As the Communications Bill limps over the finishing line into legislation, scattering last-minute amendments in its wake, media lawyers must be rubbing their hands in glee.
Despite years of consultations, conferences, greenish papers, a White Paper, a draft bill, a real bill, a joint scrutiny committee and debates in the Lords and Commons, the up-to-the-wire Government compromises of the past ten days seem to have bequeathed a windfall legacy to the lawyers.
No one – not even the chairman and chief executive of Ofcom, who must implement the bill’s provisions – seems quite clear about what the last-minute changes will mean. As I write, there remain several i’s to be dotted and t’s to be crossed in the bill’s final hours. The lobbying has been intense to the end.
At last week’s Radio Festival, Lord Currie, the Ofcom chairman, made clear his disapproval of the last-minute amendment by Lord Puttnam and fellow peers which puts the rights of the citizen ahead of those of the consumer and commercial concerns: “A consequence of the Puttnam amendment taken two weeks ago was to put the citizens above the consumer in two areas of Ofcom’s work.
“That, from Ofcom’s position, is a little difficult because it creates a diverged regulator in a converged world. Right from the beginning, the intention has been to create a regulator that could take a convergent view, that could balance the consumer and citizen where those interests are different.
“The evidence I have is that there could be greater risk of judicial review, which will make some of our decisions a lot more difficult to make. And of course it won’t be the citizens who will take Ofcom to judicial review, it will be the larger players.”
That’s not the only amendment that could end up giving work to the courts. Another, agreed by the Government after pressure from Puttnam, introduces a plurality test for large media takeovers, to e
nsure they are in the public interest. Other changes will affect the way advertising and programme content is regulated, including fines for the BBC of up to &£250,000 if it seriously breaches the codes of practice.
As well as these high-profile issues, several changes which have had little public attention could make work for the lawyers. For example, local authorities and advertising agencies will soon be able to hold broadcast licences – an issue which is already being seized on by conference organisers, who will also reap a windfall from the debates on exactly what the Communications Act means.
As if that wasn’t enough to keep the lawyers busy, matters of press and privacy keep rearing their legal head. This week, lawyers for Catherine Zeta-Jones are back in the High Court to determine the damages the actress should receive from Hello! after it printed unauthorised pictures of her wedding to Michael Douglas. And their legal victory, together with out-of-court settlements in favour of Amanda Holden and Sara Cox, has encouraged other celebrities to call in the lawyers in preference to the Press Complaints Commission.
Some feel the PCC has played into the lawyers’ hands with two rulings it made last week. In one, it cleared the News of the World over its payment of &£10,000 to a convicted criminal for information about an alleged plan to kidnap Victoria Beckham. The payment was strongly criticised by a High Court judge after the kidnap trial collapsed and is now being considered by the Attorney General. Five innocent men spent seven months in prison before the case collapsed because the prosecution could not rely on the conman’s evidence.
At the same meeting, the PCC decided to reprimand The Guardian for paying another convicted criminal for his diary of life in jail with Jeffrey Archer. It has now taken up the issue of another prisoner paid by The Guardian and the paper has said it’s prepared to pull out of the PCC over the issue.
The press code of practice says payments must not be made to convicted criminals unless the published material is in the public interest and payment is required for it to appear. The PCC ruled that the prisoner’s diary – for which the Guardian paid &£720 – was trading on the peer’s notoriety and NOT in the public interest.
In a leading article, the paper argued that freedom of speech applied to prisoners too. It publishes a regular column called Life Inside, by Erwin James (a pseudonym), with the agreement of the prison authorities, and has just advertised for a prison correspondent, with the hope of appointing a recent former prisoner to the job. The PCC has now written to the paper’s editor asking for details of the payments to Mr James. The Guardian says it could not remain part of a body which sought to stop prisoners writing about prison life or deny them their honest rewards.
It’s supported by editors of the other main broadsheets – The Times, The Independent and the Daily Telegraph – which have long made it known they believe the PCC to be too sympathetic to the tabloids over issues of intrusion.
The Government has already rejected plans for a privacy law, or for Ofcom to regulate the press, but anything that weakens the self-regulatory system is likely to be good for the lawyers.
Torin Douglas is media correspondent for BBC News