Royal Charter vs Leveson

There appears to be a misunderstanding amongst some of those writing about the Royal Charter that it somehow goes further than Leveson recommended. In fact, it does not go as far. In almost all key respects the Charter very closely resembles Lord Justice Leveson’s regulatory recommendations. Where there are material differences from Leveson, they are almost all for clarification or for the benefit of the press.

Leveson made other recommendations related to the new regulatory system, notably the legal incentives to participate, but those are not dealt with by the Charter but by changes in the law (as set out in amendments to the Courts and Crime bill).

The purpose of the Charter is to establish a recognition body, and a recognition process, in order to check that the regulatory system set up by the industry is adequately independent and effective.

To help it do this Leveson set out a series of ‘recognition criteria’ that the Chartered body would use to test the independence and effectiveness of the regulatory system.

In the analysis below, Leveson’s criteria are set side-by-side with those in the Charter. As it shows, they closely resemble one another, and where there are changes they are either for clarification, or they appear to be compromises that favour the press. Therefore the idea that the Charter went further than Leveson is simply not borne out by the evidence.

A separate post will look at the other aspects of the Charter and again illustrate that rather than go further than Leveson, the Charter is actually less stringent.

In addition to which, of course, the Royal Charter itself is not what Leveson proposed, he proposed legislation. But this was dropped through concern for the press.

Recognition: Royal Charter vs Leveson (Changes in red)

1) An independent self-regulatory body should be governed by an Independent Board. In order to ensure the independence of the body, the Chair and members of the Board must be appointed in a genuinely open, transparent and independent way, without any influence from industry or government. For the avoidance of doubt, the industry’s activities in establishing a self-regulatory body, and its participation in making appointments to the Board in accordance with criteria 2 to 5; or its financing of the self-regulatory body, shall not constitute influence by the industry in breach of this criterion.

Difference from Leveson Recommendations: Essentially the same as the Leveson recommendation (Rec 1), with extra clarification.

2) The Chair of the Board (who is subject to the restrictions of criterion 5(d), (e) and (f)) can only be appointed if nominated by an appointment panel. The selection of that panel must itself be conducted in an appropriately independent way and must, itself, be independent of the industry and of Government.

Difference from Leveson Recommendations: Leveson text (Rec 2) begins “The appointment of the Chair of the Board should be made by an appointment panel”. The additions to the Royal Charter are included to keep in line with UK Corporate Governance rules.

3) The appointment panel:
    (a) should be appointed in an independent, fair and open way;
    (b) should contain a substantial majority of members who are demonstrably     independent of the press;
    (c) should include at least one person with a current understanding and     experience of the press;
    (d) should include no more than one current editor of a publication that could be     a member of the body.

Difference from Leveson Recommendations: No difference from Leveson

4) The nomination process for the appointment of the Board should also be an independent process, and the composition of the Board should include people with relevant expertise. The appointment panel may only nominate as many people as there are vacancies on the Board (including the Chair), and the Board shall accept all nominations. The requirement for independence means that there should be no serving editors on the Board.

Difference from Leveson Recommendations: Additions to Royal Charter bring this in line with Recognition Criterion 2

5) The members of the Board should be appointed only following nomination by the same appointment panel that nominates the Chair, together with the Chair (once appointed), and should:

    (a) be nominated by a process which is fair and open;
    (b) comprise a majority of people who are independent of the press;
    (c) include a sufficient number of people with experience of the industry who may     include former editors and senior or academic journalists;
    (d) not include any serving editor;
    (e) not include any serving member of the House of Commons, the Scottish     Parliament, the Northern Ireland Assembly, the National Assembly for Wales, the     European Parliament or the House of Lords (but only if, in the case of the House     of Lords, the member holds or has held within the previous 5 years an official     affiliation with a political party) or a Minister of the Crown, a Scottish Minister, a     Northern Ireland Executive Minister or a Welsh Government Minister; and
    (f) in the view of the appointment panel, be a person who can act fairly and     impartially in the decision-making of the Board.

Difference from Leveson Recommendations: Nomination clause brings this in line with Recognition Criterion 2. Additions expand exclusions to ensure serving active political figures cannot be members of the Board. This is a logical extension of the Leveson recommendation (Rec 5)

6) Funding for the system should be settled in agreement between the industry and the Board, taking into account the cost of fulfilling the obligations of the regulator and the commercial pressures on the industry. There should be an indicative budget which the Board certifies is adequate for the purpose. Funding settlements should cover a four or five year period and should be negotiated well in advance.

Difference from Leveson Recommendations: No change from Leveson

7) The standards code which is the responsibility of the Code Committee, must be approved by the Board or remitted to the Code Committee with reasons. The Code Committee will be appointed by the Board, in accordance with best practices for public appointments, and comprised of equal proportions of independent members, serving journalists (being national or regional journalists, or, where relevant to the membership of the self-regulatory body, local or online journalists) and serving editors. There will be a biennial public consultation by the Code Committee, the results of which must be considered openly with the Board.

Difference from Leveson Recommendations: Changes here are a significant concession to the newspaper industry, placing responsibility for the Code in the hands of the Code Committee, rather than the Board (advised by the Committee), as Leveson intended.

8) The code must take into account the importance of freedom of speech, the interests of the public (including but not limited to the public interest in detecting or exposing crime or serious impropriety, protecting public health and safety and preventing the public from being seriously misled), the need for journalists to protect confidential sources of information, and the rights of individuals. Specifically, it must cover standards of:
    (a) conduct, especially in relation to the treatment of other people in the process     of obtaining material;
    (b) appropriate respect for privacy where there is no sufficient public interest     justification for breach; and
    (c) accuracy, and the need to avoid misrepresentation.

Difference from Leveson Recommendations: Minor changes favour the press, giving them more latitude to define the public interest, and ensuring the protection of confidential sources.

8A) A self-regulatory body should provide advice to the public in relation to issues concerning the press and the standards code, along with a service to warn the press, and other relevant parties such as broadcasters and press photographers, when an individual has made it clear that they do not welcome press intrusion.

Difference from Leveson Recommendations: Derived in full from Leveson Rec 40

8B) A self-regulatory body should make it clear that subscribers will be held strictly accountable under the standards code for any material that they publish, including photographs, however sourced. This criterion does not include advertising content.

Difference from Leveson Recommendations: Derived from Leveson Rec 41. Advertising content clause added for clarification

8C) A self-regulatory body should provide non-binding guidance on the interpretation of the public interest that justifies what would otherwise constitute a breach of the standards code. This must be framed in the context of the different provisions of the code relating to the public interest.

Difference from Leveson Recommendations: Derived from Leveson Rec 42. The inclusion of “non-binding” reduces the power of the regulator’s guidance such that it will not be taken into account during court proceedings.

8D) A self-regulatory body should establish a whistleblowing hotline for those who feel that they are being asked to do things which are contrary to the standards code.

Difference from Leveson Recommendations: Derived from Leveson Rec 46

9) The Board should require, of those who subscribe, appropriate internal governance processes (for dealing with complaints and compliance with the standards code), transparency on what governance processes they have in place, and notice of any failures in compliance, together with details of steps taken to deal with failures in compliance.

Difference from Leveson Recommendations: Essentially the same; additions are for clarification

10) The Board should require all those who subscribe to have an adequate and speedy complaint handling mechanism; it should encourage those who wish to complain to do so through that mechanism and should not receive complaints directly unless or until the internal complaints system has been engaged without the complaint being resolved in an appropriate time.

Difference from Leveson Recommendations: No change from Leveson

11) The Board should have the power to hear and decide on complaints about breach of the standards code by those who subscribe. The Board will need to have the discretion not to look into complaints if they feel that the complaint is without justification, is an attempt to argue a point of opinion rather than a standards code breach, or is simply an attempt to lobby. The Board should have the power (but not necessarily the duty) to hear
    (a) from anyone personally and directly affected by the alleged breach of the     standards code, or
    (b) where there is an alleged breach of the code and there is public interest in     the Board giving consideration to the complaint from a representative group     affected by the alleged breach, or
    (c) from a third party seeking to ensure accuracy of published information. In the     case of third party complaints the views of the party most closely involved     should be taken into account

Difference from Leveson Recommendations: Changes emphasise the discretion of the regulator to consider and, if necessary, dismiss vexatious complaints or those that are purely based on lobbying interests.

12) Decisions on complaints should be the ultimate responsibility of the Board, advised by complaints handling officials to whom appropriate delegations may be made.

Difference from Leveson Recommendations: No change from Leveson

12A) The Board should be prepared to allow a complaint to be brought prior to legal proceedings being commenced. Challenges to that approach (and applications to stay) can be decided on the merits.

Difference from Leveson Recommendations: Derived from Leveson Rec 37.

13) Serving editors should not be members of any Committee advising the Board on complaints and should not play any role in determining the outcome of an individual complaint. Any such Committee should have a composition broadly reflecting that of the main Board, with a majority of people who are independent of the press.

Difference from Leveson Recommendations: Change clarifies that serving editors should have neither an advisory nor a decisive role in complaint resolution. This is in the spirit of the Leveson recommendation (Rec 13), and is explicitly outlined in paragraph 4.32 (Part K) of the Leveson Report.

14) It should continue to be the case that complainants are able to bring complaints free of charge.

Difference from Leveson Recommendations: No change from Leveson

15) In relation to complaints, where a negotiated outcome between a complainant and a subscriber (pursuant to criterion 10) has failed, the Board should have the power to direct appropriate remedial action for breach of standards and the publication of corrections and apologies. Although remedies are essentially about correcting the record for individuals, the power to direct a correction and an apology must apply equally in relation to:
    (a) individual standards breaches; and
    (b) groups of people as defined in criterion 11
    where there is no single identifiable individual who has been affected; and
    (c) matters of fact where there is no single identifiable individual who has been     affected.

Difference from Leveson Recommendations: Changes limit the power of the regulator to intervene too early

16) In the event of no agreement between a complainant and a subscriber (pursuant to criterion 10), the power to direct the nature, extent and placement of corrections and apologies should lie with the Board.

Difference from Leveson Recommendations: Same as Recognition Criterion 15. “Corrections” has been added to ensure consistency with Criterion 15

17) The Board should not have the power to prevent publication of any material, by anyone, at any time although (in its discretion) it should be able to offer a service of advice to editors of subscribing publications relating to code compliance.

Difference from Leveson Recommendations: No change from Leveson

18) The Board, being an independent self-regulatory body, should have authority to examine issues on its own initiative and have sufficient powers to carry out investigations both into suspected serious or systemic breaches of the code and failures to comply with directions of the Board. The investigations process must be simple and credible and those who subscribe must be required to cooperate with any such investigation.

Difference from Leveson Recommendations: “Simple and credible” is taken directly from Para 4.34 (Part K) of the Leveson Report

19) The Board should have the power to impose appropriate and proportionate sanctions (including but not limited to financial sanctions up to 1% of turnover attributable to the publication concerned with a maximum of £1,000,000) on any subscriber found to be responsible for serious or systemic breaches of the standards code or governance requirements of the body. The Board should have sufficient powers to require appropriate information from subscribers in order to ascertain the turnover that is attributable to a publication irrespective of any particular accounting arrangements of the publication or subscriber. The sanctions that should be available should include power to require publication of corrections, if the breaches relate to accuracy, or apologies if the breaches relate to other provisions of the code.

Difference from Leveson Recommendations: Leveson did not specify the publication concerned. This was added in order to reduce the possible exposure of news publishers.

19A) The Board should establish a ring-fenced enforcement fund, into which receipts from financial sanctions could be paid, for the purpose of funding investigations.

Difference from Leveson Recommendations: Derived from Leveson Rec 39

20) The Board should have both the power and a duty to ensure that all breaches of the standards code that it considers are recorded as such and that proper data is kept that records the extent to which complaints have been made and their outcome; this information should be made available to the public in a way that allows understanding of the compliance record of each title.

Difference from Leveson Recommendations: No change from Leveson

21) The Board should publish an Annual Report identifying:
    (a) the body’s subscribers, identifying any significant changes in subscriber     numbers;
    (b) the number of:
         (i) complaints it has handled, making clear how many of them are multiple          complaints,
         (ii) articles in respect of which it has considered complaints to be without          merit, and
         (iii) articles in respect of which it has considered complaints to be with merit,          and the outcomes reached, in aggregate for all subscribers and individually in          relation to each subscriber
    (c) a summary of any investigations carried out and the result of them;
    (d) a report on the adequacy and effectiveness of compliance processes and     procedures adopted by subscribers; and
    (e) information about the extent to which the arbitration service has been used.

Difference from Leveson Recommendations: Changes remove ambiguity in the definition of complaints

22) The Board should provide an arbitral process for civil legal claims against subscribers which:
    (a) complies with the Arbitration Act 1996 (“the Act”);
    (b) provides suitable powers for the arbitrator to ensure the process operates     fairly and quickly, and on an inquisitorial basis (so far as possible);
    (c) contains transparent arrangements for claims to be struck out, for legitimate     reasons (including on frivolous or vexatious grounds);
    (d) directs appropriate pre-publication matters to the courts;
    (e) operates under the principle that arbitration should be free for complainants     to use;
    (f) ensures that the parties should each bear their own costs, subject to a     successful complainant’s costs being recoverable (having regard to section 60 of     the Act and any applicable caps on recoverable costs); and
    (g) overall, is inexpensive for all parties

Difference from Leveson Recommendations: This change appears to have been made to remove ambiguity. Separately in the Royal Charter there is provision made for review of the arbitration process at each cyclical view in order to ensure that it is working adequately both for publishers and the public.

23) The membership of a regulatory body should be open to all publishers on fair, reasonable and non-discriminatory terms, including making membership potentially available on different terms for different types of publisher.

Difference from Leveson Recommendations: Derived from Leveson Rec 24.