Chapter 6
The international perspective

Membership incentives

6.30The challenge of achieving broad buy-in by the media, either to ensure comprehensive voluntary membership of the relevant standards body, or to ensure broad support for the body where membership is compulsory, requires relevant media incentives to be analysed.

6.31 The role of incentives is central to Lara Fielden’s work on standards regulation where she pays close attention to the Irish Press Council model and the procedural advantages for members under Irish defamation law.377  The Defamation Act 2009 (Ireland) contains a defence of fair and reasonable publication where the court considers a number of factors including the publisher’s membership of the Press Council or equivalent body, and adherence to its standards:378

A key provision of the new [Defamation] Act … is that it facilitates and encourages publications, where appropriate, to apologise for errors without a potentially costly admission of legal liability. The recognition of the Press Council and the Press Ombudsman under the Act strengthens the role of the Office of the Press Ombudsman in negotiating satisfactory resolutions to complaints that may involve apologies where these are agreed and appropriate.

Although it is technically possible for publications that are not member publications of the Press Council to claim similar privileges, they will have the difficult task, if they are to do so, of convincing a court that their standards and structures of accountability are no less rigorous and professional than those moderated by the Press Council. In these circumstances, membership of the Press Council will be, for all publications that have yet to take this step, a valuable asset.

6.32Fielden also looks more widely at a range of incentives that could operate to support a voluntary model. Her proposed model is described as “incentivised voluntary participation,” a middle way between compulsory and voluntary membership.379  Benefits and privileges could include accreditation in relation to court reporting and other privileged access to information, attractive advertising and search engine associations based on content credibility, recognition of affiliation by the courts in privacy or defamation proceedings, potential tax or charity incentives, and differentiation from non-member services and unregulated content.380

6.33Proposals put forward to the Leveson Inquiry included a variety of legal and commercial incentives, including some of those identified by Fielden:

  • alternative dispute resolution to costly legal proceedings, particularly in defamation, enhanced defences for members, and additional rights and remedies for complainants against non-members such as a statutory right of reply and correction and additional damages awards;381
  • a public interest defence to protect publishing in the public interest even where it might otherwise involve a breach of the law;382
  • a system of journalistic accreditation covering court reporting;383
  • information privileges such as access to confidential official briefings;384
  • VAT tax benefits;385 and
  • commercial incentives such as a “kite-mark” to distinguish regulated content from unregulated content.386

6.34The model developed by Lord Justice Leveson includes some significant incentives including an arbitration service and litigation costs incentives, as outlined above.

6.35A parallel development in the United Kingdom to the Leveson Inquiry has been work on a Defamation Bill in response to mounting concerns that defamation laws are not striking the right balance and are having a chilling effect on freedom of speech that can impede responsible investigative journalism.387 One of the proposed changes to that country's defamation law is the statutory expression of a defence of responsible publication on a matter of public interest.388  In determining whether a publisher acted responsibly, the court could have regard to a number of matters. Adherence to a code of ethics is not specifically listed, but may provie to be a relevant non-statutory factor for the media.
377At [4.2].
378Press Council of Ireland Annual Report (2009) at 2, cited by Fielden in Regulating for Trust in Journalism, above n 348, at 58. See the critique of the Irish model by Martin Moore “Why Leveson Won’t Opt for the Irish Model of Press Regulation – and What the ‘Irish Model’ Actually Means” (International Forum for Responsible Media (Inforrm) blog, 31 October 2012).
379Fielden Regulating the Press, above n 348, at [7.2.2]; Regulating for Trust in Journalism, above n 348, at [4.4].
380Fielden Regulating for Trust in Journalism, above n 348, at 56 – 57.
381See Media Regulation Roundtable, above n 361, at 24 – 26. See also the proposal of the Co-ordinating Committee for Media Reform above n 370, at 8 – 11.
382See Media Standards Trust, above n 360, Part 5.
383Blair Jenkins, Carnegie UK Trust, “Better Journalism in the Digital Age” (2012) (evidence to the Leveson Inquiry, 28 March 2012), at 20; Media Regulation Roundtable, above n 361, at [72]; compare Media Standards Trust, above n 360 at 59 – 60.
384Media Regulation Roundtable, above n 361, at [72].
385Publications in the United Kingdom that contain a substantial amount of news are zero-rated for value-added tax (VAT): for an overview see Media Standards Trust, above n 360 at 50–54. However there are concerns that tying this advantage to membership of a regulatory body may not be permissible under European law: see Media Regulation Roundtable, above n 361, at [73]; Lord Hunt of Wirral, submission to the Leveson Inquiry (8 June 2012) at [51]
386Media Regulation Roundtable, above n 361, at [72].
387House of Lords and House of Commons Joint Committee Draft Defamation Bill (First Report, 2011). See also Patrick Vollmer “Defamation Bill (HL Bill 41 of 2012-13)” (House of Lords Library Note, 4 October 2012). 
388Defamation Bill (HL Bill 41) cl 4. The common law defence established in Reynolds v Times Newspapers [1999] UKHL 45 would be abolished.