The Report of the Law Commission on Aggravated, Exemplary and Restitutionary Damages

¶should be adopted in relation to its recommendations that legislation should provide that:

(a) aggravated damages should only be awarded to compensate for mental distress and should have no punitive element; (b) exemplary damages should be retained (although re-titled as punitive damages).73

Exemplary damages (whether so described or renamed as punitive damages) should be

available for actions for breach of privacy, breach of confidence and similar media torts, as well as for libel and slander. The application to a defendant of any relevant system of regulation of standards enforcement which is contained in or recognised by statute and good internal governance in relation to the sourcing of stories should be relevant to the decisions reached in relation to such damages.74

¶Costs 73. The Civil Procedure Rules should be amended to require the court, when considering the

appropriate order for costs at the conclusion of proceedings, to take into account the availability of an arbitral system set up by an independent regulator itself recognised by law. The purpose of this recommendation is to provide an important incentive for every publisher

¶PART L | Summary of Recommendations

to join the new system and encourage those who complain that their rights have been infringed to use it as a speedy, effective and comparatively inexpensive method of resolving disputes.75

In the absence of the provision of an approved mechanism for dispute resolution, available

through an independent regulator without cost to the complainant, together with an adjustment to the Civil Procedure Rules to require or permit the court take account of the availability of cost free arbitration as an alternative to court proceedings, qualified one way costs shifting should be introduced for defamation, privacy, breach of confidence and similar media related litigation as proposed by Lord Justice Jackson.76

The Press and the Police Off-the-record briefings

The term 'off-the-record briefing' should be discontinued. The term 'non-reportable briefing'

should be used to cover a background briefing which is not to be reported, and the term 'embargoed briefing' should be used to cover a situation where the content of the briefing may be reported but not until a specified event or time. These terms more neutrally describe what are legitimate police and media interactions.77

It should be mandatory for ACPO rank officers to record all of their contact with the media,

and for that record to be available publicly for transparency and audit purposes. This record need be no more than a very brief note to the effect that a conversation has taken place and the subject matter of that conversation. Where the discussion involves a more significant operational or organisational matter, then it may be sensible for a more detailed note to be retained. Finally, in circumstances where policy or organisation matters may be on the agenda for discussion, it is good practice for a press officer also to be present.78

The simple rule included within the 'Interim ACPO Guidance for Relationships with the Media'

¶should be adopted as good practice.79 This is:

"Police officers and staff should ask: 'am I the person responsible for communicating about this issue and is there a policing purpose for doing so?' If the answer to both parts of this question is 'yes', they should go ahead."

¶Leaks of information

The Police Service should re-examine the rigour of the auditing process and the frequency of

the conduct of audits in relation to access to the Police National Computer (PNC). Additional consideration should also be given to the number of people given access to the PNC and the associated rules which govern its usage.80

¶Summary of Recommendations

¶Gifts, hospitality and entertainment 79. The recent ACPO Guidance should more specifically spell out the dangers of consuming alcohol in a setting of casual hospitality (without necessarily specifying a blanket ban).81

¶Media employment 80. Consideration should be given to the terms upon which ACPO rank officers are appointed

and, in particular, whether these terms should include some limitation upon the nature of any employment within or by the media that can be undertaken without the approval of the relevant authority for a period of 12 months following the cessation of the appointment.82

¶Police Service on general ethical issues should at least comprise the following:83

(a) greater prominence should be given to the Public Interest Disclosure Act (PIDA) telephone line operated by the Independent Police Complaints Commission (IPCC); (b) there should be an 'ethics line' to the IPCC, available for all serving Police Officers, providing general ethical guidance; (c) to avail those at rank of Chief Constable (Assistant Commissioner level within the Metropolitan Police Service), Her Majesty's Inspectorate of Constabulary should identify one of its members, a former Chief Constable, as the designated point of contact for confidential ethics guidance. The Chief Officer seeking and obtaining that advice would be able to refer to it should any issue subsequently arise on a complaint to a Professional Standards Department, a Police and Crime Commissioner, or indeed the IPCC itself. The advice would not be determinative of the complaint, but the fact that it was sought and received, as well as its content, would be a matter to be taken into account; (d) within the IPCC itself, there is a need for an enhanced 'filter system' whereby the nature of complaints are appropriately addressed at an early stage so that (a) they can be investigated at the right level, and (b) sufficient structures are put in place to maintain confidentiality of the complaint, and differentiate as soon as is appropriate between genuine whistleblowers and those who are merely ventilating a personal grievance; (e) the former Chief Constable referred to under sub-paragraph (c) above should also be the recipient of complaints about Chief Constables made to the IPCC. In the event that he or she may already have given informal advice in relation to the subject-matter of the complaint, as per sub-paragraph (c) above, a substitute HMI would be deputed to act; and (f) Chief Officers should also be the subject of regular independent scrutiny by HMIC, including through unannounced inspections.

¶PART L | Summary of Recommendations

¶The Press and Politicians

As a first step, political leaders should reflect constructively on the merits of publishing on

behalf of their party a statement setting out, for the public, an explanation of the approach they propose to take as a matter of party policy in conducting relationships with the press.84

Party Leaders, Ministers and Front Bench Opposition spokesmen should consider publishing:85

(a) the simple fact of long term relationships with media proprietors, newspaper editors or senior executives which might be thought to be relevant to their responsibilities and, (b) on a quarterly basis: i. details of all meetings with media proprietors, newspaper editors or senior executives, whether in person or through agents on either side, and the fact and general nature of any discussion of media policy issues at those meetings; and ii. a fair and reasonably complete picture, by way of general estimate only, of the frequency or density of other interaction (including correspondence, phone, text and email) but not necessarily including content.

The suggestions that I have made in the direction of greater transparency about meetings

and contacts should be considered not just as a future project but as an immediate need, not least in relation to interactions relevant to any consideration of this Report.86

¶Plurality and Media Ownership

The particular public policy goals of ensuring that citizens are informed and preventing too

much influence in any one pair of hands over the political process are most directly served by concentrating on plurality in news and current affairs. This focus should be kept under review.87

Online publication should be included in any market assessment for consideration of plurality.88
Ofcom and the Government should work, with the industry, on the measurement framework,

in order to achieve as great a measure of consensus as is possible on the theory of how media plurality should be measured before the measuring system is deployed, with all the likely commercial tensions that will emerge.89

The levels of influence that would give rise to concerns in relation to plurality must be lower,

and probably considerably lower, than the levels of concentration that would give rise to competition concerns.90

Ofcom has presented the Inquiry and the Government with a full menu of potential remedies,

and it has not been argued or suggested that any of them are inappropriate in principle. Each of them might be appropriate in a given set of circumstances and the relevant regulatory authority should have all of them in its armoury.91

¶Summary of Recommendations

The Government should consider whether periodic plurality reviews or an extension to the

public interest test within the markets regime in competition law is most likely to provide a timely warning of, and response to, plurality concerns that develop as the result of organic growth, recognising that the proposal for a regular plurality review is more closely focussed on plurality issues.92

Before making a decision to refer a media merger to the competition authorities on public

interest grounds, the Secretary of State should consult relevant parties as to the arguments for and against a referral, and should be required to make public his reasons for reaching a decision one way or the other.93

The Secretary of State should remain responsible for public interest decisions in relation

to media mergers. The Secretary of State should be required either to accept the advice provided by the independent regulators, or to explain why that advice has been rejected. At the same time, whichever way the Secretary of State decides the matter, the nature and extent of any submissions or lobbying to which the Secretary of State and his officials and advisors had been subject should be recorded and published.94