Leveson Module 4: Round-up of Regulatory Reform Submissions to the Inquiry – Gervase de Wilde

30 06 2012

The submissions to the Inquiry as part of Module 4 aim to meet its Draft Criteria for an Effective Regulatory Regime. They reflect the broad range of interests of those who have participated in or commented on the Inquiry so far. The proposals range from an enhanced version of the PCC to radical reform which addresses media plurality in general, the future of regional and public interest journalism, and levies on internet businesses which profit indirectly from news online.

Given the unprecedented opportunity Leveson provides, those like Max Mosley or the Coordinating Committee for Media Reform (“CCMR”) who urge drastic solutions should be listened to carefully, particularly where they do not have access to the megaphone provided by the printed press.

Historical context, helpfully provided in the submissions of Professor Roy Greenslade, Chris Frost and others, conjures the ghosts of media reforms past and is useful for understanding both how we arrived at the immediate moment of crisis crystallised in the inquiry, and where past efforts have foundered.

Regulatory Models Proposed

State Regulation

Not a single one of the submissions proposes direct state regulation of the media; it is only mentioned in the most negative terms. It is clear that state regulation in this sense is a straw man which is being used to strengthen the position of those who are opposed to any sort of statutory underpinning for a reformed regulatory system: Paul Dacre refers to such a statutory backstop as ”the thin end of the wedge”.

Lord Hunt draws attention to Lord Soley’s proposed 1992/3 bill which would have required press impartiality, a measure which could have “critically undermined” its freedom. While Hunt’s dire warnings about the potential implications of state regulation seem to be aimed as much at the recalcitrant elements of the industry as anywhere else, there appears to be absolutely no appetite for political intervention in newspaper content. Lord Wakeham, another former PCC chair, reinforces Lord Hunt’s point about “the level of antipathy towards the press in some parts of Parliament”, but, again, there is little or no evidence of antipathy which would amount to a desire to shackle a free press.

Statutory intervention

There is, by contrast, an emerging consensus around statutory intervention in the form of a “backstop” or “enabling” statute which could bring a new regulator into being and, potentially, compel membership and compliance. Far from being a slippery slope to state interference, this could exist alongside a self-regulatory body (OFCOM’s submission suggests that it could be used simply to recognise incentives for membership and the need for independent governance), or to establish a “Media Standards Authority” in which participation is voluntary but heavily incentivised (the Media Regulation Roundtable’s (“MRR”) proposal). Some go further, stating that incentives for membership of a new system are inadequate: Early Resolution suggests that there should be a mandatory system of adjudication for libel and privacy claims against the media established by statute.

Some of the most compelling voices which are calling for legislation are those of former or practising journalists such as Roy Greenslade, and Michelle Stanistreet of the NUJ. They can hardly be accused of wishing to muzzle or undermine the profession of which they are a part.

The contractual model

The principal alternative to a statutory framework for regulation, this is the scheme set out by Lord Black in his extensive submission, which is accompanied by a proposed contractual framework and draft articles of association for a community interest company. Lord Black’s, Lord Hunt’s and Paul Dacre’s positions are broadly aligned, centring around a contractual relationship between the “regulated entities” and the regulator. The detailed regulations in Lord Black’s submission set out the financial penalties for serious or systemic breaches of the accompanying Code: 1% of turnover up to a maximum of £1,000,000. Although this would represent a painful blow for any media organisation, it is hard if not impossible to imagine the imposition of such a large fine by an industry funded body against one of its members.

Litigation in the event of a breach by a newspaper is even more difficult to envisage, as pointed out by Chris Frost on behalf of the NUJ. The majority of the submissions emphasise the extent to which the PCC and its self-regulatory model is now a busted flush (if it was ever a satisfactory solution to the problems it sought to solve in the first place). The attempts to perpetuate it in a new form seem unlikely to be acceptable to Leveson LJ, the majority of interested parties, or the wider public. Editors have rallied round at Leveson to emphasise the distress caused by a critical PCC adjudication, but Lord Black’s assertion that issuing of a critical adjudication will be the most significant penalty of the complaints arm of a new regulator hardly inspires confidence.

An Ombudsman

There is an appetite amongst many of those who have submitted proposals for the creation of a media Ombudsman. The submission by the British and Irish Ombudsman Association is particularly helpful for understanding how an ombudsman would intersect with a regulator: broadly, there would need to be a parallel regulatory body (though it is theoretically possible to have an ombudsman and no regulator), and it would need to have equivalent status to the ombudsman, i.e. both would be statutory or both voluntary. It also explains where the role of a press ombudsman would differ from that exercised in existing schemes where complaints are from customers rather than victims.

The Association is critical of the PCC/Lord Hunt proposal for a voluntary regulator with two arms, one of which deals with complaints and mediation, suggesting that where such a body is not independent of the regulator it would not benefit from public confidence. Others who support the creation of an Ombudsman include the CCMR, Media-Wise, Roy Greenslade and Michelle Stanistreet.

Other pressing issues

Digital media

Most submissions make reference to the need for the inquiry to address the changing media landscape. Mapping this terrain ten years from now is an impossible task (who, ten years ago, could have predicted the prevalence today of social media, or media consumption on hand held devices?). But future-proofing any proposals or regulation is clearly important. Both the contractual and incentive based models for membership of a new body have sufficient flexibility to encompass existing and future digital media organisations. While the large media corporations are keen to see their smaller, and more nimble, online commercial competitors swept up into regulation with them, Professor Greenslade suggests that we should simply live with the fact that some bloggers, who may relish “promoting themselves as being outside a system they will probably dub self-censorship” will not want to participate.

Libel and Privacy Reform

An area of particular interest to media lawyers, this forms the main plank of some proposals, where in others it is a subsidiary part of broader regulatory reform. Both experience and the assertions of the press themselves suggest that reducing the costs involved in libel and privacy litigation would be seen by them as a worthwhile quid pro quo in encouraging other aspects of reform. There is widespread agreement that displacing all litigation into ADR processes would fall foul of Article 6 ECHR, but some (the Alternative Libel Project) see costs savings as a sufficient incentive for participation, where others (Early Resolution) feel they must involve statutory compulsion.

There are existing models for ADR schemes which exist in parallel with the jurisdiction of the High Court, such as that used by the construction industry , and whether a tribunal (Max Moseley), an Authority (MRR) or an ombudsman is proposed, those making submissions seem clear that a speedy, low cost alternative to the current system could be made to work alongside it. The idea that the decisions of an Authority or Ombudsman might be judicially reviewable raises the intriguing prospect of many media-centred claims ultimately being decided in the Administrative Court.

The Public Interest

The question of the public interest is one which preoccupies many of those who have made submissions. First there is a concern for a more wide-ranging legal definition of the term. It is the very first clause of Max Moseley’s proposed short statute, and is cited by the MRR as a particularly important part of any future journalists’ code which could “provide a general public interest defence in any civil proceedings to the media”. This is also supported by the CCMR and the Media Standards Trust, while Professor Greenslade suggests that the interim guidelines issued by the Director of Public Prosecutions on 18 April 2012 “could be applied to every law to offer journalists a public interest defence”.

Second, there is discussion of public interest journalism, and how this can be funded and encouraged in the future. The CCMR’s proposal is the most radical in this respect: it suggests obligatory financial support from large media and internet businesses to create a third sector of media services “that functions exclusively in the public interest and not for profit”. The MRT seeks a more general effort to protect public interest journalism “by protecting high standards of ethical and responsible journalism”.

Journalists themselves

Amid all the discussion of the purposes and prospects of journalism, it might easy to overlook journalists themselves. There is support for the insertion of a conscience clause in any future Code to protect those on the front line, and suggestions that whistleblowers should also receive advice and protection (MRT). An enhanced role for Readers’ Editors (Professor Greenslade and others) could also play a part in protecting the interests of those in the profession. A failure to consider and act in  their interests would surely make real reform impossible.

Gervase de Wilde is a former journalist at the Daily Telegraph and a student barrister.


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