Media Bill

Lord Black of Brentwood Excerpts

2nd reading
Wednesday 28th February 2024 Lords Chamber

[Lord Black of Brentwood (Con)]

My Lords, it is a pleasure to follow the right reverend Prelate even if—he will forgive me—I did not agree with every word he said. I declare my interests as deputy chairman of the Telegraph Media Group and director of the Regulatory Funding Company, and note my other interests set out in the register.

In the 14 years that I have been in this House, I have never known a period during which we have had such a rollercoaster of legislation impacting on the media. It is like the fabled number 11 bus: you wait for ever, then four Bills come along all at once. Indeed, there are arguably five Bills if the Private Member’s Bill in another place on SLAPPs is included. Each Bill has been incredibly important and this last one, which we embark on today, is no exception. I strongly support it. It has been a long time coming—two decades—and I hope that we can help it on its way to the statute book speedily and intact. The pace of change in the media landscape is ferocious and history will judge us harshly if we delay in any way these vital changes; they are needed now.

Like other legislation that we have considered, particularly the Online Safety Act and the digital markets Bill, this Bill has already undergone extensive and detailed scrutiny, as well as widespread consultation across the industry. It comes to us, perhaps unlike some other legislation, in pretty good shape. While scrutiny is important, like my noble friend Lady Stowell, I do not believe there is any case for fundamental change to its shape or terms.

One thing we must ensure is that the Bill is future-proofed. As we have heard, the Communications Act 2003 has sat on the statute book for over 20 years, without any mention of the internet in it. That is perhaps one reason why media markets are now so fundamentally flawed as a result of the growth of the giant tech platforms, to the detriment of consumers and content providers. To make sure that does not happen again, we must ensure that there is a regular review of the Bill’s terms and impact, particularly in regard to PSB content.

PSB content is a vital component of UK media, as the noble Lord, Lord Birt, said, and we have seen its power recently in exceptional drama from ITV. But the future of PSB is at serious risk because in the distorted global media market we have, it is the unaccountable platforms which increasingly determine what UK audiences see. Without action, PSB content could disappear from view on global online platforms and that would be unconscionable. We must protect it at all costs and the Bill is a vital step. We should make sure that we do nothing in this legislation which adds to the regulatory burdens and costs on PSBs if we want them to thrive—a point that the noble Lord, Lord Bassam, made very effectively.

Ofcom’s role is central to that. While Parliament will set out the framework, it will be the regulators, as with the Online Safety Act and the digital markets Bill, which have to do the heavy lifting, and they will have a great deal of discretion. During the passage of this legislation, we should send a strong signal to Ofcom —it is very good to see my noble friend Lord Grade in his seat—and we expect it robustly to implement its terms, particularly in regard to prominence and dispute resolution, and to do so without delay. We must hold it to account for that. The recent introduction by Amazon of global standard terms requiring all content providers—including PSBs—to provide 30% of their advertising revenues shows how important this is.

On the subject of Ofcom, one issue that concerns me is the potential for the Bill to create a new form of complaint tourism industry, with people from outside the UK able to complain under both the standards code and the privacy and fairness code. That has serious implications for the breadth of content available to UK audiences. It will also be a significant burden on Ofcom, which is already facing the huge extra responsibilities of the Online Safety Act. I believe that complaints should be accepted only from UK residents or, at the very least, that there must be a mechanism to assess to what extent the codes are being used inappropriately for content tourism, with adjustments to the complaints regime made accordingly. My noble friend Lord Grade already has enough on, and we do not want to add too much to his burden.

The other area of real importance in the Bill is the future of radio, which plays a huge part in the lives of so many UK households. I strongly support the measures in Part 6 to ensure that audiences can access their favourite radio stations on voice-activated devices when they ask for them, but again, we need to make sure that the legislation is future-proofed so that our good intentions are not outpaced by the speed of market change. There is a strong case for broadening the scope of the Bill to include online-only radio content provided by Ofcom-licensed stations. For example, the award-winning Virgin Radio Pride summer pop-up, which provides a dedicated platform to celebrate the LGBT+ community, as well as discussing important issues impacting on LGBT people, would not be covered by the Bill’s protections. The Bill can also go further, through minor technical amendments, in addressing the imbalance of power between the giant tech platforms and UK radio stations in a number of areas, including access to data, non-financial carriage charges and the insertion of platform advertising before radio stations.

I would like to take up some of the points made by the noble Lord, Lord Lipsey, who, I am afraid, seems to be stuck in a past which has long since vanished, but I have not really got time. There is little that I want to say about the repeal of Section 40 except this: it was one of the most odious and shameful pieces of legislation ever put on to the statute book in this country in the modern democratic age. It sought, for the first time since 1695, to hold a gun to the head of the free, independent press in the UK and say, “Join a state-backed regulator or we will close you down”. That would have had the real-world commercial impact of forcing publishers, particularly regional and local ones, to pay the costs of a libel or privacy action even if they won. It would have punished newspapers and their websites for telling the truth and utterly destroyed investigative journalism. It would have been completely incompatible with our commitments under the ECHR.

The result of all that is that it has severely dented the UK’s once-shining reputation for press freedom. If it had ever been implemented, it would have been the day that liberty died in this country. For all those reasons, it must not be allowed to stand a moment longer on the statute book. The repeal of this abominable legislation is long overdue and all credit is due to the Government.

Media Bill

Lord Black of Brentwood Excerpts

Committee stage
Wednesday 22nd May 2024 Lords Chamber

[Lord Black of Brentwood (Con)]

My Lords, it will not surprise many colleagues to hear that I oppose this group of amendments. I declare my interest as deputy chairman of the Telegraph Media Group and director of a regulatory funding company, and I note my other interests as set out in the register. I have been very grateful to the noble Lord, Lord McNally, for taking the time and trouble to talk these amendments and other issues through with me, and for his ongoing commitment to constructive dialogue, which I welcome. I wish him well and hope that he is better soon.

I will have some specific comments to make about Amendment 87A, but the main reason that I am opposed to everything in the group is that all the amendments derive their terms of authority from the concept of an approved regulator. That concept is something that I, as I have made clear many times in this House, find abhorrent and anathema to any concept of a free society, because, whatever Sir Brian Leveson may now say, the approval derives its authority from the state. I know that there will always be those who resort to sophistry to claim that the method of approval through the Press Recognition Panel is apparently independent of the Government but, in my view, that is plain nonsense. The concept of approval is set out in legislation: the Press Recognition Panel derives its authority from a royal charter, the terms of which are set by the Privy Council, the ultimate expression of state power and authority. It also receives taxpayers’ money, so it is in part funded by the state and therefore in part accountable to it. It is a state body. Regulators that seek approval from it are therefore irrefutably state-approved, and that is repugnant in a free society.

The press can never be free of the state in any form, whether Parliament, Government, Privy Council or a faux-recognition body doing their bidding if it is involved in any way in content regulation. That is why successive post-war Governments of all political colours, dating back from the Attlee Government in response to the first Royal Commission on the Press in 1947, have, for 65 years, up until Leveson, backed self-regulation by the industry. Section 40 and the introduction of the concept of approved regulation sought to change that by introducing the first form of what is, in effect, licensing since 1695. Fortunately, better sense has prevailed since that legislation was rushed through Parliament without scrutiny or consultation. We have looked into the abyss and decided not to fall into it. That is why Section 40 must go in its entirety. Whether it be carrots or sticks, the approval of content regulation of a free press is alien to a free society and the proper functioning of parliamentary democracy.

Amendments 84 and 85, in the name of the noble Baroness, Lady Hollins, seek, perversely, to retain the incentive for publishers to join a state regulator, while repealing the provision that would effectively bankrupt publishers that print the truth. But even this leaves publishers with an insidious choice between shielding themselves from government influence and limited protection from SLAPPs. As the noble Lord, Lord McNally, and I have discussed, it is of course right that Parliament takes an interest in press regulation; no one disputes that. If noble Lords or Members in the other place want to have that debate, let us do so, but this Bill is not the place for it. This is an important Bill, and it is important that it goes through in the wash-up in its entirety, including the Government’s manifesto commitments.

The media world has moved on in every possible way since the Crime and Courts Act 2013. The way in which the press operates and is regulated has fundamentally changed, and its long-term future is probably under greater threat than ever before. We need to get rid of Section 40, lock, stock and barrel, and not keep it lurking in the dark like Gollum in The Lord of the Rings, as these amendments would do.

A whole host of international press freedom organisations, including the authoritative Committee to Protect Journalists, Reporters Without Borders, Global Witness, and English PEN, have pointed out another reason for getting rid of Section 40 now: the signal it sends throughout the world. In a statement released yesterday, they said:

“Repressive regimes will be sent a clear message that the UK stands squarely behind freedom of speech. Freedom of speech with no strings attached. That message is critically important in the uncertain and dangerous world we all now live in … Never again must the UK go down this dangerous road”.


I want to say a particular word about Amendment 87A in the name of the noble Lord, Lord Watson of Wyre Forest. I must admit that I was slightly surprised to see that he has put an amendment down relating to, in effect, a statutory right of reply to inaccuracies, given his own track record. Those he falsely accused of crimes —with stunning inaccuracy, to put it mildly—never had a right of reply.

I do not think any serious proposals in this area have been put forward since the mid-1980s, when our former colleague Lord Soley introduced them in a Private Member’s Bill. There is probably a good reason for that. Since 1990, there have been mechanisms for the redress of inaccuracies through a system of independent self-regulation, operating under a tough code of practice, on top of the laws of defamation. Today, IPSO has a strong record of getting inaccuracies corrected in a timely and prominent manner, along with an apology if appropriate. Furthermore, there already exist carefully delineated circumstances where the law provides for a right of reply—for example, following a defamation case—and data protection law, in addition to the Defamation Act, requires inaccuracy to be redressed. So, there is simply no need for such a measure as that proposed by the noble Lord.

Quite apart from that, the noble Lord’s proposal is wholly impractical. It would have the same effect as Section 40, had it been implemented, in simply allowing individuals to launch spurious and unfounded complaints against newspapers in order to gag them. It would be another version of SLAPPs, but without even having to bother a court to look at the merits of the case. It would be used by the rich and powerful to close down ongoing investigations and muzzle the press, and in doing so would weaken the public’s right to know and undermine investigative journalism. Frankly, this is simply another attempt to find some way to bully the press into a system of state-approved regulation.

It is time to move on from debates that are long past their sell-by date, to recognise the fundamental changes in the media in the last decade, to turn our backs on any attempts to impose state regulation on the media, and to get rid of Section 40 lock, stock and barrel. This Bill is an important piece of legislation for so many organisations and areas of the creative economy, and it is very important that it now goes through.

[Lord Hunt of Wirral (Con)]

My Lords, I strongly support my noble friend, but first I declare my interests as set out in the register. As colleagues will know, I was the independent founding chair of the Independent Press Standards Organisation. I have listened carefully to the speeches that have been made, but I strongly agree with my noble friend that we are really going back over the debates we had a decade ago.

I want to go back to the first principles that my noble friend enunciated. In many ways, free expression is the bedrock of our society, but it is also a privilege—one not enjoyed by many millions of our fellow human beings, and which therefore must be matched by a sense of public duty and responsibility.

We are all familiar with all those egregious cases. As chair, like my noble friend Lord Grade, of the Press Complaints Commission, I found that it was powerless in many cases. I had to have face-to-face meetings with victims to hear for myself their harrowing accounts of their experiences. The PCC was powerless in many cases, particularly where criminal acts had taken place; it was up to the police. One of our sadnesses was that the police seemed so slow to act. Most of the phone hacking cases have now been resolved in the civil courts, but that should not blind us to the fact—I say this to all those who have spoken—that serious criminal acts took place, not just regulatory breaches. So far as regulation is concerned, the key question we have to answer is how to police culture and standards while maintaining independence of thought and deed. It is a very difficult balance.

The rock on which the system is built is the editors’ code, a living document that, as I understand it, is still recognised right across the world as an excellent code. I believe that IPSO has been very effective at holding publishers and publications to account. The noble Baroness, Lady Hollins, said that IPSO had not been effective because there were a relatively low number of adverse adjudications, and those who have mentioned that have given specific examples. However, press behaviour has improved over the last period. The Press Recognition Panel, which has been lobbying us—lobbying me all the time—pretty hard, largely in its own interests, is funded by the taxpayer, as my noble friend pointed out. I am all for trenchant, highly politicised contributions to this important debate, but I wonder whether it is fair to ask the taxpayer to fund them.

--- Later in debate ---

[Lord Foster of Bath (LD)]

My Lords, I begin by saying that, while I disagree with a great deal of what the noble Lord, Lord Black, said, I agree entirely with him in his view that this Bill is not the right place for discussing Section 40. I am enormously grateful for the best wishes for a speedy recovery that have been passed to my noble friend Lord McNally and I know that he is bitterly disappointed that he cannot be here. He would have been proposing a very simple way forward —that Clause 50 should not stand part of the Bill. The implication of that would, of course, have been that Section 40 would have continued to be on the statute book. But he would have gone a stage further and argued that it would be certainly the view of these Benches that it should not only be retained on the statute book but also should have been implemented.

There have been all sorts of debates about and criticisms of the proposal that came from Sir Brian Leveson. We should accept that a great debt needs to be paid to the noble Baroness, Lady Hollins, for the way in which she has forensically gone through many of those criticisms and debunked them. The one criticism that has not been debunked by her is that it is no longer necessary to have protection of the type that was proposed by Leveson because there is not really a problem now with what the press is doing. I think the noble Lord, Lord Watts, put it very clearly: there are still many examples of wrongdoing by the press. We need to be well aware of the implications of removing Section 40. There would be virtually no access to justice for victims of press wrongdoing. Ordinary people who find themselves defamed, have their privacy invaded or their grief intruded on by wealthy and powerful newspapers in search of higher circulation or clickbait will find themselves virtually helpless.

The noble Lord, Lord Hunt, may well be right that the degree of wrongdoing has reduced. That does not alter the fact that it still exists and there needs to be a mechanism to help in particular those who do not have deep pockets to ensure that they can get justice. Therefore, it requires the Government—were they to be continuing—to make very clear what their alternative is to provide the protection for those very people. There may not now be the opportunity, given the announcement about the forthcoming election.

We have heard many alternative solutions put forward in the various amendments before us today. There is not now time to go through all the detail. So, on these Benches, we are very clear that the best way forward now would be for the Government to accept the view of the noble Lord, Lord Black, that this is not the right place for a discussion of Section 40, that Section 40 should remain on the statute book and that a future Government—whichever party is in charge—should have an opportunity to discuss the right way forward to continue to provide the protection that is still going to be needed. I give way.

[Lord Black of Brentwood (Con)]

Can I just make it clear that I did not say that this was not the place to deal with Section 40? I said this was not the place to open a whole debate about self-regulation. I was crystal clear that Section 40 needs to go in its entirety and I hope its repeal will go through with this Bill immediately.

[Lord Foster of Bath (LD)]

I apologise profusely to the noble Lord if I misquoted him. Let me say therefore that it is very firmly my view that this Bill is not the right place for a discussion of Section 40 and all the ramifications.

With those relatively few remarks, I very much hope that the Government will consider that the removal of Section 40 should not form part of this Bill, should not form part of the wash-up discussions and should just be kept as it is and we can debate it at a future date, whether we are on the same side of the Chamber or the opposite side.