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FIRST DETAILED COMMENT ON THE MacLEVESON REPORT

THE SPIN-OFF THAT OVERTAKES LEVESON

THE son of Leveson has overtaken its parent. The report from the "The Expert Group on the Leveson Report in Scotland" - which I dubbed MacLeveson - is only 30 pages long.

   Yet it goes further than the 2,000-page Leveson Report. It includes a draft Bill, presumably drawn up by the three lawyers in the five-person group, ready for the Scottish Parliament to pass.

   They've even chosen a title: the Press Standards (Scotland) Act 2013. Thankfully the signs today (Friday, March 15) are that the parliament is not ready to pass it.

   The remit of the group led by Lord McCluskey was to "consider the findings and recommendations" in the Leveson Report on press regulation and recommend the most appropriate means of achieving "statutory underpinning in Scotland".

   Lord Leveson spent only one of his 2,000 pages on the internet and effectively just sighed. "The internet does not claim to operate by express ethical standards," he said, "so that bloggers and others may, if they choose, act with impunity."

   He added: "People will not assume that what they read on the internet is trustworthy or that it carries any particular assurance or accuracy."

   MacLeveson shows no such reticence and it diverges from Leveson in a number of ways. First, it says the "Scottish Ministers must appoint an individual as the Recognition Commissioner" - not a Recognition Panel as envisaged in England

   This commissioner may recognise a body as the approved press regulator if it meets the requirements set out in the Leveson Report. That body must pay the commissioner a fee which he or she sets and he "may set different fees for different cases or circumstances".

   He may also charge that body a fee if it seeks his advice about applying to become the recognised regulator. The approved regulator will cover "all relevant publishers". Who are they?

   They will include anyone, other than a broadcaster, who publishes in Scotland a newspaper or magazine containing news-related material, or publishes news-related material by electronic means, including a website, whether or not connected to a newspaper or magazine.

Published in Scotland means publication takes place in Scotland or is targeted primarily at an audience in Scotland.

   "News-related material" means news or information about current affairs, comment about news or current affairs, gossip about celebrities, other public figures or people in the news. It even defines gossip: "assertions of fact about the private or family life" of any of these people "if the information published is calumnious, defamatory or scandalous".

   If no regulator has been approved after six months of this Bill coming into force, the Recognition Commissioner must formally inform the Scottish Ministers and they must set up a press regulator.

   There are some good things in the report, such as accepting Leveson's idea of a conscience clause for journalists, and it emphasises the position journalists and editors can find themselves in: 

   "The freedom of the proprietor is quite different from the freedom of the editor or a journalist. The owner can sack the editor without explanation. Journalists likewise can suddenly find that their services are no longer required...

   "Neither the editor, nor indeed the paper itself, is 'independent' of the proprietor... Thus the perspectives and rights of journalists should not be forgotten or dismissed."

   At least MacLeveson rushed in where Leveson feared to tread and did not ignore online media. But Leveson and MacLeveson both have a fundamental flaw.

   We are being asked to accept a statutory watchdog for a regulatory body, that has still to be appointed, to enforce rules that have still to be drawn up. The words "pig" and "poke" come to mind.

 Picture (c) 123RF Stock Photos

 

SCOTS 'LEVESON PANEL' SHOULD HOLD FIRE

This is the 40th anniversary of Scotland starting the working year a day behind everyone else. For January 2 became an additional bank holiday in 1973.

Long before Twitter and social media flash-mobbing, too many people were already taking the day off anyway.

Scotland may this year fall behind in press regulation too. This Thursday UK editors and publishers are due to meet in the expectation of completing the detailed blueprint for a new regulator.

More than 100 of them met five days before Christmas and agreed to practically everything the Leveson Report called for except the statutory underpinning. Instead they agreed to be bound by contracts subjecting them to a regulator able to fine them up to £1m.

The proposed contract does not reassure critics that there will be no backsliding into bad old ways. It appears the initial five-year contract will be subject to annual renewal thereafter, allowing publishers to pull out at relatively short notice. Press Complaints Commission chairman Lord Hunt wanted five-year rolling contracts.

Legislation will still be required if libel or privacy damages are to be increased on publishers who stay outside the new system. And all three political parties are playing with the archaic idea of a Royal Charter for the new press regulator.

However, it is a mark of the impact of his inquiry that Lord Justice Leveson's report has set the agenda for reform and that national, regional and local newspapers have reached agreement so quickly.

In the meantime Scotland is effectively holding an inquiry into the effects of an inquiry, with five experts appointed to look at how Leveson's recommendations could be applied in Scots law.

The panel of five - former High Court judge Lord McCluskey, former Herald assistant editor and former NUJ president David Sinclair, columnist and former Sunday Mail assistant editor Ruth Wishart, Edinburgh University law professor Neil Walker, and Levy & McRae's head of litigation Peter Watson - are to report by March.

By then a new system, supported by the Scottish Newspaper Society among others, could be in place without statutory underpinning. It would be funded by UK media groups, who own most of the press in Scotland and are unwilling to pay for a second regulator north of the border.

What if the panel of five recommend the Irish model favoured by the NUJ and believed to be favoured by Alex Salmond? That would mean paying for an ombudsman who is recognised by statute and a press council, independent of government and media, to decide appeals against the ombudsman.

For the last two years the press council has been recognised under Ireland's Defamation Act so judges can take into account co-operation with the council. The current press ombudsman, journalist-turned-politician-turned-journalism-professor John Horgan, gave evidence to Leveson.

Yet he has less power than the British industry's proposed new regulator and criticisms of the Irish system sound similar to those of the PCC. He can order publication of complaints against newspapers but can act only when victims complain and cannot initiate inquiries or report on patterns of behaviour.

The press council's existence has also not dissuaded Justice Minister Alan Shatter from pushing for a Privacy Act.

The British press are experienced in cross-border regulation: operating under the PCC and Press Council of Ireland, for example, or under Scots and English approaches to applying contempt laws.

However, the panel of five are now being asked to examine a situation which has moved on even in the month since they were appointed. There is an argument for them to conclude quickly that they should hold fire.

If the new British regulator fails, if Ireland takes the route of privacy legislation, they will have more evidence for what might be needed in Scotland.

After all, as January always proves, Scotland is not afraid of starting a little behind others.

 

 

WILL THERE REALLY BE A MacLEVESON?

The belated realisation that Press regulation is a devolved matter has prompted discussion of whether or not MSPs will follow a UK government in enacting Lord Leveson's recommendations.

Clearly the Scottish Parliament has responsibility for Scotland's legal system. That is why there is a Freedom of Information (Scotland) Act as well as a UK Freedom of Information Act. Business and business regulation, though, are reserved matters.

What is not sufficiently devolved is ownership of the Press. The head offices are almost all in London, and that's where practical day-to-day decisions are taken.