Press Regulation in the UK

Introduction:   For many, self regulation of the press is not seen as being a popular idea. This is probably due to the numerous excesses of the tabloid media´s salacious reporting as well as other unethical practices. It is, however, still an important element of a democratic society which affects and influences the public in different ways. James Curran and Jean Seaton recently asserted that “…the press has four key functions in liberal theory; informing the public; scrutinizing government; staging a public debate; and expressing public opinion.” (Curran & Seaton, 2003, p.346).These responsibilities that the press has towards the society have led to the struggle and need for the preservation of a number of rights, including right to freedom of expression which, when underpinned, could lead the press to demand for the regulation of itself. According to John Keane, “A fourth defence of liberty of the press is guided by the idea of attaining Truth through unrestricted public discussion among citizens.” (Keane, 1998, p. 17) The rationale behind press freedom has led to the demand for “…a Royal Commission to inquire into the ownership, control, and management of the British newspaper press – and to make recommendation.” (Jordan, 1947-1948, p. 558)  The ‘Royal Commission’ of 1947 – 49 came out with the conclusion that the press can, as a whole, handle its own excesses and therefore, state meddling could no longer be seen as being justified. And since then, “the UK press has been subject to this system of self-regulation since the middle of the twentieth century,” (Harcup, 2007, p. 108). There have also been continuous reviews including Calcutt’s 1^st and 2^nd Committees in 1990 and 1993 respectively.

Today, the responsibility for ensuring that the media can handle its own excesses through self-regulation – and that no statutory constraint is necessary – falls on the Press Complaints Commission (PCC) which has a Code of Practice that stipulates the guiding principle in the industry. Bob Franklin asserted that “The hub of the system since 1991 has been the Press Complaints Commission which, armed with a code of conduct drafted by editors and journalists, seeks to police standards of journalistic probity within the newspaper industry.” (Franklin, 1997, p. 229)  But the purpose for which PCC was constituted has remained a national discourse today. The rising problems of alleged invasion of privacy and other unethical practices by some journalists have revived similar public discomfort with the press of mid-twentieth century Britain. According to Bob Franklin, “Public disquiet about newspaper reporting has been a perennial feature of life in post-war Britain, prompting three royal commissions on the press (1947-49, 1961-62 and 1974-77), the Younger Committee on Privacy (1972) and most recently the Calcutt reports of 1990 and 1993.” (Franklin, 1997, p. 216) Unfortunately, Calcutt reports raised further questions about the effectiveness and independence of PCC, which is funded by the media industry and, whose role is to manage complaints from the displeased public.

These issues arising from self-regulation of the press in the UK will be used to discuss the questions concerning the weaknesses of the PCC and the survival of press self-regulation in Britain. Criticism of self-regulatory system under PCC will be discussed in order to explain what may have been considered its weakness. A focus on some of the existing legislations and PCC ethical Code of Practice will be used to illustrate areas of contention with the public. Other excesses in the media and the reason for which they exist will be highlighted. Liberal theoretical perspective on press freedom will be used to evaluate the strength and arguments of the opponents of statutory regulation in the UK press. References to some PCC adjudications on complaints over alleged breach of Clauses 3, 6 and 10  of Code of Practice will be employed to further illustrate ambiguities in the functions of PCC and the reason(s) for the massive support, or, discontent in existing press self regulatory system.

            Public discontent and unethical journalism practices are often translated into claim of failure and attributable as a weakness to the PCC. It is often accused of selectiveness when handling public complaints – which are often resolved through mediation in favour of the media – and lack of independence from the media industry. Richard Shannon stated that “Maximizing nice conciliation and minimizing nasty adjudication could of course, be interpreted by persistent critics of self-regulation as evasion rather than resolution of underlying problem of the PCC´s independence.” (Shannon, 2001, p. 337) The alleged PCC´s inclination to the interests of the media while handling series of complaints underpins the broader public claim of PCC´s vulnerability as a self-regulatory body. Claims of selectiveness when elevating public complaints to adjudication forms major part of general discontent. Statistics from, PCC’s “Complaint Summary Report Number 79 for the months of  April to September 2009,” revealed a stunning number of “complaints not investigated under the Code” which is in the range of 1856 out of a “total of all complaints of 2752” (PCC, 2010) received within that period. To most critics of press self-regulation, it is indicative of ineffectiveness in the PCC´s role to the public. In this vein, Shannon commented that “Critics of the PCC´s management of self-regulation point out that in no year has the number of adjudications upholding complaints exceeded the number of rejections”. (Shannon, 2001, p. 337) Consequently, the suspicion that the PCC gives adjudicatory preference to high profile cases, involving complainants that can afford to sue the commission in the court,  has further amassed more accusation of failure to the self regulatory system. James Curran and Jean Seaton advised that “To fulfill its public adjudication role, the Press Commission needs to be independent.” But waved all criticism of the PCC´s affiliation with the press, stating that, “…in order to be an effective professionalizing agency, the Commission needs to be rooted in the industry.” (Curran & Seaton, 2009, p. 369) But critics think otherwise, that PCC should be farther separated from the industry which its ethical standards it self-regulates.

                To compound PCC´s public discontent, the number of adjudications involving Clause 3 of Code of Practice soared as the public became increasingly concerned over their privacy rights violations. Eventually, the public found refuge in Article 8 of European Convention on Human Rights (ECHR) which contains deterrent actions against Clause 3 of PCC ethical Code which has no sanctions. For this reason, the public saw PCC merely as being reactive, acting only when wrong is already done and being incapable of anticipating the problem and stopping it. James Curran and Jean Seaton recently stated that “the Press Complaints Commission (PCC) has no sanctions…it exists not because it is the product of an internal reform movement, but in response to external pressure from politicians.” (Curran & Seaton, 2009, p. 369) For this reason, PCC could be susceptible to accommodate legislations such as the Official Secret Act of 1989, Contempt of Court Act of 1981, Law of Defamation of 1996 and Data Protection Act of 1998 in order to have deterrent legislative provisions that deal with issues such as the recent phone hacking scandal. But, given that PCC does not exclusively serve the media, it is not entirely certain whether these legislations interfere with, and undermine PCC´s regulatory powers or supplement them. The PCC Chairman Baroness Buscombe recently acknowledged that, on situation like in the phone hacking scandal involving the dissolved News of The World newspaper, “…statutory regulation now exist for this criminal activity.” (Buscombe, 2011)  But problem with most critics is that they seek to find a proactive self-regulatory body that can stop the violation of its Code on privacy and inaccuracy questions before it is published in the press. In other words, that PCC should embark on censorship that it seeks to prevent under press self-regulation.

             A look into PCC adjudication on Ms Sarah Baskerville´s complaints about Daily Mail newspaper´s possible violation of Clause 3 & 1 of the PCC Code would suggest that the claim of right to privacy are, in most cases, unfounded. According to the complaint report, “Ms Sarah Baskerville complained to the Press Complaints Commission that an article headlined "Oh please, stop this twit from Tweeting, someone", published in the Daily Mail on 13 November 2010, intruded into her privacy in breach of Clause 3 (Privacy)…” But the case was not upheld on the argument that “there was no dispute that the material posted by the complainant was open to public view, and could be accessed by anyone who wished to read it.” (Ms Sarah Baskerville vs Daily Mail, 2011) A proactive PCC, on this matter, would have censored a legitimate publication of public interest.   O’Malley and Soley stated that “It is necessary to remove these kind of control rather than add to them...” (O`Malley & Soley, 2000, p. 180) Seemingly, a choice between press censorship and freedom inclined in favor of the later as editors are trusted to make the right judgment over what goes to the prints each day.

             Furthermore, when freedom of expression is faced with so much limitation, legislated and constrained by laws in order to protect the state and some individuals; the existence of unethical practices becomes rampant and failure to check them are blamed on PCC. Chris Frost recently said that “the law can help guarantee the element of society´s moral values that are perhaps not shared by journalists, but the danger is that if the journalists moral sense in the area is eroded, then they will spend time trying to circumvent the law; because they cannot see it as a moral necessity, just an impediment to publishing material of public interest.” (Frost, 2000, p. 114) Evidently, the ethical sense of some journalists diminishes when the government subjects the press to a series of statutory control mechanism such as general legislative restrictions which usurp the function of PCC Code of Practice. But Lord Wakeham warned that “…if you remove the code, and substitute the law, a completely different situation arises, editors might well take the chances that someone will not be prepared to take a legal action…and intrude into their lives without retribution.” (Wakeham, 2002)

                The lack of absolute atmosphere of freedom of expression or the feeling of it compounds PCC´s functional problems because it compels journalist to adopt some unethical behaviours in order to obtain report. Mike Feintuck explained that “The long lenses of the paparazzi and the use of surveillance devices, together with tactics approaching mass picketing by ‘the media scrum’ of the homes and workplaces of those in the news have played a significant role in the battle for circulation...” (Feintuck, 2001, p. 142) Evidence of the veracity of this claim is found in the PCC adjudication on Liberal Democratic Party complaint against The Daily Telegraph newspaper´s breach of Clause 10 of the Code. The complainant alleged that “…a series of articles in The Daily Telegraph on 21 December 2010, 22 December 2010 and 23 December 2010 contained information which had been obtained using subterfuge in breach of Clause 10 (Clandestine devices and subterfuge) of the Editors' Code of Practice.” And, the complaint was upheld because, according to Clause 10 of PCC Code, “newspapers ‘must not seek to obtain or publish material acquired by using hidden cameras or clandestine listening devices’. It also makes clear that "engaging in misrepresentation or subterfuge...can generally be justified only in the public interest and then only when the material cannot be obtained by other means". (Democratic-Party, 2011) “Its become evident that PCC does not condone sting operation and does work in accordance with its code of practice and as O’Malley and Soley concluded, “whilst the code might be criticized for lacking a precise definition of ‘public interest’, it did at least recognize that there was a conflict between the personal lives of individuals and the aims of newspapers.” (O`Malley & Soley, 2000, p. 165) Tensions over what is private or public interest continued to raise questions about PCC´s effectiveness in defining this standard which the public think it did favorably to journalists and the press.

              Issues related to privacy rights invasion attracted public outcry against PCC and criticism from Culture, Media and Sport Select Committee for being, merely, reactive. Stephen Abell stated that “…the Select Committee has failed to acknowledge the current level of proactive work undertaken by the PCC, and the extent to which the PCC is already concerned with the raising of standards.” (Abell, 2010) The consideration is that the Code is more ethical than deterrent, making PCC look more like a mediator than a regulator in the media industry´s activities and obligations to the society. Simple cases of ‘inaccuracies’ in news publications and concerns for right to privacy as enshrined in Article 8 of the ECHR, tend to undermine the social and political efforts to guarantee press freedom of expression through self regulatory mechanisms such as the PCC Code of Practice. Mike Feintuck, in allusion to the PCC, asserted that “It established a sixteen clause Code of Practice in an attempt to define standards. Though the majority of complaints it dealt with related to alleged inaccuracy’ in reporting, the highest profile cases remained those concerning to ‘invasion of privacy’.” (Feintuck, 2001, p. 145) But it seems like PCC Code is insufficient to deal with the sort of complaints from the public over privacy right breach which the invocation  of  ‘public interest’ have served as an effective defence argument by journalists.  Wakeham, according to Richard Shannon, praised the introduction of Codes by the PCC saying that “on the central issue of privacy – an area where the PCC and the Code have made huge advances over the last ten years – I am certain that the first question any editor asks of himself is ‘can I justify this if challenged?’ (Cited in Shannon, 2001, p. 350) Still, the PCC is accused of lacking in clarity when defining public interest, prompting increasing number of court applications for injunctions based on Article 8 of ECHR.

                 Liberals are leading strong opposition to any mention of statutory constraint in the UK media industry. James Curran and Jean Seaton stated that, “the state was portrayed as a threat to media freedom, and regulation was attacked as an obstacle to satisfying the consumer” (James Curran, 2009, p. 357) It is implicit that the media is a vital part of the social and political structure of a democratic society, therefore, the ideal regulation in Britain should be in conformity with the need for freedom from direct censorship and control by the government. According to Tom O’Malley and Clive Soley, “Self-regulation to this sense meant the Press Council and the Press Complaints Commission promoting actively the interests of the industry as defined by them and dealing with the growing number of complaints they received about press conduct.” (Tom O'Malley, 2000, p. 120) Reiterating self-regulation as idyllic, it is inconceivable for some ardent supporters of the existing system to admit anything else, arguing that it would lead to censorship and that any little element of censorship will undermine democratic values of the society. According to Tom O’Malley and Clive Soley, “Another concern is that even a good law might be ‘turned’ or abused by the state or by powerful private interests to produce an outcome contrary to the original intentions of the legislators.” (Tom O'Malley, 2000, p. 181) Similarly, in her defense of press self regulation, Baroness Buscombe said that “….we have to be very careful about a newspaper industry that is regulated by the state…at the end of the day, I also care about freedom of the press, responsibly, to be able to investigate any wrong doing.” (Buscombe, 2011) The Leveson Committee, constituted after the ‘phone hacking’ scandal could quite be a grave a error because the matter for which they seek to review press self-regulation are criminal cases, typified in the law. Even, some media lawyers lauded the effectiveness of PCC functions. Nick Armstrong stated that “An essential aspect of the PCC´s work which is underrated is the assistance it can provide behind the scene, as part of the negotiation process which underlies the successful resolution of the majority of media-related issues…only rarely is immediate recourse to law appropriate.” (Armstrong, 2011) The existence of strong stance to the introduction of statutory regulation is evident and most of all “Journalists and editors”, according to Bob Franklin, “…routinely muster six arguments against statutory intervention. They believe: it is wrong in principle and constitutes censorship; it is impractical and unworkable; there are already too many statutory controls on press freedom; there is no evidence that it is necessary (complaints about privacy for example constitute of a mere 15 per cent of total complaints received by the PCC); self-regulation is more flexible and allows a discourse, mediated by PCC, between readers and publishers; self-regulation offers the most effective sanction against potential offenders…” (Franklin, 1997, p. 224)

CONCLUSION:

The UK press self regulatory body PCC is faced with enormous task of putting some balance between the media, the state and the society. As a non-statutory body which Code of Practice serves as a guiding principle for media ethical practices, critics consider it insufficient and ineffective in dealing with regular public complaints against the media. Issues related to inaccuracy, privacy invasion, sting operations and other media malpractices underpin the general public discomfort with the media. The PCC is, mostly, blamed for being soft on those media malpractices. I have highlighted some of the weaknesses of the commission using theoretical views, committee reports and statistics from its past adjudications.  Some of those weaknesses of the commission, as I have argued, are the lack of independence from the media industry. Critics believe that because the commission is funded by the industry, it´s Code of Practice contain most arguments journalists employ to justify their acts, therefore, lacked independence to regulate it. Arguments of `public interest´ has remained conspicuous in most adjudication in the PCC complaint file. But, isn’t it what self regulation is all about? Besides, it is all unfounded because PCC has an independent Governance body which reviews its activities annually and makes recommendations for changes.

 I have also mention the issue of selectiveness in elevating adjudication based on the criteria of who can afford to sue the press. Furthermore, the issue about the Commission´s inaction or inability to adopt a proactive stance towards stopping offensive materials from being published is considered indicative of PCC´s ineffectiveness and weakness by critics. Citing three different adjudications, I illustrated how free and fair the commission has been in handling every complaint. But I also reveal a statistics which indicate more number of rejected of complaints than admitted.  I also contended that the problem is not entirely PCC´s but the use of government legislations to usurp the role of the Commission´s Code of Practice which many consider non-deterrent enough to stop journalists from invading on their privacy.

My belief is that a reactive Commission which intervenes when a complaint is raised preserves freedom of expression than a proactive body which will adopt censorship. I adopted the views of many liberal theorists in order to illustrate the enormous support against statutory regulation of any kind in the UK media. Coming from a country – Nigeria - where Journalists were forced to exile, jailed or assassinated for their views expressed, I hope supporters of statutory regulations such as Dr. Calcutt will bear my disrespect for any kind of regulation which suggests curtailing press freedom. I did acknowledge the existence of some unethical practices within the media industry. However, I insisted that these are constrained by the legislative provisions such as Official Secret Act, etc, which are used to deprive journalist and the public of information.

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