Save the Fourth Estate! – William Dutton

12 10 2013

william_dutton-150x150The PressBof request for a Royal Charter was rejected by the privy council, but it seems that some form of Royal Charter on press regulation will be approved by the end of the month. William Dutton of the Oxford Internet Institute whose work focuses on the emergence of a Fifth Estate, warns that the Royal Charter route could mean the end of the Fourth.

The UK is on the brink – if not beyond – of undermining the independence of the press. Lord Leveson has repeatedly recommended that the press should be governed by ‘independent self regulation’ but the development of a statute or Royal Charter to accomplish this is simply inconsistent with that principle.

You can mark the beginning of the end of the Fourth Estate – a key institution of our pluralist democracy – if the decision to grant a Royal Charter moves ahead. It will mandate how the press will regulate itself, and therefore conform to what others have argued – rightly in my opinion – to be government mandated regulation.

The present debate has been artfully moved along to dismiss the question of press independence by re-framing the debate to focus on the form that a Royal Charter will take. As politicians focus on the fine details of a regulatory framework that are impenetrable to a lay person, with quick references to the Leveson principles (buried in 4 volumes of close to 2000 pages), and other documents that no member of the public will have at hand, it seems the decision has been made.

The irony is that all parties seem set on developing a state mandated self-regulatory regime for the press, when that was not really the source of the problem. Remember: The crisis over press regulation was triggered primarily over phone hacking, and related claims that reporters had bribed police.

Back to the beginning

A number of mechanisms exist to deal with each of these problems, and they are not the central role of a Press Complaints Commission.

Phone hacking (which we know now to be far broader than the press) is a matter of privacy and data protection. As such, the Information Commissioner’s Office (ICO) had addressed the issue well before it went ballistic when Mumsnet raised valid concerns over this practice in relation to the family of Milly Dowler, even if these concerns were based in large part on inaccurate information. I do not blame the ICO, as they sought to address phone hacking, but they have a legitimate role and resources to deal with this issue that no press complaints commission would ever possess. It was wrong to blame the press complaints commission for not tackling this problem. Instead, any uncertainty over the protection of the public from phone hacking needs to be clarified in privacy and data protection, and more resources provided to deal with this problem.

Likewise, bribery is a matter for the Metropolitan Police. Does anyone truly believe that any press complaints commission could investigate and challenge the Metropolitan Police? It was wrong to blame the press complaints commission for this problem.

Laws may have been broken, but they were not laws that were the responsibility of the press complaints commission to redress. The commission may have been viewed as ineffectual, and lost support in the industry. Perhaps it was viewed as a good sacrificial lamb to help make this crisis go away, but it obviously has not done the trick.

Making big sacrifices

So a Royal Charter is proposed that will establish a press regulator that will address the weaknesses of the previous self-regulatory body. Never mind that the self-regulator was held responsible for hacking and bribery that it could not reasonably be expected to correct. Moreover, to create this new ‘self-regulatory’ body, and create incentives for papers to come under this new body, papers who refuse will be exposed to greater penalties, such as for libel, while those papers under the protection of the Royal Charter will have more protection.

Its advocates argue that as long as freedom of expression is balanced correctly with the rights of the individuals in the news, then there should be no problem. Of course, balancing these rights is extremely difficult and is within the remit of any press complaints commission, assuming laws have not been violated.

The Royal Charter gains credibility from the support of some of the most respected papers. They might not see these measures directed at their papers, but instead at some of the tabloid press. I fear they will quickly regret the bargain they have struck, and I have nothing put praise for a few courageous editors who are likely to reject these protections in order to maintain their independence from government.

The critical feature of the press in a liberal democratic society is that it is independent of government, and therefore able to hold the government more accountable. This is the essence of a pluralist democracy. The Royal Charter will undermine the independence of the press, and the Fourth Estate.

I should emphasize that I am not opposed to regulation per se, such as if it were designed to protect the press from government and political interference. The Royal Charter, unfortunately, creates a body that is a risk to an independent press.

So get ready for the demise of Britain’s Fourth Estate. Invented in Britain. Coined by Edmund Burke. Taken for granted and undermined by a broad consensus of politicians. Lord Leveson said he supports ‘independent self regulation’, but the proposal is for government mandated regulation, which is exactly what we will get under a statute, a Royal Charter or any other state mandate.

Alternatively, focus on the real problems. Bolster the ICO in ways to more effectively deal with phone hacking and other invasions of privacy. Make sure the police have been safeguards on bribery and relations with the press. And with respect to accuracy, and hounding of individuals, use the Internet and the press to expose poor reporting and bad practice, with the support of any press complaints commission set up by the press in the aftermath of this crisis of Britain’s Fourth Estate.

William Dutton is the Professor of Internet Studies at the University of Oxford.

This post was originally published on the LSE Media Policy Project Blog and is reproduced with permission and thanks.


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7 responses

12 10 2013
Alan

It is difficult to know where to start with Professor Dutton’s misconceived and misguided analysis here.

First, he suggests that the proposed “ recognition panel” is “government mandated regulation”. This is, presumably, intended to be pejorative. It does not mean that the government does the regulating but rather that the government (or rather the independent judge whose recommendations the Royal Charter implements) has set basic standards which a regulator must comply with. But the terms of the applicable “standards code” are not “mandated” and neither is the detail as to how the regulator works, much less the day to regulation of the press. If this is “mandating”, so be it but there is no much wrong with it – most areas of business are subject to “government mandated regulation” in some sense. Why not the press?

Second, Professor Dutton repeats the old canard that because phone hacking and bribery are criminal they don’t demonstrate the need for stronger regulation. The point is that not that individual journalists hacked, blagged and bribed but that there was a culture of wrongdoing in the press. This is a matter for regulation, not for the criminal law. Lord Justice Leveson explained in great detail in his report why the criminal (or civil law) is not appropriate to deal with the kinds of wrongs perpetrated by the press.

Third, he tries to let the PCC off the hook. He seems to have forgotten that through most of its existence the PCC claimed to be a press regulator. If it had been then its job would have been to deal with these kind of problems. At the end, it admitted that it wasn’t a regulator at all but, rather, a complaints service. Yes, it could have dealt with phone hacking and bribery which editors must have known were endemic in Fleet Street but chose to ignore. One of the points of a regulator is that it has specialist knowledge of the industry and can deal with things which may not be immediately apparent to outsiders.

Fourth, Professor Dutton talks of the vital importance of “independence”. Yes, it is a critical feature of the press in a liberal democratic society that it is independent of government. No, such independence is not compromised by the Royal Charter. It is also a critical feature of a judiciary in a liberal democratic society that it is independent of government but nobody argues that a “state mandated” judicial appointments commission and a Judicial Conduct Investigations Office compromises that independence.

The idea that an effective independent regulator will lead to the demise of the “Fourth Estate” is fanciful. It might be doubted that the large media corporations – with their symbiotic relations with Government and politicians – can properly be described as the “fourth estate” at all. But their ability to hold government to account is hardly going to be compromised by having to pay some regard to a standards code for a change. A press which corrects inaccuracies and does not bully and harass is what is needed – and what the Leveson compliant self-regulator is intended to promote.

14 10 2013
"Robin Lupinyo"

“Second, Professor Dutton repeats the old canard that because phone hacking and bribery are criminal they don’t demonstrate the need for stronger regulation. The point is that not that individual journalists hacked, blagged and bribed but that there was a culture of wrongdoing in the press. This is a matter for regulation, not for the criminal law. Lord Justice Leveson explained in great detail in his report why the criminal (or civil law) is not appropriate to deal with the kinds of wrongs perpetrated by the press.”

I’m still not sure how a regulator would tackle that unless it’s backed by legislation which gives it powers to investigate. Let’s assume for a moment that the Royal Charter becomes reality and all the newspapers sign up to a regulator which complies with it. What would that regulator be able to do with a new version of the News of the World that took part in illegal activities? Or even another example of computer hacking like the Times and Nightjack – not something that was obviously part of a culture of illegal practices but the actions of an individual? The new PCC would have no powers to subpoena records or compel people to give evidence – that surely requires quite a bit more than a dab of statute.

What concerns me about this process is that we will come to the end of it and we will find that very little has really changed. People who complain to the new body unsuccessfully will continue to view self-regulation as indulging big publishers. People with money will continue to use the courts if they have a case. A lot of distinctly unrealistic expectations are being placed on the idea of a new system of self-regulation. If a doctor breaks the law I would expect him to be prosecuted by the police. If a lawyer breaks the law, then she ought to be prosecuted. Why should journalists who break the law expect the full weight of the regulator to come down on them?

12 10 2013
Professor Gavin Phillipson

Alan above has very ably refuted many of the specific points (such as they are) made by Prof Dutton. It only remains to add that this is a poorly-reasoned piece of scaremongering, which I am surprised to see written by an academic (one has become accustomed to this kind of thing in the self-serving newspapers). Insofar as it makes any arguments (as opposed to doom-laden assertions) they appear to misunderstand the difference between direct government regulation of the media and what Leveson proposed, and what the Charter (and related statutory provisions) do, which is to set the broad standards within which meaningful *self*-regulation can take place, set up a process to recognise and periodically review a *self*-regulatory body, and provide incentives for newspapers to sign up to it. As Lara Fielden has noted, the Leveson proposals (which the Royal Charter scheme broadly follow), sit on a middle point of a continuum of media regulatory possibilities, one that is also occupied by by Sweden, Finland, Ireland and Australia. On Dutton’s logic, the Fourth Estate has presumably died in those countries as well. (Strange then that Finland comes top in the World Press Freedom index rankings). Dutton asserts that the Royal Charter and legislative scheme is contrary to what Leveson proposed: but surely he cannot be unaware that Leveson proposed statutory underpinning for his scheme, to provide the principles and recognition process within which self-regulation would operate?

Dutton, like every newspaper article that has taken this line, provides no substantiation for his argument that the new system would pose a risk to the independence of the press or subject journalism to ‘political interference.’

Finally, there is the rather important point that the scheme is not compulsory and some newspapers such as the Spectator have declared that they will not join it – a strange way of destroying the independence of the press to leave newspapers free to decide whether to join the destructive scheme or not!

12 10 2013
Felix Labinjo

This article reminds me of a gentleman walking up and down London’s Oxford Street with a sandwich board, hanging over his shoulders, bearing the apocalyptic message “The end of the world is nigh.”

The Fourth Estate has been in existence for 300 years. Like all establishments, it must continue to undergo change, even more so, in light of its excesses that have gone on for far too long. The Royal Charter will, in no way, undermine its independence or diminish its role in holding governments to account.

While there are genuine concerns regarding whether the press regulator will be free from political interference and pressure, the fact remains: there is a need this new experiment, even more so, in the absence of any suitable and widely acceptable alternative.

What has become evident, since the days of the Leveson enquiry, is that the press, in general, has learnt nothing from its past mistakes nor has it shown any genuine resolve to put its house in order. Hence, its metaphorical lightning of wrong-doing keeps on striking, over and over, in the same place.

Freedom of the press does not mean the right to unfettered freedom.

Concerns about press culture, practices and ethics, that have been voiced by members of the public over the years, and, in particular, during the Leveson enquiry, need to be addressed in a realistic, effective and non cosmetic way.

The whole process is evolutionary. Let us see how the checks and balances under a Royal Charter are applied in practice and whether the regulatory body is managed away from Parliament.

13 10 2013
Bill Dutton

Alan, Prof Phillipson, Felix, thanks for reading and commenting on my blog. Just to pick up a few of your points:

– treating the press like any other business misses the point that the press is not just another business – it plays a role in holding government (including the courts) more democratically accountable.

– you want this new regulator to police the culture of the press. Boy, that is going to be a very tough regulator, but it seems very heavy handed to me.

– you dismiss my points and still argue that a regulator should take care of hacking and bribery – impossible. If I am apocalyptic you have not learned from the difficulties faced by the ICO and police

– the end of the Fourth Estate is not the end of the world, but thanks for the idea of a sandwich board.

16 10 2013
Alan

Professor Dutton says

“treating the press like any other business misses the point that the press is not just another business – it plays a role in holding government (including the courts) more democratically accountable”.

Four points in response:

1. The same could be said for broadcasters – they are subject to strict statutory regulation which does not seem to make them government toadies. Regulation and holding to account are not incompatible.

2. The press also exercises great political power (which it often uses in its own self-interest) and it helps to frame the terms of public debate. As a result, there is a strong argument that it should be subject to some basic rules of accuracy, transparency and responsibility. This is an argument that the press itself has accepted by signing up to the Editors’ Code – its just that the press has, in practice, ignored the Code’s provisions.

3. The press is also a business – and is tempted to behave badly to promote its commercial interests. Regulation is designed to ensure those temptations are avoided.

4. In any event, the press is not, in fact, being treated “like another business” – if it had been there would have been no need to construct the elaborate two tier system of “recognition body” and “self-regulator”. The whole “Royal Charter process” is designed to provide complete regulatory independence – subject only to the regulator complying with basic standards of independence and effectiveness.

14 10 2013
Gavin Phillipson

thanks Bill. Point is that the Charter contains very strong and specific safeguards against any political interference:

>it specifically bans any prior restraint by the regulator (so dark complaints by the press that e.g. the expenses scandal would never have seen the light of day are straightforwardly false);

>no politician can sit on, or appoint members to either the Recognition Panel or the actual Regulator so not sure how the much -vaunted political interference with the press is to take place;

>no politician will have any hand in drawing up the actual Standards Code.

In other words, what we will have is a PCC-style body that actually does what it once claimed to do – regulate the press for ethical standards, but this time actually provide the quick and cheap/free remedies when serious errors are made by the press that everyone agrees we want (remember the press also complains very loudly about both privacy and defamation law on grounds of costs and slowness).

The sole argument that can be made is that the Charter could be changed in future. This is true, but so could any law affecting any of our fundamental rights and liberty – and it’s a little ironic that so many of the press screaming about this also support the wholesale removal of guaranteed rights and freedoms for the rest of us contained in the HRA and ECHR. The nature of living in the British system of parliamentary sovereignty – which the Telegraph, Mail etc vociferously support – is that all of our rights and freedoms exist at the pleasure of Parliament. So yes this could change in the future, but a law could be passed tomorrow depriving you and me of our liberty – it’s a technically valid but substantively meaningless argument.

Finally, of course, it’s actually harder to change the Charter (because of the 2/3rds majority) requirement than it is to pass an Act of Parliament – so this settlement is more secure than anything else in the UK constitution.

Assuming you accept all the above is true, do you still stand by your claim that this is the ‘end’ of the Fourth Estate?

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