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Media Regulation: A Radical New Proposal – Part 1, Reform Options – Hugh Tomlinson QC

As many commentators have pointed out, the British press is not subject to regulation in the ordinary sense.  It must, of course, operate within the civil and criminal law but the so-called system of “self-regulation” through the Press Complaints Commission is not “regulation” at all.  Those newspapers and magazines which participate have agreed a code of practice and set up a complaints system.  The system is one of mediation, not regulation.

The merits of this system have been debated for a number of years.   The PCC characterises itself as “fast, free and fair”, pointing to the number of satisfied complainants and resolved issues.  Its critics point to its failure to “regulate and to engage with and eliminate systematic breaches of its code – notoriously by the “News of the World” but also in relation to cases such as the McCanns.  There is now a general consensus that, in the words of Financial Times editor Lionel BarberThe Press Complaints Commission in its current form is dead”.

What, then, should the PCC be replaced with?  What form of press regulation should there be in the United Kingdom?   The Director of the Media Standards Trust, Martin Moore, has recently suggested that there are seven possible options for reform.  I will begin by looking – in Parts 1 and 2 of this post – at each of these options in turn before suggesting, in part 3,  a possible “option eight”.  This is a proposal for a system of regulation which is voluntary but with teeth and which also seeks to deal with some of the problems identified by the libel reform campaign and the “super-injunction spring”.

In part 1 of the post I will consider Options (1) to (3).  I want to acknowledge my indebtness to Martin Moore.  This discussion derives substantially from his analysis and presentation of these options and the problems they give rise to.

Reform Option (1)   No Regulation – abolish the PCC without setting up a replacement

This has the advantage of simplicity and of meeting the practical difficulties head on.  Instead of attempting any kind of outside regulation the press would be constrained only by the law.  Newspapers could, if they wanted, set up internal systems of regulation – ombudsmen or readers editors but would not have to answer to any external body.  Proponents of this view point to the fact that in the United States where there is no formal system of press regulation, journalistic standards are much higher and there has been no “phone hacking scandal”.

But the problems with this approach are obvious:

  • It would not satisfy the large body of public opinion who want a more effective system of regulation, rather than no system of regulation
  • It would not deal with a whole range of ‘unethical journalistic conduct’ – relating, for example to intrusion into grief or interviewing children – which is not illegal but is presently covered by the PCC Code.  More generally, it would mean that the positive contribution of the PCC to complaints resolution will be lost.
  • It is likely to lead to more, not less litigation, whilst leaving those who cannot afford the law without redress.

Most regard this option as a “non-starter”.

Reform Option (2)  Reform the PCC – the “PCC Plus” Option

This involves another round of improvement to the PCC – takings its best features and adding to them in the context of “self-regulation”.  Many, perhaps most, newspapers and some commentators like this option.  It was recently advocated, for example, by Roy Greenslade.  The present organization could be given greater investigative powers, more lay members and perhaps the power to fine or award compensation.   Martin Moore has pointed out the benefits of this approach.  In particular

It is very likely to get buy-in from large sections of the press. It means we do not lose the valuable mediation function of the PCC, or its institutional memory. It does not require any resort to legislation … It keeps the oversight of the newspapers firmly voluntary, without any threat of state interference (except, as always, that provided by the law)”.

But, once again, there are serious problems:

  • There are grave doubts as to whether such a body would be sufficient to meet the public demand for effective regulation.
  • The PCC is a mediation body and, not a regulator, giving it true “regulatory functions” would involve a fundamental culture shift which is likely to be problematic.
  • There may be serious difficulties in persuading newspaper groups to agree to subscribe to a body with serious investigative powers and the ability to impose real sanctions.  The PCC is a voluntary body which has no “teeth”.  Persistent offenders cannot be dealt with.  Newspapers and magazines are not compelled to belong it.  In January 2011, after a series of adverse adjudications, the publishers of the various Express Newspapers withdrew from the PCC.  These newspapers are now subject to no form of regulation whatever.  “Private Eye” has never been a member of the PCC and web only publishers are not members.  This is what Martin Moore has called the “Desmond Problem”.
  • If, as at present, membership is confined to newspapers and magazines then “internet only” publication would remain entirely unregulated.  This is what we might call the “Internet Wild West Problem” – the land of the internet is wild and unregulated, publishers look west, to the USA (and perhaps now Iceland) for friendly, rule free, operating environments.  As more news is published digitally and newspapers cut print editions, this problem will increase.

The result of these problems is that this option is unlikely to command sufficient support – particularly from politicians and “press victims” – to be viable.

Reform Option (3)  Create a new “independent regulator” – the “Media Standards Commission”

This option seems to be the present “market leader” with broad support from commentators, academics and parts of the broadsheet press (for example, Lionel Barber in the lecture already referred to).  This regulatory body would be voluntary but wholly independent of the industry – a kind of Advertising Standards Authority (“ASA”) for the press.  This would have an entirely or almost entirely independent membership with some kind of “regulatory backstop” – just like the ASA has the Office of Fair Trading (for non-broadcast advertising) and Ofcom (for broadcast advertising).

This options has many attractions.  It would, potentially, deal with many of the criticisms of the PCC.   It could be tough and independent – the statutory back up would give it real teeth.  Although it would be voluntary the press could be incentivised to take part – Lionel Barber suggests a tax on advertising revenues for non-members.  This option is known, in the jargon, as “co-regulation” – part voluntary, part statute.

There are, however, again, a number of problems with this option:

  • A tougher, more independent, body puts the “Desmond Problem” into even sharper focus.  Newspapers which did not like the standards or sanctions imposed could refuse to join or when faced with sanctions, leave. The tougher the regulation the more acute this problem would become. The ‘incentives’ to join would have to be powerful ones and the statutory backup effective.
  • The new powers and “statutory backdrop” would, inevitably, be very unpopular with the press which would campaign vigorously against them.
  • The “Internet Wild West Problem” would become more acute as the powers of the regulator increased.  Those who did not like the regulation – with its statutory teeth – could publish their websites from the US or Iceland without fear of sanction.

As I have said, this option is the present “favourite” – although not strong enough for “victims campaigners” and too strong for the popular press many others think that, despite the problems identified, it is just about right.

Part 2 of this post will deal with Reform Options (4) to (7)

1 Comment

  1. Andrew Scott

    Re each of these Options, one issue is that relative to some other jurisdictions general invasion torts are underdeveloped in England and Wales. Judges over time have not been minded to develop appropriate causes of action from the common law, and Parliament has not provided fodder for them to do so. Hence, the law does not currently provide adequate deterrent to do the whole job (re option 1) or even a credible sword of Damocles to encouragement engagement with the regulatory regime (re options 2 and 3). In principle, it could be made to do so, although the practical issues of cost (esp re option 1) and extra-jurisdictional behaviour would still have to be addressed somehow (although if we are talking about ‘Big Media’, how real a prospect is relocation? It doesn’t seem that media orgns are flocking to Iceland yet).

    On option 2, which shouldn’t be written off in principle, one key marker of realism would be an acceptance that the regulator has to be able to determine questions of fact.

    Very interested to hear more on your option 8. For some time there was a stress on the need to ‘deal with’ libel separately to privacy and media regulation more generally. This may still be a widely held view, I don’t know. An holistic solution must be preferable however. The trend towards emphasising mediation of libel claims would seem to lean in that direction.

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