Self v State: The search for a model of effective press regulation – Charlie Potter

6 10 2011

Speaking on a recent edition of BBC Radio 4’s “Media Show”, Professor Roy Greenslade predicted that Lord Justice Leveson will probably recommend “some kind of statutory regulation” of the press at the end of his inquiry. After all, he reminded us, the Calcutt Report had given the press one last chance back in 1990 to show that it could be supervised effectively by a new self-regulatory complaints body (the Press Complaints Commission), failing which statutory regulation was the only alternative.

As a matter of fact, Sir David Calcutt QC then later carried out a review of the PCC’s performance in 1993 and found that it was not up to the task required of it. Among other things, the PCC was, in Sir David’s view, “not the truly independent body which it should be…”, being a “body set up by the industry, financed by the industry, dominated by the industry, and operating a code of practice devised by the industry and which is over-favourable to the industry.”A statutory regime was what was needed.

So is a degree of statutory intervention now desirable? And does it necessarily imply a draconian framework of state interference?

The case for statutory regulation

Although many may not like it on principle, recourse to statutory intervention has important advantages in two particular areas. The first is the need to define exactly who is subject to regulatory supervision in the interest of ensuring compliance. The second is the need for effective sanctions and investigatory powers.

Defining jurisdiction: Leaving aside for the moment the content of any ethics code and the powers conferred on a regulator designated to enforce it, a statutory framework could usefully define those to whom it does and does not apply as a matter of compulsion. It would be a challenge for the parliamentary draftsman, but it would prevent particular refusenik newspapers or magazines from “going rogue”, i.e. simply walking away from the jurisdiction of a body like the PCC if it doesn’t like the rules or it disagrees with a decision taken against it.

A fundamental weakness of a “self-regulatory” or “voluntary” model of press supervision is that it is only as effective as the number of industry members that sign up to it and agree to abide by the jurisdiction of whichever industry body is established to oversee it. A body which exists at the sufferance of the industry has little power over a publication which is no longer prepared to suffer it.

The problem is not just confined to existing publications; it is particularly acute with regard to publications which have not even come into existence yet and may not follow the traditional model of a print or online newspaper / magazine. In the absence of statutory definition, how does a self-regulatory body enforce its jurisdiction over future publications which everyone, save for the publication itself, agrees should be subject to a degree of supervision over its excesses? Peer pressure lacks sufficient bite.

So there are sound practical arguments for establishing a regulator on a statutory footing – supervised by the judicial review jurisdiction of the courts – which better defines the ambit of its role. (A possible model for a statutory regulator with a ‘light touch’ is considered below.) The process of defining that jurisdiction would helpfully focus debate on the extent to which internet-only publications and professional journalistic blogs online (eg. “Guido Fawkes”) should be covered by the regulatory regime.

Legislation could, for example, take the bold step of making provision for a regulator to ensure that a code of practice is respected by “journalistic publications” (both online and hard-copy) which are published in the UK and in respect of which there is a person with overall “editorial responsibility” (whether a body corporate or an individual) based in the UK. Clearly the terms used to define such a jurisdiction would need to be carefully thought through, not least to ensure consistency with the framework of the Electronic Commerce Regulations and the E-Commerce Directive (Directive 2000/31/EC). But elusive concepts such as “journalism” / “journalistic material” and “editorial responsibility” are already adopted in other legislative contexts: see, respectively, ss.3 & 32 of the Data Protection Act 1998 and s.368A(1)(c) & (4)  of the Communications Act 2003.

A statutory jurisdiction which extends to covering online content is nothing new. Leaving aside the provisions of the Digital Economy Act 2010, Part 4A of the Communications Act 2003 (implementing the European AVMS Directive) confers a co-regulatory jurisdiction on Ofcom and the Authority for Television On Demand (ATVOD) over audiovisual media content which may be available online if the services providing that content satisfy the defining criteria of an “on-demand programme service” in s.368A of the 2003 Act.

The PCC has in the past extended its remit (to a limited degree) to include editorial audiovisual material available on newspaper and magazine websites. So putting its jurisdiction on a statutory basis would help clarify the dividing line between the PCC’s current remit and that exercised by Ofcom and ATVOD. It would also go some way to tackling what has been called the “Internet Wild West” problem, at least so far as internet press publications established within the UK are concerned.

In any event, the introduction of statutory parameters would create a more consistent and level playing field between rival press interests, particularly the tabloid press. Why should the Daily Mirror be expected to go on abiding by a self-regulatory system if the Daily Express refuses to? Furthermore, a specialist independent statutory regulator at arm’s-length from the industry may also command more public confidence than one that is established and maintained solely by the grace and initiative of the industry itself.

Sanctions / powers of investigation: There is then the thorny issue of giving a designated regulator more effective powers to investigate possible breaches of an applicable press code of practice (eg. the Editors’ Code) and thereafter to impose sanctions for any established breaches of that Code which may include financial penalties.

The simple point is that such powers are much easier to apply if they are given the full effect of clear statutory provisions, ultimately enforceable by the courts, especially if they are powers which the press industry would not sign up to voluntarily.

But it is not a one-way street. If a designated regulator were given enhanced powers of investigation and penalties beyond the more usual remedies of corrections (with ‘due prominence’), apologies and published adjudications, then that regulator’s function becomes much more “quasi-judicial” in nature, necessitating greater procedural safeguards and standards of fairness for the protection of the industry as well as for the public.

The point is particularly important with respect to financial penalties against newspaper or magazine publications, especially as many are struggling to maintain their commercial positions in a difficult multi-media environment.  It is by no means clear whether there is a public or political appetite for giving a regulator the power to impose financial sanctions. But the need carefully to circumscribe the exercise of such powers is clear from the statutory framework for the regulation of broadcasting licences by Ofcom: see, for example, s.237 of the Communications Act 2003.

‘Enhanced’ self-regulatory or ‘voluntary’ options?

There are, of course, what might be termed ‘enhanced’ self-regulatory or ‘voluntary’ options which many have suggested should now be used to ‘beef up’ the jurisdiction of the PCC – giving it more extensive powers of investigation and enforcement – without recourse to statutory intervention. One option is for the industry to devise some binding industry-wide agreement or a system of conditions-based membership which compels compliance with a code of ethics and provides a legal source of greater powers for the regulator. Those options are fine as far as they go. But, in the end, without long-stop powers of statutory enforcement, they suffer from the defect that they cannot be applied as a matter of compulsion to (a) publications that refuse to sign up to the framework in the first place and/or (b) future publications that refuse to join the regulated fold.

Furthermore, powers which exist purely by virtue of contract may not be sufficient to ensure that those who initially decide to sign up don’t suddenly abandon the framework if they believe that it’s in their commercial interests to make a unilateral declaration of independence.

It is often overlooked that the Advertising Standards Authority – a model frequently cited as a paragon of “voluntary” regulation – has long-stop powers to refer non-broadcast advertisers who persistently break the relevant advertising codes to the Office of Fair Trading for legal action (under the Consumer Protection from Unfair Trading Regulations 2008 and Business Protection from Misleading Marketing Regulations 2008). (Broadcasters who continually air advertisements that contravene the applicable codes can be referred to Ofcom.) So the jurisdiction of the ASA is underwritten by recourse to statutory intervention to protect consumers. There are strong arguments that a press regulator should be no different.

Another, more radical option is that which has been persuasively proposed by Hugh Tomlinson QC on this blog. That option was to establish a “Media Regulation Tribunal” (“MRT”) whose existence would have the force of statute (providing for a “Media Code” to be enforced and adjudicated upon by the MRT), but to whose jurisdiction publishers could voluntarily submit in return for protection from claims in the ordinary courts.

That option itself recognises the need for a degree of statutory intervention. It also has undoubted attractions insofar as it incentivises (rather than compels) submission to the MRT model by offering a “kitemark” of journalistic quality to those publications that do sign up, and a risk of aggravated damages for those who choose to take their chances in the courts.

But this model also suffers from key weaknesses, which its proponents have been quick to recognise. The first is that a formal statutory tribunal, whether its jurisdiction is part-voluntarily or not, would necessarily be a fully judicial body with formal and legalistic proceedings, especially if there were a right of onward appeal to the Court of Appeal.  As such, it would run the very real risk of discouraging ordinary members of the public from choosing to access it as a preferred medium of redress.

Allied to that is the second problem of devising a costs regime which does not additionally deter the public from accessing the tribunal and instantly make someone with a legitimate complaint feel like s/he needs legal advice and representation.

A third and more fundamental problem, however, is that the MRT model – as currently envisaged – also runs the risk of enabling a two-tier of system regulation which lets more cynical, unscrupulous and unashamedly commercial publications slip through the net. Put bluntly, certain publications may not be particularly bothered by the chance to benefit from a ‘kitemark’ of quality which is thought to come with submission to the MRT. Furthermore, they may well take the view that the limited range of claims available against them in the ordinary courts (eg. in defamation and misuse of private information), combined with the deterrence of cost in pursuing such claims (at least for ordinary members of the public with modest financial means), make the decision to opt out of the MRT worthwhile.

A statutory regulator with a ‘light touch’?

In the course of current debate about the future of press regulation, there is perhaps a tendency to use the phrase “statutory regulation” as a byword for draconian state interference. However, that need not necessarily be the case, as the MRT model outlined by Hugh Tomlinson has amply demonstrated.

If Parliament were not to follow that particular model, it could decide to put an independent specialist regulator on a statutory footing and set the parameters for that regulator to apply a “light touch” regime. It could be given a defined jurisdiction, core functions and duties (to include mediation) and circumscribed powers of investigation and enforcement. Importantly, it could be left the freedom to devise with the press a mutually acceptable code of ethical standards.

How would Parliament ensure the implementation of a “light touch” in practice?

First, it could make provision for the designated statutory regulator’s general duties to include, like those of Ofcom under s. 3(3) of the Communications Act 2003, the duty to “have regard, in all cases, to– (a) the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed…” (emphasis added). That is a sound ‘touchstone’ duty by which the regulator could measure the performance of its more specific functions and the extent of its interference with the press.

Second, far from laying down the content of any code of practice or ethical standards, legislation could simply direct the regulator to prepare, and from time to time revise, a code – in consultation with regulated stakeholders – setting such standards as appear to it to be “in accordance with the ethics of journalism”. (The latter phrase is often adopted by the European Court of Human Rights in relation to the qualified right of free expression under Article 10 of the European Convention, as indeed it was in the recently finalised judgment in Mosley v United Kingdom, Application 48009/08. English courts themselves are well familiar with the concept of ‘responsible journalism’, as they are with the concept of what is in the “public interest”, without it having to be more narrowly defined by statute.)

Provision for such a code would specifically contemplate the very areas already addressed in the Editors’ Code (e.g. “Accuracy”, “Privacy”, “Harassment”, “Intrusion into grief or shock”, “Payment to criminals” etc.), which itself contains important “public interest” provisions. The obvious model for this sort of approach is Ofcom’s duty to prepare a ‘fairness and privacy’ code for broadcasters (under s.107 of the Broadcasting Act 1996) and a “standards code” (under s.319 of the Communications Act 2003). Those “codes” are contained in the Ofcom Broadcasting Code which is revised periodically and therefore has the virtue of adaptability.

Third, the regulator could then be given an obligation to secure the application of the standards or practices contained in the code by those publications within its jurisdiction, which would include (although not necessarily be limited to) a more specific to duty to adjudicate on particular complaints made against those publications.  But in order to ensure that the regulator never loses sight of the need for editorial latitude in the exercise of those functions, legislation could specifically direct it to act “in a manner that best guarantees an appropriate level of freedom of expression” (as in s.3(4) of Ofcom’s “General Duties” in the Communications Act 2003) or to have “particular regard to the importance of the Convention right to freedom of expression” (as in s.12 of the Human Rights Act 2000).

There would, of course, be plenty of areas for debate about the extent of a designated regulator’s ancillary powers to investigate, make directions and impose (financial) sanctions, all of which would have to be settled as a matter of legal and political policy. But the overall scheme sketched out above would offer a reasonable starting point for achieving an appropriately ‘light-touch’ framework of statutory regulation, one which avoids the licensing of journalists as such and balances the need for a more robust regulator with the vital democratic requirement to protect the freedom of the press and its role as a public watchdog.

Charlie Potter is a barrister practising at Blackstone Chambers.  Before becoming a barrister, he was a broadcast journalist / producer at the BBC’s flagship television news and current affairs programme, Newsnight.

 

 


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