Three-D Issue 24: Press Regulation beyond the election

Steven BarnettSteven Barnett
University of Westminster

While the outcome of May’s general election is likely to hinge on rather more pressing issues than the future of press regulation, there is no question that it will have significant implications for how the post-Leveson policy debate is finally resolved. Those who believe that the issue has been settled by a newly reformed and chastened press setting up their own self-regulator, the Independent Press Standards Organisation (IPSO), might want to read the evidence given to a House of Lords select committee inquiry into press regulation by Hacked Off director Joan Smith. In front of a clearly startled group of genuinely agnostic peers, she detailed some of the recent abuses and editorial code breaches which were supposed to have been jettisoned after the revelations of Leveson.

There was the very drunk 19 year old British woman, secretly filmed in Magaluf as she engaged in oral sex with several men in return for free drinks. Her photo was published on the front page of the Sun with a wholly inadequate attempt to disguise her identity; she was identified within hours, pilloried and humiliated. So much for the editors’ code on privacy. There was the Daily Mail headline “Man who feared travellers were surrounding his home shoots dead wife and himself”, in fact a tragic story about an elderly man who shot his seriously ill wife and then killed himself. There had been an application from a single local traveller to set up one caravan, and no evidence whatsoever that the couple’s deaths were remotely connected to the young traveller. So much for the code guidelines on not speculating about causes of suicide. There were plenty of other cases.

At the time of writing, we still await the conclusions of the Lords select committee, and their reflections will be fascinating. In the meantime, where exactly are we, and what difference will the political complexion post 7 May actually make?

Royal Charter and Incentives

It is worth reminding ourselves that Parliament has actually legislated for the framework which, in essence, Leveson recommended and which now offers real hope of effective and genuinely independent self-regulation – albeit with statutory underpinning provided through a Royal Charter rather than through Act of Parliament (Cameron’s much-touted “Rubicon”). Under the terms of the Charter, a Press Recognition Panel (PRP) had to be established, and finally emerged on 3 November last year. As Leveson dictated, it is entirely independent of both politicians and the industry, with a duty to scrutinise any aspiring self-regulator that puts itself forward for recognition. Its chair, Dr David Wolfe QC, has made it clear that he intends to consult widely and transparently on some of the details around Charter criteria, and expects to be “open for business” by November this year.

Meanwhile, plans for a potentially Charter-compliant regulator are well advanced. The Independent Monitor for the Press (Impress) is the brainchild of former director of English Pen Jonathan Heawood, who ensured that its appointments process complied with the strict criteria for independence laid down by Leveson. Its chairman-designate Walter Merricks told the Lords committee that they expect to be in a position to apply to the PRP by the end of June. The crucial question for Impress, since most of the national publishers have stated loudly and clearly that they will have nothing to do with the Charter’s recognition process, is the quality and quantity of publishers that it can attract. There are a number of online, regional and hyperlocal publishers that have expressed an interest in joining a self-regulator which will confer a status of credibility and ethical commitment that is badly lacking in the reputation of much national journalism. Moreover, once recognised, there will be practical benefits from belonging to a recognised self-regulator.

By far the most important of those are new rules for legal costs contained within the Crime and Courts Act, passed in 2013. Those who bring a claim for privacy or defamation against a publisher who does not belong to a recognised self-regulator – as long it is not trivial or vexatious – will be protected from court costs even if they lose. While this has brought howls of anguish from newspaper editors convinced of its inherent unfairness, it is a perfectly logical provision which penalises a publication for not providing the opportunity for low-cost resolution that a recognised regulator must provide. A simple and affordable arbitration system was integral to Leveson’s proposals, but is bitterly resisted by most major publishing groups.

For journalists, the converse of this provision is even more important, and is deliberately ignored by those same editors who attempt to argue that the new framework will impede watchdog journalism. For any wealthy or powerful individual or corporation who brings a claim against a publisher which belongs to a recognised regulator, is obliged to use the arbitration system. If they insist on taking the publisher to court, they must pay their own costs even if they win. Thus, small publishers are protected from the chilling effects of those powerful and wealthy bullies who try to intimidate journalists into silence by threatening them with bankruptcy through extortionate court costs. For smaller hyperlocals, who may want to expose local corruption or incompetence, this could be an invaluable tool to support proper journalistic scrutiny.

IPSO – the rebels’ alternative

Most of the national press, with the exception of the Independent, Guardian and Financial Times, have signed up to IPSO and were clearly delighted to have persuaded the highly respected retired appeal court judge Sir Alan Moses to become its first chairman. This, they argued, was indisputable proof of their determination to set up a regulator in good faith which was genuinely independent from the industry.

It soon became clear, thanks in part to a detailed and forensic analysis by the Media Standards Trust of IPSO’s constitution and governing regulations, that in fact it was entirely in hock to a shadowy group called the Regulatory Funding Company (RFC) – a combination of the same large and powerful press groups which controlled the discredited Press Complaints Committee. The MST concluded that “IPSO’s budget, its rules, its code, its sanctions, its investigations, will all be controlled by the RFC”.

Since he took up his chairmanship of IPSO last September, Moses has frequently assured the sceptics that he was not prepared to accept the RFC’s rule-book and would demand changes. In his set-piece lecture at LSE in March this year, he said:

“We are making good progress in altering the rules as to the resolution of complaints, as to investigation and inquiry absent any complaint, and as to the grounds and procedures for imposing sanctions where there have been deliberate or repeated breaches. We were told that we would never be permitted to change….co-operation is, to the annoyance of those who wish to see us fail, taking place at regular meetings, and will lead to change.”

There is no question that he is a man of integrity who understands the need for change, but there are three problems with his reassurances. First, he is not prepared to give any more detailed information about the nature or terms of any demands he is making; we therefore know little about what elements of the RFC’s existing rulebook are not even being challenged. Second, we know nothing about the timescale he has set – if any – to achieve any significant amendments. Third, we have no idea whether – as he has hinted – he intends to resign if the RFC shows no interest in meaningful compromise.

Those of us who are veterans of these long, tortuous debates during periodic crises on press regulation are well aware of the repeated cycle of failure. Sections of the press behave abominably; there is public and/or parliamentary outcry; there is a commission or inquiry or some other “official” intervention; there are expressions of regret, contrition, apologies, assurances that this will never happen again; there are fig leaves of new regulatory mechanisms – a Press Council, a Press Complaints Commission – with MPs of all parties mouthing empty threats about “the last chance saloon”. But all along, the strings are being pulled by the very same publishers who are absolutely resolute that they will not cede control to anyone outside their industry.

Their game should now be abundantly clear to anyone who has studied the history of media policy: they establish their own regulator, with a veneer of independence; they are told that it’s not good enough, and must change; they negotiate, prevaricate, procrastinate; they emerge with what they trumpet as “generous concessions” which are in fact minor and virtually irrelevant; and they wait for the fuss to die down and a shifting political environment which avoids that intractable problem of press power like the plague. When the then chairman of the RFC Paul Vickers appeared in front of the Lords select committee, he was unequivocal: “When Sir Alan says he’s going to put a red line through a whole load of things, he can’t.” That unfortunately gave the game away.


So despite his integrity and goodwill, Sir Alan will lose and must make a decision as to whether to accept some notional “concessions” or to resign. Meanwhile, the only protection for ordinary people whose lives are trashed to boost circulations – and for journalists who want to pursue difficult, watchdog journalism – will come from the Royal Charter mechanisms. If, however those incentives fail to bite and the major publishers continue to demonstrate their defiance of any meaningful independently audited self-regulation, the election outcome is crucial. The PRP must deliver a “failure report” to Parliament if major publishers remain outside the system. It will then be up to Parliament to decide next steps.

A Conservative government will wash its hands of the whole business. Cameron broke his promise to victims of press abuse and was persuaded by powerful press interests to veto any statutory underpinning: the Charter compromise was forced on him by an alliance of Labour, Lib Dems and rebels within his own party. They will not have the stomach for the fight, or even believe it is necessary. Many, like Culture Secretary Sajid Javid, have bought the press propaganda line that they have successfully cleared up their own mess.

A coalition involving other parties could be very different. For if the current framework manifestly fails to make a difference or to bring the major publishers on board, a Parliament involving any other combination bar UKIP will be asked how they want to deal with this failure. Leveson’s own opinion was that some kind of statutory regime – probably involving Ofcom – would be the obvious next step. And at that point, we might find a rather more genuinely contrite press industry prepared to accept the voluntary, independent system which the current Parliament enacted.

And that, of course, might explain something of the almost fanatical zeal with which some newspapers are trying to discredit and destroy Miliband and Clegg. Press regulation may not be a doorstep issue, but it is most certainly a newspaper issue. Those newspapers which have set their faces against the current regime will be desperate to see David Cameron back in Downing Street – even if many of them secretly despise him.


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