Press regulations

The defendant Press Recognition Panel (the PRP) had not erred in its decision to grant recognition to the interested party, which regulated number of small or smaller publishers. The Divisional Court, in dismissing the claimant News Media Association’s application for judicial review, held that the PRP had not misinterpreted or misapplied the Royal Charter on Self-Regulation of the Press 2013, in particular, with respect to IMPRESS’s de minimus support, third-party funding, independence and impartiality.

Background

The claimant (the NMA) represented United Kingdom news media. The defendant Press Recognition Panel (the PRP), established by the Royal Charter on Self-Regulation of the Press 2013 (the Charter), which followed the Leveson Report, recommending the establishment of an independent self-regulatory regime (Leveson), determined applications from regulators for recognition.

The NMA sought judicial review of the PRP’s decision to grant recognition to the interested party (IMPRESS), which regulated a number of small or smaller publishers. It contended that the PRP had misinterpreted and misapplied the Charter. NMA sought to quash the PRP’s decision and a declaration that IMPRESS failed to meet the Charter’s recognition criteria set out in Schedule 3.

Application dismissed.

Issues and decisions

(1) Whether the Charter had contemplated recognition of a body with de minimus support.  

Paragraph 1 of Schedule 2 to the Charter entitled and required the PRP to grant recognition to a ‘regulator’, defined in para 1(a) of Schedule 4 to the Charter as an independent body formed by, or on behalf of, relevant publishers for the purpose of conducting regulatory activities in relation to their publications. IMPRESS plainly met that qualification, as formed on behalf of publishers for the purpose of regulating them. Nothing in the language of the defined term, the Charter’s preamble or criterion 1 of Schedule 3 imposed any minimum size of publishers. There was simply no size requirement in the Charter biting on a regulator. Nor did Leveson extend support to the NMA’s argument (see [26]-[28] of the judgment).

(2) Whether IMPRESS failed to satisfy criterion 6 of Schedule 3, since its funding was derived overwhelmingly from third-party sources.

The Charter’s plain language showed that funding by the members of a regulator was not required, only agreement as to funding from that section of the industry which agreed to be regulated by it. Giving effect to that plain language was not contrary to Leveson, which addressed a dichotomy between public funding and private funding, but not between membership funding and third party private funding, the assumption being that, if the board of a regulator and its members were content that third parties put up the money, that did not constitute a problem. Alternatively, even if the Charter could be construed as requiring member finding, albeit not saying so, Leveson envisaged non-member funding at least for start-up costs (see [45]-[47] of the judgment).  

Nothing in its funding diminished IMPRESS’s credibility or effectiveness by comparison with the posited alternative of funding by members. Rather, the opposite was arguable (see [48] of the judgment).

(3) Whether criterion 1 of Schedule 3 required a body recognised to be independent and the additional criterion 6 of Schedule 3 appearance of independence was not achieved, since IMPRESS was dependent on funding from a third party.

There had been no suggestion that the PRP had applied the wrong approach. The ground of challenge merely suggested that the directors of IMPRESS would subconsciously have had in the back of their minds a desire to please the ultimate funder so as to secure continuity of funding or so as to avoid what would be a breach of the contractual and trustee duties. That came nowhere near meeting the applicable test, where the fair-minded independent observer posited the objective test for bias. The PRP had scrupulously considered the robustness of the structures and had satisfied itself that they had not permitted the funder to exert influence (see [54], [56] of the judgment).

Porter v Magill, Weeks v Magill [2002] 1 All ER 465 applied.

(4) Whether the IMPRESS board would be seen as lacking impartiality because of the views and connections of some members.

The PRP’s function was not to appoint, or approve appointment of, members of the board. That was for the appointment panel. Criteria 5(f) of Schedule 3 did no more than require the PRP to be satisfied that an applicant had an appointment panel capable of fulfilling the function set out, namely, appointing board members who, in its view, met the impartiality criterion. Whilst no doubt an egregiously inappropriate board appointment or proposed appointment might leave the PRP unsatisfied about the existence of a qualifying appointment panel, refusal of recognition would not be justified unless that panel was thought incapable of fulfilling its proper functions. Therefore, the test was whether it was irrational for the PRP to find that any competent appointment panel might rationally conclude that a board member could act without actual or apparent bias (see [64] of the judgment).

With respect to one board member, the NMA’s argument was hopeless on the facts. The PRP had dealt with the issue properly. It had been satisfied that IMPRESS’s appointment panel had satisfied itself of the board’s ability to act fairly and impartially. The NMA did not take issue with that conclusion, rather, upon analysis, its arguments imported an extra requirement that the PRP had been required to form its own view. The hopelessness of that was plain when it was understood that criterion 5(f) of Schedule 3, alone within criterion 5 of Schedule 3, operated in the view of the appointment panel of the regulator. It did not operate in the view of the PRP. Applying criterion 23 of Schedule 3, the PRP had found mechanisms in place had dealt with any risk of perceived bias by individual board members. That analysis was unimpugnable. As to the other directors, there was even less of a factual basis for an irrationality challenge (see [65]-[68] of the judgment).

(5) Whether the PRP had erred in law in having decided that, in context, IMPRESS’s decision to adopt the Editors’ Code of Practice until it had identified its own fulfilled the requirements in the criteria, since it was insufficient for an applicant to draw attention to a code adopted by a third party, such that the PRP could not assess whether IMPRESS had satisfied the criteria of Schedule 3.

As the preamble to the Charter suggested, there was no requirement to adopt the Editors’ Code save as an initial code. That was what IMPRESS had done: the members had signed up to it, and it had been and remained in force for them. That IMPRESS had said that it would consult on and replace it with a new code was what the legislative regime envisaged. The PRP would review the new code; if that new code was acceptable, the PRP needed to do nothing. If it was not acceptable, the PRP could put in place an ad hoc recognition review, as Schedule 2 contemplated. However, as a reading of criterion 7 and of Leveson made plain, it was the regulator, not the PRP, which determined the contents of the code (see [75] of the judgment).

(6) Whether IMPRESS had been required to have a serving editor on its code committee and had failed to do so.

The requirement for which the NMA argued was simply not found within criterion 7 of Schedule 3: ‘may’ meant may. The views of serving editors might achieve an important role through the consultation process. In any event and on any analysis, the serving editor of a news publication, not a member of IMPRESS, qualified as a serving editor. Paragraph 2(e) of Sceduleh 4 defined an editor as including any person who acted in an editorial capacity in relation to the publication. Nothing in the Charter required the editor’s publication to be by a relevant publisher or to be a member of IMPRESS (see [84] of the judgment).

Lord Pannick QC and Iain Steele (instructed by Reynolds Porter Chamberlain LLP) for the NMA.

Ben Jaffey QC (instructed by Press Recognition Panel) for the PRP.

Tom Hickman (instructed by Bindmans LLP) for IMPRESS.

Karina Weller - Solicitor (NSW) (non-practising).