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The Letwin Plan – Freedom of the Press in a post-Leveson UK

The Letwin Plan – Freedom of the Press in a post-Leveson UK

Freedom Association meeting  25 February

Speakers

John Whittingdale MP (Chairman of the DCMS select committee).

George Eustice MP

Harry Cole Blogger

Depressingly John Whittingdale and George Eustice are both wholeheartedly in favour of the Letwin Plan which is the Government’s response to Leveson’s proposals.   I say depressingly because the Plan is dishonest in overt intent because it produces a system of regulation which pretends to be independent but is in reality authoritarian.

The proposed structure of the new system of regulation consists of a  Recognition Panel (RP) which licences a Regulator, the relationship between the two being broadly akin to that of  Ofcom licensing broadcasters, although here there will be three tiers of interested parties  –  the RP, the regulator and the press – rather than two.

The RP will carry out an assessment of the work of the Regulator  every three year. However, in exceptional circumstances an inspection can be made when deemed necessary.  The Regulator will have the power to levy substantial fines , viz:

15. 19. The Board should have the power to impose appropriate and proportionate sanctions(including but not limited to financial sanctions up to 1% of turnover of the publication concerned with a maximum of £1,000,000) on any subscriber found to be responsible for serious or systemic breaches of the standards code or governance requirements of the body.

The possible size of fines could have an excessive  intimidatory effect, especially on publications which have relatively small publications.

The regulatory structure is to derive its legitimacy from a Royal Charter rather than a statute  (The full draft Charter can be found at http://tinyurl.com/Draft-Royal-Charter-for-Press).  This supposedly gives it independence from politician. Apart from being the thin end of the wedge to more extreme regulation, the personnel of the RP  will be drawn from the usual cast list of the Great and the Good and,  in the cases of both the RP and the Regulator,  there will not be an outright  ban on people with a media background , merely restrictions on serving   mediafolk or their numbers.  The funding  of  the RP will come from the fees charged to those applying to be Regulators  with top ups from the taxpayer if required (the taxpayer will fund the first three years). The Regulator’s income  will come from subscriptions and fines levied from subscribers found to be misbehaving.

The dishonesty  continues with the claim that signing up to  the new regulator will be a voluntary choice for the press.  It will give a very strange meaning to the word voluntary,  because those who choose not to sign up will  leave themselves open to punitive damages in the courts whereas those who do sign up will be legally protected against such  damages.  This legal protection will require legislation.

During questions I pointed out the dishonesty and said that if the government was going to be authoritarian it was better if it was honest about what it was doing,  because this type of pretence was precisely what was disillusioning the general public when it came to politics.  Another questioner made the pertinent point that two classes of plaintiffs  would exist. There would be those suing subscribers to the Regulator (who would be protected against punitive damages)  and those  suing newspapers who had not signed up with the regulator who would be liable for punitive damages.  This could have the perverse consequence of allowing two plaintiffs with equal cases being awarded substantially different amounts in damages , or  even worse, a less serious instance of press misbehaviour resulting in higher damages than a more serious instance.   It could also  have a seriously  intimidatory effect on  the smaller publishers.

The  general problem with the Letwin Plan as outlined in the draft Royal Charter is the structural complexity of the system. The RP  will have an appointments committee which creates an executive  board  licenses the Regulator which also has an appointment panel to create an executive board for the regulator. The Regulator then has to set up a Code committee to develop the Code of Conduct.  This type of diffuse relationship is a recipe for buck passing.

Harry Cole was against the plan because the use of a Royal Charter brought with it difficulties of its own, most notably the fact that an amendment to a Charter required a two thirds majority of the Commons,  as opposed to a simple majority to repeal or amend a statute.  The draft Charter does indeed state this, viz:

9. CHARTER AMENDMENT

9.1. The Recognition Panel may add to, vary or omit (in whole or in part) any of the provisions of this Charter if, and only if:

a) a resolution has been passed unanimously by all of the Members of the Recognition Panel, who shall determine the matter at a meeting duly convened for that purpose;

and

b) the requirements of Article 9.2 are met.

 9.2. Before any proposal to add to, vary or omit (in whole or in part) a provision of this Charter (“proposed change”) can take effect:

a) the leaders of the three main political parties in the House of Commons (being the parties with the first, second and third greatest numbers of Members of Parliament at the relevant time) must each confirm in writing to the Chair of the Board that he agrees to the proposed change;

and

b) a draft of the proposed change must have been laid before Parliament, and approved by a resolution of each House. For this purpose “approved” means  that at least two-thirds of the members of the House in question who vote on the motion do so in support of it. (http://tinyurl.com/Draft-Royal-Charter-for-Press)

Similar qualifications apply to the dissolution of the Charter – see 10. DISSOLUTION10.1

These  Charter provisions would, if valid, make the alteration or the dissolution of the Charter very difficult – the procedures have to be initiated by a unanimous resolution of the Recognition Panel and before any change can be put to Parliament (both houses) the leaders of the three largest parties in the Commons have to each agree to either a Charter change or dissolution of the Charter.   However, there is a rather large question mark over whether they are valid.  Here are the general rules governing amendments to Royal Charters:

…once incorporated by Royal Charter a body surrenders significant aspects of the control of its internal affairs to the Privy Council. Amendments to Charters can be made only with the agreement of The Queen in Council, and amendments to the body’s by-laws require the approval of the Council (though not normally of Her Majesty). This effectively means a significant degree of Government regulation of the affairs of the body, and the Privy Council will therefore wish to be satisfied that such regulation accords with public policy. (http://privycouncil.independent.gov.uk/royal-charters/chartered-bodies/).

And

(d) incorporation by Charter is a form of Government regulation as future amendments to the Charter and by-laws of the body require Privy Council (ie Government) approval. There therefore needs to be a convincing case that it would be in the public interest to regulate the body in this way; (http://privycouncil.independent.gov.uk/royal-charters/applying-for-a-royal-charter/)

The Privy Council practices appear to come into direct opposition with the draft Royal Charter  where it touches on amendments  to or dissolution of the  Charter.  It is important to understand that  if granted the Royal Charter will not be an artefact of Parliament.  Technically it will be a Royal artefact, although in reality a government artefact.   It might be thought that Parliament being sovereign could override the Privy Council procedures, but it is not as simple as that. The Privy Council procedures are separate from Parliament.  If Parliament wanted them to be subordinate to Parliament that would mean a redrawing of the Constitution, something which has can have wide ramifications, as was show all to starkly by the last Labour government’s botched attempt at ending of the post of Lord Chancellor.

The problems do no end there. Reading through the  draft Royal Charter  there is a distinct whiff of the PCC about the set up. For example, take the parameters of the Code of Conduct:

15  7. The standards code must ultimately be adopted by the Board, and be written by a Code Committee which is comprised of both independent members and servingeditors.8. The code must take into account the importance of freedom of speech, the interests of the public (including but not limited to the public interest in detecting or exposing crime or serious impropriety, protecting public health and safety and preventing the public from being seriously misled), the need for journalists to protect confidential sources of information, and the rights of individuals. Specifically, it must cover standards of:

a) conduct, especially in relation to the treatment of other people in the process of obtaining material;

b) appropriate respect for privacy where there is no sufficient public interest justification for breach; and

c) accuracy, and the need to avoid misrepresentation.

The likely code of Conduct will be one close that of the PCC Code , which apart from being frequently not applied by the PCC also gave plenty of wriggle room, especially when the question of the public interest was raised.

None of the panellists suggested that rather than having this great regulatory edifice  a statutory right of reply (RoR) would do what was required without any chance of political interference. This is because it is a self-organising process which would involve only the newspaper and the complainant or, where an RoR was refused, the courts.   Consequently I did.  John Whittingdale tried to dismiss the idea by saying it would be unworkable because of the number of people asking to reply would be vast.  I pointed out that this would not be a problem if the RoR was restricted to a reasonable length.

I also suggested that claims for  financial redress by  those abused by the press should be dealt with through the Small Claims courts with no right of appeal from the Small Court’s verdict and no lawyers allowed, that is, just the lay plaintiff confronting the lay representative of the newspaper involved.  Again this met with a blank lack of interest by the two MPs.    The Small Claims court could also deal with refusals of a newspaper to publish an RoR.

Had I been given the time I would also have raised the problem of how the Regulator would possibly be able to handle the likely number of complainants. In this context the Information Commissioner’s office  (ICO) can give some idea of the difficulties which are likely to arise. A complaint under either the Freedom of Information or the Data Protection Acts to the ICO is likely to take a year or more to gain an adjudication despite the fact that the IFO employs several hundred people.   You can bet your life that the proposed Regulator will not employ hundreds of people because the funding of the Regulator will come from the subscribing newspapers .  The difficulty of the numbers  complaining vastly exceeding the resources available is exacerbated by the allowing of third party complaints:

15.11. The Board should have the power to hear and decide on complaints about breach of the standards code by those who subscribe. The Board should have the power (but not necessarily the duty) to hear complaints: a) from anyone personally and directly affected by the alleged breach of the standards code, or b) where an alleged breach of the code is significant and there is substantial public interest in the Board giving formal consideration to the complaint, from are presentative  group affected by the alleged breach, or c) from a third party seeking to ensure accuracy of published information.

Third party complaints also raise the problem of subjectivity by the Regulator, whose board members, being human, are likely to favour complaints which fit with their political sympathies whilst discriminating against those of which they disapprove.

In short, the proposed regulatory regime is, apart from being the thin end of the wedge for state control of the press, dishonest in intent, constitutionally unsound and administratively impractical .

During the course of the meeting I  raised  (1)  the failure of  Leveson to use the letter from Piers Morgan to the PCC in which he admitted receiving  information from the police in circumstances which  could only have been illegal  and (2) Morgan’s subsequent perjury  when giving evidence before Leveson under oath. I offered these as  examples  of the failure of Leveson to pursue cast iron evidence of serious media misbehaviour.    Harry Cole expressed an interest and asked for a copy of the letter which I subsequently supplied.

After the meeting I spoke with John Whittingdale  about Leveson  and he was very loth indeed to discuss the matter. I eventually persuaded him to  take a copy of the Morgan letter from me, although it was with the look of a man picking up a live grenade with the pin pulled out. When he had read the letter  he  said, believe or not, that he did not think it worth pursuing because it was 15 years old. I pointed out that crimes were frequently pursued after such a time, for example, the Savile investigations ,  while some of the phone hacking accusations were over ten years old.  I also pointed out that the only reason my complaints were not investigated at the time  was the police  failure  to meaningfully investigate.   Mr Whittingdale left taking a copy of the Morgan letter with him.

Robert Henderson 2 March 2013

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Curing media abuse – A statutory right to reply is needed

Robert Henderson

A statutory right of reply (RoR) is the thing of media nightmares. That alone tells you it is the best remedy for the general public. But the media is looking a gift horse in the mouth because an RoR would provide the strongest bulwark against any government desire to regulate the media. If there is a truly effective means of rapid redress available to everyone, including incidentally politicians, the prime argument for outside regulation is removed.

An RoR is also the perfect practical solution to the problem of media abuse because it is a self-regulating mechanism, able to develop organically and requiring no great bureaucracy to administer it or vast amounts of money to fuel it.

The only expenditure would be that incurred where an individual challenged the denial of an RoR by a newspaper or broadcaster. That cost could be kept to a minimum in two ways. First, by making libel the only reason for refusing an RoR and then only for that part of a proposed reply which was libellous. Second, by empowering Small Claims Courts to decide whether a claimed libel exists and, if the court does not agree that it does, to order the newspaper or broadcaster to publish the disputed reply. To keep things simple, there should be no appeal against the Small Claims Court’s decision.

The other mechanism which would provide redress with little cost would be to extend the powers of the Small Claims Courts to hear complaints against the media for libel and slander and other torts such as trespass. These two measures would ensure that money did not prove a barrier or determinant of ultimate legal success.

How would it work?

I would restrict the right to individuals because corporate bodies should be able to look after themselves through normal legal action.

The qualification for a right to reply would be simple and objective: the media outlet has printed or broadcast material about an individual. Hence, no prior legal decision, other than on possible libel, would be needed before an RoR was enforced.

What should the RoR entail in terms of opportunity? In the case of newspapers I would give a respondent 300 words as an automatic right and another 500 words for every 1000 words published about him or her over 1500 words. The respondent’s reply should be printed on the same page as the story to which they are responding. If the newspaper responds to a reply then the person responded to would get another RoR.

Broadcasting is more problematical, but at the least a written reply by the person criticised could be read out on air. Where the person has the confidence to speak for themselves, they should be allowed to broadcast their reply.

Practical fears

The objections to an RoR are heavy in the imagination but in all probability slight in practice. It is a case for suck-it-and see.

The media will say that it is completely impractical, that their papers and broadcasts would be full of nothing but replies. In fact, we can say with a very high degree of probability that they would not be.

The general experience of the introduction of any new opportunities for the public at large to act upon is that there is an initial burst of activity which soon settles down to a hard core of those willing to make the effort. If by any chance the introduction of a right to reply proved the odd sociological man out and the media was overwhelmed, the system could be reviewed .

A narrow RoR would be worthless

The media will doubtless throw up their hands in horror at the idea of a RoR which is anything other than a narrow one based on correcting inaccuracy. There are two solid reasons why it should not be limited to inaccuracy. The first is that there is often no easy way of proving the truth or otherwise of ostensible “facts” nor any clear distinction between what constitutes accuracy and inaccuracy or a certain definition of what is an objective fact. For example, what is the objective truth of this statement: “Harold was killed by an arrow through his eye at the battle of Hastings” in 1066? We can be more or less certain that the battle took place in 1066, assuming that we do not have a general scepticism about that which we have not personally witnessed, but the nature of Harold’s death is much more uncertain and problematical. If the RoR were restricted to inaccuracy, the media would assuredly use the lack of objective truth and falsity to undermine the RoR by arguing interminably.

The second objection concerns opinion. This is often more damaging than inaccuracy and there is no clear distinction between fact and opinion. Suppose I write of an actress that “she is a whore”. That is a statement of fact which in principle could be tested objectively, that is, does she take money or other material rewards for providing sexual favours? But what if I write “she has the morals of a whore”? Is that fact or opinion? If it is to be treated as fact how could it be tested? Again, the opportunities for argument are limitless.

The effect on the media

The effect of an RoR and small claims court libel access would be profound. Faced with an immediate published response to any inaccuracy or abusive opinion and the possibility of having to submit themselves to public examination in a small claims court, journalists and broadcasters would cease to be cavalier in what they write. An analogy would be with the recording of conversations where everyone in the conversation knows they are being recorded. Where that occurs people generally cease to lie about what was said and are careful about what they say.

The present remedies

Compare an regime such as I have proposed with the present supposed remedies for those criticised or represented by the media. These are both cumbersome and the success of a complaint is dependent upon the judgement of others. In the case of the Press Complaints Commission (PCC), the judgement is made by people drawn from the media or from those associated in some way with the media, and the organisation is funded by the press. Unsurprisingly, a non-celebrity complainant to the PCC rarely succeeds – in its entire history the PCC has never found for a complainant where to do so would be to tacitly accept that a serious libel had been committed.

But to complain that the PCC is no remedy is to miss a larger point. No matter how formally honest the PCC or any other media regulating body was, it could no more serve the public generally than the legal profession can serve the general public in actions for libel where there is no legal aid. The question is one of practicality.

The numbers of complaints actually considered formally by the PCC and the Broadcasting authorities is minute, running into a few hundred a year – most complaints never get to a full hearing or investigation. If the public began to use these bodies enthusiastically they would be overwhelmed. Short of the Government devoting a large segment of the national budget to funding vast public bodies capable of dealing with tens of thousands of complaints a year, the redress for the public will remain notional and the existence of bodies such as the PCC worse than useless. I say worse than useless because their existence gives a spurious appearance of media misbehaviour being subject to sanctions.

All that adds up to a further powerful argument for an effective RoR. Those within the media who oppose such a thing should consider whether it a lesser evil (from their point of view) than the likely eventual alternative of state-control, either openly or through quasi-independent bodies.

I will leave you with this thought. At present the relationship between someone in the media and anyone they choose to criticise is analogous to someone who binds a man and then punches him. It is not a contest, but an act of cowardice. It is essentially what anyone in the media does when they attack someone outside the media in the certain knowledge that the person will be denied an uncensored opportunity to reply.

 

The Leveson Inquiry: a shameless attempt to censor my evidence

RE: Submission to the Inquiry involving media abuse and the buying of police info Tuesday, 29 November, 2011 13:26

From: “Leveson Inquiry General Enquiries”View contact detailsTo: “robert henderson”Dear Mr Henderson,

Thank you for your submission which has been received by the Inquiry Team.  You will appreciate that we have received a large amount of evidence since the Inquiry was announced and yours will be considered alongside that.  As we only have a limited time for oral hearings, and a large range of issues to cover, it is unlikely that we will require you to provide any additional evidence to the Inquiry at this stage.  However, if, once we have considered your submission in more detail, we think it would be helpful to have some more information then we will come back to you.

Kind regards,

The Leveson Inquiry Team

http://www.levesoninquiry.org.uk

————————————————————————————–

Leveson Inquiry

Royal Courts of Justice

Strand

London WC1

30 11 2011

Dear Sirs,

I am more than a little concerned that you so lightly dismiss my chances of appearing in person.  Let me remind you of the exceptional circumstances of my case:

1. I was falsely accused of being a crude, dangerous racist, the accusation in modern Britain which, if false, is the greatest of libels.

2. I was unable to gain any redress from the publishers of the libels through a retraction or a right of reply; from the PCC who refused to adjudicate on my complaints or my MP Frank Dobson (a member of Blair’s cabinet at the time of the Mirror story) who refused to take up my case. In addition, I did not have the financial means to sue .

3. After the publication of the Mirror and Daily Record stories, I was subject to a long campaign of harassment which included abusive phone calls and a vicious campaign on social media sites attempting to incite physical violence against me by publishing my name, address and phone number  together with further vicious libels. It is reasonable to assume this campaign was in some way connected with the Blairs’ failed attempt to have me prosecuted as I had never experienced any such treatment in my life before the publication of the Mirror story.

4. Unlike most of the witnesses who have appeared before the Inquiry, I have based my complaints on either documents which categorically prove what I am saying or on my own eyewitness testimony.  

5.I have provided categorical evidence of misbehaviour which covers the entire remit of the Inquiry, viz.:

a) that the erstwhile Mirror editor Piers Morgan that the Mirror obtained evidence illegally from the police, the evidence being  Morgan’s letter to the PCC.

b) that the Metropolitan Police failed to investigate the Mirror editor’s admission that the paper received information illegally from a police officer .

c) that the PCC is worthless as a means of redress for harm done to someone abused by the press.

c) That the Mirror behaved with a complete disregard for the truth , failed to meet the PCC Code of Conduct requirement to correct inaccuracies and behaved with utter arrogance throughout the affair from the printing of the story to the end of my complaints to the PCC .  

If that does not make someone a prime candidate for an oral hearing it is difficult to see what would.

I could have sent much more by way of documentation on press, PCC and police misbehaviour involving me to the Inquiry, for example, there is the story of the media treatment of me after the publication of my Wisden Cricket Monthly article “Is it in the blood?” in July 1995.  That resulted in dozens of media articles, many of them crudely abusive, even more containing serious libels, to which I was denied any correction or opportunity to reply. In that case as well the PCC refused to adjudicate on my complaints.   However, I did not wish to flood the Inquiry with a mass of documents so I kept my submission as  simple as I could whilst conveying how the press, the PCC and the police had behaved badly towards me.  If the Inquiry wishes for further details and supporting documentation of the misbehaviour which I have not included in my submission, I shall of course be willing to supply it.

I also have clear ideas how the press could be brought to behave more ethically without introducing a state regulator or a privacy law.  These are contained in an article published by the Campaign for Press and Broadcasting Freedom which is below this email.

Please acknowledge receipt of this email and confirm that it has been passed to Lord Leveson.

Yours sincerely,

Robert Henderson

——————————————————————————————————

http://www.cpbf.org.uk/body.php?subject=right%20of%20reply

    
Platform – A right to reply

150/Robert Henderson

DATELINE: 25/2/06

A statutory right of reply (RoR) is a thing of journalistic nightmares. That tells you it is the best remedy for those who cannot afford to sue for libel. But the media is looking a gift horse in the mouth for a RoR would provide the strongest guard against any government desire to formally regulate newspapers and to further interfere with broadcasters, because an effective cheap means of rapid redress available to everyone, including politicians incidentally, capsizes the prime argument for state regulation. A RoR is the perfect non-political remedy for media abuse because it is a self-sustaining and self-regulating mechanism.

Costs could easily be kept low. First, by making libel the only reason for refusing a RoR and then only for that part of a proposed reply which was libellous. Second, by empowering Small Claims Courts to decide whether a claimed libel exists and, if the court does not agree that it does, to order the newspaper or broadcaster to publish the disputed reply. There should be no higher court appeal against the Small Claims Court’s decision unless the appellant pays both sides’ costs. This would allow justice while preventing those seeking a RoR from being intimidated out of their right by the threat of heavy costs.

How would it work?

The qualification for a RoR would be simple and objective: a media outlet has printed or broadcast material about an individual.

In the case of newspapers I would give a respondent 300 words as an automatic right and another 500 words for every 1000 words published about him or her over 1500 words. The respondent’s reply should be printed on the same page as the story to which they are responding. If the newspaper responds to a reply then the person responded to would get another RoR.

Broadcasting is more problematic but a written reply by the person criticised could be read out on air. Where the person has the confidence to speak for themselves, they should be allowed to broadcast their reply.

Practical fears

The media will say that this is completely impractical, that their papers and broadcasts would be full of nothing but replies. In fact, the general experience of the introduction of new opportunities offered to the public is that there is an initial burst of activity which soon settles down to a hard core of those willing to make the effort. If the introduction of a right to reply proved the sociological odd man out and the media was overwhelmed, the system could be reviewed.

A narrow RoR would be worthless. A RoR should not be limited to inaccuracy. There is often no easy way of proving the truth or otherwise of ostensible “facts”. If a RoR was restricted to inaccuracy, the media would assuredly undermine it by arguing interminably.

Then there is opinion. This is often more damaging than inaccuracy. Moreover, there is no clear distinction between fact and opinion. Suppose I write of an actress that “she is a whore”that is a statement of fact which, in principle, can be tested objectively. But what if I write “she has the morals of a whore”? Is that fact or opinion?

The present non-legal remedies

These are both cumbersome and unfair. For example, the Press Complaints Commission (PCC) is comprised entirely of people drawn from the media or from those associated in some way with the media, and the organisation is funded by the press. Unsurprisingly, a non-celebrity complainant to the PCC rarely succeeds.

But this misses a larger point. No matter how formally honest any media regulating body was, it could no more serve the public generally than the legal profession can serve the general public in actions for libel where there is no legal aid.

The numbers of complaints actually considered formally by the PCC and the broadcasting authorities is minute, running into a few hundred a year — most complaints never get a full hearing or investigation. If the public began to use these bodies enthusiastically they would be overwhelmed.

The effect on the media

Faced with an immediate published response to any inaccuracy or abusive opinion and the possibility of having to submit themselves to public examination in a small claims court, journalists and broadcasters would cease to be cavalier about what they write.

THE PRESENT RELATIONSHIP BETWEEN THE MEDIA AND ANYONE THEY CHOOSE TO CRITICISE IS ANALOGOUS TO SOMEONE WHO BINDS A MAN AND THEN PUNCHES HIM. IT IS NOT A CONTEST BUT AN ACT OF COWARDICE.

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