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UK: Draft Royal Charter on Self-Regulation of the Press and Amendments to the Crime and Courts Bill

In this legal analysis, ARTICLE 19 reviews the provisions of the Draft Royal Charter on Self-Regulation of the Press, recently drafted by the three biggest political parties in the United Kingdom (UK), and the relevant provisions of the Amendments of the Crime and Courts Bill (Amendments), currently pending in parliament. Both legislative documents are analysed for their compliance with international standards on freedom of expression.

At the outset of the analysis, ARTICLE 19 expresses concerns about the process that led to the drafting of the Draft Charter and the Amendments to the Crime and Courts Bill on exemplary damages, in particular the lack of transparency which has undermined it. 
We also question whether the UK press was given sufficient time to reform the current model of self-regulation and the Press Complaints Commission (PCC) along the lines suggested by the Leveson report.  Unfortunately, the lack of transparency over the PCC reform process, initiated several months ago, makes it difficult to assess whether and why the PCC reform process may have failed.  
Consequently, ARTICLE 19 does not believe that the government has explained convincingly the reasons that led to the quick adoption of the Royal Charter, why it was necessary and why it was the least restrictive mechanism available.
The opacity of the process following the release of the Leveson report is particularly problematic in view of the importance of press freedom in a democratic society. We strongly believe that any agreement on press regulation demands broad public participation and agreement between all stakeholders including the press.   
ARTICLE 19 also emphasises that self-regulation should always be preferred over a press regulator established by statute since the mechanism is the least restrictive means available by which the press can be effectively regulated.
Statutory regulation or co-regulation of the print press may be compatible with international and European freedom of expression standards if it provides strong guarantees for media freedom and the independence of regulatory bodies. 
ARTICLE 19 concludes that the co-regulation established by the Royal Charter and the Amendments to the Crime and Courts Bill do not meet such guarantees and international standards on freedom of expression, and must be revised accordingly.
    1. The UK government should proactively reveal the content of the negotiations of the Royal Charter and the Amendments and nature of the process followed. In particular it should explain why it concluded that the Royal Charter was necessary and why it was the least restrictive mechanism available.
    2. The Royal Charter should include provisions stating that the functional, operational and administrative autonomy of the Recognition Panel is fully guaranteed in all matters and that any economic or political interference is prohibited.
    3. The structure, functions and procedures of the regulatory body should not be specified in such details in the Royal Charter.
    4. The Royal Charter should focus on overall guiding principles for the regulator, such as those regarding the appointment of the members of the Board, its functions, operations and funding. 
    5. The Royal Charter should stipulate that the mandate of the press regulator extends to advocating for freedom of expression. It should act as both a defender of the rights of members of the profession as well as a guiding force for their conduct and an adjudicator for complaints received from members of the public. Such provisions could also encourage widespread support among the media community and contribute to raising its public profile.
    6. For the sake of clarity, the term “independent self-regulatory body” should be omitted from the Royal Charter. The Royal Charter should clarify that it is establishing a hybrid model of regulation of the print media with statutory back up to the press regulator.
    7. The membership of the appointment panel and the regulator’s Board should ensure, at minimum, an equal representation of members of the media profession, media owners, and the public.
    8. Members of the Board of the regulator should be selected according to democratic and transparent procedures with public participation; and the term of membership should be limited in duration.
    9. The standards code (or ethical codes) should be developed by the media professionals and owners. Public consultations during the development of the standards code should be encouraged. 
    10. The role of the Code Committee should be reaching agreement on a national code of minimum standards. The Committee should be comprised of journalists, owners and the public in equal representation.  
    11. The provisions on group complaints must stipulate that any decision on such complaints must fully comply with international freedom of expression standards.
    12. The press regulator should also have powers to refuse to hear group complaints that are vexatious and/or are lacking merit.
    13. The possibility of third party complaints should be abolished.
    14. The remedy of “publication of correction and apologies” should be clearly specified.
    15. The potential for the Board of the regulator to direct the nature, extent and placement of corrections and apologies should be limited as follows:
      – the reply should only be available to respond to statements which breach a legal right of the person involved, not to comment on opinions which the reader or viewer does not like;
      – it should receive similar prominence to the original article;
      – it should be proportionate in length to the original article;
      – it should be restricted to addressing the impugned statements in the original text;
      – it should not be taken as an opportunity to introduce new issues or to comment on other correct facts.
    16. The regime of sanctions and remedial actions should be reviewed.
    17. All sanctions and remedial actions that can be imposed by the regulator should be clearly specified and the possibility of review of the decisions should be considered.
    18. It should be clearly stipulated that the regulator can impose financial sanctions only in cases of the most serious breaches of the standards code and provide other measures – such as correction or reply, issuance of apology or publication of the decision of the regulator – would not be capable of redressing the harm caused to the individual.
    19. The level of fine should always be assessed against their potential effect on the right to freedom of expression and they should never be disproportionate to the harm caused.
    20. A right of appeal must be included in the provisions.
    21. The Royal Charter should ensure that bloggers are not forced to abide by the ethical codes or codes of conduct developed by traditional media, either directly or through incentive schemes.
    22. Bloggers should be given the opportunity to follow the ethical standards or voluntarily join regulatory bodies if they choose to do so.
    23. The term “reckless disregard of an outrageous nature for the claimant’s rights” should be removed from the Crime and Court Bill.
    24. The Crime and Court Bill should stipulate that the exemplary damages should only be available as highly exceptional measures, and can be applied only where the plaintiff has proven that the defendant acted deliberately and with the specific intention of causing harm to the plaintiff.
    25. The possibility of imposing exemplary damages in cases where financial sanctions are imposed by the regulator should be clearly specified. In particular, there should be no possibility to impose exemplary damages if a maximum financial sanction has already been imposed by the press regulator.
    26. The maximum amount of exemplary damages should be stipulated in the Crime and Court Bill.
    27. The terms “the course of a business” should be specified. Individual bloggers and small-scale blogs should be excluded from the definition of relevant publishers under Section 131 of the Amendments. Posting hyperlinks should not be considered as “material written by a range of authors.”
    28. Search engines and social media platforms should be excluded from the definition of “relevant publishers” under the Royal Charter and the Crime and Courts Bill. 



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