For journalism’s sake…make a small change to the way charity law works

Dame Frances Cairncross is currently running an inquiry into ‘the market environment facing the press and high quality journalism in the UK’ and is due to report early this year. This post reproduces my submission to the inquiry and is largely concerned with the potential benefits for journalism of a small shift in the way that the Charity Commission treats applications from small (and often struggling) journalism startups. Other than removing a summary of career experience (here or elsewhere in this blog), this is the full text:

I am on the board of the Bureau of Investigative Journalism. Much of my knowledge about charity law and journalism comes from the Bureau’s attempts to register some or all of its activity as a charity. I was a member of a group of lawyers and practitioners which gave evidence on charity law and journalism to the Leveson Inquiry in 2012. I am currently a member of an informal group of journalists, academics and lawyers (sometimes known as the ‘John Street Group’, after its inaugural meeting) which is pressing for a change in the approach to journalism in the application of charity law. This submission is mine alone and no other group or institution bears any responsibility for its contents.

Two sections below: general observations and a more specific section dealing with charity law and journalism.

Context

1.1 The report by Mediatique commissioned by the inquiry includes this statement: ‘The press industry has been under sustained threat for the past decade.’ It is true that the last decade has been notable for a sharp fall in profitability in news publishing and an equally steep rise in levels of panic. But the ‘press industry’ has been under pressure for much longer than the past decade. Depending on which exact figures are counted, the peak aggregate circulation for British national newspapers was between 1950 and 1955. The arrival of online publishing accelerated and aggravated, but did not start, decline.

1.2 However valuable quality news is to democracy and civil society, it is important to be realistic about the infrastructure and economics of newspapers. They have been volatile and vulnerable for most of the history of printed news. The second half of the 20th century was exceptional. Both print and broadcast enjoyed substantial, stable income which masked underlying decline in engagement among print readers.

1.3 Current changes in news publishing are transformative and not adaptive. If there is an upside to the disruption brought by the proliferation of information and platforms it is that it has forced journalists, editors and publishers to re-examine everything from first principles. Journalism, now operating in an information-rich world, must adapt its basic task of establishing the most reliable version of what matters to society in real time. In addition to that basic task we are now wrestling with the problems of abundant information. All news publishing is under pressure, but the threats to local news and opinion are by far the most serious. Market pressures on national titles may reduce plurality and diversity, but the well-documented gaps in local news provision can and do drastically reduce the visibility and accountability of local institutions.

1.4 Demand for print distribution of daily news will not revive (weekly and monthly magazines are another matter). But print’s legacy still weighs on the costs of news publishers who began in print. Online news consumption statistics are showing that bundles of news and opinion material of a traditional shape are inefficiently ‘wasteful’ in the sense that they contain material consumed by a tiny fraction of the readership.

1.5 So it is important that any measures to address the crisis of journalism’s business models do not try to preserve the past at the cost of stifling future experiment and innovation. General subsidy not only risks preserving practices which ought to change but is unlikely to stimulate publishers to deal with upcoming challenges such as rapid developments in artificial intelligence. If financial subsidy is proposed, let it be support for experiment, innovation, training and adaptation.

1.6 Given the scale of disruption and change, it is extremely unlikely that any single measure will address the issues which this Inquiry has been set up to consider. Multiple initiatives varied to different needs and markets have a better chance of succeeding. The second section of this submission deals with one such desirable change.

Charity law and journalism

2.1       As the crisis of the business model for journalism has worsened over the past 10-15 years, arguments in favour of charity law supporting journalism more effectively have been heard with greater frequency[i]. Applications for registration by journalistic organisations have been made and a few have succeded. But the difficulties[ii] experienced by, for example, the Bureau of Investigative Journalism (two unsuccessful applications and partial registration at the third), Wikimedia (a court case) or FullFact (several years and a tribunal hearing) must have discouraged many others. Small local newsrooms are the least well equipped with the time or money to navigate the law and procedures involved; specialist legal advice is essential.

2.2       The outcome of these tussles between the Charity Commission and journalistic applicants for registration is unsatisfactory in principle and inconsistent in practice.

2.3       The pressures on quality journalism are such that this stand-off should be replaced by an explicit policy statement from the Charity Commission that, under certain defined conditions, journalistic organisations will be more systematically and sympathetically considered. If the Commission was unwilling to signal this change, the government could help. The Attorney General has powers under section 326 of the Charities Act 2011 to make a reference to the Charity Tribunal in relation to questions of charity law.   The reference might, in summary, ask whether the advancement of journalism should now be recognised as a charitable purpose.

2.4       The case for either a rewritten charity law or – more feasibly – greater flexibility in interpreting the existing one has now become more urgent for three reasons:

  • The crisis of the business model for journalism has worsened;
  • Recent developments confirm that philanthropic funds understand this crisis and the need to solve it and are prepared to fund new initiatives. But individual donors tend to be reluctant; they want the tax incentives and the assurance that a charity is being monitored by regulators;
  • Issues of misinformation and disinformation have heightened concern about threats to quality journalism.

2.5       Law regulating charities was shaped in an era when ‘the press’ enjoyed relatively stable income. Three factors have altered that picture beyond recognition. Advertising flight from quality journalism in print has turned assets (e.g. generously staffed newsrooms) into liabilities, generating financial difficulties which leave established publishers struggling. Revenue models for online journalism are emerging, but it will be many years before those models can support the diversity which is crucial to the public benefit which quality news and opinion brings. Lastly, frictionless peer-to-peer communication online and the social networks built on it are producing a crisis in societies where there is a shrinking consensus on how to establish or recognize the truth. These deteriorations add up to an emergency in civil society.

2.6       Charitable support for journalism can play its part, particularly by supporting local and non-profit publications which provide benefit by putting significant information into the public sphere. The public benefit which quality journalism can provide falls into these categories:

  • A systematic attempt to establish and show the truth of matters which may be open to dispute – an especially valuable contribution in era when misinformation and disinformation are rife.
  • Local communities are formed and sustained by the exchange of information. They can be damaged by bad information.
  • The recording or disclosure of significant facts.
  • The more diverse the sources of information available, the more channels are available to individuals or groups who feel neglected or inaudible.

Taken together, these benefits should be considered a public resource. The potential advantages of adjusting the application of charity law to increase this resource outweigh the risks that charity support will be misused for partisan or political purposes.

2.7       Much of the content in local and national news publications does not fall inside the current definitions of charitable purpose. But it seems right and clear that a not-for-profit site or newspaper could be established for the public benefit and deserve charitable status. Currently such an applicant must persuade the Charity Commission that it should be registered despite journalism not being a recognised purpose. The Commission should exercise its powers to allow the law to develop in this direction. The Commission would be entitled to require strong and disciplined means of monitoring editorial quality control and freedom from outside interests (see 2.9 – 2.16 below).

2.8       The ideal solution would be a revision of the Charities Act 2011 but this seems improbable in the foreseeable future. Pending that change, I hope this inquiry’s report will strongly recommend that the Charity Commission alter its approach to registration of quality journalism.

2.9       The hard problem facing the Charity Commision would be to establish principles and a mechanism which allow broader support for quality journalism while rejecting registration for partisan or political bodies.

2.10     Charity law is, in legal principle, permissive and progressive. New articulations of the public benefit and new charitable objects based upon them allow the law to follow social change. Charity law has a role to play in averting the risk of a public sphere corrupted by a shortage of reliable sources of information. Securing the objective of a more specific recognition of the public benefit of journalism depends on ensuring the Charity Commission is precise in acknowledging the difference between: (i) a political and so a non-charitable object; and (ii) legitimate political means of pursuing a charitable object.

2.11     There are two possible approaches to determining this: reviewing editorial quality and accountability in-house at the Commission or sub-contracting that review to an outside body.

2.12     Since the changes triggered by the Leveson Inquiry, two ‘press’ regulators have been established, IPSO and Impress. The selection of either as the advisers on charitable status would cause a paralyzing row which would not be likely to die down; neither body enjoys wide enough support. That would leave Ofcom as the only other existing organisation in a position to do this. Ofcom, through its Content Board, already reviews and judges whether broadcasters output meet the requirements of the Communications Act.

2.13     If Ofcom took on this role, it could use the well-developed criteria it has for ensuring ‘due accuracy and due impartiality’ (see for example https://www.ofcom.org.uk/__data/assets/pdf_file/0033/99177/broadcast-code-guidance-section-5-march-2017.pdf) either for non-BBC broadcast output or its more recently acquired responsibilities for the BBC.

2.14     When we talk nowadays about the ‘press’, we are using the term simply as shorthand for written journalism, on any platform. What were once newspaper titles may, technically, have become broadcasters online by making and publishing audio and audio-visual material. But most of those news organisations still give primacy to words. They do so not only out of habit but because words can more easily encode complex meanings than audio-visual.

2.15     The UK has a mixed economy of media regulation. Strict regulation for the BBC, almost equally strict for other broadcasters, competing self-regulators for newspapers and free choice of some regulation or none for pure-play online news publishers. Since this inquiry’s focus is on written journalism, it could be argued that it would be inappropriate for the check on editorial integrity and quality to be borrowed from broadcasting. The diverse quality of British news media in the past owes something to the mixture of strict and less severe regulation. It is important in the future to preserve as many diverse ways of verifying the truth as possible.

2.16     If the Charity Commission decided to apply its own tests of editorial integrity, what should they be? Matters to be reviewed should include (but need not be limited to):

  • Is the journalism independent of political or commercial pressure?
  • Does the organisation have an editorial code of conduct designed to promote accuracy and fairness?
  • Is that the enforcement of the editorial code open to external inspection? (with exceptions in the case of any claim of privacy invasion)
  • Are journalists subject to an external regulator?
  • Does the editorial output command respect for fairness from non-partisan consumers of news – bearing in mind that sense-making, context and analysis have public value as well as facts?
  • Is there a complaints system and how does it function? Does it have an external element and/or is it open to inspection?
  • Are facts – where possible – referenced, for example in online links?

2.17     Adapting charity law to help journalism which – often temporarily – cannot survive in present hostile market condition is only one desirable change among many which may help the crisis which this inquiry is analyzing. But that change would be a constructive, practical and helpful one.


[i] https://theconversation.com/reform-charity-law-to-allow-funding-of-public-interest-journalism-102422

[ii] See Townend, Judith (2016) Charitable journalism: oxymoron or opportunity? Ethical Space: the international journal of communication ethics, 13 (2/3). pp. 81-87. ISSN 1742-0105

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