Leveson, Royal Charters and the future of press regulation in Scotland

On Monday the three main political parties in Westminster agreed on a plan to implement the Leveson Report’s press regulation recommendations in England and Wales.

The plan
The agreed approach involves a Royal Charter which will establish a new regulator for the press, and amendments to the Enterprise and Regulatory Reform Bill (to help entrench the Royal Charter so that it can only be dissolved by a two-thirds majority vote of both the House of Commons and also House of Lords) and the Crime and Court Bill (so that all “relevant publishers” who do not sign up to the new regulator will pay extra or exemplary (punitive) damages for libel and breaches of privacy). 

The Royal Charter is surprisingly difficult to find, but here is a link.  It remains to be seen whether the new plan will gain widespread acceptance.

Labour leader Ed Miliband has claimed that:

What we have agreed is essentially the royal charter that Nick Clegg and I published on Friday. It will be underpinned by statute. Why is that important? Because it stops ministers or the press meddling with it, watering it down in the future.

Tough talking, but what exactly does Ed Miliband mean when he says “essentially the royal charter”?  What might end up being different?

Well, according to the Royal Charter as drafted at present, a “relevant publisher” means:

a person (other than a broadcaster) who publishes in the United Kingdom:

i) a newspaper or magazine containing news-related material, or
ii) a website containing news-related material (whether or not related to a newspaper or magazine)

It’s an alarmingly wide definition, which could capture not just foreign news websites but also bloggers and perhaps Tweeters. It doesn’t entirely correspond with Culture Secretary Maria Miller’s assertion that:

a publisher would have to meet the three tests of whether the publication is publishing news-related material in the course of a business, whether their material is written by a range of authors – this would exclude a one-man band or a single blogger – and whether that material is subject to editorial control.

By way of example, here on Brodies Techblog we have a team of bloggers, we publish news-related material in our blogs (in that we comment on topical legal issues), and our posts are subject to editorial control before they are published. Did Cameron, Milliband and Clegg have blogs like this in their sights when agreeing the draft charter? Should a blog like this be treated differently from the blog of a individual, but high profile and influential blogger? It’s not clear.

What is clear is that there is still work to be done on the drafting of the charter.

Should the press be regulated like broadcasters?
An interesting – but often overlooked – aspect of the press regulation debate is that broadcasters are regulated by communications regulator Ofcom.

The traditional freedom of the press (particularly in comparison to broadcasting) has complex roots and justifications, including the practical issue of scarcity of broadcast spectrum, which has led to far stricter regulation of television and radio broadcasters.

As a consequence of Ofcom’s regulatory control over broadcasters, broadcasters’ websites are specifically excluded from the Royal Charter definition of “publishers” set out above.  These websites will continue to be regulated by Ofcom.

The Scottish dimension
Press regulation is a devolved competency of the Scottish Parliament.  Alex Salmond has said the concept of a UK-wide regulator backed by Royal Charter may be “an idea worthy of consideration”.

It appears that the First Minister is keen to distance himself from the report produced of the Expert Group on the Leveson Report in Scotland, better known as the “McCluskey Report” (in reference to the Group’s chair, Lord McCluskey), which was published three days before the Westminster announcement.

The recommendations were widely derided last week as being draconian and having gone too far.

Allan Rennie, editor-in-chief of Media Scotland, said:

it’s not just about the press, it’s about anyone in Scotland who dares to express an opinion.

Analysis of a Report and recommendations which appear stillborn are perhaps academic, but it’s not entirely easy to reconcile some of the more vigorous attacks on the McCluskey Report with the actual content of the Report’s proposed Draft Press Standards (Scotland) Bill.

For example, one of the most widely repeated claims over the weekend was that the proposed draft Bill would apply to any publication which can be viewed from Scotland (in other words, anything on the internet, regardless of where the author of the content in question is located). While it’s correct that in the case of allegedly defamatory publications posted on the internet it is generally accepted that “publication” takes place where the article is downloaded, the proposed draft Bill didn’t explicitly refer to this understanding of “publication”.

It referred instead to a publication which “takes place in Scotland”. Further, paragraph 20 of the McCluskey Report specifically stated that the proposed draft Bill was written in “plain English”. (On the other hand, it does seem curious that the proposed draft Bill dispensed with the “publishes in the United Kingdom” wording in several of the draft bills that have been in circulation recently, including Hacked Off’s “Proposed Media Freedom and Regulatory Standards Bill”.)

Differences under the Scottish legal system
Less ambiguous was the McCluskey Report’s conclusion that

we have reached the view that there is no practical alternative to making [the new regulation system] compulsory for all news-related publishers.

As discussed above, the new plan agreed by the three main parties in Westminster does not provide for compulsory opt-in, but instead envisages exemplary damages for publishers who fail to sign up to the new regulator.

However, because damages under Scots civil law are purely compensatory, the concept of exemplary or punitive damages is unknown in Scotland. This is explained in further detail in the Scottish Government’s “Carrots and Sticks” Leveson Briefing Note.

There are also other aspects of Scots Law which would require consideration should the Royal Charter plan be followed, including arbitration and court expenses (in Scotland “costs”).

However, none of these problems would be insurmountable, and the McCluskey Report itself noted at Paragraph 10:

Scottish legislation could provide for a separate Scottish Recognition Body. We do not consider that there is anything in such a proposal that would prevent the formation of a single UK-wide Regulatory Body if that as considered appropriate”.

Alex Salmond has said that he shall continue cross-party talks on press regulation, and report to the Scottish Parliament after Easter. The Scottish Government has separately sought clarification from the UK Government on the impact of the proposed Royal Charter in Scotland.

For the timebeing, however, the future regulation of the press and the web in Scotland (or available in Scotland), and its scope, remains unclear, leaving publishers in the UK uncertain as to whether they will be subject to two different regimes or a single, harmonised, regime.

We will continue to follow this debate as it evolves.

John-McGonagle

5 Responses to “Leveson, Royal Charters and the future of press regulation in Scotland”


  1. 1 davgoldberg@gmail.com March 28, 2013 at 11:57 am

    Dear John

    Re the “reporting restrictions” (RRs) point….that is not, IMO, “proof” that “the press” is devolved…because as was stated in the European Court of Human Rights decision in the BBC Scotland case against the United Kingdom (http://bit.ly/10bBYkf)

    “a general reporting restriction must be regarded as the exercise of a public authority prerogative and can in no way be regarded as decisive for the private rights and obligations of any one media outlet”

    In other words its a restriction to *acilitate the administration of justice to protect the fairness of a trial (under Article 6, European Convention on Human Rights).

    Best wishes,

    David

  2. 2 David Goldberg March 23, 2013 at 10:59 am

    “Press regulation is a devolved competency of the Scottish Parliament.”…what is the legal basis for this assertion, “the press” being neither reserved nor devolved under the Scotland Act?

    • 3 johndmcgonagle March 25, 2013 at 4:55 pm

      Hello David, thanks for the comment. Given that I was writing for the Brodies Tech Blog I thought I should avoid delving too deep into Public Law. My own take is that if press regulation had been intended to be reserved then it would have been expressly identified as a reserved matter. I think quoting from the Scottish Government’s “BRIEFING NOTE – RESERVED AND DEVOLVED MATTERS IN RELATION TO THE SUBJECT MATTER OF THE LEVESON INQUIRY” is helpful here:

      “It seems to be generally accepted that regulation of the press is a devolved matter. Consistent with that analysis is that the Scottish Parliament passed a Legislative Consent Motion (“Sewell Motion”) in respect of the Legal Deposit Libraries Act 20036. That Act imposes duties on the publishers of newspapers and other works to send copies to legal deposit libraries (historically known as “copyright libraries”) including the National Library of Scotland. Also consistent with that analysis is that the Scottish Parliament has enacted a number of reporting restrictions (for more on which see below).”

      Thanks, John.

      • 4 David Goldberg March 26, 2013 at 5:25 pm

        Thanks for this John!

        There is something callrd the fallacy of the excluded middle; meaning that not everything has to be either this or that….my point is that your view “My own take is that if press regulation had been intended to be reserved then it would have been expressly identified as a reserved matter” ignores the possibility that (unlike broadcasting, Schedule 5, Title K) “the press” wasn;t expressly reserved because in a nutshell…e dont have a law about the press in the UK. As one Scottish judge said, there is no such thing as freedom of the press in Scotland ( ie the press is not a category known to the law)
        Best wishes,
        David


  1. 1 Leveson, McLeveson and the Meaninglessness of the Super-Majority | Brodies PublicLawBlog Trackback on March 27, 2013 at 7:56 pm

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