Press regulation: issues, ethics, options

What is the future of press regulation in the UK? A group of distinguished editors and parliamentarians met last week to discuss this most crucial of questions. David Elstein reports, and offers his own map for change.

Last Tuesday (September 20th), a distinguished group of editors and parliamentarians, invited by Thomson Reuters, debated with Sir Harry Evans the future of press regulation.  The full 75-minute session, including contributions from a 300-strong audience, is available at reuters.co.uk

The absence of any tabloid editors – indeed, the whole event – was sharply criticised by Brian Cathcart on his blog.  But from the discussion there emerged the beginnings of what might be described as a legislative end-game, tying up a range of issues: privacy, libel, state control, self-regulation, sanctions and media power.

Of course, we have at least 18 months of public inquiries, police investigations and possible prosecutions before we will understand the full extent of the corruption and criminality that festered at the heart of tabloid culture.  It is unlikely that the News of the World was the sole offender in wholesale invasions of privacy by the press.  If News International is the group most visibly exposed by its behaviour, we should not assume that “dealing with Murdoch” – by changing media ownership rules, or cutting off all contact between politicians and his executives – is the whole answer to the problem. 

Early on in the debate, Evans asked the 12-strong panel and the audience if they preferred self-regulation to state regulation of the press: unsurprisingly, there was an overwhelmingly positive vote.  As Steve Hewlett, of Radio 4’s Media Show, put it: do we really want state-licensed newspapers and state-licensed journalists?  This was a point echoed by Peta Buscombe, soon to depart as chair of the Press Complaints Commission: “beware what you wish for,” she admonished panellists who were particularly scathing about the PCC.

She indicated that the PCC was already preparing to re-shape its make-up in anticipation of post-Leveson requirements; but this attracted little sympathy from Paul Farrelly MP, from the Commons Media Committee, who claimed that his committee’s proposed reforms for the PCC had been ignored.

Lionel Barber, editor of the Financial Times, attacked News International as the main reason for the collapse in public confidence in the press: he said they had lied to Parliament, lied to the police and lied to the PCC (Buscombe nodded).  But Steve Barnett, of Westminster University, reminded the audience that the Operation Motorman report from the Information Commissioner, on the activities of a single private investigator, had found 305 journalists from 31 different titles, using him to discover private information (News International came a distant third to the Mirror Group and the Mail newspapers).

Nick Davies, leader of The Guardian’s phone-hacking reporting team, had a novel suggestion: an expert panel that journalists could consult about the strength of a public interest defence before seeking out private information – more on this later.

John Micklethwait, editor of The Economist, took a different tack.  The problem with the UK press was not that it disclosed too much private information, but disclosed too little public information: our libel regime was an open invitation to rich individuals and organisations to punish or suppress revelatory stories.  John Kampfner, of Index on Censorship, concurred.

Alan Rusbridger, editor of The Guardian, had little confidence in the PCC as an effective body: it had barely attempted to regulate the press – perhaps we should actually try self-regulation before concluding it does not work.  Lionel Barber felt the PCC and its complaints committee were too dominated by insiders.  Roy Greenslade, former tabloid editor, now Guardian blogger, Evening Standard columnist and City University professor, claimed that three of the major press groups operated a form of non-aggression pact in covering negative judgements by the PCC.

At the end, Steve Hewlett volunteered that whatever outcome was agreed with Parliament required three elements: some adjustment to the privacy law (or the way the courts interpreted the Human Rights Act); more protection for investigative journalism in a re-vamped libel law; and much tougher sanctions available to an upgraded (or re-invented) PCC.

The biggest problem with the PCC was not mentioned at the debate, but has been raised by Greenslade (here and most recently, here). There is currently no requirement for any publication to accept the PCC code of conduct – or pay a PCC membership subscription.  No Northern and Shell newspapers belong to the PCC (Daily Express, Sunday Express, Daily Star, Daily Star Sunday).  Self-evidently, this undermines any claim the PCC might have to all-inclusive self-regulation.

Greenslade was dismissive of the notion of depriving errant journalists of their “licence” to practice: an idea floated at the Labour Party Conference by Ivan Lewis, Shadow Culture Secretary (and from which Ed Miliband later distanced himself).  But if we start piecing together the different strands of a possible Hewlett-style “deal”, we might find that in the give and take, a balance of concessions might be achieved.

First, government could provide that the nil rate of VAT on newsprint only applied to publications that were members of the PCC, and actively compliant with its Code of Practice.  Publications might be required to display prominently – perhaps on their masthead – their PCC status.  Thus publications could choose to stay outside the self-regulatory system, but would face a 20% VAT penalty for doing so (as would persistent offenders against the Code if they were ejected from the PCC).

Secondly, government could at long last activate the dormant clause in data protection legislation that provides custodial sentences for offences which are akin to phone-hacking (which has always been an offence subject to imprisonment, under a different act of Parliament).  Such activities will still be open to a public interest defence, so should not (as newspapers and broadcasters have long argued) inhibit genuine investigative reporting. 

Nick Davies’s idea of an expert panel at the PCC to advise beforehand (something that has always been part of broadcasting’s modus operandi) would allow journalists to strengthen their public interest defence in the event of prosecution; while the prospect of imprisonment would allow journalists to resist pressure from unscrupulous editors to break the laws protecting private information.

Again, the libel laws – if amended – could give added protection to PCC-compliant journalism; whilst – conversely – journalists who persistently breach the PCC (or, indeed, NUJ) code would lose that protection: not quite the loss of licence envisaged by Ivan Lewis, but in the same spirit.  If the PCC (or NUJ) code were a mandatory part of a journalist’s employment contract, then it would act as a defence for journalists who upheld the code, and represent potential dismissal for those who persistently failed to do so.

The PCC (or its successor) would need to remove serving editors from its complaints investigation and adjudication procedures.  It would need to agree and establish a “naming and shaming” framework to punish breaches of the Code of Practice: not just forced publication of adjudications, but forced publication of “yellow card” warnings to repeat offenders.  Fines should not be necessary given the severity of the ultimate penalty for non-compliance: a 20% uplift in newsprint costs, not faced by Code-compliant competitors.

The new PCC would need to have sufficient resource to investigate thoroughly even the most complex of complaints, without straying into areas where the criminal law is involved, and a police investigation is required.  That implies a significant increase in the cost of membership.

To deal with Greenslade’s claim of a non-aggression pact, the PCC would also need the power to compel members – as and when it sees fit – to publish an abbreviated account of a negative adjudication against another publication.  This would require suitable prominence.  A better-muscled PCC should also be able to secure appropriate prominence for corrections and apologies that newspapers publish, reflecting the prominence of the original mistaken item.

The PCC might also maintain on its website a section listing the unresolved complaints of inaccuracy, with an option for newspapers to provide their defence against the complaint if they do not propose to publish a correction. 

Various other models have been canvassed as providing clues to how a future version of the PCC might operate.  The Irish system is sometimes cited, but that is very similar to what a full-membership UK PCC might look like, with the added sanctions that are proposed above.  However, a 100% lay-member Commission runs the danger experienced by just such a body in Ontario, Canada, where the major newspapers just walked away from what they described as disabling political correctness.

It is early days in the argument over press regulation, but the encouraging aspect of the Evans debate was how quickly participants focused on the complexity and detail of what a final answer might look like. The ideas above are offered in the same spirit.

About the author

David Elstein is Chairman of openDemocracy's Board. He is also Chairman of the Broadcasting Policy Group. He is a director of Kingsbridge Capital Advisors, and a supervisory board member of two German cable companies.