legal privileges that would go with membership. Given the public appetite for some accountability of the press, I do not think that either the victims or the public would understand if the industry did not grasp this opportunity. Neither would they understand if I were not to consider the consequences of the industry failing to deliver the independent regulation that is required.

¶7.10 Unfortunately there may be some in the industry who it presently appears would not consider

going beyond the present PCC proposals. If that is the case, I have set out in the next Chapter the options that I believe would be open to (and necessary for) the Government to pursue. Suffice to say, bearing in mind my duty to consider the interests of the public, my view is that there would then be no alternative but to provide in legislation for a backstop regulator to apply and enforce a Code.

¶7.11 It would be a great pity, however, if the intransigence of a few resulted in the imposition of a

system which everyone in the industry has said they do not want and which, in all probability, very few others would actually want to see in place. This is not an explicit recommendation that I am making: whether it becomes necessary to take the proposition further, in the public interest, depends on the press.

¶7.12 Rather, I would much prefer that the focus of all concerned should be on attempting to

deliver the effective self regulation that I have set out. In my judgment, this provides the least intrusive method of ensuring some form of adequate independent regulatory oversight of press standards for the future. Possibly for the first time in our history, it provides real incentives for the press to organise and thus deliver genuine effective independent regulation in the public interest.

¶K

1783