In this four part post, Jonathan Coad considers the nature and future of the Press Complaints Commission. The material in this post forms his submission to the committee currently undertaking a “Governance Review” of the PCC.
In his book “The Insider” Piers Morgan (who edited both the News of the World and the Mirror) told us that the press was becoming progressively more powerful and aggressive. In his evidence to the Culture Media and Sport Committee on 25 September 2003, Max Clifford stated that “Paul Dacre is virtually a law unto himself.” In a 2007 speech, Judge Loucaides, then a judge of the European Court of Human Rights (the “ECHR”) set out the problem from a 21st Century perspective:-
“One should not lose sight of the fact that the mass media are nowadays commercial enterprises with uncontrolled and virtually unlimited strength, interested more in profitable, flashy news than in disseminating proper information to the public, in controlling government abuse or in fulfilling other idealistic objectives. And although they may be achieving such objectives incidentally, accidentally or occasionally, even deliberately, they should be subject to certain restraint out of respect for the truth and for the dignity of individuals. […] Furthermore they should remain legally accountable to the persons concerned for any false defamatory allegations. Like any power, the mass media cannot be accountable only to themselves. A contrary position would lead to arbitrariness and impunity, which undermine democracy itself.”
In the preface to the Editor’s Code Book, Paul Dacre stresses the primacy of the law. However, the outrage of the News of the World in response to losing the Mosley privacy action filled two entire pages. Its determination to be above any form of regulation (legal or otherwise) could not have been made clearer by this defiant final paragraph of editorial outrage at the decision:
“The News of the World will not be gagged by the rich and powerful.
The media in general and the press in particular wield enormous power via the virtual monopoly that they have of the dissemination of information. Although journalism has often been referred to as the “fourth estate of the realm”, Sir Louis Bloom-Cooper QC quotes Oscar Wilde’s view of the “fourth estate” from The Soul of Man where he states that
“at the present moment it is the only estate. It has eaten up the other three. The Lords Temporal say nothing, the Lords Spiritual have nothing to say, and the House of Commons has nothing to say and says it. We are dominated by Journalism.”
The press has the power to affect government policy, glean intimate details of the lives of the rich and famous by offering huge bribes to their staff to betray their confidence and, if there is no actual information about issues of public interest, the press simply makes it up. It can undertake much of these activities safe in the knowledge that because very few have the means of challenging it legally and there is no effective regulation, there is no sanction to fear. The press is heavily engaged in a campaign to restrict access the courts by those that it has wronged – making the need for effective regulation yet more important.
In its present form, the PCC is structurally and culturally incapable of fulfilling the role as guardian of the interests of the general public against those of the immensely powerful commercial empires that control our press. It was supposed, as determined at the time it was set up in 1991, to have the public’s interest as its sole concern. That was because it was decided that if it also bore responsibility for protecting the freedom of the press, that would represent a serious conflict of interest. Plainly any such organisation would also cease to be independent of the entity it was tasked with regulating.
However a senior figure at the PCC has recently given two speeches at which I was present where the obvious conflict of interest was affirmed as the PCC was described as having a dual role of protecting the public and preserving press freedom. Professor Robert Pinker (International Consultant and founder member of the PCC) made the same point at a recent media conference saying that the “PCC protects media freedoms”. However no-one who has dealt with it regularly on behalf of claimants seriously doubts the predominance of the PCC’s pro-press agenda, as its submissions to Parliamentary Committees make no less clear.
Lord Puttnam recently told the House of Lords Select Committee on Communication that the PCC was “essentially a cartel. It is a self-regulatory organisation that will very seldom do anything that will discomfit [the press] or make its life difficult.” Alistair Campbell, before the same Committee, described the PCC as a “cosy media club.” My own experience of dealing with it on a regular basis since its inception suggests that it is indeed a cartel, set up for the principle purpose of ensuring that – contrary to its claimed purpose – press freedom is preserved to the greatest possible degree against any form of effective regulation, and to the massive detriment of the rights of the individual.
The matter is put beyond doubt by opinion research that we have commissioned which shows that the practice and structure of the PCC is comprehensively at odds with the aspirations of the general public it is supposed to represent. It is apparent that in each case the PCC’s modus operandi is set against what the public wants for its regulator and that the interests of the press have been favoured at the expense of those which the PCC is supposed to serve. This is discussed in detail below.
This post is written from the perspective of a consumer of the PCC’s services and on behalf of the many clients of mine who, despite my best efforts, have conspicuously not been provided with a fair means of making complaints against the press. That has most recently been illustrated by the action that I brought on behalf of Peaches Geldof, who was only the last in a long line of clients failed by the PCC’s failure to adjudicate complaints fairly and impartially.
The allegation could hardly have been more serious against a 19 year old girl. It was one of prostitution. Engaging in monumental dishonesty, the PCC maintained – in the face of a contradictory admission by the very paper that had published the story – that the front page article does “not carry a specifically inaccurate claim” (when in fact it carried four), and that its front page did not carry the implication that Ms Geldof was exchanging sexual/personal favours for money.
The apology/correction of that story, admitting that the article alleged that she was engaged in prostitution, was published on page 2, where only a minute fraction of those who saw the original allegations would actually see it. Whereas the combined area of 2 inaccurate articles was 1149 cm², the correction covered an area of 30cm². This represented approximately 2.6% of the area of the original articles. It would also have only been seen (at most) by the purchasers of the paper, and not the millions of non purchasers of the paper who saw the original article via newsstands and the television. The PCC’s failure to provide Ms Geldof with a fair remedy is only the most recent and vivid of its failures to show either fairness or common sense.
The Importance of an Effective Means of Resolving Complaints Against the Press
I concentrate in this post on the role of the PCC in adjudicating complaints made against the press about breaches of the PCC Code of Practice (“the Code”), rather on its broader regulatory role. I also distinguish its role as mediator, which generally it does well via its dedicated and courteous staff. In my experience this process only fails when the paper’s awareness of the partisan nature of the adjudication process means that they refuse an appropriate remedy knowing that they are likely then to have that unreasonable refusal endorsed by the Commission – as was the case for Ms Geldof.
The PCC’s structural and institutional lack of independence, which is evident from its constitution, personnel and practice, at present therefore fatally compromises any role it has in arbitrating complaints. As I set out below, there is the clearest evidence that it places the interests of its sponsors above those of its charges, which by virtue of its very title, are those who complain about the activities of the press.
The power of the press to wreck lives is no small issue. I have acted for clients who have had nervous and physical breakdowns, seen their marriages destroyed and even attempted suicide in the face of press onslaughts. One non-celebrity client found that a journalist had interrogated her young downs syndrome son about the state of her marriage to a celebrity. Another celebrity client found that a national newspaper was offering her neighbours substantial sums of money to sign a statement saying that she neglected her children. There are many other such stories, but the recent reports of the Information Commissioner and the jailing of Clive Goodman show that the press exhibits contempt for legal/regulatory restrictions of its activities unless it perceives that a credible sanction is the alternative.
For 99% of the population, the existence of the right to privacy and reputation – as supposedly guaranteed by Article 8 of the European Convention on Human Rights (the “Convention”) – is illusory because of its inability to fund litigation to protect those rights except via CFA’s (which the press is presently seeking to render unviable). The lack of legal aid coupled with the onslaught of the press against the use of contingency fees, guarantees that it will remain the case that only a tiny proportion of the population can seek the assistance of the courts. For them, an effective regulatory body over the press is essential. But do they have it in the PCC?
It is inevitably difficult for any species of self regulation to inspire confidence. A Commission which has been set up by the press, administering a Code written exclusively by the press, which is funded by the press and whose staff members are ultimately employees of the press is not likely to inspire confidence. If you add to this that 7 of the 17 commissioners are newspaper editors, that there is no right for complainants to attend adjudications, and that there is no substantive right to appeal, then inevitably alarm bells ring.
Jonathan Coad is Head of Litigation at Swan Turton LLP