The seven options for the future of press regulation which have been considered so far run from “no regulation at all” to a full-blown “Media Regulation Authority”. All of them face serious problems. The “voluntary” models face the “Desmond Problem” – those who don’t like the system can leave. Full-blown statutory regulation would have to involve serious fines for defaulting newspapers with, in the end, persistent offenders being prevented from publishing. It looks like state licensing for the press and is unattractive to the media and many others. Furthermore, any proposed option which can impose serious sanctions face the “Internet Wild West” problem. Those who don’t like regulation can move their operations offshore, beyond the frontier, and continue to publish. In any event, traditional “press regulation” will become increasingly irrelevant as publishers switch from paper to digital.
What then is to be done? If classical self-regulation is too feeble and even “co-regulation” too draconian, is there are half way house? I would like to outline a new proposal – for an independent, rigorous but voluntary system of media regulation – “Option 8”. I will call it the Media Regulation Tribunal or MRT.
The Proposal: “Option 8”
Let me begin with the essential feature of the proposal: submission to jurisdiction of the MRT would be voluntary but in return for agreeing to accept it publishers (and journalists) would be protected from legal action in courts other than the MRT. This would be the bargain: increased regulation for increased protection.
A publisher (whether of a newspaper, an online service or a blog) or journalist who agreed to be subject to the “Media Code” – let’s call them “Code Publishers” – would be in a different legal position from an unregulated, “non-Code” publisher. Being a “Code Publisher” would provide protection from legal action in the High Court or the County Court and would be a kitemark of quality – of adherence to certain basic standards of fairness, accuracy and respect of privacy. But it would be entirely voluntary. Those who did not want to submit to the regulation could decide not to do so but they would not then have the protection which the Media Code would otherwise provide.
More Detail
Let me try to flesh this it out a little. The basic mechanism of the MRT would be established by an “enabling statute” – the “Media Regulation Tribunal Act”. This would provide for the establishment of the MRT, the mechanisms for the promulgation and amendment of the Media Code and the enforcement mechanisms which would apply to members.
The “Media Code” would cover the general areas covered by the current “PCC Editors” code with additional sections on matters such as “journalistic responsibility”, “damage to reputation” and “invasion of privacy”. It would have a section on sanctions and remedies. It would seek to strike a clear and comprehensible balance between freedom of expression on the one hand and individual rights on the other. The touchstone would be public interest.
The MRT would adjudicate on and enforce the Code. It would be an independent body of a judicial nature. Its members would be appointed by the Judicial Appointments Commission and would have the usual judicial security of tenure. As with, for example, the Employment Tribunals, there would be a legally qualified chair and two lay members – one with press experience and one from a “consumer” background. All the members would be independent of government and media. The MRT would have an “investigation branch” whose job would be to investigate apparent breaches of the Code and present them to the MRT for adjudication. It would, in these respects be similar to a regulator such as the General Medical Council – with both investigatory and adjudicative functions.
The MRT would, from one point of view, be a court. It would decide whether the Code had been breached and, if it had, would grant appropriate remedies. Its procedures would be fair, open and public – with, if necessary, witnesses, and cross-examination. It would be “independent and impartial” for the purposes of Article 6 of the European Convention on Human Rights and would provide “access to court”. There would be a right of appeal to the Court of Appeal.
The MRT would have all the powers of a court: to order the payment of compensation, to issue injunctions to restrain breaches of the Code. In the case of systematic abuses it would be able to levy fines on those subject to its jurisdiction. Such fines would be enforceable under the Act. The MRT would also have other powers to enforce the Code by ordering the publication of corrections. apologies or a right of reply.
There could be a system for “early resolution” and mediation. The MRT could actively manage cases to deal with crucial issues at the earliest stage and could make speedy orders for apologies or the correction of inaccuracies in straightforward cases.
The investigation branch could consider complaints from members of the public – or initiate its own investigations – into Code breaches. Allegations of breaches could be brought before the MRT for adjudication.
From the point of view of the publisher the jurisdiction of the MRT would be entirely voluntary. No media organisation, publisher or journalist would be compelled to submit to its jurisdiction. But joining up – agreeing to be subject to the MRT’s jurisdiction – would carry substantial advantages, unavailable to those on the outside. In particular and crucially, a Code Publisher would have a complete defence to legal action in other courts. No Code Publisher which subscribed to the system could be sued in any other court in respect of any claim based on the publication of material on its pages or website. Membership would be a complete defence to any action in the High Court or County Court for defamation or misuse of private information. Claimants would be obliged to pursue such claims against Code Publishers in the MRT.
When determining liability for publication of false or intrusive material, the MRT would not have to apply the existing law of defamation and privacy. The Code could contain new provisions providing redress for false statements, it could ensure a clearer balance between reputation and expression. Drawn up after proper consultation with all interested parties: it could be a complete, self-contained “media law code”. For example:
- The focus of the Code could be on “factual inaccuracy” rather than “damage to reputation”.
- In the case of less serious inaccuracies, the remedy could be confined to an order for the publication of a correction or apology, rather than an award of damages.
- In the case of factual inaccuracies the MRT could grant “declarations of falsity”.
- In some categories of less serious case (or cases involving smaller publishers – bloggers or the regional press) there could be a compulsory “mediation” and complaints resolution system – which had to be used before formal claims were brought.
- The MRT could operate a “take down” procedure where online inaccuracies are alleged – with swift adjudications on take down requests in relation to online material.
- There could be a “New York Times v Sullivan” defence to claims relating to the publication of false information based on lack of malice – good faith publication in the public interest.
- Corporations which brought MRT claims could be limited to declaratory relief.
- There could be a clearly defined “privacy” regime, including public interest protections.
- There could be limits on damages and a special regime for legal costs – to promote access to justice whilst ensuring “equality of arms”.
In other words, the MRT could provide the media (and other publishers and journalists who signed up) with many of the protections which libel reform campaigners have been looking for but with the powers to investigate and put things right which media responsibility campaigners have advocated.
In addition to the “carrot” of enhanced protection for those who subscribe to the MRT, there could be a “stick” for those who do not. Failure to comply with the Code could be, by statute, a factor which permitted the courts to award increased damages in the defamation and privacy claims which could still be brought against non-members. The Courts could be given power to award exemplary damages in cases in which a non-code publisher was guilty of conduct which was a clear and blatant breach of the Code. Non-code publishers would face a tough time in the courts if they acted irresponsibly.
In short, publishers would have a choice: submit to regulation and obtain a range of protections against oppressive legal proceedings or refuse regulation and face substantial damages (and costs) if they fail to act responsibly. The public would know which newspapers, blogs and magazines subscribed to basic standards of fairness and accuracy. Public trust in “Code Publishers” would be enhanced.
The crucial and difficult question is, of course, that of getting the balance right. The MRT regime for “Code Publishers” would have to be attractive to the media whilst being fair to the public. The media would have to be given sufficient protection to go about its proper job of informing (and yes, entertaining) the public but would have to be given swift and effective remedies against invasion of their rights. The detailed provisions of the Code would be of crucial importance. This is not something that I can deal with in this already long post but the outline is already there in other media codes.
Some Objections
This proposal is only an outline. All kinds of objections could be raised. Let me mention just three:
- Access to Justice: The crucial feature of this proposal is that Code Publishers could no longer be sued in courts other than the MRT. It will be complained that this is a refusal of access to justice and preferential treatment for the media. In relation to the first point I would say that the MRT would be a fully “independent and impartial tribunal” and part of the court system: it would determine rights and obligations and grant remedies. Its streamlined procedures should provide better not worse access to justice and would save legal costs. At present practical “access to justice” in the High Court is very limited – particularly if the government proceeds with its plans to restrict CFAs. Bringing and defending claims is hugely expensive and often very slow. The MRT would be quicker and cheaper. Yes, in one sense Code Publishers would be placed in a “special position” – this reflects the central importance of a properly functioning media in a democratic society. But they would remain fully answerable to the law as applied by the MRT. Proceedings before the MRT would be directed to real public concerns – the correction of inaccuracy, the remedying of unfairness and intrusion – rather than the often artificial law of defamation.
- Legalism: The other side of this argument would be the complaint that regulation should not be a matter for courts. The media would be concerned about the risk of the MRT falling into legalism – just another court with complex and expensive procedures. I accept that this is a risk. The Employment Tribunal system is not a good model in this regard. On the other hand, the actual independence from government and industry of a tribunal of this kind would be an important protection and guarantee for all concerned. Most people would, I think, prefer adjudication by a tribunal of this kind to a decision by an industry or government body. But the risk of legalism needs to be guarded against: the idea is not to create just another court but a media sensitive tribunal enforcing a code and providing redress for those who have been treated unfairly.
- Finance: This is an important issue which needs to be addressed. The PCC is financed by the press and costs £2 million a year or so. Ofcom costs more than £100 million. The MRT would, inevitably, be more expensive than the PCC. It could, in part, be financed by subscriptions – proportionate to circulation or income perhaps, so that bloggers and small internet publishers could join. Any ‘fines’ could go into the kitty. Nevertheless, it seems likely that some state funding would be required.
Conclusion
This is my first sketch of an “Option 8”. It is an attempt to square the circle and to meet a number of different concerns in a new comprehensive context. It seems to me that a system along these lines would, potentially, have three positive and desirable features which are not available under the other options:
- It would be independent – with the possibility of imposing real and effective sanctions – but also voluntary. No publisher would be forced to accept this kind of regulation.
- It would provide a mechanism for balancing responsibility and protection – in exchange for subscription to the Code, publishers would have their freedom of expression protected and members of the public (and small publishers) would have effective “access to justice”.
- It could embrace publishers of all kinds, not just the print media, providing a quality “kitemark” to everyone who “opted in” – in other words it is a form of regulation which could survive the demise of printed newspapers.
There are many gaps in the proposed model and many objections which have not been dealt with. There is much detail which remains to be explored. The intention is to provide a further option to contribute to a continuing debate about regulation. All comments and thoughts on the proposal are welcome, either by way of comments on the blog or by posts (which can be submitted to inforrmeditorial@gmail.com).