My Lords, in the absence of the noble Baroness, Lady O’Neill, I shall speak in support of Amendment 58, which is in the names of the noble Baroness, Lady O’Neill, the noble Lords, Lord Lipsey and Lord McNally, and myself.
The Bill contains an exemption for publication which is for journalistic, academic, artistic and literary purposes and is in the public interest. In determining whether publication is in the public interest, regard must be had to,
“any of the codes of practice or guidelines listed in sub-paragraph (5)”,
of paragraph 24, which is in Part 5 of Schedule 2. The codes of practice listed in sub-paragraph (5) are the,
“BBC Editorial Guidelines; … Ofcom Broadcasting Code; … IPSO Editors’ Code of Practice”.
The purpose of Amendment 58 is to add to that finite list a further, open-ended category of codes to cater for any other relevant code of practice approved by the Press Recognition Panel. The immediate effect of the amendment would be to add the Impress standards code to the list of journalism standards codes recognised in the Bill, because so far it is the only one which has been approved by the Press Recognition Panel.
The Bill rightly recognises that journalists may sometimes have occasion to process and publish people’s personal data. On the rare occasions when a journalist has occasion to breach someone’s data privacy, the Bill requires them to show a reasonable belief that doing so was in the public interest. The Bill itself does not include a public interest test. Instead, it refers to three codes which do: the BBC Editorial Guidelines, the Ofcom Broadcasting Code and the IPSO Editors’ Code of Practice. Our amendment would add a fourth code, or rather a class of codes, to the list:
“any code which is adopted by an approved regulator as defined by … the Crime and Courts Act 2013”.
This modest amendment would bring the Bill closer to the recommendations made by Sir Brian Leveson following his inquiry into press standards and press regulation. It would also reflect the changing nature of news publication in this digital age. An approved regulator as defined in the Crime and Courts Act 2013 is a regulator that is compliant with the Leveson recommendations as distilled in the royal charter on self-regulation of the press. The royal charter requires an approved regulator to have an independent board, to have effective powers of remedies, to provide a low-cost arbitration scheme for civil disputes and to take responsibility for a standards code. According to the charter, the standards code of an approved regulator,
“must take into account the importance of freedom of speech, the interests of the public … and the rights of individuals”.
In particular, it must include appropriate “respect for privacy” where there is no sufficient public interest justification for breach.
The charter also states that a regulator can be approved only if it provides,
“non-binding guidance on the interpretation of the public interest that justifies what would otherwise constitute a breach of the standards code”.
In other words, a regulator can be approved only if its code properly balances the interests of freedom of speech with appropriate respect for privacy and if it provides guidance on what this means in practice. In order to be listed, an approved regulator must not just be likely to have the right kind of code; it must be guaranteed to do so.
At present, the only approved press regulator is Impress, the Independent Monitor for the Press, which was recognised by the Press Regulation Panel in October 2016 after a nine-month application process. The decision of the Press Recognition Panel to approve Impress has recently been upheld by the High Court, which dismissed an application for judicial review brought by the News Media Association on all six counts. In due course, other regulators may be recognised.
The system we envisage is not exclusive and more than one regulator at a time may enjoy approved status. In this way, Amendment 58 allows for changes in the regulatory landscape. So long as a regulator has successfully completed the rigorous approval process, its standards code would be included; if a regulator withdraws from the recognition system or loses its approved status, its code would no longer be included.
Impress now regulates 78 news publications across the UK that reach almost 7 million readers every month. A further 36 publishers have applied to join. Without this amendment, these publications would not enjoy the same protections as members of IPSO, which does not meet the Leveson criteria and is not externally accountable. In these circumstances, for the Bill not to contain a framework that covers Impress and other Press Recognition Panel-approved publishers beyond the three codes currently listed would be perverse.
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I understand that Impress has been endeavouring for more than a year to ensure that its code is listed alongside the other codes in this part of the Bill. So far, the Government have failed to engage with these
efforts while choosing to continue to include the IPSO Editors’ Code of Practice in the Bill. Amendment 58 does not seek to remove IPSO’s code; it simply seeks to include Impress’s code and the code of any other approved regulator. I hope that the noble Lord, Lord Pannick, will recognise that doing this in no way seeks to curtail press freedom or to remove the IPSO Editors’ Code of Practice from being listed in the Bill. It seeks only to add Impress and any other Press Recognition Panel-approved code of practice.
An alternative approach is before us today in the shape of Amendment 55 tabled in the name of the noble Lord, Lord Stevenson. It would replace the list of codes entirely and refer instead to any,
“appropriate codes of practice and guidance as determined by the Commissioner”.
I appreciate the intention behind the proposal, but it raises a number of questions. Would the Information Commissioner maintain and publish a list of codes that have been found appropriate, or would she consider any code on a case-by-case basis? How would the commissioner reach her determination? What criteria would she consider? Without answers to these questions, we are faced with a great deal of uncertainty about how the proposed system would work in practice.
If Amendment 55 were adopted, a journalist whose work is currently regulated under one of the codes already listed would lose their protection under the Bill. They might be concerned that the commissioner would find that their code was not appropriate. As a result, they might choose not to pursue an important investigation. Conversely, a journalist whose work is not currently regulated under a code listed in the Bill might write a code on the back of an envelope and then breach someone’s privacy in the hope that their code was subsequently found to be appropriate. In the digital age, where news websites are launched on almost a weekly basis, this scenario is not as far-fetched as it might seem. In both cases the lack of clarity would lead to harmful consequences for the public. It would have a chilling effect on legitimate and responsible journalism and an emboldening effect on illegitimate and irresponsible journalism. Furthermore, Leveson criticised the Information Commissioner for failing to act robustly when it came to exercising her duties in relation to the press.
In short, if the Bill is to include a list of codes, that list should include the standards code of any approved regulator. Any such code is guaranteed to balance freedom of expression and privacy, and to be independently and effectively upheld. It would, as I say, be perverse if the Bill did not include such a code—