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Leveson: alarm bells

15 April 13

Argument that the proposals of the McCluskey expert group on implementing the Leveson report in Scotland will damage the Scottish press

by Campbell Deane

On 8 March 2013, the expert panel under the chairmanship of Lord McCluskey, appointed to consider the Leveson recommendations in Scotland, reported its findings and recommendations. Without reform consensus in England, it seemed that Scotland would be going it alone in the battle to curb the supposed excesses of the newspaper industry. But while the McCluskey recommendations were being considered, all three parties in England reached agreement on a royal charter with accompanying statute.

Scotland looked set to be brought under the UK umbrella, until the UK Parliament left the way open for Scotland to pursue its own regulation regime by amending the charter so that it only applied to England & Wales. Despite the likelihood of Scottish Government discussions with Westminster, there would appear to be too many legal and procedural differences to bring Scotland on board. As a consequence, the McCluskey recommendations require scrutiny.

All-embracing

One of Leveson’s most vexing issues was how to force newspapers to sign up to regulation. Regulation wouldn’t work if some newspapers opted out. There needed to be both an incentive and a deterrent to any newspaper that chose not to join. In England, the carrot and the stick lay in newspapers that opted out facing punitive damages in privacy and libel cases.

Further proposals included those newspapers picking up costs, even in the event of successfully defending such claims. These arguments are to the fore in England, the thrust of them being that exemplary damages are not ECHR compatible and that the chilling effect on publication by fear of such sanction is not article 10 compliant.

The draft Defamation Bill in England may have swayed Leveson in producing an English solution, but so far as punitive damages are concerned, Lord McCluskey rightly noted that punitive damages are not part of Scots law (Black v North British Railway Co 1908 SC 444). Having rejected the punitive damages carrot, and rather than formulating a strategy based on other incentives, he chose a pressgang rather than press reform. The solution was that everyone, including online users, was potentially in the club and nobody was opting out.

It’s an interesting solution, but not without problems. Who exactly qualifies as a significant news publisher, in a no-opt-out system? I doubt that it was the intention that a 16-year-old publishing a blog on school dinners would be a significant news publisher. But the problem is that she might be, and someone has to make the decision.

Flawed approach?

In advancing the concept of identifying the behaviour, making it unlawful and specifying those to whom the prohibition applies, Lord McCluskey aligns the concept with the processes followed under the Contempt of Court Act 1981. That legislation penalises publications which create a substantial risk of serious prejudice. But his methodology is to put the cart before the horse. Newspapers are not called to account in terms of contempt legislation to argue that they are not a significant publisher. They are called to account to argue that the mischief was not substantial. No matter which way, however, the proposal still involves argument as to whether the party was a publisher and whether publication was significant.

Newspaper proprietors know only too well, and to significant expense (win or lose), that one judge’s contempt is another judge’s article 10 right. But more worryingly, it could cost the newspaper industry even when they are not party to the argument, since the recommendation is that while newspapers will pay for the system, others won’t.

Likewise, the jurisdictional methodology does not sit well with internet publication. The “all publications and publishers” concept targets publication in Scotland or where it is primarily targeted at Scotland. Such a concept in the 21st century is horribly antiquated, and does not take into account the rights and remedies developed whereby a pursuer can sue in any jurisdiction where the libel was published (Shevill v Presse Alliance [1995] 2 AC 218), or indeed downloaded (Dow Jones v Gutnick [2002] HCA 56 (Australia)). The principle of primary place of publication in defamation actions in Scotland disappeared in 1995 (Foxen v Scotsman Publications Ltd [1995] EMLR 145; Lennon v Scottish Daily Record & Sunday Mail Ltd [2004] EMLR 332).

Alternatives

There were other options open. From experience, the most common defence now being advanced in Scotland in defamation proceedings is Reynolds privilege (Reynolds v Times Newspapers Ltd [2001] 2 AC 127, HL). Provided a newspaper follows the various principles of responsible journalism, it has a defence. It would have made sense to follow a variation of the Irish model, where a similar system operates. The court can enquire whether the journalist acted as a responsible journalist in a way that adhered to the code of conduct. If the newspaper has opted out, that would not be a factor that the court could consider.

The McCluskey approach appears to pander to the need for retribution against the press without taking into account the damage that could do. At p 152 of his report, Leveson stated that “the Regulatory Model… should not provide an added burden to the regional and local press”. What is proposed does. It creates a burden on the press to fund online squabbles.

Sins of others

Lord McCluskey’s references to “intolerable intrusions upon the established rights of citizens” and “no one is above the law” read like a sentencing statement.

This fails to understand that Scotland has not been tarred with the sins of London journalism. There has not been criminal enterprise through phone hacking, or any cases remotely comparable to Millie Dowler or Madeleine McCann. The implementation and framework solution should be proportional to the problem. That is not to say reform is not required. But what has been proposed goes beyond even Leveson’s deliberations.

To create a system which financially penalises newspapers at a time of economic downturn can only lead either to sanitised news coverage through the chilling factor of fear of litigation, or indigenous Scottish titles going to the wall. The irony of tartanised English products permeating the Scottish market because of the financial regulatory burden on Scottish titles should not be lost as part of this process. Then the Scottish titles really would pay for others’ sins.

Campbell Deane is a partner with Bannatyne Kirkwood France & Co, Glasgow

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