Opinion: “The Lord Chief Justice, the law and the PCC” – Brian Cathcart

21 10 2011

As the Inforrm blog noted yesterday, the Lord Chief Justice, Lord Judge, has joined the debate about press reform with a speech warning of the risk of throwing the baby of freedom of expression out with the bathwater of cruel and unfair journalism.

Things are not as bad as they may seem, he implied. Self-regulation in the form of the Press Complaints Commission has not failed, though it “might be strengthened”. The really serious problems, where they arise, can continue to be left to the law.

The plea for freedom of expression was eloquent and clearly heartfelt, though hardly controversial. Is there any serious participant in this debate who does not believe in the value of freedom of expression, or anybody who believes it should be placed at hazard when addressing the problems before the Leveson inquiry? Here, Lord Judge is pushing at an open door.

His arguments about the status quo, by contrast, are largely wrong-headed. Two stand out. The first is that the courts are successful in restricting serious wrongdoing and the second relates to the role and faults of the PCC. Let us look at them.

Lord Judge says this:

First, crime is crime. If and when crime is committed by reporters with or without the support and encouragement of an editor, it should be investigated, and if on the available evidence there is a reasonable prospect of a successful prosecution, he or they are prosecuted. We do not say that the General Medical Council and self-regulation have failed when, as sometimes happens, a doctor sexually molests one or more of his patients, or like Dr Shipman murders them.

Later he repeats the point:

We must remember, that whatever lies ahead, the ordinary law of the land will continue. Crime will be crime.

The Lord Chief Justice is saying that we can rely on the courts to deal with serious wrongdoing perpetrated in the name of journalism, just as it delivered justice and deterrence in the case of Harold Shipman. But can we? What if the courts had convicted and sentenced Shipman and he had emerged from jail to commit the same crime again? And what if, after a second conviction, he reoffended a third time? We would wonder then about the effectiveness of the courts.

This is what is happening in relation to the most cruel and unfair journalism we see today. In the cases of Robert Murat, Kate and Gerry McCann, the so-called Tapas Seven and Christopher Jefferies, victims of the grossest press cruelty went to court and won, yet the same group of papers went on to commit the same offences again, and again, and again. The law is not preventing this.

For another example, look at the libel record of the Express newspapers as compiled by Roy Greenslade and listed here. It is, as he remarks, an inglorious inventory, and the offences just go on and on.

Why is this serial offending happening? It is partly that the punishments available are no deterrent. The Express papers paid the McCanns £550,000 for well over 100 libels. That is  around £5,000 each. Eight papers are reported to have paid Christopher Jefferies  around £500,000 for three days of outrageous character assassination: that is some £20,000 per paper per day (in the otherwise quiet New Year weekend). At these prices libel is good business.

To say that the ordinary law of the land will continue, as Lord Judge does, is therefore no reassurance for future victims of false, cruel and unfair journalism. Crime may be crime, but for the tabloid press this crime pays, and for the victims (just ask them) the scars remain forever.

Turning to the PCC, the Lord Chief Justice points out in his speech:

Membership is not obligatory. The Commission has no investigative power. In reality it has no disciplinary power. When it works, as most of the time it does, it is because the press itself is prepared to comply with its rulings, not because it is under legal compulsion to do so. Its main role, and I do not seek to diminish it with faint praise, is to provide a sort of ombudsman/mediation service between the newspaper and an individual group which is aggrieved by an article. It cannot award compensation. To criticise the PCC for failing to exercise powers it does not have is rather like criticising a judge who passes what appears to be a lenient sentence, when his power to pass a longer sentence is curtailed.

The problem here is not with the critics but the advocates. The press has always characterised the PCC as a regulator or self-regulator, even though, as Lord Judge says, it has never fulfilled that function. Editors and proprietors have made this claim repeatedly over the years because they want the public to believe the industry is regulated when it is not. This is a confidence trick, a trick which has helped to shelter the kind of newsroom culture that gives us serial libelling by the Express and the hacking of the voicemails of Milly Dowler, Sara Payne and Shaun Russell.

It is true that the PCC does valuable complaints work and that whatever new dispensation emerges after Leveson, someone will need to do that work. It is also true, however, that the leadership of the PCC over the years has been complicit in the confidence trick and those people have some responsibilities to acknowledge.

Here it is worth noting a factual error made by Lord Judge. He cannot be blamed for the error because it is a common one, which the PCC has never been at pains to correct. In fact the PCC commissioners do have investigative power; they just choose not to use it. Article 53.1A of the PCC Articles of Association states:

It shall also be the function of Commission to consider and pronounce on issues relating to the Code of Practice which the Commission, in its absolute discretion considers to be in the public interests.

That is a clear mandate to examine infringements of the code without waiting for a complaint by a directly affected party — a mandate the commissioners failed to fulfil, for example, throughout the whole year of the Madeleine McCann affair, as flagrant breaches of the code occurred every day. It is a depressing and revealing irony that when, in a very rare instance, they did exercise this power, in the case of phone hacking, they used their authority to exonerate the News of the World and turn the blame on the Guardian.

An important point which also does not seem to be understood by Lord Judge relates to what happens after something goes wrong. Any regulator worthy of the name will conduct post mortems to establish the facts, where responsibilities lie and what lessons should be learned. If the press had been regulated, or effectively self-regulated, such post mortems would have occurred after each of the scandals listed above, with the consequence (one would hope) that the later scandals might not have occurred. As a result, the burden on Lord Judge’s courts might have been lighter and their relative impotence in newspaper libel matters less exposed.

The PCC, while it does good but limited mediation work, has never done this kind of work. Instead it has functioned as a figleaf for press misconduct. It has had no obvious impact on ethical standards in the national tabloid press and it stood by as an unregulated industry slid into its present state of disrepute.

Lord Judge say he would prefer press self-regulation with a “strengthened” and “more powerful” PCC that is not a “toothless tiger”. It must be “all-inclusive”, with authority “over the entire newspaper industry”. And like everybody else he does not want political interference or censorship. How to square these circles is a difficult problem with which Lord Justice Leveson, his panel and many other interested parties are already wrestling. Welcome to the debate, your lordship.

Brian Cathcart is professor of journalism at Kingston University and former media columnist at the New Statesman. He was a journalist at Reuters and the Independent. 


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8 responses

21 10 2011
Elaine Decoulos

Excellent post, Brian. I must read the full speech. The other problem of course is how difficult it is to get justice in the High Court. It is not just access to justice, it is the endless interlocutory hearings and lack of adequate case management as highlighted in the Report just published by the Joint Defamation Committee.

Most of the cases Brian has mentioned above were settled with CFAs, if not all of them. Well, there are numerous libel claims where the claimants are on CFAs and there is no settlement. The claimants have to suffer years of litigation and usually win. This strategy is perpetuated by that newspaper group hypocritically claiming the moral high ground, Associated Newspapers. They then go on to complain about the costs of CFAs, as if they were the victim.

And then there are other claimants, not on CFAs, and without hundreds of thousands or millions to spare. They are in no man’s land, set to the wolves of media law, where no effort is spared to deny them justice.

That is what I was trying to say when I spoke at the Seminar last week. Everyone was talking about the ‘Desmond effect’, as if Richard Desmond was a demon for withdrawing from the PCC, as if being member meant you cared and did something about press standards. I was trying to point out that while his papers may libel people many times over, he atleast spares them years of stressful and expensive litigation and endless attempts as the wording of a correction and apology.

That is not something to snuff at, as Paul Dacre chooses to do while he instructs RPC, Reynolds Porter Chamberlain, to write endless pages of drivel to his opponents, Lord Justice Leveson included. It is the wear down strategy and far worse than withdrawing from the PCC in my opinion.

21 10 2011
Brian Cathcart

On CFAs, it is striking that the popular papers will complain about “one law for the rich” when a footballer or other celebrity is granted an injunction, as if their concern was access to justice. The same papers refuse to campaign for CFAs or for legal aid, both of which offer some measure of levelling in access to justice, and both of which are under threat.

So while papers think it is right to complain about celebrities being able to afford lawyers it’s just not worth their time arguing that ordinary people should have access to them.

21 10 2011
Andrew Scott

The comparison with the GMC and Shipman related to breach of criminal laws, not civil law, and so the reference to recurrent libels here seems inappropriate. The point might be better made re contempt, but then we’ve seen a good number of prosecutions in that respect in the past 18 months. Lord Judge’s comments highlight again the real public scandal over phone-hacking – the abject failure of the police.

In general, over the past 24 months there has been a growing appreciation – most recently stated in the report of the Jt Ctte this week – that a press self-regulator will have to perform better in future with regard to privacy and inaccuracy/libel, but that it can sensibly be designed so as to achieve this. That is not to say that the current PCC provides a model on which that can be done.

For me, the only truly viable system going forward remains that of a strong self-regulator working against a background of effective law. That law will have to provide the incentives for media organisations to choose the self-regulatory option in preference. And the self-regulator would have to operate on a new premise, and be able to determine contested disputes of fact.

21 10 2011
Brian Cathcart

Self-regulation may be ideal but after 60 years of trusting the industry we should be wary. James Curran and Steve Barnett describe exactly the same arguments 20 years ago at the time of Calcutt, when the press made the case for renewed, “strengthened” self-regulation. We bought the argument back then and as a result we ended up where we are now. Should we fall for it again?

If there is to be a new self-regulation regime we should demand that it is impressively robust — something totally different from the PCC. Let’s not be suckers again.

At the same time, we should not treat statutory regulation as a taboo. There are dozens of models involving different elements and levels of statutory engagement, so this is not black and white but many shades of grey. As Paul Dacre made clear last week, parliamentary engagement can help regulation without ever amounting to censorship.

24 10 2011
Law and Media Round Up – 24 October 2011 « Inforrm's Blog

[…] Opinion: “The Lord Chief Justice, the law and the PCC” – Brian Cathcart. Professor Cathcart analyses the Lord Chief Justice’s speech on press regulation. […]

26 10 2011
Gladiatrix

The problem with libel by the newspapers is that nothing is ever done about the journalist who wrote the libellous article or the editor who allowed it to be published. If you as a journalist and/or an editor cause your newspaper to be successfully sued you should be automatically summarily dismissed for gross misconduct.

If journalists and editors thought they might lose their jobs there would be many fewer cases of libel.

26 10 2011
Elaine Decoulos

Excellent point. Don’t forget there are also many meritorious claims that have trouble reaching a successful conclusion because the resource heavy media defendants use their cash to derail the claims. Been there done that and they did not even give me a t-shirt!

You should submit your views to The Leveson Inquiry. They are looking at corporate governance and regulation, but not sure about court reporting, my pet peeve. Cannot get an answer from them on this, despite it surely being part of the culture, practices and ethics of the press, the focus of Part 1 of the Inquiry.

26 10 2011
Joe K

Here is one more reason why the PCC will never be ‘fit for purpose’.

Please note that I have left out the name of the individual in charge of presenting this case to the Commission, to keep things impersonal, and also that I never expected my argument about ‘harassment’ to hold water. It was an attempt to get some kind of acknowledgement of the way some newspapers treat their readers online, via moderation companies based in other parts of the country.

It is the last part of the report that astounds, as the Commission bends over backwards to find that a newspaper editor did *not* suggest that individuals committing public disorder offences in the Barton & Tredworth ward of Gloucester came from that ward, and further (despite my actually dismissing it as an excuse when proffered by a Mr Simon Yip, who is probably known to many journalists), says that the statement is acceptable because even though it was inaccurate, four days later the paper reported that ‘most of these morons lived outside the area’ (although it still hasn’t managed to report that single defendent lived *in* the area). No need for a correction, definitely no need for an apology. Just say something different a couple of days later…

Oh, and you can say anything you like in double quotes. It doesn’t actually mean you’re quoting somebody.

Commission’s decision in the case of

Kilker v The Citizen (Gloucester)

The complainant raised two distinct concerns over the newspaper’s policy regarding readers’ comments posted on its website. He said that the removal of his comments, which he considered to be innocuous, and the newspaper’s subsequent decision to ban him from posting comments on the website, in conjunction with an email from the newspaper which incorrectly claimed that he had, in a comment posted on the website, accused two policemen of lying, amounted to harassment. He was also concerned that words the newspaper would not publish in readers’ comments were used freely in articles.

Clause 4 (Harassment) states that newspapers must not engage in intimidation, harassment or persistent pursuit. The Commission has previously made clear that this clause relates to the physical harassment of individuals by journalists and/or photographers in the newsgathering process (Arani v various). A newspaper’s decision to suspend or ban readers from commenting on its website was a matter for the discretion of individual editors. As such, it could not come to a view on the grounds for the newspaper’s decision to ban the complainant from posting his comments or the removal of the individual comments. It did not agree that these editorial decisions in themselves represented a breach of Clause 4 (Harassment) – the newspaper was merely exercising its editorial discretion. This did not constitute harassment or intimidation under the terms of the Code. The Commission acknowledged that there had been some correspondence between the complainant and the newspaper which the complainant had said contained a false accusation over the content of one of his comments. However, given that neither party had been able to supply a copy of this correspondence, the Commission was not in a position to come to a view on its contents. No breach of Clause 4 of the Code could be established.

The Commission then considered the complaint that words which were automatically asterisked if included in a reader’s comments were regularly used by the newspaper in its articles. It acknowledged his concerns; however it was the view of the Commission that this was an editorial policy which did not in itself raise a breach of the Code. The newspaper was entitled to take steps to censor what it considered to be inappropriate language used in readers’ comments; this did not render the use of such terms by the newspaper itself inaccurate or misleading. While it understood the complainant’s position on the consistency of such a policy, it could not agree that this point raised a breach of Clause 1 (Accuracy) of the Editors’ Code.

On a related point, the complainant had said that the term “paedo” had appeared in quotation marks in the headline “‘Paedo abused 7 girls and boy’”, yet the body of the article contained no such quote. The Commission made clear that quotation marks, while often used to denote a quotation, could also be used in a headline to demonstrate that a statement would be further qualified in the body of the article – for instance to show that an assertion reflected a claim rather than a statement of fact. In this case, the Commission considered that the punctuation marks around the headline had been used to demonstrate that the statement represented allegations against the individual rather than a conviction. The article itself made clear that he had not been convicted of any crime, and the Commission was satisfied that readers generally would not be misled by the use of the punctuation marks in the headline. There was no breach of Clause 1 (Accuracy) of the Code on this point.

The Commission finally turned to the concerns raised by the complainant over the article “Citizen Editor: Let’s name and shame these morons”. He stated that the article included an inaccurate claim that those responsible for the disturbances in Gloucester on 9 August were from Barton: there was no evidence to support this claim and the newspaper had failed to apologise and correct it. The Commission noted that the article did not specifically state that the rioters had come from Barton; the only reference to the origin of the rioters was the comment from the police that all nine men who had been arrested were from Gloucester, which the complainant had not suggested was inaccurate. The article made the point that community leaders would be upset by the disruptions in Barton as it would bring shame on their area, which was an observation the editor was entitled to make in a comment piece. It did not equate to a statement of fact that all the rioters came from the specific area. Furthermore, the Commission noted that the newspaper had subsequently published, four days later, a further comment piece by the editor, which stated of the rioters “most of these morons lived outside the area”. In addition the newspaper had covered some of the court cases of those charged in connection with the disruptions, including the partial addresses of the defendants. The newspaper had also published a letter from a reader reiterating the point that most of those who had been charged came from outside the area. In light of these points, taking into account the coverage as a whole, the Commission did not consider that readers would be misled into understanding that all the rioters came from Barton. There was no breach of Clause 1 (Accuracy) of the Code.

Reference No. 112485

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