Media Regulation: A Radical New Proposal, Part 2, More Reform Options – Hugh Tomlinson QC

30 09 2011

The first part of this post raised the question as to what should replace the PCC, outlining the first three of the seven options recently suggested by Martin Moore.  In this post I will deal with options four to seven.  In the third post in the series I will suggest an “option eight” – a regulatory proposal which is voluntary but with teeth and which also seeks to deal with some of the problems identified by the libel reform and other campaigners.

Option (4)  Extend Ofcom to cover newspapers:  “Ofpress”

The broadcast media is, of course, subject to statutory regulation by Ofcom and, so the argument goes, why not just extend this to the print media?  It would require some changes in the way Ofcom operates – it is difficult to see how the press could sensibly be subject to an “impartiality” requirement for example.

All newspaper and magazine publishers could be placed under the remit of Ofpress – which would have power to fine or otherwise sanction those that infringed its “Press Code”.  This approach would have the benefit of simplicity and would be readily comprehensible to the public.  There would be a single media regulator, with slightly reduced powers but a much broader remit.

But there are problems with this approach:

  • It would not be popular with the press or politicians, it would be stigmatised as “state regulation” or “licensing of the press”.
  • There are fundamental culture differences between broadcasting and the press, the former has always worked with regulation and is used to considering and obeying its rules.  The same cannot be said for the press.
  • It would, again, have difficulty in dealing with the Internet Wild West Problem.  Ofpress could not regulate offshore publishing.
  • If Ofpress was to be effective it would have to be something more than an expanded Ofcom – what would be needed would be a full blown statutory regulator – this is Option 7.

This option pleases no one.  It is too strong and statutory for the press and too weak for the regulation campaigners.  There is no suggestion that Ofcom would welcome such a huge and difficult expansion of its powers.

Option (5)   Create a professional body for journalists – the “Journalism Society”

In this option the PCC would be replaced with a ‘Journalism Society’, which would operate in a similar way to the Law Society: as a representative body and regulator for journalists.   This body could set and enforce ethical standards, monitor training and qualifications.  This would not be state licensing of journalists but, rather, a form of professional registration.  Journalists who were not members could still write but membership would be a “badge of quality”.  An idea along this lines was put forward at the Labour Party Conference by Shadow Culture Secretary, Ivan Lewis.  A number of commentators complained that this was a form of licensing.  As Martin Moore has pointed out in a post on this blog this is not correct, but he nevertheless concluded that the idea was a bad one.

In general it is difficult to see how a “Journalism Society” could be an effective regulator:

  • Unless the Society “licensed” journalists it would not have effective sanctions.  Ultimately defaulting lawyers or doctors can  lose their right to practice.   A similar sanction for journalists is both undesirable and impracticable.  Those sanctioned by the professional body, or refused membership, could still write.
  • If the Society was voluntary then it would be inevitable that a number of news organisations and journalists would not join.  The “Desmond Problem” would be even greater because the Society would have to include all individual “practising journalists”.   On the other hand, if the body was statutory regulation it would be a form of “licensing” and would be rejected by the press and free speech bodies.
  • It would have no impact on the “Internet Wild West problem” – unregulated, unprofessional journalists could conduct bad, unfair and inaccurate journalism on the internet without any sanction.

This is not a serious option for press regulation – although a professional “Journalism Society” might be a good idea in itself and although with existing bodies and institutions assist in providing training and raising standards.

Option (6) Regulation by a “Media Law”

In this option there would be no media regulator.  There would, instead, be a “media law” – setting out rules as to, say, accuracy and the right to reply which would otherwise be in a Code.  These would be enforceable through the courts.  Ultimately the courts would give the public “right of reply”, remedies against intrusion into grief and similar matters presently covered by the PCC Code.

Such a law could be an incentive to the media to set up complaints systems to reduce costly legal action.  The benefit of this model is that it would help to address both the regulatory and legal problems associated with media regulation.

But, once again, there are obvious problems:

  • Recourse to the law is costly for both claimants and the media.  There would be obvious “access to justice” and “chilling” problems. Conditional Fee Agreements are not popular with the media but state funding is not a viable alternative.
  • The law is a blunt instrument for dealing with “everyday” complaints (of the type that the PCC does well) and it is difficult to see how a legal framework enforced by the courts could deal with systematic abuses of media power.
  • In relation to systematic abuse this option would rely the judges and the police.  Such systematic abuses would require more serious criminal sanctions (for example, for breaches of the DPA).  This would, again, not command support from the press,

This option also appears to be a non-starter.  There is a broad consensus against increased recourse to the courts with a regulatory framework designed to prevent systematic abuse.

Option (7)  A new statutory regulator for all media: “the Media Regulation Authority”

This is, at first sight, the most straightforward option.  The press has had its opportunity to develop self-regulation and has failed – as the Calcutt Committee contemplate in 1990 if that happened statutory regulation would be required.   David Mellor’s “last chance saloon” has called last orders and, so the argument would go, the time has come to implement Calcutt “fallback recommendation” of statutory regulation.

Under this option the media would be obliged to operate within a statutory code, enforced by a statutory regulator with powers to fine and restrict publication.  The system could include a provision for the award of compensation to individual complainants who were victims of breaches of the code.

Such a suggestion is, to put it mildly, not popular with the press.  Statutory regulation is equated with government control, press licensing and state censorship.   Many of these arguments are self-serving and misconceived.  A senior newspaper executive recently commented that if the press were reporting the arguments of this kind by any other industry – for example bankers or lawyers – in favour of self-regulation, they would be giving them short shrift. The broadcast media has always been subject to a statutory regulator without any apparent ill effects on its journalistic independence or its ability to hold the government to account. Provided that the regulator is appointed independently of government or politicians it is difficult to see how this could be described as “state censorship”.  Judges are subject to statutory regulation but it is not suggested that this makes them creatures of the government.

But there remain problems with this option:

  • Despite the arguments in the previous paragraph the establishment of a Media Regulation Authority would face the implacable opposition of most of the media, many politicians and campaigners.  State regulation of the media is not popular even in the “post phone hacking” era.
  • There would have to a system for enforcing fines and other penalties.  This would have to be part of the criminal law.  Even the strongest advocates of media regulation do not relish the prospect of newspapers being fined large sums by the criminal courts.
  • This option does not deal with the Internet Wild West Problem – it would, indeed, make it much worse.  Rather than face statutory regulation and criminal penalties publishers would take their internet editions offshore – Iceland would boom and its publications would not be regulated by the new body.  Rigorous statutory regulation would require worldwide internet regulation.  Even if it were desirable it would not be a practical possibility in the short or medium term.

In short, there are seven options on the table so far – none of them are attractive and none of them deal with the future – as journalism becomes increasingly internet focused, old style “media regulation” becomes increasingly irrelevant.  In the final part of this post (which will appear next week) I will put forward a new suggestion – Option 8 – a proposed system which is intended to be both voluntary and rigorous.

Note: Martin Moore has now posted his own version of these seven options on the Media Standards Trust blog: “Reform of press self-regulation – a spectrum of possible models

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3 10 2011
Law and Media Round Up – 3 October 2011 « Inforrm's Blog

[...] have had two posts this week on “Media Regulation” (here and here).  As the Leveson Inquiry begins its investigations, this is a subject of wide discussion.  On [...]

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