The Case for Regulation

Members of UK official press regulator IMPRESS answer criticism that state-backed regulation could undermine a “vibrant local press”

Last week, I blogged about IMPRESS, which recently gained recognition as the first official press regulatory body in the UK.

The decision was made by the Press Recognition Panel (PRP), the government-funded body set up in the wake of the 2012 Leveson Report to oversee press regulation.

Under Section 40 of the Crime and Courts Act 2013, which has been passed by Parliament but is awaiting a final signature from Culture Secretary Karen Bradley, publishers who are not a member of an approved regulator could face “exemplary” damages – for instance, having to pay their opponent’s costs in libel and privacy cases.

Critics argue that Section 40 could undermine a “vibrant local press” by “blackmailing” publishers into joining, otherwise face “draconian” sanctions.

I asked members of IMPRESS about the above criticisms. Here are their responses.


Stephen Rodgers – author at The Week in
I think the only people who would talk about ‘state backed press regulation undermining vibrant, local press’ are members of a cosy club who resisted Leveson, rejected its findings and continue to regulate themselves while using the word ‘independent.’

I went through the membership process for IMPRESS and found nothing to concern me or make me think I would have to change the way I operate. In fact, I think it actually offers more protection for small organisations like mine.

I can fully understand why the nationals are throwing their toys out of the pram. Nobody has ever dared to stand up to them in the past and I really hope the government does proceed with Section 40. Given that most governments still run scared of the press, somehow I don’t imagine it is going to happen though.

Martin Childs – Business Partner, Shropshire Live
We acknowledge that for their own reasons mainstream publishers may be critical of IMPRESS, but as a small independent publisher here is our reason for joining.

Being a trusted news source for our community was our top priority and it is important for us to be regulated in some way and have some support.

We were not forced to join, neither is any publication under the current rules, but we saw the benefit it could bring to a publication like ours and importantly it was a good sign for our readers to know that we can be a trusted source of local news.

It is open to any UK regulator organisation to be apply to be recognised under the Royal Charter and IMPRESS is the first to do that, so we were proud to be a member.

The Leveson inquiry was a long and detailed investigation and concluded on the ways the UK Press could be improved, making several recommendations that we think should be followed. We believe we have high ethical editorial content and recognise the importance of following certain standards as publishing content in press or online has great responsibility.

By joining IMPRESS it gives us the confidence to pursue stories knowing we have the help and backing of an independent regulator who can offer an arbitration scheme should any breach occur.

By having local press regulated it produces a higher level of quality news and journalism which can only be a good thing for all!

Spokesperson for The Ferret
The Ferret signed up because we think the media needs independent regulation to ensure public trust and we took into account the views of the National Union of Journalists who also backed Impress.

We lack the financial resources of many media so adopting Impress as our regulator offers us low-cost arbitration and potential legal protection, which is vital for our sustainability. We are committed to conducting investigations in the public interest and to publishing journalism of a high standard that is both accurate and fair. If we do receive any complaints in the future then Impress should help us to resolve them fairly and cost effectively.

Daniel Ionescu – Managing Editor, The Lincolnite
Stonebow Media are proud to be one of the founding members of IMPRESS with our three market leading publications in Lincolnshire – The Lincolnite, Lincolnshire Reporter and Lincolnshire Business. We reach more than half a million people every month, more than any traditional publisher in our patch.

Critics of IMPRESS appear to be intentionally misleading. Indeed, with Section 40, publishers not part of an approved regulator would have to pay all the costs, even if they win the case. With IMPRESS, that would not be the case.

In particular that is because before any case would go to court, it would have to go through a mediation process via IMPRESS. This mediation process is capped at £3,500, which is considerably lower than solicitors’ cost, and within the financial means of most local publishers (most of which are part of national chains).

As is the case now, anyone attempting to sue a publication without attempting mediation, risks having their case thrown out. With Section 40 and under IMPRESS, it would be even more likely to stop at the mediation process. Even IPSO has a similar process in place.

Also, let’s not forget the Leveson inquiry was about national publications misbehaving on an industrial scale over a long period of time. Local/regional publications have not been singled out, but as a matter of fact, actually praised for their practices.

If any local publishers are concerned about the implementation of Section 40, they should join IMPRESS and benefit from full protection and independent mediation, should that be required.

James Cracknell – Editor, Waltham Forest Echo
Trust in British journalism has collapsed after of a series of high-profile scandals (phone-hacking, Hillsborough etc) and an astonishing dedication to masking the truth that is still displayed on a daily basis by several major publications (The Sun, Daily Express etc).
The need to establish a new press regulator is the direct result of this collapse in trust.

The need to make that regulator become “state backed” as you call it is also the direct result of this collapse in trust. In an ideal world, a “state backed” regulator would not be necessary, but the failings of the PCC and now IPSO, which remains just another stooge of the major publishers, means that an alternative such as IMPRESS is needed.

How else can trust be restored? Even in the EU referendum this year, it became clear that the media was failing the public by publishing lies on their front pages. Your question regarding Section 40 should not be levelled against IMPRESS; they did not write that law. As the editor of a local paper that is a member of IMPRESS I feel reassured, not undermined.

Steve McNought – Director, Arkbound
The background to IMPRESS should be considered [in context]: how the UK media [had] no Leveson-compliant regulator; how the UK has one of the most concentrated media in the world, with little diversity and ownership by three main companies; the history of inaccuracies and even illegal activity by some mainstream press; poor enforcement of the Editors Code of Conduct by IPSO; insipid and ongoing connections with mass media owners and the Government; misrepresentation of disadvantaged groups and current issues; blatant party-political propaganda by some publications (not marked as opinion)….. and so on.

By developing a consistent, Leveson-compliant framework, IMPRESS has the capacity to infuse greater public confidence, proper accountability and diversity in the media – tackling the above problems. I’m not saying IMPRESS is flawless – I’ve raised concerns and criticisms with them myself – but I believe they are a much needed step forward.

It seems to me that references to ‘blackmailing’ and ‘draconian sanctions’ are misplaced and inaccurate. One could frame the ‘regulation’ of IPSO and the [non]enforcement of the Editors Code of Conduct – to the great detriment of individuals, disadvantaged groups and society as a whole – in a far worse light.

…I believe there is a strong case for a properly regulated media, in line with the Leveson Report and recommendations thereof. Most democratic nations have some form of enforceable code of conduct for the press, which helps uphold accuracy and deters the inappropriate promotion of powerful private interests (as has become the modus operandi of the UK’s media). It is not a question of organisations being forced to comply, but of them not breaking a code of conduct that exists to protect (not undermine) media freedom and its public interest connotations.

It is about re-asserting good journalism values  – taking media back as a tool for information, education and enlightenment. Those principles originate from the Renaissance Printing Press that resulted in a new age of progress, something that (arguably) has never been emulated since. Like all tools, without some kind of oversight or regulatory framework, such a mechanism of good can be used for less laudable purposes. To any informed and impartial mind, a glance through the UK’s tabloids (and many of the purportedly better publications) is proof of that. I could quote a few examples but this email would soon end up becoming the length of a book.

Unfurnished

Award-winning reporter Tristin Hopper says The National Post geo-blocked his article about UK celebrity injunction after being contacted by internationally renowned law firm Fasken Martineau

Last month, I blogged about efforts by David Furnishhusband of pop singer Elton Johnto censor journalists and Internet users from reporting or discussing his alleged extra-marital affair with another married couple.

Furnish hired at least two London law firms to enforce a high court injunction he obtained in January preventing newspapers in England and Wales from reporting the story.¹

But efforts to squash the story didn’t end there.

The story as reported by the Daily Mail earlier this year

In April, UK-based anti-piracy company Web Sheriff filed 12 copyright complaints with Google requesting it remove a total of 447 URLs linking to articles about the scandal.

Among the websites flagged for removal was Toronto-based publication The National Post, whose April 11, 2016 article, “Why the English media could go to jail for reporting on the olive oil trysts of Elton John’s husband” by WMA award-winning reporter Tristin Hopper, did not skimp on the grisly details of Furnish’s alleged affair.

tristin-hopper-the-national-post-april-11-2016

Via a US proxy, the National Post’s April 11, 2016 article

Although Google didn’t enforce Web Sheriff’s complaint, Hopper’s article was later geo-blocked from being viewed in the UK.

When I asked Hopper about Web Sheriff, he said the Post geo-blocked his article after it was contacted by Fasken Martineau, an internationally renowned Canadian business law and mitigation firm with offices in London and Toronto.

“Web Sheriff did not contact us, but we did hear from a lawyer hired by Mr. Furnish,” said Hopper, referring to the Canadian firm.

He added: “It might be Furnish or Elton John’s regular Canadian lawyer. At a certain level of fame, I imagine you’ve got a lawyer on speed dial for every major country, whether it be for copyright issues or signing contracts or the like.”

National Post reporter Tristin Hopper

About the Post’s decision to geo-block his article in the UK, Hopper said: “[T]he legality is murky, but I do believe it was done on the belief that we become subject to UK law once we enter UK web space.”

Fasken Martineau did not respond to multiple requests for comment.


¹I live in Northern Ireland, therefore not bound by the injunction in England and Wales.

See also: “The Bitch is Back,” my September 12, 2016 article about Furnish’s efforts to censor online news stories about his alleged affair.

The Bitch is Back

Carter-Ruck Lawyers passes the baton to Schillings partners in Elton John three-way tabloid scandal, but where does that leave Internet users threatened with legal action?

The juiciest celebrity news story of 2016 went unreported in the UK thanks to strong-arm legal tactics by David Furnish, husband of pop singer Elton John.

As you didn’t read in the newspapers, Furnish was allegedly given permission from his famous hubby to participate in a three-way sexscapade with British businessman Daniel Laurence and his husband Pieter Van den Bergh in a paddling pool of olive oil.

The story as reported by the National Enquirer in April (source)

When Laurence and Van den Bergh decided to go public with the story, Furnish took out an injunctiondubbed the “cheater’s charter”preventing papers in England and Wales from revealing the names of those involved.

But efforts to squash the story didn’t end there.

Earlier this year, non-UK Twitter users began tweeting e-mails they received from Twitter’s legal department demanding that they delete tweets outing John and Furnish as the celebrity couple first identified in court documents as “YMA” and “PJS.”

neil-saunders-twitter-legalsource

As an experiment, I set up a pseudonymous Twitter profile and tweeted about the story.¹

YMA PJS Tweet

Sure enough, within a few days I received the following e-mail.

Twitter Legal Notice

Twitter didn’t respond to multiple requests for information about the complainant and the nature of their complaint, so I took my enquiry to Carter-Ruck Lawyers, a British law firm known for using aggressive legal tactics to squash negative news stories about its celebrity clientele.

According to court documents, Carter-Ruck represented Furnish when the National Enquirer broke the story in AprilHowever, when I asked Carter-Ruck’s Managing Partner Nigel Tait about his firm’s legal shenanigans, he forwarded my questions to defamation lawyer Jenny Afia of Schillings partners, another British firm specialising in reputation and privacy.

Afia declined to comment on whether Schillings represents Furnish, or if it intends to pursue offending Twitter users.

— Don’t shoot me I’m only the messenger

In April, UK-based anti-piracy company Web Sheriff filed 12 copyright complaints with Google requesting it remove a total of 447 URLs linking to articles about the scandal.

web-sheriff-requestssource

Among the websites flagged for removal was TomWinnifrith.com, whose namesakea prominent British entrepreneur and bloggerouted the couple in April.

Although Google ultimately didn’t enforce the request, Winnifrith said his web hosting provider took down his website following a legal threat from Web Sheriff.

Investment columnist Tom Winnifrith (source)

“WS [Web Sheriff] contacted our hosting company and bullied it into taking our site down and only putting it back up if we pulled the article,” said Winnifrith. “That hoster cravenly did this even though WS had no power to threaten.”

He continued: “I asked WS on whose authority it was demanding we pull content since that authority was actually vested with the UK Courts not a US law firm. I asked if it was acting for Mr. John. It refused to reply.”

When I asked Web Sheriff similar questions, I received no reply.

Self-proclaimed “Web Sheriff” John Giacobbi (source)

It isn’t the only time an article about the scandal was pulled following legal threats.

In May, an article by Irish political activist and blogger Paddy J. Manning was pulled from MercatorNet, an Australian opinion-based news website.²

According to Manning, MercatorNet was forced to take down the article after the website’s web hosting provider was threatened with legal action.

Irish electoral candidate Paddy J. Manning (source)

“MercatorNet warned me that the website was run on ‘the smell of an oily rag’ so that if they were sued in Australian courts they would capitulate,” said Manning. “They received several warnings but no effective legal correspondence outside of threatening e-mails.”

He continued: “It was their hosting company who were threatened successfully with a court action against their mirror/backup in Florida. No legal action was taken against the host; the threat was enough.

“This was a perfect lesson in the brittleness of the web, how weak some constituent parts are and how quickly they snap.”

— Redressing an unfurnished press

Thanks to the Internet, unflattering details about celebrities’ personal lives are accessible to anyone who wants to know. Ironically, there appears to be little public interest in Furnish’s affair, as demonstrated by the scanty coverage it initially received in the US.

Per the Streisand Effect, efforts to suppress the story only helped it along; according to a recent YouGov poll, one in four Brits already know the identity of YMA and PJS.

daily-mail-elton-john-david-furnish-perfect-marriageA recent edition of the Daily Mail (source)

It’s perhaps an indication of the futility of Furnish’s efforts that, since April, Google has removed just two of the 447 offending URLs flagged by Web Sheriff.

However, the residual chill from the injunction can be felt as far as the US and Canada. The National Enquirer and the National Postboth of which were flagged by Web Sheriffare just two publications whose articles about the scandal are unavailable in the UK.

I’ll ask the Enquirer, the Post, and others about their articles and blog the results.

Stay tuned.


¹I live in Northern Ireland, therefore not bound by the injunction in England and Wales.

²Manning’s original blog post about the scandal was also geo-blocked by Google Blogger following legal threats. However, he described this form of censorship as “patchy,” as the post could sometimes be viewed in one US state, but not in another. His tweets about the scandal were also geo-blocked by Twitter.