This is the final part of Lara Fielden’s analysis of the Leveson Proposals in the context of overseas models of press regulation. The first part was published on 30 December 2012.
Leveson makes three core recommendations on the way the new regulatory body should be organised (summarised in The Leveson Inquiry Report Volume 4 at p.1759 (Figure K7.1) and p.1777 Figure K7.2). He proposes it should have three arms: complaint handling, standards enforcement and the arbitration service.
On complaint handling a broad distinction exists between countries accepting complaints only from those personally affected, and those accepting complaints from any member of the public. The Danish, Swedish and Irish press councils accept complaints only from those personally affected by the content, most commonly issues of privacy and reputation, usually by being named or otherwise identified (although in practice the Irish Press Ombudsman accepts complaints with a fair degree of latitude). 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 for example about misleading information. Lord Justice Leveson has adopted the latter position and argues that the Board of the proposed regulatory body should have the power “to hear complaints whoever they come from, whether personally affected and directly affected by the alleged breach, or a representative group affected by the alleged breach, or a third party seeking to ensure accuracy of published information.” (The Leveson Inquiry Report Volume 4 p1765). Leveson’s proposals for the code rules themselves – including provisions for fair treatment, respect for privacy and accuracy (The Leveson Inquiry Report Volume 4 p1763) – chime with provisions overseas.
Secondly, Leveson proposes a standards arm which could take remedial action in the case of “serious or systemic” problems (The Leveson Inquiry Report Volume 4 p1766). This is by no means common practice overseas. Press Councils generally confine their main activity to complaint handling, coupled with the issuing of broader statements at times of press excess or concern that press freedom is under pressure. However the Australian Press Council has been developing its reach in order to address not just individual complaints but the promotion of wider issues of ethical standards. It has for example established a National Advisory Panel of eminent Australians to assess the impact of the standards set out in the Press Council’s code on the every day practices of publishers.
The Leveson proposals take the promotion of standards far further and provide the new body with the power to impose financial sanctions of up to 1% of turnover with a maximum of £1 million in cases of “serious of systematic breaches of the standards code or governance requirements of the body” (The Leveson Inquiry Report Volume 4 p1767). This is a departure from the countries considered in my report, none of whose press councils are able to fine their members in this way. On sanctions, all the press councils in my report, like the UK at present, have publication of their adjudication, or a correction, as the chief sanction. In Denmark this is backed up in statute with a fine or prison term for failure to comply. In Sweden there’s a ‘polluter pays’ administrative fee if a complaint is upheld, up to the equivalent of £3,000 depending on circulation. But, significantly, as a first-line sanction all the press councils are clear that they provide an ethical complement to the law, an alternative to legal proceedings, fines and damages.
The third arm Leveson proposes is a “fair, quick and inexpensive” arbitration service (The Leveson Inquiry Report Volume 4 pp1768-9). Those publishers choosing to sit outside the proposed voluntary regulatory framework could find themselves facing “disadvantageous costs awards and aggravated or exemplary damages in court” since by declining membership they would have denied complainants the opportunity to take their matter to the related arbitration service. Here Leveson’s proposal owes something to the Communications Tribunals proposed in New Zealand as part of its Law Commission’s consultation The News Media Meets New Media: Rights, Responsibilities and Regulation in the Digital Age [pdf]. The aim in New Zealand was to address the vexed issue of access to justice though a speedy, efficient and relatively cheap tribunal open to all. However its Law Commission does not propose that the system should sit within the ambit of the press regulator. The consultation keeps ethical regulation and the courts separate, stating “the regulator would enforce a code of ethics; the tribunal would enforce the law.”
Money, membership and muscle
Now for three additional features of Leveson’s proposals: funding, membership and independence, all of which are inter-connected (The evidence I provided to the Inquiry on funding, membership and independence is set out in Chapter 2 of my report Regulating the Press: A Comparative Study of International Press Councils). On funding he proposes that the regulatory body be paid for by its members. Industry funding is the most common source of press council revenue overseas, though this can leave the regulatory body exposed if members withdraw, taking their funds with them, as happened when News Limited withdrew from the Australian Press Council in the 1980’s. The German and Finnish regulators get round this by accepting 30% state funding, precisely to avoid over-dependence on major titles. Australia has addressed this issue by recently establishing that funding commitments should be made three years in advance and backed by legally binding contracts. Leveson himself argues that “Funding settlements should cover a four or five year period and should be negotiated well in advance.” (The Leveson Inquiry Report Volume 4 p1762).
In relation to independence, press councils illustrate a wide range of differing approaches. For some press councils, ‘independence’ means independence of the press from politicians and the board is composed of industry-only or industry-majority commissioners (as is the case in Germany and Finland respectively). For Sweden and Denmark it’s safeguarded through judicial appointments, and the chair and vice-chairs of those press councils are judges. In Ireland it’s in part secured through an independent appointments committee and, notably, by ensuring its funding committee is chaired by an independent member of the Council. While Lord Justice Leveson states that his proposals are for self-regulation, explaining that the new body would be “established and organised by the industry”, he seeks to enshrine independence at all levels (The Leveson Inquiry Report Volume 4 pp1758-61). A majority of independent members are recommended on the new body’s appointment’s panel, its Code Committee, any complaints committee, and on the Board itself on which he recommends no serving editors should sit. Furthermore, commenting on the existence of the powerful Press Board of Finance which has traditionally both set and levied membership fees for the UK’s Press Complaints Commission and also had a significant role in appointments, he says “there is no need for such a body to exist at all” (The Leveson Inquiry Report Volume 4 pp1761-2).
Eligibility for membership of a press council is an increasingly challenging issue across the globe. All the press councils explored in my report have extended the offer of membership to purely online providers (as well as to electronic versions of the traditional printed press). However all are grappling with definitions of journalism and editorial control across electronic media and some are now regulating Twitter and Facebook accounts as well as blogs. A key problem is how to re-shape their funding and governance framework to include new media. As an interim measure some press councils, for example in Ireland, are charging new media members a nominal flat fee, while in Sweden charges are only levied on new media members on a ‘polluter pays’ basis if they breach the code. These, however, are short term solutions and all recognise that the related issue of who should have a seat at the governance table must be resolved. Here Leveson takes an inclusive approach. He does not, as has been widely suggested, ignore new media. Instead he leaves his voluntary framework open to any provider of any size (unless already subject to broadcasting or video-on-demand regulation) “on fair, reasonable and non discriminatory terms, including making membership potentially available on different terms for different types of publisher” (The Leveson Inquiry Report Volume 4 p1761). Coupled with a kite mark his framework offers publishers, large or small, including blogs, the opportunity to differentiate their content in order “to establish a recognised brand of trusted journalism.” (The Leveson Inquiry Report Volume 4 p1796. My findings on the importance of an inclusive approach to membership across digital platforms and of kite-marking are set out in Chapter 7 of my report Regulating the Press: A Comparative Study of International Press Councils).
Looking to the future
There is notable 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 resulting in the establishing, or reform, of a press council. Lord Justice Leveson was evidently struck by this finding (The Leveson Inquiry Report Volume 4 p1670) and leaves the Damoclean sword of mandatory regulation hanging over the UK’s press. In the event of his proposals for voluntary, independent self-regulation failing, he argues that “backstop statutory regulation” should be imposed on those organisations “of a sufficient size, and with sufficient impact, to make accountability to society an important issue”. He makes clear however that these are his “personal” views rather than recommendations, and far from his “preferred solution” (The Leveson Inquiry Report Volume 4 p1793-4).
A potentially more pressing concern is the fast-approaching new Communications Bill, put on hold while the Leveson Inquiry concluded but on the agenda for 2013. Here the wider issue of providing a coherent regulatory framework not just for the press, whether in print or online, but for broadcasting, video on demand and wider digital content is likely to surface. Again there are lessons from overseas. A single body regulating news and current affairs across print and broadcasting might seem revolutionary in the UK but the Council for Mass Media in Finland has been doing this since it was established in 1968 and, as noted above, Finland consistently ranks high on press freedom indices. It’s voluntary self-regulation, and provides an ethical complement to licensing requirements for broadcasters. Meanwhile Australia offers an even more radical vision of the future. The Australian government is currently considering proposals from its recent Convergence Review which has recommended a new industry-led cross-platform news standards body, membership of which would be mandatory for the largest providers and incentivised for smaller publishers. The Australian proposals call time on regulation according to the mode of delivery (broadcast, printed, online) and instead link requirements to the size and scope of media enterprises.
In the UK it could be that the model of voluntary, independent, ethical regulation for the press that finally emerges from Lord Justice Leveson’s proposals might form the spine of a future, coherent regulatory settlement – for non-public service content – across media platforms including broadcasting. This is doubtless a thought too far in the immediate context of heated debate over implementing Leveson at all but, for those interested, it is the subject of my other Reuters Institute report Regulating for Trust in Journalism: Standards regulation in the age of blended media [pdf].
Lara Fielden is a Visiting Fellow at the Reuters Institute for the Study of Journalism