For the Public Benefit: Why Everyone Should Back the Royal Charter on Press Self-Regulation – Brian Cathcart

15 10 2013

Press regulation dealMuch of the press has wildly misread the public mood on press reform. After a weekend of Leveson-bashing and breathless attacks on the Royal Charter agreed by parliament, a new poll conducted by YouGov for the Media Standards Trust and reported in the Guardian shows public backing for the judge’s reform to be as strong as ever.

Over 70% of the public believe that it is important that a new system of press self-regulation is periodically reviewed by an independent commission. Intriguingly, this figure includes 71% of Mail readers and 90% of Telegraph readers, whose papers have been virulently opposed to Leveson since his inquiry began and busy trashing him and all those who argue for a replacement to the discredited PCC for a year or more.

The findings – which include the fact that most newspaper readers want their paper to join the new club – demonstrate that the public has grasped something which the newspapers have chosen to ignore: The Royal Charter implementing the Leveson proposals that was finalised on Friday and receives its royal seal on 30 October will benefit the public, the press and journalists in a number of ways.

What the Charter does – and doesn’t do

The Charter does not create a regulator. It creates a totally independent body called the Recognition Panel, which will act on behalf of the public to ensure that a future press self-regulator meets basic, specified standards of effectiveness and independence. It will be up to news publishers and other independent organisations to set up any such self-regulators.

The Recognition Panel represents an essential break from the past, when the Press Complaints Commission (PCC) operated without effective external scrutiny. As the Leveson Inquiry made clear, the PCC was in practice the creature of the industry and did not act as a regulator or provide effective remedies for the public at all.

At the outset, and then every few years, the Panel will inspect the self-regulator to check it conforms to criteria that are set out in the Charter and that require it to be independent and effective. These criteria were drawn up by Lord Justice Leveson as a result of his year-long inquiry into the press.

The Charter settlement offers a historic opportunity to put behind us widespread misconduct of the kinds identified in the Leveson Report and so to rebuild trust between the press and the public. It does this without in any way reducing the freedom of the press to carry out journalism that is in the public interest.

Here are four major advantages of the new system for the public.

1. Press freedom

The Charter system formally removes from the regulation system all party politicians. And it insulates the system from any form of political interference, by ensuring that it is independent of government and political parties, and transparently so.

Under the Charter system no working politician can be a member of the board of the self-regulator, or may participate in the appointments to its board. This is an important advance because the leadership of the PCC has in the past reflected the more general problem of over-close relations between politicians and the press.

Four of the five chairs of the PCC over the past 20 years have been active party politicians. The current and final chair of the PCC is Lord Hunt, a former Conservative Cabinet minister who takes the Conservative whip in the Lords. The chair of PressBof, the powerful funding body that oversees the PCC on behalf of the industry, is Lord Black, who also takes the Conservative whip in the Lords. The Parliamentary Charter explicitly prevents such connections with any political party. The Press industry Charter, drafted by Lord Black and Lord Hunt, allows such connections, and was rejected by the Privy Counsel in part for not being independent of politicians.

Nor, under the cross-party Charter, could a working politician become a member of the Recognition Panel, or of the body that appoints the Panel, or of the staff of the Panel.

In our democracy, Government or Parliament can of course pass or amend any law restricting the press or the courts by a simple majority. But uniquely in this case, and unlike other chartered body, the Recognition Panel will not only be free from tampering by the Privy Council (which is in practice a committee of ministers meeting in private) but also protected from routine Government amendment in Parliament itself. This is because the Charter can only be altered by a resolution of both Houses of Parliament, passed in each case by a two-thirds vote. This is a very high bar indeed, which means that no change can take place without full and open public debate as well as substantial parliamentary consensus. In effect, it puts the charter beyond the reach of a future government wishing to meddle with the text. As the Culture Secretary put it on Friday, “Without the parliamentary lock, a very small group of ministers without any debate at all could make changes to the Charter”.

The Charter also states that a self-regulator will not be approved if it has the power ‘to prevent publication of any material, by anyone, at any time.”

2. Complaints

When, in the future, members of the public complain that news publishers have breached the industry’s code of standards (relating to such things as fairness in reporting news (but not opinion), basic accuracy and respect for grief and shock), they will know that the self-regulator will deal with their complaints in an impartial manner.

If someone has a complaint, they should take it in the first instance to the news publisher that published the relevant item, and the Charter says that publishers must have processes for dealing with such complaints in a fair and timely way. Publishers must also be able to show that they have internal processes for ensuring that their journalists comply with the self-regulator’s standards code.

Should a complainant feel that their complaint has not been dealt with fairly or satisfactorily, they will have a properly independent body to approach for redress. In the past, as the Leveson Inquiry found, many people did not trust the PCC because it was too close to the press industry and to the editors who ran it.

The new Charter sets out that the Recognition Body will only approve a new self-regulator if that regulator’s governing board is appointed ‘in a genuinely open, transparent and independent way, without any influence from industry or Government’. Serving editors and politicians can’t be members and a clear majority of members must be demonstrably independent of the press.

And if a complaint against a news publisher is upheld, the board of the new self-regulator will have a clear power, as the Charter puts it, ‘to direct appropriate remedial action’. This will include corrections and apologies. This means that editors will not have the ability to delay the publication of corrections and apologies, and they will not be able to tuck them away in some unseen corner of their publication.

3. Arbitration

The biggest innovation in the new Charter system is the introduction of an arbitration service to handle civil legal claims against news publishers. This should reduce the cost, time and stress of bringing a case against a news publisher for, say, libel or an unjustifiable breach of the right to privacy.

Under the original March 18th Royal Charter, as Lord Justice Leveson prescribed, the arbitration service could not charge an up-front fee to someone bringing a case. In the Charter published on Friday, however, politicians offered newspapers two significant concessions in this area. The first is that regulators can introduce a small upfront administration fee. There will also be the option for local and regional papers to opt out of the arbitration service after trying it out. The reason for these two compromises was to allay fears (unsubstantiated thus far) that the introduction of cheap arbitration will lead to a flood of claims by aggrieved individuals. Claimants will still have to have a strong case in law, before they can seek arbitration. It will not be possible for someone seeking a simple correction to go to the arbitrator, for example.

Nor is it likely, as some suggest that ambulance chasing lawyers will use this new arbitration system to encourage complainants to take legal action against newspapers. Lawyers’ fees in a system of arbitration like this one are a fraction of what they are in normal civil actions, so if anything it is contrary to a lawyer’s interests to encourage such action.

Most significantly, the introduction of arbitration will save everyone the expense of going to court. Even with a small upfront fee, it will enable access to justice for people who would never contemplate going to the High Court to get redress in a libel action. In cases where newspapers refuse to join the Leveson compliant scheme, forcing complainants to go to court, rather than arbitration, the news publisher will have to foot the bill, whoever wins the case.

The press will benefit from the scheme as well not just because of the lower costs of defending actions, but because if any libel bully insists on taking a subscribing newspaper to court, the newspaper will have costs protection, and will not be under pressure to surrender. Thus, the kind of watchdog journalism which editors rightly argue is essential for democracy will not only be protected but will be offered further safeguards.

The Charter says that the system must be quick and fair and that the arbitrators should act in an inquisitorial manner – meaning they will be able to call for documents and to establish the facts by questioning (as distinct from the court process, which is adversarial). The proceedings can be private or public at the discretion of the arbitrator.

Given the very high cost of going to the civil courts in this country, and the shrinking opportunity for anyone but the very rich to do so, this represents a big potential improvement in access to justice for the public.

4. Transparency and investigations

A new self-regulator that meets the Charter requirements will record and publish clear and full details of breaches of the code, including the numbers of breaches committed by each title. This will give the public and the industry a way of seeing how well standards are being maintained.

If there is evidence of ‘serious or systemic breaches of the code and failures to comply with directions of the Board’ the Charter says that the new self-regulator will have the capacity to launch investigations. It will also have the power to impose sanctions, including fines of up to 1% of the turnover of the publication concerned.

This means that the new system will have teeth. Two of the principal charges leveled against the old PCC were that it did nothing when big scandals (such as what happened to the McCanns or the Motorman affair) occurred, and that even if it had investigated it had no powers to change the behaviour of newspapers. (Motorman involved large-scale improper or illegal acquisition of personal data by newspapers.)

These are just a few of the benefits of the sensible and modest package of reforms that Lord Justice Leveson produced after that year-long public inquiry. They pose no threat whatever to press freedom in this country and offer the general public something which they have never enjoyed before: swift redress in an independent, affordable system, should they have the misfortune of being unfairly attacked or intruded upon by the press.

Brian Cathcart is the Executive Director of Hacked Off


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7 responses

20 10 2013
Stephen Dougherty

The draft Royal Charter is one of the most shameful, deceitful and dangerous documents I have ever read. It proclaims that it is about “press self-regulation” but goes on to say:

“In order to ensure the independence of the Board, a person shall be ineligible to be appointed, or to remain as, a Member of the Board if he:
a) is or has been an editor of a publication of a relevant publisher;b) is a relevant publisher or otherwise involved in the publication of news or current affairs in the United Kingdom;”

Not much self-regulation there.

It also poses a real threat to the existence of small independent publications.

“The Board should have the power to impose appropriate and proportionate sanctions (including but not limited to financial sanctions up to 1% of turnover attributable to the publication concerned with a maximum of £1,000,000) on any subscriber found to be responsible for serious or systemic breaches of the standards code or governance requirements of the body”.

This gives an unelected body of establishment figures the power to close down publications that have narrow profit margins and, of course, these are often the ones most likely to challenge the establishment. A more obvious threat to freedom of opinion is hard to imagine. The front page of the current issue of Private Eye (18 October) says it all.

That Brian Cathcart regards this as one “of the benefits of the sensible and modest package of reforms” is terrifying.

The public are being duped and this appalling attack on the right to express an opinion must be resisted every inch of the way. If this proposed muzzling of the press should come into law we must continue to resist it and to seek it’s repeal. However, this would effectively require a two thirds majority in parliament and that is yet another measure of this proposed Royal Charter’s tyrannical intent.

20 10 2013
Richard E

The passage you quote concerns the board of the recognition panel – not the board of the self-regulator. The recognition panel’s job is to ensure that the self-regulator is properly set up and it is obvious that it should be independent of the press.

The PressBoF charter contained a similar provision for editors and publishers to be ineligible for membership of the Board of the Recognition Panel. This charter also contained provisions for fines of up to £1 million.

Do you think that the press themselves put forward a shameful, deceitful and dangerous document?

23 10 2013
Stephen Dougherty

Well, I do think there are dangers even in the PressBoF charter, and its acceptance of some of the Leveson recommendations in the long term make-up of the Recognition Panel does seem to be a concession that ought not to have been made. Having said that, there are some safeguards, for example, “The members of the Former PressBoF shall be the first Members of the Recognition Panel” and (as I understand it) the panel will not be funded by the Exchequer for the first three years, so there will be greater independence from Government control.

The Press BoF Charter also avoids the unconstitutional entrenchment of the Cross Party Charter with its requirement of a unanimous resolution by Recognition Panel and vote of two-thirds of both Houses of Parliament to alter the Charter. Brian Cathcart says, “In effect, it puts the charter beyond the reach of a future government wishing to meddle with the text”. That is the most frightening sentence in the whole article. This sets a precedent that threatens to destroy the primacy of parliament and our constitutional liberties. No Parliament can bind a future parliament. That is our guarantee against tyranny.

The Recognition Panel effectively controls and regulates the regulatory body so even in the Press BoF charter, there are dangers for press freedom. The provision for fines of up to £1 million seems to be a measure that poses less of a threat to the major newspapers than it does to, say, Private Eye, and if that is so, it is indeed shameful and dangerous.

I’m not sure why you feel that “it is obvious that (the Recognition Panel) should be independent of the press” and it is not clear why the press needs any regulation at all, beyond that already provided by the law. Neither the Cross Party Charter nor the Press Bof Charter are needed and, although the Cross Party Charter poses the greater threat, both pose some threat to press freedom. The pretence that they do not is deceitful.

Other questions that concern me are: who will these ‘independent’ people who sit on the board of the Recognition Panel be? And how do we guarantee that they are completely devoid of any political motive or bias or that they remain immune to political or ideological pressure? At least active politicians and most representatives of the press are open about their views.

Also who funds the hugely influential lobby groups that have campaigned for this gagging of the media? How have the Media Standards Trust and Hacked Off achieved such prominence? Is it really just about securing the protection of ‘ordinary people’ from press intrusion or is there perhaps just a little politics involved somewhere down the line?

Independent regulatory commissions are rarely independent and almost always become politically influenced quasi-judicial bodies. The press must not be regulated in this way.

However, perhaps there is hope. According to Brian Cathcart, “The Charter does not create a regulator. It creates a totally independent body called the Recognition Panel, which will act on behalf of the public to ensure that a future press self-regulator meets basic, specified standards of effectiveness and independence. It will be up to news publishers and other independent organisations to set up any such self-regulators.” If this is true, the most sensible thing the press can do is not to set up a “future press self-regulator”. Leveson should be ignored.

On the other hand, “In cases where newspapers refuse to join the Leveson compliant scheme, forcing complainants to go to court, rather than arbitration, the news publisher will have to foot the bill, whoever wins the case”. Really? Does any sane person regard this as just? It also suggests that it isn’t really true that “It will be up to news publishers and other independent organisations to set up any such self-regulators”. This isn’t really self-regulation is it?

Concerning arbitration, the Charter also says that “the arbitrators should act in an inquisitorial manner” and “The proceedings can be private or public at the discretion of the arbitrator”. So this Charter will even abandon the public and adversarial principles that have underpinned the rule of law in this country and replace them with an inquisition?

Brian Cathcart claims that these ‘modest’ reforms “pose no threat whatever to press freedom in this country?” This is clearly nonsense but what is equally disturbing is that they also pose a threat to parliamentary sovereinty and the rule of law.

Thank you for making me think this through a little more carefully. It’s far worse than I thought.

20 10 2013
Stephen Dougherty

“Over 70% of the public believe that it is important that a new system of press self-regulation is periodically reviewed by an independent commission”.

It would be interesting to know how many of those polled had actually read the Draft Royal Charter. I’d guess less than 30%!

23 10 2013
"Robin Lupinyo"

Mr Cathcart once again repeats, without evidence, the claim that “Lawyers’ fees in a system of arbitration like this one are a fraction of what they are in normal civil actions…”

Yet it is not axiomatic that arbitration would be cheaper than a civil case, and especially not so in the field of media law with its relative paucity of practitioners, of whom only a few could be accepted as independent by both publisher and complainant. In simple cases arbitration can be quicker than a court but for complex cases it may well not be cheaper at all.

23 10 2013
Richard E

It is not axiomatic but Leveson contemplates that the press would (subject to approval by the Recognition Panel) draw up the detailed arbitration rules – which could include, for example, costs capping

23 10 2013
Stephen Dougherty

The phrase “subject to approval by the Recognition Panel” is not insignificant and neither is setting a precedent that undermines parliamentary sovereignty. That “the Charter can only be altered by a resolution of both Houses of Parliament, passed in each case by a two-thirds vote” should alarm anyone who cares about our parliamentary system of governance.

It is difficult to understand why anyone other than a despot would want to introduce this obviously oppressive charter.

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