Leveson Report

The Leveson Report is the conclusion of an inquiry into press culture and ethics in the UK media. The report contains implications for internet regulation as well as data protection.

Key Findings

Press governance

The report concentrates on mass circulation analogue print newspapers. It recommends that Parliament create a minimal form of state regulation of these papers, whereby Ofcom ascertain whether an otherwise self-regulatory framework is independent and accessible. Furthermore, those parts of the press that did not join the self regulatory scheme would be subject to direct regulation by Ofcom.

Although analogue press governance falls outside of ORG's digital remit, the mechanism would cover digital publications and Leveson foresees that larger online publications could join the self-regulatory framework. Thus the kind of regulation that emerges is of interest to ORG.

State governance of the press in any form is controversial, and even this minimal kind of regulation is attracting criticism from groups including Liberty[1] as well as government ministers including Foreign Secretary William Hague MP, who argues that it would damage the UK's ability to argue against media regulation in other countries, where it is actively used to restrict free speech.[2]

Press ownership

Leveson's recommendations 85-92 concern media ownership and plurality. He argues that "plurality" should be part of a public interest test in competition referrals, or periodic reviews of the media market. He adds that "[o]nline publication should be included in any market assessment for consideration of plurality"

"Ofcom and the Government should work, with the industry, on the measurement framework, in order to achieve as great a measure of consensus as is possible on the theory of how media plurality should be measured before the measuring system is deployed, with all the likely commercial tensions that will emerge."

"The levels of influence that would give rise to concerns in relation to plurality must be lower, and probably considerably lower, than the levels of concentration that would give rise to competition concerns."

Internet governance

The Report did not delve further in to the issue of liability of service providers and hosts, but equally recognised that these agents cannot be seen as publishers. It suggested that some larger news providers should be subject to new regulations; however, this could be dangerous if the changes to what is required of on-line service providers were done in a haphazard way, potentially adding liability to services for what users do. With regards the internet regulation, the report found that

the Internet has been described as an unregulated space, in which businesses can avoid the regulation of a given jurisdiction by hosting the content they publish in a different legal jurisdiction. Witnesses to the Inquiry have said that this creates an imbalance with market consequences between what might be written by UK newspapers. [3]
Certainly, the very nature of the Internet does not lend itself to regulation. It is a global network made up of a very large number of interconnected, largely autonomous networks, operating from many different legal jurisdictions without any obvious central governing body. Indeed, in many ways this loose and lightly regulated structure has been encouraged by governments and by users as a source of both innovation and growth.[4]
This does not mean, however, that the Internet is without any governing principles. To ensure interoperability of the constituent networks, as well as consistent policy on addressing, addresses and standards are administered by the Internet Corporation for Assigned Names and Numbers (ICANN), based in California, at which the UK Government is represented.[5]

The Report covered the current self-regulatory framework in place regarding illegal content on the internet.

In many circumstances, ISPs and others have cooperated with law enforcement and other agencies to remove illegal content or block access to it. The Internet Watch Foundation (IWF) is an example of this self- regulatory approach. The IWF works closely with ISPs to ensure that webpages, including those hosted outside of the UK, which provide access to potentially criminal content and, specifically, images of child abuse, are reported and removed or blocked at source.[6]

That said, it went on to say there is space in which UK law could be enforced. With regards to online blogging, Carla Buzasi of Huffington Post UK suggested that

micro bloggers and small non-commercial bloggers should exist outside any formal system of regulation. She regards this freedom from regulation as a necessary condition for the nurture of creative talent and encouragement of new media enterprises.[7]

The Press and Data Protection

Recommendations 48-57 relate to data protection and the Data Protection Act.

Very roughly, the recommendations are aimed at narrowing the exemption to data protection provisions for journalism. Instead of a catchall, Leveson suggests journalistic use of personal data should be subject to a public interest test and be necessary for publication, instead of with a view to publication.

He also states that any data must still be processed subject to other data protections principles, such as being fair, accurate and subject to Subject Access Request. This last requirement would have to be caveated, for instance so that it did not reveal sources. There must also be a question about revealing a journalistic investigation.

Recommendations to the Ministry of Justice

Recommendations 48-57 relate to the Ministry of Justice. They are a call for strengthened data protection laws, especially enforcement powers and penalties.

DPA penalties

Recommendation 51 states that:

It should be made clear that the right to compensation for distress conferred by section 13 of the Data Protection Act 1998 is not restricted to cases of pecuniary loss, but should include compensation for pure distress.

Recommendation 52 states that the DPA should have a provision to state that "the Information Commissioner’s Office should have special regard to the obligation in law to balance the public interest in freedom of expression alongside the public interest in upholding the data protection regime".

It also states that the government should "bring into force the amendments made to section 55 of the Data Protection Act 1998 by section 77 of the Criminal Justice and Immigration Act 2008 (increase of sentence maxima) to the extent of the maximum specified period; and by section 78 of the 2008 Act (enhanced defence for public interest journalism)"

"The prosecution powers of the Information Commissioner should be extended to include any offence which also constitutes a breach of the data protection principles" and the ICO should work with the Crown Prosecution Service over criminal prosecutions.

Lastly, he believes the ICO should be reformed to include a board of commissioners specialising in different industry sectors, including one for the media.

Recommendations to the Information Commissioner

Recommendations 58-66 relate to the Information Commissioner.

These essentially ask the ICO to pay more attention to press and media use of data, issue good practice guidance and to include information about their performance when the ICO reports to Parliament.

See also

External links