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Fourth Seminar: Supporting a Free Press and High Standards: Approaches to Regulation

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Fourth Seminar: Supporting a Free Press and High Standards: Approaches to Regulation
Session 1: Approaches to regulation
Lord Justice Leveson introduced the subject of the third seminar, Supporting a Free Press and high Standards: Approaches to Regulation and set it in the context of the wider seminar series which was considering a range of views relating to press freedoms and practice, including also the pressures on journalists and editors. He made clear that the intention of the seminar was twofold: 1) to focus on the key issues and 2) to act as a catalyst for debate,
Lord Currie introduced himself and his co-chair for the third seminar, Shami Chakrabarti. He also noted the success of seminars 1 and 2 in kick-starting the debate.
Eve Salomon, Chair of the Internet Watch Foundation, argued strongly that effective self-regulation is preferable to statutory regulation as it based on a willingness, rather than a reluctance, to comply. Particularly In the case of freedom of expression, coercion will most likely only meet with resistance and potential regulatory failure. She noted that some commentators have pointed to co-regulatory solutions. She also argued that this did not mean that self-regulation through the PPC has not failed (as the withdrawal of Northern and Shell from PCC processes without prosecution has demonstrated). Many self-regulatory schemes particularly those based around kitemarks are effective because parties see advantage in being part of that scheme.
Good self-regulation must provide real incentives to parties to participate in such a scheme. The Internet watch Foundation and the Royal Institute fro Charted Surveyors provide two different but useful examples. She also suggested that press organizations that did not join a self-regulatory scheme should be subject to broadcast news regulations which would help to ensure that self-regulation became the preferred choice. Going forward the new regulatory model must be light-touch, potentially adopting a principles-based approach as in the United Arab Emirates. The regulator must be seen to be more independent than it currently is and building trust through the independent appointment of lay commissioners could help to achieve this. It must also have powers to investigate conduct as well as disseminate guidance and best practice to help raise standards.
Paul Dacre, Editor of the Daily Mail, gave his views on the challenges to freedom of expression by print media as well as his view on the preferred regulatory model fro the press. He also condemned incidents of phone hacking and payments to the police but he also called for a proportionate response to these incidents that took into account the circumstances of the print media. He noted that self-regulation was the only way on ensuring a genuinely free –press but acknowledged there was a need to strengthen the regulatory process. He said that financial pressures prevented newspapers from holding public bodies to proper account and noted that the press was also subject to additional indirect regulation through the Data Protection Act 1998 and the Human Rights Act. By comparison many websites were not subject to such restrictions. Paul Dacre also argued the PCC had not failed and standards of press behaviour have improved. Editors took seriously the adjudications of the PCC as well as the good work of the PCC. However, he argued that legislators should compel the print media to participate in self-regulation and set out the intention of the Daily Mail, the Mail on Sunday and Metro will introduce a corrections and clarifications column on page 2 of those papers. He also set out the need for lay participation in the drafting of the editors code swell as for an industry ombudsman to deal with standards with powers to name offenders, and if necessary, in the case of the extreme cases, to impose fines.
Will Moy, Director of Full Fact, gave his presentation on his experience of using the PCC from a user’s perspective. He said that the regulator should be a backstop, good behaviour and high standards should come from the journalists and editors themselves; it should not be necessary to go through the regulator to have facts corrected. Good practice in this field was limited to a few newspapers; more common was a refusal to acknowledge factual mistakes. He noted that there was a rule for the regulator to provide quality control. However, he also acknowledged that the PCC did a number of things well, particularly around complaint handling. Willl Moy set out the five issues he thought needed to be tackled through regulatory reform:

  • All print media should be subject to the regulatory process,

  • The regulator should also be charged with serving citizens and consumers as well as upholding the editors code.

  • The PCC process should be independent of the newspaper industry and the regulator's role needs to uphold standards, not just resolving complaints. This means that the regulator needs powers to set deadlines for the responses and to prevent abuse of its processes.

  • The PCC needs effective sanctions for deliberate or repeat offenders.

  • There should be some re interpretation of the code by the commission ought to be revisited in order to deal with “paragraph 19” articles.

In audience debate on the commercial pressures facing the press the following points were made:

  • There was acknowledgement that Press Complaints Commission does more than handles complaints, it also issues rulings which set precedents and trains journalists to help enforce the decisions it has reached. It also issues guidance to the press. PCC has a track record of success with total compliance by members with PCC adjudications up until the withdrawal of Northern and Shell. Handling of complaints in particular was cost effective at about £200 per complaint.

  • However, there is a need to establish whether the current regulatory regime has improved standards. There may be no improvement as there is no sanction for repeat complaint through the PCC. This will need meaningful metrics.

  • All press media should be subject to system of self regulation, whether that it the PCC as it stands or another body. The efficacy of the regulator is called into question if this is not the case. There needs to be compelling incentives for press membership of a self-regulatory system as well as sticks as well as some recognition that compulsion of membership of a self-regulatory scheme will be difficult in a multi-platform converged world.

  • The regulator needs a governance model with a clear majority of commissioners with independence from the industry, with real powers to oversee the operation of the scheme. Strong backstop powers may be necessary if the ability of individual complainants to exercise rights to redress is not be nullified by the legal resource available to some newspaper organizations.

  • There is a spectrum of regulatory models, with extreme self-regulation at one end, and extreme statutory regulation at the other end. The challenge is finding the right place on that spectrum. That decision should demonstrate awareness that journalists might be investigating those who are responsible for press regulation.

  • There needs to be a real role for the public both in unpacking and deciding definitions such as public interest but also in ownership of the code. Engagement with the public will be crucial if the regulator and the press are to win trust.

  • There is a need to consider press journalism in conjunction with television journalism – there is no compelling evidence that television journalism is subject to any form of censorship.

  • Readers editors and the right to redress through the readers editor have played a real role in helping to improve standards as they allow journalists to have a relationship with readers and the readers to have a relationship with the paper that didn't exist before.

  • The vast majority of corrections are trivial by journalistic standards. Although this does not mean they are trivial to the readers. Therefore, it is important for the newspaper to make corrections. There are also mistakes which are not suitable for a corrections column which need to end up with the PCC.

  • Newspapers who do not abide by the highest standards could be barred from broadcasts previews of their content or morning news summaries and other similar aggregators.

  • There should be gateways to the public interest defence, namely an internal process to justify actions and ensure that behaviours were not speculative fishing expeditions.

Session 2: Corporate Governance
Lord Currie introduced the second subject for discussion: Corporate Governance of print media.
Lord Borrie, former Head of the Advertising Standards Agency, gave a presentation on the importance of effective corporate governance as a guarantor of high standards. He recognized the key role of the freedom of the press as a vital element in a democratic society necessary for the proper scrutiny of power. He noted key components of effective governance are independent oversight and financing, these ensured the independence of the body. Corporate governance also needed to be complemented by effective and good behaviour by journalists and editors themselves and should also be the responsibility of a director a board level. By example, the success of the ASA has been down to the willingness of parties to participate and the availability of effective sanction in the refusal of media space to run adverts that have not met ASA standards.
Stephen Hill, former Chief Executive of bet fair, set out his views on the role of corporate governance based on his experiences as a former Chief Executive of the Financial Times and the Westminster Press. Stephen Hill argued that corporate governance has a major role to play in the maintenance and improvement of press standards, particularly if backed by a detailed publishers' Code of Behaviour to encourage common standards in addition to regular and detailed review by independent non-executive board members. Channel 4 produces a Producers code which brings together the broadcasting code and other relevant legislation. He also noted that the debate had to be broadened to take account of converged media. Personal liability for management of risk would also need to be considered as a means of guaranteeing effective corporate governance given the ownership structure of much of the print media.
Sly Bailey, Chief Executive of Trinity Mirror, gave a presentation of the Trinity Mirror’s (as a PLC almost unique among UK print media) use of risk management processes. For Trinity Mirror good corporate governance is crucial to demonstrating to shareholders that they can have confidence in their investments. The underpinning principles are codified in the UK Corporate Governance Code. Good Corporate governance is not about box-ticking but embedding a culture of responsible behaviour. The Board exercises its responsibility for risk through the Audit and Risk Committee, chaired by a non-executive director. Risk is captured on a risk map through which risk is reviewed and managed.
Over 70 executives are routinely asked whether they want to bring matters associated with risk to the PLC board. All processes are reviewed by external auditors. Similar systems are used to monitor and control spend. There are also controls that apply to editorial decision making as well as the Editors’ Code. Sly Bailey made clear her view that strong corporate governance, together with good editoral judgment, can lead to a culture of honesty and integrity of benefit to the running of a newspaper. However, it is not the job of a corporate board to make editorial decisions.
In audience debate on the corporate governance the following points were made:

  • There needs to be some consideration of the culture in newsrooms and how whistle blowing might be facilitated by the industry itself as well as the how individual organizations might encourage journalists to raise ethical concerns and whether appropriate channels exist for that to happen.

  • Education of journalism and in particular the teaching of ethics and standards should be looked at as there are no common standards across universities and on some courses no consideration of this in journalism at all.

  • Journalists are under considerable pressure to comply with a great body of law and many have not received sufficient training. There are also further issues around freelancers who may lack access to training where it is available or may be unable to complain against standards of behaviours in newsrooms on which they depend for future employment.

  • There is potentially a great deal that the print media could learn from television where tertiary and pastoral care of staff is, in general, better, particularly with regard training. However, such provision could be beyond the means and expertise of small (provincial) newspapers that may lack the necessary resource. The industry needs to question whether it could as a whole play a bigger role in providing relevant training through the National Council for the Training of Journalists.

  • There has been a great improvement in standards of corporate governance across newspapers in the last decade. Corporate Governance plays a key role in helping build trust not just with stakeholders but also readers. By contrast, some commentators have pointed to the failure of corporate governance processes at News International. However, there should also be careful consideration of the extent to which editorial content can be included in corporate governance structures, in order not to blunt investigative approaches to stories as well as ensure that journalists are sufficiently protected from commercial pressures.

  • There is a role for corporate boards on providing legal oversight for the provenance of content as a safeguard for editors but it does not mean that boards should make editorial decisions. Effective corporate governance processes should also be applied to third party contractors and free lancers. Transparency and accountability of the regulator are as important as of newspapers.

  • Is there a role for an internal news ombudsman within organsiations? There are potential benefits to the editor of a paper as it separates the process of adjudication on a given complaint from editorial decisions on content and helps build trust with the readership. News ombudsmen have worked well in Australia, India, and the United States.

      • The BBC college of journalism might provide a useful model for helping to improve ethical standards among journalists in a given organization through discussion of issues affecting journalists. The BBC Trust also routinely commissions external reviews covering whole areas of output. This ensures that the BBC is confronted with external perspectives on its output.

  • Commentators suggested that the Inquiry should consider what is done about misleading stories particularly those that lead to damages been done to individuals and or organizations.

  • One of the principle constraints on journalistic practice is the UK statute on defamation.

Session 3: Redress
Shami Chakrabarti, the chair of the third and fourth sessions of the seminar, introduced the third session on redress, noting that as no system can ever be perfect, the Inquiry would need to fully consider what happens when things do go wrong as well as of redress.
Professor Stephen Barnett, professor of Communications at the University of Westminster, set out the importance of freedom of expression in the context of political oppression and compared that to coverage of the lives of minor celebrities. He also set out some of the key values that underpin the UK print media but recognized that there were newsroom practices that were unethical and unlawful, often targeted at ordinary people with little or no recourse to adequate redress for damage done. He proposed solutions built around a recognition that the current self-regulatory model had failed and looked towards a regulator with powers to fine dissuasively for breaches of an agreed code of practice as well as with powers of investigation. There also needed to be consideration of what was in the public interest with a public interest test defined by parliament to actively promote press freedom.
Desmond Browne QC, expert in media law, gave a presentation on questions around redress for breaches of press standards. He noted that there were two routes available to complainants seeking redress either through the courts which was expensive or through a regulator which is often speedier and more efficient than court process. Mediation including early arbitration might also provide a suitable form of managing expectations around redress. Desmond Browne also questioned whether the perception of failure around the PPC means that it can never function effectively as regulator.
Robert Baldwin, professor of law at the London school of Economics, set out his thinking on regulatory models and in particular the need to decide on a regulatory remedy appropriate to the problem and capable of change. This should be coupled with appropriate systems of detection. He noted that the regulatory system would have to account for the peculiarities of the media, including potentially high incentives to ill-intent as well as high capacity to capture by the print media.
In conversation the following points were made by members of the audience:

  • Redress is not a necessary consequence of press freedoms of expression but also of criminal action where there may be little or no incentive on the transgressor to reveal the innocence of the victim or data subject.

  • Consideration should be given as to how to ensure access to justice. Changes currently proposed to the CFA regime might mean that those exposing poor practice might then be subject to claims proceedings.

  • The inquiry should consider whether there is breaches in standards and breaches in criminal law are effectively distinguished with an appropriate consideration of the potential criminal offence. This has lead to the absence of any deterrent in the current sanction regime as offences are considered in the context of press freedom.

  • Commentators raised the view was raised that the majority of those seeking redress are not seeking financial gain but compensation for the harm caused and time lost through inaccurate coverage.

  • Systems must also be navigable to those who are not necessarily competent and has understanding of process. Redress should also be considered against not those whose circumstances are willfully reported inaccurately.

  • The Inquiry should consider whether journalists should be allowed to participate more fully in the PCC. Previous attempts by the NUJ to pass sanction on journalists for poor behaviour were quashed by the editors and newspaper proprietors.

  • It may be appropriate for the inquiry to look to the Construction industry which some commentators have suggested provides for fast, binding and cost effective resolution of disputes and redress

  • Consideration also needs to be given to prominence and the importance attached to prominence by the public – apologies do not necessarily make good for the harm and distress caused.

  • Redress is also linked to lessons being learned and similar abuses not occurring repeatedly.

Session 4: Freedom of the Press
Shami Chakrabarti introduced the fourth session of the day on Press Freedom.
John Kampfner, the Chief Executive of Index on Censorship, gave a presentation on Freedom of expression in the context of other human rights. He noted that Freedom of expression should not be incompatible with high journalistic standards. He said that such criminal behavior had occurred because politicians and regulator allowed it to.
John Kampfner argued that being part of an effective system of regulation should be a part of a gold standard for publishers. Those who do not belong to that system should be long to a lower division. Privacy must be seen not in the context of celebrity gossip but in the context of intrusion into and abuse of personal data and difficult decisions relating, particularly, to quasi unlawful practice should be communicated to senior editors and decision makers. Lastly, comprehensive libel reform must accompany any changes to press practice.
James Curran, Director of the Goldsmiths Leverhulme Media Centre, gave a presentation that focused on media ownership and the concentration of national newspaper circulation in the hands of a small number of individuals and noted the tendency of some parts of the press to develop a coalitional relationship with Government. He noted that addressing the culture of British journalism should be a key aim for the Inquiry. He also said that it was important that the inquiry engaged fully with the public given levels of public distrust in the press. He further suggested that there might be a role for the future regulator to laud good reporting and condemn incidents of poor journalism.

Kelvin Mackenzie, Columnist for the Daily Mail and former editor of the Sun, set out his view that the inquiry is the consequence of political calculation and not the of behavior by journalists and the press. He noted that is the relationship of politicians to the press and not vice versa that is fundamental issue. He was clear that the accusations of hacking at the News of the World concern criminal offences and should be regarded as such with little or no change to the running of the press and the regulation of print media. It is only the peculiar position of the press in society that has lead to the launch of the inquiry. Rather he suggested that freedom of expression and of the press should be enshrined in UK law.

In discussion with the audience the following points were raised on freedom of the press.

  • The inquiry needs to consider historical precedents of press regulation, in particularly the conclusion of the Calcott Inquiry that a body that regulates the press and at the same time is responsible for press freedom is fundamentally incompatible.

  • Commentators noted that in other professions, particularly law and medicine, poor behaviour is regulated through the threat of a prohibition on practice on practitioners; this not the case with journalism.

  • The view was raised that unrestricted press freedoms and current levels of media ownership had lead to the high level capture of politicians and the deligitmisation of the political process which would need to be addressed. This would be addressed later in the work of the inquiry.

  • There was broad recognition that Article 10 of the human rights act is fundamental guarantor of democratic rights in the UK

  • Press freedoms need to be considered in the context of online freedoms and the enforceability of law in online space, including the peculiarities of the online media such as instant rebuttal and differing levels of trust and believability.

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