Debate about the Royal Charter rumbles on, even after it was finally granted this evening. It’s interesting that it’s not the principle of a charter that the press object to, if it was, surely they would not have submitted their own version. No, it’s the one submitted by those dastardly, elected by the people (sort of), politicians that they specifically object to.
So, what about the one the press submitted, what are the key differences? Well, the Independent has helpfully published the Royal Charter with comments from their Media editor highlighting the key differences, and it’s these I intend to discuss here. I suggest you read that article for context.
So, first up is about future changes:
A huge issue for publishers is the fear that future governments will be able to change the terms of the charter in order to make it more repressive. The Royal Charter allows for changes to be made provided they have been “laid before Parliament” and “approved by a resolution of each House”. Its definition of “approved” is a two-thirds majority. A proposed late amendment – thought to have been agreed by the three main parties last week – would mean that changes can only be made to the charter if there is also agreement from a two-thirds majority of the board of the Recognition Panel that oversees the regulator. But the prospect of a clampdown by a more authoritarian government still fills the press with dread. In its own charter – rejected by the Privy Council – the newspaper industry included far more stringent wording on future amendments, permitting them only where there was “unanimous support” of the members of the new regulator’s recognition panel, of the board members of the regulator itself and of the boards of all publishing trade associations.
This is a crucial difference between the two charters.
As I stated in a previous post, “It requires a two thirds majority vote in Parliament to change the charter (Point 9.4 or the Charter). This is more than it takes to pass a normal law, which requires a simple majority. I.e. it will be easier to implement a new law curtailing press freedom than to change the Charter to permit it.”. The press are concerned about the charter being changed in a “clampdown by a more authoritarian government”. Well if a more authoritarian government wanted a clampdown, they could just, you know, enact new laws, which requires a much less stringent majority than changing the charter would. And that applies equally to the press proposed charter. Any authoritarian government can just ignore any existing charter and make new laws. So while the difference between the two charters is a nice one to highlight, it makes zero practical difference when it comes to future developments.
The next note is about national scope.
The original Parliament charter, drawn up in March, applied only to publications in England and Wales. It has been amended to also include Scotland – although the Scottish Newspaper Society is among press trade bodies opposing the charter.
So it includes Scotland too, no biggie.
The third highlight is more an explanatory note:
An amendment to this legislation allows courts to impose exemplary damages on publications which are the subject of legal actions and have chosen not to be signatories to an arbitration system included in this Royal Charter. This provides a legal mechanism for enforcement.
As noted this is the mechanism to encourage publications to sign up to an arbitration system (provided by a Regulator) recognised by the Recognition body the charter sets up. If a publication doesn’t sign up to a recognised scheme, it faces higher court damages and possible costs if it loses a claim. Note the Charter does not create a regulator, it simply defines certain criteria that a Regulatory body must meet to be recognised.
Next we have a comment about who can be on the recognition panel:
The Royal Charter forbids any current or former “editor” or “publisher” or, indeed, anyone “involved in the publication of news or current affairs in the United Kingdom” from being a member of the Recognition Panel that would oversee the new regulatory body. MPs believe this makes the panel – which would also refuse to accept serving politicians as members – as truly independent. The newspaper industry wants a single representative on the panel – but politicians argue this would amount to a veto over appointments.
The politicians want a fully independent Recognition Panel, the press want representation. I don’t see the need for the Press representation here – it is supposed to be an independent body, the criteria it has to uphold are well defined. No political interference, no press interference. That can’t be said for the Press proposed charter.
The next point raised is about arbitration:
A key feature of Lord Justice Leveson’s recommendations. It is intended to be a carrot that will encourage publishers to sign up to a new regulator by reducing liability to court costs. It has been the subject of fierce controversy, especially from the local press, which fears being swamped by claims. Publishers are alarmed at a prospect of claims-farming lawyers seeking to exploit potential compensation payments. They also fear compensation claims from third parties. In a late amendment to the charter this month, the risk to smaller publishers was recognised in a clause which provides an opt-out of the arbitration system where the Recognition Panel accepts there is a risk of “serious financial harm to subscribers who publish only on a local or regional basis”. Publishers who eschew the arbitration process by choosing not to sign up to the new regulator face the possibility of exemplary damages if complainants are forced to pursue them through the courts. Some news groups are considering a legal challenge to this measure (which was introduced into law through an amendment to the Crime and Courts Act 2013), with the Newspaper Society having declared that “it is almost certainly illegal under European law”.
This goes back to the previous point about damages. It encourages (the exception for local or regional publishers aside) publishers to sign up for an arbitration system which meets the requirements set out by the charter, and if they do, they get protection from excessive damages if said arbitration fails. What’s not to like? One of the arbitration requirements is that “that complainants are able to bring complaints free of charge.”. I.e. if someone complains about something that was published, first they have to complain to the publisher, if that is not satisfactory they can complain to the independent regulator. This is great for individuals since it means they don’t have to fund an expensive libel case, where even if they win they can be saddled with massive costs and little to show for it. The board of a regulator will “need to have the discretion not to look into complaints if they feel that the complaint is without justification, is an attempt to argue a point of opinion rather than a standards code breach, or is simply an attempt to lobby.”.
So basically the downside for publishers is that people can complain more easily, without having to fund hugely expensive libel cases. This is a good thing because publishers will be more accountable – that’s the point. They need to get things right, and if they get things right then everyone is happy. If they get it wrong, people can complain more easily, and the upside for publishers is that they have more protections from costs than they would otherwise have.
The next comment is one about the “Editors’ Code of Practice Committee”
Newspapers are anxious that they, as the professionals, retain control over this crucial part of the way the industry operates. In its own charter the industry said that the majority of the committee – which sets the standards of newspapers and magazines and decides on appropriate behaviour by working journalists – should be made up of serving editors. It accepts that some members should be independent of the news industry. The code committee at the existing, but soon to be wound up, regulator, the Press Complaints Commission, is being restructured – in the light of Lord Justice Leveson’s findings – to include lay members alongside the 10 serving editors. MPs are unhappy with this balance and their Royal Charter originally proposed that the Code Committee was split into three equal groups of lay members, serving journalists (non-editors) and serving editors. A recent amendment made this less specific, saying the committee should include both “independent members” and “serving editors”, with the latter having “an important part to play although not one that is decisive”. The lack of a majority for editors remains a point of contention.0
This seems to be saying that the press would like that a majority of the committee who decides the ‘Code of Conduct” (against which complaints be judged) be editors. I understand why they would want that, and I don’t see that it’s required by any means. As noted, the Royal Charter makes provision for both independent members and serving editors to be represented, and explicitly states the important part serving editors have to play. It just prevents those serving editors having control over the code of conduct they will have to adhere to, and what is bad about that?
Apologies are the next topic for comment:
The Royal Charter gives the regulator wide powers to “direct the nature, extent and placement of corrections and apologies”. The newspaper industry’s own proposals – although they raise the prospect of papers being forced to print front-page apologies – are for weaker regulatory powers that require the complainant to first negotiate with the newspaper and only turn to the watchdog for remedial action when negotiations fail.
I can’t really get excited about this one, there isn’t a lot in it. The proposed Charter actually states: “In relation to complaints, where a negotiated outcome between a complainant and a subscriber (pursuant to criterion 10) has failed, the Board should have the power to direct appropriate remedial action for breach of standards and the publication of corrections and apologies. ” So the proposed Charter assumes some for of negotiation has already happened and failed, if not specifically about remedies, should a complaint be upheld by the regulator. There is nothing to say a Regulator can’t request a remedy be negotiated first, only that it has the power to impose one should it need to.
On the subject of fines:
The MPs (in their Royal Charter) and the newspaper industry (in their proposed new regulatory body, the Independent Press Standards Organisation) are agreed that the new watchdog should be able to impose fines of up to £1m on miscreant publishers. The industry argues that such powers would make Ipso the “toughest regulator anywhere in the developed world” and show that the press is quite capable of self-regulation without the involvement of Parliament. Press regulatory reformers suspect that such penalties would never be imposed if the watchdog was not subject to a charter-backed Recognition Panel.
Not much to comment on here – both charters provide for the same level of punishment, the question is whether a regulator would actually impose that level of fine. Previous attempts at self regulation without some form of independent auditing that regulation is working haven’t exactly been a success, which is precisely why we are at this point.
So that’s it. So, is the charter suggested by our elected representatives that different from the one suggested by the press, and do those differences key make the difference between a free press or one with state interference? I think it’s key that there is no suggestion that either charter somehow allows the suppression of any material before publication where the other doesn’t. As to whether the press should have more involvement in regulation like their charter would provide – based on the evidence of their reporting of the charter , I wouldn’t trust them with more involvement with their own regulation.