Memorandum submitted by the MediaWise
Trust
1. THE MEDIAWISE
TRUST
1.01 MediaWise exists to
— provide free, confidential advice
and assistance for members of the public affected by inaccurate,
intrusive, or sensational media coverage;
— deliver use-of-the-media training
for the voluntary sector and members of the public;
— devise and deliver training on ethical
issues for media professionals;
— conduct research and publish material
about media law, policy and practice;
— contribute to public debate about
the role and impact of the mass media.
1.02 Originally called PressWise, the Trust
was set up as a voluntary organisation in 1993 by "victims
of media abuse", supported by concerned journalists, media
lawyers and MPs. The Trust registered as a charity in 1999, and
is funded by donations, grants and commissions. Our aims, objectives
and the full range of our activities can beviewed at www.mediawise.org.uk
1.03 MediaWise is concerned with ethical
issues in all forms of mass media. On average the Trust now
receives at least three enquiries from potential complainants
each week, and a similar number of approaches from journalists,
students and academics.
1.04 The Trust operates on the principle
that press freedom is a responsibility exercised by journalists
and editors on behalf of the public. We consider that the most
important role of journalists in a democracy is to inform the
public about events, issues and opinions which might influence
the decisions people take about their lives and the society
in which they live. For that reason the Trust asserts the public's
right to know when inaccurate information has been delivered
by the mass media.
1.05 The Trust's president is Sir Louis
Blom-Cooper QC, the last Chairman of the Press Council before
it was replaced by the Press Complaints Commission (PCC) in 1991. Its
current Trustees are:
Charles Fletcher MBE (Chair, Director of Caledonia
Media)
Fareena Alam (Managing Editor, QNews)
Bob Borzello (former journalist & publisher)
Glenn Del Medico (former legal advisor to BBC)
Prof Roy Greenslade (columnist & former editor)
Jocelyn Hay CBE (founder, Voice of the Listener &
Viewer)
Pat Healy (former Chair, NUJ Ethics Council)
Nicholas Jones (author, journalist & former BBC
political correspondent)
Stephen Jukes (former head of Reuters Global News,
now head of Bournemouth School of Journalism)
Jim Latham (Secretary Broadcast Journalism Training
Council)
Desiree Ntolo (Rabbi & co-founder of PressWise)
Amanda Williams (Treasurer)
1.06 Based in Bristol, MediaWise recently
moved onto the campus of the University of the West of England.
Currently it has two part-time staff. The Trust's Director and voluntary
Associate Directors are experienced journalists and trainers who
have worked in all sectors of the media. The Trust employs a network
of working journalists to devise and deliver a wide range of training
packages for media professionals and non-governmental organizations
in the UK and internationally.
1.07 MediaWise regularly contributes to
public debate via the media and events concerned with media
ethics and regulation, and distributes an electronic bulletin
commenting on topical issues to over 2,000 media correspondents
and journalism organisations worldwide.
1.08 The Trust also runs projects to help
improve understanding of the media and coverage of problematic
issues, and organises opportunities for dialogue between media
professionals and the public in the UK. These have included:
— Children's Rights vs. Press Freedom:
Who wins? (with Quarriers, Bath 2005)
— Journalism & Public Trust (with
the NUJ, London, 2004)
— Reporting Suicide (with Befrienders
International, London, 2001)
— Refugees, Asylum-seekers and the
Media (London, 2001)
— Access to the Information Society
(with EC Information Society Forum, Bristol, 1998)
— Ethnic Minorities and the Media (London,
1997)
— Child Exploitation and the Media
(with Action on Child Exploitation, London, 1997)
2. BACKGROUND
TO THIS
SUBMISSION
2.01 As this document was being prepared
MediaWise received a call from an anxious young man whose father
had just received a jail sentence. There were "at least five"
reporters and photographers' outside the family home. He and his
brother were completely unprepared for such attention. They felt
frightened and powerless. The journalists kept knocking on the
door—it happened twice during the telephone conversation—and
would not go away. We explained that while it is a journalist's
job to ask questions, no-one is obliged to answer them. These
teenagers had nothing to say to them and didn't know how to get
rid of them. We warned them that if they expressed their fear
or anger to the waiting journalists they were likely to provide
a "new angle" on the story. They were effectively imprisoned
in their own home. We suggested they close the curtains and not
answer the 'phone. They could call the police and cite the Protection
Against Harassment Act as a way of clearing the immediate area
so that they could go shopping or to relatives. Even so they might
be followed or photographed against their wishes. We gave them
the PCC Helpline number, but since they didn't know where the
journalists were from this might not achieve the relief they were
seeking. Evidently the industry's guidelines on "media scrums'
has yet to penetrate throughout the industry.
2.02 Over the last 14 years MediaWise has
made submissions and/or given evidence to a number of parliamentary
inquiries about aspects of media regulation, including most recently
the Culture, Media & Sport Select Committee Inquiry into Privacy
and Media Intrusion in 2003 (our detailed submission was entitled
Stop the Rot!), and the All Party Parliamentary Group on
Corporate Responsibility (Social responsibility and the media)
in 2006. All have been based on our experience of dealing with
consequences to individual citizens and social groups of inaccurate,
intrusive or sensational press coverage.
2.03 Our efforts to strengthen the PressBof
Editor's Code of Practice and encourage reform of Press Complaints
Commission procedures have met with some success. In 2004 we published
Satisfaction Guaranteed? Press complaints systems under scrutiny
(ISBN 0-9547620-1-0) a detailed analysis of the short-comings
of the PCC with proposals for reform, many of which have since
been adopted—notably a hotline for complainants, regular
public consultation on the Code of Practice, and a system of internal
audit—though regrettably this does not include the opportunity
to appeal decisions with which either party to a complaint might
be dissatisfied.
2.04 MediaWise also deals with complaints
about inaccuracy and unfairness in the broadcast media. As a result
we have been able to contribute useful suggestions in the development
of Ofcom's codes and procedures for handling complaints about
privacy and fairness.
2.05 There is a rich seam of excellent journalism
in Britain's newspapers and magazines, but there is also a fault-line
of tawdry and slipshod journalism driven by competitive pressures.
As newsrooms and investment in "frontline" journalism
shrinks, journalists become more desk-based and reliant on tips
and material originated by the myriad forms of public relations
that seek to influence public tastes and opinions.
2.06 The competitive approach to news-gathering
is inevitable in the "free market", but making money
out of others' misfortune cannot be justified by calling in aid
"press freedom". MediaWise regards press freedom as
a responsibility exercised by journalists on behalf of the public—to
research and disseminate information of direct relevance to people's
lives that might otherwise remain hidden from the public domain
and to provide citizens with information that they can rely upon
in making decisions about their personal and political decisions.
It should not be abused as "a licence to print money".
3. THE GOODMAN
CASE AND
ITS REPERCUSSIONS
3.01 The recent jailing of News of the
World royal editor Clive Goodman and his associate Glenn Mulcaire,
followed by the resignation of NoW editor Andy Coulson,
is likely to have a more lasting effect on press behaviour than
the half-hearted slap on the wrist issued by the PCC when it occasionally
finds a newspaper at fault. Giving judgement Mr Justice Gross
described the men's behaviour as "sustained criminal conduct".
As he said: "This case was not about press freedom; it was
about a grave, inexcusable and illegal invasion of privacy."
3.02 After the two men pled guilty in 2006
NoW editor Andy Coulson announced that he had "put
in place measures to ensure that (Clive Goodman's actions) will
not be repeated by any member of my staff." Such measures
should already have been in place. Clause 3 and Clause 10 (i)
of the Editors' Code to which Coulson had signed up, is unequivocal
on the matter. Any reasonable person might have expected the editor
of a newspaper whose investigative techniques are often criticised
to have been taking more than a passing interest in his staff's
methods.
3.03 Coulson did not explain how his new
measures would apply to non-staff members. Goodman's accomplice
Glenn Mulcaire, who had been supplying information to the NoW
since 1997, was an external contractor. The police investigation
uncovered a contract apparently signed by the paper's managing
editor Stuart Kuttner, guaranteeing Mulcaire's company The Nine
Consultancy, over £100,000 for one year's work.
3.04 The case has shone a light on long-known
but often-denied techniques used by many newspapers to obtain
personal information. In the 15 years since the industry launched
the PCC, supposedly to demonstrate a willingness to clean up its
own act, thousands of ordinary people, as well as "celebrities"
have had personal details splattered over intrusive and often
inaccurate stories.
3.05 MediaWise has dealt with hundreds of
citizens over the years who do not have the benefit of expensive
lawyers when complaining. They express fear, anger and confusion
when details of the phone calls, phone bills, bank accounts and
even health records have found their way into the public domain.
Often their only direct contact with a journalist has been the
fateful call (if indeed it comes) asking for a comment on the
revelations that are about to be published. The PCC has rarely
commented on the methods used to obtain such information, and
no prosecutions have followed.
3.06 Many of those "caught" by
the press have lost relationships, jobs and even homes after publication
of prurient stories sometimes based on illicitly obtained information.
Some have contemplated suicide, or felt the need to seek psychiatric
or psychotherapeutic care. Few ever received compensation from
erring newspapers, yet Glenn Mulcaire pocketed four times the
national average wage under an exclusive contract to collect such
data for just one newspaper. Tragically one man who was compensated,
for being wrongly identified by the Daily Mail in December
2006 as the suspect in the Suffolk serial killings, died shortly
afterwards. Gareth Roberts, a waiter from North Wales, had had
to convince his children, his ex-wife and others that he never
been near the murder scene. Apparently he then went on a drinking
binge and was found dead early in February 2007.
3.07 Although newspapers may be peppered
with brief admissions of error for which substantial payments
or donations to charity have been made, the public is never informed
about how many millions are spent each year discreetly satisfying
claims for damages out of court. At the time the Human Rights
Bill was first introduced the industry argued against newspapers
being covered, for fear that they might be required to compensate
their "victims". Their argument was massaged into concern
for ordinary members of the public who might incur heavy legal
fees for asserting their rights. Adjustments were made to allow
the PCC—which advertises itself as being "Fast, Free
and Fair" (sic)—to become the first port of call for
claims that a person's privacy had been breached.
3.08 The industry wilfully ignores the fact
that inaccuracy and intrusion can cost people immense and unjustifiable
suffering and ensure, while literally profiting by titillating
the public at others' expense. The PCC provides the industry with
a cheap alternative—because it offers no compensation.
3.09 Trading in improperly obtained personal
material with newspapers is commonplace. For years newspapers
have published "snatched" pictures of prisoners and
patients in special hospitals (Myra Hindley, Ian Brady, Peter
Sutcliffe, Maxine Carr and Ian Huntley, etc) with apparent impunity.
More worrying still was the claim by Information Commissioner
Richard Thomas in his May 2006 report What price privacy?
that 305 journalists had obtained details of criminal records,
telephone accounts and other personal data from a single private
detective (not Mulcaire).
3.10 Referring to the report at the time
Goodman was arrested in August 2006, an editorial in the Guardian
newspaper commented: "(T)he PCC has until now remained remarkably
incurious and unwilling to instigate an inquiry of its own, despite
the prima facie evidence against hundreds of journalists."
3.11 In his follow-up report What price
privacy now? (Dec 2006) Richard Thomas announced that between
them 305 journalists had improperly obtained well over 3,000 separate
pieces of personal data. Topping the list was the Daily Mail
with 952 items obtained by 58 of its staff, followed by The
People (80 items for 50 journalists), the Daily Mirror
(681 for 45 journalists), and the Mail on Sunday (266 for
19 staff). Nineteen News of the World staffers purchased
182 items between them, and four journalists from The Observer
received 103 items. None has yet been prosecuted.
(a) The failings of the Press Complaints Commission
3.12 Apart from reminding editors that such
behaviour is a breach of the industry Code, the PCC kept its powder
dry until Goodman was locked away and his editor had fallen on
his sword. On 1 Feb 2007, the PCC Chairman Sir Christopher Meyer,
announced that he would be writing to editors about the "reprehensible"
practices revealed by the Goodman case and seeking their views
about what lessons have been learned. "The Commission will
consider these industry responses with a view to publishing a
review of the current situation, with recommendations for best
practice if necessary, in order to prevent a similar situation
arising in the future," he announced. Note the "if necessary".
3.13 The PCC has always tended to give the
benefit of the doubt to newspapers when Joe and Mary Public complain
about the underhand methods used to manufacture sensational stories.
It has been criticised by journalists, media commentators and
politicians for waiting for complaints to be made rather than
contacting editors at the first sign that they are in breach of
their own Code of Practice.
3.14 The proliferation of miniature digital
recording devices (sound, stills and moving images) and the rise
of so-called "citizen journalism" has heightened the
likelihood that unwarranted intrusions into privacy will occur.
MediaWise recently received a call for advice from a distraught
young Muslim woman who discovered that images of her with a non-Muslim
boyfriend had been posted on the Internet, laying her open to
all manner of potentially harmful consequences. She was concerned
that they might also end up in a newspaper.
3.15 The growing trend among newspapers
to rely on the supply of personal information from distinctly
dubious sources, has been recorded by MediaWise Trustee and former
BBC political correspondent Nicholas Jones, in his most recent
book Trading Information: Leaks, Lies and Tip-offs. People
with access to private information know that some newspapers are
willing to pay for it. As he later wrote in a piece for a MediaWise
event last year ("Journeys into Journalism on the SS Robin",
September 06), "The News of the World is encouraging
readers to engage in a degree of intrusion which would have been
unheard of a few years ago. Every Sunday they offer "big
money for stories and pictures'. The offer couldn't be more enticing:
"Send us your camera phone photos of celebs and we'll flash
you the cash [...] sizzling shots of showbiz love-cheats doing
what they shouldn't ought to."
3.16 He pointed out that the industry award
for Scoop of the Year went to a Daily Mirror "exclusive"
of "Cocaine Kate (Moss)" pictured "snorting line
after line", and that The Sun won Front Page of the
Year for its picture of "(Prince) Harry the Nazi" at
a fancy dress party. Both pictures were taken by "insiders"
and sold to the press. It was left to the rival Sunday Mirror
to unmask the "student who sold the Nazi picture" for
a five figure sum.
3.17 MediaWise has always urged people not
to sell their stories to a newspaper, in the belief that if information
is genuinely in the public interest it should not have a price
tag. Our advice is also based on concern for the wellbeing of
anyone who is tempted by the large sums on offer for "exclusives".
They quickly learn that they have lain themselves open to attack
from rival newspapers who will dredge up anything they can use
as a "spoiler" to put them in a poor light just because
they had the temerity to take cash from a competitor.
3.18 Nick Jones worries that in their "desperation
to get exclusives [...] some of the newspapers (are) beginning
to rely too much on cheque-book journalism rather than proper
investigative reporting' and asked "Are we all being forced
to stand up stories which don't quite make it but which are helped
along through the use of anonymous quotes?" He believes that
"we now seeing the emergence of a generation of journalists
who think there is nothing wrong in "manufacturing anonymous
quotes: an onlooker said this, an insider hinted at that, a friend
revealed this, another anonymous source disclosed that."
3.19 Over the last 14 years MediaWise has
grown accustomed to hearing this charge, and has had to deal with
any number of distressing cases where manufactured quotes and
circumstances masquerading as actuality has added insult to injury
to the protagonists. The PCC seems reluctant to investigate such
charges on the grounds that it is a mere citizen's word against
that of a journalist. This attitude does little to enhance the
credibility of self-regulation, just as malpractices like Goodman's
undermines the role and respect that journalists should have among
the public.
3.20 Some of our own investigations have
demonstrated that partially or wholly fabricated stories still
make it onto the newsstands. For example we were able to debunk
The Sun's "Swan Bake" front page splash (4 July
03)—but it took six months for the paper to bury its "clarification"
on page 41 of a Saturday edition (6 Dec 03), despite the PCC's
intervention. Our deconstruction of the Daily Express'
"Britain here we come" claim (20 Jan 04) that a Slovakian
Roma family was planning to come and live off benefits in the
UK was never allowed to reach a wider public following a threat
to sue The Guardian. And our revelation that its "Plot
to Kill Blair" front page (Daily Express, 16 Aug 04)
was indeed "rubbish"—as the police who had briefed
reporters made clear—was dismissed by the paper as publicity
seeking. However when we investigated the truth behind a Sunday
Mirror allegation ("For sale age 3", 25 Jan 04)
that a young Christian charity worker in Montenegro was a child
trafficker, the newspaper had to apologise and pay him substantial
damages (although the uncorrected story can still be accessed
on the Internet).
3.21 Recently the public were given access
to the private notes of Heather Mills McCartney, regarding to
her impending divorce. While enterprising journalists may claim
that she carried the notes in clear view of photographers as she
walked towards Victoria railway station, does she not have the
benefit of an assumption of privacy in such matters? This as one
of a series of breaches of the couples' private business which
show how little regard is not given to the privacy of the adults
in the public eye, and the three-year-old child involved.
3.22 Meanwhile more details of flawed and
sensational News of the World "investigations"
continue to emerge. Columnist and MediaWise Trustee Prof Roy Greenslade
recently revealed (Evening Standard, 14 Feb 07) that the
paper's unreliable informant in the "Beckham kidnap case'
had not only set up the protagonists, whose arrest after a "tip
off" was captured on camera, but supplied them with a gun
(a starter pistol). These sorts of incident give the lie to claims
that all such stories are genuinely in the public interest. Too
often they are "got up" stories designed to sell papers
and enhance reputations; often they involve what most reasonable
people would regard as "entrapment"—a concept
that the PCC refuses to countenance.
3.23 The public would be better served if
journalists used their ingenuity to shine a light on more important
matters than the personal foibles of the rich and famous.
(b) The media and citizens' rights
3.24 An unspoken and uncodified "compact
of trust" exists between readers/audiences and the purveyors
of information, but editors and the PCC operate on a self-serving
assumption that readers can decipher which information they are
supposed to believe and which to take with a pinch of salt. Clearly
that is not good enough.
3.25 Collecting and presenting information
that is of civic value to the public is not an easy job; it requires
skill, patience, curiosity and a willingness to persevere when
obstacles are placed in the way. If information cannot be elicited
through the "normal channels" of discreet enquiries
and the willingness of individuals to supply information freely,
few would object to skilled cajoling and a reasonable level of
persistence conducted in a professional manner. There may be occasions
when unacceptable levels of subterfuge may have to be employed
by those who seek to expose corruption and venality, but for trust
to be maintained between journalists and the public these should
be acknowledged as exceptions rather than the rule.
3.26 It cannot be acceptable that media
executives alone are free to determine the extent to which any
person might be considered to enjoy privacy. Genuinely independent
scrutiny needs to be applied to the "public interest defence"
when it is called in aid to justify placing a person's private
life in the public gaze.
3.27 The "Fourth Estate" won its
status by championing the public interest in the constant struggle
between individual rights and the power of the state and commercial
organisations yet, perversely, almost as a body it took umbrage
against the incorporation of the European Convention on Human
Rights into UK law. Some newspapers continue to clamour for repeal
of the Human Rights Act, regarding it as a "villain's charter",
simply because it might occasionally challenge a newspaper's commercial
interest in boosting sales and profits by publishing intrusive
and often inaccurate stories which are unlikely to pass the "public
interest" test. The rich, powerful and corrupt did not need
a Human Rights Act to protect themselves against publication of
their misdemeanours—witness the antics of media baron Robert
Maxwell.
3.28 Journalists should be in the vanguard
of those who value the Human Rights Act. They like to see themselves
as autonomous individuals and the first to insist that they should
have the right to live without let or hindrance from anyone. Case
law at the European Court on Human Rights has tended to value
freedom of expression (Article 10) over the right to privacy (Article
8) and upheld journalist Bill Goodwin's right to protect his source
after he had been fined £5,000 under the Contempt of Court
Act 1981 for refusing to identify his informant about a company's
financial affairs for a story he was never allowed to publish.
3.29 Normal rules do not appear to apply,
however, when the chase is on for stories, the news desk is breathing
down your neck, and little thought is given to whether a journalist's
behaviour might impinge upon the rights of others. That is when
a reasonable person might expect an editor, or the PCC to step
in. But the PCC will not move unless prompted by the individual
most directly affected—witness its inertia over the hounding
of Kate Middleton (Jan 2007), or its refusal to act on some complaints
about publication of photographs of the suicide of lawyer Katherine
Ward (Jan 2006).
3.30 The press never satisfactorily explains
why the arguments marshalled against others do not apply to the
Fourth Estate. It wants to be the sole arbiter of what is in the
public interest and what is a breach of privacy. In the PCC it
pays for a system of public "justice" in which it is
judge and jury, but would not tolerate a similar system for any
other sector of society.
3.31 The PCC's role in all this should be
to strike a balance between the individual's right to privacy
and the newspapers' right to freedom of expression once complaints
are made. If it were even-handed and suitably robust in condemning
any breaches of the law or the industry's own Code, the current
form of self-regulation might be regarded as a sufficient buttress
against abuse of power by the press.
3.32 However, the PCC has sat back and allowed
the press to push the boundaries of coverage of crime far beyond
what is supposed to be acceptable under the principle of innocent
until proved guilty. It failed to intervene during the coverage
of the Soham murder inquiry, the Suffolk murders and the police
anti-terror raids in London (2006) and Birmingham (2007) when
even journalists themselves have questioned the extent to which
names and police allegations were made public in a way that could
prejudice future trials.
3.33 The inevitable consequence of its failures
will be pressure for statutory controls, yet MPs themselves know
that to take too strong a stand against media power is to court
disaster. The press have no compunction about revealing the weaknesses
of elected representatives, especially if they have the temerity
to take on the Fourth Estate. There is an unhealthy imbalance
of power.
3.34 In effect the industry rejects any
notion that elected representatives or the legislature should
curtail its right to define for itself whether it has trampled
on the rights of others—laying itself open to the charge
of arrogance and abuse of power against which the Human Rights
Act is designed to protect the public.
4. REMEDIAL ACTION
4.01 This Select Committee inquiry, set
up because a senior journalist has now been jailed for breaking
the law, provides an ideal opportunity to launch a wide ranging
debate about the role and function of journalism and media regulation,
without the threat of legislation but with the intention of moving
towards a regulatory system more befitting social attitudes and
the changing nature of mass communications.
4.02 As the inquiry was announced the newspaper
industry declared that it had extended the remit of the PCC to
include all content published by online versions of newspapers
and magazines, in effect seeking to pre-empt any recommendations
that might emerge from the inquiry. This is par for the course.
4.03 The PCC was set up in 1991 to forestall
statutory regulation at the time of the Calcutt inquiry into
press invasions of privacy. In 1996, on the morning the PCC and
its industry paymaster PressBof were to face a National Heritage
Select Committee inquiry into payments to witnesses, they announced
a tightening of the editors' Code to silence critics.
4.04 We have spelled out our views on how
the PCC might be reformed in Satisfaction Guaranteed? (see
above). Below we examine some other ideas about how the regulatory
framework could be adjusted to suit the times.
(a) A unified system of media regulation
4.05 There are some who believe that the
time has come to make a reluctant Ofcom, the broadcasting regulator,
take responsibility for podcasts and streamed video. Others believe
that regulation should be abandoned altogether. In a recent report
commissioned by the Department of Culture, Media and Sport (Future
Broadcasting Regulation, DCMS, Jan 2007), Robin Forster envisages
"a reduction in regulation and its associated costs—for
example with greater reliance on self-regulation, and the exercise
of individual consumer responsibility to address concerns about
undesirable content". No doubt that would please those publishers
who straddle both print and broadcasting.
4.06 MediaWise has always argued for a genuinely
independent regulatory system which protects everyone's rights—including
the freedom of the press—with power residing neither with
Government nor the industry. The Trust, after all owes its origins
to MP Clive Soley's efforts to create such a body with his Freedom
and Responsibility of the Press Bill in 1992.
4.07 Digitisation has put paid to the old
arguments for separate regulation of broadcasting. Digital compression
means that sound, vision, telephony and print are merely data—and
so "caught" by data protection legislation, for example.
Furthermore, cross-media ownership has now reached a level where
it is difficult for the public to measure the extent to which
a company's involvement in one medium ends and its involvement
in another begins. The web of ownership has become so complex
that many people working in the media are unsure about who is
their ultimate employer.
4.08 The frequent takeovers, mergers and
brand changes that confuse consumers of other products (from food
to the supply of what were once public utilities) also occur in
the communications industries, so that most citizens are unlikely
to know who owns or controls the production of print and broadcast
material, let alone the platforms through which they are communicated,
or the corporate vested interests at work behind the scenes. The
link up between Virgin, NTL and Telewest with their all-in-one
telecommunications, broadband and entertainments packages is just
the latest sign that cross-media ownership and technological convergence
require a complete rethink of media regulation.
4.09 Today's journalists are expected to
be "multi-skilled" producing material compatible with
the various communication platforms controlled by their employers.
Some are required to carry notebooks, video-cams and other recording
devices so their material can appear in print and online. The
online News of the World incorporates video into its news
stories; the online Sun's video section re-broadcasts bulletins
from Reuters; The Times website has a section called "Times
online TV". Elsewhere the Telegraph online re-broadcasts
news clips from ITN among others; the Daily Mail runs it
own online showbiz news mini-programmes alongside trailers for
the latest movies; and visitors to the Daily Mirror site
can access its showbiz and sports video newscasts.
4.10 One nonsense of the current regulatory
regime is that journalists are expected to abide by different
standards as they switch between media. These changes strengthen
the argument for a single basic code of conduct across all media,
including a "conscience clause" so that journalists
can opt out without fear of reprisals if they believe the assignment
they are given breaches the code.
4.11 Broadcasters retain public confidence
because they are obliged to function under extensive but tried,
tested and perfectly reasonable regulations. Print publishers
believe that "press freedom" exempts them from all but
the limitations they are prepared to place on themselves. Small
wonder the public has grown increasing sceptical about how much
trust they can place in print publications.
4.12 A single "content regulator"
with a clear and accessible system for adjudication on complaints
and the awarding of redress across all media, could restore public
confidence about the quality of the journalism they receive. Free
independent professional advice and support should be available
to members of the public who need assistance with complaints about
any aspect of abuse of power by the mass communications industries.
(It has proved almost impossible to fund the core complaints work
undertaken by MediaWise, which now has to operate on a largely
voluntary basis).
4.13 Perhaps it is time that a reformed,
"rights-based" system of media content regulation were
considered. It would serve the best interests of all concerned.
Press freedom would be upheld through defence of freedom of expression,
and the right to personal privacy would be upheld unless a clear
and valid public interest defence could be demonstrated.
4.14 Financing of content regulation could
follow the model currently used in broadcasting, with a mix of
public funds to protect the democratic agenda, and levies upon
the communications companies.
4.15 Supervision of content regulation should
be as independent of government and the industry as possible with
a strong element of public involvement at all levels, reflecting
the diversity of society. Of course the media industries should
be represented, as should media workers, nominated by representative
bodies. The role of the Culture, Media and Sport Select Committee
in the first instance might be to propose a lay appointments panel,
and then provide occasional public scrutiny of the regulator's
activities.
4.16 The public interest is best protected
if there are regular opportunities to review the performance and
practices of the mass media. An all-party Standing Committee on
the Mass Media, with no powers to intervene directly, could use
its parliamentary platform to generate debate about abuses of
media power, including ownership issues, offering a mirror in
which to reflect changing attitudes towards media content and
regulation.
(b) Compensation
4.17 The PCC and the industry insist that
proprietors and editors should determine what punishment should
fit which media "crime". Yet it is proprietors and editors
who cry loudest about the shortcomings of self-regulation among
other professions—from the police to politicians. If it
is inappropriate for the police to police the police, it is surely
inappropriate for the newspaper industry to be its own judge and
jury.
4.18 Significant awards in damages have
been won through industrial tribunals for abuse of power by employers
in the public sector. Surgeons and solicitors have been struck
off, and police officers disciplined by their internal regulatory
systems. Even parliamentarians have been forced out of office
or suspended for unethical behaviour.
4.19 MediaWise would not suggest that such
direct punitive measures should be applied as a matter of course
to an individual editor for breaches of the industry code. Press
freedom would indeed be at risk if editors were not free to make
mistakes, and personal liability of this type could become the
thin end of a wedge leading to licensing of journalists. Nonetheless
the public must find it disquieting that some editors wear their
breaches with pride rather than humility. The credibility of the
Code of Practice and the PCC might rise were proprietors to make
clear that editors whose publications repeatedly in breach cannot
expect advancement.
4.20 Even so, they would no doubt still
be compensated generously for their service to journalism,
yet innocent victims of media abuse are expected to cover the
cost of pursuing a complaint (it can take a lot of time, lost
work and effort and stress) and defend their reputation. Where
genuine hardship, including the need to relocate even temporarily,
results from inaccurate or sensational coverage, a successful
complainant should be compensated by the offending publication.
4.21 The public are aware of the enormous
harm that unethical behaviour can do, and is more likely to place
its trust in a body that has powers to hit commercial concerns
where it hurts most if their agents breach professional or ethical
standards. Those editors who breach the industry's Codes of Conduct
should be required to compensate their victims, and such "fines"
would be a very effective way of reminding editors and proprietors
of their responsibilities.
4.22 Before publishing personal information,
editors have a duty of care to be satisfied that they have a strong
public interest defence and that the information they intend to
publish is accurate. After all they are the first to reach for
their lawyers when complaints are made; journalists are instructed
never to admit to mistakes over the phone for fear of incurring
a later penalty.
4.23 Breaches of the Code should be dealt
with like any other violation of human rights with appropriate
sanctions. A graduated system of financial sanctions—say
£10,000 for an extreme violation; £5,000 for a serious
breach, £1,000 for a significant intrusion. The Regulator
could seek to obtain consensus as to which should apply, to avoid
the necessity for costly legal action.
4.24 The newspaper industry is reluctant
to give PCC the power to impose fines (whether based on an arbitrary
sliding scale, on circulation figures or a tax on advertising
revenue) for serious breaches of the Code, yet advertisers expect
to be compensated when errors appear in their copy, or print or
broadcast publishers fail to honour their obligations under contract.
4.25 There is no reason why all publications
should be expected to contribute equally to a general compensation
fund. To avoid the anomaly of responsible publications being required
to subsidise the offences of more cavalier editors, the system
of "quality bonds" first envisaged by the Broadcasting
Act 1990 could be introduced. Editors would avoid having to draw
upon this "set-aside" by adhering to the Editors' Code,
but at least its existence would demonstrate their commitment,
and a willingness to take the medicine if they fell short of their
own standards or failed to meet the "public interest"
test. This could help to rebuild trust in journalism and the role
of the media, by assuring the public that media owners recognise
their responsibilities.
(c) A Media Ombudsman
4.26 MediaWise has always encouraged publications
to appoint their own in-house Readers' Editor, to deal with complaints,
act as an internal auditor reviewing the publication's journalism,
and publish a well sign-posted Corrections' Column. As The
Guardian has demonstrated this system can perform a dual function,
providing accountability and enhancing media literacy.
4.27 MediaWise also believes that there
is still room for a variant on the idea promulgated in the (National
Heritage) Select Committee's 1993 Report on Privacy and Media
Intrusion—the appointment of a Media Ombudsman.
4.28 This too would bolster public confidence
in the accountability of the print and broadcasting industries.
A Media Ombudsman could be to act as a back-stop—dealing
with appeals by either party over the decisions of the regulator,
acting as a bulwark against erosions of press freedom, and initiating
public debate about the role and responsibilities of the media.
4.29 The Media Ombudsman might also play
a useful role in ensuring that those entering the media industries
are aware of their responsibilities and receive a thorough grounding
in media regulation and codes of conduct, whether through vocational
training courses or in-service and mid-career training.
4.30 The Media Ombudsman might also act
as a conduit through which the views of "consumers"
of mass communications are fed into the media producers, conducting
research and encouraging dialogue between producers and consumers,
particularly around ethical issues and reviews of Codes of Practice.
This could include supplying opportunities for the regulators,
editors and journalists to learn about the human damage done by
inaccurate or intrusive coverage.
(d) A privacy law?
4.31 MediaWise has always taken the view
that a privacy law directed specifically against the media is
inimical to press freedom, although print and broadcast journalists
and executives may find it helpful if there were a precise definition
as to what protection the individual can expect from unwarranted
intrusion by any public authority or commercial institution.
4.32 The Human Rights Act, existing laws
covering confidentiality, and the powers vested in the Information
Commissioner should suffice as a safeguard against unwarranted
intrusion. However it has become clear that penalties are not
severe enough to dissuade the unscrupulous from abusing personal
information.
4.33 The media industries have indicated
their intention to resist any attempt to impose custodial sentences
(of up to two years) for misuse of personal information, according
to a Department of Constitutional Affairs report (7 Feb 2007)
of its 2006 consultation about reform of the Data Protection Act
(Increasing penalties for deliberate and wilful misuse of personal
data, CP 9/06). It also records that the Information Commissioner
got nowhere with his efforts to effect a voluntary understanding
with PressBof and the PCC for a strengthening of the Code of Practice.
4.34 The ostensible reason given for their
opposition is the risk that a threat of imprisonment would have
a "chilling" effect on investigative journalism. The
evidence of the Privacy Commissioner's 2006 reports (cited above)
about misuse of personal information by the media highlights the
disingenuousness of this line of argument.
4.35 There may be occasions when the publication
of personal information is genuinely justifiable in the public
interest—exposing criminal behaviour or protecting public
health, safety and security, for example. The opportunity to mount
a "public interest defence" must always be available.
However commercial exploitation of personal information in whatever
form—including blazing headlines—is a gross breach
of the citizen's right to privacy. It should be a criminal office
whether committed by a public authority, a private company or
an individual.
4.36 It is both sad and strange that an
industry which prides itself on protecting the individual
from oppressive behaviour by others should set such store by going
through people's rubbish bins, buying illegally obtained data,
and hanging out anybody's dirty washing if it will sell more papers.
Worse still is that having exploited a market for salacious and
intrusive stories and pictures, media executives then "blame"
the public appetite for gossip as if that in someway justifies
unethical behaviour by the media. As more people begin to rely
on the Internet, and broadcasting for news, the agenda of newspapers
and human interest magazines now extends to anything which might
prove financially beneficial to the publisher.
4.37 The right to freedom of expression
ends when it begins to intrude upon another's human and civil
rights. That is also where a person's privacy could be said to
end. Just because a private life might excite prurient interest
does not make it automatically newsworthy. All citizens, including
celebrities and public figures, are entitled to a private life
free from intrusion—unless they specifically invite media
attention to their private life or can be shown to be engaged
in corruption, law- breaking, abuse of power, or significant hypocrisy,
or if their behaviour might be considered a risk in some way to
the health and safety of others.
4.38 Abuse of power by the media is equally
as intolerable as abuse by agencies of the state. Some sections
of the media appropriate people's lives as if they were merely
bit part players in a soap opera. They operate on the assumption
that "dishing the dirt" to strangers is acceptable behaviour
if "the price is right". This pecuniary attitude may
be distasteful, but it does not justify introducing a restrictive
privacy law directed specifically at the press. That would be
a retrograde step especially since, as we have seen, a raft of
other remedies are available, and the impact of the proposed tougher
penalties for abuses of the Data Protection Act have yet to be
tested.
(e) A "Third Way"?
4.39 Rather than tinkering with current
systems of media regulation, perhaps the answer would be to create
a Human Rights Commission (HRC) able to offer guidance or assistance
to members of the public with complaints about the media, and
with the power to initiate legal challenges where important issues
of principle are at stake.
4.40 Like Ofcom, it could develop systems
of co-regulation in which individual or corporate complainants
can call upon the HRC to intervene if all else fails. The "first
line" of complaint should, as now, be to the editor of a
print or broadcast publication, although not obligatory. The second,
obligatory, line should be to Ofcom or the PCC for arbitration.
The HRC could then perform the function of the Media Ombudsman
(as outlined above) should either party believe that justice has
not been done. Its rulings would then firmly establish "case
law" as a guide to the balance that needs to exist between
the power of the mass media and the rights of the citizen.
February 2007
| 
