Analysis

Wednesday 23 July 2014

Hugh O’Flaherty: Press is taught hard Leveson lesson, so legal sanctions will not be required

Published 03/12/2012|05:00

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Lord Justice Leveson made one very important point which does not seem to have attracted much comment in the British parliamentary debate that followed publication of his report or in the media. It is this: he pointed to the privileged position that journalists enjoy about not disclosing their sources of information.

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Securing this privilege was hard-won. Back in 1973 our Court of Criminal Appeal had held in the Kevin O'Kelly case that "insofar as the administration of justice is concerned, the public has a right to everyman's evidence, except for those persons protected by a constitutional or other established and recognised privilege".

Journalistic privilege was not recognised then. But in 1996 in the case of Goodwin v United Kingdom, a journalist was successful in claiming that a requirement that he disclose his sources was in breach of article 10 of the European Convention on Human Rights. Article 10 guarantees freedom of expression.

The Court of Human Rights at Strasbourg stated: Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected.

By the way, in the Programme for Government there is a pledge to hold a referendum – no less – "to protect the rights of citizens to communicate in confidence with public representatives".

That seems to have been put into cold storage but that journalists have this privilege does put them in a class apart.

But such a privilege is essential for the proper operation of the freedom of the press. All sides agree that freedom of the press is a cornerstone of any democracy. Our Constitution speaks of the press's "rightful liberty of expression".

The US Constitution's first amendment is the strongest of all: "Congress shall make no law abridging the freedom of speech, or of the press."

Lord Justice Leveson was set two tasks. The first was to report on the abuses that certain sections of the press had engaged in and the second was to recommend what reforms there should be.

In a sense, the first part was easy. Beginning with the phone hacking by the now defunct ' News of the World', witness after witness testified to what the judge described as "outrageous" behaviour by some newspapers which had "wreaked havoc with the lives of innocent people".

In many cases these were crimes as well as civil wrongs and, of course, breached the code of conduct which the papers were honour bound to observe.

Finding a solution so that there will be no repeat of these wrongs has proved more difficult. Leveson proposes that a new system of press regulation should be underpinned by statute.

Newspapers should face the likelihood of exemplary damages if sued in court and if they had not submitted to regulation and, further, be liable for the claimant's costs even where the newspaper had won.

The matter of placement of apolo-gies would be overseen and there should be in place a form of arbitra-tion for the speedy and cost-effective disposal of defamation cases.

It has been said that many of these proposals are akin to our Press Council – although the ability to impose a fine of up to £1m for serious breaches of regulation is way beyond anything in our regime.

The judge has described what he proposes as "independent self-regulation", which is somewhat self-contradictory. You can have independent regulation or self- regulation but hardly both at the same time. In any event, the idea of any statutory – which would in effect mean government – underpinning has proved too much for Prime Minister David Cameron.

He said for the state to subject the press to a statutory framework would involve a "crossing of the Rubicon". This was a strange simile to invoke. In anci-ent Rome the law forbade any gen-eral to cross the river Rubicon and enter Italy proper with a standing army. In 49 BC Julius Caesar did just that. It led to civil war.

For parliament to cross the Rubicon suggests that the press is the supreme power in the land – and not parliament. Even press barons would not make so arrogant a claim!

The phrase that the British press is in "the last chance saloon" has been tossed about. However, I believe that the Leveson revelations were so shocking, and so unforgivable, that this time lessons will have been learnt, the Leveson principles will be accepted and implemented and the statutory underpinning will not be required.

And for the Irish media, are there any lessons? I think the idea of furthering the concept of speedy resolution of disputes, whether by arbitration or otherwise, should be looked at seriously.

Hugh O'Flaherty is a former judge of the Supreme Court

Irish Independent

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