Wednesday, January 04, 2017

State regulation scheme threatens future of local press

A blind hatred of parts of the national press could be about to destroy one of the pillars of local democracy in this country – the local press.

Nobody doubts the important role played by local newspapers in holding local councils to account and underpinning the fundamental human right to fair and open justice.  At the end of his 18-month enquiry into the ethics and behaviour of the press, Lord Leveson had nothing but praise for regional newspapers:

“… I must make a special point about Britain’s regional newspapers. In one sense, they are less affected by the global availability of the biggest news stories but their contribution to local life is truly without parallel.  

“… Many are no longer financially viable and they are all under enormous pressure as they strive to re-write the business model necessary for survival. Yet their demise would be a huge setback for communities … and would be a real loss for our democracy.

“…Although accuracy and similar complaints are made against local newspapers, the criticisms of culture, practices and ethics of the press that have been raised in this Inquiry do not affect them: on the contrary, they have been much praised.”

State regulation scheme

Despite this, urged on by anti-press lobbyists, the Government used the Leveson enquiry to introduce a state regulation scheme which threatens to destroy many local newspapers.  Hidden behind the pretence of voluntary self-regulation, the Government is actually attempting to force local newspapers to join a regime which would threaten their very existence. 

Newspapers which refuse to join up will face punitive costs even when they have done nothing wrong.  Complainants will be given a free pass to take newspapers to court because the newspaper will have to pay not only their own legal costs, but also those of the complainant – even if the newspaper wins the case.

This, of course, tilts the scales of justice so far in the complainant’s favour that it is absurd.  Why wouldn’t they go to court?  They have absolutely nothing to lose, even if their case is wafer thin.

The alternative for newspapers is to join a regulator approved under the state scheme, which insists on an arbitration process which allows complainants to ‘sue’ local newspapers.  Again, there is no cost to the complainant, but the newspaper – even if it wins – must pay for the process. 

The threat these alternatives pose to local newspapers is very real.  Mike Sassi, Editor of the Nottingham Post, recently wrote that the likely result of this attack on a free press would almost certainly lead to a situation where local papers could not risk writing anything controversial for fear of having to pay out.

Insulting to local newspaper editors

Those blinded by their hate of some national newspapers, choose to scoff at the fears of local newspapers.  The Chair of Hacked Off, Hugh Tomlinson, QC, responded by insulting Sassi – and all other local newspaper editors – by dismissing their claims, implying they could not possibly believe what they were saying – they were simply ‘dancing to the tune of their masters’.

Revealing a complete lack of understanding of the situation faced by almost all local newspapers, Tomlinson said the costs of the state regulation scheme’s arbitration system would be tiny.  Almost 200 local papers have closed in the UK since 2005, and many of those left make very little profit. Tindle Newspapers, for example, runs about 220 local newspapers, which, last year, made an average of less than £10,000 profit per paper.  Leveson himself said that many local newspapers were no longer financially viable.

An arbitration case for a local newspaper could cost as much £3,500, even if it wins.  If the case has little merit and is dismissed at an early stage, the newspaper will still end up paying out, not the full £3,500, but quite possibly £2,000.  Given again that there is no risk to the complainant, it is not unreasonable to assume newspapers will face a number of claims every year.  Two or three cases a year would be enough to wipe out the profits at a Tindle newspaper.  

And if you think it won’t happen, spend five minutes reading this article by Martin Trepte, editor of the independently-owned Maidenhead Advertiser.  In December, his paper was threatened with libel by a convicted sex offender who did not like the details of his court case appearing in print.  The paper’s lawyers simply dismissed the complaint.  Their advice will not have been free, but it probably cost no more than £100.  In future, papers like the Maidenhead Advertiser face one of two choices: sign up to the state regulatory regime, under which this case with no merit will almost certainly be dismissed, but not before racking up a £2,000 bill to be paid by the paper; or stay outside the state scheme, and risk an even more expensive court case, in which they are forced to pay huge court costs, both theirs and the complainant’s, even if the court finds the newspaper did nothing wrong.

Convicted heroin dealer

It’s a no-win situation.  Oh, and it was not the only complaint Trepte dealt with that week.  He also received a threat from a convicted heroin dealer who did not like the fact that his court case was on the newspaper’s website.  Again, the paper dealt with the complaint, but in future, it would be faced with a bill of, at best, a few thousand pounds … despite the fact that it had done absolutely nothing wrong. 

Tomlinson, in his attack on Sassi, tries to dismiss this by saying: “If people bring bad complaints (whether in the courts or in an arbitration scheme) they will be struck out and they will have to pay the costs.”

This is simply untrue. 

The regulations of Impress, the only regulator approved as part of the state regulation scheme, say clearly:

“An IMPRESS decision to offer access to its arbitration scheme will be based on an administrative assessment of whether a claim is covered by the scheme. For the avoidance of doubt, it will not be based on an assessment of the merits of a claim. “ (My emphasis)

So, when the convicted sex offender seeks redress for libel, Impress does not care whether there is any merit in the claim, only that libel is covered by the scheme.

And there is nothing in the arbitration scheme which allows the costs to be passed back to the complainant.  Indeed, the arbitration scheme specifically says the claimant will not be liable for any costs, and that the publisher will pay the costs even if the claim is “struck out, dismissed at a preliminary stage, or resolved.”

So, in a single week, this small independent newspaper would have faced bills of a few thousand pounds whether it joined the state scheme, or refused to be bullied into giving up its rights.  You might – like Hugh Tomlinson – think a few thousand pounds is neither here nor there, but the Maidenhead Advertiser belongs to a company which made about £100,000 operating profit last year.  Its revenues were down 7.5% on the year before, and it cut its staff by about 10% to cope with the reductions.

Punitive legislation

How can it be right that newspapers like the Maidenhead Advertiser – and the rest of the 1,000 local and regional newspapers - can face such punitive legislation?  The simple answer to that is that it can’t be right. 

And let’s remind ourselves of what we are talking about here.  Freedom of speech is a fundamental human right, recognised in many places, including the UN Declaration of Human Rights, the European Convention of Human Rights (ECHR), and the UK’s Human Rights Act.  Here’s what the ECHR says:

“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.

“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.”

The law is clear – governments can interfere with the right to free speech only when it is necessary, and there is plenty of case law to show that any such interference must be proportionate.  In plain language, this means that governments cannot use a sledgehammer to crack a nut, if a nutcracker will do.

Despicable behaviour

So, what nut is the Government trying to crack here?  What the Leveson enquiry uncovered was despicable behaviour by a group of national newspapers.  It was clear that these newspapers had broken the law … and the law was dealing with them.  Despite this, the Government, along with opposition parties, met up with anti-press lobbyists, and hastily drew up a regime which clearly interferes with the right of all newspapers to freedom of expression.

There is nothing proportionate about the solution.  About 1,000 local newspapers are having their right to freedom of expression interfered with, despite the fact that they did nothing wrong and have not displayed any behaviour that suggests that laws are needed to regulate them.  The laws risk denying these newspapers their right to freedom of expression because they will either have to stop writing about anything controversial or risk being put out of business.

It is not just the newspapers, the owners, and journalists whose rights are being interfered with.  The ECHR specifically says the right is to receive information as well as impart it.  Every day, millions of people choose to receive their information from local newspapers and their websites.  The importance of this information is recognised by everyone – including Leveson himself.

It is fairly obvious that the issue that Leveson sought to resolve was the behaviour of some parts of the national press – we have to assume that the Government was trying to do the same thing.  Everyone is agreed that the behaviour of the local press was not the issue. 

By law, any move to undermine the fundamental rights enshrined in the ECHR must be proportionate.

Less intrusive measures

Generally, it is accepted that there are four criteria that must be met for an action to be proportionate.  Perhaps the key one is:

·        Whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective

So, why did the Government cast its net so widely, catching 1,000 innocent newspapers in a regulatory regime in an effort to control so few? 

It was not as if the politicians and anti-press lobbyists who drew up the state’s role in press regulation thought they could not limit the new rules to certain sectors of the news industry.
They specifically decided the new rules should not apply to everyone.  The new regime covers only ‘relevant publishers’, defined as a ‘person or organisation’ which:

·        Publishes news related material, and
·        Publishes material in the course of a business, and
·        Produces material written by different authors, and
·        Produces material which is subject to editorial control

It is not exactly clear who is covered, but it is clear that all local newspapers are included.  No attempt was made to limit the rules to those newspapers castigated by Leveson.  It would have taken almost no effort at all to add another line to the definition of ‘relevant publishers’, limiting the new rules to ‘publications whose primary audience is national’, or something similar.

I personally* don’t agree with the state playing any role in laws or regulations drawn up specifically to limit the freedom of speech of newspapers, but, given the background to the new rules, I do not see how it can possibly be argued that they are proportionate.  And, if the new rules are not proportionate, they are also not legal. 

Leveson spent 18 months looking at the ethics of newspapers and concluded that the vast majority had done nothing wrong.  Despite this, the Government, has brought down a huge sledgehammer which is likely to destroy completely innocent local newspapers, denying both the newspapers and their readers the fundamental right to express and receive information and opinions.

It is simply not right. 

*I am a board member of the Independent Press Standards Organisation (IPSO), the independent regulator for the newspaper and magazine industry in the UK.  However, the views expressed above are my own – I have not discussed them with IPSO.  To read IPSO’s view, see here.

*The Government is currently consulting on whether or not to introduce the laws which would seek to force newspapers to join the state regulation scheme – the post above will form the basis of my response to the consultation.  If you would like to make your views known, visit the Government’s consultation page.