As a UK-based organisation dedicated to the promotion of free speech and elimination of censorship worldwide, Index on Censorship is pleased to have the opportunity to provide feedback on the documents that proposed press regulator IMPRESS has drawn up ahead of its formal launch. Index also made written and oral representations to The Leveson Inquiry on the culture, practice and ethics of the press.
IMPRESS asked specific questions, to which Index has responded below. Our comments should be in no way seen as an endorsement – or indeed – a rejection of IMPRESS.
1. Do these documents meet the criteria set out in the Leveson Report, as distilled in the Royal Charter on Self-Regulation of the Press, for an independent and effective regulator? How might they be improved in this respect?
These documents reflect in large part the criteria set out in the Leveson Report and even more closely the requirements outlined in the Royal Charter on Self-Regulation of the Press, particularly on the important question of redress through swift and transparent complaints and arbitration procedures.
However, Index remains concerned that the independence and efficacy of a regulator will not be guaranteed by seeking recognition from an oversight body established by Royal Charter. A Royal Charter – though arcane – remains a political instrument. Royal Charters are established by Her Majesty’s Most Honourable Privy Council, the bulk of whom are politicians, including serving members of government. Though we accept that the Recognition Panel is conceived in a way that is intended to demonstrate absolute independence from government control, the establishment of an oversight
body through such an obscure piece of political machinery is not a mechanism likely to inspire the public trust and confidence required by the public. The whiff of undemocratic, non-transparent political involvement in the creation of the regulatory body has tainted it from the outset.
As the Privy Council says on its own website: “…once incorporated by Royal Charter a body surrenders significant aspects of the control of its internal affairs to the Privy Council. Amendments to charters can be made only with the agreement of the Queen in Council, and amendments to the body’s by-laws require the approval of the Council (though not normally of Her Majesty). This effectively means a significant degree of Government regulation of the affairs of the body, and the Privy Council will therefore wish to be satisfied that such regulation accords with public policy.” (our italics)
There is little clear evidence that the Recognition Panel, as currently conceived, would restore public trust in the British press, or indeed behave in a way that would hold a regulator successfully to account, as scandals involving the oversight of other independent regulators, such as the Care Quality Commission, have shown. A study by the Media Standards Trust has shown that more than 70% of the public believe that it is important that a new system of press self-regulation is periodically reviewed by an independent commission, but it is by far from clear that the public believes that this should be a Recognition Panel established by Royal Charter. An opinion poll conducted by Survation in April 2013 found that 67% of those surveyed concurred with a statement that any regulatory system should be set up ‘in a way that does not give politicians the final say if and when changes need to be made’.
In addition, Index remains concerned that, aside from the Royal Charter, other elements of legislation introduced in the wake of the Leveson Report represent a threat to media freedom. One of the most worrying of these is section 42 (3) of the Crime and Courts Act 2013, which sets out that an organisation which does not join a recognised regulator but falls under its remit (through being considered a “relevant publisher”) will potentially become subject to exemplary damages should they end up in court, and could also be forced to pay the costs of their opponents.
There are two principles here that threaten a free press. Firstly, that in effect joining a regulator becomes less than voluntary if you have the threat of punitive damages hanging over your head. Secondly, that those who do not join and therefore feel under threat of exemplary damages will skirt away from controversial subjects and investigative journalism, and opt instead for “safe” stories.
Such measures could be especially punitive for small publishers and news organisations with limited financial means. This has a damaging effect on free expression.
Supporters of this aspect of the act argue that exemplary damages would only apply to “reckless” action by journalists, but it is possible that a court could find that a breach of Article 8 rights to privacy and reputation was by definition “reckless” even when a journalist was pursuing an investigative news story in the public interest.
2. Do these documents (in particular the ‘sunset clause’ in the Mem & Arts) serve to protect the regulator’s independence from potential interference by politicians or civil servants? How might they be improved in this respect?
The memorandum and articles skirt around the issue of whether IMPRESS would seek recognition under the charter although it is made clear in other documents that IMPRESS would seek recognition. For the reasons outlined above, Index believes that IMPRESS should not seek recognition under the Royal Charter and that a robust ethics code, financial independence, and demonstrations of efficacy (i.e. participants shown to be held to account; swift and cheap arbitration) are the only ways in which the independence of the regulator will be truly demonstrated.
3. Do these documents serve to protect the regulator’s independence from potential interference by subscribing publishers? How might they be improved in this respect?
It is unclear from the documents supplied by IMPRESS what precisely the relationship would be between the funding mechanisms for IMPRESS and the regulator itself. The implication of the documents is that the regulator would be funded by participants (as with IPSO) but (unlike IPSO as currently envisaged) these participants would have no further role in setting the agenda for IMPRESS or carrying out its duties.
Complete transparency over the regulator’s funding is vital for its success. The agreement between participants and regulators should state explicitly that the funders can have no role whatsoever in the operations of IMPRESS or in its decision-making. Clear and total separation between the funding of the regulator and the regulator itself is vital to ensure press freedom.
The IMPRESS website identifies a number of current funders of IMPRESS but no details are given outlining the expected cost of running the regulator or the regulator’s financial plans. This raises the question of how the body can ensure it will be adequately funded — and therefore its long-term sustainability — should participants decide, for whatever reason, that they are no longer happy with the decisions being taken by IMPRESS. This should be clarified, along with greater detail on the projected cost of the regulator and its intended sources of income.
One mechanism that could help improve public confidence in the industry as a whole might be to make subscription open to individual journalists. This would mean the public could be assured that the body represents the press as a whole and would help IMPRESS to cover a fuller range of publishers who might be covered by the Crime and Courts Act.
4. At the same time, do these documents serve to give subscribing publishers confidence in the regulator’s operations? How might they be
improved in this respect, without compromising the regulator’s independence from the news industry?
It is unclear from the documents provided by IMPRESS whom it considers to be a likely member. The Crime and Courts Act sets out four cumulative criteria which must be met by a publisher to satisfy the definition of relevant. A publisher must:
. Publish “news-related material” (see below)
. Publish “in the course of a business” (whether or not carried on with a view to profit)
. [Produce material] “written by different authors”, and
. [which is] “subject to editorial control” (over the content of material, presentation
and the decision to publish).
Schedule 15 of the Act exempts publishers including broadcasters, public bodies, charities, micro businesses, and those who publish special interest titles, scientific and academic journals, company news publications, and books. But as English PEN has shown (‘Who joins the regulator: A report on the Crime and Courts Act on publishers’), a number of small publishers may nevertheless be caught in the net and there remains a “dangerous” level of uncertainty about the definition of “relevant”. Index has serious concerns that the implication of this, as detailed above, is a restriction on
investigative and challenging journalism.
5. Do these documents provide clarity about the regulator’s procedures? How might they be improved in this respect?
More clarity in the Procedures document regarding; the internal ombudsman; the complaints handling procedure; and conditions of joining, would be welcome. In its prospectus, IMPRESS states: “The regulator will not receive complaints directly unless or until the internal complaints system has been engaged without the complaint being resolved in an appropriate time.”
6. Do the IMPRESS/CIArb Arbitration Rules serve to give potential litigants in a relevant action confidence in the scheme’s capacity to provide access to justice? How might they be improved in this respect?
Index would suggest that IMPRESS consider the Alternative Dispute Resolution mechanisms outlined in the submission by the Alternative Libel Project, a collaboration between Index on Censorship and English PEN, which include suggestions on Early Neutral Evaluation. Details can be found here.
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In conclusion, Index welcomes attempts by all the sides of the press to better self-regulate in ways that both protect the independence of the media and the free speech rights of the broader public. However, we remain opposed to the Recognition Panel as established by Royal Charter as the mechanism through which oversight of any regulator should be achieved, and deeply concerned that punitive measures such as exemplary damages negate any notion of a recognised regulator being voluntary.
The Independent Press Standards Organisation (Ipso) does not yet meet all the requirements for an effective, voluntary self-regulator. But we should not let flaws in its current design be used as an excuse to turn to state regulation of the press – or to introduce a system that effectively makes press regulation compulsory, and which punishes the poorest.
Index on Censorship welcomes the establishment of the new press regulator Ipso, but calls for further work to be done to ensure it is both clearly accountable and genuinely independent in providing an effective means of dispute resolution. As we said in our submission to the Leveson Inquiry in 2012, the range of inappropriate, unethical and illegal behaviour by some journalists and media organisations that the inquiry exposed demonstrated a clear need for “a better and tougher approach to press regulation” and that a new and more effective approach to self-regulation of the press was vital if statutory regulation was to be avoided.
Index does not support the Royal Charter, an ill-conceived political fudge that indicates the beginnings of creeping state interference in an industry that must remain entirely free of political and governmental involvement, and does not believe that any regulator should seek recognition under the Royal Charter.
As we wrote in 2012: “A new regulatory body, set up on a self-regulating basis, must push for a high standard of corporate governance and accountability. And it must have a wide-ranging remit to monitor and address issues of journalistic standards including ethical standards. It must offer a straightforward, effective and fair approach for dealing with individual complaints [and]… must be able both to defend privacy and to be clear about where, when and why a public interest defence can override privacy.”
Though we believe the new regulator goes some of the way to meeting these demands, it is of concern that despite the length of time Ipso has had to consider the matter, the regulator launched today offers no effective means for swift, low-cost dispute resolution and complaint handling. Rapid, cheap arbitration will be a key element for any successful press regulator and comments from Sir Alan Moses this morning indicate that Ipso is still a long way from a decision on how such a scheme should be run. Ipso must institute an easy, fast and fair way of resolving defamation claims and other disputes as a matter of urgency.
We are also worried about the level of genuine accountability of the new regulator, and the potential for the wealthiest news organisations to exert undue influence over the workings of Ipso through its current funding mechanism, not least through a current proposed veto that the funding body would have over any changes to the regulator’s code of conduct. Sir Alan Moses will need to ensure there is clear separation between the workings of the regulator and the newspaper members that fund it. He will also have to do more to demonstrate how Ipso will be publicly accountable.
There is a risk that without a clear indication of how the independence and efficacy of Ipso’s work will be assessed and verified, other proposed press regulators may seek to gain public trust by seeking recognition under the Royal Charter. This could unleash exemplary damages and costs for Ipso members and any other publishers, including potentially individual bloggers and small websites, who choose – for whatever reason – not to be part of a recognised regulator. Such actions would undermine the very notion of a voluntary system of regulation, and therefore of a free press.
Three years ago this week, David Cameron announced that a public inquiry into phone hacking would be set up, under the guidance of Lord Justice Leveson.
It may be difficult to imagine now, given how acrimonious the fallout has been, but this was generally seen as a positive step. Something had gone very wrong, it seemed, in public life. Hacking was merely the embodiment of a secretive threeway between politicians, the Metropolitan Police and News International. A judge-led inquiry would clear the air, we hoped. No one, not even the people behind Hacked Off, (which, after all, was not set up to lobby for a new state-backed regulator, or for enhanced privacy, but merely for an inquiry) could have foreseen the impasse we are now at, with a ludicrous Royal Charter for press regulation, punitive press laws on the statute books, two proposed regulators (the industry’s IPSO and the pro-Royal Charter IMPRESS), and at least one paper, the Financial Times, deciding to opt out of the argument entirely – while the police and politicians have walked away from the inquiry unscathed.
Richard Bean’s new play Great Britain, currently showing at the National Theatre, could be seen as the first artistic response to the phone-hacking scandal and the fallout from it.
It was reportedly developed and auditioned under wraps as the hacking trial was under way at the Old Bailey, and opened shortly after Andy Coulson was found guilty and Rebekah Brooks acquitted.
But there is more to this than just phone hacking. As the title suggests, Great Britain sets out to be a state-of-the-nation address, examining the interconnections and relations between the press, police and politicians. It is the Leveson Inquiry on stage (as if the Leveson Inquiry were not theatrical enough). And as with the Leveson Inquiry, it is the press who come out worst. The police are incompetent, the politicians are pathetic, but the journalists are venal.
The plot centres on Paige Britain (geddit??!!??) a young news editor on a tabloid called the Free Press (geddit??!!??), who discovers how to hack phones and hence supplies her paper with a series of scoops.
Britain, played by Billie Piper, at first seems sort of composite of Rebekah Brooks and Andy Coulson. Except she’s not, because a Brooks character is introduced into the plot and kept entirely ignorant of Britain’s voicemail shenanigans (Brooks was, after all, found innocent of conspiracy to hack phones).
Robert Glenister plays Free Press editor Wilson Tikkel, who may be Andy Coulson or may be Kelvin Mackenzie. Tikkel is the classic tabloid geezer of the popular imagination, and by classic I mean archaic. He swears and cajoles and judges stories at morning conference on whether they give him a “hard-on” or not (though this does lead to one of the play’s funnier lines — “no one ever got a hard on from assonance”). Though Private Eye likes to remind readers of Daily Mail editor Paul Dacre’s frequent “Vagina Monologues,” the stereotype still feels worn.
Then there is a driven Irish proprietor who made his money from advertising the, er, adult industry and has his eye on the broadcast market.
The play is riddled with these portmanteau characters and scenarios. A thick Lancashire cricketer is framed as an adulterer after Free Press reporters misinterpret a message left on his phone suggesting he had slept with a person who was not his partner, which turned out to be thanks for support at a funeral. This scenario was in fact what happened to Gordon Taylor, head of the Professional Footballers’ Association. There is also a rough assemblage of several child murder stories and anti-paedophile campaigns.
This might not seem important – after all, it’s not one of those David Hare verbatim plays, but it becomes troubling when stories and scenarios are thrown together to create a broad mush of bad stuff. The satire feels too broad, too generalised. Just as Leveson expanded from being a “hacking inquiry” to an investigation of every single aspect of the press, so Great Britain chucks everything in together. And as with Leveson, the whole press is punished for the crimes of a few.
Meanwhile, in its attempt to parody the cynicism of the tabloid world, Great Britain becomes quite nasty itself. There’s a thin line between mocking un-PC attitudes and actually laughing along with them, and Great Britain gallumphs across it carelessly. A gay half-Welsh, half-Chinese police officer is called Bryn Wong. Hilarious apparently. The security guard at the newspaper is Lithuanian. Got to be a gag in that. A black police officer is called Sergeant Ojo; the audience sniggers, and then properly guffaws when his superior calls him a “daft African twat”. The Irish character is, inevitably, a former IRA terrorist.
And then there’s the misogyny: major female characters are inevitably scheming, using their, er, feminine charms to get what they want. In one particularly nasty joke, Piper explains the origin of the term “Brazilian” for pubic hair pruning, before going on to wink that if she named her newly-trimmed area after where she went to get the trimming done, her underwear-area would be known as the Isle of Dogs.
That’s the level Great Britain operates at. Unsubtle and unpretty. At the start of the second act, Piper emerges dressed in Margaret Thatcher blue, complete with handbag, and delivers a clunky lecture on how things really work in the corridors of power. At the end, we get another lecture, “provocatively” pointing out the apparent complicity of the audience in the Free Press’s crimes, and in doing so equating the expenses expose with phone hacking (both being founded in illegality) and effectively showing utter contempt for the idea of public interest.
But the archaicness of it all is simply a reflection of the way the entire true story, from initial phone-hacking allegations to the government’s Royal Charter on press regulation, proceeded.
A criminal problem became a political issue; actions at one newspaper became the fault of the whole press; and ultimately, the issue became about the wars that started in the mid 80s, when Thatcher and Rupert Murdoch took on the miners and the printers, events long predating the hacking scandal that first broke in the mid-2000s.
The arguments are from the 80s, the jokes are from the 80s. There is barely a nod to the press and the web of today, apart from the aping of the autotuned “Leveson The Musical” video everyone loved in 2012.
In spite of the relative recency of the Leveson Inquiry and the hacking trial, Great Britain largely fails to address the present and the future. It contributes little apart from cheap laughs to the ongoing discussions on how our media should run itself, or be run by others. But this playwright Bean is not operating in a vacuum. Perhaps we’ll get the play about the press we need when we get the debate about the press we need. Much of that debate so far, much like Great Britain, has been rushed, crude, and played to stereotype.
Martin Moore of the Media Standards Trust has written a long article for the New Statesman on the “topsy-turvy” world of the debate on press regulation and restrictions.
Moore undoubtedly makes some good points about the absurdity of some newspapers protesting potential political interference in the press while not raising a even the mildest objection to the government and secret services actual threats to the Guardian over its coverage of GCHQ surveillance techniques (similar points were made with elan by the Spectator’s Nick Cohen a few weeks ago).
The MST director berates newspapers for having “got the debate the wrong way round” both “in principle and in practice”.
But Moore and his comrades who support the Royal Charter, in the Media Standards Trust, Hacked Off, and individuals, themselves must take some blame for the topsy-turviness of the language around regulation.
Take the idea of “exemplary damages”, which, it is proposed, publications that do not sign up to a recognised regulator will be subjected to.
The pro-Royal Charter argument has been that the existence of exemplary damages, and the avoidance of them are “incentives” to join the regulator. They are not. They are a punishment for not joining the regulator. An incentive would suggest putting publications at an advantage; but under the current proposals, all that joining a regulator does is to put publications on a level footing with individuals or organisations who would not be considered subject to the regulatory scheme. An “incentive” to avoid default punishment is akin to a threat from a protection racket.
Further on in his article, Moore calls for a British version of the US’s First Amendment. It’s a nice idea.
But Moore says that Lord Justice Leveson proposed a British First Amendment. This is not the case.
What Leveson recommended was this:
In passing legislation to identify the legitimate requirements to be met by an independent regulator organised by the press, and to provide for a process of recognition and review of whether those requirements are and continue to be met, the law should also place an explicit duty on the Government to uphold and protect the freedom of the press.”
At first glance, that’s all very lovely. But it is meaningless at best, dangerous at worst, and certainly not a First Amendment style law.
Meaningless because all sorts of countries have constitutional guarantees of a free press. China, for example, states in article 35 of its constitution that “Citizens of the People’s Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration.” Fine words.
Dangerous as it could imply that the government of the day ultimately holds press freedom in its hands. This, it may be argued, is the case anyway, but to explicitly say it is not ideal. As noted in a recent Huffington Post article by Hacked Off’s Brian Cathcart, the British government has made many attempts in the past to stifle press freedom. I don’t really see why we should explicitly say the concept belongs to them.
The first amendment states simply:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
To claim that Leveson’s proposal, specifically to create a law about freedom of the press, is the same thing, is odd. When coupled with the proposal of punitive measures for those publishers who do not wish to play the government’s game, the claim is absurd.
