Opinion: “The PCC, Secretive Biased and Weak” – by Jonathan Coad

10 02 2010

pccThe public has no faith in the Press Complaints Commission, a survey shows – and, shamefully, it operates in secret, says a media lawyer

The press has the power to affect government policy, force MPs to resign, glean intimate details of the lives of the famous via huge bribes to their employees to betray their confidence. It can undertake these activities safe in the knowledge that, because few have the means to challenge it legally, and there is no effective regulation, the press faces no sanction if it transgresses. As the Information Commissioner’s Office said recently, it had been “badly let down” by Parliament, the courts and the newspapers in its attempt to stop the “flourishing” trade in illegally obtained confidential personal information.

This ugly trade should have prompted a rigorous response by the Press Complaints Commission (PCC), which should have led the way in stamping it out rather than leaving it to the overworked Commons Culture Media and Sport Committee. But the PCC has repeatedly shown itself impotent and unwilling to tackle the excesses of the powerful industry that it regulates.  That leaves us all victims of those excesses either directly, as our rights are infringed by it, or as consumers when we are fed a polluting diet of falsehood and inaccuracy by the press because it is profitable and sanction-free to do so. This is as much the fault of successive governments as it is the press, because one has had the courage to instigate a press regulation system that can command confidence.

My experience of dealing with the PCC since its inception suggests it is principally a cartel, set up for the purpose of ensuring that the lack of press accountability is preserved against any form of effective regulation and to the clear detriment of the rights of the individual. That is not to say it does no good, or that there are not fair-minded individuals among its staff that use their influence to assist those who end up being collateral victims of the print journalism’s circulation wars and collective fight for survival.

But the need for effective regulation has long been recognised, with three post-Second World War Royal Commissions examining the industry. The report of a Government committee chaired by Sir David Calcutt, QC led to the creation of the PCC in 1991. It replaced the much-criticised Press Council, and was set up to improve press standards and provide a fair and effective means of adjudicating complaints against the press through industry self-regulation. It has now passed the age of majority, but has it grown into an effective regulator of its powerful charge? Alas, the answer is no. But before looking at how the PCC has failed all but the press, we should consider whether there is a better regulator waiting in the wings.

One of the most obvious anomalies of the British media is that the broadcast element is regulated by Ofcom – a body also weighted in favour of the industries it regulates, but at least one with statutory powers – yet the hugely powerful print media has no such formal/statutory regulation. Only the press-created/appointed/funded PCC has any “regulatory” role for newspapers, magazines and their online content.

Internet readership is rising

It is difficult to think of any credible argument for an entirely different form of regulation for the press in the context of the rapidly convergent factual media. This is more so as all newspapers also publish via websites, where they compete even more directly with the broadcast media than they do when being distributed via their more traditional means of the newsstand and, now, subscription. While The Sun’s circulation has fallen to around three million, its internet “readership” is rapidly rising and it currently has between one and two million unique users a day.

Ofcom is required by the Communications Act 2003 “to consider and, where appropriate, adjudicate on fairness and privacy complaints”. In doing so it has delegated the determination of “fairness and privacy” complaints concerning broadcast content to a committee known as the Fairness Committee, which is drawn from the Content Board. Its decisions are also “final [… and…] not subject to internal review, reconsideration or appeal”. The Content Board members who determine these issues are all associated with the broadcast industry and therefore are unlikely to have the interests of the complainant at the forefront of their mind. As with the PCC, there is therefore also a real danger of bias in their adjudications of complaints. In that sense they are even less suited to the task of independent regulation than the PCC commissioners, who at least include some lay members.

As with the PCC, the adjudication meetings are held in private and no transcripts are available. It is, therefore, a thoroughly unsatisfactory means of determining complaints by viewers of breaches of their privacy rights, or of unfairness (i.e. the equivalent of paragraphs 3 and 1 of the PCC Code, which deal with privacy and accuracy respectively), the basics of natural/open justice not being present.

One of the problems faced by anyone appraising the PCC is that it is astonishingly secretive about its own procedures – in stark contrast to the complaints made by the press about the lack of openness in government, Parliament and, recently, Sir John Chilcot’s Iraq inquiry. The press rightly tells us to be suspicious of any institution that hides its processes from public view – particularly if it is one that both makes its own rules and administers them. When you add that the PCC is also the self-regulatory body of one of the most powerful institutions in the country, inevitably alarm bells ring.

The PCC refuses to be subject to the Freedom of Information Act, to allow either the public or complainants to attend its adjudications, or any public representation whatsoever on the Committee that writes/reviews the Code of Practice. Parliament is a completely open book in comparison.

One of the ironies of the refusal by the PCC to be subject to FOI is that the Act itself has come about, to a substantial degree, as a result of lobbying by journalists. The press led the charge against MPs’ attempts to evade the impact of the FOI on their own activities, and in particular concerning their own self-interest in the form of MPs’ expenses. The cries of foul from the editorial pages when attempts were made to exclude the issue of MPs’ remuneration from the Freedom of Information Act were deafening.

The hypocrisy is startling. Both predecessors of new PCC director Baroness Peta Buscombe (Lord Wakeham and Sir Christopher Meyer) lobbied the Department of Culture Media and Sport determinedly to make sure the PCC would not be made subject to the Freedom of Information Act.  Ofcom, which regulates the broadcast media, is a statutory body which is plainly independent nonetheless and apparently manages to undertake its role under the burden of being a public authority. Furthermore, since a series of craven governments have in effect delegated the regulation of the press to the PCC, in any sensible analysis, it is a public authority.

Leaving aside the obvious complicity between government and the PCC for their mutual benefit on this issue, why would an industry that tells us repeatedly that no modern democratic society can be free while important decisions which affect all our lives are made in secret insist that its own regulation be conducted in precisely that way? This immediately arouses suspicion that there is much that institution wants to hide.

What are the PCC’s fears?

The PCC refuses to allow its adjudications to be the subject to independent appeal – the PCC allows an appeal, to a press appointee, only on the manner in which the complaint is dealt. The PCC also refuses to be subject to Judicial Review. Again one has to ask what it fears would be the consequences. If the PCC is operating fairly as an independent arbiter of complaints, what would it have to fear if its adjudications were occasionally the subject to some form of independent review? Presumably the same things that it fears should it be subject to the FOI.

One of the bases for the PCC’s claim to be independent is that it has raised press standards and, indeed, it may have had some success in doing so over recent years. However its lamentable failure to conduct any credible inquiry into the illegal misuse of private data, and allowing one of the members of its adjudication panel, People editor Neil Wallis, to remain despite having two PCC judgments against him, hardly inspires confidence. Neither does the retention of another member of the panel, Peter Hill, editor of the Daily Express, even after the appalling way his title treated the McCann family. That resulted in Express Newspapers paying out £550,000 damages and having to make a High Court apology. Such improvements in press standards are more likely, therefore, to be the result of greater intervention by the courts during the same period, which in turn has obliged the PCC to seek to be more effective in its own work.

The continued claims made by the PCC to be “independent” are manifestly untrue, since it was set up by the press; is funded by the press; its members are appointed by the press; seven of the 17 Commission members are editors; the lay members are appointed by the Commission and the PCC Code is written exclusively by the press. The PCC’s obvious lack of independence renders it both structurally and culturally incapable of fulfilling its role as the guardian of the interests of the general public against those of the immensely powerful commercial organisations that control print journalism. The proof of this – since it will allow no genuine scrutiny of its procedures or policies – comes from a review of its actions.

The acid test is whether it acts with any independence when it comes to the administration of its sole sanction: obliging the press to publish corrections/apologies with “due prominence”. In this, its primary activity, the PCC unashamedly favours its paymasters at the expense of the interests of public that it is tasked to protect from breaches of the press’s own code. If an article is inaccurate, there are three groups with an interest in the visibility of the redress. For two of those groups the greater prominence that is given to the correction the better. For only one of those groups is it preferable for the prominence given to corrections to be as minimal as possible. If that minority interest group takes precedence and is the very industry that funds/appoints it, then the PCC’s claim to be independent must be false.

For the first of those groups, the complainant(s), their family, friends etc, the more people who read the correction the better. So it is with the second group – the readership of the paper and the public generally (i.e. those that glean the false information via other media, especially where front page stories are concerned): the more of them that learn the truth the better. It is only the third group, those running the newspaper or magazine concerned, on whose interests such a principle would impinge.

This then is where the true test of the PCC’s independence comes: the press sells by the square centimetre prominence in its pages/websites in the form of advertising, so it well knows that many more people glean information from an article taking up the whole page, along with pictures, than a correction taking up, say, 5 per cent of the space of the original subject of complaint. If the PCC permits corrections and apologies of 5 per cent of the size of the original, it is not providing fair and common sense interpretation of the obligation on the press to publish corrections with “due prominence”. No truly independent body would do such a thing, but that is frequently what the PCC does. If the PCC had any degree of independence it would conduct itself in accordance with the aspirations of the public as a whole – not those of the press.

So what kind of regulatory body would we have if the public, rather than the press, decided how it operated? My firm recently conducted a survey juxtaposing key PCC policies against the aspirations of the general public for a press regulator. The survey was a modest one, and intended principally to provoke a more comprehensive consultation process with the general public in order to establish what it wants in a regulatory body – an exercise the PCC has never, I believe, undertaken. Our survey was conducted by the Spot On Group, with a sample of 100 individuals – 50 male and 50 female – which I understand is the minimum number necessary to obtain a statistically significant result. The results were startling in  showing how radically the public believes the PCC favours the industry it purports to regulate over those it is charged to protect.

Public opinion in stark contrast

On the issue of prominence, only 4 per cent agreed with the PCC’s  acquiescence for corrections to have less prominence than the original story. Well over 90 per cent thought that they should be at least as prominent as the original, with 56 per cent believing that they should be more prominent than the original. Two thirds of those questioned thought that front-page infractions should be remedied by front-page apologies, again in stark contrast to the practice of the PCC with which only 31 per cent of those surveyed agreed.

The PCC considers that only representatives of the press should write the Code. A mere 6 per cent of the public agreed with that. The other 94 per cent thought there should be some independent representation on that committee. PCC adjudications are only reported by a minute prepared by the PCC, a policy with which 99 per cent disagreed, believing that both a minute and transcript of the meetings should be required. That complainants are not allowed to attend PCC adjudications provoked a similar response, with 99 per cent thinking a complainant should be allowed to attend. The PCC refuses to permit an independent appeal against its adjudications, a rule with which 99 per cent of those surveyed disagreed with them. The PCC refuses to impose financial sanctions – and 100 per cent disagreed with that policy. Sixty-nine per cent considered that children should enjoy more protection than the PCC Code provides. The only respect examined in which the PCC was supported is that the Commission should be a mixture of press and non-press members.

Hopefully under Baroness Buscombe the PCC will improve. There is certainly great scope for it – especially as its key policies are so manifestly at odds with the aspirations of the public. We will see whether on her watch the PCC starts to reflect the aspirations of the public rather than those of its paymasters. However, it is difficult to see that in the 21st century there is any justification for continuing a system of regulation whereby newspapers and magazines “broadcasting” on the web are regulated in any different way from their rivals in the traditional broadcast industry. Print journalism’s websites should be added to the remit of Ofcom to end this anachronistic anomaly. This would at least mean that, with ever-greater convergence in the media, there is consistency of regulation across all parts of it.

But, in all areas, the majority of the individuals that determine complaints should not exclusively represent the interests of the industry that is the subject of those complaints. Why not a truly independent body, with real teeth, accountability and openness, which protects the interests of the public against the hugely powerful media industries?

Jonathan Coad heads the litigation team at media firm Swan Turton and has been a specialist media lawyer dealing with the PCC on behalf of complainants for 18 years. He has also acted for the broadcast media, defending high quality investigative journalism.

This article originally appeared in British Journalism Review vol.20 no.4 december 2009 and is reproduced with the kind permission of the author


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12 02 2010
“Brangelina”, Media Responsibility and False Privacy « Inforrm's Blog

[…] PCC.    However, it appears that (in common with most media lawyers, see Jonathan Coad’s recent post) those acting for Mr Pitt and Ms Jolie had no faith in this body.   As a result, it appears that […]

5 03 2010
Culture, Media and Sport – Ignored, Abused and Misrepresented? « Inforrm's Blog

[…] He chides the Committee for failing to recommend its abolition.  Jonathan Coad has  argued on this blog that the PCC is “secretive, biased and […]

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