Jonathan Ames talks to Fleet Street GCs about the fallout from Leveson and what it means for in-house workloads

First came the sordid details of Britain's best-selling newspaper hacking the phone of a murdered schoolgirl. Then came the inquiry and a cavalcade of top-tier celebrities mixed with a collection of the wannabes and the washed-up. That was followed by more gut-wrenching tales of press mistreatment of ordinary people, ranging from former schoolteachers to the families of killed and wounded soldiers.

When the curtain finally came down on the lurid evidence, out came the report. But that only fired the starting pistol on political wrangling and professional manoeuvring – all of which reached a dramatic climax only last month.

That is the brief history of the Leveson Inquiry and its origins – and whatever one thinks of the morality of modern journalism, it is Fleet Street's in-house lawyers who will have to pick up the pieces and try to make sense of the fallout. So what exactly is that fallout, and how are they handling it?

Storm in a tea cup

Post-report, political horse-trading peaked when the Government amended two totally unrelated pieces of legislation moving through Parliament – the Enterprise and Regulatory Reform Bill and the Courts and Crime Bill – to take in provisions creating a royal charter that will grant a Leveson-style imprimatur to any complaints-handling body (or bodies) set up by the press themselves.

Or at least that is what appears to have happened. For while the dust had almost settled following the inquiry, as newspaper executives and their lawyers were understood to be on the verge of agreeing their own proposals, a veritable dust storm was kicked up by the Prime Minister when he pulled the plug on initial cross-party negotiations and forced a dash to an agreement.

What appears to be the result? Clarity is in short supply, but a summary looks something like this: the creation of a body to verify any industry-organised regulators. If those regulators want the Leveson seal of approval, they will have to tick boxes as set out in the royal charter. This will include allowing new regulators to 'direct the nature extent and placement of corrections and apologies'.

Murky uncertainty also exists over provisions for exemplary damages and politicians' attempts to create some regulation for websites. And a potential human rights challenge being mulled by some newspapers may yet scupper the whole thing.

The fear factor

A flurry of headlines following the Westminster manoeuvrings has both confused and angered Fleet Street's lawyers.

"It's a complete mess," states Gill Phillips, director of editorial legal services at Guardian News and Media. "On the one hand, Labour says it is statutory underpinning. On the other hand, David Cameron says they haven't crossed the Rubicon and it's not statute.

"These are all word games, depending on who you are trying to appease – Hacked Off [the leading pro-Leveson campaign group] or the press."

On the angry side is Adam Cannon, editorial legal director at Telegraph Media Group, which publishes the Daily and Sunday Telegraph newspapers. For him, the cross-party deal means that "politicians decided that 318 years was long enough to let newspapers and magazines remain beyond its influence, and agreed a set of measures that will involve the state, albeit tangentially, in their governance".

No one should be under any illusion that a lid has been put on legal wrangling over future regulation of the press. In-house legal departments at several national papers are taking advice on whether to play ball with the deal, and there is concern over a range of legal uncertainties in the proposals themselves.

Phillips describes the drafting of clauses inserted into the Courts and Crime Bill as "pretty poor". Newspaper lawyers are concerned that, as it stands, they could give the courts power to review regulator decisions. This, says Phillips, "seems rather alarming and way beyond what Leveson recommended".

Behind that confusion and anger, legal chiefs in Fleet Street are asking just what did the British public get for the more than £6m it spent on 18-months of putting the UK's press under a microscope?

Sure, several lawyers – most notably Robert Jay QC, counsel to the inquiry, and David Sherborne, barrister to the stars – became brief matinee idols. But was the whole circus really worth the price of admission?

And more importantly, will those in-house lawyers – once they have sifted through the implications of legislation covering the charter and provisions for exemplary damages – advise their editors and jobbing journalists any differently than they would have done had the whole dog and pony show never taken place?

Absolutely not is Cannon's response: "I don't envisage advising my editors and reporters any differently in a post-Leveson world. The Telegraph maintains very high journalistic standards and will continue to do so."

Phillips agrees: "It should make no difference, although there may be a need for a paper trail to be created in some cases."

Sense and sensibilities

But that steadfast stance should not suggest wholesale opposition to the Leveson proposals. Cannon describes the report as producing "a number of sensible suggestions", which he would have liked to have seen blended with long-brewing work from Lord Hunt, the current Press Complaints Commission chairman.

According to Cannon, such a system would have created "tough, independent self-regulation" that would strike "the balance between protecting the public and maintaining a free press and will be underpinned by commercial contract". He points out that "all significant news providers" had agreed to join a new system.

Phillips (pictured) also maintains that Fleet Street should not adopt the view that Lucifer himself penned the report. Broadly, her newspaper's perspective is that "most of what Leveson suggested seems sensible".

She quickly tempers that by saying "we don't like the idea in principle of statutory regulation". Although in general terms, she views the creation of a statutorily backed royal charter as being a long way from "crossing the Rubicon" into the territory of Government control of the press.

Nonetheless, fears over the close proximity of the Rubicon remain. "Any solution which believes that statutory-backed regulation is the answer is wrong," says Cannon. "There has been no statutory involvement in this country since 1695 when the Licensing Act was abolished. The role of the press is to scrutinise those in positions of power, and it could not fulfil that role if those it was scrutinising had authority over it – however apparently limited."

Attacking Leveson

Other lawyers in 'The Street' are far less diplomatic about the process of the inquiry and its ultimate results. However, the hyper-critics of Leveson are also less keen on being identified. One paper's head of legal lists a litany of complaints, starting with the embarrassing problem for the judge that his own inquiry team fell victim to the type of sloppy reporting techniques that many claim beset the press.

Relying on an inaccurate Wikipedia entry for a list of founding journalists at The Independent was never going to kick the report off well in the eyes of newspaper general counsel.

More importantly, say newspaper lawyers, Mr Justice Leveson delved into areas that he didn't know enough about and that were not sufficiently considered by the inquiry. For example, comments one head of legal: "He got involved in costs and exemplary damages, and he never asked any of the core participants for evidence on exemplary damages. And yet he's made recommendations relating to them that are ill-thought through and a backwards step."

Newspaper lawyer critics also claim the judge focussed most of his damning report on the press, while effectively letting the police and politicians off the hook. "I don't blame him," says one ruefully. "He's an intelligent man and he realised that he needed to get the politicians on side, so he's hardly going to lay into them."

Perhaps the most interesting legal development emerging from the inquiry is an area that had little air time during the hearings, but is unveiled in the written report: the possible creation of a complaints arbitration system to be run either by a beefed-up new regulatory body or parallel to it.

Whether such a system will emerge under the royal charter is yet to be seen. But as envisaged by Lord Justice Leveson, any new arbitration system would hear claims and give rights in privacy and defamation cases to ordinary citizens so they could achieve swift justice. The quid pro quo for the newspapers, runs the argument, is that the system ultimately will be much cheaper than litigation because it will diminish the role of the courts by providing much faster resolution.

The trick will be in creating an arbitration system that doesn't set loose a deluge of unmeritorious claims from, as one newspaper head of legal puts it, "every single person in the world who has a gripe about whatever and wanting money".

Bad news all round?

Regardless of their qualms over a possible flood of claims washing into any new arbitration system, GCs are quick to point out that a scheme could be bad news for media claimant solicitors' firms.

According to one Fleet Street legal chief: "If an arbitration system is set up, claimant law firms that are suing the newspapers would be dramatically curtailed in the huge fees they are attempting to recover. So a lot of claimant firms could struggle under that system and it would mean quite a realignment of how firms conducted litigation in this area."

Predictably, there is little sympathy in Fleet Street legal departments over potentially difficult times looming for their private practice opposition. "I don't hold a candle for claimant firms and their exorbitant fees," comments Cannon. "If a new system can deliver complainants a quick and fair decision, this has to be a good thing for victims."

While most of the recent wrangling over implementation of the Leveson report has agitated rather than calmed in-house newspaper lawyers, there is palpable relief that a threat has been lifted from the Defamation Bill. At one stage it looked as though this much-desired piece of legislation would be 'hijacked' by those aiming to implement Leveson through legislation.

Those attempts had exasperated Phillips. Three years of work on that bill, she says, could have gone "down the pan because of some political playground game". But now the two-headed Trojan horse of the Enterprise and Regulatory Reform Bill and the Courts and Crime Bill appears to have saved the Defamation Bill, a result that Phillips describes as "the one good thing to have come out of all this".

It is unlikely that media claimant lawyers will be quite so enthusiastic.