In November 2012, Lord Justice Leveson recommended a strengthened form of press regulation, independent of politicians and proprietors.
This prospectus shows how IMPRESS, the Independent Monitor for the Press, will regulate the press in compliance with Leveson’s criteria. It will encourage the highest ethical standards in journalism whilst safeguarding the fundamental right to freedom of expression. Independent self-regulation which complies with Leveson’s criteria can work for both the press and the public. These notes are only the beginning, and IMPRESS will be developed in dialogue with its founding partners.
1. Aims and objectives: The purpose of IMPRESS is to support the integrity and freedom of the press while encouraging the highest ethical standards in journalism. IMPRESS stands up positively for press freedom. A ‘sunset clause’ in its Articles of Association would cause IMPRESS to dissolve itself if any future government modified the legal operating environment for press regulation so as to curtail press freedom. IMPRESS would also advocate strongly against the use of any other political mechanism to limit the freedom of the press or individual freedom of expression.
IMPRESS pursues its purpose through three core activities: complaints handling, arbitration and investigations. It also publishes and promotes research papers with analysis of relevant issues.
2. Complaints handling: IMPRESS will have the power to hear and decide on complaints about breaches of the standards code by subscribers. It will have the discretion not to look into a complaint that is without justification or an attempt to argue a point of opinion or to lobby. It will hear complaints from people directly affected, representative groups, and third parties. In the case of third party complaints, the views of the party most closely involved will be taken into account. The Press Complaints Commission (PCC) handled the vast majority of complaints through mediation between the parties. This consumed a large amount of staff time and resources. IMPRESS will spend less time on mediation because all subscribers to the regulator will be required to have an in-house complaints handling mechanism that is ‘adequate and speedy’, in line with the Leveson criteria.
The regulator will not receive complaints directly unless or until the internal complaints system has been engaged without the complaint being resolved in an appropriate time. The Press Complaints Commission currently hears thousands of complaints per year – far more than the average number heard by other national regulators. At IMPRESS, this time will be more efficiently and effectively spent in adjudicating on the small number of complaints that cannot be resolved between the parties. Failures by subscribers to offer an adequate and speedy complaints handling mechanism may lead to an investigation into their governance processes, with potentially serious sanctions.
IMPRESS will also offer an advisory service to news providers where there is a high risk of a breach of the code or civil law – for instance, in the wake of an atrocity. Evidence of this advice being followed or ignored may be taken into consideration in any subsequent complaint or civil proceedings.
3. Arbitration: IMPRESS will provide a fair, quick and inquisitorial arbitration service for civil legal claims. This is not intended to rule on breaches of the code, which will go through the complaints handling mechanism.
IMPRESS will regularly review the success of its arbitration scheme, with particular regard to its impact on the weaker party in any litigation – the small publisher and the individual claimant. Local and regional newspapers will be able to opt out of the arbitration scheme if they can show that it is damaging their economic viability. However, we are confident that, with independent funding to subsidise the costs of arbitration, publishers of all kinds will quickly see the benefits of accessing justice in this way.
Frivolous and vexatious claims will be struck out at an early stage. Evidence of claim farming may also cause cases to be struck out. Judgements may be appealed on points of law. Subscribers to the regulator should find the arbitration service an extremely cost-efficient way of resolving civil disputes. The use of this service in good faith should be taken into account by the courts when considering the potential for exemplary damages or costs penalties.
If the arbitrator, or the associated incentives, have the perverse consequence of constraining freedom of expression, either for subscribers or non-subscribers, IMPRESS may make representations to Parliament for changes in its legal operating environment. IMPRESS has a duty to promote freedom of expression, and cannot pursue a course of action that would conflict with this core purpose.
4. Investigations: Leveson said very clearly that the new regulator ‘should have authority to examine issues on its own initiative and have sufficient powers to carry out investigations both into suspected serious or systemic breaches of the code and failures to comply with directions of the Board.’ IMPRESS will have a small investigations team which can be boosted in the event of a major investigation. IMPRESS would not continue with any investigation where there was reason to suspect criminal activity but would refer such cases to the police, if necessary with an analysis of whether the public interest was engaged.
5. Appeals: Complainants or subscribers who are unhappy with the outcome of a complaint or investigation may appeal to a subcommittee of the Board, composed wholly of Board members who were not involved in the initial complaint or investigation.
6. Remedies: The first remedy in most cases of inaccuracy will be a correction. Where the parties cannot agree on the nature, extent or placement of the correction, IMPRESS will have the power to direct this. We do not believe that a forced apology is appropriate, but we would be delighted to see subscribers apologising sincerely for breaches of the code. Subscribers will be required to publish the regulator’s adjudication where a complaint is upheld. IMPRESS will have the power to fine subscribers for serious or systemic breaches of its standards code or governance requirements, with fines of up to 1% of turnover, with a maximum of £1m. Fines will be paid into a ring-fenced enforcement fund for the purpose of funding major investigations. They will not be used to fund the routine work of the regulator, so there will be no incentive for the regulator to levy fines in order to cover its costs.
7. Subscribers: Membership of IMPRESS is voluntary and contractual. Benefits associated with membership include the use of a kitemark and recognition by the courts. Relevant publishers, for the purposes of subscription, are defined in the Crime and Courts Act, Part 2, section 41 and schedule 15. All such publishers should see the benefits of membership, which will also be open to other publishers.
8. Non-subscribers: The regulator has no power to penalise relevant publishers for non-membership and would not endorse any government decision to impose statutory regulation on the press. We note the objection of several of Lord Justice Leveson’s assessors to the use, or threatened use, of a ‘backstop’ statutory regulator. In our view, relevant publishers which do not subscribe to IMPRESS should still be able to use the arbitration service, for a fee which is greater than the cost to subscribers, but lower than the potential cost of a High Court action. Relevant publishers which neither subscribe, nor use the arbitration service, may be liable to the consequences set out in the Crime and Courts Act.
9. Online publishers: Most online news providers are exempt from the definition of ‘relevant publisher’. However, the benefit of access to low-cost arbitration will be clear to online publishers. In the online environment, publishers may find a kitemark particularly valuable as a badge of reliability.
10. Contracts: Membership of IMPRESS will be by voluntary contract and not mandatory. A draft contract will be circulated for consultation with potential subscribers.
11. Organisational structure: IMPRESS is a company limited by guarantee with charitable objects and activities. It may be registered as a charity by the Charity Commission. The Board will be the governing body of the company, and will be responsible for the regulator’s compliance with the terms of the Leveson criteria and all other areas of fiduciary responsibility. The Board will delegate some of its powers to professional staff and to subcommittees.
12. Political influence: Unlike IPSO, IMPRESS will not allow members of the House of Lords to serve on its Board. Whilst we recognise the considerable expertise and integrity of members of the House of Lords, we do not want to risk the appearance or reality of political influence in the regulator’s work. At times, IMPRESS may wish to speak out to Parliament or government about constraints on freedom of expression. We want to do so with independence from any political associations.
13. Jurisdiction: IMPRESS will be open to subscribers from across the United Kingdom. The arbitral arm is likely in the first instance to operate under English law. There is nothing to prevent IMPRESS from setting up national arbitration schemes in Scotland and Northern Ireland, but in practice IMPRESS would welcome moves to set up regulators in the devolved nations. IMPRESS cannot and will not regulate offshore content.
14. Internal governance: Leveson requires subscribers to have appropriate internal governance processes (for dealing with complaints and compliance with the standards code). In practice, this may mean that publishers are required to appoint an ombudsman, or readers’ editor, to resolve complaints, independent of editorial oversight or interference. Large publishers might appoint this post in-house; smaller publishers might share an ombudsman between several titles. We believe that, with subsidised subscription rates for small publishers, this new framework will still prove more cost-effective than any alternative.
15. Funding: IMPRESS will be funded through an independent Trust which will separate the regulator’s activities from its funding. The Trust will exist solely to fund a regulator that complies with the terms of the Royal Charter. It may receive contributions in the form of subscriptions from regulated publishers and donations from members of the public and charitable foundations. Donors and subscribers will lose control over their funds as soon as they are received by the Trust. Likewise, Trustees will be unable to exert any control over the regulator other than by expecting compliance with the Leveson criteria. This double firewall will ensure the regulator’s independence from its funders. The Trust will also be accountable to the Charity Commission for the public benefit of its activities.
16. Code: The regulatory code employed by IMPRESS will, in the first instance, be the editors’ code used by the PCC. The Leveson principles are not incompatible with the code. This code will be reviewed in consultation with the public in the regulator’s first year of full operation and annually thereafter. The code committee of the Board will be mandated to review the results of this consultation and make non-binding recommendations to the Board for any changes to the code or its associated guidance.
17. Public Panel: IMPRESS will establish a public panel to facilitate a regular consultation about the policies and procedures of the regulator. Members of the panel will include civil society organisations which represent a range of groups and interests, including the right to free expression.
18. Kitemark: The IMPRESS logo will be prominently displayed on all subscribing publications. It will be withdrawn immediately from any members who leave the regulator after breaching the code or governance requirements, and will serve, therefore, as a badge of trust. This should be particularly valuable to publishers in an online environment.
19. Whistleblowers: IMPRESS will run a whistleblowing hotline for journalists or other employees or contractors of subscribers who feel that they are being asked to breach the code. We will establish a policy for addressing the needs of whistleblowers. We will also require subscribers to include a ‘conscience clause’ in all journalists’ contracts, to ensure that journalists feel able to resist unethical demands.
20. Expenditure: The Press Complaints Commission has annual expenditure of approximately £2m. It is anticipated that the complaints-handling arm of IMPRESS will operate at a much lower cost. The investigations arm will largely be funded on a ‘polluter pays’ principle, using the income from fines for serious or systemic non-compliance. This means that more investigations will be funded if there are more instances of non-compliance, creating a natural cycle of self-correction. The cost of the arbitral arm will depend on the way it operates and how costs are shared with litigants. Our intention is to reduce or remove the financial burden on individual claimants and small publishers, and to make the regulator affordable to all subscribers.
21. Subscription fees: Subscriptions will be payable on a means-tested basis with a sliding scale. The details of this subscription scheme are subject to financial modelling and consultation. IMPRESS will be contractually empowered to require appropriate information from subscribers to ascertain the turnover that is attributable to a publication.
22. Arbitration fees: Details of these fees are also subject to financial modelling and consultation. IMPRESS will provide this service at very low cost to individuals with a claim against subscribers and other relevant publishers (as defined in the Crime and Courts Act 2013, Part 2, section 41), and on an affordable basis to individuals with a claim against other publishers. Defendants who are specifically excluded from the definition of relevant publisher (as set out in the Crime and Courts Act 2013, Schedule 15), other defendants against a relevant claim, and relevant publishers which do not subscribe to the regulator will also be able to use the arbitration service for an appropriate fee.
The aim of this paper is to set out the direction of travel that flows from the aims and values of IMPRESS. We aim to facilitate a positive relationship between news providers and their readers, and, through The IMPRESS Project, we will develop more detailed proposals for the regulator in consultation with the industry and the public over the coming months.