When the Leveson Enquiry was announced in July, the Press Complaints Commission immediately stated its intention ‘to review its own constitution and funding arrangements, the range of sanctions available to it, and its practical independence’. This, it said, would be a ‘key contribution to the inquiry’, adding that it ‘remains committed to the establishment of a more effective system, one that supports appropriate freedoms, but demands the highest ethical standards. The PCC, and its independent members (who are in the majority), has led the call for appropriate reform. We welcome the consensus of Parliament that the model of regulation for the press should continue to be a non-statutory one’.
This may sound reasonable enough. However, there’s just one slight problem: the PCC is not, and never has been, a regulator – it’s merely a body which deals with complaints about the press, the equivalent of the customer services department of any large corporate organisation.
The PCC was established in 1991, on the recommendation of the Calcutt Inquiry, as a body ‘specifically charged with adjudicating on complaints of press malpractice’. And this is indeed how it frequently presents itself. Thus, for example, in the Commission’s review of its activities in 2008, its then Chairman Sir Christopher Meyer described it as a ‘mediation service’. Furthermore, when the Campaign for Press and Broadcasting Freedom argued, at length but unsuccessfully, that the PCC should be regarded as a public body for the purposes of the Freedom of Information Act, the Commission told the Ministry of Justice that its ‘main function is to conciliate and adjudicate complaints … It is not a “regulator” in the licensing or legal sense of the term’.
However, the PCC constantly slips between describing itself as a mediator and a regulator. It is particularly prone to stress its ‘regulatory’ function at times of heightened public and political concern over press standards, as at the present moment. So, for example, in his contribution to the 2008 review quoted above, Meyer seamlessly segues from talking about ‘mediation’ to referring to ‘the self regulatory system’ and arguing that ‘self regulation is the only way to go’. Similarly, on its website the PCC describes itself as ‘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, including editorial audio-visual material) and the conduct of journalists’. Meanwhile, its web page devoted to the ‘key benefits of the system of self-regulation’ stresses that ‘the main role of the Press Complaints Commission is to serve members of the public who have complaints about newspapers and magazines’ before going on to add that ‘self-regulation works because the newspaper and magazine publishing industry is committed to it’ and concluding that ‘one of the central benefits of press self regulation is that it combines high standards of ethical reporting with a free press … Self regulation has none of the problems of the law - yet still provides a system in which editors are committed to the highest possible ethical standards’ .
As the PCC misses no opportunity to remind us, it regards what it calls self regulation as preferable to any other kind of regulation, especially statutory regulation. As the Commission is financed by the very publications which it is supposed to be regulating, this is hardly surprising. However, the PCC cannot with justification present itself as a regulator given that (a) it was not established as a regulator and consequently (b) nothing in its Articles of Association suggest that it is meant to perform a regulatory function. In this respect it’s significant that the 2008 report The Ownership of the News from the House Of Lords Select Committee on Communications clearly stated that the PCC ‘was never designed or established to proactively promote journalistic standards or ethics’. Furthermore, in his evidence to the Department of Culture, Media and Sport Select Committee in July 2009, the PCC’s own Tim Toulmin stated, quite correctly, that ‘we are a complaints body; we are not statutory; we are like an ombudsman, really. People want us to be more like a general regulator with statutory powers and so on. That is a separate argument; the fact is we are not that body’. Precisely so.
However, there is yet a further flaw in the PCC’s self-presentation, namely the idea that the press is not already subject to considerable statutory regulation. As the numerous books on media law testify, the press, along with all the other media, is subject to at least 70 items of legislation which, in one way or another, have a bearing on what it can and cannot publish. To suggest as the PCC does, albeit implicitly, that the press as it currently stands is somehow or other free of statutory regulation is thus patently absurd. But what the PCC and its press paymasters really mean by all this circumlocution and weasel wording is that newspapers do not want any form of regulation which applies only to them. But why should the press be unique in this respect? The broadcast media are regulated by Ofcom, and, furthermore, these self-same newspapers are constantly (and rightly) bemoaning the failure or absence of adequate forms of regulation in other areas of business. What’s sauce for the goose, surely, is sauce for the gander.
So, what we need to do is to devise an effective system of press regulation from scratch. The PCC is quite simply un-reformable. The whole history of press ‘self regulation’ in the UK demonstrates repeatedly and all too clearly that the owners of the national newspapers simply will not tolerate, let alone finance, an effective regulator. It really is that simple. But we also need to learn a very important lesson from the Calcutt Enquiry.
Dissatisfied with the PCC’s performance in the first two years of its life, Calcutt recommended that it should be abolished and replaced with a statutory Press Complaints Tribunal. However, its relationship with the state would have been so close, and its powers so draconian, that even critics of the press and the PCC found it frighteningly unacceptable, with the result that the PCC managed to get away with ‘reforming’ itself. The very last thing one wants as a result of Leveson is a re-run of this particular debacle.
What is required now is a system of independent regulation, that is, independent of both government and the newspaper industry alike. Back in the days of Calcutt, the Labour MP Clive Soley, backed by the Campaign for Press and Broadcasting Freedom, drafted a Freedom and Responsibility of the Press bill which proposed a series of measures which attempted the difficult but necessary balancing act of promoting both press freedom and improved press standards. (This extremely useful document can be found in Regulating the Press, Tom O’Malley and Clive Soley, Pluto Press 2000). The bill set out to establish an Independent Press Authority which, like the PCC, would draw up a code of standards for journalists and investigate alleged breaches of it. Also like the PCC, it would attempt to conciliate between complainants and newspapers. But where it would differ from the PCC would be that its code would not be drawn up by currently serving editors, and alleged breaches would be considered by experienced former senior journalists and by specialists in media regulation and ethics. Even more importantly, though, the Authority would be able to insist, where appropriate, not simply on the correction of a story but on a right of reply, which would be guaranteed by statute. Furthermore, failure to comply with the Authority’s judgements or requests would entail financial sanctions, and these too would be backed by the force of law. This is not state censorship – although of course it was caricatured as such by a bitterly hostile press – but simply giving the independent regulator the teeth which the PCC so manifestly lacks.
However, the Authority’s work would by no means be confined simply to disciplining the press, as it would also commission and carry out research into those factors which prevent newspapers from carrying out their proper public interest functions, be they oppressive laws on defamation and official secrecy, the unnecessary use of ‘super injunctions’, overweening proprietor power, public authorities’ unwillingness to comply with the Freedom of Information Act, concentration and oligopoly in the newspaper and magazine distribution sector, and so on. In other words, the bill fairly and squarely addressed the crucial questions posed by Guardian editor Alan Rusbridger in his 1997 James Cameron Memorial Lecture, namely how can we make sure that ‘decent, serious journalism can flourish in a society without also opening the door to brutalist and intrusive journalism’, and how in the modern media can we balance the rights to privacy and reputation, the right to freedom of expression, and the right to know (a theme to which he returned recently in his Anthony Sampson lecture).
Since Soley’s bill (which of course got nowhere, given governments’ utter terror of alienating the press), and following the example of the Republic of Ireland, there have also been useful suggestions that such functions could be performed by a press ombudsman. But how would an Independent Press Authority or an ombudsman be financed? The PCC is funded through a levy on newspapers and magazines which is administered by the Press Standards Board of Finance (PressBoF). However, as this is made up solely of industry figures, it is very far from being independent. Furthermore, Richard Desmond simply ceasing to pay the levy and thus unilaterally exempting the Express and Star from the PCC code all too clearly demonstrates just how weak and voluntarist the current system actually is. For any independent system of regulation to be effective, the levy would have to be compulsory, adequate to fund the tasks in hand, and administered by a body entirely independent of the press. If the newspaper and magazine owners refused to pay up, then the money would simply have to come from the public purse. In either case, in these days of ever-greater media convergence, the obvious candidate for administering the funding is Ofcom. One can already hear the newspapers shrieking ‘state censorship’, but as they actually know full well, this is no such thing; it’s simply that traditional, well tried and tested British way of doing things, namely arm’s length regulation.
But whatever the case, one thing is absolutely certain, namely that the terms of discussion of new forms of press regulation simply cannot be allowed to be dictated by what is and is not acceptable to the press barons. And that means there’s one hell of a battle ahead.