FLJSLara FieldenWhat does the draft Royal Charter really mean when it sets out the three core touchstones of press regulation recommended by Lord Justice Leveson – that it is ‘voluntary’, ‘independent’ and ‘self-regulatory’? And how far are these qualities reflected in press regulation overseas?

My reflections on media law after Leveson seek to place these three principles of ethical press regulation within the wider context of the law. I also look briefly at three other aspects of the draft Charter’s framework – complaints, sanctions and arbitration – and end with some words of caution based on international experience of regulating journalism, not just in print but across media platforms.

My analysis draws on my Reuters Institute report Regulating the Press: A comparative study of international press councils, which formed the basis of my oral and written evidence to the Leveson Inquiry and was written during my Visiting Fellowship at the Institute. My research was based on interviews I conducted with press council chairs and ombudsmen from a range of mature democracies each with a ‘free press’ according to press freedom indices, and a press (or media) council.

How voluntary is ‘voluntary’?

All the countries I have considered bar one, Denmark, operate a voluntary system. In Germany membership is so voluntary that a major publisher Bauer Media Group has recently opted out of its regulatory obligations, refusing to publish Press Council reprimands following its breaches of the German Press Code.

In Sweden and Finland membership is also voluntary but pressure is exerted by the strength of trade associations and journalists’ unions so that individual media companies belong automatically because of their membership of these organisations.

Nothing in the draft Charter makes membership of any new regulatory body mandatory. It states simply that membership “should be open to all publishers”. It is the amendments to the related Crime and Courts Bill that penalise those who are not members, with the potential for exemplary damages and awards of costs.

No other press council I have looked at makes this direct link between financial sanctions in the courts and membership of the press council. Indeed for some the very thought raises concerns about a ‘get out of jail free’ card for press council members – whereby a tick box membership could reduce financial penalties. They argue this runs counter to the active ethical behaviour they seek to encourage.

But that doesn’t mean they don’t incentivise membership in other ways. The 2009 Irish Defamation Act for example does something rather more subtle and light touch, yet wholly effective in persuading all the mainstream publications in Ireland, including UK titles circulating there, to join its system.

The Act recognises a number of public interest defences for publications seeking to argue in court that a statement was not defamatory, but rather was ‘fair and reasonable’ publication. One of these defences is that the publication was a member of the Irish Press Council, adhered by its code and abided by its determinations (or adhered to equivalent standards which is a useful caveat for overseas providers). Thus actively compliant members of the Irish Press Council can use their membership as part of a public interest defence.

And then there’s Denmark, exceptional among the countries I have looked at, in that the regulation of print, as well as broadcast, journalism is mandatory under the Danish Media Liability Act which establishes the Press Council and a right to reply. There is no link between the Press Council and awards of damages by the courts and there is no power for the Press Council itself to fine, the only sanction at its disposal is to order an adjudication or correction to be published. However, should a publisher fail to do so, a fine or four month prison sentence could in principle be imposed by the courts.

‘Independence’ – how is it secured?

The draft Royal Charter sets out an independent process to recognise and periodically review an independent new self-regulatory body (or bodies).

The board of the recognition panel is not to include any politicians, publishers, nor anyone who is or has been an editor. The appointments committee appointing the recognition panel is to be chaired by a public appointments assessor and not to include serving editors, publishers or politicians. And of course the new regulator must have an independent board, with a chair appointed by an independent majority appointment panel. Any complaints committee must also have an independent majority. Independence runs through the entire framework envisaged.

Overseas, press councils illustrate a wide range of differing approaches to the notion of independence. For some it 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 the independence of the Press Council, in a similar way to the draft Royal Charter, is secured by the criteria set out in the Irish Defamation Act. And statutory recognition has gained ground elsewhere. Recent New Zealand proposals for a similar model give responsibility for recognition to their independent regulator the Chief Ombudsman.

What is ‘self’ regulation?

With the emphasis on ‘independence’ set out in such detail in the draft Royal Charter, the nature of what actually constitutes ‘self regulation’ is thrown into question. For a country like Germany self regulation is regulation of the industry by the industry with no independent members on its board. ‘Self regulation’ is a protection against external interference with the press.

The draft Royal Charter sets out the criteria by which a new regulatory body will be recognised but it is for the industry to set about meeting that criteria and applying for recognition. This appears to be where ‘self regulation’ kicks in, as well as in the funding of the new body which, in common with most overseas press councils, is the responsibility of the industry.

But in an important area self-regulation has been reduced. Hitherto the ‘Editors’ Code of Practice’, as its name suggests, has been the responsibility of an industry-only panel. This changes significantly under the draft Royal Charter which sets out that the Code Committee must be composed of equal proportions of independent members, journalists and editors and must publicly consult.

Three key functions of the ethical regulator

First complaint handling – 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 invite any member of the public or organisation to hold the press accountable by bringing a complaint for example about misleading information. This is the position the draft Royal Charter adopts.

Secondly, the draft Charter sets out that the board should have the authority to investigate, and impose sanctions of up to a million pounds in the case of, “serious or systemic” breaches of the code and failures to comply with directions of the board. Overseas, Press Councils’ main activity is complaint handling, coupled with perhaps issuing a statement at times of press excess or when press freedom is under pressure. Own initiative investigations by press councils are very rare. And none are able to fine their members in this way. A public adjudication, or a correction, is their chief sanction. All are clear that they provide alternative remedies to fines and damages.

The third function is an inexpensive arbitral process for civil legal claims. These claims are distinct from complaints under the ethical code but the arbitral process would fall within the ambit of the new regulator. The press councils I have looked at all counselled against any such blurring between ethical and legal boundaries. But that’s not to say that issues of access to justice are ignored. In New Zealand this issue has instead been addressed within the legal system. Communications Tribunals have recently been proposed in a draft New Media Bill. A sort of small claims court heard by district judges offering citizens, who can prove they have suffered significant harm, speedy and effective remedies such as take down orders.

A quick look at membership

The draft Charter takes an inclusive approach and sets out that “membership of a regulatory body should be open to all publishers on fair, reasonable and non-discriminatory terms”. The voluntary framework is open to any provider, new or old media, of any size.

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. However all are grappling with definitions of journalism and editorial control across electronic media and some, for example Norway, are now regulating Twitter and Facebook accounts as well as blogs. A key problem is how to re-shape their funding and governance frameworks to include new media.

One answer has been proposed in New Zealand. The starting point of their recent Law Commission Report News Media Meets ‘New Media’ is not phone hacking victims nor police corruption nor even the press. Their starting point is the public and the public interest in journalism. They identify the many ways in which, for democratic ends, we the public give the press privileges in our society – access to information (in for example court proceedings and confidential briefings), exemptions (such as from data protection requirements), rights (to protection of sources and to public interest defences). And they remind us that in return we have a right to expect those who hold power to account to be held accountable for their power.

The voluntary, ethical regulation they propose is a club you want to be a member of if you want a simple mechanism to demonstrate your credibility and accountability in return for privileged access to information, public interest defences and the right to display a standards or ‘qual’ mark, as they call it in New Zealand, differentiating your offering for the public and advertisers. The most significant punishment for breaching those standards is not a fine but suspension of membership. Their system would be entirely platform-neutral, open to the press, to online providers and to broadcasters. Providers choosing not to participate would lose the ethical, legal and brand advantages that membership provides and would of course be subject to the law. Most importantly the public will know who’s in and who’s out and can make their choices accordingly.

To sum up  

The consensus among all the press councils I have looked at is that press regulation is concerned with ethical standards (for example on accuracy, bereavement, interviewing children) that go far beyond the law, and with a speedy and cheap complaints mechanism that avoids costly litigation. Meanwhile the courts are there to impose financial punishments and damages when the civil or criminal law is breached. Going forward we will need clarity over the distinction between standards upheld by a code and rights upheld by the law. A blurring of the boundaries between the two will be a significant departure from regulatory systems elsewhere.

On the other hand the voluntary and independent framework set out in the draft Charter is a huge step forward in placing the public interest at the heart of regulation, and publicly recognising and promoting the ethical standards expected of any provider of content on any platform that chooses to join. Indeed a recent House of Lords Select Committee report on Media Convergence has suggested that non public service television providers of news and current affairs should fall under the regulator to emerge from the Leveson Report. This is a shot across the bows for the framing of the next Communications Act and whatever the regulatory framework – ethical and legal –  to emerge from next month’s Privy Council consideration of the draft Charter, it must be flexible enough to accommodate this next stage of the debate.

Lara Fielden is a research associate at the Reuters Institute for the Study of Journalism. Her report Regulating the Press: A comparative study of international press councils formed the basis of her oral evidence to the Leveson Inquiry and is available here. Prior to this, the RISJ in association with the Department of Journalism at City University London, published her book Regulating for Trust in Journalism: Standards regulation in the age of blended media in which she sets out proposals for a new regulatory settlement across the media (available here). Lara’s publications are informed by her past experience as a television news and current affairs producer, and later as a regulator with Ofcom.

This is an edited version of a presentation given to ‘Media Law after Leveson: a Foundation for Law, Justice and Society event 12 April 2013’