I can’t hope to add anything useful to the mountain ranges of justified indignation which have been heaped up by the News of the World phone-hacking. This post looks forward to the questions begged by what has been uncovered.
Since the British prime minister David Cameron read the funeral rites last week over the self-regulation system for newspapers, the beleaguered Press Complaints Commission, and announced an inquiry into regulation it seems the moment to ask what might work better. A rough sketch: principles first; possible mechanisms second.
A better method of approaching rules for newspapers and their journalists might be based on the following:
- Direct statutory regulation is not likely to work very well if the precedent of the past decade of judge-made privacy law is any guide. As the PCC has demonstrated, many complaints about newspapers are best dealt with swiftly and informally. Law and its machinery often does not meet that requirement. Editors and journalists are understandably wary of direct regulation. In an open society, neither government nor state should wish to intervene directly in the conduct of newspapers.
- But self-regulation of the free-standing, industry-financed, non-statutory kind has earned a very bad name. Some of this is undeserved and some of it a misunderstanding: the PCC has operated more as a complaints mediation service than as a regulator, let alone as an investigator. The root cause of these difficulties was that the PCC was over-dominated by the industry it was supposed to make independent judgements about – and particularly too close to powerful players in the industry who relied on industrial-scale, underhand invasive journalism for their circulations.
- Transparency is a more potent weapon for regulators now than it was in the 1950s, when the original Press Council (the PCC’s forerunner) opened for business. A new regulatory body might commit itself not merely to publishing its judgements but to adding authoritative data on which publications have been, say, successfully sued (with extracts from evidence and judgements where appropriate). It might hold public hearings on issues of importance.
- The stress should be on minimum necessary rules to ensure basic standards and accountability to those benchmarks. Journalism in a free society has a right to be raucous, perverse, disruptive, offensive and even, within a few limits, bad. Journalism doesn’t report the unknown or think the unthinkable if journalists are subject to tests of moral or professional purity. Newspapers should not be licensed to publish because of the risk of abuse of such a system.
- The stress in the debate on reforming the regulation system needs to lie on enforcement and in the weighing of the public interest. The PCC’s code of conduct for newspaper journalism is not perfect, but it is valuable. The problems have been with the enforcement of its principles and standards. The concept of the “public interest” is fundamental to any system of regulation being liberal enough to allow true freedom of expression and publication. Good journalism often operates near the edge of the rules; occasionally it breaks them. But no society – and certainly not one which has just learnt what happens when one newspaper abandons its decency altogether – is going to cut that journalism any slack at all if the newspaper can’t show that what it was doing has a public value. When the Daily Telegraph bought a (possibly stolen) disc with details of MPs expenses, when a Guardian journalist faked a signature, when the Sunday Times bought a key document in the Thalidomide scandal – these infractions can be justified by the overriding public interest in the disclosure thus made possible.
- A proper test of public interest value is also pivotal to master the issues which will arise as the frontiers around a once-well-defined activity known as “journalism” blur and fade. Anyone with a smartphone is now a publisher. Anyone who wants to use a new system of regulation would need to justify their claim to have published in the public interest.
In moving on to mechanisms which might give effect to these ideas, I’m straying into legal territory where my expertise is patchy. So I can only outline what I think might work.
- Effective enforcement means two things: some investigative powers (which may involve the compulsory production of witnesses and documents) and fines. Given the size of some media companies, the latter need to be large to have any effect at all.
- For this to work, a new system would, at minimum, have to move into the territory technically known as “co-regulation”. This is the term invented to cover hybrid regulatory systems which are independent of government but whose powers are covered and supported by statute. In Britain, the systems for policing advertising standards and video-on-demand are on this model. Such a system might allow press regulation to be run as a subsidiary of Ofcom.
- Whatever the machinery, there will be no avoiding the difficult business of weighing competing claims about whether or not the public interest has been served. This will involve a series of tests of what is essentially the integrity of an editorial process. The tests in the case known by media lawyers as “Reynolds” are one example. There are others.
- The system would have to be financed by a compulsory levy.
- Publishers (and even defining that term isn’t now simple) who don’t volunteer to enter a new system have to be pushed to do so by an incentive beyond just being named (and perhaps shamed) as “unregulated”. I have to admit that I haven’t thought of a solution to that yet.
Many journalists and editors will shudder at the idea of a what might seem like a more restrictive kind of regulation. The kind of changes I’ve outlined above aren’t without risks. But the one thing we know for sure is that the current system won’t survive.