Written evidence submitted by the Media
Standards Trust
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.
THE SUBMISSION
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 £1.82 million, compared
with the Advertising Standards Authority that had a budget of
over £8 million. This is only slightly higher than its initial
1991 budget of £1.5 million. 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.
2.4 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.
2.5 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
(eg about the BBC refusal to broadcast the DEC appeal), or Ofcom
(eg about Celebrity Big Brother), or the ASA (eg 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.
3. 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.
3.1 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.
3.2 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.
3.3 Nor is legal action without risk. Austen
Ivereigh fought and eventually won a two year battle with The
Daily Mail though, he says, he faced bankruptcy, the loss
of his home, and vilification by the press had he lost.
3.4 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.
4. 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.
4.1 "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.
4.2 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).
4.3 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.
4.4 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 (eg on blogs) will not have knowledge of those
restrictions and so could unknowingly find themselves liable to
contempt (eg in the recent Baby P case).
4.5 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.
5. 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.
5.1 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".
5.2 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.
5.3 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.
5.4 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.
5.5 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.
5.6 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.
5.7 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.
6. 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.
6.1 People will always resort to the courts unless
a means can be found to provide appropriate compensation, including
financial, to the victim.
6.2 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.
6.3 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.
6.4 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.
6.5 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.
7. 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.
7.1 Recently the right to privacy has been determined
by the courts—for various reasons outlined elsewhere.
7.2 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.
7.3 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.
7.4 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.
7.5 There is currently no organisation whose
primary responsibility is to protect press freedom. The PCC is
constitutionally prevented from performing this role.
7.6 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.
7.7 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".
7.8 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.
7.9 We support greater promotion and protection
of the freedom of the press based on defence of the public interest.
February 2009
| 
