Is the Press Prepared to be Licensed by Ofcom? – Julian Petley

Every time that Britain’s national newspapers are threatened with a more effective form of regulation than that allegedly provided by IPSO, they are wont to scream blue murder that what is being proposed is nothing less than “state licensing” of the press.

Thus a study by the Media Standards Trust found that in the year following the publication of the Leveson Report, of the 2,047 articles about it published across the national daily and Sunday press, 862  contained the assertion by a source or by the journalist that Leveson and the Cross-Party Charter were threats to press freedom.  More specifically, the words “license”/  “licensed”/“licensing” occurred 126 times, and, in reference to the year 1695, when press licensing was abolished,  “300 years” occurred 167 times, “300 years of press freedom” 49 times, and “1695” 34 times.

For example, in an article in the Telegraph, 3 December 2012, Boris Johnson complained that what Lord Justice Leveson wanted above all was to “create a system whereby newspapers would be compulsorily regulated by law – licensed – for the first time since the 17th century” (significantly in the present context, the headline read: “It is the web, not the press, that must be brought under control”). And in the same paper, on 30 November 2012, Fraser Nelson averred that no matter how Leveson presented his report, “he was proposing a form of state licensing of the press”.

Even the proposal for a Royal Charter on press regulation, which was approved by all parties in Parliament on 18 March 2013, and which, as a result of intensive press lobbying, did not go as far down the legislative route as Leveson had recommended, provoked similarly neuralgic reactions. Thus in that day’s Telegraph, Johnson fulminated that:

Since the days of Wilkes, the media have been lifting up the big, flat rocks to let the daylight in on the creepy-crawlies and in all that time we have never come close to the state licensing of newspapers. Not, that is, until today, when MPs must vote on the potentially calamitous proposals put forward by Labour and the Lib Dems.

And later in the year when, after yet more lobbying and obstruction from the press, a modified version of the Charter was agreed upon, most national newspapers were still united in vehement opposition to any such measure. For example, Nelson in the Mail on Sunday, 13 October 2013, raged that:

On Friday, the three main political parties jointly published a sinister proposal that would change Britain for ever: a Royal Charter that would give them power over the press … It’s apparently voluntary, but a publication that defies them and seeks to protect its independence would be liable for crippling fines should it end up in court. It is, in other words, the kind of idea unthinkable in Britain for generations: state licensing of the press.

Registered news providers

However, the self-same newspapers that at the time of Leveson protested so vehemently against what they claimed – entirely erroneously – was his plan to “licence” the press, are now apparently quite happy to engage with a form of licensing, which would be operated by Ofcom, in order to avoid falling within the scope of the Draft Online Safety Bill, in whose creation they played a not inconsiderable role, as I have explained here.    

The proposed regulator in this system of online regulation would be Ofcom, which will have to register all the entities within the scope of this new measure. It will be empowered to exempt news publishers from its statutory oversight by excluding them from this register, as the Bill specifically excludes from the proposed legislation “news publisher content” and material produced by a “recognised news publisher”. According to the criteria set out in section 40 (2), such a publisher

(a) has as its principal purpose the publication of news-related material, and such material – (i) is created by different persons, and (ii) is subject to editorial control, (b) publishes such material in the course of a business (whether or not carried on with a view to profit), (c) is subject to a standards code, (d) has policies and procedures for handling and resolving complaints, (e) has a registered office or other business address in the United Kingdom, (f) is the person with legal responsibility for material published by it in the United Kingdom

“News-related” material is defined sufficiently broadly to encompass the kind of dubiously journalistic articles that characterise much of the national press in the UK, section 40 (5)

stating that: “‘News-related material’ means material consisting of— (a) news or information about current affairs, (b) opinion about matters relating to the news or current affairs, or (c) gossip about celebrities, other public figures or other persons in the news”. And the requirements for a “standards code” and “policies and procedures for handling and resolving complaints” are satisfied by the existence of both the non-Leveson-compliant IPSO and the Leveson-compliant IMPRESS.

As Graham Smith has enquired: “If you want to carve out the press [from the online safety measures], how do you do so without giving the government (or Ofcom) power to decide who does and does not qualify as the press? If a state organ draws that line, isn’t the resulting official list in itself an exercise in press regulation?” He quotes Lord Black in the House of Lords on 18 May 2021, who, after declaring his interest as deputy chairman of the Telegraph Media Group, argued that the exemption for news publishers must be both “watertight and practical” so that they are “not subject to any form of statutory control, and that there is no scope for the platforms to censor legitimate content”, but, as Smith notes, this raises the question of “what constitutes ‘legitimate’ content and who – if not the platforms – would decide. Ofcom?”. In his view, what raises its head here is “the spectre of an Ofcom-approved list of news publisher content providers”. In other words, a form of licensing.

A similar point has been made by Lexie Kirkconnell-Kawana, the head of regulation at IMPRESS, who argued that “this looks and feels very much like a statutory licencing scheme for the press” and that it introduces “elements of state regulation of the press through the backdoor, by requiring the government to define who is or isn’t a journalist, and what ‘journalism’ and ‘journalist content’ is for the purposes of legal benefits and sanctions”.

Competing definitions of “recognised news publishers”

She also makes the important point that the Online Safety Bill takes no account of already-existing systems of press regulation, and consequently “definitions of what ‘recognised’  news publishers look (or should) look like clash with the press regulation systems already in place”. As things currently stand, the UK already has an approved system of press self-regulation, agreed by Parliament and enshrined in law by the Royal Charter on self-regulation of the press. This defines what a “recognised” news publisher looks like – or should look like. But so far, IMPRESS is the only press self-regulatory body that has applied for and received recognition by the Press Recognition Panel (PRP), which was set up at arm’s length by the Government in response to Leveson’s recommendations. This complies with all of the recognition criteria of independence and effectiveness set out in the Charter. On the other hand, the press industry’s own tame regulator, IPSO, to which the vast bulk of the national press and much of the local press belongs, satisfies a mere thirteen of the 38 Leveson recommendations for an acceptable press self-regulatory system. But imagine the howls of rage from the press if Ofcom refused to register an IPSO member as a “recognised news publisher”.

What this boils down to is that there could well be different and indeed competing definitions of “recognised news publishers” who would be exempt from Ofcom’s oversight: its own, and those of IPSO and IMPRESS. As Kirkconnell-Kawana argues: “Any regulation of news in the digital space needs to properly account for the existing systems of law and regulation, to avoid overlaps, loopholes, and inconsistencies”. However, the ill thought-out and opportunistic manner way in which this whole measure, and not simply its press provisions, has been constructed, makes one seriously doubt if such considerations will be taken on board.

Paul Dacre as “press enforcer”?

But mention of Ofcom’s central role in the system of online regulation so favoured by the newspapers brings us back to the press hypocrisy noted at the start of this piece.  Thus when it was suggested by Leveson that Ofcom would be the most appropriate body to “provide a mechanism to recognise and certify” the new press self-regulatory body, the papers were apoplectic with rage, spotting once again, and again entirely incorrectly, the threat of “state control” of the press. So, for example, Richard Pendlebury (he of the infamous twelve-page onslaught on Common Purpose in the Mail during the Leveson Enquiry) claimed in the Mail, 30 November 2012, in an article headed “A very tainted quango”, that “Ofcom would play the role of Press enforcer”, while the same day’s Comment column fumed that “once MPs and the media quango become involved, the freedom of the Press from state control will be fatally compromised for the first time since 1694”. Similarly, Toby Young in the Telegraph, 9 January 2013, claimed that any power granted to Ofcom to certify the new press regulator would amount to granting a government department the power of censorship “once you factor in that the head of Ofcom is appointed by the Secretary of State for the Ministry of Truth – or, rather, the Department for Culture, Media and Sport”.

However, once you factor in that the much of the press is energetically lobbying for DMG Media editor-in-chief Paul Dacre to become the new Ofcom chair, perhaps the papers’ distinct change of heart towards Ofcom having a role in their affairs becomes rather more explicable – albeit no less hypocritical and duplicitous.

Julian Petley is emeritus and honorary professor of journalism at Brunel University London His most recent book is the second edition of Culture Wars: The Media and the British Left (Routledge 2019), co-written with James Curran and Ivor Gaber. He is a member of the editorial board of the British Journalism Review and the principal editor of the Journal of British Cinema and Television. A former print journalist, he now contributes to online publications such as Inforrm, Byline Times and openDemocracy.