Thursday, 14 July 2011

PCC RIP: what next?

I remember a lesson from law school that seems apposite in the midst of the phone hacking maelstrom.  The lesson was that it is not enough for solicitors to actually be honest and ethical - but that we also need to be seen to be honest and ethical, in order to uphold public confidence in the legal profession.  The optics are almost as important as the reality.

For this reason, the PCC is dead.  Not because it is dishonest or unethical.  But because it cannot recover from the public's perception of it as ineffective and unable to regulate the media’s big beasts. Whether or not that view is fair is irrelevant.  The damage is irreparable and the PCC cannot recover from it.

Where do the press go from here?  There are two obvious signposts.  One is signposted Regulation.  The other points to a new form of Self-Regulation.

You are unlikely to find many media lawyers, including me, putting forward the argument for regulation.  It runs contrary to the concept of a "free press" and the fundamental right to freedom of expression granted by Article 10 of the European Convention on Human Rights.  Many outside the media will argue that the press has abused its right to enjoy such freedom.  But as a lawyer within the media, I disagree with that view.  The willingness of elements of the free press – most notably the Guardian, but also including (vested interest disclosure) the Financial Times and others - to hold News International to account, is illustrative of the fact that there are newspapers within the industry who have not abused that right.  Indeed, in exposing or condemning phone hacking, those titles have exercised that right and in doing so have exercised a form of self-regulation more forcibly than the PCC was either willing or able to.  Phone hacking is horrible.  But much of what the quality press does is honourable, important and casts light where otherwise there would be darkness.

Yet now is not the time to put forward an argument for an “as is” self-regulatory replacement for the PCC.  We cannot give the same body a new name and expect it to work.  If the press exists to inform the public, it needs to regain the confidence of the public.  To dress up a sheep in another sheep's clothing will not achieve that.

We need wholesale reform of the self-regulatory system.  And we need, paradoxical as this may sound, to "force" the press to participate in the self-regulatory system.  From the public's perspective, it is not good enough that organisations such as Express Newspapers can choose to sit outside of the framework.  And let's not stop at Express Newspapers - let's bring the "new press" into the game as well, why should organisations like the Huffington Post UK be any less accountable than, say, The Daily Telegraph?  A new system needs to be fit for purpose and fit for a digital age.

Forcing participation in a self-regulatory system requires some form of hybrid model.  I am not advocating a system of governmental licensing.  But I am advocating that there must be proper consequences for not participating.  Perhaps a form of statutory - yes, statutory - levy on advertising revenues for non-participants, with any levies being used to fund the new self-regulatory body.  In these days of low media margins, watch everyone queue up to participate.  And regular funding for the new body should come from industry, not from government.

The new body needs investigatory powers and it needs proper sanctions available to it.  Let's assume for one moment that the PCC had enjoyed the investigatory powers of the SFO or the FSA.  I think it is fair to say that the whole sorry phone hacking saga might have played out a little earlier than it has done.  As the press, let's agree to give the new body wide powers of investigation.  Let's make ourselves transparent and accountable.  Let's even agree to an annual compliance audit, the results of which are reported publicly.

Let's also agree to sanctions for non-compliance.  Real ones, going beyond an obligation to correct inaccuracies.  Fines tend to concentrate minds, as also would advertising embargoes as a sanction.  And if we want to be really extreme about this, let's pre-pay a portion of those fines in advance into an escrow account held by the new body, from which it can deduct monies if an organisation is fined.  Suspension or expulsion from the self-regulatory regime could form the ultimate sanction, with those statutory levies kicking-in as a result.

I don’t hold this up as a perfect blueprint immune from criticism, but as a starting point for debate.  But let's ensure that we create a self-regulatory body which looks like a proper regulator, which can act like a proper regulator, which feels like a proper regulator.  Because, if we don't, there are two unattractive alternatives.  Either the industry fails to regain the confidence of the public because any new self-regulatory system looks like the old one.  Or the alternative is that we become regulated by government and lose the privilege we currently have as a free press.

That privilege has been abused by some - let's not abuse it again by failing to use the opportunity, indeed obligation, that we now have to properly regulate ourselves.

Disclaimer: as always, my post reflects my views and not those of my employer


  1. Some interesting ideas about regulation here. Its worth looking at the legal profession models to see what (if anything) they can contribute. The reincarnated regulator will need to be funded by the press even if it is created by statute and a few investigative and punitive powers are clearly indicated. The Ombudsman style should cover it. Anything criminal can go to the police in the normal way. Possibly Scotland Yard can have a media division. A literary and aging sergeant should be enough once the furore has died down.
    Whatever we put in place. MPs must realise that if the press controls are accountable to them, they lose the right to use the press to convey their political positions. The press must remain free and journalists need to protect their personal reputations for accuracy and trustworthiness alongside those of the big media brands.

  2. I also apologise if I draw away from the substantive elements of this excellent post towards a more general overview. And I am no lawyer (yet) so please forgive me for any howlers.

    One point I would make directly from the post is that I agree that that non-compliance should go beyond correcting inaccuracies, and fines/sanctions should be levied. However I would still like to see corrections being published, but perhaps more prominently at the front of the paper rather than be hidden away at the back.

    Surely more than fines or sanctions, this would severely harm the credibility of newspapers in the eyes of the public, and make them more susceptible to boycotts from advertisers if they continue to behave irresponsibly (and perhaps illegally).

    On a more general point when dealing with press regulation, there definitely is a continuum between the actions of the press over phone hacking and the injunctions furore a month or so ago.

    From my own perspective, it is clear that the tabloid press regularly flout the ‘public interest’ test without any fear of serious recrimination. The fact that there was systemic use of illegally (or at least immorally) obtained information shows how little the PCC was feared.

    While it is important that the freedom of press is maintained when any regulation comes in. However, Article 10 also limits expression to “protection of the reputation or the rights of others” and the “preventing the disclosure of information received in confidence”. In my opinion a lot of papers regularly flout these restrictions citing ‘public interest’ defences.

    In addition, there is effective regulation of the broadcast media that does not hamper their ability to inform the public. While I believe any similar impartiality limits would be too onerous on the press. A large part of their role is to reflect partisan views of their readership, but it is important point to keep in mind that regulation and good journalism are not mutually exclusive.

    Journalism in this country needs to become a lot more responsible and less sensationalised. Papers play an important part in informing the public. It is time for any new regulation to have stronger ‘public interest’ tests, and a greater emphasis on their responsibility.

    Any new regulation should have that at its core, rather than seeking to preserve the commercial interests of the gutter press in selling tittle-tattle as news. I would have no sympathy if they cannot survive without changing their current form.

    Again sorry to distract from the substantive elements of your post Tim, but I felt like having a rant.