No More Last Chances on Press Regulation

Is it now time to end the charade of self-regulation and impose independent regulation on the UK press?

Yes, of course it is. Such a move is long overdue.

Don’t get me wrong, I’m all in favour of press freedom. There can be no question of imposing a regulatory system which censors the output of the press before publication, which is why calls for any new regulator to ‘confront’ sexism in the press are, although well-intentioned, nevertheless for the most part both wrong-headed and unacceptable – although an exception can certainly be made for the distasteful practice of pimping out under-age girls with salacious commentaries on their physical appearance.

Why independent regulation as opposed to the ostensibly beefed-up system of self-regulation that the press clearly favour?

Well, aside from the obvious – the many misdeeds that have come to light as a result of the phone-hacking scandal and the Leveson Inquiry and the persistent abject failure of the existing system of self-regulation, under the Press Complaints Commission, which could, and did, take several months to secure even a simple correction of a basic and unequivocal error of fact, there are two further arguments I can put forward in support of independent regulation.

The first is simply that we have been here, in this position, on several occasions. The press has had more than sixty year to make self-regulation work, during which time there have been three Royal Commissions on press standards, a Home Office department review, chaired by Sir David Calcutt, which resulted in the creation of the current Press Complaints Commission and now the Leveson Inquiry.

The third Royal Commission, back in 1977, recommended that the press should be given ‘one final chance’ to prove that voluntary self-regulation could be effective.

The creation of the Press Complaints Commission  following the Calcutt Committee’s review (1990) gave the press its second ‘last chance’ and ‘a year of grace’ to make self-regulation work, and yet, only three years later, a follow-up review (1993), also chaired by Sir David Calcutt, concluded that the PCC was not an effective regulator and recommended that it should be replaced with a Press Complaints Tribunal that would be backed by statute.

Now, in the wake of the Leveson Inquiry, the press is asking for, if not demanding, that it should be given yet another ‘last chance’ to make voluntary self-regulation work in a manner that, at times, most closely resembles the classic, humorous, definition of chutzpah; the man who, after pleading guilty to murdering his own parents, ask the court to show mercy because he’s now an orphan.

My second reason for suggesting that it’s now time for independent regulation is derived directly from that last observation, this being the sheer dishonesty and mendacity of the manner in most of the press have gone about the business of trying to derail any prospect of independent regulation by actively seeking to poison Leveson’s well using the same scabrous smear tactics and overblown scaremongering that it relies on, at other times, to demonise immigrants and welfare benefits claimants.

Why should we trust the press to regulate its own conduct when it cannot even bring itself to engage openly and honesty in a public debate about the future of press regulation without resorting to, for example, trotting out the Zimbabwean cricketer, Henry Olonga, in an effort to suggest to its readers that limited independent regulation backed by statute will somehow lead inexorably to Mugabe-style political censorship.

As I’ve already argued here, the ‘freedoms’ that the tabloids and mid-market press are most concerned to defend have nothing whatsoever to do with the ‘noble’ cause of holding politicians and the state to account. Rather, its the freedom to operate in a manner that falls somewhere, in character, between that of a pornographer and a rabble-rousing Roman senator that most of the popular press is most concerned to protect, because that’s where the industry’s profits and its real political influence lie. What newspapers fear most here is not that politicians will interfere to prevent inconvenient political stories ever seeing the light of day but that an independent regulator might act, quite reasonably, to:

– choke off the tabloids’ supply of intrusive but inconsequential celebrity tittle-tattle by taking the view that even those whose careers bring then to the attention of the general public still have right to go to the supermarket without newspapers commenting inanely on their appearance and whether or not they spent hours in make-up before nipping out to the shops, and

– insist that factual errors and misleading statements should be be corrected, promptly, openly and transparently so that readers can very clearly see when the press have got it wrong and failed to report the facts accurately and honestly.

That, for me, is the case for independent regulation but why, then, does independent regulation require statutory underpinnings. Why not simply allow the press to set up their own genuinely independent, but still voluntary, regulator.

Three clear reasons come most immediately to mind.

First, the only genuinely effective solution to the ‘Richard Desmond problem’, that of a newspaper proprietor choosing not to engage with a voluntary regulator, lies in statute. Only Parliament can compel newspapers to submit themselves to a regulatory system without their being scope for them to just walk away if regulation becomes too inconvenient. All the hollow talk of newspapers entering into five-year bind contracts with a new voluntary regulator is just that – hollow. A voluntary regulator cannot compel a proprietor to sing such a contract, nor can it prevent one walking away from the system at the end of the contract, just as Desmond out walked on the PCC.

Statutory underpinnings will also be needed to ensure that any future press regulator has the powers necessary to carry out effective investigations in response to serious complaints of press misconduct. That the PCC failed to uncover the phone-hacking scandal, at all, is solely down to its lacking the investigatory powers necessary to compel its members to release information about their activities and, again, it is only through statute that any such compulsion could be effected – if the worst a newspaper has to fear from a regulator when it refuses to play ball with an investigator is the threat of breach of contract then, when there’s a risk of being caught engaging in criminal misconduct – as has happened, of course, in the phone-hacking scandal – newspapers will inevitably prefer to take on the breach of contract, and any fines resulting from it, rather than supply information that might leave them, or their employees, open to prosecution.

My third argument for providing any new regulatory system with clear statutory underpinnings stems from the fact that there are already more than 80 separate statutes in effect that, when enforced, can be used to regulate the conduct and activities of the press, ranges from the Contempt of Court and Defamation Acts to the latest addition to the list of applicable statutes, the new criminal offence stalking, which came into effect yesterday and which could, at least in theory, be used against investigative journalists who are actively engaged in pursuing a story which necessarily involves them placing particular individuals under a degree of surveillance.

What there isn’t, as far I know, in current statute law is any explicit acknowledgement of the fact that there are times when it not only reasonable but necessary for investigative journalists to break the law in order to bring to light a story in which there is clear and overriding public interest. A public interest defence does, notionally exist, in common law but, as we say back in the 1980’s in the case of Clive Ponting, when this the common law defence became an inconvenience, Parliament moved quickly to strike it from the Official Secrets Act and could easily do so again were such a defence to prove similarly inconvenient in its application to other statutes in which it has a vested interest.

Far from being a threat to press freedom, the creation of an independent press regulator within a clear statutory framework provides an opportunity for both the press, the public and Parliamentarian to force the issue of incorporating a clear public interest defence in statute, an issue that Parliament has, to a considerable extent, ducked in bringing forward its new Defamation Bill which contains only a modified version of the existing, but rather onerous, Reynolds Defence. There is an interesting article, by Hugh Tomlinson QC, on the complex issues that have arisen in trying to pin down a clear public interest defence within the context of the new Defamation Bill at INFORRM albeit one which, to my mind, overstates the limitations of the approaches put forward by the Libel Reform Campaign and by Lord Lester by taking the recent McAlpine case as a baseline. In truth, none of these approaches are entirely satisfactory; the ‘strong defences’ proposed by the Libel Reform Campaign and Lord Lester might well be insufficient to prevent an innocent man (or woman) having their reputation unfairly traduced but the Reynold’s Defence, by including advance notification amongst its criteria, too readily enables the genuinely guilty to seek injunctions and put up barriers to publication in order to keep the truth out of the public domain.

One possible route out this problem would be  to afford a genuinely independent regulator a quasi-judicial role as the guardian of the public interest, allowing the press to seek their opinion – confidentially – as to whether or not a particular story is genuinely in the public interest and, on consideration of the methods in which the information included in the story has been obtained and whether the press has made a reasonable effort to establish the truth of what in intends to report, publication could by justified as a matter of public interest. This opinion would not be legally binding on the press but would be given legal standing should a newspaper or journalist subsequently finds itself/themself on the wrong end of litigation, including libel actions and injunctions, or at risk of criminal prosecution affording the press a stronger defence, assuming, of course, that it has been fully honest in its dealings with the regulator when seeking the necessary advice. The regulator’s opinion would not provide an indemnity against civil litigation or criminal prosecution but it would be treated as ‘raising the bar’ in defamation actions, at the pre-trial trial stage, in cases where an injunction is sought and where the Crown Prosecution Service or, in some cases, even the Attorney General, is called upon to consider whether or not a criminal prosecution should be pursued in the public interest and would, of course, be admissible as evidence in any case that did come to trial.

Such an approach would, necessarily, require the regulator to be headed up by someone with a relevant legal background, making it, perhaps, a suitable retirement position for an experienced former member of judiciary, but this would, I think, add to, rather than diminish, the public credibility of new regulator, more so than the appointment of a former journalist, editor or civil servant and far more so than the array of former politicians that have headed up with Press Complaints Commission.

For an industry that is currently putting up the alleged threat of political interference in the work of the press as its bogeyman-in-chief, its is at least interesting, if not remarkable, that three of its five permanent chairpersons have been politicians; Lord Wakeham (1995-2002) and the current incumbent, Lord Hunt, are both former government ministers while Hunt’s predecessor, Baroness Buscombe (2009-2011) is a Conservative member of the House of Lords, who was enobled in 1998 after unsuccessfully seeking election to the House of Commons in 1987 and who has served as front bench spokesperson in the Lords across several portfolios including Trade and Industry, Social Security, Legal Affairs, Cabinet Office Affairs, Home Office and Culture, Media and Sport. For more than half of its 21 year history, the PCC has been chaired by a politician, the exceptions to this ‘rule’ having been it’s first chairman, Lord McGregor of Durris (1991-1994), an academic who also played a key role in setting up the altogether more successful, and credible, Advertising Standards Authority, and Sir Christopher Meyer (2003-2009), a former diplomat and British Ambassador to the United States, although even Meyer spent four years of his tenure in the Foreign Office as press secretary to the-then Foreign Secretary, Sir Geoffrey Howe.

This brings us on to the issue that issue that the  industry is most keen to promote as it chief objection of independent, the alleged threat of political interference in the activities of the press. To be fair this is a question that necessarily has to be taken seriously as even most independently-minded regulator would necessarily be at least notionally accountable to Parliament by virtue of its role being afforded the necessary statutory underpinnings.

The question, therefore, is that how one might best disabuse politicians of any temptation to interfere with the press in order pursue or protect their own private and political interest and the answer, so far as I am concerned, lies in ensuring the maximum possible transparency in any relationship between the regulator and the state, the industry it regulates and the general public.

This drive for transparency must, of course, begin with the legislation which creates the regulator, itself, which cannot contain any delegated ministerial powers or provisions for creating or amending regulations by statutory instrument and certainly no generic Henry VIII. The regulator must be created by primary legislation, an Act of Parliament, under terms set out in primary legislation which can only be amended or altered by primary legislation. There can be no scope, whatsoever, for any amendments to be made to the regulatory regime by either ministerial edict or by sneaking secondary legislation through a half-empty Parliament on a Friday afternoon when no one is really paying much attention to what politicians are getting up to.

Parliament must bring forward the Bill, the whole Bill and nothing but the Bill.

In setting out the core framework for the new regulatory system, in full, there can also be no room left for doubt as to the application of certain pieces of existing legislation to the role and activities of the regulator, including the Human Rights Act, where the correction application of article 8 (privacy) and 10 (freedom of expression) will be a central feature of many of its regulatory activities, and, of course, the Freedom of Information Act. On the latter there is, almost certainly, a case for going beyond the Act’s existing provisions by explicitly disapplying certain existing exemption where these could be used, and abused, by politicians, civil servant and other arms of the state, including the Royal Family and members of the Royal Household, in an effort to lean on the regulator and exert an undue influence over the manner it which carries out its regulatory duties.

The exemptions that most obviously need to be looked at carefully are most obviously those which relate to the formulation of public policy, prejudice of the effective conduct of public affairs, and communications with the Sovereign, heir to the throne and members of the Royal Family or Royal Household acting on behalf of either the Sovereign or their heir – and one might add, for the time being, especially their current heir – exemption that could, quite easily, be deployed as cover for attempts to influence specific regulatory decisions or apply more general pressures on the regulator to favour the position of the state and its many arm and and functionaries over those of the press and the general public. There may be other exemptions that require close consideration but, as a general principle there must a very strong presumption in favour of publication/disclosure unless the release of information would compromise the legitimate work of the press, by disclosing sources or the identity of journalists and other parties actively working on an investigation, reveal the identity of complainants, where confidentiality has been requested, or place information into the public domain that could prejudice any subsequent civil or criminal proceedings.

That leaves us only to tackle a number of practical considerations, the exact form of the regulator, who determines the rules of conduct and how best to fund the work of regulator.

In terms of form, various models, from an ombudsman to a full blown tribunal, have been suggested and, frankly, I’m still open to persuasion but on the whole I think I would prefer to see a hybrid system with an ombudsman or commissioner as the first point of contact and the power to deal, summarily, with straightforward complaints – for example, if a complaint relates solely to question of fact and its patently obvious that newspaper has published factually inaccurate or misleading information then the regulator should be able to issue a newspaper with notice requiring a correction to be made without having to wade through any of delaying tactics and general fannying about that’s been part and parcel of the PCC system. It should not take five months for anyone to get a newspaper to correct a basic error of fact when five days is a much more appropriate time-scale and would ensure that correction are made while the original article remains fresh in the minds of a newspaper’s readers.

For more complex matters, including those in which the accuracy or otherwise of a particular article is subject to genuine dispute, these could dealt with either by an ombudsman/commissioner sitting alone or, if necessary, by a small tribunal, and for the latter, the three member model used by employment tribunals in which their a legally qualified chair, either a barrister or employment judge, and two ‘wingmen’, using one representing a trade union and the other representing employers, could be adapted to serve the purposes of a press regulator, with a journalist/editor and a lay-person acting as the two wingmen.

That is not to suggest, however, that the tribunal should necessarily conduct formal hearings and call witnesses to give evidence. In most cases I would expect that written submissions from the contesting parties should be sufficient to deal with complaints – if nothing else, if a newspaper cannot commit its arguments to paper in defence of something its published then it probably didn’t have enough to justify publishing a story in the first place.

Code of practice?

Well, clearly that should come from industry itself, subject to negotiations with the new regulatory and, at least to begin with, would be based largely on the existing PCC Editors’ Code of Practice give or take one of two amendments to stamp of the use of stealth editing of online copy and the still far too common practice of newspapers failing to openly acknowledge or cross-link corrections on original articles. And, as further hedge against political interference, the Code of Practice should incorporated in statute law by means of a Private Bill, to go with the Public Bill that creates the regulator itself. The advantage of using a private bill for this purpose, rather than a statutory instrument, is that it would make it much more difficult for both Parliament and, indeed the new regulator, to put through amendments to the code of practice on the quiet.

AS for funding, I’m easy as the money;s there for the regulator to do an effective job although, I would be quite partial to system based on a part-refundable levy on sales and advertising revenues consisting of a fixed contribution to the general running costs of the regulator and a variable sum based on the amount of regulatory work a newspaper/publisher creates over the course of a year, excluding obviously vexatious or daft complaints. The appeal there is that it could provide a useful incentive to newspapers to clean up their own acts and deal with complaints promptly and reasonably by linking the amount of money they have to contribute to the costs of regulation to the number of complaints they generate but fail to resolve informally through their own in-house systems.

Currently, the Press Complaints Commission turns over around £2million a year, which is not huge sum of money for an industry that still sells something approaching 9 million newspapers per day, if one counts only the national papers with a weekday daily circulation in excess of 100,000 copies – that’s around 2.8 billion newspapers a year, putting the size of such levy at less than a tenth of a penny per copy, if all one did was apply the levy to sales, assuming that the industry could keep its regulatory costs down at current levels.

Clearly, the industry has an incentive to keep the costs of regulation to a minimum and so a system that rewards good practice and quality journalism while ensuring, if you like, that the polluter pays when mistakes are made is one that I think merits consideration.

Whether the Leveson report will make recommendations that come anywhere close to these suggestions is something we’ll find out on Thursday and where, if anywhere, the government intends to go with that report is still anyone’s guess. Despite at least one newspaper, the Daily Mail, suggesting that Cameron might be inclined to give the press yet another last chance to get self-regulation right, the rather shrill tone of much of the press commentary on Leveson, of late, rather tends to suggest that even they aren’t sure which direction the government will go given that Cameron will have to tread very carefully due to his links with Rebekah Brooks and Andy Coulson.

Whatever the final outcome, the fact remains that independent regulation of the press, even with statutory underpinnings, does not have to be a system which threatens the freedom of the press to do the job which is expected of it in a free and democratic society, that of holding the ‘powers that be’ to account. If the press wishes to be seen as the ‘fourth estate’ then I see reason why, also in the interests of a free and democratic society, we should not make of the law to create a separation between the press and the political classes similar to that which exists between Parliament and our independent judiciary. While it would have been nice if the press could have maintained that separation of its volition, the fact that it has more than 60 years to get its act together only to stumble from one failure to another now suggests that its time to, at least temporarily, take the matter out of its own hands and put in place an independent regulator with the power to ensure that we actually is a free and independent press.

The time for ‘one last chance’ has gone.