What can we learn from press councils overseas? The lesson that rapidly emerges from an exploration of press regulation across the globe is that it provides not so much a window on a foreign world, as a mirror in which an array of common problems are reflected back at us. The reality is that Press Councils around the world are grappling with profound challenges. The role and status of new media; converging content across print, broadcasting and online platforms; and financial austerity are just some of these testing issues. There is no one solution, no blueprint for reform, but there are interesting and valuable perspectives.
The first issue – the one we dance around when we talk about whether the PCC is, was or ever has been a regulator, the one that underlies the problem of publishers withdrawing from, or never joining, the regulatory fold, the one that raises hackles over suggestions of licensing the press – is the core question of voluntary versus mandatory regulation. But look overseas and you find not a binary choice but a spectrum of approaches.
Let’s start at the entirely voluntary end of the regulatory spectrum – and spare a thought for Canada. We may think we have a problem with Richard Desmond pulling his titles out of the PCC but that’s nothing to Canada where press councils – operating on a familiar self-regulatory basis – are haemorrhaging members and shutting up shop so fast it’s hard to keep track.
In July 2011 as we were reeling from phone hacking revelations, Canada’s largest newspaper publisher Sun Media Corporation withdrew all its publications – that’s 27 out of the 37 daily newspapers in Ontario – out of the Ontario Press Council. In so doing it accused the press council of a ‘politically correct mentality…incompatible’ with the editorial direction of its urban tabloids. In Quebec 40% of news publications sit outside the regulatory framework. And in January this year the Manitoba Press Council shut down after the last participating newspapers withdrew. It’s a stark lesson in what happens when newspapers feel they have no stake in a voluntary system and suffer no consequences from withdrawal.
And there’s Germany where all the major newspapers are members but where compliance is, to say the least, an issue. Take the newspaper Bild – directed to publish a Press Council adjudication against it – an article did appear referring to the finding, but under a headline mocking the Press Council as “Irre!”, “Crazy!” and declaring “We stand by our story.” Or take the German magazine Eco-Test, reprimanded by the Press Council for an article overstating links between eczema creams for babies and cancer. Eco-Test responded not by publishing the reprimand, as required, but by launching legal proceedings against the Press Council on the grounds that its adjudication damaged the magazine’s reputation. And is this a press council of outsiders seeking to impose their will on publishers? No, this is a press council with not a single independent commissioner, composed entirely of industry representatives – pure self-regulation if you like. But where sections of the press view regulation as a burden, even an irrelevance.
So what of the other end of the regulatory spectrum – a mandatory model, where the Press Council is established in statute, where a judge is its chair, where a publisher who fails to print a Press Council decision can face a fine or up to four months in prison. All of that’s the case in Denmark. So should we assume the problem of compliance is solved there? Not according to the Danish Parliamentary Committee on Legal Affairs and Culture which issued a statement at the end of February this year. It gave examples of recent egregious errors in the Danish press – including a nursery manager wrongly accused of complicity in paedophile abuse, and a man wrongly branded a killer. Even with statutory back-up to co-regulation, the Parliamentary Committee pointed to newspapers doing their best to bury publication of Press Council decisions with as little prominence as possible and has embarked on a scrutiny of the Press Council, its powers and its future.
But it is the area between these two ends of the spectrum which is perhaps most intriguing – where membership is voluntary, yet recognised in statute. A system that puts an emphasis on incentives for compliance before punitive sanctions. It’s the model at play in Ireland and it’s worth looking at one of its members in particular.
Like the vast majority of the Irish press, the Irish Daily Star is a member of the Irish Press Council. Membership is not mandatory but for the Irish Daily Star, like other member publications, adherence to the Press Council’s code and determinations is recognised in statute in the 2009 Irish Defamation Act. It’s an attractive way of demonstrating ethical and accountable journalism that can benefit the paper in defamation proceedings. Indeed if it offers an apology, correction or retraction that can also be taken into account in any award of damages. So the Irish Daily Star sits very comfortably within the regulated fold. And why is this so interesting? Because it is co-owned by Richard Desmond – who saw no advantage in being part of the UK’s Press Complaints Commission was clearly incentivised to join, and remain within, the Irish Press Council.
And the incentivised model is gaining traction elsewhere. It plays a part in recommendations for reform published by the Australian Convergence Review, and in New Zealand, where a Law Commission consultation is considering whether to extend the legal privileges and exemptions currently enjoyed by traditional news media to new media. This is what the New Zealand Law Commission says:
“there are a number of new web-based entities taking on some of the democratic functions traditionally assigned to ‘the press’: providing a public watchdog on corporate and state power and facilitating the free flow of information and ideas among citizens… These new publishers should, in principle, enjoy the same media protections and privileges accorded traditional news media… The quid pro quo, in our view, is that new players in this market who wish to position themselves as credible and reliable sources of news and current affairs should also be held accountable.”
The New Zealand consultation has sought to identify a range of journalistic rights and exemptions – defamation defences as in Ireland, but also exemptions from data protection restrictions, right of attendance in certain court and parliamentary sessions, protection of sources, informal protocols with the police – all of which could be linked to media that demonstrate ethical accountability and adherence to standards.
And where new media see incentivised regulation they appear to embrace it. Let’s return to the Danish Press Council. While its regulation of both printed and broadcast journalism is mandatory, it offers membership to new media on a voluntary basis. And it’s a hugely popular invitation. Over 350 new media players have registered so far including not just websites but broadcasters’ online offerings, blogs, Twitter accounts, even Facebook and LinkedIn profiles. So what accounts for this active move to the regulated sphere? Providers benefit from a cheap alternative to court processes for the resolution of complaints. And membership contributes to a provider’s credibility, differentiating their content from the sea of unregulated, potentially unaccountable, offerings.
Reform in the UK has the potential to lead the transformation of a newsroom culture that gave rise to phone-hacking – and saw regulation as an irrelevance – towards the robust incentivising of ethical compliance as a vital commercial, and legal selling point, differentiating not old and new media, nor professional and amateur journalism, but regulated from unregulated content.
My report has compared press councils in relation to a whole range of factors, and I would like to point up two areas of difference and two areas of common ground.
On independence there are a wide range of differing approaches. For some press councils, independence rests with industry-only or industry-majority commissioners, for Sweden and Denmark it’s safeguarded through judicial appointments. In Ireland it’s in part secured through an independent appointments committee and – by striking contrast to the other press councils I have considered and to the UK – by ensuring its funding committee is chaired by an independent member of the Council. Of course funding, and the issue of how far funders have an impact on decision-making and appointments, is significant here. Some press councils reject state funding for fear of interference, others accept it on a ‘no strings’ basis precisely in order to secure independence and reduce reliance on industry contributions.
A second area of difference lies in the bread-and-butter work of all press councils – complaints. The Danish, Swedish and Irish press councils accept complaints only from those personally affected by the content (most commonly issues of privacy and reputation). Meanwhile the Australian, Finnish and German press councils feel strongly that any member of the public should also be able to hold the press accountable by bringing a complaint.
Now for two areas of common ground.
On sanctions, all the press councils in the report, like the UK at present, have publication of their adjudication, or a correction, as the chief sanction. In Denmark, as I’ve mentioned, this is backed up by a fine or prison term for failure to comply, in Sweden there’s a ‘polluter pays’ administrative fee if a complaint is upheld. But as a first-line sanction the press councils are clear that they provide an ethical complement to the law, an alternative to legal proceedings, fines and damages.
And there is another common feature linking all the press councils considered in my report, whatever their cultural, political or historical context. A look at their origins reveals a common story – the threat of statutory intervention followed by expedient industry accommodation.
We are all too familiar in the UK with the cycle of statutory threats and industry last chance saloons. But we have the opportunity to break this cycle, to remind ourselves that freedom of the press is not an end in itself but serves a democratic function in the public interest; and that the starting point of regulatory reform should lie not in what industry will reluctantly accept, nor in what the state can get away with, but in the public interest in regulation itself.
Lara Fielden is a Visiting Fellow at the Reuters Institute for the Study of Journalism. Her report Regulating the Press: A comparative study of international press councils was commissioned by the RISJ as the first comparative study of press regulation to contribute to debate on UK press reform and published on 30 April 2012. She is the author of Regulating for Trust in Journalism: Standards regulation in the age of blended media, published in November 2011, which argues that the current regulatory framework for UK media – separating broadcast, newspaper and online content – has run its course and sets out proposals for a new regulatory settlement across the media.
This is the text of a presentation to “Lessons for Leveson – what can we learn from press regulation elsewhere? A Reuters Institute for the Study of Journalism event at the Royal Society of Arts on 30 April 2012.