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English PEN Response to Consultation on Press Standards Board of Finance 23 May 2013

English PEN Response to Consultation on Press Standards Board of Finance 23 May 2013

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Published by English PEN
English PEN Response to Consultation on Press Standards Board of Finance 23 May 2013
English PEN Response to Consultation on Press Standards Board of Finance 23 May 2013

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Published by: English PEN on May 23, 2013
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English PEN welcomes a public consultation on the issue of the future regulation of the press. Thatthis consultation comes at the eleventh hour, after relevant legislation has been passed byP
arliament, and that the consultation period is woefully short (thus not adhering to the Government‖s
own principles with regard to consultations
) is however disappointing.We hope that despite the timing and low profile of this consultation, due consideration will be givento the arguments put forward and proper time will be taken to reach a conclusion on the criticallyimportant issue of how the press in this country should be regulated.
Such diligence is necessary now because the Government‖s approach to implementing a new regime
to regulate the press has so far been opaque, with closed meetings taking place between theGovernment and the press, or politicians and one specific interest group, without the opportunity forany wider input. One very specific point
that concerning ―small
scale bloggers‖ –
was consulted onslightly more widely, over a very short time period, but this does not add significantly to thelegitimacy of the process. Even parliamentarians were asked to pass legislation which had not beensubject to any scrutiny in committee, concerning not just the specific issue of press regulation, butthe constitutional question of how royal charters can be amended.In the mêlée that followed the introduction of draft legislation on the issue to the Crime and CourtsBill, the Government suddenly realised that the legislation would have an adverse impact onbloggers. This impact was described by Hacked Off, which lobbies in favour of press regulation, as
and a last minute scramble produced an amendment to try to provide bloggers with anexemption from the relevant consequences. The impact would not, however, have been unforeseenif a proper consultation had been carried out: in December 2012, following the publication of theLeveson Report, English PEN warned that, if implemented, this very problem would arise
That the Government‖s haste to introduce legisl
ation about press regulation followed
Lord Leveson‖s
public inquiry on the same subject matter is not a good reason to ignore the usual consultation
English PEN 
Consultation Response 
process. The inquiry did not consult on its preliminary findings, as it might have done, thus meaningthat nobody had an opportunity to respond formally to the recommendations made, and in any eventthe Government is seeking to implement different proposals to those made by Lord Justice Leveson.The issues at stake are not just of concern for the mainstream press, but for individuals and small
organisations as well. The Government‖s proposals will affect all publishers
. Given the ease withwhich anyone can publish on the internet, this could have implications for each and every one of us.Furthermore, the issues are not only important for those in the UK, but also for the rest of the world,with other countries frequently looking to the UK when considering their own democratic andcompliance structures.We, and many other organisations and individuals, have very serious concerns about the
Government‖s proposals for press regulation. We are pleased that the Government is finally
consulting on this hugely important matter and hope that it will listen.
Press regulation
an overview
The framework of the system of press regulation envisaged by the Government is formed both bythe Royal C
harter (whether the Government‖s version or the press‖
s version) and by sections of theCrime and Courts Act 2013. This legislation introduces the prospect of a certain class of defendant
a ―relevant publisher‖
having to pay exemplary damages and punitively high costs in civil, media-
related claims. Such ―relevant publishers‖ will be exposed to making these payments if they are not
members of a regulator approved by a recognition panel established by Royal Charter.English PEN cannot comment on the proposed Royal Charters for press regulation without alsocommenting on the legislation (which has already been passed) which forms part of the samesystem.To aid understanding of our views, it will assist if we make clear now that we do not believe that theproposed system of press regulation amounts to voluntary regulation. Two aspects of the approach
undermine the ―voluntary‖ nature of signing up to an approved press regulator (or rather signing
upto one that applies to become approved). The first is the consequences in litigation for failure to signup
both exemplary damages and punitive costs orders; the second is the threat that if publishersdo not sign up voluntarily, something more drastic should be put in place. This comes partly from
English PEN 
Consultation Response 
Lord Justice Leveson‖s personal view as expressed in the report
that if no approved regulator isestablished, or if a significant publisher remains outside this regime, then Parliament should move tobring in statutory regulation.
The threat is reinforced through the measures in the Government‖s
Royal Charter to ensure that the recognition commission must report to Parliament, after a year, if either of these two situations exist. As a consequence this approach to press regulation amounts tocoercion
the process is to force force publishers to join up to an approved regulatory body.Whether the new system is voluntary or not is important for several reasons.
Firstly, a new, approved regulator will have a standards code that addresses issues of conduct, privacy and accuracy. This is the first sign of content regulation. If participation inthe regulatory body is truly voluntary, this is not problematic. The participants wouldvoluntarily be holding themselves to particular standards which may include ethicalconsiderations, but if participation is de facto compulsory publishers would be required tomeet standards imposed on them other than by law.
Secondly, an approved regulator will be able to impose significant fines (of up to £1m) anddirect or require the placement of corrections and apologies. To be forced to join such aregulator would have a clear impact on the right to free speech.
Thirdly, membership of the body
and use of its arbitration scheme
must be voluntary tocomply with article 6 of the European Convention on Human Rights.
Crime and Courts Act 2013
Exemplary damages
Under s.34 of the Crime and Courts Act, exemplary damages may be awarded by the court against arelevant publisher if it does not subscribe to an approved regulator, if it is found liable in respect of a media-related claim, if the claimant has asked for such damages to be awarded and if 
“the court is satisfied t
(a) the defendant‖s conduct has shown a deliberate or reckless disregard of an outrageousnature for the claimant‖s rights,
 (b) the conduct is such that the court should punish the defendant for it, and(c) other remedies would not be adequate to puni
sh that conduct.”
Volume 4, Part K, Chapter 8, Para 7.3
s.34(6) Crime and Courts Act 2013

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