In June 2012, the Media Standards Trust – via its Press Review Group – submitted a report (‘A Free and Accountable Media’) to the Leveson Inquiry outlining proposals for how a new regulatory system might work. One of the central propositions of the report was that the new system should cover only the very largest news publishers, due to their capacity to cause harm to private individuals in the event of inaccurate reporting.
We also suggested that any new system would need to be platform non-specific, for two reasons: because of the increasing digitisation of print journalism; and because the purpose of regulation (in any industry) is to redress disparities of power in society – a powerful media organisation can cause equal harm regardless of the manner in which its news is published.
After careful consideration, we suggested that the 2006 Companies Act may be used to define a size threshold above which news publishers would be obliged to become a member or be subject to the sort of incentives that are currently causing controversy (i.e. increased costs or exemplary damages – although we did not specify these). We acknowledged at the time, however, that further consideration would be necessary to ensure that loopholes could not be exploited to avoid the definitions in the Companies Act.
The Leveson Report did not, in the end, adopt this threshold, or specify exactly who should be in or out of the new system. This lack of precision has led to the present confusion over whether individuals, blogs, hyperlocal news websites etc should be subject to the new regulatory regime. We strongly believe that they should not.
We await the House of Lords vote on the relevant amendments to the Courts and Crimes Bill today, and note that definitions of “relevant publishers” based on the Companies Act 2006 are again being considered. If such a threshold, or something similar, is introduced, it would go a long way to ensuring that the new regulatory system is fair, trusted, and targeted only at those with the capacity to do great harm to private individuals, and who have done so in the past.
Our threshold recommendations (from pages 60 and 61 of the Report):
Focus reforms on large news publishers that are larger than a ‘small company’ (as defined in the Companies Act 2006)
Reforms ought to be focused where serious problems have been identified. This should be on large news publishers. A number of these have acknowledged unlawful or unethical behaviour, and of failing to establish effective internal controls.
Large news publishers have voices far louder, with significantly greater impact, than any individual. They have the power to frame and influence opinion and public understanding. They also have exceptional power to seriously harm private citizens through their influence.
Focusing on large news publishers distinguishes between freedom of expression, which we believe should be entirely unconstrained within the bounds of the law, and corporate speech, which due to its power and influence ought to accountable.
As Professor Onora O’Neill said in her  Reuters Institute lecture:
“Powerful institutions, including media organisations, are not in the business of self-expression, and should not go into that business. An argument that speech should be free because it generally does not affect, a fortiori can’t harm, others, can’t stretch to cover the speech of governments or large corporations, of News International or the BBC”.
It therefore makes sense to focus attention on large news publishers.
We suggest the distinction between large and small publishers should be set high. To set it low carries four major risks:
- It risks capturing organisations that are not regular news publishers
- It risks placing obligations on organisations who would struggle to deal with compliance obligations
- It risks making it more difficult to create a coherent, effective system
- It risks placing constraints on the freedom of individual speech
To set it too high carries far fewer risks:
Small and medium sized news organisations have not, in the Inquiry, been found to have seriously breached the law or the Editors’ Code of Practice Large news publishers still dominate daily consumption (the top four national daily newspapers, for example, represent 70% of national daily circulation).
Helpfully, UK law makes a distinction between large and small UK companies. The Companies Act 2006 defines a ‘small company’ as one which fulfils two out of three criteria: having a turnover at or less than £6.5m turnover; a balance sheet total at or less than £3.26 million; or 50 employees or less.
None of the major UK news publishing groups is smaller than this. Most are far larger.
Accordingly, we suggest that the new regulatory system should not affect any news publisher that comes within the category of small company or small group for the purposes of the Companies Act 2006. That way, the Congleton Chronicle will not be affected by the reforms, but any publication within the Telegraph Media Group will.
We suggest that ‘News Publisher’ includes any publisher, in any medium from print to online, who meets the following criteria:
- a significant proportion of its publishing activities involve the generation of news, information and opinion of current value
- it disseminates this information to a public audience
- it publishes regularly
This definition is based closely on the definition of ‘news media’ in the New Zealand Law Commission report on the news media.
Based on this threshold and definition:
The large news publishers who would be within the system include: The Daily Telegraph, part of Telegraph Media Group (2010 revenues £323.8m); the Daily Mail – as part of DMGT (2010 revenues £1,968m); The Guardian – part of Guardian Media Group (2010/11 revenues £255m); The Manchester Evening News – part of Trinity Mirror Group (2010 revenues £761.5m). Large publishers that produce regular publications but do not produce news (for example, academic journals) would not be included.
Those publishers who would be outside the system include: Congleton Chronicle; Private Eye; Huffington Post.
Smaller publishers should not be prevented from joining self-regulatory schemes, or from starting their own schemes (e.g. to suit their own particular circumstances), but they would not be obliged to do so. The same would apply to international news publishers.