Why the Privy Council’s decision on the PressBoF Charter will be based on its merits, not revenge

 

The row between Ed Miliband and the Daily Mail has come at an awkward time for both the press and politicians, just days before the Privy Council is due to make a decision on which Royal Charter proposal to seal – the one put forward by the press themselves (the PressBoF Charter), or the one agreed by the three parties and supported in Parliament (the cross-party Charter) The proximity of the two events has provided an opportunity for certain parts of the press to allege that the decision will be clouded by a desire for revenge by politicians, and constitutes a grave threat to press freedom in the UK (for examples, see here, here, here and here).

These allegations are not new. This previous MST analysis shows that certain newspapers made identical claims throughout the Leveson Inquiry. These stories are, however, a distraction. As much as it might be expedient to portray the Royal Charter decision as a court intrigue among elites, the reality is that we are where we are in part due to gross failures to protect ordinary individuals by the old structures of press regulation, and by the people who have been at the centre of those structures for decades.

Leveson was clear about the central problem – a lack of independence. He was equally clear as to the main source of the problem: the funding body. The Press Standards Board of Finance (PressBoF) had too much control over funding, and therefore the capacity of the regulator to fulfill its basic functions (p1,522 of the Leveson Report); PressBoF also had too much (unnecessary) power over appointments to the PCC and the Code Committee (p1,576); and the Code Committee, a subcommittee of PressBoF,  was designed to suit editors rather than the public (p1,529).

The Charter put forward by PressBoF ensures the continuation of many of the structures of the previous system. At the same time, the PressBoF Charter enables those who ran the previous system of press regulation, a system found to be wholly inadequate by a 16-month inquiry, to remain in charge. This is one of the key reasons why the PressBoF Charter may be rejected.

No newspaper has investigated the extent to which the same individuals who presided over the failure of the previous system would retain power in the new system proposed by the major publishers. This is what the analysis below does. It shows how one of the most powerful figures in the old system of press regulation – the editor-in-chief of Mail newspapers, Paul Dacre – could remain one of the most powerful figures in the new system proposed by the press. It shows how the old system was set up in such a way that the Daily Mail virtually escaped censure. And it shows that complaints accepted against the Daily Mail have risen significantly in the period since Paul Dacre became Chair of the Editors’ Code Committee.

 

Paul Dacre, The Daily Mail and press regulation – the case for reform

Paul Dacre currently sits as Chair of the Editors’ Code of Practice Committee, the group that writes, reviews and revises the code of practice that all PCC members should adhere to. He has been Chair since 2008. He is also a member of PressBoF since 2004. In addition, between 1998 and 2008, he was a member of the PCC Commission.

 

The Daily Mail and the Editors’ Code

Despite the position of its editor as Chair of the Code Committee, statistics derived from the PCC’s own website indicate that the Daily Mail had more complaints (approximately 580) accepted by the PCC between July 1996 (when online stats first became available) and January 2013  than any other newspaper. Its closest competitor is The Sun, with around 340. Indeed, as the chart below shows, around two-thirds of all complaints accepted against the Mail have come since Dacre became Chair of the Code Committee in 2008 (figures for 1997 to 2012, the first and last full years for complaints statistics, taken from presscomplaints.org here – all of which are derived from the PCC website).

 

 

NB: since the presscomplaints.org figures are derived from the PCC website, which is not always consistent, it is likely that there will be a small number of missing or miscategorised cases. These, however, do not significantly affect the results here, and are likely to reduce rather than inflate the number of cases. (Note: ‘Upheld’ means that the complaint was not resolved at the mediation stage and progressed to formal adjudication, at which point it was upheld as a code breach).

Therefore, Paul Dacre, Chair of the Code Committee and longstanding member of the funding body, edits the newspaper which available figures show to have by far the worst record of inviting complaints that are accepted as valid by the regulator. Yet, though it has the highest number of complaints accepted, very few of the Daily Mail’s cases ever make it to the Commission (which rules on complaints), and therefore are not recorded as breaches of the Code. The Mail can claim, as a result, that it has a very good track record. Here’s how it works.

Once a complaint has been accepted by the PCC – in other words, if the PCC has grounds to believe that a breach of the Editors’ Code has occurred – they will contact the relevant newspaper. After this, if the PCC is not satisfied by the newspaper’s response, mediation occurs, during which a complainant may be satisfied by an offer from the newspaper (for a correction/apology or other). Crucially, if mediation is successful, no code breach is recorded, whether it happened or not. Yet a recorded code breach – an acknowledgement by the PCC that a newspaper has breached the Editors’ Code – only exists if the PCC Commission actually makes an official adjudication. If the adjudication is not upheld, there is (officially) no code breach, and the newspaper receives no symbolic black mark.

So a complainant has to want to fight to the end over a process that often lasts several months if they want to obtain an adjudication, even in an open-and-shut case. If they choose to settle, there is no adjudication, and the newspaper can continue to claim it has not breached the Code. Sort of like a reputational no-claims discount.  Leveson explicitly criticised the capacity of newspapers to exploit “complaint fatigue” in this way (p1,558).

The Daily Mail, as available figures indicate, was suspected by the PCC of having breached the Editors’ Code in around 580 cases, as recorded on the PCC website (single or multiple breaches). The actual number of upheld complaints, or those in which a code breach occurred and the victim did not choose to settle before adjudication, was nine. Since the PCC is not empowered to rule whether or not a breach has occurred in a ‘resolved’ case, either they accept far too many cases, or the Mail has breached the code administered by its own editor many more than nine times.

Using the Presscomplaints.org site, which compiles data from the PCC website, it is possible to see the outcomes of all of the resolved complaints against the Daily Mail. Taking just the resolved complaints from 2012 (compiled from here, access the dataset here (Excel)), it can be seen that in 101 of 107 cases recorded on the PCC website, the Mail removed, amended, corrected or apologised for articles, or a combination of all four:

  • Resolved complaints against the Daily Mail in 2012: 107
  • Complaints resulting in one or more articles being amended: 29
  • Complaints resulting in amendments to headlines or articles: 55
  • Complaints resulting in a published correction or clarification: 44
  • Complaints resulting in a public or private apology: 17
  • Complaints resulting in one or more of the above: 101

Yet, as it stands, we are given the impression that the Mail didn’t breach the code in any of these cases.

It could be argued that, in resolving cases before they go to adjudication, the Daily Mail is providing a service; members of the public tend to be satisfied by the negotiated solutions (although “complaint fatigue” undoubtedly plays its part). However, the high volume of cases in which the Mail removes, amends, corrects or apologises for articles, based on the 2012 data, suggests that complainants would be rather more pleased not to be negotiating in the first place.

 

The PCC and press abuse between 1998 and 2008 –Operation Motorman and Phone-Hacking

During the period of Paul Dacre’s membership of the PCC Commission, the regulator presided over a series of crises in which substantial evidence of abuses by the press went uninvestigated:

  • In 2003, the police raid on the home of private investigator Steve Whittamore as part of what became known as operation Motorman found that 305 journalists had requested over 13,000 pieces of information, 5,000 of which were identified as constituting a breach of the 1998 Data Protection Act, with over 6,000 constituting suspected breaches. The Information Commissioner’s report What Price Privacy Now? found that 952 transactions could be ascribed to 58 Daily Mail journalists. An ITV News investigation later revised these numbers up to 1,728 transactions by 65 journalists at the Mail and its weekend magazine. The Commission, of which Dacre was a member, took no action.
  • In 2006, following the arrests of Glen Mulcaire and Clive Goodman for phone hacking, the PCC accepted assurances from then-editor of the News of the World Andy Coulson that it would not happen again, then – following his resignation immediately after the conviction of Goodman for illegally hacking phones, claiming that it was ‘no longer appropriate’ to question him further.

 

How the PressBoF Royal Charter promises more of the same

This brings us to the very reason why the PressBoF Charter may be rejected this week: it will, in a way that the Cross-Party Charter will not, ensure that the structure and personnel blamed by Leveson for the past regulatory failures remain in place. Most notably, a cosmetically-rebranded PressBoF (the Industry Funding Body – now re-rebranded as the Regulatory Funding Committee) still dominates the Charter. In the PressBoF Charter:

  • The Charter is granted to PressBoF (Petition and Preamble and Article 1)
  • The members of PressBoF make up the initial recognition panel (Article 1.2)
  • PressBoF and the trade bodies that comprise it have a veto on Charter amendments (Article 9.2)
  • PressBoF and the trade bodies that comprise it have a veto on dissolving the Charter (Article 10.2)
  • PressBoF funds the Recognition Panel on a year-to-year basis, rather than long-term (Article 11)
  • PressBoF maintains significant influence over appointments (Schedule 1)

In other words, PressBoF makes the final decision on whether PressBoF controls the system. The PressBoF Charter would enshrine control by that small group in perpetuity. Perhaps most tellingly, the PressBoF Charter reverses Leveson’s proposal that the Editors’ Code be the responsibility of the regulatory Board, instead keeping it in the hands of the Code Committee, and excluding any input from ordinary journalists (Schedule 3, Paragraph 7).

The replacement regulator proposed by the newspaper groups with the greatest representation on PressBoF – the Independent Press Standards Organisation (IPSO) – is aimed at satisfying the PressBoF Charter, but not the cross-party Charter. And again, the stamp of PressBoF is all over it. The “Regulatory Funding Committee” would have absolute control over the funding of IPSO, and control over: appointments to the regulatory board; voting criteria; investigations; regulations; and arbitration (see a full analysis here).

There is no reason to preclude Paul Dacre, and other members of PressBoF, becoming members of the new Regulatory Funding Committee in the new system (indeed, it would be more odd if they were not). Equally, there is no reason to see why Dacre would not remain as Chair of the Code Committee.

In the cross-Party Charter there would be no equivalent of PressBoF, and the Code committee has to have the same number of journalists and public members as editors. Therefore in both cases Paul Dacre would lose much of his power in the system.

 

Renewal, not revenge

The decision on Royal Charters on Wednesday is not one governed by revenge, no matter how much sections of the press would like to portray it as such, but rather a need for renewal. Paul Dacre has been part of the PCC and/or PressBoF for 15 years; Guy (now Lord) Black has been involved with the current system of press regulation for over 17 years, as Director of the PCC and now Chair of Pressbof. There are several other members of Pressbof and the Code Committee who have been in place for 15 years or more, presiding over the litany of failures that led ultimately to the Leveson Inquiry. The Privy Council’s decision should be based on the capacity of a new charter to ensure that the mistakes of the past are not repeated. The Ed Miliband/Daily Mail row is irrelevant here.

 

 

 

A Note on the Data:

The figures on this page are based on the information provided by the PCC, as collected by presscomplaints.org directly from the PCC website. As there are occasional inconsistencies with both data and definitions on the PCC site, if you see any differences between the numbers obtained from presscomplaints.org and the cases on the PCC site, let us know and we will be happy to make amendments.