In the second part of this four part post, Jonathan Coad considers the question of bias and the Press Complaints Commission and how it measures up to its own standards of being “fast, free and fair”.
You are walking down the street and a burly policeman jumps on you and beats you up for no reason. You take exception to this and make a complaint against the policeman. Imagine being told that your assailant has insisted that your complaint of assault is to be adjudicated by a body set up and funded by the police, where the relevant law has been written by the police and where nearly half of the adjudicating panel are serving police officers, most of whom themselves have a well documented record for such crimes. The same body also campaigns for ever greater liberty for the police to act in a way which infringes the rights of the individual without legal liability. So it is with complaints to the PCC.
Except that the situation is worse at the PCC. 7 of the 17 PCC members (i.e. the editors) know that the decisions that they make in adjudicating complaints will directly impact on their own liberty to publish what they will in the future. Consequently, they have a direct interest in the outcome of the complaint. Not only that, but the remainder of the PCC’s adjudicating body appear to lack any direct experience of (for example) oppressive press harassment, intrusion into their private lives etc. The serial failure of the Commission to show fairness or independence presumably derives from the neutral non-press contingent also lacking the requisite balancing bias in favour of the victim, as (in my analogy) the police will have for the perpetrator. But so it is with the PCC, where the editors on the Commission will inevitably have a commercial bias towards the paper.
In a recent address given to a media law conference, Professor Robert Pinker described “its dual roles as a defender of press freedoms and of citizens from abuses of those freedoms by the press.” He repeated this observation a few months later at a subsequent conference I attended and after I had raised this very point with the PCC. It is inconceivable that a body of commissioners can both lobby and campaign on behalf of the press, and also form disinterested judgments on whether it has abided by the terms of its Code, a Code which of course the Commission itself has also written via a committee which has no lay members.
The presence on the Commission of so many representatives of the press is justified (as I understand it) by the supposed expertise which they bring to the process of resolving complaints. They are also said to be the “peers” whose judgment other parts of the press so fear. But can there be any doubt where their sympathies will lie when being asked to pass judgment on their peers, particularly on issues where their own editorial and commercial interest are directly affected? No credible explanation has ever been offered that I am aware of as to why there is no lay element on the Code committee.
The Automatic Presumption of Bias
The rule against bias is applied in two broad categories of case. The first is where an adjudicator has a direct interest in the outcome of the matter or can otherwise by reason of a direct interest be regarded as being a party to the action. An automatic, irrebuttable presumption of bias is thereby raised.
Until Paul Dacre (editor of the Daily Mail and editor in chief of Associated Newspapers which includes the Daily Mail, the Mail on Sunday, the Evening Standard and the London Metro) recently stepped down as a member of the PCC to take up the position of chairman of the code of practice committee (the “Committee”) (which reviews and revises the voluntary code of standards that the PCC adjudicates) he regularly sat in on adjudications involving his publications. Mr Dacre however had a direct financial and personal interest in the outcome of issues on which he was adjudicating and so should not have had any role on the PCC.
The sources of financial interest are twofold: not only are 7 of the PCC members on the payroll of their respective publications, but the PCC as an institution is funded by an annual levy paid by the very newspapers and magazines that appear before it. As Mr Dacre observed in his recent speech to the Society of Editors (see below), restrictions on press freedom result in less papers being sold. That means that PCC adjudications directly impact on the profitability of the newspaper group he represents. This is even more plainly the case now that a formal system of precedent has been instigated by the PCC.
This means that not just Mr Dacre but all press representatives know that every decision that they make in favour of a complainant will mean their own editorial and commercial interests will be directly affected. Not just Mr Dacre’s adjudications are therefore plainly biased. As to the direct and immediate personal interests of PCC members, this can be further illustrated by the following example.
I acted for a client who had been romantically linked with a leading parliamentary figure. I made a complaint of harassment on her behalf of when she was pursued by photographers whilst accompanied by her infant child near the home of her elderly parents. I wrote to one title asking them not to publish an infringing photograph taken in circumstances contrary to paragraph 4 of the Code, but it did so nonetheless. Although the editor of that title was not one of the commissioners that decided the complaint, all the editors on the Commission well knew that had they upheld the complaint, their own scope for publishing similar photographs would have been severely restricted, creating a direct personal interest in the outcome of the complaint. Unsurprisingly then, the complaint was rejected.
Justice Must be Seen to be Done
Even if there is no actual bias, the mere appearance of bias is sufficient to taint a decision where “the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.” I recount below a conversation I had recently with a cabby, who was astonished to learn how the PCC was constituted i.e. that it was not a genuinely independent body. I am sure that the vast majority of “fair-minded and informed” observers would also strongly suspect bias on the part of the PCC (as presently constituted) if they knew the truth.
So not only is the PCC funded by the very newspapers and magazines that appear before it, but 7 of its commissioners are also gainfully employed by those same publications. Moreover, complaints against the commissioners’ counterparts in rival or sister publications are going to be reluctantly upheld for fear of restricting their own liberty to publish.
If Paul Dacre says that restrictions on press freedom impact on newspaper sales, then newspaper editors on the PCC will inevitably be perceived to have a direct interest in the outcome of adjudications because any reduction in the ambit of what the press can report will have a direct effect on their profitability.
Those grounds unarguably raise an irrefutable presumption of bias. Even if they did not, then at the least they give rise to a clear perception of bias rendering PCC adjudications unlawful applying the well established principles of natural justice. Such adjudications would alsobe contrary to the fundamental human right to a fair hearing enshrined in Article 6 of the Convention.
The presence of editors as adjudicators means that on the basis of universally accepted principles of natural justice, a fair result is institutionally impossible. If they are to remain, then the PCC should only be an arbitrator if there is a fully independent system of appeal. This proposal is currently rejected by the PCC.
Assessing the Effectiveness of the PCC against its own Criteria
We can draw little comfort from the structure, personnel and procedure of the PCC. The PCC itself is however adept at producing reports and statistics which appear to prove its effectiveness as a regulator. But does the Commission really provide an effective service to complainants? How is it to be judged in terms of its results?
When measuring the effectiveness of any regulatory or judicial body, it is difficult to fairly review value judgments that it makes as part of its work. Who can say whether a judge or adjudicator is right or wrong about a verdict without access to all the information that the judge or adjudicator had to hand when making a determination.
The difficulty with the PCC procedures is that, rather like those at Guantanamo Bay, no one can attend the adjudication meetings, listen to the debate or read the evidence. Because of the alarming opaqueness in its procedures, the observer is reliant on the summaries of the arguments given in the PCC adjudications which (in my experience) are carefully drafted selectively to support the adjudication that the Commission has arrived at. Those adjudications do not do justice to the contrary arguments and, in some cases, either omit them altogether or blatantly misrepresent them.
So what yardsticks can we use to judge the effectiveness of the PCC in upholding the rights of the public against the intrusions and excesses of the press? Here is a reality check on the claims made by the PCC to be both “fast”, “free” and “fair”.
The PCC is Not Fast
A recent complaint against the Star illustrates the complete falsity of the claim by the PCC to be fast. The complaint was made on the day of publication of the offending article. Well over 12 weeks elapsed before there was a substantive response to the complaint, in the sense that the paper accepted the article was misleading or offered evidence to support it. If it were true that the PCC was “fast”, the newspaper would have been given a short deadline within which to respond and it would have been possible to adjudicate the complaint within a few days.
Such a short deadline would present no problem for the compliant newspaper title. The PCC Code stipulates that care should be taken before publication to keep copy accurate. The Editors’ Code Book says that before publication a paper should apply the following tests: “Are there reasonable grounds for believing the piece is accurate? Have proper checks been made? Have the likely complainants been given an adequate opportunity to respond?” If these precepts were actually heeded by the press, then all that would be required is the production of the material on which the article was based. That should take 24 hours. In fact they very rarely are.
In the complaint against the Star (as in a number of others in my experience) the newspaper was allowed to delay the process by making bad points (which the PCC permitted) to cause delay and expense by simply not summarily dismissing them. The situation was that the newspaper had (as it eventually admitted) published an article which contained not an iota of truth. It engaged in extended obvious chicanery to persuade the PCC not to do what any “fair” supervisory entity would do; adjudicate that the newspaper had breached the terms of the PCC Code.
The PCC declined to take effective action and adjudicate the complaint despite the fact that nearly 90 days after the complaint was made, the newspaper had still not produced a scintilla of corroborative evidence. This is far from an isolated instance. I made a complaint recently on behalf of a celebrity whose privacy was seriously infringed and a whole series of letters to the paper over a period of weeks were ignored. All that the PCC did was add a sentence to the adjudication saying that the failure to respond to my correspondence was “regrettable.”
That is the only sanction that has been applied in the 17 years I have been making complaints, despite delay on the part of the papers being endemic. Accordingly, the claim in the Editors’ Code Book that the PCC “[…] takes a stern view of unnecessary delays in righting […] incontestable errors […]” is simply untrue. There is therefore scant justification for the claim that the PCC is “fast.”
The PCC is Not Free
The actions of the press are judged by the Commission applying the Code in a quasi judicial capacity. The Code is accompanied by the Editors’ Code Book (the “Book”) which is over 100 pages long and which attempts to aid in the interpretation of the Code, some of which is not at all easy to construe as the PCC itself concedes. The difficulty in interpreting the Code is evidenced not least by the PCC’s apparent inability to do so consistently. It also concedes that its interpretation of its own statute must reflect the movements in the law.
The PCC also operates a system of “stare decisis”; i.e. that there is now a body of “case law” which it looks at in considering its adjudications and has now taken to citing previous decisions accordingly. In these circumstances, it is plainly a quasi judicial process. Complainants for whom these adjudications are very important need to make their complaints via individuals who are familiar with the relevant “law” and procedure in order to have a fair chance of that complaint being successful.
The complainant must therefore have access to expert advice when making a complaint to enjoy equality of arms because at newspapers PCC complaints are dealt with by experts in PCC procedure and media law who have the benefit of decades of experience and training. They deploy procedural points in an attempt to evade the adjudication of complaints. They advance supplementary technical/semantic arguments on behalf of newspapers which I have to address to ensure that my client’s complaint is not summarily dismissed (as the vast majority of complaints to the PCC are).
In these circumstances, it is wholly unrealistic to characterise the PCC as “free.” For litigants, the real cost of legal process is not the nominal court fees, but the cost of engaging professionals to protect their rights. The PCC is no different except, unlike the courts, complainants to the PCC cannot recover those costs. Consequently, where the PCC knows that complainants are professionally represented yet indulges newspapers in requiring me not only to address the points made by the newspaper, but supplemental points made by the PCC, the cost to the complainant is substantially increased – costs which they cannot recover.
The PCC thereby also permits papers to deploy precisely the same tactic as they would in litigation, namely to grind down the resolve and resources of the complainant by making the journey towards a resolution of the complaint both lengthy and expensive. The claim by the PCC to be “free” is therefore also seriously misleading since it has no prospect of being fair unless the complainant has professional assistance for which he/she must pay.
The PCC is Not Fair
Even with the benefit of professional representation the PCC is plainly not “fair” for complainants. The practical consequence is that complainants who are fortunate enough to have both an alternative legal route and the means to pursue it must expend substantial costs to reverse obviously biased adjudications of the PCC. This was the experience of one of my clients who was the subject of the most obviously unjust adjudication by the PCC concerning an article in the Mirror and had to spend around £1million in legal fees to reverse it in the courts because the PCC does not permit an independent appeal. For him the PCC was certainly not “free”; it just added to the cost of obtaining justice.
A TV presenter/model client of mine made a complaint against the Independent where the account in the newspaper suggesting she was a racist was contradicted by 4 witnesses, 3 of whom were independent. The paper could offer no corroboration whatsoever for the article. The Editors’ Code Book claims that “the burden of proof as always in the PCC system falls on the editors.” Despite this claim, the PCC declined even to adjudicate the complaint. However, when the paper was then presented with the prospect of an independent adjudication of my client’s complaint via the courts, it promptly backed down. Just as the Mirror in the above case, the Independent knew perfectly well that the PCC was a biased organisation which would endorse obviously bad defences, which bias they could not rely on in the High Court.
The fairness and independence of the PCC can, however, be most readily judged by how it uses its one sanction (an apology/correction/adjudication). This is accepted in the otherwise thoroughly disingenuous page of the Review magazine which addresses the issue of when the size of the correction/apology is simply ignored. This is despite the fact that, as the PCC well knows, it is a key issue for complainants.
As I set out in more detail below, the PCC’s sole sanction is administered in a way which also could not possibly be characterised as “fair” when infringing articles are permitted by the PCC to be corrected by slithers of text of around 5% the size of the original. In one of those cases, my client, who was the wife of a celebrity and mother of his 3 sons (one of who is disabled), complained about a false story claiming that they had thrown the father out of the family home. The tiny correction was then hidden amongst a page full of adverts.
The proof of the PCC’s bias/unfairness in this respect is unchallengeable because the only beneficiary of such adjudications is the press since it is in the interests of both the complainant and the general public that corrections are (to quote its chairman) “at least as prominent as the offending article.” You have to adopt a meaning for the word “prominence” which is starkly at odds with its plain and dictionary meaning to exclude the issue of size – as the propaganda arm of the PCC does in its magazine. Had the PCC’s claim to be a “fair” (or “independent”) institution had any justification at all, such blindingly obvious instances of unfairness would not be endorsed by the PCC on a regular basis.
Jonathan Coad is Head of Litigation at Swan Turton LLP