Today, on 25 October 2016, the UK Press Recognition Panel (PRP) issued a positive decision on the application for recognition by the press regulator IMPRESS.
With the recognition of a press regulator, a new system of press regulation now comes into force. Included in this new framework are provisions of the Crime and Courts Act 2013 that aim to encourage the press to participate in an approved scheme of self-regulation by allowing courts to award exemplary damages and legal costs against a media defendant who is not a member of an approved regulator. IMPRESS is now the only recognised press regulator under the Royal Charter on Self-Regulation of Press .
ARTICLE 19 acknowledges that the new system represents a huge shift in the culture of the press industry for all actors large and small. The new system should serve the interests of the public via an accountable and responsible press.
“We can expect greater accountability of the press towards the public in the UK. Industry owners will be encouraged to create and adhere to good practices and standards of professional ethics. I hope this will also reinforce editorial independence in the media,” says Thomas Hughes, Executive Director of ARTICLE 19. Hughes continued, “However, only a very cautious interpretation of provisions of the Crimes and Courts Act 2013, on the award of exemplary damages and legal costs, can be compatible with the international standards on freedom of expression.”
In the UK, the press has traditionally been fully self-regulated and self-regulation has been seen as a main condition and characteristic of the press freedom. This has led to a situation whereby attempts by the Government to introduce a new system of press regulation have tended to be perceived as an attack on the very notion of a free press. However, international human rights standards do not prescribe a specific model of press regulation. Instead, they require that any regulation meet a specific three-part test in order to be compatible with the right to freedom of expression, since regulatory measures for the media could interfere with press freedom.
“Self-regulation must be meaningful: it must not only provide protection for members of the journalistic profession, but also hold them accountable to their profession and hold press outlets and their owners accountable to the public,” stated Pierre François Docquir, Senior Legal Officer at ARTICLE 19.
ARTICLE 19 recommends that courts ensure that any decision on damages or costs do not amount to a disproportionate burden that would threaten the viability of the media defendant or otherwise create a chilling effect on freedom of the press.
In addition implementation of the new provisions of the Crime and Courts Acts 2013 should be monitored closely. “If it appears that they do not confirm to international standards on freedom of expression,” continued Docquir, “they should be revised”.
ARTICLE 19 position on self-regulation of the UK
ARTICLE 19 has previously issued several comments on the state of the press regulation in the UK. We found that the legislative underpinning of the new self-regulation mechanisms that followed from Lord Leveson’s inquiry marked an important change from the previous situation and introduced elements that were unprecedented in the culture and practices of the press in the UK. However, we also reiterate that:
- International human rights standards do not prescribe a specific model of press regulation. Instead, they require that any regulation meet a specific three-part test in order to be compatible with the right to freedom of expression, since regulatory measures for the media could interfere with press freedom;
- Under international standards on freedom of expression, the public has a vital interest in an accountable and responsible press;
- At the same time, self-regulation of the press is considered to be the least-restrictive manner to achieve certain objectives of general interest in the media. However, self-regulation must be meaningful: it must not only provide protection for members of the journalistic profession, but also hold them accountable to their profession and hold press outlets accountable to the public;
- In the UK, the press has traditionally been fully self-regulated and the self-regulation has been seen as a main condition and characteristic of the press freedom. Hence, all attempts by the Government to introduce a new system of press regulation have tended to be perceived as an attack on the very notion of free press. However, the legal underpinning does not regulate the press but simply underpins self-regulation. Comparable schemes have proved to be compatible with a high level of protection of freedom of expression in other countries.
ARTICLE 19 also notes that:
- Section 34 of the Crime and Courts Act 2013 provides for the possibility of exemplary damages against a publisher who is not a member of an approved regulator. Under Section 34 (6), courts could only consider a claim for exemplary damages when such award would be the only adequate manner to punish a ‘deliberate or reckless disregard of an outrageous nature for the claimant’s rights’.
ARTICLE 19 considers that the award of pecuniary damages that go beyond compensating for actual harm should be highly exceptional measures, to be applied only where the plaintiff has proven that the defendant acted deliberately and with the specific intention of causing harm. In that perspective, we recall our previous observation that the meaning of “reckless disregard of an outrageous nature for the claimant’s rights” is not entirely clear. Even if Section 36 (2) b, adds that the amount of damage must be proportionate to the seriousness of the conduct of the media defendant, the new provisions do not exclude entirely the possibility of disproportionately high damages being awarded against a media defendant who is not member of an approved regulator.
- Section 40 provides for the possibility of legal costs being awarded against the media defendant who is not a member of an approved regulator. As there is no limitation on the costs, this provision might be applied in way that would threaten the financial viability of a media defendant.
In addition, ARTICLE 19 notes that the decision to commence Section 40 remains at the discretion of the Secretary of State for Culture, Media and Sports. The evolution of the new system of self-regulation is, therefore, directly under the influence of a Government Minister. We have previously expressed concerns that a former Secretary of State for Culture, Media and Sports may have chosen to delay the commencement of this provision, apparently, in response to private representations made by the press industry. The government has placed itself in a position where it can exercise direct influence over the press by deploying the commencement of Section 40 as a threat. This situation is likely to seriously undermine the public’s trust in the “watchdog of democracy” and is not compliant with international human rights standards.
ARTICLE 19 recommends that courts should be cautious when awarding damages and costs under the Crime and Courts Act. Under international law, any restriction to freedom of expression – such as damages or the burden of legal costs – must be the least restrictive possible to achieve its objective and must remain proportionate. Courts should ensure that any decision on damages or costs do not amount to a disproportionate burden that would threaten the viability of the media defendant or otherwise create a chilling effect on freedom of the press.
ARTICLE 19 also recommends that the implementation of the new provisions of the Crime and Courts Acts 2013 should be monitored closely and possibly revised should it appear that they are not construed in conformity with international standards on freedom of expression. In the event of a revision, we recommend that a fixed maximum ceiling for the amount of damages for non-material harm should be added to Section 34. The fixed ceiling should be in proportion of the turnover of the defendant company. The award of legal costs as per Section 40 should also be limited in proportion of the defendant’s turnover.