Press and Counter-Press: Can publishers avoid the financial consequences of their choice to be regulated by IPSO? – Simon Carne

21 09 2016

NewspapersIn a free society, a vital ingredient is a strong press – strong enough to speak truth to power. But when the press, itself, is a source of power, who is strong enough to speak truth back to them?

Not surprisingly, that question was a central feature of the report and recommendations of the Leveson Inquiry into the culture, practice and ethics of the press. Sir Brian Leveson advocated a system of independent self-regulation, overseen by a recognition body whose role was to determine whether the regulator met certain criteria which Leveson considered necessary.

For most people, the concept of independent self-regulation seems something of an oxymoron. How can the press – or any group – regulate themselves and yet do so independently. If there was a resolution of this paradox somewhere in the 2,000-pages of Leveson’s report, I missed it. But as someone familiar with regulation across many activities, I am quite accustomed to the concept. It means regulation which is self-imposed, but independently operated.

In other words, it would be left to the press to decide whether to be regulated. But, if they chose to do so, the regulator should be independent.

Sir Brian Leveson was not working in isolation. He was informed by a team of six Assessors appointed, from a variety of backgrounds (including journalism), by the then Prime Minister, David Cameron. Leveson’s report records that:

“All the relevant Assessors have clearly advised that the system I am recommending, organised by the industry to objective standards, delivers the independent regulation which is essential; it safeguards press freedoms, will not chill investigative journalism that is in the public interest, and can command public confidence. It is their unanimous advice that it is in the interests of both the industry and the Government to accept and implement the recommendations to that end.” (Leveson Report, page 1758, Note 44).

But Leveson did more than just recommend a regulatory regime. He recommended that the government should include incentives for publishers to fall into line with it. His proposed incentives took the form of favourable treatment with regard to litigation costs for those publishers who signed-up to an approved regulator and adverse treatment for those who did not.

A sizeable proportion of the industry has chosen to sign-up with an independent regulator, but the majority of publishers have signed-up with the Independent Press Standards Organisation (IPSO), which has eschewed many of Leveson’s proposals. With the benefit of hindsight, it is starting to emerge that Leveson’s recommendation was implemented in a manner which left the press with a possible escape clause, which works in the following way.

There is now an official recognition body, the Press Recognition Panel, created with cross-party agreement in Parliament, to determine whether a regulator meets the criteria for recognition. But IPSO has made clear that it has no intention to seek recognition. And, as commentators have pointed out, IPSO wouldn’t win recognition if it applied, because it simply doesn’t meet the standards and conditions demanded. IPSO doesn’t even get close.

This is where the incentive mechanism should kick in to bring the press round. But when Parliament legislated for the cost incentives, they built in a pre-condition that a recognised regulator had to be in place before the incentives came into effect. The giants of the press have seized on this aspect of the system and appear to be doing everything they can to prevent any regulator from gaining recognition.

In football, the tactic which is all the rage at the moment is the “gegenpress”, or counter-press, which seeks to stifle and dispossess an opponent before it has a chance to get anything meaningful started. Fleet Street, it seems, has become the second home of the counter-press.

Some 40 publications have applied to sign-up with an alternative regulator, IMPRESS. But the mainstream publishers and their representative in the form of News Media Association, the Professional Publisher’s Association, the Scottish Newspaper Society and Associated Newspapers, have attacked IMPRESS’s application on a succession of grounds, most of them – arguably all of them – quite spurious, at least in the eyes of this observer. If the counter-press succeeds, IMPRESS will not be recognised and the system of incentives and disincentives will come to nothing.

It is the job of the Press Recognition Panel, to determine whether IMPRESS meets all the relevant criteria. When the panel meets to consider this question, we will learn whether any of the mainstream press’s objections hold water. The meeting will take place in public, so the detailed thinking will be transparent. Such a meeting was due to take place in August, but a series of last minute letters of objection by the aforementioned organisations persuaded the panel to delay its decision and give time for yet another open consultation about the application – there have been two already.

One thing is clear. Those in the mainstream press which have subscribed to IPSO have set their face against becoming members of an approved regulator. So they have no interest in whether IMPRESS meets the criteria. They don’t even have an interest in any precedents which may be set by the recognition panel’s decision on IMPRESS, because these organisations have no intention of being involved with a regulator which wins recognition.

It is hard to resist the conclusion that their objections derive solely from a desire to delay – perhaps indefinitely – the recognition of any regulator, so as to avoid the financial disadvantages of their own choice to be regulated by a non-approved regulator.

It is important that we have a strong press, capable of speaking truth to power. But it is also important that the press has a strong regulator, capable of speaking truth back to publishers. A cross-party agreement in Parliament decided what such a regulator should look like, based on advice from the report of the Leveson Inquiry. Now we wait to see whether the press is so strong that it can prevent such a regulator ever seeing the light of day.

Simon Carne is a regulatory consultant


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