We saw publication at the end of last week of what is already being dubbed “McLeveson”. This Scottish response to the Leveson Report makes remarkable reading. Contained within its urbane and staid language are proposals which could lead to regulation of all bloggers and tweeters in Scotland, where they comment, to any extent, on news of any sort and “gossip” about the famous.
The suggestions could see people being hauled in front of a Regulator to answer for tweets or blog posts, even where they were simply re-tweeting something else, for example.
In addition, there are worrying cost implications. Indeed the suggestion seems to be that all “significant news publishers” may have to chip in for the costs of the Regulator. The proposed definition of “significant” does mean only the major newspapers in Scotland. No. It could be me, or you, especially if you comment here or on other sites.
And we have another example of the apparent wish of the Scottish Government to extend its reach far and wide, as detailed below.
Lord McCluskey is a very distinguished personality. His long career in the law and politics makes him one of the most eminent Scots of recent times. From his service as a prosecutor and a QC, to a short time as a Sheriff Principal; from five years in the Wilson Government as Solicitor-General for Scotland to sixteen years full time on the Bench in the High Court and Court of Session; from being the first serving judge to deliver the Reith Lectures to chairing the Scottish Football Association disciplinary hearings on occasion: Lord McCluskey has seen it all and done it all.
In recent years he has become one of the “great and the good” summoned by governments who want an independent review of an issue (and there is no doubt about his independence).
In 2007 Prime Minister Gordon Brown appointed Lord McCluskey to propose, along with the Bishop of Oxford, new rules regarding political donations.
More recently First Minister Alex Salmond called upon His Lordship to chair a panel of experts considering how Scotland should interact with the Supreme Court (this being at the time when Mr Salmond and Mr MacAskill seemed to want to go to war with Lord Hope).
And now Lord McCluskey has his name all over “McLeveson” – the report prepared for consideration by the Scottish Government prior to a formal decision by Holyrood on how Scotland will deal with the issues raised by the report in England prompted by the phone-hacking scandals.
It is fair to say that the reaction to McLeveson has been less than enthusiastic.
The full report can be read here. Expert Group on Leveson in Scotland
The “Expert Group” consisted of five members. As well as the former judge who chaired the discussions, we had the following
- David Sinclair – Director of Communications at Victim Support Scotland – former President of the National Union of Journalists and former assistant editor of The Herald
- Professor Neil Walker FBA, FRSE, Regius Professor of Public Law and the Law of Nature and Nations at the School of Law, University of Edinburgh
- Peter Watson, Senior Partner of Levy & McRae and Visiting Professor at the School of Law, University of Strathclyde
- Ruth Wishart, independent media production professional, former assistant editor of the Sunday Mail, Scotsman and Sunday Standard
This was a high powered panel, and no mistake. The legal side was well-covered with three legally qualified members. The world of journalism was represented by Mr Sinclair and Ms Wishart, but also by Professor Watson who has acted for many media organisations over many years.
The “victims” too were represented. Mr Sinclair’s present role put him in that position and Professor Watson wore his third hat, as someone who has represented or is indeed still acting for individuals who consider they have been unfairly maligned by the media using tactics which are wrong, if not criminal. One of his prominent clients is Sir David Murray, and following the outcome of the FTT Professor Watson released a strongly worded statement on behalf of Sir David making clear that the businessman wanted to pursue vigorously the illegal, as he saw it, disclosure of his tax records.
Lord McCluskey too has never been afraid to be controversial. From suggesting, just after his retirement as a full time judge, that heroin should be legalised, as criminalisation had not worked, to his comments on Human Rights legislation, he has never been a shrinking violet.
The judge had commented as follows:-
I warned in the Reith Lectures in 1986 that the Canadian Charter – copied from the European Convention on Human Rights – would provide a field day for crackpots, a pain in the neck for judges and legislators and a goldmine for lawyers. Prophetic or what?
In relation to the 1998 Human Rights Act he said:-
Somebody suggested to me that it was a bit like sailing in the Titanic toward a legal iceberg. My own fear is that the better simile is with an avalanche; all we can hear at the moment is a distant roar, but it is coming and we are going to have to struggle to avoid being buried in new claims of right.
And he added:-
One last point about the judges in the 21st century. As a result of recent legislation by parliament, the judges have been given an entirely new jurisdiction. They can in effect overrule the elected parliament. For there has been introduced into our law a revolutionary instrument of change, a Trojan Horse. It goes by the splendidly attractive name of The European Convention on Human Rights. The new powers given to judges may require us to look again at the qualifications, experience and training required of our judges.
And he concluded:-
The consequences of the enormous changes effected by the Scotland Act and the Human Rights Act will be emerging for decades to come. The legal landscape will be profoundly altered. Are we ready for it? I doubt it.
It is fair to say that Lord McCluskey was not a fan of Convention Rights!
(As a footnote, his statements above led to the successful application in a criminal appeal he was hearing for him to be excluded from the process, and for the matter to continue before a differently constituted court, as his statements seemed to suggest that, as regards the Convention, there was not the appearance of impartiality.)
So we can be sure that Lord McCluskey is not one for refraining from speaking his mind. Nor indeed are the other members of the group.
What Did The Group Propose?
The Executive Summary can itself be summarised as follows.
We have proceeded on the fundamental principle affirmed in the Leveson Report, namely that the terms and conditions of press regulation should not be prescribed by statute. Any bodies forming part of a new regulatory system must be independent of the Legislature and of Government as well as independent of the media.
We have suggested that statute would provide a basic underpinning to ensure (a) that, in future, news-related material would be regulated … by an independent, non-statutory, Regulatory Body of a character to be proposed by the press; and (b) that there would be created a separate independent body (the Recognition Body) with responsibility for ensuring that the independent Regulatory Body complies at all times with the Leveson principles and essential recommendations.
We accept, but build upon, the Leveson conclusion that the Regulatory Body must have guaranteed jurisdiction over “all significant news publishers”. The principal difference between what we advise and what others have proposed is that the jurisdiction of the Regulatory Body must extend by law to all publishers of news-related material.
No publisher of news-related material should be able to opt out of that jurisdiction.
Funding for the system should be settled by agreement between the industry and the Board of the Regulatory Body, taking into account the cost of fulfilling the obligations of the regulator and the commercial pressures on the industry.
… all important institutions in a democracy, including public institutions … and … social institutions such as charities, Churches and Trades Unions, are subject to the Rule of Law and to the particular statutory jurisdictions and restrictions enacted by the elected Legislature for each of them; yet they preserve their independence and freedom from political interference in the carrying out of their functions.
We also note that, in some democracies, including Iceland, Denmark and Ireland, subjecting the press to the limited jurisdiction of an independent, non-government regulator is compulsory or is secured by the prospect of direct legislation as the alternative.
We have little confidence that the voluntary ‘opt in or opt out’ model proposed by Leveson would work―whatever incentives were devised to encourage publishers to opt in. But if, contrary to our view, it was decided that publishers were to be allowed to opt in or out of the regulatory system it would be necessary to provide, by legislation, mechanisms similar to those suggested by Leveson.
If the London negotiations fail to produce the necessary statutory underpinning for a Leveson-compliant Regulatory Body with universal jurisdiction, then Scottish Ministers may consider introducing legislation separately to ensure that those resident in Scotland can be adequately protected from abuse of the kind that the Inquiry identified and examined. We believe that it would be possible for the Scottish Parliament to achieve that object by legislating for the regulation of news–related material circulating in Scotland by any means including electronic publishing.
What Does This Mean?
Leveson did not want to create statutory press regulation. He desired to see a Regulatory Body independent of government and of the media.
A free and independent press is vital, according to Leveson, in a democracy.
The system should also protect journalists, as well as citizens covered by the press.
The Group saw a need for a statutory Recognition Body to oversee the non-statutory Regulatory Body. Thus the Regulator itself is not acting under statute – there is therefore no legislative control of the press. But, where the regulator is to be overseen by a Recognition Body which is statutory and whose goals and rules are, one assumes, to be laid down in statute, then surely this is statutory press control, but in a less obvious way?
The Leveson proposed “opt in, opt out” system was rejected by the Group. They saw the potential for a major media group not to participate as devaluing the process. And, if there was a statutory body to oversee the Regulator, people could not simply opt to ignore the whole system without bringing it into disrepute.
Indeed, if a “significant” publisher decided to opt out, this would lead to the Regulator failing its responsibilities to the Recognition Body and ultimately to its closure!
So All The Scottish Press Will Need to Comply?
Here we see some fine legal footwork. Leveson recommended that all “significant news publishers” be covered.
The Expert Group considers this and later provides a definition of that phrase.
At para 38 it states:-
Defining to whom a jurisdiction in a statute is to apply is a common problem. … The draft DCMS ‘Royal Charter’ document referred to earlier … defines “relevant publisher” as meaning (a) a person (other than a broadcaster) who publishes in the United Kingdom: a newspaper or magazine containing news-related material, or (b) a website containing news-related material (whether or not related to a newspaper or magazine)”.
What is clear from the definitions contained in that DCMS document and other recent proposals is that, in principle, all and any news-related publisher may be considered significant for present purposes, since all and any may be capable of causing the very harm which Leveson is committed to addressing. We agree with that position.
At para 40 it states:-
We do not see how it can be undemocratic to compel news-related publishers to accept the jurisdiction of a Leveson-compliant scheme that they have helped to devise … The scheme cannot be Leveson-compliant “if it (the Regulatory Body) does not cover”―i.e. have jurisdiction over―“all significant news publishers”. The way to achieve that is to require all news-related material (as defined) to be subject to the same Standards Code: to repeat, it is a question of jurisdiction, not of voluntary membership of a club.
Para 41 says:-
Nearly all other pillars of democracy are subject to a substantial degree of legislative regulation without the loss of that independence that is vital. They cannot opt in or out of the jurisdictions created by the Legislature to regulate their activities in the interests of democracy. It is difficult in a democratic society in which news-related publishers enjoy extremely wide freedoms to justify exempting them from regulation, in a very limited field, by a body that meets the Leveson specification, not least in the light of the recent failings of the printed press when under a loose, voluntary system of self-regulation.
Para 42 has the Recommendation as follows:-
In summary therefore, we recommend that it is for the Legislature to specify the criteria for determining which news-related publications are to be subject to the jurisdiction of the new independent system of regulation by a Regulatory Body proposed by news-related publishers to prevent serious abuses of the kind that that Leveson has identified. It is for the Legislature to ensure that all those who might, in future, perpetrate such abuses are subject to the jurisdiction of the independent Regulatory Body.
Para 43 addresses Funding:-
While we agree with Leveson that it would be for the industry and the Regulatory Body to agree the basis of funding, there is no sensible escape from the conclusion that all who publish news-related material should be subject to the same regulatory jurisdiction. That does not necessarily mean that all who publish for example on-line news blogs must subscribe to the running costs of the regulatory system.
What Might the Legislation Say?
Helpfully a draft Bill has been attached to the Report.
For today’s purposes the most relevant parts are in clause 8. It states, in part:-
In this Act, “relevant publisher” means a person (other than a broadcaster) who publishes in Scotland—
(a) a newspaper, magazine or periodical containing news-related material, or
(b) by electronic means (including a website), news-related material (whether or not related to a newspaper, magazine or periodical).
(2) For the purposes of subsection (1)—
(a) the holder of a licence under the Broadcasting Act 1990 or 1996,
(b) the British Broadcasting Corporation,
(c) Sianel Pedwar Cymru,
“news-related material” means—
(a) news or information about current affairs,
(b) comment about matters relating to the news or current affairs,
(c) gossip about celebrities, other public figures or other persons in the news.
(3) “Gossip”, for the purposes of this Act, includes assertions of fact about the private or family life of any persons mentioned in subsection (2)(c) if the information published is calumnious, defamatory or scandalous.
(4) A person publishes “in Scotland” if—
(a) the publication takes place in Scotland, or
(b) the publication is targeted primarily at an audience in Scotland.
So the draft suggests that anyone, other than a “broadcaster” as defined, who publishes “news related material” will be treated as a “significant news publisher”, no matter how small their circulation is.
Under that definition I would be treated as a “significant news publisher”. The draft legislation and the Report make it clear that any publisher is by default viewed as “significant”.
Any website, Facebook page or Twitter feed publishing news, or comment on news, or gossip, would be covered. The “publisher” would then be liable to being proceeded against under the Regulatory procedures, and a failure by the Regulator to do so could lead to action against the Regulator by the Recognition Body.
One can well imagine the reaction of motivated people if any “opposing” blogger or message board could be complained about to a Regulator!
Bearing in mind that, for example, we have seen Rangers fans seeking thousands of signatures for a petition demanding action against HMRC, one could easily see a situation where fans of one football team automatically complain about almost anything written by or on behalf of their perceived opponents. Any Regulator in such a position would undoubtedly grind to a halt almost immediately.
In addition, and of particular concern, is the suggestion that, once it is recognised that all news publishers are “significant” and require regulation, then these should all be considered for meeting the costs of the Regulator.
The draft legislation, as do the Report and Leveson previously, all recognise the vital obligations of the State under the European Convention on Human Rights to permit freedom of expression.
How does potentially levying a bill on anyone who blogs or tweets about news accord with this? Such a “Leveson Levy” would, almost certainly, be subject to a challenge. After all, under the Scotland Act, the Human Rights Act has direct effect and the Scottish government cannot legislate contrary to the ECHR principles (except in limited circumstances).
Bearing in mind Lord McCluskey’s views of the Human Rights Act, one wonders how much consideration to such an issue the Group gave. It could be very embarrassing if there was separate Scottish legislation, but that this was delayed by legal challenge for long after the English scheme was in place!
The Long Arm of the Scottish Law
One of the most remarkable pieces of the proposed legislation is contained in Clause 8(4) of the Draft Bill. It continues a recent trend of the Scottish Government extending, or seeking to extend, its powers across the globe.
I will repeat it here:-
(4) A person publishes “in Scotland” if—
(a) the publication takes place in Scotland, or
(b) the publication is targeted primarily at an audience in Scotland.
For print media this definition is workable. For electronic media it is, respectfully, not.
Helpfully the draft does not further define subclause (a). The existing law on electronic publication is unclear. On one view publication takes place where the author or publisher sits at his laptop and hits “send”. On another it is where the servers which contain the “publication” are situated. A wide interpretation, adopted especially in English libel law, is that publication effectively means being able to read the piece in a particular jurisdiction.
Therefore, on that definition, any electronic publication anywhere in the world which is capable of being accessed in Scotland would be “published” here and fall under sub-clause (a). Thus we have the complaints that the Group is recommending that the entirety of media organisations (except for broadcasters) and tweeters and Facebookers and bloggers, as long as they are commenting on news or gossip, would be required to be subject to the McLeveson regulatory procedures!
Sub-clause (b), thankfully, seems to suggest that such a wide interpretation is not what the Group intended, as long as electronic publication is being contemplated by the authors. If the wide definition of publication in sub-clause (a) is applied, then, for electronic publication, sub-clause (b) is unnecessary.
Let’s take an example. The Des Moines Register, for example, publishes print and electronic editions. The print edition is not available in Scotland. Now it would be very difficult to argue that it was targeted “primarily” at an audience in Scotland. However the website of the paper is accessible here. Does it mean that the Des Moines Register needs to meet McLeveson standards?
What about bloggers? Paul Staines of the Guido Fawkes website has made it clear that he sees no way in which his site, hosted in the USA as I understand it, and run by him, an Irish citizen, can be covered by Leveson in England. But, on the definition in the draft Bill, I think he would be covered by the tartan version. Having seen his excellent performance when giving evidence to Leveson, one would almost look forward to Mr Staines taking on the Scottish regulator.
Normally of course one would not think that Holyrood wanted to cover the whole world. However, as I have written before, the extra-territorial extent of Part 1 of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 covers offences allegedly committed by anyone who is habitually resident in Scotland if watching a football match on TV anywhere in the world, as long as a Scottish team is involved. The possibility exists that, for example, a Scot working for a year in Tierra Del Fuego could find himself summoned to his local Sheriff Court to face a charge of Offensive Behaviour if, when watching a match between, for example, Celtic and Dukla Pumpherston on TV in a bar, he sings a song seen as “offensive”. This could be the case even if there was no one there who could be “offended”.
Maybe this, combined with the Expert Group’s extra-territorial ambitions, signified Mr Salmond’s intentions – today, Holyrood – tomorrow, independence – next week, THE WORLD!!!!!
(Just joking, First Minister!)
Posted by Paul McConville