Memorandum submitted by Media Standards Trust
Media Standards Trust submission to the Culture, Media and Sport Select Committee Inquiry Into Press Standards, Privacy And Libel
Responding to the Call for Evidence for the new inquiry into media ownership and news, February 2008
Introduction to the Media Standards Trust
The Media Standards Trust was established in 2006. It is an independent registered charity that aims to foster the highest standards of excellence in news journalism and ensure public trust in news reporting is nurtured.
The Select Committee's Inquiry is timely. Not only have several high profile events in recent years brought some elements of the national press into public disrepute, but journalistic standards are being threatened as never before by longer term trends in the way in which news is gathered, edited, packaged, published, marketed, delivered, and consumed.
In this submission we will respond briefly to the questions outlined by the Select Committee in its Call for Evidence. We will focus on those where we believe we have most to contribute. We would be happy to provide further oral evidence if required.
Entirely separate to this inquiry the Media Standards Trust has, since the summer of 2008, been conducting its own review of self-regulation of the press in Britain. We will be publishing the first part of this review in February 2009. Although there is some overlap with the Select Committee's inquiry, our own review is based on a wider range of regulatory issues, each of which is examined and assessed on the basis of independent evidence. In our first diagnostic report we conclude that the present self-regulatory regime is unsatisfactory and fails to protect both the press and the public. We are now following this diagnosis with a wide-ranging consultation on the alternatives to the current system of press self-regulation. We will make Part 1 of our review and the evidence supporting it available to the Select Committee.
The views expressed in this submission are those of the Media Standards Trust, not the independent review group on press regulation.
Response to questions
1. Why the self-regulatory regime was not used in the McCann case, why the Press Complaints Commission (PCC) has not invoked its own inquiry and what changes news organisations themselves have made in the light of the case
1. 1 The self-regulatory regime of the press was not set up to monitor standards or to keep a check on poor reporting. It is a complaints body that seeks to mediate complaints made about the press on behalf of the public. If the public do not complain, it does not react. This compromises its role as a 'regulator'. Neither the McCanns, Robert Murat, or the so-called 'Tapas Seven', chose not to complain about accuracy in the press, and therefore the self-regulatory system was not used.
1.2 The PCC has not been provided by the industry with the resources to conduct major inquiries. Its budget is far lower than other comparable self-regulatory organisations. In 2007, for example, its budget was £1.82m, compared with the Advertising Standards Authority that had a budget of over £8m. This is only slightly higher than its initial 1991 budget of £1.5m. According to the outgoing Chairman even these meagre resources are now under threat (comments made at Society of Editors conference).
1.3 When the PCC does invoke an inquiry, as it did after the conviction of Clive Goodman (the royal correspondent at the News of the World), its powers are limited and its remit narrow. In that inquiry, for example, it did not interview Goodman's editor, Andy Coulson, and focused almost all its attention on the News of the World, even though the Information Commissioner had given evidence to the PCC showing hundreds of journalists were using subterfuge to gather confidential personal information (from 'What Price Privacy?' and 'What Price Privacy Now?', ICO).
1.4 Not working within a news organisation it is very difficult to judge whether any changes have been made as a consequence of the McCann coverage. There have been, however, no obvious public changes made as a consequence. Indeed in the case of the Daily Express, 'Madeleine McCann' remains the most searched for term on Express's website, despite the fact that many of the Express' McCann articles had to be removed because they were defamatory.
2. Whether the successful action against the Daily Express and others for libel in the McCann case indicates a serious weakness with the self-regulatory regime
The successful action does give an indication of serious weaknesses in the existing system of self-regulation.
2.1 The successful action shows the public are increasingly liable to take serious action to the courts rather than to the PCC. We expect celebrities and billionaires to go directly to the courts. But when the public choose lengthy, expensive legal action over 'fast, free and fair' redress from self-regulation, there is clearly a serious weakness in the self-regulatory system.
2.2 The action shows that the courts are also liable to oblige. Traditionally, in industries where there is an effective self-regulatory body the courts will defer to that body. If the body is not effective, the courts become an alternative form of redress.
2.3 As Lord Wakeham wrote in 1998 when discussing the opportunity of the PCC becoming a 'public authority': 'The opportunity is that the courts would look to the PCC as the pre-eminently appropriate public authority to deliver effective self-regulation fairly balancing Articles 8 and 10. The courts therefore would have to intervene only if self-regulation did not adequately secure compliance with the [European] Convention [on Human Rights]'. The courts have since intervened.
2.3 The action also indicates that the current system of self-regulation is unable to restrain or discourage newspapers from printing defamatory content. The editor of the Daily Express, Peter Hill, was a member of the PCC throughout the paper's coverage of the disappearance of Madeleine McCann, and even remained a member after the court had found much of the newspaper's coverage to be defamatory.
2.4 The current system is structured in such a way that any possible educational value of complaints is almost entirely lost. Unlike Ofcom or the ASA, the PCC does not make public the number of complaints it has received about particular articles or coverage in a timely fashion. Indeed most of them remain unknown unless they are adjudicated on or resolved. If, for example, hundreds of people complain about the reporting of a public figure, the PCC does not make that public. Contrast this to the BBC, that gives contemporaneous information about complaints (e.g. about the BBC refusal to broadcast the DEC appeal), or Ofcom (e.g. about Celebrity Big Brother), or the ASA (e.g. complaints made against AMI billboard campaign, 'Want longer sex?'). Such information may encourage news organisations to reflect on their coverage, and sometimes to adapt it.
4. The impact of conditional fee agreements on press freedom, and whether self-regulation needs to be toughened to make it more attractive to those seeking redress
Self-regulation currently offers very little redress for those misrepresented in the press. Unless self-regulation is reformed increasing numbers of people are likely to turn to the courts.
4.1 Compare the options open to a member of the public who has been harmed by inaccurate or misrepresentative coverage by the press. S/he can (a) make a formal complaint to the PCC, which has less than a 250:1 chance of being adjudicated in their favour (based on PCC annual report 2007, p.25, 16 upheld adjudications from a total of 4,340 complaints). Even if it is, their only redress will be the publication of the adjudication in the offending paper with due, if not equivalent, prominence to the original offence. Or (b) s/he can ask a lawyer to accept the case on Conditional Fee Agreement and hope for a possible financial award and a prominent correction / apology.
4.2 For those people who believe they have been seriously misrepresented or harmed by inaccurate coverage it is difficult to see the attractions of the first option.
4.3 Nor is legal action without risk. Austen Ivereigh fought and eventually won a two year battle withThe Daily Mail though, he says, he faced bankruptcy, the loss of his home, and vilification by the press had he lost.
4.4 If self-regulation did lead to a fair redress, or to an outcome that ensured the publication did not repeat the same error again, there would be much greater motivation for the public to pursue this course.
5. The observance and enforcement of contempt of court laws with respect to press reporting of investigations and trials, particularly given the expansion of the Internet
Contempt of court laws appear now to be routinely ignored by the press. De facto we seem to be shifting to a US model where the press can report on cases regardless of the status of legal proceedings.
5.1 'Re-publication' online: after someone has been arrested it is against the law for newspapers to publish details of those involved (over and above basic information). Yet, thanks to easily available online news archives, it is now straightforward to search for and find these details on newspaper websites. Each time a reader finds one of these archived pages it is considered, in legal terms, a re-publication. The publisher should therefore be liable.
5.2 Yet there are many instances in which people have been arrested and charged but the news articles online have neither been changed nor removed (in some cases new articles with further details have been published).
5.3 In the case of a 12-year-old girl, for example, who went missing in 2003, newspapers widely reported the girl's disappearance (including her name). They then reported she had been found with an ex-US Marine in Holland (with his name). He was then charged and subsequently convicted. Yet his name, the name of the girl, and the details of the case, were - and still are - widely available online. The name of the girl continues to be widely available despite his conviction, and despite his extradition to the US in 2008.
5.4 To take a separate example, if there are reporting restrictions on certain stories, only accredited journalists can access those restrictions. Members of the public who publish online (e.g. on blogs) will not have knowledge of those restrictions and so could unknowingly find themselves liable to contempt (e.g. in the recent Baby P case).
5.5 It would be to the benefit of the press - who are at risk of prosecution due to re-publication, and to the benefit of the public, who are now not protected by contempt of court laws - for the government to clarify the law on contempt of court.
6. What effect the European Convention on Human Rights has had on the courts' views on the right to privacy as against press freedom
The effect of the ECHR on the courts view of the right to privacy was predictable after Parliament decided to integrate the Convention to British law.
6.1 Article 8 of the Human Rights Act states that "Everyone has the right to respect for his private and family life, his home and his correspondence".
6.2 In 2003 Alan Rusbridger, editor of The Guardian, brought to the attention of fellow editors a recent European Court of Human Rights judgment which found that victims of privacy did not have sufficient remedies in the UK. He warned that if self-regulation were not seen to be open, independent and effective, then the courts would intervene to provide sufficient remedies.
6.3 Since then the courts, in line with the judgment of the European Court of Human Rights, have ruled in favour of a number of cases brought under Article 8. This has, in turn, created precedents for a right to privacy with greater legal remedies than previously existed.
6.4 However, it would be preferable for most people, in terms of time and cost, to be able to avoid going to court. More effective self-regulation would make this a more acceptable alternative.
6.5 When cases have been brought based on Article 8, the courts have recognised that it has to be balanced against Article 10, regarding press freedom.
6.6 But not enough cases have been fought under Article 10 such that we have a clear understanding of the type of journalism that is protected under the public interest.
6.7 Without more cases like that of Sally Murrer (who successfully won her case against the police on the basis of 'public interest' journalism) journalists investigating stories that are genuinely in the public interest will not feel adequately protected.
7. Whether financial penalties for libel or invasion of privacy, applied either by the courts or by a self-regulatory body, might be exemplary rather than compensatory
Financial penalties for libel or invasion of privacy are already available to the court.
7.1 People will always resort to the courts unless a means can be found to provide appropriate compensation, including financial, to the victim.
7.2 As regards the press self-regulatory body, financial compensation would, in many cases, be the most suitable response. If a newspaper deliberately publishes intrusive material in order to promote sales, and is found to have broken the press Code of Practice, then financial compensation would seem to be most appropriate response.
7.2 The PCC cannot now impose either exemplary or compensatory financial penalties. Its only sanction is an adjudication, which then has to be printed in the offending newspaper. This sanction is currently having neither a preventative nor a salutary impact on the press.
7.3 Still, even without imposing financial penalties, there are many other methods of redress that would make the current system of self-regulation more effective, some of which the PCC virtually already has but does not use.
7.4 If, for example, newspapers were required to correct egregious inaccuracies with 'equivalent prominence' (as opposed to 'due prominence') then it is very likely they would be more wary about publishing material they knew to be inaccurate or they thought could well be inaccurate.
8. Whether, in the light of recent court rulings, the balance between press freedom and personal privacy is the right one
There is a balance to be struck between the right to privacy and the public interest. Right now the courts are creating more precedents around personal privacy than around press freedom. More precedents need to be established around press freedom if it is to be safeguarded. But this should not mean removing the protection for personal privacy as defined in Article 8 of the Human Rights Act.
8.1 Recently the right to privacy has been determined by the courts - for various reasons outlined elsewhere.
8.2 It could equally be determined by a press regulator, to the extent that the system was sufficiently credible/effective to attract complainants. The public's choice will be based on remedies, likely fairness, timing and cost.
8.3 In each of the cases brought under Article 8 of the ECHR the judges have acknowledged the need to balance Article 8 and Article 10.
8.4 The Editor-in-Chief of Associated Newspapers recently suggested that popular newspapers should be given license to intrude on people's privacy in order to maintain sales: "if mass-circulation newspapers, which also devote considerable space to reporting and analysis of public affairs, don't have the freedom to write about scandal, I doubt whether they will retain their mass circulations with the obvious worrying implications for the democratic process". Yet that we should, as a society, compromise people's right to privacy to enable popular newspapers to retain their circulations seems neither equitable or just.
8.5 There is currently no organisation whose primary responsibility is to protect press freedom. The PCC is constitutionally prevented from performing this role.
8.6 Without such a body there have been repeated encroachments of press freedom and an unwillingness by the government to acknowledge the quasi-constitutional role of the press in a democratic society.
8.7 For example, the Regulation of Investigatory Powers Act (2000) has no exemption for journalism. The Terrorism Act (2006) makes it an offence even to transmit the contents of a terrorist publication electronically. The Counter Terrorism Act 2008 created further offences related to information about the armed forces. The Racial and Religious Hatred Act (2006) makes it an offence to publish 'written material which is threatening is guilty of an offence if he intends thereby to stir up religious hatred'.
8.8 The police have also used older laws to restrain freedom of the press, such as ''aiding and abetting... misconduct in a public office"'. Sally Murrer, a Milton Keynes Citizen journalist, was arrested and charged with this offence after publishing material that was clearly in the public interest, which she had been given by a contact in the police force.
8.9 We support greater promotion and protection of the freedom of the press based on defence of the public interest.