Stop Press! The Leveson Inquiry and Self-regulated Media

The Leveson Inquiry into the culture, practices and ethics of the press is now in full swing.  The outcome of the Inquiry is unlikely to be unveiled until well into thenew year, but a recent hearing provided insights into where the Inquiry is going.

At a session before the Inquiry last month, industry bosses, including Ed Richards of Ofcom, Guy Parker of the Advertising Standards Authority (ASA) and Stephen Abell, a director of the Press Complaints Commission (PCC), reported to the Inquiry on the various models of regulation. 

Ed Richards summarised the three primary models of regulation:

·      Statutory regulation

Ofcom is a classic example of this. In accordance with its powers under the Communications Act 2003, Ofcom regulates the TV, radio and telecoms sectors.  It has statutory powers of enforcement ranging from public censure to fines and even the revocation of licences.

·      Co-regulation

This can take many forms but typically involves a self-regulated system with a statutory “backstop”.  One example is the work Ofcom does in conjunction with the ASA regarding broadcast advertising. The ASA has the day-to-day responsibility for broadcast advertising standards which includes adjudicating on advertising compliance matters.  However, it can make referrals to Ofcom.

·      Self-regulation

In Richards’ words, this is where “an industry designs and administers its own solutions without formal oversight”.

The printed press, though, is self-regulating. It is regulated by the Press Complaints Commission (PCC), a body that is funded by the press itself. The cornerstone of the PCC is a voluntary code of conduct, the Editors’ Code of Practice. The PCC adjudicates on complaints against newspapers and can also act as a mediator in such disputes. It publishes the outcomes of complaints on its website and successful complaints may result in the newspaper having to publish an apology. 

The PCC advocates self-regulation in its industry. Some of the reasons why it does are set out on its website: quick and free and accessible to all; industry commitment to the model; and maintaining a “free and responsible press”.

But in light of the News of the World scandal, the question is whether or not these reasons are sustainable. Is it now time for regulation of the press to be based on a more robust system?  The concept of the “freedom of the press” being jeopardised by a more prescribed system of regulation is arguably outdated.  Ofcom is one example of a regulator that is frequently tasked with weighing up competing interests under Article 10 of the European Convention on Human Rights (i.e. freedom of expression) versus those under Article 8, 9 and 14. 

Ed Richards also explained to the Inquiry what he saw as the three pillars of effective regulation:

·      Transparency

A transparent process means, for example, that complainants are able to engage in a process which, itself, augments trust in it;

·      Independence

This is obviously key to ensure fair decision-making, but it also important to be demonstrably independent, again, to ensure the public’s trust (one thing which has been badly affected if not lost entirely as a result of the NOTW scandal) in the regulatory body;

·      Enforcement

One criticism levelled at the PCC is that its powers do not go beyond demanding printed apologies or “naming and shaming”.  One might argue that, if trust in the industry is to be restored, the body responsible for regulating it should pack more of a punch.

It is difficult to disagree with Mr Richards on these points and a number of commentators advocate the end of a purely self-regulated media.  The clear failings identified in the NOTW scandal (and the time they took to come to light) surely mean that there will be some sort of a regulatory change. 

Nevertheless, one questions whether a statutory overhaul is really the answer.  As is often said, thanks to technological and social developments, we are all journalists now. The industry is also inherently based on opinion (and sometimes speculation) as much as fact and can be politically motivated.  These are not characteristics which suggest that statutory regulation (over and above the requirement on newspapers and journalists to adhere to general law) will be the solution.

In his report to the Inquiry, Guy Parker described regulation as a “spectrum” (i.e. with statutory regulation at the one end, and pure self-regulation at the other) and the ASA as “in some way like a quantum particle or a wave that sits at more than one point on that spectrum at the same time”.  The likely solution for the regulation of the media will lie in a shift away from one end of the spectrum but possibly still some distance from the other…

Joanna Ludlam, partner, associate Nicola Mead-Batten and trainee Fiona Lockhart, Baker & McKenzie;