The Leveson Report – What it means for online publishers

This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.

After nine months of hearings, oral evidence from over three hundred witnesses and further witness statements from nearly 300 others, Lord Justice Leveson yesterday published his 2,000 page report on his inquiry into the culture, practices and ethics of the press.

The primary recommendation of the report is a new independent self-regulatory body, underpinned by a statute which should identify the legitimate requirements of the new body and provide a mechanism to recognise and certify that it meets those requirements. The report also makes numerous other recommendations as to how the new regulator should operate, including having the power to impose sanctions of up to £1m.

However, after having provided substantial evidence to the Inquiry, it appears that online publishers (other than traditional newspapers' websites) can breathe easily. Although Leveson LJ considers that membership of the new self-regulatory body ought to be open to online publishers, they are not the primary target of any of the report's recommendations.

There will no doubt be lots of analysis of the report from every part of the media and legal community over the coming weeks. For the time being, we set out below a short summary of the report's key recommendations and what impact, if any, they will have for online publishers.

The new regulator

Lord Justice Leveson stopped short of recommending a compulsory statutory regulator, but he did recommend a new "independent regulatory body" with the dual roles of promoting high standards of journalism and protecting the rights of individuals. Key aspects of this recommendation are as follows:

• The new self-regulatory body should be underpinned by a statute which should provide for a process to recognise the new body and ensure that it meets certain requirements and enshrine in law a legal duty to protect the freedom of the press. Ofcom should act in a verification role to ensure independence and effectiveness.

• The Chair and board members of the body should be independent of the press (with no serving Editor) and Government and should be appointed by an independent appointment panel.

• The membership of the new 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.

• The new system should be funded by the media industry by agreement with the Board of the new regulator.

• The new regulator should have the power to direct appropriate corrections and apologies and impose sanctions of up 1% of turnover with a maximum of £1m.

• The new body should establish its own Code with the aim of developing a clearer statement of the standards expected of editors and journalists.

• The new body should consider requiring that newspapers publish compliance reports in their own pages and that a named senior individual within each title should have responsibility for compliance and standards.

Incentives

Publishers should be encouraged to sign up to the new regime through various legal incentives, including:

• access to a low cost arbitration service to deal with civil law complaints in relation to member publications;

• cost benefits in civil litigation for members who encourage complainants to use the arbitration service rather than litigating;

• potential exemption from exemplary damages in respect of media torts;

• being able to display a "kite mark" for use by members to establish a recognised brand of trusted journalism; and

• membership being taken into account by the Information Commissioner in deciding whether to take any enforcement steps.

What did Lord Justice Leveson have to say about the online community?

The report focuses on the traditional print media with only 15 of its 1,987 pages devoted to the internet (see Volume 1, Part C, page 164 - 179). In that section, Lord Justice Leveson summarises some of the evidence given by the online community, including from blogs such as the Guido Fawkes blog and Popbitch, online news providers such as the Huffington Post UK, social networking sites such as Facebook and Twitter, and search engines such as Microsoft's Bing and Google. He points out some of the extensive efforts of internet companies to deal with the challenges of local law in a multi-jurisdictional environment and some of the difficulties in legal enforcement online.

In particular, Leveson LJ:

• acknowledges the relative lack of regulation of the internet, and confirms that this situation is "unlikely to change";

• points out that the Government made clear in evidence that it sees the internet as "a key driver of future economic growth and innovation, and has made public its commitment to an open but responsible internet";

• clarifies that this "should be understood as an internet in which all legal content is available and there is no blocking of sites or discriminatory practice (such as prioritising one very similar product over another), and where the industry works together with Government to deliver solutions to issues particularly in relation to e-Accessibility; harmful and inappropriate content; and copyright"; and

• considers that the global nature of internet publications and the significant competition that this provides raises "profound questions about the ability of any single jurisdiction to set standards which, in a free and open society, can be breached online with the click of a mouse."

It is also worth noting Leveson LJ's recommendation that online publication be included in any market assessment for consideration of media plurality.

So what does it all mean for the internet community?

Whilst not the primary focus of specific recommendations, Lord Justice Leveson recognised the important role played by online publishers and explicitly states in his report that that all news and periodical publishers will be encouraged to join the new body, including news publishers online. This applies to both traditional publishers with an online presence, and online-only publications.

If the attraction of a kite mark and other benefits of membership proves to be a draw for online news providers, they may be encouraged by Leveson LJ's recommendation that membership 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." He acknowledges the significant differences and commercial positions of different types of publisher (not just online, but also smaller regional publications), and rather than create disparity, he suggests that membership fees and systems of governance should not necessarily be the same for all types of provider.

However, whether the incentives will be enough to entice any online news providers other than the Huffington Post to join remains to be seen. With recommended fines of up to £1m of turnover, online operators may choose to stay well clear for a while and let the newspapers fight it out.

Of course before then, we can look forward to many debates in the media and in Parliament. David Cameron has already sparked a frenzied debate by expressing doubt about the statutory underpinning for the new regulator and so it may be some time before its composition and scope become clear.