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A Regulated Free Press – Compromise or Contradiction?

Even before the phone hacking scandal, the subsequent commissioning of the Leveson Inquiry into ‘the culture, practice and ethics of the press’ and the closure of the News of the World were making headlines,  the press has been in crisis. Facing ever more challenging competition from the internet and 24-hour news media, sales of newspapers have been had been declining  for many years. At the same time, the public has been losing confidence in press motives and standards with, according to surveys for the Committee on Standards in Public Life, tabloid journalists consistently ranked below politicians at the bottom of the table of professions expected to tell the truth.

But this is not a new phenomenon. As long ago as 1931, the Conservative Prime Minister Stanley Baldwin castigated the press barons of his day Lord Beaverbrook and Lord Rothermere, owners of the Daily Express and Daily Mail respectively, exclaiming that ” what the proprietorship of these papers is aiming at is power, and power without responsibility — the prerogative of the harlot through the ages”.

If we are right to worry about press ownership and the political influence of proprietors, about falling standards of accuracy and truthfulness, about intrusion into private lives and about unethical and illegal practices, can the public’s confidence be restored? Is self regulation preferable; if so, is it possible and what would a new model look like? Or is independent and enforceable regulation now inevitable and, if it is, are we effectively abandoning the long-cherished freedom of the press and placing our own rights as citizens at risk?

Lord Hunt, chair of the Press Complaints Commission and Angela Phillips, chair of the Ethics Committee of the Coordinating Committee for Media Reform, debate the issues.

The Rt Hon The Lord Hunt of Wirral MBE

Press Complaints Commission

David Hunt was the MP for Wirral from 1976 to 1997 and a member of the Government from 1979 to 1995, serving in Maragret Thatcher's and John Major's Cabinets as Secretary of State for Wales, Secretary of State for Employment and Chancellor of the Duchy of Lancaster.

He left the Government in 1995 to become Senior Partner of the international commercial law firm, DAC Beachcroft, where he has now been a partner since 1969. He took his seat in the upper House as Lord Hunt of Wirral in 1997.

Lord Hunt became Chair of the Press Complaints Commission in October 2011 and is also International Chairman of The English Speaking Union and a Trustee of the Holocaust Educational Trust.

The Press Complaints Commission, established in 1991, is an independent body which administers the system of self-regulation for the press. It does so primarily by dealing with complaints, framed within the terms of the Editors' Code of Practice, about the editorial content of newspapers and magazines (and their websites) and the conduct of journalists. Its purpose is to serve the public by holding editors to account, striving to protect the rights of individuals while preserving appropriate freedom of expression for the press.

Angela Phillips

Coordinating Committee for Media Reform

Angela Phillips is a senior lecturer at Goldsmiths, University of London, running all the print journalism programmes and the journalism MA.

She is also the chair of the Ethics Committee of the Coordinating Committee for Media Reform and gave evidence to the Leveson Inquiry.

Angela has been a journalist for over thirty years, working for national newspapers, magazines, television and radio. She is the author, with Peter Lee Wright and Tamara Witzchge, of Changing Journalism (Routledge, 2011) and writes widely on journalism and ethics.

She is a member of the Goldsmiths, Leverhulme Media Research Centre.

The Coordinating Committee for Media Reform (CCMR) is an independent coalition of groups and individuals committed to promoting a media system that operates in the public interest and not for predominantly private or shareholder gain.

It has two specific objectives, to co-ordinate the most effective contribution by NGOs, academics and media campaigners to the Leveson Inquiry and the Communications Review and to stimulate research and campaign activities that focus on advocating policies to sustain the public interest and to develop a democratic media system.

Proposition

Self Regulation - Still The Best Safeguard

We are all, I hope, striving to design a new system of self-regulation for newspapers and magazines in the UK that will be demonstrably independent, effective and robust. In October 2011, I started at the PCC as its Chair but with a mandate to lead the "reform and regeneration" process on the basis that I had a blank sheet of paper.

I soon realised that the PCC was not a regulator and had been severely criticised for not exercising powers which it never had. As a result, the existing body had lost the confidence of all three main political parties and also, in my view, of the wider public. I then agreed that I would look at what had failed and what had worked and then propose a new system that would restore confidence.

Lord Justice Leveson made it clear at the outset of his Inquiry that doing nothing was not an option. It was imperative to construct a new regulator "with teeth" having acquired, for example, the power to fine. With the help of existing colleagues at the PCC, I was able to propose a new structure for regulation and unveiled my ideas before senior figures from the newspaper and magazine industry on 15 December 2011. Those broad proposals for a new regulatory architecture received unanimous support. Following further discussion, there was also unanimous agreement amongst the existing Press Complaints Commissioners that the existing body should now move into a transitional phase, in due course transferring its assets, liabilities and staff to a new body.

There has been and will continue to be an ongoing dialogue with Lord Justice Leveson's team throughout the proposed transitional phase. When I gave evidence to Lord Justice Leveson on 30 January 2012, he told me that "I positively encourage the work that you and those who are supporting you have done to try to find a way through". He asked that we should "press on" with developing proposals for a new regulatory structure so that those proposals could be tested. He also said that he would ask me to return later in the Inquiry "to allow into the public domain the further developments that you have agreed or that you are able to pursue in order the better to inform my consideration of the future". In this way, we are proceeding in step and step-by-step with Lord Justice Leveson.

The plan is for the new system to be legally underpinned through enforceable commercial contracts. Each publisher would sign a contract with the regulator which would be enforceable through the civil law. This would bind publications into the system equipping the new regulator with powers of enforcement, effectively compelling cooperation with the regulator by enabling it to sue for any contractual breaches. I have been arguing therefore that the contract should include the following basic commitments:

1. To fund the regulator according to an agreed formula;
2. The publisher undertaking to abide by the Code and relevant laws;
3. To have a system of internal complaints-handling and accepting the jurisdiction of the new body where complaints have not been dealt with satisfactorily;
4. Support for clearly defined compliance and standards mechanisms which could be scrutinised by the regulator; and
5. Accepting proportional financial sanctions via the funding formula should serious or systemic standards breaches be found.

My continuing role as Chairman of the PCC is to ensure that the existing complaints function "fast, free and fair" continues and also to demonstrate how that function deserves to be preserved and taken forward by the new regulator. In this way, a truly independent and effective model of self-regulation can be launched which would rigorously enforce the highest professional standards right across the industry both in print and on-line.

Ultimately, the details of any future regulatory model for the newspaper and magazine industry will be a matter for the Government and Parliament after Lord Justice Leveson has reported, but I do remain optimistic that a consensus can indeed be built. In this way, the industry will be able to move rapidly towards the establishment of the new, independent, self-regulatory system which will merit the full confidence of the public, Parliament and indeed the industry itself.

Proposition

Responsible Regulation - But Not As We Know It

The Leveson Inquiry is the latest in a long line of inquiries set up to curtail a built-in tendency to excess and scandal-mongering in the British press. The cut-throat competition which, on the one hand, ensures a modicum of diversity, on the other ensures that mass-market publications are regularly sucked into vicious competitive battles for audience share.

The best way yet devised to increase audience is by serving up a diet of scandal, so it is inevitable that without adequate controls, journalists will be goaded by the editors (who are goaded by their proprietors) into delivering tittle tattle by any means necessary. Any attempt to reign in the excesses will be met by ritual screams from the popular, mass-market media and dark warnings that we will end up like Zimbabwe where good journalists either leave or languish in jail.

For democrats who really do care about the freedom to pursue corruption in government and in business, it is right to be cautious. There is a genuine reason to fear that any tightening up of our already stiff press laws will end up by hobbling the serious press in their pursuit of public interest. Serious journalism requires protection from legal pressures. But popular journalism requires firmer rules to prevent news organisations from using their power to traduce innocent people.

These differing requirements are not incompatible but they do require a rather more thorough reform of the existing arrangements than that proposed by Lord Hunt for the Press Complaints Commission. Press regulation needs to operate in the public interest. The Hunt proposals are based purely on maintaining the interests of the mass-market news organisations.

The major change he proposes is the introduction of a contract to oblige members of the reformed PCC to follow their own rules for a period of five years. But the same people would sit around the same table, the only change being the terms under which they would take their seats. Nothing in the new arrangements would safeguard real journalism, nor would it safeguard the public. Indeed the compromises required to ensure that all newspapers (however unethical in their coverage) joined the club would weaken not strengthen it.

The Coordinating Committee for Media Reforms proposals would protect both real journalism and the public. At their centre would be a statutory right of reply and a tribunal established to adjudicate on all matters relating to press law from libel and privacy to more minor breaches of the editor's code.

The tribunal decisions would be subject to a clearly drawn public interest defence which would operate as a defence in any cases taken to a higher court, thus offering protection to investigative journalists going after corrupt politicians and business people but not those who hack phones to report on the private lives of celebrities. Where news organisations cannot mount a clear public interest defence they would be subject to fines, compensation and a public apology. For those with deep pockets there would still be access to a higher court with the prospect of higher damages but, where tribunal decisions have gone against them, they are far less likely to take the risk.

In order to have access to the protection of this tribunal for public interest journalism, news organisations would have to join a new organisation, the News Publishing Commission, which would be open to all news publications (off line and on line). In contrast to the PCC, it would be run by a representative committee appointed by relevant civil society organisations, representing ordinary journalists as well as editors and members of the public. It would provide protection to journalists who are under pressure to breach the rules, investigate where there was suspicion of unethical activity and provide conciliation services for those who feel that they have been wrongly treated. The NPC would be a voluntary regulator that no news organisation could afford to ignore.

The future of journalism cannot not lie in the hands of a small group of newspaper owners. We need a new organisation that embraces the internet, protects real journalism from the pressures exerted by power and recognises that freedom of speech belongs not just to proprietors and editors but to everyone.

Response

The most pleasing aspect of Angela's response is that it shows the degree of consensus that has built up since the Leveson Inquiry began. There is a lot of common ground in our two articles.

I could not agree more with her closing sentence that we need a new organisation that embraces the internet, protects real journalism from the pressures exerted by power and recognises that freedom of speech belongs not just to proprietors and editors but to everyone.

The Co-ordinating Committee for Media Reform shares my belief that we must design a new system for self-regulation that will be demonstrably independent, effective and robust.

I also share Angela's view that the new system must safeguard real journalism and safeguard the public. The new regulator must be not only the scourge of bad, irresponsible journalism but also the candid and supportive friend of fearless ethical journalism that characterises the trade at its best and is genuinely in the public interest.

I am pleased too that Angela shares my aversion to any tightening of our œalready stiff press laws. Such a move would upset the delicate balance of freedom and accountability that makes this country what it is.

The British people deserve a press which demonstrates it takes its responsibilities seriously and adheres to professional standards. My passionate desire is to achieve a new system which protects freedom of expression but operates in the public interest and protects the public.

I hope we can build a consensus in favour of a new independent self-regulatory regime.

Response

The PCC appears determined to pre-empt a thorough discussion by establishing a new regulator in advance of the final deliberations of the Leveson inquiry. In doing so it gives every appearance of trying to keep control in the hands of the newspaper proprietors who have demonstrably failed to regulate the press in the past.

When the PCC was established 20 years ago Lord Calcutt warned that œ"if it fails we recommend that a statutory system for handling complaints should be introduced".

The PCC has failed and the CCMR would like to see a statutory right of reply implemented with a mandatory corrections and clarifications page in every publication, on or off line, (linked to a full on-line version). It would also like to see a new body take the place of the PCC, with members representing ordinary working journalists and civil society, a far cry from the membership club of proprietors as imagined by the PCC.

The new body should provide easy access to an arbitration tribunal. However, the tribunal would implement a public interest test in all cases so that it would not only provide fast justice for members of the public but also protection for journalists acting in the public interest.

We believe that by foregrounding the job of protecting freedom of expression rather than commercial interests, all publications engaged with serious journalism would sign up. All complaints and actions against member organisations could then be channelled via a tribunal capable of taking real, visible action in terms of compensation and public apology. Those organisations failing to join up to the new organisation would be deprived of its protection and left to deal directly with the full force of the law.

Conclusion

I hope that Angela will be reassured that neither I nor the PCC have any intention of pre-empting Lord Justice Leveson's deliberations. As I mentioned in my opening piece, I gave evidence to his Inquiry on 30 January and he positively encouraged the work I and others had undertaken. He urged us to "press on" with developing proposals for a new regulatory structure, so that those proposals could then be tested. I will provide further evidence to him in due course and will proceed step-by-step with his Inquiry.

As I have said publicly, Lord Justice Leveson should receive full credit for the considerable amount he has already achieved, lifting many stones and revealing the many unwelcome and sometimes unsavoury truths that had remained concealed for far too long. It is no exaggeration to say that the Inquiry has already changed the media landscape incontrovertibly. He has made clear that doing nothing is not an option; I could not agree with him more.

I am sure that Angela would agree with me that the new regulator should abide by all five of the widely accepted principles of good regulation; namely that it should be accountable, consistent, proportionate, targeted and transparent.

Where I disagree with her is that what is required is a statutory regulator, operating with the full force of law and funded by a statutory levy. In my opinion that would be inimical to freedom of expression. I am against further political or legal incursions into the realm of free expression, given that existing laws on corruption, bribery, defamation, contempt of court and privacy are more than adequate, if enforced. Surely we do not want politicians controlling the media? It would upset the delicate balance of freedom and accountability that makes this country what is.

As I outlined in my original argument the people of the United Kingdom deserve a press which demonstrates that it takes its responsibilities seriously and adheres to professional standards. That is why I have proposed the idea of a dedicated compliance arm of the new regulator which will focus on serious and systemic abuses and which will possess the necessary powers to impose meaningful sanctions.

I genuinely hope that we can help build a consensus in favour of such a new regulatory regime. The new regulator must be tough on ethical lapses and irresponsible journalism, but it should also foster good, robust, fearless journalism that is genuinely in the public interest. Newspapers and magazines have their own role to play with effective internal systems in place, both for promoting awareness of the Code and compliance with it. The establishment of a new, independent, self-regulatory system with teeth will truly merit the full confidence of the public.

Conclusion

There is indeed a broad consensus building which is why the Coordinating Committee for Media Reform is able to bring together people across such a wide spectrum of civil society all of whom are determined that Leveson really will be the turning point for media reform.

Evidence to the Inquiry has made clear the influence that media barons have had over successive Prime Ministers. The CCMR want to see regulation of media ownership so that in future newspapers hold prime ministers to account, rather than bringing them to heel. No one should own so much of the news media that they have more power than the elected representatives of the people. That is why we would like to see the media share (irrespective of platform) limited to 15% for any one owner.

We want also to see a serious attempt to support journalism in the public interest at local and national level. News journalism that is driven entirely by commercial interests leads to cut-throat competition and ethical corner-cutting. It also drives out smaller organisations and destroys diversity. We would like to see the introduction of some form of levy that could be used to support real journalism at local level.

The replacement for the PCC must not be a members club of the biggest media owners. It must be open to all, from the biggest newspaper to the smallest on-line news organisation and it should offer protection for 'real journalism'™ in return for more ethical behaviour across the board. It must be established by statute to ensure that it can take effective action and its governing body should be representative of ordinary journalists and members of civil society.

Membership of this body, the News Publishing Commission, would not be compulsory but it would provide protection to journalists pursuing genuine public interest journalism. The right to use a public interest defence would therefore be contingent on membership of the organisation. Members would be expected to abide by the ethical rules it establishes in order to benefit from its protection. This mix of self-regulation, with statutory backing, would do away with any of the old boys club arm-twisting which must necessarily accompany the kind of contractual arrangement envisaged by Lord Hunt and the PCC.

We would also like to see journalists protected from work that is ethically demeaning by the insertion of a 'conscience clause' in the code of conduct and we want a statutory right of reply established to provide ordinary people with a simple, effective means of setting the record straight when journalists get things wrong.

If Lord Hunt agrees with all this, we really are on the way to a better and more ethical press.