In the third part of this four part post, Jonathan Coad considers the Issue of Prominence – the Litmus Test of Independence and Fairness
Paragraph 1 of the Code is by far the most commonly relied on provision by complainants to the PCC. It concerns accuracy, which is perhaps the most important value we need in newspapers if they are legitimately to participate in our constitutional process. Sub paragraph (i) sets out the duty on the press to take care not to publish inaccurate material. Sub paragraph (ii) is the PCC’s sole sanction for breaches of sub paragraph (i).
Sub paragraphs (i) and (ii) of the first paragraph of the Code appear to be straightforward in their meaning. They read as follows:-
” 1 Accuracy
i) The press must take care not to publish inaccurate, misleading or distorted information including pictures.
ii) A significant inaccuracy, misleading statement or distortion once recognised must be corrected, promptly and with due prominence, and – where appropriate – an apology published” (emphasis added).
A further assessment of the PCC’s claim to be “fair” can be based on its own stipulation that corrections should be published with “due prominence.” A common sense interpretation of those words would be for there to be some equivalence of prominence between the offending article and the correction – not least for the purely practical reason that the more prominent the offending article, the more people will read it. So it must be with the correction. Plainly it would be a mockery of the term “due prominence” if the dimensions of corrections were permitted to be a tiny fraction of the offending article in which the appropriate prominence for the news item has already been determined.
This is where the rubber really hits the road, not least because it is the PCC’s sole sanction, it having eschewed any form of financial sanction, including the awarding of professional costs to complainants who have opted for equality of arms with the paper. If the PCC cannot be seen to be fair in the imposition of its sole modest sanction against its creators and funders, then we are entitled to be profoundly suspicious about both its effectiveness and independence generally.
The issue of prominence is therefore the acid test of the PCC’s independence from its Fleet Street paymasters, and as such it is enlightening to examine the vested interests which provide the context of the PCC’s deliberations on this subject. If an article is inaccurate there are three interest groups who are concerned in determining how visibly redress is given. For two of those three, the greater the prominence given to the correction or adjudication the better. For only one of those groups is it preferable for the prominence given to corrections and adjudications to be as minimal as possible. If that minority interest group takes precedence, then the PCC’s cover is comprehensively blown.
The first of those groups consists of the complainant(s), their family, friends etc, and for whom the more people who read the correction the better. One aspect not addressed by the PCC (but well understood by the law courts), is the fact that a story of any note published by a newspaper will be picked up and repeated by other elements of the media – other newspapers, radio, television, news websites etc. This is particularly so of front page articles. The same cannot be said of retractions. Therefore, an equivalent degree of prominence is an absolute bare minimum for the complainant to be justly served because even then there will be many poisoned by the original false story who receive no antidote.
So it is with the readership of the paper and the public generally (i.e. those that glean the false information via other media – especially where front page stories are concerned). This is my second group. The more of them that learn the truth the better. They have rights too. The receipt of information is one of the Article 10 rights. One such right is not to remain misinformed by the newspaper to which they have paid money to learn the truth of what is going on in the world. For both the readership and the complainant, a correction of at least equivalent prominence is essential to ensure, so far as possible, that the same number at least see the correction as did the offending article.
It is only the newspaper (my third group) onto whose interests such a principle impinges. If their readers are fully informed as to the lack of accuracy for which they are paying, then the newspaper might suffer a financial consequence for not taking sufficient care to get their facts right before publication. This is also the very space that the press sells for profit in the form of advertising which would be lost if used for corrections. The managing editor of a leading tabloid effectively admitted as much in a letter concerning a complaint I conducted recently.
So here is the acid test as to the PCC’s ability to be a true guardian of the rights of complainants and the general public, and its commitment to be “fair.” If it flunks the administration of its sole sanction (which is all it has in its armoury to protect the complainant) then the PCC is undoubtedly failing those who have legitimate grievances against the press. If it does so in favour of the very industry it is supposed to be regulating, then the case against for bias is proven.
The Shorter Oxford Dictionary defines “prominence” as “standing out so as to strike the attention; conspicuous.” “Due” is defined as “fitting, proper.” Any practitioner who debates the issue of “due prominence” with lawyers from the newspaper industry will know that their interpretation of that phrase is a correction of a fraction of the dimensions of the offending article (or part of the offending article which is inaccurate). However, common sense dictates that since there are authoritative surveys about how many people see the offending publication depending on its size, place in the newspaper etc, then there must be a cogent rationale for departing from that principle when it comes to the press’ obligation to correct inaccuracies under the PCC Code.
The calculation of prominence is well understood by the press because it is its stock in trade; newspapers sell prominence in the form of advertising. The amount of prominence you buy is set out as a mathematical computation measuring column inches against the amount paid. This computation is set out for the prospective purchasers of prominence in the print press in the form of a rate card. When you buy prominence from a newspaper, it is carefully calculated to measure the amount of people who will be influenced by it which (as both the newspaper and the advertising world knows) depends both on how early in the newspaper the space purchased appears, and how much of it is bought.
It is with this knowledge that the newspaper industry has always resisted giving anywhere near “due prominence” to corrections and apologies in its pages as stipulated by paragraph 1(ii) of the PCC Code. The two most likely reasons for this resistance are commercial judgment and journalistic vanity. The former because any sustainable interpretation of the term “due prominence” would result in a newspaper ceding valuable advertising space to comply with its responsibilities under the Code. The latter would require a perceptible admission of error.
The following section sets out to analyse how prominence applies to advertising space sold by the press in its publications, followed by an application of the variables that determine effectiveness of advertising space to corrections/apologies.
When it comes to Prominence, Size Matters.
Although it is generally accepted that “there is a ‘common sense’ belief that a press ad which has colour, larger size, is positioned on the ‘best’ page, etc, must have an advantage”, when it comes to objective confirmation of just how much added value these features provide, very little seems to be actually documented. In assessing the likelihood of an advertisement being seen and noted by a reader, studies have considered elements ranging from whether it is on a right hand page versus a left hand page; in colour or black and white; in a large size or a small size; at the front versus the back of a publication; and so on.
The overwhelming consensus seems to be that the bigger the advertisement, the greater the impact. Two reports in particular establish this; that of the Billetts Consultancy in 2001 and Medialogue in 2005. Research conducted on the Guardian’s change in format from a broadsheet to a “Berliner” and its effect on advertising revenue also concluded that “the driving factor for ad effectiveness is page dominance.” The classic work in this field, Project Cosine, a study by JWT on newspaper advertising effectiveness confirmed that “measured by column centimetres (ccm), the level of ad noting increases with size.”
Project Cosine also found that there are significant gains from being in the front third part of the paper: “For both the broadsheets and tabloids, the pure scores for ‘position in paper” are clear – front third positions outperform the back third, in broadsheets threefold and in tabloids more than double.” Gallup & Robinson’s Magazine Impact Research Service is reported to have come to a similar conclusion: “advertising appearing in the first third of a magazine tends to be as much as 45% better at generating recall then ads in the last third.”
Obviously the size and positioning of an advertisement within a publication will impact on its effectiveness. Once colour and pictures are added into the equation (a study conducted by the Chisholm Business on behalf of the Newspaper Society found, inter alia, that the most commonly looked at part of an advertisement is the main picture and that colour can greatly improve its effectiveness) the prominence of the majority of apologies published is a farce.
The suggestion that a black and white textual correction, 5% of the size of the offending article in the latter pages of the publication can be considered as an effective remedy where defamatory article featured on the front cover, in colour, with images and headlines is ridiculous; not only does it not accord with common sense but is also contrary to the same principles (established through objective research) that publications apply to their own advantage when selling advertising space. This is nonetheless the repeated approach of the PCC to this issue.
So what is the Common Sense Solution?
The common sense solution was set out most clearly to me recently by a London cabby (see below); the prominence of a correction should be equivalent to the material it corrects. As I also set out below, this is overwhelmingly the view of the general public.
This is hardly surprising as it is mere common sense. It also applies the same principles as advertising to the issue of prominence, since it is prominence that you buy in advertising in mathematically calculated quantities. If different criteria are applied then we are according commercial issues (and the interests of the big business) greater weight than issues of truth and accuracy (and the interests of the general public).
The other reason why this is plainly the common sense approach is that the newspaper has at the point of publication already determined how important the story is, and therefore where it should be published according to the various grades of prominence for news copy. The amount of column inches, where those inches are located and whether the story will be supported by a picture is a carefully judged editorial decision. It is one however from which newspapers unhesitatingly resile from when it comes to correcting a mistake in the article. The fact that the PCC permits such complete volte faces when it comes to the publication of corrections speaks volumes about its true agenda.
The Parliamentary Assembly of the Council of Europe has taken the same common sense view on the issue of prominence. It made the following statement concerning the obligations of the press to correct its own mistakes:
“When editors have published information that proves to be false, they should be required to publish equally prominent corrections at the request of those concerned.”
Even those who are not great fans of the European influence would be hard put to challenge this proposition as it also reflects the views of the general public (as evidenced by our opinion survey). So where does the PCC stand on the issue of prominence? As I will now illustrate, it has said one thing to Parliament via its Chairman, but has acted in an entirely contrary manner.
What has the PCC said on the issue of prominence?
The approach of the Parliamentary Assembly of the Council of Europe on the issue of prominence was apparently the one unequivocally adopted by Sir Christopher Meyer in his answers to his House of Commons, Culture, Media and Sport Committee in May 2003.
Sir Christopher was one of the witnesses giving evidence to assist the Committee in deciding whether to recommend greater degrees of regulation of the press. The context of Sir Christopher’s words on the subject of prominence was an attempt by the PCC to resist any statutory encroachment upon the present system of self regulation. Sir Christopher made the following explicit and lucid observations on the subject, as recorded in Hansard:
“When they [the newspapers] do apologise or a correction has to be published or a negative adjudication comes out, these things should be at least as prominent as the original transgression.”
Pressed on this subject, Sir Christopher Meyer later repeated his assertion:
“Yes, otherwise it is ridiculous. They should be, as I said, at least as prominent as the original transgression.”
On the issue of front page “transgressions” he had the following to say:
“What I am saying is this. If we go to formal adjudication, you come out with a formal adjudication, and had there been some hideous transgression on the front page, then I would expect the adjudication to be published, or at least start on the front page, depending on how long the adjudication was going to be. I think that would be entirely reasonable.”
Sir Christopher’s observations concerning a “transgression” that appears on the front page were also significant. Front page stories create unique problems for the complainant for a number of reasons. Firstly, millions of non purchasers of the newspaper will see at least the headline of the article in news stands, paper shops, libraries, being read by their fellow passengers on the train etc. Millions more will see the front pages held up on late evening news programmes on the evening before they hit the news stands, and the various breakfast news programmes on the following morning. Front page newspaper headlines are reported on the radio, news websites and news digest magazines.
In these circumstances, the only way there can be any proportionality or fairness in the correction (for there to be any prospect of an equivalent number of people taking it in) is for it to be placed in the same position as the original article. So when Sir Christopher talked about the need for a front page adjudication (or at least one that begins on the front page), this seemed to me to be no more than a common sense acceptance of what was required in those circumstances.
My new found optimism about the PCC’s approach to these issues was however to be dashed shortly after the Hansard account of Sir Christopher’s assertions on the subject of prominence was published upon my asking the PCC to adjudicate on the issue of prominence in the context of its chairman’s remarks.
Has the PCC acted consistently with these statements?
The correct interpretation of the term “due prominence” arose as an issue for a complainant only a matter of weeks after Sir Christopher Meyer had made his observations on behalf of the PCC to the Parliamentary Committee. The complaint was made to the PCC after the newspaper had (after some weeks of resistance) eventually conceded that there was no truth in the article at issue.
As the Editors’ Code Book tells us, and as always happens in practice, it is the editor of the offending newspaper who decides what prominence will be given to a retraction/apology. Since the editor also determines the wording and thereby the length of the apology/retraction, the complainant is entirely at the mercy of the person who has wronged them in the first place in order to set the record straight. This results in the slightly alarming situation of the miscreant stipulating the severity his own sanction.
In this case, in line with the usual practice of the press in these circumstances, the newspaper offered the complainant a correction which was 6% of the size of the original article (which it had conceded was 100% incorrect). Taking Sir Christopher Meyer at his word, and relying on the Editors’ Code Book statement that the PCC can rule on such an issue, I cited his observations to the Culture, Media and Sport Committee in resisting adjudication by the PCC that the tiny correction offered would comply with the PCC Code stipulations.
It therefore came as a considerable surprise to me (and my client) to be told via the PCC’s adjudication that “due prominence” in this case did indeed mean a correction which was a mere 6% of the original article’s size. Furthermore, it was clear from the rather acid terms of the adjudication that the Commission did not take kindly to being asked to act in a way consistent with Sir Christopher’s representations to Parliament.
A few weeks later, an article which was six pages long starting on the entire front page was adjudged by the PCC to be corrected with “due prominence” by means of a few column inches on page two of the relevant newspaper. Neither complainant thought this a common sense interpretation of the term “due prominence.” Neither adjudication was consistent with what the PCC had said to Parliament via its chairman only a few weeks previously. The proposition that after publishing a completely incorrect advertisement on behalf of an advertiser, a newspaper would then offer to correct the original mistake with a subsequent advertisement which was substantially less than 10% of the original size is ludicrous.
As the newspaper industry knows, prominence is something which can readily be measured and sold. So far as both complainants and the general public are concerned, it appears they are presently being cheated by the PCC on the issue of “due prominence”. Nobody more so than Ms Geldof – who despite the then Chairman of the PCC freely accepting to Parliament that her apology should be on the front page, then presided over an adjudication that placed it elsewhere.
The Benefits of Corrections/Apologies being of Equivalent Prominence
The effect on a newspaper of the prospect of a genuine sanction for breaches of the PCC Code is dramatic. The threat to a newspaper of a legal action where their actions are not judged by a tribunal of its own making can have a remarkable impact on its desire to correct inaccuracies in its news pages. I took on a front page story of a tabloid newspaper on behalf of a celebrity client that was not only inaccurate, but also defamatory. Faced with a libel action, the newspaper in question suddenly decided that on this occasion the appropriate place to correct an inaccurate front page story was with equivalent prominence (i.e. on the whole of the front page) and that “promptly” meant the following day. The value of this to the newspaper was commercial – it ‘mitigated’ the damage (i.e. the monetary cost of the original libel). This is a stark contrast to the attitude taken by newspapers where there is only the prospect of a mere (cost free) PCC complaint under the current regime.
Not only would the complainant benefit, but if newspapers are truly held to account for inaccuracies and intrusions into privacy by adjudications which everyone can see, then such activity will be substantially reduced. The reason for that is because when corrections, apologies, and adjudications are published with sufficient prominence, then not only will the complainant have obtained a proper remedy, but equally importantly, the readers will know when newspapers have breached their own code of practice. Readers can then make judgments as to what newspapers they purchase on an informed basis. This will in turn mean that there will be a commercial incentive on the press to comply with the Code.
The sad reality is that until that becomes the case, the press will take the same view as Rupert Murdoch when he famously (admittedly some years ago) could not even remember the name of the PCC. For as long as the press itself does not take the PCC seriously, we cannot be safe in the PCC’s hands. But this all could be changed (in my view) by the stroke of a pen. If the word “due” was replaced in the phrase “due prominence” with the word “equivalent”, then the scope of the PCC to fail complainants would be substantially reduced.
Better still would be the replacement of the words “due prominence” in the PCC Code with the very words used by Sir Christopher in his evidence to the Parliamentary Committee; namely that corrections and adjudications should be “at least as prominent as the original transgression.” We would then see a press far more motivated to get things right in the first place, and therefore adopt far higher standards as a result. I believe it would also meet the expectation of the man in the street.
Alas, while the Code Committee is made up entirely of newspaper delegates there is no prospect whatsoever of that happening. However, as I set out below, 96% of the public think that is what it should say.
Jonathan Coad is Head of Litigation at Swan Turton LLP