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In UK, medieval tactics may save modern media

A man reads a newspaper article about Lord Justice Brian Leveson's report on media practices in central London November 29, 2012. (Reuters/Olivia Harris)

The long-awaited reform of libel laws in the United Kingdom skirted with collapse this week due to political infighting in the aftermath of the Leveson report on media ethics--the public inquiry that resulted from the News Corp. phone-hacking scandal. With that disaster narrowly averted, attention has turned to what may turn out to be a very British solution to the question of how to shape the post-Leveson world.

An amendment to the Defamation Bill tabled by a member of the House of Lords from the opposition Labour party sought to establish by law an arbitration service, paid for by publishers, for members of the public wronged by the press. The proposal, passed at the House of Lords by 272 votes to 141 earlier this month, was an unexpected parliamentary defeat for the British government. It sought to allow courts assessing damages in defamation cases to take into account whether the outlet had submitted the story to an external regulator prior to publication. Proponents of the amendment argued the need to set "exemplary damages" for newspapers trespassing on, or unwilling to join, the press regulation framework--but this would have gone further, establishing a form of prior censorship heavily criticized by press freedom advocates.

Judge Brian Leveson was right when he ended the presentation of his report in November by saying, "The ball now moves back into the politicians' court." Political courtesans have been playing their game since. Leveson's proposed creation of an independent regulatory body backed by statute instead of the existing--and severely flawed, as the hacking scandal showed--voluntary, self-regulating mechanism had faced criticism from the press freedom community. "A media regulatory body anchored by statute cannot be described as voluntary," CPJ Executive Director, Joel Simon said in November. David Cameron, the Conservative British prime minister, equally rejected the idea of a regulatory solution. For the past several weeks, his government has led discussions among the political parties on alternative, non-statutory models to implement most, if not all, of Leveson's recommendations. Apparently, the arbitration amendment was put forward by advocates of a statute-based mechanism, in order to circumvent those talks between the ruling Conservative and Liberal-Democrat parties and Labour.

The government threatened to withdraw the entire legislative package if the arbitration amendment, initially put forward by Lord Puttnam, a Labour-leaning film director, was to be definitely passed by the high chamber. "If they [the Lords] fail to expunge the amendments, the revised [Defamation] Bill will create in the U.K. a version of prior restraint--censorship before publication--that has not existed in this country for 300 years and that is explicitly outlawed by the First Amendment to the U.S. Constitution and the European Convention on Human Rights," Tim Luckhurst, a professor of journalism at the University of Kent, wrote in the Daily Telegraph. The amendment was finally dropped Monday, and the Defamation Bill received an unopposed third and final reading in the House of Lords before going, without a censorship mechanism, to the House of Commons for a final vote. Hence the impetus is back with the party talks, where a sophisticated formula to establish a stronger regulatory framework for the press seems to be gathering consensus.

It was described as a "third way" when the Daily Telegraph disclosed Cameron's idea in December: it includes a role for Queen Elizabeth and it dates back a thousand years. The government wants to establish a new independent press watchdog by royal charter, an archaic legal mechanism previously used to set up the BBC, the Bank of England, the Royal Opera House and the University of Cambridge. Under this very British system, the Queen must formally accept the establishment of each institution in a document which is written on vellum, sealed, and laid in Parliament. The royal charter originated in medieval Europe and was introduced in the U.K. in 1066. It has been used, according to the Daily Telegraph's media specialist, nearly a thousand times, mostly to found cities and universities. The future of the British press thus lies in a medieval royal parchment. For beginners it might sound like a counterintuitive route to a fresh start. But it makes sense. British sense, at least.

The royal charter mechanism is considered the ultimate guarantee for the BBC's independence from political interference. It is reviewed every 10 years, and any modification requires a much broader party consensus than usual parliamentary rules would guarantee. The new charter, according to its supporters, would isolate the press regulator from both political interference and the industry's self-preservation instincts. The control of the former regulator, the Press Complaints Commission, by serving editors and publishers was considered by the Leveson report as a key explanation for its inability to prevent the hacking scandal. Liberal and Labour negotiators initially only reluctantly accepted the royal charter mechanism as a basis for discussion, but they have recently welcomed a draft document presented by Cameron's Culture Secretary, Maria Miller. "It would see the toughest press regulation this country has ever seen without compromising press freedom," she said. The royal charter would establish a governing committee of five to nine well-respected, independent figures who would appoint and oversee the members of the new regulatory body.

Though this approach is slowly moving forward, it is drawing a heavy exchange of fire between the media industry, on the one hand, and hacking victims, on the other. Many victims of press excesses have insisted that acting members of the industry should not be incorporated in the new institution, but Conservative ministers seem eager to accommodate the press barons and are ready to include "independent members and serving editors" in the new body, which would be responsible of drafting a new press code to regulate a complaints and compensation mechanism. According to recent press reports, the charter as currently drafted also partly rejects the Leveson recommendation that the new regulator should investigate complaints even coming from groups not directly involved or named in articles--another "concession" to the industry that has infuriated victim groups.

Even among Tory members of Parliament there is still a degree of skepticism, but leading MPs have recently signaled readiness to discuss a non-statutory solution. Last week George Eustice, one of the leaders of the 75 Conservative MPs advocating for tighter press regulation, wrote in the Guardian that the compromise proposal "represents a basis on which we can all move forward." Both the Labour Party and the Liberals have committed themselves to guaranteeing a strong post-Leveson regulatory framework, and they will be closely watched by victim organizations, who are still demanding a statutory-based solution. Media companies have strenuously rejected the idea of a new press law and are lobbying the government to keep as much control of the process as possible.

Meanwhile, public confidence in the press after the hacking scandal is at historic lows. According to figures released in September by Which?, a consumer advocacy organization, only 7% of consumers have trust in journalists, who share the bottom of the table with politicians and score even worse than bankers (trusted by 11%). As George Eustice wrote, "One of the obstacles to an agreement is a lack of confidence in the industry's intentions."

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