Press Regulation and the impending death of the PCC

If you’re looking for a good argument for greater regulation of the British press then perhaps the best one around at the moment is the unedifying sight of Britain’s national newspapers collectively shitting themselves at the mere thought that someone, somewhere, might actually come up with a regulatory system that actually holds them to account for their misdeeds.

Let’s be honest here. So far, the sum total of the political debate surrounding changes to the regulatory system under which the newspapers and other print media titles operates has run about as far as David Cameron, Ed Miliband and Cameron’s Mini-me, Nick Clegg, all getting around to stating the bleeding obvious – The Press Complaints Commission is an entirely ineffective piece of shit. A fig-leaf devised by the press to create a false impression of ‘self-regulation’ while doing as little as humanly possible to interfere with the business model of the shit-flinging monkeys that infest the middle and lower reaches of the news market.

Self-regulation can be effective – just ask doctors, solicitors and barristers – just as long as what’s being regulated is an essentially honest profession that genuinely gives a toss about maintaining a decent public reputation. On the whole, the regulatory models operated by the General Medical Council, Law Society and the Bar Council work pretty well, and they work because these professions care about their public reputation, because they carry out their regulatory duties in a reasonably open and transparent fashion and because they have some real teeth with which to enforce their rules and regulations. Statutory regulation, as these organisations clearly demonstrate, does not have to mean direct regulation by the state, nor even regulation by a state-funded Quango working to rules set out in statute. What it can – and does – mean, in practice, is self-regulation backed up by devolved statutory powers, which are necessarily limited in scope but which carry enough legal force to make any sanctions handed down by these organisations both a useful deterrent and an effective response where misconduct is uncovered.

The print media’s dirty little secret in all this is that the PCC could easily have worked, and worked pretty well, were it not for the fact that press has consistently resisted any suggestion that it should be given even the most basic powers to compel a newspaper to publish a timely correction/retraction after publishing a blatant falsehood. A system which cannot obtain anything so basic as an openly and transparent correction of a material error of fact is failure from start to finish and yet that is precisely the system that has been in place for the last 20 years.

I’m not going to bother with addressing any of the scaremongering claims which seek to promote the view that press regulation is, or will become, synonymous with government censorship of the press for the simple reason that it doesn’t have to be that way. There may well be some MPs who would like to go down that particular road as a matter of naked (and dishonest) self-interest; and any moves in that direction should be resisted at all costs. But this is by no means an inevitable consequence of putting in place a new regulatory system; indeed, the best defence against things moving in such an undesirable direction is for the public to be fully and openly engaged in the debate on how we should best go about tackling the worst excesses of the press while preserving the positive role it has to play in public life.

Thus far, it is only really the Guardian that has bothered to raise any substantive issues for this important debate, not least in this article by Jeff Jarvis, a professor of journalism at the City University of New York, which – once you skip the scaremongering headline – poses a number of valuable questions which merit careful consideration:

Let me begin by posing four questions.

First, what activities are to be regulated? Activities that are already criminal, like News Corp’s, should be prosecuted as crimes. So does speech itself become the target? In the United States, we grapple with this question in the one exception to our First Amendment, which is about to be tested in the supreme court. That loophole to the bill of rights gives the federal communications commission authority to regulate mere words on TV and radio, and levy fines. I have argued in the pages of the Guardian that “bullshit” is political speech, but we are forbidden to say it on our air – even about this regulation itself – under threat of a regulator’s chill and penalty. What we need today is more speech, not less.

Jarvis’s commentary raises a very important consideration. When we talk about a system of press ‘regulation’ we are not – and should not – be talking in terms of a one-size-fits-all system operating under the aegis of a single all-powerful regulatory body.

The ‘regulation’, or rather prosecution, of phonehacking and any other lapses into illegality are a matter for the criminal justice system. allowing for that fact that there are some instances in which unlawful behaviour by journalists may be justified in the public interest. The exposure of official corruption may, for example, entail the breaking of the Official Secrets Act or the use of covert surveillance methods which might otherwise be regarded as a prosecutable offence. In such case, pursuit of the public interest may well dictate that we turn a blind eye to a degree of criminality if this results in a greater good.

Issues such as privacy, confidentiality and libel are, and should remain, matters to be dealt with under civil law. What is needed here are reforms, some of which are in the pipeline, which serve to ensure that access to the courts can be secured on a fair and equitable basis, allowing ordinary people the means to obtain redress enjoyed by wealthy individual and corporations, while protecting journalists and bloggers alike from vexatious and censorious claims which seek only to deter or suppress legitimate criticism.

In so far as the ethical conduct of individual journalists is concerned, perhaps the key lesson to emerge from the phonehacking scandal is that this needs to be dealt with a an entirely separate matter for that of regulating the newspapers themselves. Journalists, it seems to me, are as much in need of protection from the high-pressure culture which exists in certain sectors of the media, and from certain editors, as the public is from unethical journalistic misconduct – and the best vehicle for this would be a strong and independent professional association, which can support journalists to stand up to the commercial and editorial pressures that, as Simon Jenkins has quite correctly argued, as distorted the ethical values of the profession.

That brings us, finally, to the regulations of newspapers, magazines, periodicals and to the editorial process wherein the focus of any effective regulatory system has to be on ensuring that publishers and editors maintain an honest, open and transparent relationship with their readers.

Perhaps the key principle that any such system has to embody is that newspapers and magazines are entitled to their own opinions but not to their own facts. Newspapers must be free to participate in the democratic process; to offer their readers opinion, analysis and editorial content and to take an explicitly political line on issues of importance. What they should not be permitted to do, without there being an effective means of redress, is lie to or mislead their readers about the material facts as they relate to particular issue – factual errors and distortions should be open to correction and corrections should be made quickly, openly and transparently. The dishonest culture over which the PCC has presided for the last twenty years, in which newspapers have been permitted to bury their mistakes both physically, in the sense of the notorious two line correction on page 28, and temporally, by dragging out the resolution of valid complaints for so long that by the time a correction appears, their readers will more often than not have forgotten the story to which it relates, has to be brought to an end.

Nothing quite so starkly illustrates the degree of intellectual and ethical bankruptcy into which the PCC has fallen than its acceptance of what media bloggers have dubbed the ‘Littlejohn Defence’ wherein a complaint about a manifestly untrue factual claim which appeared in an opinion column by Richard Littlejohn was dismissed by the PCC on the spurious grounds that it couldn’t be taken as misleading because everyone is aware of Littlejohn’s reputation as a bullshitter:

The complainant considered that the article falsely stated that “Afghans climbing off the back of a lorry in Dover” were given precedence in the allocation of council housing.

The Commission considered that the columnist had exaggerated and simplified the example of housing immigrants for the purpose of stressing his assertion that the “system of government exists simply to punish those who do the right thing”. It emphasised that the newspaper should take care when using such rhetorical methods of expression that readers would not be misled into understanding that they reflected statements of fact. In this instance, on balance it considered that readers would be aware that the columnist was not accurately reflecting the government’s policy on the housing of immigrants, but that he was making an amplified statement for rhetorical effect.

No one out here expects or would support regulation before the fact of publication – that is censorship and it is to be avoided. When we talk about press ‘regulation’ what we are, in the main, concerned with is that newspapers accurate present the facts as they relate to a particular issue or story. How they spin those facts, once they are presented is up to them but the facts must be given accurately and honesty if journalism is to mean anything and contribute positively to the democratic process.

Talk to most bloggers, and especially the media bloggers who specialise in challenging and exposing bad journalism, and the’ll quite happily tell you that the kind of regulatory system they’re looking for is one that compels newspapers to correct their errors in an open, timely and honest fashion. Beyond that, and with a view to online journalism, what most of us are looking for from the press is nothing more or less than the same standards we apply to our own blogging; linking to sources, corrections made openly and transparently on the original article in which a mistake was made and, for preference, giving clear reasons for the corrections, etc. Nothing more than good honest behaviour.

If newspapers could live up to our standards, then we wouldn’t need a press regulator of any description – but there’s ample evidence that the can’t/won’t and so we do…

Second, what should a regulator do in the case of violations. Fine the offender into submission? Close the publication? Does that not give your government the same weapon used by dictators elsewhere against journalists? Doesn’t this return the UK to a regime of licensing the press? Remember that he who grants licenses may also not grant them, or revoke them.

For journalists, misconduct should lead to a loss of the professional accreditation offered by their own association – whether or not that needs statutory force, as is the case with doctor, solicitor and other protected professions is yet to be seen. Personally, I’d argue that we start off without taking it to that extreme and see how we go, and if such a system works fairly well without the need for statutory disbarment then we keep it off the table until such time as it becomes apparent that it is needed to enforce ethical standards.

As far as newspapers go, criminality leads to criminal sanctions imposed by the courts and civil misconduct (i.e. libel, invasion of privacy) to civil sanctions and the imposition of damages if warranted. For other misconduct, i.e. misreporting of facts, the best sanction is one that compels newspapers to make a clear, open and honest correction with the same degree of prominence given to the original article which contained the error or, alternatively, a prominent right of reply afforded to the wronged party.

As for ‘licensing’, there we should not go beyond compelling newspapers to sign up to the system which deals and resolves with complaints coupled with a mandatory, but refundable, levy, based on sales and/or advertising revenues, to fund the system. Making any such levy refundable on a pro-rate basis depending on the number of complaints dealt with through the system would, I think, provide the press with an incentive to clean up their own messes before they result in a formal complaint/proceedings.

 Third, who is the proper regulator? Clearly, it is not the industry. The Press Complaints Commission has proven to be nothing more than a diaphanous gown for the devil. But government? Is government the proper body to supervise the press, to set and oversee its standards?

How could it be? The watched become the watchers’ watchers. Certainly government has shown itself to be incompetent and mightily conflicted in this case, as alleged overseers of the crimes at hand end up in high places and the police themselves are reported to be beneficiaries of corruption.

For preference, I’d quite like to see an independent media tribunal operating along similar lines to a small claims court or employment tribunal, and not just for complaints about accuracy. There is, I think, something to said for such an approach in cases of alleged libel and even in cases where its claimed that someone’s privacy has been  unduly invaded, provided that what is sought by way of redress is nothing more than a correction, retraction and/or apology. If, however, compensation or damages is sought by the complainant then that is rightly a matter for the courts to decide.

Finally, who is to be regulated? In other words, who is the press?

That’s the key question. Alan Rusbridger posed it in his forceful soliloquy on this amazing week: is Huffington Post the press? Guido Fawkes? By extension, is any blogging citizen? Any YouTube commentator or Twitter witness-cum-reporter? Yes, we wrangle with this same question in the United States, but in the context of who should receive the rights and protections of the press – namely, shield laws – rather than who should be under the thumb of a government agency.

Well yes, this is the key question, but only in the sense that Rusbridger thinks that its the one that swing bloggers around to arguing against statutory press regulation for fear that it may be imposed on bloggers and journalists alike.

In terms of content, the internet has blurred the line between journalism and blogging, at least at the edges, but in practice there still remain very clear divisions between the two in terms of professional vs amateur, commercial vs non-commercial and private vs public activity. To take his specific examples, HuffPo is now owned by AOL and, in terms of its new British site and content, fall squarely on the press side of the divide. Guido, on the other hand, still operates very much on the blogging side of the line.

It may well be that its difficult to define, in legal terms, precise where the line between journalism and blogging falls, but as an matter of observation, and therefore, material fact, we know perfectly well what a newspaper or magazine is when we see one and, equally, the same is also true of a blog – the lines between the two are not, as yet, anything like as blurred as they would need to be to make such distinctions problematic in practice.

This is not, I’m afraid, quite such a strong argument as Rusbridger would like to think it might be.

As for Jarvis’s own suggestion:

How do we scale fact-checking? My thought is that we should see every news organisation place a box next to all its reports inviting fact-checking: readers flagging dubious assertions, and journalists and readers picking up the challenge to investigate. The Washington Post and the Torrington (Connecticut) Register Citizen have them.

That small addition raises the standards and expectations for journalists’ work and, more importantly, opens the process of journalism to the public, inviting them to act as both watchers and collaborators.

That’s fine in so far as it goes but it would only be of value on newspaper websites – The Daily Mail could put a fact-check box next to the articles in its print edition, but what’s the point when only the people who get to read your fact-checked copy of the paper get to see it – and user generated ‘corrections’ on the website of British newspapers will, in many case,s do little more than spawn the same kind of disputes that we already see in comments on newspaper websites. Corrections made in this manner will, ultimately, carry little weight with the core readership of most newspapers, particular those which trade heavily on the use of distortions and fabrications in to feed their readers only what their readers want to hear. For corrections to have any real impact, they must be made by the newspapers themselves – their impact, and their value as a sanction for wrongdoing, stems entirely from fact that a newspaper has to admit to its readers that it has given them false and/or misleading information.

Without that admission, a crowd-sourced corrections system is, in this country, a waste of time, especially when it comes to the tabloids and mid-market titles, like The Sun, Daily Mirror and, of course, the Daily Mail.

The irony in all this – and its one that the mainstream press are unlikely to call any attention to – is that the kind of press regulation we need in the country is no more than the kind that Press Complaints Commission model could have provided had it been allowed to operate honestly by its paymasters in the mainstream press.

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  • Millennium Dome

    Sorry, but you lost me at “Cameron’s Mini-me, Nick Clegg”; if you’re trying to write a serious piece, and you’re not just interested in looking big and clever to your own clique – and I I normally give you credit for both those things – then don’t give in to the urge to stick in a silly joke at the expense of the Leader of the Liberal Democrats. ‘Cos you know what, it might stop Liberals thinking you have anything to say beyond waving your willy around. And that’s a damn shame, isn’t it.

    I mean it’s not even a good comparison, is it. It’s not like he tries to be Cameron. You’d be wrong to call him a suck up or a sell out, too, but at least I could see why a partisan leftie might think those things, but Clegg just isn’t a Cameron mark 2. If anything, it’s (Liberal Conservative, Hug-a-Hoodie) Cameron who’s Clegg-lite !

    Oh what’s the use.

  • @google-d4fa978be6e66f0af7fec8e32d670b6f:disqus : How is it partisan to mention all three main parties? Sure he took a jab at Nick Clegg, but there’s plenty of people who are Lib Dem supporters who would do the same (myself included). Also it’s a shame you stopped reading, because the rest of the article has nothing to do with partisan politics and everything to do with flaws in press regulation, and gives a good overview of the issues as well as some interesting ideas for how they could be improved upon.

    You’re on a blog reading an opinion piece, there is going to be some degree of the author’s views coming through in it. If the worst you can see in this is the little jab at Clegg then I’d say he’s done a pretty damn good job of discussing a difficult issue

  • @google-d4fa978be6e66f0af7fec8e32d670b6f:disqus : How is it partisan to mention all three main parties? Sure he took a jab at Nick Clegg, but there’s plenty of people who are Lib Dem supporters who would do the same (myself included). Also it’s a shame you stopped reading, because the rest of the article has nothing to do with partisan politics and everything to do with flaws in press regulation, and gives a good overview of the issues as well as some interesting ideas for how they could be improved upon.

    You’re on a blog reading an opinion piece, there is going to be some degree of the author’s views coming through in it. If the worst you can see in this is the little jab at Clegg then I’d say he’s done a pretty damn good job of discussing a difficult issue

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