Reform of press self-regulation – a spectrum of possible models

One of the few benefits of breaking a bone while you’re on holiday is that you get to spend time thinking. That’s what I tried to do last month, as I sat with my broken metatarsal raised above hip level, collecting my thoughts about the future of press self-regulation.

After the phone hacking revelations in July all three Party leaders had lined up to say that the current system was dead. The Prime Minister, David Cameron, announced that there would be a full public inquiry, part of the purpose of which would be to make recommendations for a “new system entirely” of press self-regulation.

Any new system, however, would have to protect and preserve press freedom while at the same time working out how to protect people’s privacy and prevent illegal intrusion on the scale revealed in July.

With this in mind I noted down a spectrum of options – seven in total – ranging from the minimalist, i.e. virtually no regulation, to the maximalist within a democratic system, i.e. a statutory regulator. Each one I fleshed out in conversations, with Gavin Freeguard and others, then sketched in the some of the benefits, as well as the three main problems I could see with each of them.

No one model is recommended over another. Quite a few of them I would object strongly to. The list is meant as a means of framing thinking around these, and possibly other, options for reform. It is not exhaustive, nor does it include a ‘status quo’ option. But it assumes there will be some reform.

This list was used as a basis for discussion at the Reuters Institute in Oxford on 23rd September, and a version of it will shortly be published in Political Quarterly. At the Oxford meeting – and since – further options have been suggested (such as this on INFORRM) – which is a good thing. The more open this debate the better.

7 possible options for reform

1. Abolish the PCC, without setting up a replacement

In this model the PCC would, as Ed Miliband suggested in July, be abolished – but nothing would be set up to replace it. Nor would there be any further legislation to set up a statutory regulator or equivalent.

The benefit of this model is that it recognises the difficulties of creating a new system that cuts across very different content and an increasing range of media and platforms.

It would save news organisations the cost of fees for a self-regulatory body, and give them the freedom to set up – or not set up – their own internal methods of accountability. It would give a positive signal that the UK believes in unrestricted free speech, and trusts newspaper owners, editors and journalists to produce good journalism. Since newspapers could not have complaints dealt with through a PCC-type body, they might compete to set up ombudsmen and readers’ editors (see also option 6). In short, it would be a system similar to that in the United States – though lacking their First Amendment – which in some ways has set the model for journalism.

The three main problems with this approach are:

  • It is unlikely to satisfy those outraged by the revelations of phone hacking at News of the World who want a more effective system of regulation, rather than no system of regulation
  • It is unlikely to satisfy those who believe the PCC performs a positive function and helps to protect the press from government intervention
  • It potentially leaves many people – who cannot afford legal action – without redress from news organisations

2. Reform the existing PCC

This would be the preferred route of many within the press, particularly those at the popular end. It would probably involve giving the existing organisation greater investigative powers, increasing the representation of lay members on the commission and decreasing the number of editors, and providing some sort of sanction against newspapers (none currently existing). This would be probably be enhanced by some revisions to its remit and additional funding.

There are a number of benefits to this approach. It is very likely to get buy-in from large sections of the press. It means we do not lose the valuable mediation function of the PCC, or its institutional memory. It does not require any resort to legislation or extension of the remit of existing statutory bodies (like Ofcom). It keeps the oversight of the newspapers firmly voluntary, without any threat of state interference (except, as always, that provided by the law).

The three main problems with this approach are:

  • The PCC is a mediation body and it is not within its DNA to regulate. There have been multiple attempts to reform the existing body without success. It is hard to see certain news groups agreeing painful sanctions or powerful investigative powers
  • There is little reason to believe that certain news outlets, such as the Express Newspapers, will be minded to re-join the reformed organisation (let’s call this the ‘Desmond problem’)
  • This is unlikely to satisfy the large numbers of members of the public or politicians who want radical and effective reform

3. Create an independent regulator

This is the route already referred to by the Deputy PM and referenced by others including The Guardian. Its analogies are bodies such as the Advertising Standards Association (ASA). Though this is self-regulation it would require some sort of arms-length regulatory backstop. In the case of the ASA that comes in the form of the Office of Fair Trading (for non-broadcast advertising) and Ofcom (for broadcast advertising).

In this model news organisations would probably be required to sign up to a self-regulatory system that adhered to some basic criteria. There may be more than one self-regulatory system, but each one would have to adhere to the same baseline.

In such a system it would be much easier to create and police sanctions, and it would be possible to invest the regulator with investigatory powers. It could also provide a genuine alternative to the court system which has already become unaffordable to most claimants and defendants.

The three main problems with this approach are:

  • It is unclear how it would be funded since it would, inevitably, be more expensive than the current system
  • The regulator would not be invested with significantly more powers than in option 1 such that – to address issues like phone hacking – independent regulation would need to be paralleled by changes to existing laws (e.g. Section 55 of the Data Protection Act)
  • Certain news organisations would protest strongly against any regulatory backstop, even at this arms length

4. Extend a watered down Ofcom to cover all major media organisations

This is the option favoured by some academics, lawyers and politicians. It would necessarily require some changes in the way Ofcom operates. Few, for example, would favour the extension of rules on impartiality to the press. In other words, the current Ofcom code would need to be relaxed.

However, even were the code to be relaxed this would, for the press, mean a significant extension of regulation. It would mean that any commercial news outlet with an audience over a certain threshold could fall within the revised Ofcom remit. As such they would be required to adhere to a code or risk some sanction, such as a fine. This would satisfy those who believe a media regulator needs teeth if it is to be effective.

Another benefit of such an approach, from the perspective of the public, is simplicity. There would be one media regulator, with slightly reduced powers but a much broader remit.

The three main problems with this approach are:

  • Most of the press would fight to prevent it being instituted, fearing such a regulator would limit press freedom.
  • It would cost more than the current system and it is unclear who would pay for it
  • It may be expected to cover – but struggle to deal with – the internet

5. Create a professional body for journalists

In this option the PCC would be replaced with a ‘Journalism Society’, which would operate in a similar way to the Law Society, the representative body for solicitors in England and Wales. The body would be open, global, and independent. This option was first outlined by John Lloyd in the FT in July – from which the description below is taken.

A ‘Journalism Society’s’ stakeholders would include representatives of the government; the educational establishment; civil society (for instance relevant non-government organisations and policy institutes); industry and finance; and the news media. All of these would be committed, under its charter, to pluralist, independent, opinionated news media, working within the law.

This way there would be a much broader commitment to the free press, and no one interest would dominate.

Such a body could set and patrol ethical standards, monitor training and qualifications and above all be a forum within which journalists could map out the nature and future of their craft at a time of rapid change.

The three main problems with this approach are:

  • It is hard to see what equivalent sanctions the Society would have to other Societies – for example the Law Society’s ability, in the last resort, to suspend a lawyers right to practice. A similar sanction for journalists is unlikely to be seen as desirable or practical
  • If the society is not formed on the basis of statutory regulation then it is probable that a number of news organisations and journalists will not join. If it is based on statutory regulation then it is likely to be seen as a form of licensing and rejected for this reason
  • If it is international, it is not clear how sanctions would be enforceable on a national basis

6. Withdraw all media regulation, but reform, extend, reduce and clarify existing media law

This may seem like the radical option but may be better suited to the emerging digital environment. In this option there would be no media regulator – except for those organisations that benefited from public funding.

Instead, media law would be reformed, extended, reduced and clarified such that news organisations would be incentivized to set up their own, devolved complaints systems to reduce costly legal action.

The key to such a model would be the reform of existing media laws to make them more flexible, accessible, practicable, and understandable.

The model would also require the establishment of a clear and stronger public interest defense for journalism. This could not simply be a defence of process but also of motivation and outcome.

The benefit of this model is that it would help to address both the regulatory and legal problems associated with media regulation. It would help address the costs, and access to justice, issues that currently plagues libel law. It would provide people with a more realistic response to privacy intrusion. It would remove the cost of a regulatory body.

The three main problems with this approach are:

  • How to pay for access. CFAs (Conditional Fee Agreements) have been abused but some alternative is required for this to work – but it is hard to see the State providing funding for this
  • It puts more powers into the hands of judges (who would be the final arbiters, for example, when it came to deciding  whether privacy has been intruded or someone has been grossly misrepresented)
  • It relies on the police to investigate law breaking – which they are unlikely to do without greater sanctions (e.g. a maximum two year jail sentence for breaking Section 55 of the DPA)

7. Create a new statutory regulator for all media

In this option all major media organisations would be licensed, as in broadcasting. The code would be on the statute books, and would be policed by the regulator. Sanctions could include fines and restrictions on publication.

This would be the equivalent of extending the current Ofcom model to the press.

This could satisfy those who want a regulator with full powers, comparable to other areas of public life like medicine, the law, and banking. It would have broad enough powers to take into account – and intervene on – issues such as media ownership, as well as accuracy, privacy etc. It would provide equal access to all members of the public, regardless of resources.

The three main problems with this approach are:

  • Such a regulator would be likely to impose guidelines and sanctions on media organisations and journalists that many would see as both undesirable and impractical within a digital democracy
  • Such a regulator would be costly for the government
  • Most of the press would fight to prevent such a regulator being instituted.

As I mentioned earlier, these models are not necessarily mutually exclusive. For example one could reform existing laws and institute independent regulation. There are also other ideas, which may be partly but not wholly accounted for in these models. But hopefully this should provide an impression of the spectrum on models available.

A version of this piece is due to be published in the forthcoming Political Quarterly (Issue 82:4).