Leveson report recommends legislation on independent self-regulatory regime for press

The body should be governed by an independent board that is appointed in a genuinely open, transparent and independent way, without any influence from industry or government. Further:

Lord Leveson notes that it is not his job to establish a new press standards code. However, he makes several recommendations to the new body in this regard:

Subscribers should have an adequate and speedy complaints process. The board should:

Lord Leveson recommends that:

The board should provide an arbitration service for civil law claims against subscribers on a cost-only basis to the subscriber.

Membership of the new body should be open to all publishers on fair, reasonable and non-discriminatory terms, with different terms of membership for different types of publisher if appropriate. In Lord Leveson's opinion, the new system of regulation should cover all significant news publishers if it is to be sufficiently effective.

Lord Leveson hopes to encourage publishers to become members of the body through incentives in relation to civil litigation costs. Members could request the court to encourage use of the arbitration service and take the availability of the service into account when assessing claims for costs incurred by a claimant who could have used the service. On the other hand, if, through its failure to join a regulatory system, a publisher deprived a claimant of access to the relevant arbitration service, the Civil Procedure Rules (CPR) could permit the court to deprive the publisher of its costs even if it had been successful. Lord Leveson recommends that the CPR be amended accordingly.

Lord Leveson recommends legislation to underpin the regulatory system and facilitate its recognition in legal processes.

The legislation would not establish a press regulator, but it would:

A recognition body, ideally Ofcom, should recognise and certify the regulatory body. It should review the regulator after two years and then every three years.

The new body should consider:

A new regulatory body should:

A new body should:

Transparency should be encouraged in relation to sources with the addition of photographers' names to images and access to web links, scientific studies and poll results.

A regulatory body should establish a whistleblowing hotline and encourage its members to include a "conscience clause" in their contracts to provide that no disciplinary action would be taken if a journalist refused to act in a way that was in breach of the code of practice.

The report recommends that the Ministry of Justice (MoJ) should amend the exemption in section 32 of the Data Protection Act 1998 (DPA) (for processing of personal data with a view to publication of journalistic, artistic or literary material) so as to make it available only where:

It also recommends narrowing the section 32 exemption so that it can no longer be relied on for exemption from:

The report recommends that the MoJ should make it clear that the right to compensation for distress set out in section 13 of the DPA is not restricted to cases of pecuniary loss, but includes compensation for pure distress.

The report suggests that the MoJ should repeal certain provisions of the DPA that relate specifically to journalism. These are:

The MoJ is asked to consider adding new provisions to the DPA requiring the Information Commissioner's Office (ICO) to have regard, whenever it is considering the exercise of any powers in relation to the media or other publishers:

The report recommends that the MoJ take steps to bring into force the amendments made to section 55 of the DPA by section 77 of the Criminal Justice and Immigration Act 2008 (increase of sentence maxima) to the extent of the maximum specified period; and by section 78 of the 2008 Act (enhanced defence for public interest journalism).

The report recommends that the MoJ should extend the prosecution powers of the ICO to include offences which involve a breach of the data protection principles in addition to the offence created by section 55 of the DPA (unlawful obtaining of personal data), coupled with a duty to consult the CPS on such prosecutions, and the formal adoption by the ICO of the CPS guidelines on media prosecutions.

The report also suggests that the MoJ should consider amending the DPA to formally reconstitute the ICO as an Information Commission, led by a Board of Commissioners with suitable expertise drawn from the worlds of regulation, public administration, law and business. It should consider whether it would be a good idea to include on the Board a Commissioner from the media sector.

The report recommends that the ICO should:

The report suggests that there should be a review of damages for breach of data protection, privacy, breach of confidence or any other media-related torts, to ensure proportionate compensation including for non-pecuniary loss.

The Civil Justice Council should consider the level of damages in privacy, breach of confidence and data protection cases, possibly after taking evidence (from the Information Commissioner, the media and others). It should then make recommendations on the appropriate level of damages for distress in such cases.

In accordance with the recommendations of the 1997 Report of the Law Commission on Aggravated, Exemplary and Restitutionary Damages (see Legal update, DCA launches wide-ranging consultation on damages), there should be legislation to provide that:

Exemplary damages (whether so described or renamed as punitive damages) should be available for actions for breach of privacy, breach of confidence and similar media torts, as well as for libel and slander. The application to a defendant of any relevant system of regulation of standards enforcement which is contained in or recognised by statute and good internal governance in relation to the sourcing of stories should be relevant to the level of damages in such cases.

As set out above, the report recommends a change to the CPR to require the court to take into account in its costs decisions the availability of an arbitral system set up by an independent regulator itself recognised by law. The purpose of this recommendation is to incentivise publishers to join the new system, and to encourage complainants to use it as a speedy, effective and inexpensive method of resolving disputes.

This section of the report ends by saying that if no dispute resolution mechanism is set up that is cost-free for complainants, there should at least be qualified one-way costs-shifting for defamation, privacy, breach of confidence and similar media-related litigation, using the model proposed by Jackson LJ in his review of civil litigation costs (see Legal update, Jackson LJ's Review of Civil Litigation Costs: Final Report). This would mean that a defendant would continue to pay the costs of a successful claimant, but an unsuccessful claimant would not have to pay the defendant's costs if they lost their case unless they had behaved unreasonably.

Lord Leveson has rejected calls for continuing self-regulation of the press and recommended the replacement of the Press Complaints Commission. He has instead recommended an independent self-regulatory system with a new regulatory body to be verified by Ofcom. Legislation would be required for the new regulatory arrangements, but in Lord Leveson's view this would fall short of statutory regulation as such.

In framing his proposals in this way, Lord Leveson has attempted to steer clear of objections to full-blown statutory regulation of the press. However, in his statement made shortly after publication of Lord Leveson's report, the Prime Minister said this would be to cross the Rubicon on statutory regulation of the press and he doubted the need for any form of statutory underpinning. He did, however, endorse Lord Leveson's proposals for independent regulation in other respects and he expressed the hope that the press would take the initiative in establishing an independent regulatory system.

Both the Deputy Prime Minister and the Leader of the Opposition have endorsed Lord Leveson's view on the need for legislation, although Nick Clegg questioned whether Ofcom is the right body to verify the new regulatory body.

Lord Leveson has also made a number of recommendations on data protection.

The report suggests that the journalistic exemption in section 32 of the DPA should be narrowed significantly so that it would only apply to the processing of personal data where that processing is necessary for the purpose of publication. Currently, the DPA exemption applies where processing is undertaken "with a view to" publication.

The report also recommends that before processing the personal data for journalistic purposes, the data controller should be required to carry out a comprehensive public interest test, weighing his reasonable belief that the relevant publication would be or is in the public interest against an objective test of the likely interference with privacy that would result from the processing of the data. Currently, a data controller who reasonably believes that publication is in the public interest merely needs to prove that in his reasonable belief, compliance with those data protection requirements from which section 32 would otherwise exempt him would be incompatible with the journalistic purposes.

Arguably, the provision in section 32 of the DPA currently fails properly to implement the equivalent provision of the 1995 Data Protection Directive, which the Act transposes in English law. Under Article 9 of the 1995 Directive, member states are required to provide for exemptions in their national law for the processing of personal data carried out solely for journalistic, artistic or literary purposes, but only to the extent that this is necessary to reconcile the right to privacy with the rules governing freedom of expression. The current reliance on the editor's reasonable belief is likely to be some way from the ECJ's (probably more objective) interpretation of the requirement of necessity and the report's recommendations in this regard, despite the fact that they would constitute a reduction in protection for journalists, would bring the UK more in line with current practice in the rest of the EU.

The report also recommends that the UK should move away from a regime of blanket exemption from compliance with the data protection principles and the data subject's right to access. Instead, the derogations should be narrowed in scope, meaning that journalists would, for example, be required to process personal data fairly and lawfully, delete the data when they are no longer required for the purposes for which they were collected and refrain from transferring the data to countries outside the EEA. As compliance with these obligations is unlikely to interfere with the right to freedom of expression, these recommendations seem sensible from the point of view of the individuals who might find themselves the subject of press investigations but without imposing an undue burden on the media itself.

Finally, the report includes an extensive list of recommendations directed at the Information Commissioner, in which he is called upon, among other things, to issue comprehensive good practice guidelines and advice on appropriate principles and standards to be observed by the press in the processing of personal data as well as guidance to the public on their individual rights in relation to the obtaining and use of their personal data by the press, and how to exercise those rights. Overall, the report seems to suggest that the Information Commissioner should become much more involved in the regulation of the press with regard to its use of personal data. These sentiments are admirable. However, the ICO will be eager to point out that the additional duties proposed by the report will require significant additional funding.

More welcome, from the ICO's point of view, will be the report's support for the ICO's longstanding demand that sections 77 and 78 of the Criminal Justice and Immigration Act 2008 should be brought into force. These provisions would give the Home Secretary the power, after consultation, to issue secondary legislation to introduce custodial sentences of up to 12 months on summary conviction, and up to two years' imprisonment for a conviction on indictment for those involved in the illegal trade of personal information. Although successive governments have indicated that they plan to introduce these new sanctions, no steps have yet been taken.

Source: An Inquiry into the Culture, Practices and Ethics of the Press, Executive summary and full report, 29 November 2012.