Appendix 1: Reply from Press Standards Board
of Finance
This response to the Select Committee report is made
by the Press Standards Board of Finance, the body which funds
the PCC and oversees the industry's input into the system of self
regulation. It covers matters raised in the report which relate
directly to the newspaper and magazine publishing industry. Responses
from the Press Complaints Commission [PCC] and the Editors' Code
Committee will cover their own areas of responsibility.
The Select Committee is to be commended on a comprehensive
and thoughtful report which covers a large number of areas of
vital interest to our industry. There is much with which we can
agree, but there are a number of other areas on which there are
inevitably significant disagreements between us.
For the purposes of this brief response, we will
take the recommendations in order.
Chapter 2 - Privacy and breach of confidence
- On privacy, we agree with the
Select Committee that there is no need for further legislation
on privacy, especially as the Human Rights Act [HRA] - the application
of which the Committee rightly recognises has been muddled because
of the limited number of judgements (para 67) - has already created
a back-door privacy law. And we welcome the Committee's rejection
of the idea of mandatory pre-notification in privacy cases. Not
only would this be "ineffective", as the Committee recognises,
but could pose a serious threat to freedom of expression (para
91).
- The Committee is right to be concerned about
the lack of data on the operation of Section 12 of the HRA and
on the granting of injunctions on privacy issues, and we agree
that there needs to be urgent research into the issues by the
Lord Chancellor, Lord Chief Justice and the courts (para 37).
- The Committee is also right
to be troubled about the use of so-called "super-injunctions",
which we believe are wholly inimical to freedom of expression,
and we agree that a way needs to be found to limit their use (para
102).
Chapter 3 - Libel and press freedom
- On libel and press freedom,
we support the Select Committee's view that the enormous costs
of libel cases need to be cut, and in particular that measures
should provide for more certainty on the issue of costs at an
early stage of libel proceedings (para 129).
- The industry is closely involved in the Ministry
of Justice's review of libel laws, and we welcome the Select Committee's
support that a number of areas need to be addressed in this review,
including their impact on the press's ability to make fair comment
(paras 141-142) and the issue "libel tourism" (para
207), which is having a profound impact on press freedom in the
UK.
Chapter 4 - Costs
- On costs, the Select
Committee is right to recognise that a serious issue now facing
defendants - and in particular the media - in conditional fee
cases is that many have to settle cases that should not in fact
be settled simply in order to limit costs (para 262). We strongly
support action to deal with this, including mandatory costs capping
(para 274) and steps to limit recoverability of ATE insurance
premiums (para 306). It is a matter of great regret that measures
to limit success fees were not successfully implemented before
Parliament was dissolved.
Chapter 5 - Press Standards
- The Select Committee recognises
that there is a "great deal of good, responsible journalism
in the British press" (para 324), and it is right to do so.
- In doing so, the report makes much of the one-off
episode of the McCanns, and their tragic story. While much of
the analysis in the report relating to the case of the McCanns
is for the PCC to deal with, we note that the Committee has been
right to highlight a number of the issues which impacted on all
newspapers - including the problem of the foreign jurisdiction
and unclear contempt laws, the exceptionally high public demand
for news of Madeleine McCann and public support for the campaign
to find her, and the lack of official information from the Portuguese
police and authorities.
- Even against that background, the industry has
learned lessons from this episode, and will work with the PCC
in future to ensure that such issues do not recur.
Chapter 6 - Self-regulation of the Press
- We welcome the view from the
Select Committee that "self-regulation of the press is greatly
preferable to statutory regulation and should continue" but
we cannot accept that the PCC is "toothless" (para 531).
For the industry, the PCC has real bite. As the industry made
clear in its submission to the Select Committee inquiry, the PCC
has achieved a great deal since it was set up in 1991, including
a very significant improvement in standards of press reporting.
- Of course it is right that the structure of the
PCC, and the contents of the Code, are kept under review, and
other responses to you will deal with those. We would not want
to comment further at this stage on matters that are the subject
of the PCC Governance review, including the appointment of editors
to the Commission, a matter of great importance in a system of
effective self regulation (para 543). We are co-operating fully
with the Governance Review Team on this and other matters, including
the composition of the Commission and of the Code Committee.
- The Select Committee is right to highlight the
importance of industry compliance with the system, particularly
in the area of funding (para 557). The industry has invested well
over £30 million in the PCC since it was established, thanks
in part to the very high levels of voluntary compliance. We do
not believe that it is therefore fair to describe the system as
"precarious" and it is wholly wrong to make such an
assertion (para 558).
- While it may be worth examining whether there
are ways in which publishers could be given incentives to subscribe
to the system (para 558), we are sceptical as to whether this
could be achieved without legislation, which would be anathema
to the principles of self regulation. However, it is an issue
we will continue to monitor and we would welcome constructive
proposals, particularly if this was part of a wider package of
urgently needed libel law reform.
- As far as the issue of the inclusion of adherence
to the Code of Practice into journalists' and editors' contracts
of employment is concerned - something PressBof has always strongly
supported - compliance is already very high. With the PCC, we
will be undertaking a fresh study in this area in order to be
able to provide up-to-date figures.
- On the issue of sanctions (para 575), we do not
believe that the Select Committee has given enough weight or credit
to the effectiveness of the existing sanctions of the PCC. As
the PCC made clear in evidence to you, the power of a critical
adjudication is extremely significant, and has indeed been the
basis on which the system has worked to raise standards of reporting.
The industry will always be willing to discuss with the PCC ways
in which the effectiveness of this sanction can be enhanced further.
- The introduction of a system of fines would alter
the entire basis of a system which currently operates in fast,
free and fair manner in the interests of the public. The vast
majority of the complaints to the PCC are resolved in an amicable
manner to the satisfaction of complainants, and this is achieved
because the PCC operates in a common sense, non-legalistic manner
and with the support and co-operation of editors.
- The introduction of a financial sanction would
change all that. It would inevitably introduce a legal and adversarial
element into the system - both on behalf of complainants and of
newspapers - which would slow the complaints process down and
make the resolution of complaints much more difficult. It would
mean, without doubt, some form of appeals process and also introduce
the whole question of the payment of costs for successful complaints.
It is difficult to see how all this could be managed without some
form of legal basis for the PCC. While the Committee speculates
that industry might in theory be able to submit to some voluntary
agreement (were it not for strong objections in principle), it
is highly unlikely that claimant lawyers - who would soon populate
the system - would accept that without some form of statutory
framework.
- It would also seem likely that the introduction
of financial penalties might well chip away at the extremely high
levels of voluntary compliance on which the system is based (and
which the Select Committee itself believes to be important.) Many
publishers are under serious commercial pressure and might believe
it better to turn their backs on amicable resolution and leave
the system rather than to risk going out of business on the back
of a fine or take their chance in the Courts. We therefore believe
that the Committee's recommendation on fines is at odds with its
desire to underpin the system with some form of subscription incentive
(para 558).
- The proposal that the PCC should have the power
"to order the suspension of printing of [an] offending publication
for one issue" in the case of serious breaches of the Code
is - we have to say - repugnant in a free society. To the best
of our knowledge, such a sanction exists nowhere else in the free
world, though it is something which happens in countries such
as Zimbabwe and North Korea.
- Apart from the moral objections - denying freedom
of expression to writers, readers and advertisers - such an idea
would be unworkable in the digital age, unless the Select Committee
is suggesting that the PCC should also be given power to take
down a newspaper's website.
- No newspaper or magazine would submit to such
a punitive regime - especially when the loss of one issue might
be enough to put some weekly newspapers or monthly publications
out of business - and compliance with the system would be shattered.
- In any case, the PCC already has a powerful sanction
for serious breaches of the Code in that it can refer a critical
adjudication in such cases to a publisher with a recommendation
that it be treated as a contractual issue. This has happened a
number of times, with great effect, in the past.
Against the background of these comments, PressBof
will continue to work with the PCC - and, in the short term, the
Governance Review Team - to ensure that the system of self regulation
remains effective, modern and up-to-date, and that, above all
else, it continues to serve the public and to raise and uphold
standards of reporting.
April 2010
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