Press Regulation: where are we now? - Communications Committee Contents


120.  In the previous Chapter we set out the identifying features of the regulatory bodies and mechanisms that have been set up following the adoption of the Royal Charter. We received evidence about a number of issues surrounding the current system of press regulation which are the subject of disagreement or confusion. We examine these in this Chapter.

Crime and Courts Act 2013

121.  As we highlighted in Chapter 3, the Government, with cross-party consensus, put forward legislative measures to accompany the Royal Charter, in order to encourage relevant publisher[s] of news-related material to sign up to the system set out in the Royal Charter.

122.  The provisions in the Crime and Courts Act 2013 relating to publishers of news-related material:

    "are designed to provide a system of financial incentives for 'relevant publishers' to sign up to the new regime in the Royal Charter. They do that by offering protection from legal costs in certain civil litigation claims to those 'relevant publishers' that do sign up to the new model (the carrot), and making exemplary damages available in those claims—beyond ordinary compensatory damages—for the courts to award as a punitive measure against 'relevant publishers' who refuse to sign up to the new framework (the stick)."[162]

123.  In the following paragraphs we consider the evidence we received regarding the definition of relevant publisher within the Crime and Courts Act 2013 and the system of legal costs and exemplary damages contained therein.


124.  The Leveson Report gave some guidance as to which publishers should submit themselves to regulation. It said the new system:

    "must involve all the major players in the industry, that is to say, all national newspaper publishers and their online activities, and as many regional and local newspaper publishers, and magazine publishers, as possible. This is not meant to be prescriptive at the very small end of the market: I would not necessarily expect very small publishers to join the body, though it should be open to them to do so on appropriate terms".[163]

125.  Section 41 of the Crime and Courts Act 2013 sets out the categories of relevant publisher[s] who are expected to join the regulator.

126.  There are four cumulative criteria which must be met to satisfy the definition. To be considered a relevant publisher, a person or organisation must:

·  Publish news related material;

·  Publish material in the course of a business (whether or not carried out with a view to profit);

·  Produce material written by different authors; and

·  Produce material which is subject to editorial control (over the content of material, presentation and the decision to publish).

127.  There are, however, specific exemptions for certain publishers—some by name, some by description—from the operation of the system of financial incentives. These are set out in Schedule 15 to the Act and include the BBC, public bodies and charities, company news publications and scientific or academic journals.[164]

128.  Dr David Wolfe QC, Chairman of the Press Recognition Panel, told us that the definition was slightly complicated but that, "it captures anybody who produces something that has news content produced by different authors and there is an editor. That can be online or newsprint".[165]

129.  Professor Chris Frost, Chair of the Ethics Council, National Union of Journalists (NUJ), said that it seemed to be a good working definition but that, "until we start working with the system, it will be difficult to tell".[166] Dr Martin Moore, Director of the Media Standards Trust, said that whilst "there are elements of it that are clear" that there were parts of it which he found "ambiguous and difficult to interpret."[167]

130.  English PEN, an organisation which promotes freedom of expression and literature, published a Report in November 2014, entitled Who joins the regulator? A report on the impact of the Crime and Courts Act on publishers.[168] The report claimed that:

·  Its analysis of a range of publications, according to the terms in the legislation, indicated widespread inconsistency across the media landscape regarding which publications are exempt and which qualify for regulation.

·  publishers that are expected to be exempt from regulation appeared to fall into the category of relevant publisher, including campaigning organisations, political parties and think tanks;

·  terms in the legislation were poorly defined, leading to uncertainty for publishers and the risk of a chill on free speech; and

·  a lack of clarity in the legislation would result in anomalies within categories of publication expected to be excluded from regulation, including blogs and specialist publications.[169]

131.  We did not test these claims by seeking a specific view on them from our witnesses and therefore have not come to a conclusion on their accuracy. Nonetheless it appears that, the term relevant publisher, as used in the Crime and Courts Act 2013, is ambiguous.


132.  Section 34 of the Crime and Courts Act 2013 deals with awards of exemplary damages. Exemplary damages (sometimes called punitive damages) are damages intended to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit, rather than simply reflecting the loss suffered by the claimant.

133.  Sub-section 61(7) of the Crime and Courts Act 2013 states that:

    "sections 34 to 39 come into force at the end of the period of one year beginning with the day on which a body is established by Royal Charter with the purpose of carrying on activities relating to the recognition of independent regulators of relevant publishers (as defined by section 41)."[170]

134.  The provisions relating to exemplary damages come into force on 3 November 2015 (the anniversary of the establishment of the Press Recognition Panel) whether or not a regulator has been approved by the Recognition Panel. Sub-section 35(3)(a) of the Crime and Courts Act 2013 is concerned with whether it is appropriate for exemplary damages to be awarded. It provides that the court must take into account "whether membership of an approved regulator was available to the defendant at the material time". This might therefore provide a defence against the awards of exemplary damages under section 34 if no regulator has been approved by the Recognition Panel at the material time.

135.  Section 40 of the Crime and Courts Act 2013 deals with the award of costs. Sub-section 1 provides that the section applies when a relevant claim is made against a publisher relating to the publication of news-related material. Sub-sections 40 (2) and (3) set out considerations the court must take into account when deciding whether to award costs against the defendant (a publisher).[171] If the defendant was a member of an approved regulator at the material time (or was unable to be a member) then the court must not award costs against the defendant unless certain circumstances pertain (set out in section 40). If the defendant was not a member of an approved regulator at the material time (but was able to be a member) then the court must award costs against the defendant unless certain circumstances pertain (set out in section 40).

136.  Sub-section 40 (6) states that, "This section does not apply until such time as a body is first recognised as an approved regulator."[172]

137.  The provisions on costs do not therefore come into force on a particular date. They come into force only once a regulator (whose membership includes a relevant publisher as set out in section 41 of the Crime and Courts Act 2013) is approved by the Press Recognition Panel.

138.  Hugh Tomlinson QC, media law expert and Chair of the board of Hacked Off, a campaign group for victims of press intrusion, told us that this system was: "potentially effective. Of course, if a newspaper wants to take the costs hit and stay outside the system it could do that—but if those incentives are in place, once an independent regulator is set up, it is potentially effective."[173]

139.  Dr Moore was more sceptical about the likely effectiveness of this system:

    "[I]t is very hard to judge the degree to which there will be financial incentives. We know from what many publishers have said that the reasons for not signing up to the charter are not simply financial. Some of them are ideological…We went back and tried to do an evaluation of the potential savings that publishers would make or not make, which is extremely difficult to do. It is very rare that publishers are subject to legal action on a regular basis and particularly legal action by large corporations or otherwise…so you cannot figure on an annual basis how much you are likely to save or not save."[174]

140.  Mr Rusbridger, Editor of The Guardian, explained that there was uncertainty about how the system would work. He said, "A large part of it is at the discretion of the courts, and the carrots [the incentives] seem to favour claimants more than defendants … The media lawyers feel that they were not given a chance to advise. The carrots that Leveson imagined were better than the carrots that we have ended up with."[175]

141.  Sir Alan Moses, Chairman of the Independent Press Standards Organisation (IPSO), said "I am reluctant to get into the legal complexities. I do not think they are clear. It will take some considerable time to see whether they will work as a carrot and stick, as they were designed to work … their effectiveness is not clear"[176]

142.  It has been claimed by industry lawyers that the provisions of the Crime and Courts Act 2013 relating to exemplary damages potentially constitute a breach of Article 10 of the European Convention of Human Rights.[177]

143.  We asked Dr Wolfe QC whether this issue might form the object of complaints to the European Court of Human Rights. He said that this would "no doubt be an issue in any litigation in which exemplary damages were awarded following November 2015. You can have a lawyer's view on whether a claim to the European Court would succeed, but that is not the role of the panel to provide that sort of thing."[178]

144.  In a recent blog, Gill Phillips, the Director of Editorial Legal Services for The Guardian, wrote: "What is regarded as particularly objectionable is the fact that [the provisions on exemplary damages] single out for punishment a particular category of defendant, rather than a particular kind of conduct, all the more so where the category of defendant singled out includes the press."[179]

145.  Similarly, Bob Satchwell, Executive Director of the Society of Editors, told us:

    "I thought that we were all supposed to be equal under the law but this would create an unequal legal regime. People who for whatever reason had not joined the approved regulator would be treated differently; they could commit the same 'offence', as it were, and it would cost an awful lot more."[180]

146.  Mr Tomlinson QC refuted claims that the system might be unlawful. He said:

    "I have absolutely no doubt that they are lawful. The exemplary damages provisions were designed by the Law Commission in effect to be compliant with Article 10, and are very carefully calibrated. I have no doubt either that the costs provisions, and that kind of incentive, are the proper way in which to encourage people to subject themselves to regulation."[181]


147.  Arbitration is a form of alternative dispute resolution (ADR). It is a method for the resolution of disputes outside the courts. Arbitration generally works by the parties involved in a dispute referring it to arbitration by one or more persons and agreeing to be bound by the arbitration decision (the "award"). A third party reviews the evidence in the case and imposes a decision on both sides.

148.  A central theme of the Leveson Report was the importance of access to justice. The report proposed that any new regulator should establish an arbitration scheme, which would give all claimants, whatever their financial means, a route to pursue claims against the press:

    "The need for incentives, however, coupled with the equally important imperative of providing an improved route to justice for individuals, has led me to recommend the provision of an arbitration service that is recognised and could be taken into account by the courts as an essential component of the system, not … simply something that could be added at a later date."[182]

149.  Arbitration is often favoured over court proceedings because it is generally quicker and costs less. Mr Tomlinson QC explained: "lawyers are ridiculously expensive and litigation takes a long time … Leveson's idea was to have a system of arbitration that could be cheaper, quicker and more effective and would help both victims and poor publishers."[183]

150.  The regulator's provision of an arbitration scheme is key to publishers being able to take advantage of the potential protections against the award of exemplary damages and/or costs. Jonathan Heawood, Founding Director of The Independent Monitor for the Press (IMPRESS) project, explained the advantages of an arbitration scheme:

    "It would largely come down to mitigating the risk of costs awards in libel or privacy actions. If a relevant publisher was regulated … [by] an approved regulator, and one of those publishers was sued … and they found themselves in court, having offered the litigant the opportunity to go to arbitration and the litigant having refused that opportunity … the court would be expected to rule against the claimant on costs. In other words, the defendant, the publisher or the newspaper would be protected. They would be immune from paying the other side's costs even if they lost a libel or privacy action, which is clearly a considerable financial incentive and should remove a huge part of the chilling effect of the current costs regime in libel."[184]

151.  As we mentioned in Chapter 3, IMPRESS plans to offer an arbitration scheme to its members[185] and IPSO is carrying out work to see how an arbitration scheme might work.[186]

152.  There are other companies which are planning to provide this service. We received evidence from Early Resolution CIC, a not-for-profit company established to assist litigants in media cases. Early Resolution CIC said it hopes its "Pilot Arbitration Service will effectively be 'Recognition Ready', so that any Regulatory Body which takes it on will know that it is workable and Leveson compliant …"[187]

153.  Other witnesses were less convinced that arbitration was the best means of offering cheap redress. Professor Frost told us that the regional press were concerned that, "an arbitration system, as suggested by Leveson, would be very expensive for them because they would end up funding a system that would spend most of its time, effort and energy looking at claims that have gone to the national newspapers."[188] Similarly, Mr Satchwell explained that, "if you have a compulsory arbitration system, it may not sound that expensive but it would be an extra cost to them [the local press] … They are looking at very tight, relatively small budgets where the slightest hiccup could make the difference between a paper living and dying."[189]

Impact of multiplicity of regulators

154.  As outlined in Chapter 3, there are currently two major press regulators in existence: IPSO which has 69 publishers as members, and IMPRESS which as yet has no members. The Guardian, the Financial Times and The Independent are the only national daily newspapers which have not signed up to IPSO and instead offer their own, internal system of regulation (see paragraphs 111-119).

155.  One of the questions that we set out to answer at the start of this inquiry was the likely effect of more than one regulator on the consumer and on the industry.

156.  Sir Alan said that the existence of more than one regulator was "highly confusing to those who matter most: namely, the public."[190] Mr Rusbridger told us that it would be better for the "press all to be together in one body."[191]

157.  Dr Moore, whilst acknowledging that there were potential disadvantages of having more than one regulator, thought there were benefits, "particularly in a digital environment" to allowing for a multiplicity of regulators.[192]

158.  Perhaps unsurprisingly, Mr Heawood, the Founding Director of IMPRESS, (the second press regulator to come into existence after the Royal Charter) pointed out that in other countries there were multiple regulators and so the current system in the UK was not entirely unheard of. He explained that:

    "As a member of the public with a problem with a newspaper or website, the first thing you would be doing would be going to that publisher, and they should have in place a system. You should not at that point be worrying too much about who is the next stop regulator."[193]

Professor Frost told us that there were "good reasons for having more than one regulator."[194] In its written evidence the NUJ supplied us with figures which showed that the vast majority of the complaints dealt with by the PCC had been against national daily newspapers. The NUJ explained that having more than one regulator would be:

    "a good solution for the provincial press who do not want a regulator with an arbitrator they would be obliged to share with the national press. They clearly fear that the burden of funding such an arbitrator that would largely be there to limit civil actions taken against national newspapers would be excessive. The same is also true of normal complaints."[195]

Whistle-blowing hotline

159.  In the executive summary to his report, Lord Justice Leveson wrote:

    "I was struck by the evidence of journalists who felt that they might be put under pressure to do things that were unethical or against the code. I therefore suggest that the new independent self-regulatory body should establish a whistle-blowing hotline."[196]

160.  Professor Frost explained that the NUJ welcomed this recommendation "so that journalists could say when they believed that something breached the code of practice and that therefore they did not want to do it."[197]

161.  Mr Tomlinson QC told us that "IPSO is supposed to have a hotline, but it does not. It says in its founding documents that it will have one, but it does not."[198] Dr Evan Harris, Associate Director of Hacked Off, said that setting up a hotline service was not difficult: "You can buy a hotline service from Public Concern at Work … Yet four months after IPSO was formed, a journalist whom I spoke to yesterday said that he tried to get confidential advice from IPSO and that there was no one there who could provide that".[199]

162.  We asked Mr Vickers, Chairman of the Regulatory Funding Company (RFC) which funds IPSO, why this hotline had not been set up. He said, "It should be there … If I have the right to be cross, I am very cross that that is not there … I do not know why it is not."[200] He told us that its non-existence was not as a result of the constraint of the financial arrangements.[201]

163.  IPSO has since set-up a whistle-blowing hotline, to which there is a link on its website.

Ownership of the Editors' Code of Practice

164.  As we explained in Chapter 3, paragraphs 89-92, the Editors' Code of Practice[202] is a set of standards used by IPSO to regulate the industry. It is also used by The Guardian. It is based largely on the Code of Practice which was enforced by the now defunct PCC. It was framed by the Editors' Code of Practice Committee and is enshrined in the contractual agreement between IPSO and its member publishers.[203]

165.  The Leveson Report said that the principles under which the press industry should operate were "to a large degree reflected in the Editors' Code of Practice."[204] Mr Tee, Chief Executive of IPSO, told us that, "the Editors' Code is generally felt to be fit for the purpose that we use it for. Even critics of IPSO, I think, would say that the Editors' Code was a pretty good code for the things that we might judge complaints against." [205]

166.  We were surprised to learn from IMPRESS and IPSO that the Editors' Code had been copyrighted by the RFC and that IPSO did not have authority over it. [206]

167.  Mr Vickers told us that, "The Code Committee was convened by the Regulatory Funding Company—that has been our last involvement in it—and we own the copyright on the code."[207]

168.  He said that the RFC had already "licensed"[208] the Code to the Financial Times "on the strict terms that if they want to use the code, they use the code as its stands".[209] Mr Vickers told us that the RFC had not been asked to share the Code with other regulators and that it would not be his decision whether to allow them to use it, but that the RFC would "consider"[210] doing so. He explained that they would "question why, if people were so keen on the code, they did not join IPSO. It is not something that we currently propose to use as some sort of weapon or tool."[211]

162   Charlie Potter, 'Press regulation: all you need to know', British Journalism Review, vol. 24, no. 32, (2013): [accessed 10 March 2015] Back

163   The Leveson Report, Volume IV, Part K, Chapter 7, Para 4.11 (2012): government/uploads/system/uploads/attachment_data/file/270943/0780_iv.pdf [accessed 6 February 2012] Back

164   Crime and Courts Act 2013, Schedule 15 Back

165    Q9 Back

166    Q65 Back

167   Ibid. Back

168   English PEN, Who joins the regulator? A report on the impact of the Crime and Courts Act on publishers (November 2014): Who_joins_the_regulator_5_Nov_2014_English_PEN1.pdf [accessed 3 February 2015] Back

169   Ibid., p 3 Back

170   Crime and Courts Act 2013, sub-section 61 (7) Back

171   Crime and Courts Act 2013, section 40 Back

172   Crime and Courts Act 2013, sub-section 40(6) Back

173    Q47 Back

174    Q63 Back

175    Q39 Back

176    Q29 Back

177   'Tory and Leveson plans for exemplary privacy damages may be unlawful', The Guardian (21 February 2013): [accessed 11 February 2015] Back

178    Q9 Back

179   The International Forum for Responsible Media Blog, Gill Phillips, 'Briefing Note on Exemplary Damages and Costs': [accessed 3 February 2015] Back

180    Q39 Back

181    Q47 Back

182   The Leveson Inquiry, Executive Summary, op. cit. paragraph 66. Back

183    Q45 Back

184    Q16 Back

185    Q17 Back

186    Q30 Back

187   Written evidence from Early Resolution CIC (PRG0015) Back

188    Q64 Back

189    Q38 Back

190    Q31 Back

191    Q41 Back

192    Q64 Back

193    Q18 Back

194    Q64 Back

195   Written evidence from the National Union of Journalists (PRG0002) Back

196   The Leveson Inquiry, Executive Summary, op. cit. paragraph 64. Back

197    Q60 Back

198    Q45 Back

199   Ibid. Back

200    Q58 Back

201   Ibid. Back

202   Independent Press Standards Organisation, 'Editors' Code of Practice': IPSO/cop.html [accessed 4 February 2015] Back

203   Ibid. Back

204   The Leveson Inquiry, Executive Summary, op. cit., paragraph 6 Back

205    Q30 Back

206    Q29 Back

207    Q54 Back

208    Q55 Back

209   Ibid. Back

210   Ibid. Back

211   Ibid. Back

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