In the light of recent events, Ed Milliband, in a line that must have written for him by a human, has called the Press Complaints Commission ‘a toothless poodle’. Meanwhile David Cameron, in a line that might have been written by one of Ed Milliband’s robotic compadres, has called it ‘ineffective and lacking in rigour’. The PCC is arguing against this view, naturally, and suggesting that a little light tinkering around the edges is all that’s required. Given that the Commission’s own Baroness Buscombe* has been forced to publicly concede that if a newspaper chooses to lie to it there is nothing it can do to compel the truth, and given that Richard Desmond’s decision to take his stable of newspapers – Daily Express, Sunday Express, Daily Star, Daily Star Sunday – out of PCC regulation altogether demonstrates the absolute lack of effective oversight of the print media, it seems unlikely that this view will prevail. One of the few predictable outcomes of the News of the World furore is that the PCC will be abolished or substantially reformed.
There will not be many people outside the press crying over this. Any regulatory regime must ultimately be judged by one criterion: the effectiveness with which it prevents wrongdoing on the part of those it regulates. The PCC has spectacularly and abysmally failed in this regard. Blogs like Tabloid Watch do a brilliant job of collating PCC reports, and noting the absolute lack of impact a critical adjudication by the PCC has on newspapers’ subsequent behaviour; they simply accept the ruling, take down the online version of the story (though it is preserved for ever in online archives), bury a brief apology in an obscure corner of the newspaper and website – and then go right on doing the same things they were criticised for. If Gas Safe worked this way – if gas fitters’ regulatory regime compelled them to send flowers to the relatives of people killed by their shoddy workmanship but allowed them to keep working in the same dangerous way – there would be universal agreement that the regulatory regime was not fit for purpose.
The consequences of shoddy journalism are less immediately dangerous than shoddy gas engineering – though think of the lives that would have been saved in Iraq if the press had done their job properly in the run up to that war – but the principle is the same. The PCC is not fit for purpose. It exists, not to regulate the press, but to give the illusion of regulation, in order to prevent real regulation being introduced. In the same way that those ‘naked scans’ at airports are not about security but Security Theatre, the PCC is not about regulation but Regulatory Theatre. In the light of that, here are my proposals for what should replace it.
1 – Replace the voluntary PCC with a quasi-judicial tribunal. The PCC are absolutely right when they stress that their successor body should be independent – independent of government, independent of parliament and, critically, independent of the newspaper industry. Luckily, there is an already-existing arm of the state that possesses these attributes – the courts. The ‘new PCC’ should be set up along similar lines to Employment Tribunals, interpreting and evaluating evidence on the basis of principles set out in legislation by parliament, but not subject to political interference in their deliberations. As with Employment Tribunals, the work of the ‘new PCC’ would be subject to judicial oversight, and the courts would have the power to overturn individual judgements; any party to a complaint would have the right to seek a judicial review, either of the judgement in their case, or of a general point of law that relates to their case. The ‘new PCC’ should be funded directly from taxation, in order to prevent any possibility of a conflict of interest, and in order to prevent the newspaper industry from starving the body of funding.
2 – Clarify and define the basis on which complaints can be made. The ‘new PCC’ should accept complaints on the basis of invasion of privacy, factual inaccuracy, and false or misleading inference from, or interpretation of, the facts.
3 – Extend the jurisdiction of the ‘new PCC’ to cover all material published in, or from, the UK. At present, the PCC can only accept complaints relating to a publication that has opted in to its regulation. The ‘new PCC’ should have its jurisdiction extended to cover all newspapers, magazines, periodicals etc published in the UK, and any material submitted or uploaded to a website from the UK. (In the case of websites located overseas, the ‘new PCC’ would only have jurisdiction over the individual who submitted/ uploaded the content, not the editors or proprietors of the site. In the case of foreign publications, the ‘new PCC’ would have jurisdiction only if the publication issues a separate edition in the UK, and only over content that appears in the UK edition.)
4 – Allow more people to complain. At present, the PCC can only accept complaints from an individual directly affected by an article. While the right to complain in respect of invasion of privacy should be reserved for those directly affected, the ‘new PCC’ should be empowered to accept complaints from any individual or organisation that can show that an article was factually inaccurate, or drew misleading or inaccurate inferences from the facts, or interpreted the facts in an inaccurate or misleading way. This would avoid bizarre situations such as the Stephen Gateley affair, where it was only the last-minute decision on the part of Mr Gateley’s widower to make a complaint that enabled the PCC to take a view on articles that were very widely objected to on the basis of factual inaccuracy. It would also allow complaints to be made against articles which misrepresent the situation as it applies to non-individualised groups such as ‘the elderly’, ‘football supporters’, or ‘immigrants’.
5 – Clarify and define the grounds on which publishers and others can defend themselves. A robust defence of public interest should be available to publishers, but only in situations where an individual or organisation is breaking the law, or abusing a position of trust, or demonstrating a clear inconsistency between public pronouncements and private behaviour. (In other words, a story about a dodgy vicar sleeping with a widow who approached him for grief counselling – a clear abuse of trust – would meet the test for a public interest defence, but an article about a sportsman who had publicly expressed no views on sexual morality sending rude text messages to someone other than his partner probably would not.) A robust defence of reasonable comment should also be available, but for this to apply a statement would have to clearly identify itself as opinion; the reasonable comment defence should not apply to material presented as fact, even if such ‘facts’ appear in the context of an article identified as a comment piece. (In other words the statement “we all know too many politicians lie to their constituents” would be subject to the fair comment defence: the statement “we all know most politicians lie to their constituents” would not, unless there was evidence backing the claim.) There would also need to be a satire defence, to protect obviously facetious articles.
6 – Make punishment meaningful. Where a complaint is upheld by the ‘new PCC’ it should be in a position to apply punishments which are meaningful, both in offering redress to wronged individuals and groups, and in encouraging journalists, editors and proprietors to avoid similar behaviour in the future. As at present, the standard remedy should take the form of an order by the ‘new PCC’ to the offending publication to publish a formal notice of apology, correction and retraction. The difference would be that the notice would be required to be published with equal prominence, and given equal weight, as the original article. In other words, if an offending article appeared as the lead article on page one of the paper, and continued across pages five and six, the official notice must also be published as the lead article on page one, and continued across pages five and six. If all the space is not required for the notice, the remaining space should be left blank, with a brief note indicating why. (In the case of websites, the notice should be promoted with equal prominence and for an equal length of time as the original article. In the case of websites based overseas, the UK-based individual who submitted/ uploaded the objectionable article should seek to place the notice in the original website; in the event of being unable to do this, s/he would have to demonstrate that s/he had taken reasonable steps to circulate the notice as widely as possible.) This approach would have the twin benefits of offering high-profile vindication to aggrieved parties and of imposing an indirect financial penalty on the publication, in the form of lost sales, and decreased revenue from adverts placed alongside formal notices or blank pages.
7 – Make punishment enforceable. In the event of a UK-based newspaper or other publisher refusing to comply with one of its orders, the ‘new PCC’ should be granted the right to seek unlimited financial damages against named individuals – editors, proprietors – and corporate bodies; in the case of foreign-based websites, claims should be permitted against non-complying UK-based contributors. (Such enforcement action would of course be stayed in the event of any party applying for a judicial review of the judgement, or of a point of law relating to the judgement.) Guidance from parliament should be explicit that the aim of such damages would not be to compensate the aggrieved parties, but to punish individuals and companies in breach of orders from the ‘new PCC’. This is necessary to give the system teeth. The only alternative would be to require publications to be licensed, and for the ‘new PCC’ to have the right to revoke that licence, but this would be an unfair burden on ethical publishers – they would have to bear the costs of licensing despite doing nothing wrong – and might also have a chilling effect on freedom of the press. It is one thing to impose penalties on individuals and organisations proved to have done wrong, but quite another to set obstacles in the way of an innocent party’s right to freedom of expression. Licensing would also be unenforceable in the case of content published online.
8 – Make ‘new PCC’ involvement a last resort. In many cases it should be possible for matters to be resolved without having them brought before the ‘new PCC’ for formal ruling. The ‘new PCC’ should, as a matter of unvarying principle, refuse to accept complaints unless the complainant can demonstrate that they have made attempts to address the complaint with the publication/ website first, and have failed to receive a satisfactory response within a reasonable timeframe. Once the new system is established, it is likely that publishers and others will be keen to respond promptly and attentively to such approaches, if they have merit, since the consequences of a ruling against them by the ‘new PCC’ will be significant, both financially, and in terms of their journalistic reputation. In addition, when the ‘new PCC’ first accepts a complaint, initial efforts should be focussed on an attempt to mediate between the publisher and complainant, with a full tribunal hearing being triggered only if agreement cannot be reached between them.
9 – Empower the ‘new PCC’ to dismiss trivial complaints, and to impose proportional punishment in cases of minor infraction. The ‘new PCC’ should be empowered to dismiss trivial complaints, such as a complaint that a publication gave the wrong age for a person named in the course of an article, for example. In the event of a complaint being substantive enough to proceed on but relating to a relatively minor detail in an article, the ‘new PCC’ should have the discretion to order publication of an official notice, but with less prominence and weight than the original article.
10 – Impose cost-sharing on all parties to a complaint before the ‘new PCC’. At an early stage in the process of formal adjudication, all parties to a complaint would be required to make a declaration of the money they were intending to spend in the course of pursuing or defending a complaint. All parties would be required to pay this sum into a central fund, which would then be distributed evenly between all parties. (If either side decided during the process that they wished to spend more this would have to be immediately declared to the tribunal, and again the money would be evenly distributed between all parties.) Making a false declaration of costs would be a criminal offence, carrying a prison sentence for those convicted. This would have two effects. Firstly, it would automatically level the playing field, since a rich newspaper (or a rich complainant) would not be able to outspend a non-wealthy complainant (or individual blogger/ journalist). Secondly, it would discourage the use of expensive legal firms – who would want to give £300 an hour to their opponents’ lawyers? – and incentivise both sides in the dispute to attend to the substantive issues at hand, instead of following legalistic strategies in the hope that their opponents will run out of money.
11 – Make the ‘new PCC’ the primary venue for disputes relating to the accuracy and fairness of articles appearing in the press. Libel law should be reformed in such a way that an individual or organisation who believes they have been libelled by a newspaper or website article has to pursue the substance of their complaint through the ‘new PCC’. Only after the tribunal (or a court overturning the ruling of the tribunal) has ruled that an article was factually inaccurate, or made false or misleading interpretation of the facts, or drew false or misleading inferences from the facts, would an individual or organisation be permitted to sue for libel. Such an approach would have the benefit of encouraging complaints to be resolved at an earlier stage, and in the context of a process that mandates conciliation before confrontation, that prevents one party in a dispute from outspending the other, and encourages the participants to focus on non-financial remedies for non-financial losses.
So, there’s that. I hope you’ll agree that my proposal is about as light-touch as an effective regulatory regime can be. Newspapers and bloggers would not come under pre-emptive pressure not to publish an article (in fact, the restriction of the right to sue for libel, and the cost-sharing approach to legal costs, ought to make it easier to publish articles critical of the rich and powerful). The only pre-emptive pressure would be to make sure that they’ve got their facts straight, and have been clear about which parts of their treatment of a subject are factually based and which parts are opinion and comment – both things that they should be doing anyway. A paper that takes care to verify its facts, and to distinguish carefully between fact and opinion, would never come before this reformed PCC. More to the point, neither would a newspaper or website that issues prompt and prominent clarifications of any errors of fact or interpretation or inference that creep in as a result of misunderstandings, or rushed deadlines, or confusing and fast-moving situations. Only organisations and individuals that intentionally do wrong, and which persistently refuse opportunities to make amends, would end up on the wrong end of a formal adjudication, and suffering the financial and reputational consequences.
No-one wants to restrict the freedom of the press. I certainly don’t – a media free to investigate what it thinks important and report what it finds out is absolutely critical. We just want to make sure that the media exercise those freedoms in a responsible and ethical way. It would be great if that could be done under the honour system of self-regulation, but recent events have underlined, once again, that too many of today’s journalists, editors, and proprietors are incapable of living up to such a system. It’s a sad thing that we have to go down this route – but what other choice have the hacks at the News of the World, and their fellow hacks who failed to regulate them, left us with?
* – Gloriously, my spellchecker wanted to change Buscombe to Buncombe. If that doesn’t mean anything to you, read this. See what I mean? Glorious.