The soft option
12 July 2004
8 January 2013
12 August 2013
30 January 2013
29 July 2013
24 June 2013
The days of self-regulation are over. People have been saying recently that the legal profession can’t police itself. Well, I think there’s a pretty strong case for saying the media ought not to be regulating itself.” So said Sir Louis Blom-Cooper QC recently. As the last chair of the Press Council, the eminent silk knows a thing or two about journalists and their apparent ability to outdrink even lawyers at ‘the last chance saloon’.
Blom-Cooper is calling for a fourth Royal Commission on the press. The pressure group that he chairs, MediaWise (formerly PressWise), set up by victims of press abuse more than 10 years ago, has provided a consumer insight into the failings of the Press Complaints Commission (PCC). In a new report entitled ‘Satisfaction Guaranteed?’, MediaWise reckons that almost two-thirds (64 per cent) of complainants were unhappy with the process.
The group’s findings are “a matter of actualité”, according to Blom-Cooper. “My stance is that, where a regulatory system is run by the profession itself or by a particular institution, whether it is successful in maintaining standards of behaviour or making sure there is compliance with rules and ethics, the fact of the matter is that the perception nowadays is that a self-regulatory body will never satisfy the requirements of the public,” he argues. “It’s simply a matter of perception.” (See box.)
Pot calling the kettle?
For what it is worth, the PCC is not happy with lawyers at the moment. In its recent annual report, published in April, the PCC was critical of the negative contribution of lawyers to the complaints-handling process. Those rulings on complaints that were made through solicitors took “on average 50 per cent longer” to be made, according to the PCC. “The [PCC] believes that it is important for potential complainants to bear this in mind when considering how they wish to make a complaint,” it continues. “The [PCC] sets great store by being fast, free and fair. When lawyers become involved in the process it ceases to be particularly fast – and it is certainly not free. It should be noted that having legal representation will not improve a complainant’s chances of success.”
One might expect media lawyers to respond along the lines of, “Well, they would say that, wouldn’t they?” And to a large extent the PCC duly obliges. It is a “bit cheeky” for the PCC to complain about lawyers, comments Duncan Lamont, a media partner at City firm Charles Russell. “If lawyers are involved in a PCC complaint rather than a legal complaint, then it’s obviously pretty important for the claimant,” he says. “They’re prepared to commit that money knowing that, by and large, the newspaper will deal with the matter in-house, not costing them a penny. They also focus the clients’ minds on what the real issues are. Some people feel absolutely the need to set the record straight.”
Patrick Swaffer, head of defamation at Goodman Derrick, acted for Stephen Byers in a complaint to the PCC against the Daily Mail. “I don’t hear Ofcom, and I don’t think that I ever heard the Independent Television Commission or the Broadcasting Standards Council, complaining about complaints being spun as a result of the fact that professional advisers were being involved,” he says.
Swaffer says it is “almost inevitable” that involving professional advisers will mean that they will “drill down into the issue”. However, his experience with broadcast regulators is that the process is controlled and timetabled.
Lamont is surprised at the PressWise survey revealing such widespread dissatisfaction and reports that this does not tally with the experience of his clients. “No doubt the main disquiet of people with the PCC is that it isn’t handing out any money,” he says. His view is that the PCC is actually effective at resolving problems and getting newspapers, particularly the local press, to print apologies – not least when compared with Blom-Cooper’s Press Council. “His days at the Press Council were pretty hopeless,” he says. “No disrespect to him – he simply didn’t have the powers.”
“There’s always the old sore – true or not – that the PCC is nothing more than a creature of the press and not entirely independent,” comments Swaffer. “You can understand, as a complainant, that if the first response of an organisation is to mediate the problem, they feel uncertain about where the interests of the regulatory body lie.”
Surveying the surveys
The MediaWise study flatly contradicts the PCC’s own analysis of its customer satisfaction reports. The PCC claims that 62 per cent of complainants felt their cases had been handled satisfactorily or very satisfactorily, which was up from 59 per cent in 2002.
“Statistically speaking, the MediaWise survey is a very small sample and one that is in direct contrast with our own anonymous survey which covered 413 people,” says a PCC spokesman. “They looked back over the last 13 years [since the PCC was established] and managed to find about 40 people who had used the PCC.” In
fact, there were some 45 complainants interviewed who had used the PCC, and 29 were dissatisfied with the outcome.
MediaWise director Mike Jempson has a number of “practical suggestions” for improving the complaints-handling process, including tougher sanctions, fines for breaches of the code and compensation where genuine costs and hardship are incurred. On the last point, Jempson reflects that a common argument against compensation is that it would attract lawyers. “Introducing a simple compensation scheme could be accompanied by the proviso that lawyers’ fees will not be paid, on either side, regardless of the outcome,” he argues.
Jempson also suggests an arbitrator to “avoid the necessity of costly legal argument about levels of compensation”.
Lapdog or watchdog?
Whatever the PCC might say, media lawyers are hardly queuing up to take their clients there.
“I advise my clients to avoid it like the plague,” says Mark Stephens, head of media at Finers Stephens Innocent. “And for those clients that are dead-set on going there, it’s better dealt with if a lawyer doesn’t appear.” His only ‘on-the-record appearance’ before the PCC was on behalf of Germaine Greer, who complained about the intrusiveness of The Mail on Sunday, whose reporter gained access to her home after he took up the writer’s offer, made in The Big Issue, to share her house with a homeless person.
Stephens was involved in setting up MediaWise and one of his clients, Linda Townley, Princess Anne’s former maid, who was falsely accused of stealing her private letters, was its first chair. Stephens regards the PCC as “more lapdog than watchdog”. There was cautious applause from those press critics when PCC chairman Sir Christopher Meyer unveiled the revised editors’ code of practice in May, featuring restrictions on when payments could be made to criminals, as well as limits on intercepting telephone calls, including text messages. However, the solicitor believes that the watchdog ducked the significant issue of refusing to recognise third-party complaints.
On the other side of the divide, newspaper lawyers share the PCC’s concerns about adjudications becoming unnecessarily bogged down by legal arguments. “It doesn’t help,” comments Alastair Brett, legal manager at The Times. “Mediation is nearly always about compromise. Once you start getting into the realms of lawyers being clever about matters which are really semi-legal, it really hinders the process.” But Brett says the paper does not receive many PCC complaints. “Perhaps half-a-dozen a year,” he says, “and most are just mediated out.”
There is, however, one growth area. “The wealthy celebrities who can’t bring a libel action, a privacy action or confidence action will always now resort to the PCC Code of Practice,” he says. “And they’ll always have the money to afford lawyers.”
Justin Walford, legal adviser at Express Newspapers, agrees. “In recent years, and until the Naomi Campbell judgment in the House of Lords, the perception was that the real growth area in media law would be in the area of privacy, and because that hasn’t happened, it hasn’t been the legal goldmine everyone thought it was going to be,” he says. “This has led to people being much more prepared to go to the PCC. Because there’s a stoppage there, that means there’s a flow further downstream.” Solicitors can be helpful because they can go straight to the heart of the issue, but inevitably, says Walford, lawyers become legalistic.
So what do lawyers make of Blom-Cooper’s call for a Royal Commission and, more particularly, the end of self-regulation? On the whole, they can muster little enthusiasm. “To suggest you start dismantling the PCC now and having a Royal Commission is just bonkers,” reckons Brett. Swaffer fears that it would be a “time-wasting exercise”. “I regret to say that it would be a complete waste of money,” says Lamont at Charles Russell. “There are more than enough laws that affect the media and we don’t need anyone contemplating any more.”
By contrast, Stephens at Finers reckons that a Royal Commission would be “a bloody good thing to have”, adding: “The PCC is useful for newspapers as a fig leaf for its respectability, so when there’s a terrible story they can turn to the PCC and say everything will be alright.”
“The reason for the continuation of self-regulation of the press is that the Government has not had the courage to challenge the press,” Sir Louis Blom-Cooper QC, the eminent silk and last chair of the Press Council, tells The Lawyer. “They run scared whenever they do anything which could impinge on the freedom of the press.”
Blom-Cooper has been watching closely the Clementi review of regulation in the legal profession. His belief is that self-regulation – be it via the Press Complaints Commission (PCC), the Law Society or whatever – simply does not inspire confidence in the public. “All I’m saying is, whether or not self-regulatory bodies are effective and efficient, the fact of the matter is the perception that they can’t control themselves,” he says.
Clearly, it is a lot easier for ministers to take on the lawyers than the press barons. “Indeed,” he replies. “From Margaret Thatcher onwards there’s been no disinclination on the part of government to take on the legal profession, or the medical profession for that matter.”
In his introduction to the MediaWise report ‘Satisfaction Guaranteed?’, published last month, the barrister reflects that there have been three Royal Commissions on the press since World War II. “Is the time ripe for a fourth, at a moment when the print and electronic media are largely indistinguishable in ownership and function, the former self-regulated, the latter supervised by Ofcom under the Communications Act?” he asks.
The silk is clearly convinced that it has been 25 years since the last one and a commission is now long overdue. He refers back to the comments of the Press Council’s first independent chairman, Lord Devlin, who in 1966 named six factors which he deemed essential for the proper working of a self-regulating body for the press. The sixth factor was for the organisation to stand up for the freedom and rights of the press as well as to censure misconduct.
“To censure misconduct effectively,” said Devlin, “it needs the support and respect of the press and it will obtain that much more readily if, in the words of its constitution, it seeks to preserve the established freedom of the British press and work as to maintain its character in accordance with the highest professional standards.” He added “prophetically” – as Blom-Cooper sees it – that the organisation “must never allow itself to become mostly a tribunal which convicts or acquits”.
“That is what has happened,” Blom-Cooper says. “The Press Complaints Commission has pronounced, with variable conviction, on the guilt or innocence of the editors and journalists on specific complaints. Other than exceptionally, it has not conducted inquiries into specific issues relating to perceived deficiencies in responsibility.” Was there any sign that the behaviour of Piers Morgan and The Daily Mirror on the fake Iraq torture photos would come under scrutiny by the self-regulatory body, asks Blom-Cooper. “If not, why not?”