Reports that Matter

An Inquiry into the Culture, Practices and Ethics of the Press

The Code

Section 59 of 140

The Code

8.1 Each of the models for standards regulation put before the Inquiry includes the existence of

a code of standards that those within the regulatory system should comply with. The Inquiry considered a range of evidence in relation to two specific issues: who should be responsible for drawing up the code; and what should be contained within it. I deal with those two issues separately.

Who should be responsible for drawing up a standards code?

8.2 Four different options have been put forward as to who should be responsible for drawing

up the code. The first is that proposed by Lord Black, and endorsed by Lord Hunt and Mr Dacre, that the code should be developed by a committee comprised of a majority of serving editors with some lay membership. The second, advanced by, among others, the MST and Lord Prescott, is that the code should be drawn up by the industry, possibly in conformity with very broad standards set out either in regulation or by an independent body. In these models a code that did not meet relevant standards would not be acceptable. In the third model the code would be drawn up by an independent body with representation from both industry and the public. In the final model the code would be developed by an independent regulator.

8.3 I will look first at the situation where a code is to be devised by a set of serving editors,

albeit with some support from lay members. Professor Greenslade argues that there has been little if any controversy about the code and little or no criticism of the changes made by the editors' committee.197 He therefore concludes that editors should remain in the majority on the code committee, but that they should be joined by a new Press Ombudsman, public representatives and some representatives from the NUJ.198 The Carnegie Trust urges that industry representatives, including editors and journalists, should continue to play a significant

  • K — 197

p7, para 4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Professor-Roy-Greenslade-of-City-University.pdf

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role in overseeing the standards required of the industry, but they do emphasise the need for citizens and members of civil society to be given a more prominent role in the process. It is suggested that this might be achieved by adding lay members to a code committee but that this could be strengthened by an ongoing programme of research into the standards to which citizens feel the press should adhere.199

8.4 The advantages of having standards set by serving editors are reasonably self evident.

Current editors will be best placed to understand the industry, its practices and the impact of technology and competition, in order to take a view on what is practical to deliver. Similarly, as the Carnegie Trust points out, the involvement of industry in drawing up the code of practice should ensure buy-in in terms of adhering to the standards set out in it.200 Professor Greenslade took the view that the performance of the Code Committee to date was proof that the system was effective:201

"the Code Committee is a very, very straightforward matter, not problematic in my view, and working editors on it makes sense. It's not as if they've designed the code in private to favour themselves. The code has, in fact, constrained them, and so – you pointed out that it's largely very negative in that sense. So I would have thought the code is an example of the editors having behaved rather well."

8.5 However, the disadvantages also seem to me to be clear and are persuasive. Mr Richards

was extremely clear that, from an Ofcom perspective, it would be entirely inappropriate for serving editors, or others currently active in the industry, to have any part in approving the standards to which the industry should conform. He said:202 p3, para 7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Robert- Sanderson.pdf para 68, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DCS-Keith-Surtees.pdf pp49-50, lines 23-1, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript- of-Morning-Hearing-26-April-2012.pdf pp47-50, lines 22-2, Lloyd Embley, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Afternoon-Hearing-16-January-20121.pdf pp22-23, para 56, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Ed- Stearns.pdf pp62-63, lines 17-15, HMI Roger Baker, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript- of-Afternoon-Hearing-5-March-2012.pdf http://www.conservatives.com/News/Speeches/2009/01/Ed_Vaizey_BBC_must_not_drive_up_stars_salaries.aspx p69, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ58-to-Witness-Statement-of-Tessa- Jowell.pdf pp43-44, lines 22-16, George Osborne, ibid p88, Tim Toulmin, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-Morning-Hearing- 30-January-2012.pdf pp101-102, lines 7-9, Ed Richards and Colette Bowe, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/07/Transcript-of-Morning-Hearing-12-July-2012.pdf [2007] UKHL 21 at para 111

"I think we would draw a very very strong and clear distinction between advice which I think it is very important to take from those with experience and ideally recent experience of the relevant industry in which we do our sales, and the precedents on decision-making or determinative functions of the regulator of participants and active – people actively involved in the industry at present. I think that is quite the wrong thing to do and makes effective and reliable independent decision-making extremely difficult, and to be honest in our context is unimaginable. The idea that we would have and we could stand up in public and defend decisions we made if we had serving broadcasters on our decision-making bodies or on our code-setting bodies, I think is – LORD JUSTICE LEVESON: Even on the code-setting body? MR RICHARDS: Yes. DR BOWE: Yes. MR RICHARDS: Yes, absolutely. And I will say in terms of code setting, in terms of sanctions, in terms of corrections or anything of that kind and in terms of policy making overall, you need to have a bright line separation between those who are regulating and making decisions and those who are regulated, and I think any breach of that in my view, in our experience, means that you will immediately undermine the perception and indeed in all reality the actuality of your independence."

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8.6 That is a general matter of good regulatory practice, but it seems to me that there is also

an industry specific point to consider here. In most models of self-regulation where serving professionals are involved in any way in the process of regulation, the pool from which those serving professionals can be drawn will be many thousands of people. In terms of editors of national newspapers, however, the pool is limited to no more than 20 or so. It is in this context that editors have been described as 'marking their own homework'. Indeed, when it comes to the role of serving editors on the code committee, it might just as aptly be seen as editors setting their own homework. It is clear that there are a number of very powerful individuals within the industry who have, or are perceived to have, a strong influence on others in the industry. This means that, if serving editors are in the majority on a code committee, there is the risk of power being located in the hands of one or two people who have the most to gain from setting standards that they are prepared to live with, rather than standards that are set with the best interests of the public in mind. None of this is to argue that serving editors do not have an important role to play in advising on the standards to be set. The issue here is simply about whether they should be responsible for taking the actual decisions as to what standards should apply.

8.7 The second model I consider is one whereby the press (quite possibly, but not necessarily,

including serving editors) draw up the code but the code then has to be approved or recognised by some independent body. Lord Prescott says that it makes sense for the industry to remain the primary drafting body for the code but:203 "that in order to maintain credibility in the eyes of the public the code should be reviewed and endorsed by 'a body with the interests of the public, not the press, at heart, which could be the regulator, Parliament of another body appointed by Parliament."

8.8 This model is also adopted by the MST and Mr Suter, who both put the need for self-

regulatory industry bodies, setting their own standards, at the heart of their models. In the MST model, the Backstop Independent Auditor would provide written guidance on the minimum commitments that it expected to be contained within a code of practice and would then look for those minimum commitments to be met when considering approval of a self- regulatory body.204 In Mr Suter's model, Ofcom would set out high level regulatory outcomes to be achieved and the Ofcom Content Board would look to see that the self-regulatory body had given itself appropriate scope and powers to deliver those outcomes in considering authorisation.205 In both models the detail of the standards code, and the process of arriving at that detail, would be a matter solely for the relevant self-regulatory body.

8.9 The third model I look at is that of an independent body with a mix of industry and public

representation. Mr Mosley proposes replacing the PCC with a Press Commission with an independently appointed chairman but membership otherwise largely unchanged. His approach involves this body being solely responsible for making and amending the code of practice.206 This Press Commission is not a regulator as it has no powers of enforcement and simply sets the standards.

8.10 Finally I come to the model which has standards setting simply in the hands of the independent regulator. The Media Regulation Roundtable makes the drawing up of a code the 'central

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function' of their proposed Media Standards Authority. In order to do this they would establish a broadly representative committee, including serving editors, as well as journalists and independent figures.207 The Campaign for Broadcasting Standards and Press Freedom proposes that a statutory Media Standards and Freedom Council should be responsible for producing a code of ethical standards "in consultation with the media industry and the general public."208 Sir Louis Blom-Cooper advocates that a statutory independent regulatory body would be responsible for a code of ethics.209 The CCMR would give full responsibility for establishing and updating standards to its statutory, but voluntary, News Publishing Commission. The Commission would include editors, journalists and members of the public.210

8.11 A number of the proposals leave the matter of ownership of the code somewhat obscure.

The MediaWise Trust talks of a new code211 but does not say who is to be responsible for drawing it up. The NUJ says that "the new regulator should have a role in drawing up a code of practice"212 but stops short of saying who should have the ultimate responsibility for deciding on the contents of the code.

8.12 In many ways this issue of who is responsible for setting the standards goes to the very heart

of a new regime. It is important to balance the current industry expertise inherent in serving editors and journalists with the need for independence in setting standards. It seems to me that the appropriate balance is provided by some form of system that draws heavily on current editorial expertise via an advisory body, but leaves the ultimate approval of the code to a more independent regulatory body which has the primary duty of serving the public interest in respect both of the freedom of the press and the rights of individuals.

Contents of the code 8.13 I turn now to the content of the code. It has been said by many witnesses to the Inquiry that

the current Editors' Code of Practice is a good code. There certainly seems to me to be a substantial consensus that the existing code captures much good practice. Ms Harman, for example, sees no need for changes to the code:213

"It is widely acknowledged by editors, journalists, campaigners, and academics that the current Editors' Code of Practice is broadly fit for purpose – the key issue is its enforceability. The Code – which covers fairness, accuracy, the differences between reporting and comment – could continue to be used."

However, there have also been reservations expressed in relation to some aspects of the code.214 This chapter reflects any proposals made for changes to the content of the code and does not attempt to be an assessment of the value of the current code.

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8.14 The Inquiry heard evidence from a number of academics with specific expertise in ethical

issues who felt that the code could benefit from revision. Professor Chris Megone described the code as:215

"a code that has been developed primarily from the point of view of things that can go wrong in media practice. It has a view of ethics as something to be turned on in order to stop people behaving badly, rather than of ethics as being concerned more broadly with good judgement and a positive contribution to society."

He goes on to point out that the code is largely a series of prohibitions but that it is not very precise in terms of what is an absolute prohibition and where there is a prohibition that can be overridden. He says that 'this imprecision is likely to lead to a certain laxity of interpretation'.216 His conclusion is that the code needs to be set more in the context of the specific critical contribution that a free press can make to the public interest, and that it should be developed in terms of the duties to the key parties with whom the relevant press interact in different ways.217

8.15 Dr Rowan Croft suggested that there would be merit in the code requiring proprietors, editors

and journalists to declare their financial and political interests to their readers. Similarly, there could be a requirement for declaration to readers of any payment made or received for information relating to the publication of a story.218 This would help to give readers the information that they need in order to be able to accurately assess what they are being told in the newspaper.

8.16 A number of the proposals suggest that more thought needs to be given to the meaning of

'public interest' in the context of the code. The Media Regulation Roundtable suggests that some guidance on how the code should approach the public interest should be set out in statute.219 Lord Prescott said that, though much of the code needs no amendment, there needs to be a wider debate on the definition of the public interest, in particular if it is to gain enhanced status as a defence in the courts.220 The Carnegie Trust agrees that understanding the public interest in the context of the code requires more thought and recommends ongoing research to understand citizens' views on the matter.221 Lord Soley also raises issues of concern around both the definition of the public interest in the code and its application.222 This question of what is the public interest in the various different contexts in which it is used in relation to the press is, of course, a central one and is dealt with in detail at the start of this Report.223

8.17 Dr Neil Manson queries the effectiveness of the code provisions on accuracy:224

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"It is good that the Code places "The Press must take care not to publish inaccurate, misleading or distorted information, including pictures" to the fore. But, unfortunately, there is no account given of what constitutes accuracy, or distortion or misleading. This is, of course, problematic for it leaves considerable interpretative leeway in deciding what constitutes acceptable communication."

8.18 Separately, Professor Manson queries the inclusion of the 'public's right to know'. The scope

of the right is undefined, the nature of the right (a positive right to know or a negative right not to be prevented from knowing) is unclear and neither is practical. Professor Manson concludes that:225

"In any replacement code of practice there should be no mention at all of "the right to know" unless some decent argument can be given to show how it denotes a coherent right."

8.19 Another issue that has been raised in relation to the code is the separation of fact and

comment. Mr Eustice urges that the Code should be redrafted to strengthen the requirement to separate comment and fact. His specific proposals are:226

"A greater emphasis on this principle might be achieved by setting out in the code a presumption against using conjecture or opinion in a news story headline. It could also state far more clearly a presumption that opinion must appear in a separate editorial article and that, where practical, the basis for any conjecture should be sourced."

8.20 A final point worth considering here is that the code itself, although important, can only

achieve any improvement in standards if it is followed. The Inquiry heard evidence from many editors and journalists who claimed that the current code was the touchstone of their every decision. Doubtless in many (if not most) cases it is but, in the context of the extensive evidence the Inquiry has been given of behaviour in clear contravention of the code, this assertion can be taken too far and there is clearly room for improvement. The Inquiry has also been told many times that there is nothing wrong with the code, only with the enforcement of the code. Similarly, many industry witnesses told the inquiry that the problem was not with the self-regulation of the industry but with the enforcement of the law, as though the code did not prohibit illegal activity. In order to achieve anything the code needs not only to be well drafted, it must also be lived by the individuals and organisations to whom it applies.

8.21 Professor Baroness O'Neill reflected that professional codes on their own have a limited

efficacy, particularly where 'professions' lack powers or willingness to discipline their errant members. This, she says, sets limits to the effectiveness of any ethical codes adopted by parts of the media and means that ethical codes, while important, are not enough.227 She goes on to say:228

"traditionally ethical codes worked because they were embedded in cultural and social norms that were widely respected and adhered to, making shame and exclusion the principal sanctions for violations. Adherence to these ethical norms standards cannot be achieved in a scattered workforce, without entry requirements, agreed standards of practice, benchmarks of progression or ways of barring inadequate practitioners."

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8.22 Professor Megone suggested that:229

"to make a code a lived code, media organisations need to attend to the critical factors that can bring about an ethical organisation, or promote integrity in an organisation. These factors include tone from the top (or leadership), an open and honest culture, and so on."

8.23 Dr Manson noted that:230

"where ethically problematic 'cultures' or sets of practices are entrenched, there may be no plausible 'quick fix'……..However, it is a fallacy to argue from the fact that a quick fix is unavailable to the conclusion that nothing can be, or ought to be, done."

  1. Complaint handling

9.1 Complaint handling forms by far the largest part of the work of the PCC and a consistent and

effective approach will be required in any new regulatory system. Two specific issues have arisen here. The first is by whom complaints should be resolved. The second is from whom complaints should be accepted. I look at the two in turn.

Who should adjudicate on complaints? Internal complaint handling

9.2 The first point to address in this context is how complaints are handled internally by publishers

and what has been described as the 'outsourcing' of complaints to the PCC. It seems clear that, under the existing PCC regime, few national publishers have effective mechanisms in place to deal with complaints from readers or others with concerns about their content; I have not taken sufficient evidence in relation to the regional and local press to know whether this holds true for them as well. There are beacons of good practice, and The Guardian's 'Readers' Editor' is the most developed that has been evidenced before the Inquiry. At one of the Inquiry's opening seminars, Mr Dacre announced the creation of a corrections column in the Daily Mail231 and there have been suggestions that others might follow suit. However, as a general rule it appears that national publishers have been content for complainants to go directly to the PCC and are content for the PCC then to attempt to mediate the matter. Certainly the PCC protocols do not include encouraging bilateral resolution between the publisher and the complainant.

9.3 This has two significant consequences. First, the PCC has a large workload of minor complaints

that can be easily resolved by mediation and that could possibly be resolved more quickly, more easily and more cheaply on a bilateral basis. The provision of a central clearing house for this type of complaint makes little obvious sense. Second, there is a risk that editors may outsource the judgment over whether material they publish is compliant with the code, or its use is ethical, at the same time as they outsource the process of handling the complaint. Lord Black accepts that complaints should, in the main, be dealt with directly by the editor of the

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publication concerned, as that is likely to be the fastest way to resolve a dispute; the dispute should only then become a matter for the regulator when bilateral resolution is not possible. He argues that the changes to internal compliance systems inherent in his proposal should ensure that this would happen more often than it does now.232

9.4 The MediaWise Trust proposes that publishers should take a number of measures to

strengthen in-house handling of complaints as part of a wider set of recommendations around re-building trust in the media:233

  • "An in-house but independent Reader's Editor on every publication above an agreed circulation/ratings threshold;
  • a regular Corrections column or programme, which might include review of the company's own journalism; and
  • a commitment to give suitable prominence to upheld complaints (and to offer compensation if appropriate)."

9.5 Lord Prescott made this point in his submission, commenting that complaints currently seem

to be 'outsourced' to the PCC, making them seem distant from the ongoing operations of the newspaper in question. He goes on to suggest that the new system should look to see more complaints being resolved via the organisation's internal mechanisms.234

9.6 I certainly agree that publishers should take more responsibility for their own compliance

with standards and that having an effective and independent mechanism for dealing with complaints in-house is an important part of this.

Complaint handling by a regulatory body 9.7 All of the proposals submitted to the Inquiry envisage complaints handling to be one of

the key functions of their proposed regulatory body. Relatively few go into any detail about how, or by whom, those complaints should be handled. Lord Black's proposal on behalf of the industry envisages a Complaints Committee comprising some serving editors and a lay majority. Although it is clear that, on the PCC, serving editors absent themselves from the process in relation to any decision on their newspaper, it is impossible to ignore the potential influence of a small number of extremely powerful individuals on the whole process.

9.8 In section 8 above I set out the exchange that I had with Mr Richards of Ofcom about the

propriety of including serving editors at any decision making level in a regulatory regime. His view, that allowing members of the regulated population any part in regulatory decision making is entirely inappropriate, applies at least as much in relation to complaint adjudication as it does to standard setting. The CPVs urge that adjudicators must be independent of Government, Parliament and the press, and that serving editors should have no role in the adjudicating or investigating bodies.235 Professor Greenslade said that retired editors would have 'baggage' and that they would not have up-to-date knowledge of the industry. He also

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thought that the Press Council had tried co-opting retired editors and not found it to be productive.236

9.9 By contrast Mr Mosley proposes a statutory independent Tribunal to decide on all complaints,

with each being decided by an individual adjudicator.237 Mr Mosley does not indicate any requirement for the adjudicator to have any, let alone current, media experience. Similarly the MST proposes a statutory regulatory body with the power to adjudicate over disputes, although only in relation to those publishers who choose to join the regime.238

An ombudsman approach?

9.10 A significant number of the proposals put to the Inquiry suggest what is described as an

'ombudsman' to handle complaints. The British and Irish Ombudsman Association (BIOA) sets out a number of criteria for ombudsman schemes. These cover independence, fairness, effectiveness, openness and transparency, and accountability. It is clear that none of the proposals submitted to the Inquiry actually envisage a body with the independence that would be required for it to be recognised as an ombudsman by BIOA, as they generally draw their authority from a self-regulatory industry body without an obvious guarantee of independence. It should, perhaps, be noted here that, although many of the proposals draw on the Irish Press Ombudsman as an analogy, the BIOA does not recognise the Irish Press Ombudsman as fulfilling their definition of an ombudsman because there is not a clear separation between the ombudsman and the Press Council in terms of appointment, reporting and appeal; the BIOA consider that regime to be a complaint handling scheme only.239 The main thing that distinguishes these proposals from that of Lord Black is that they envisage adjudications being made by a single person, not a committee, and do not rely on current media experience.

9.11 Lord Prescott advocates the establishment of an ombudsman. Complaints could only be

taken to the ombudsman once the company's internal mechanisms had been exhausted; the ombudsman would then encourage a quick and mutually agreed solution but should be able to adjudicate on the complaint where necessary.240 The ombudsman could be asked to look at matters which might otherwise be the subject of civil litigation. There would be no requirement on complainants to use the ombudsman, but courts might take a decision to side-step this option into account when considering a case. Similarly, the courts could consider the decision of the ombudsman if this channel was used.241 The Carnegie Trust suggests the appointment of an ombudsman to investigate and adjudicate on complaints because of the perceived benefits of independence, public profile, trust and effectiveness.242 Similarly, the MediaWise Trust recommends the creation of an ombudsman. As in other models, the complaint would first have had to be considered bilaterally with the publisher.

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The ombudsman would seek to resolve the matter swiftly and to the satisfaction of all parties, and could arrange oral hearings or conciliation meetings if appropriate.243

9.12 The BIOA concluded that there is a role for a press ombudsman scheme as part of a

proportionate system of checks and balances and provided its own set of proposals as to how a genuinely independent press ombudsman scheme might work. The BIOA notes that there is no current ombudsman scheme appropriate to take on the role, so a new scheme would be required. Specifically, and among other things, it recommends:244 "the name 'ombudsman' should not be used unless the body complies fully with the BIOA criteria for ombudsmen; any ombudsman scheme should be constituted as an independent body entirely separate from any regulatory body; any ombudsman scheme should have an independent board of directors, appointed on terms that secure their independent from those appointing them; Board members should not be appointed by a body which has more than minority representation from the industry, and not more than a minority of the board members should be from the industry; the independent board should appoint the ombudsmen, on terms that secure their independence from those appointing them; the scope and powers of any ombudsman scheme should be set independently, in the public interest, and not set by 'negotiation' with the industry; any ombudsman should be operationally independent, so that no regulator or industry body has any influence on its approach and decisions; the funding arrangements should ensure sufficient resources for the workload, and not provide any lever for the industry to try and exert any influence over the ombudsman's approach."

Who can make a complaint? 9.13 The position with respect to who can make a complaint to the PCC is set out earlier in this

Report.245 Very few of the proposals submitted to the Inquiry deal explicitly with this issue. The Carnegie Trust recommends that the ombudsman should be able to take complaints from any concerned citizen, not merely from those directly affected by the article in question.246 The CPVs argue that complaints should be able to be brought by the subject (or intended subject) of the publication or by third parties.247 The NUJ urges that those impacted collectively should be able to complain and seek a right of redress.248

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9.14 Mr Dacre expresses concern at the idea, set out in the Inquiry's published draft criteria for an

effective regulatory regime, that third party complaints might result in 'credible remedies'. He argued that this could:249

"open a Pandora's box of problems with every lobby and fringe pressure group in Britain (and abroad) deluging the regulator with complaints which may often be politically or ideologically motivated and aimed at forcing newspapers to report events in a way that furthers the group's objectives."

His proposal is that the standards body should be able to take third party complaints, at their discretion, but only with a view to formulating a judgment that could result in changes to the code.250

9.15 The BIOA raise a concern that the wider complainant eligibility is drawn, the greater the

burden on business and any ombudsman scheme, and the greater the chance that some cases might be brought for 'campaigning' rather than redress reasons. The solution proposed by the BOIA is that it might be open to representative groups to bring a complaint, but that should be subject to some requirement for 'permission'.251 The same type of hurdle (whatever the scheme) might avoid the problems which concerned Mr Dacre.

Standards: investigatory powers

9.16 The purpose of a complaints handling mechanism is to deal with issues as they affect an

individual: it could be considered as loosely analogous to the remedies available through the civil law, where the point at issue is the impact on the individual. A regulatory body, as opposed to a complaints handler, would also have an interest in the maintenance of standards for their own sake: this could be considered as loosely analogous to the criminal law, where the focus is on the maintenance of minimum standards and the determination of an appropriate sanction if that standard is not met.

9.17 So it is not enough that the regulatory body should have the power to deal with complaints; it

also needs to have the power to consider compliance with standards and to take action where standards are systemically or significantly breached, irrespective of whether a complaint has been made in respect of the breach. The PCC has been widely described as a good complaints handler but not a regulator. The key to the ability of the regulator to take action in relation to systemic or significant breaches is the power to investigate potential incidents.

9.18 The failure of the PCC to use any investigatory powers that it might have had in relation to

phone hacking has led a number of witnesses to emphasise the need for a new system to include investigatory powers. Lord Black's proposal on behalf of the industry sets out details for a standards and investigatory arm that would have the power to carry out investigations in respect of significant, systemic breaches. This proposal is described and analysed earlier in the Report252 but is worth noting when considering the other proposals that have been made with regard to investigatory powers.

9.19 Where the issue is addressed explicitly by proposals, there is unanimous support for a regulatory body having investigatory powers. Lord Prescott advocates that the regulatory

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body should have the power to appoint a suitably skilled investigator, at the regulated firms' expense, to address questions that the regulator may have.253 Sir Louis Blom-Cooper QC argues for a statutory power for a regulatory body to hold public inquiries into 'any press activity that has aroused, or is likely to arouse, public concern'.254 Mr Suter says that the self-regulatory bodies must have 'adequate powers' including at a minimum the power to investigate broader or systemic problems.255 Professor Greenslade proposes giving a power to investigate to a media ombudsman who could investigate where there is evidence of systemic breaches of the code.256 The Media Regulation Roundtable says:257 p12, paras 43-44, ibid whether directly or through Commander McDowell and DCS White p24, lines 17-20, Colin Myler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of- Afternoon-Hearing-14-November-2011.pdf Part F, Chapter 6, section 2 p16, lines 1-8, Elizabeth Filkin, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of- Afternoon-Hearing-5-March-2012.pdf p3, Rebekah Brooks, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-RMB-11.pdf pp434-435, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH1- MOD300004241-MOD300004682-docs-1-52.pdf p2, para 5, PCC, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Exhibit-SA-V112.pdf p14, para 37, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Media-Regulation- Round-Table.pdf [2010] EWHC 119 (QB)

"In addition, the MSA would have the power to investigate apparent breaches of the MSA Code by participants without a specific complaint having been made by a member of the public."

9.20 Ofcom supports the introduction of a power to investigate but warns:258

"Ensuring powers of investigation are only available post publication would be consistent with preserving the independence of the press and rights of free expression."

9.21 It seems to me entirely right that any press standards body should have both a duty to maintain

standards and the power to initiate its own investigations, in particular in respect of concerns relating to systemic or significant standards breaches. It is entirely conceivable, especially in privacy cases, that the subject of a story may not wish to draw more fire upon his head from an offending publication by making a formal complaint. This should not prevent a standards body from carrying out whatever investigation is necessary to identify whether there has been a breach of standards and, if so, applying the appropriate sanction. One approach might be to give the standards body the power (in appropriately serious cases) to bring a complaint in relation to a specific article, albeit allowing the complaint handling process to take account of the failure of the affected party to complain.

9.22 Further, in relation to complaints by groups, although I have recognised the concern expressed

by Mr Dacre and would endorse a filter system to remove complaints that are ideologically motivated only to further the group's objectives, I do not otherwise accept the argument. As I have pointed out earlier259 the current Editor's Code outlaws prejudicial or pejorative reference to an individual's race, colour, religion, gender, sexual orientation or to any physical or mental illness or disability, but does not provide similar protection in respect of groups. It is difficult to understand why there should not be some mechanism for representative groups to engage in challenges similarly based on the standards set out in the code.

9.23 In addition, I see no reason why representative organisations should not be entitled to raise

a complaint in relation both to accuracy and prejudice where articles are discriminatory in respect of a group. Where such articles are found to have breached the relevant standards

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to the level that can trigger a standards investigation, it should be possible for the standards body to impose whatever sanctions or redress they would normally impose in respect of a breach of standards.

9.24 A number of proposals mention that individuals should be able to have complaints dealt with

without incurring costs. This is an important point, and nobody has suggested otherwise. I entirely agree and applaud the fact that this has been one of the high points of the way in which the PCC has operated.

  1. Remedies and redress

10.1 For this purpose I draw a distinction between 'remedies' or 'redress', the primary purpose of

which is to make good, or compensate for, the harm done to another party and 'sanctions', the primary purpose of which I take to be punishment for breach and should impact primarily on the wrongdoer. For example, in a system with a regulator and an independent ombudsman, the ombudsman would be interested in redress and might require a company to pay compensation to an individual who has suffered at a level that reflects their loss, whilst the regulator might, in respect of the same breach, impose a fine, the level of which is designed to demonstrate the severity of the breach. The proposals considered in this section refer to redress and remedies that might be awarded by a regulatory complaints body for breach of a code of standards, not to any redress or remedies that might be awarded in respect of breach of civil rights. That is dealt with in the section below on dispute resolution.

10.2 The only remedy currently open to the PCC is to require a correction to be published, and

the only redress is the publication of an apology, both with the placing and prominence to be agreed between the publisher and the PCC. Under the proposals submitted by Lord Black, this position on remedy and redress for those who have been harmed by press misconduct would remain unchanged. The Campaign for Broadcasting and Press Freedom takes a similar approach to redress but advocates a dedicated section on the editorial page to carry corrections, clarifications and apologies.260

10.3 A substantially wider range of remedies and redress have been put to the Inquiry in the

proposals for the future. The CPVs argue that the press adjudicator should have the power to make compensatory awards, to require the publication of corrections, and to determine the prominence given to such corrections.261 Most, but not all, of the CPVs also consider that an adjudicator should have the power to prevent publication similar to an injunction.262 Mr Mosley specifically advocates all of those powers as well as proposing that the Tribunal should have the power to order newspapers and photographers to leave a complainant alone, ban the use of photographs, and order an item to be removed from the internet.263

10.4 Lord Prescott proposes that a press ombudsman should have the powers to:264

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"obtain[..] prompt equal-prominence corrections to quickly limit harm and/or redress the damage inflicted on the individual; award[…] damages, which are significantly material to genuinely recognise the distress and suffering caused to the complainant;"

10.5 Similarly, the Carnegie Trust says that a press ombudsman should have the power to require

news providers to issue prompt and prominent corrections and apologies for factual errors or misleading articles, and award compensation if appropriate.265 The BIOA considers that any ombudsman should be able to award redress (up to a specified monetary limit) and/or require the business to take specified steps in relation to the business. The decisions of the ombudsman should be binding on the business.266

10.6 Ms Harman considers that the regulator should have the power to order the prominence

and wording of an apology,267 as does the NUJ,268 while Mr Eustice says they should be able to dictate the size and prominence of corrections.269 Ofcom suggests that a strengthened self-regulatory system might have strong rules in relation to equal prominence of apologies and corrections, with determination by the regulator rather than as part of a process of negotiation with editors.270

10.7 The MediaWise Trust says that:

"breaches of the new code should be dealt with like any other violation of professional standards or human rights – with appropriate sanctions, including compensation for the victims."271 p11, para 55, ibid pp24-25, para 59, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Lord- Blair.pdf pp41-42, lines 11-9, Julian Pike, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Morning-Hearing-13-December-2011.pdf pp5-6, paras 22-24, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Sheryl- Gascoigne.pdf pp11-12, lines 18-7, Detective Chief Inspector Clive Driscoll, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Morning-Hearing-15-March-2012.pdf p86, lines 9-20, David Cameron, ibid pp1-4, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/KRM17-Document-73. pdf; pp6-15, Rupert Mudoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/KRM17-Document-74. pdf para 41, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-Baroness- Buscombe1.pdf p20, para 3.35, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Submission-by-MediaWise1.pdf s3(3)

In addition they argue that the costs of successful complainants should be met, within a mod- est cap.272 The Campaign for Media Reform also advocates the regulator having the power to award compensation,273 as does the Media Reform Roundtable.274

10.8 Sir Louis Blom-Cooper acknowledges some concerns around giving a regulator the right to

dictate the wording and/or placement and size of a correction or apology, on the grounds that this might constitute an infringement of the right to freedom of expression. By way of authority he refers to the Supreme Court of the United States in Miami Herald v Tomillo,275 which held that a statutory right to reply to a newspaper article was an interference with editorial freedom and hence contrary to freedom of the press under the First Amendment to the US Constitution. By way of contrast, however, he also pointed to the decision of the European Human Rights Commission in Ediciones Tiempo v Spain,276 which rejected a

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challenge to a right of reply provision in Spanish law on the grounds that the editor had plenty of opportunity to publish his own version of events so that the marketplace of ideas was enhanced, not contracted.277

10.9 It seems to me that there is no rationale for allowing the publisher to have some kind of

veto over the wording, placement or prominence of a correction or apology made as a result of a code breach. These are matters which a regulatory body should have the power to dictate. Whether or not it is appropriate for the regulatory body to have powers to award compensation to complainants might depend on the relationship between the regulator and any dispute resolution system.278

  1. Sanctions

11.1 Sanctions are a vital part of any effective standards regime. Sanctions must obviously be

proportionate, but a regime will have limited impact if the sanction for breach is not sufficient to incentivise compliance. Ofcom refers to the important of effective powers of enforcement and sanction as:279

"a genuine deterrent both to the party being punished and as a warning to other regulated parties."

Negative comment

11.2 The only sanction available to the PCC currently is to reach an adverse adjudication and

require its publication.280 The proposal by Lord Black on behalf of the industry would continue to restrict the complaints body to adverse adjudication, and the publication of a correction or apology, in respect of individual complaints. He also proposes that the standards body be given the power to investigate in a way that could result in the imposition of fines in relation to serious or systemic breaches.

11.3 Sir Louis Blom-Cooper proposes a system entirely based around the publication of report on

specific topics and outcomes from public inquiries into media malpractices. This, he argues, would inform the public and wield influence, rather than power.281

Fines

11.4 Despite the apparent general acceptance by the industry of the need for a self-regulatory

standards body to have the power to levy fines, this is not accepted without question by everybody. Sir Louis is worried that too high a fine might impact on the ability of a journalist, editor or publisher to continue to practice, and thus impinge on the right to freedom of expression.282

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11.5 Lord Prescott argues that the regulatory body must have financial penalties as a tool at its

disposal. He recognises that in a voluntary body it might be difficult to secure agreement on the power to levy fines, but nonetheless (as noted above) takes the view that the body should have the power to award damages.283

11.6 On the other side of the argument, the CPVs,284 Ms Harman,285 Mr Eustice,286 the Carnegie

Trust,287 the MediaWise Trust,288 the NUJ,289 the Campaign for Media Reform,290 Max Mosley,291 Professor Greenslade,292 Ofcom,293 and the Media Regulation Roundtable294 are clear that the regulator should have the power to levy fines. The MediaWise Trust is severe about the efficacy of the power of adverse adjudication, saying:295

"the new system will need genuine sanctions rather than the current fiction that peer pressure alone maintains standards. Breaches of the Code should be treated serious and persistent breaches should be dealt with severely. Editors whose newspapers have been found in breach of their own Code have in the past, remained in post or been 'promoted' or even remain on the PCC or the Editors' Code Committee. It is not surprising that such a system is viewed with contempt."

11.7 I am inclined to agree. It is important that any new press standards regulatory body should

have sufficiently strong sanctions to provide an incentive to press to comply with agreed standards. I do not find it credible that the power of negative adjudication on its own provides that and it seems sensible that the regulator should have the power to levy proportionate fines. Given Lord Black's proposals in this area I do not expect this to be a very controversial conclusion.

11.8 The Carnegie Trust notes that in a voluntary system the ultimate sanction is expulsion from

the system, with whatever benefits might have accrued from being in the system.296 This is, of course, only a sanction of any significance if membership of the system carries significant benefits and is inappropriate for a system whose strength is intended to be its inclusivity of all.

11.9 Mr Eustice proposes a higher level of sanction, arguing that Ofcom should be given the power to ensure that the internal governance systems of newspapers are such as to allow them to

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comply with the code and the law.297 Mr Eustice does not specifically say that Ofcom should be able to fine newspapers for failure to comply but, given the nature of Ofcom's current regulatory powers, that must be the logical inference; in truth, there is no other ultimate sanction.

  1. Dispute resolution

12.1 The sections above dealt with breaches of a standards code. This section deals with breaches

of civil rights by media organisations. It is a fact that many, but by no means all, complaints relating to a breach of a press standards code will be in respect of breaches that potentially give rise to an action in tort. The question must therefore arise as to whether such issues should be considered as code breaches, breaches of civil rights or both. The PCC has historically taken the view that it will not consider a complaint that is the subject of legal action, and that any complaint will be suspended pending the outcome of legal action should action be commenced after a complaint has been made. Complainants can, and sometimes do, take legal action following resolution of a case by the PCC. The PCC complaints system is free and can by relatively quick. Taking action through the courts, by contrast, is both extremely slow and can be extremely expensive.

12.2 Many of those proposing ways forward on standards to the Inquiry have, either as a part of

their proposed solution or as the foundation of it, proposed the creation of an alternative to the courts to settle civil cases involving the media. The establishment of an alternative dispute resolution mechanism is straightforward enough. There is nothing now to stop that happening: indeed, the Inquiry heard evidence from Sir Charles Gray in relation to Early Resolution, which has done just that, although as noted earlier it has not proved popular so far with claimants.

12.3 The issue is not how to ensure that such systems exist, but how to make them sufficiently

attractive to the press so as to encourage them to be part of a regime that provides access to them, and equally attractive to those who wish to commence proceedings against the press. The issues around civil litigation are examined in detail elsewhere in the Report298 and I do not propose to revisit them here. In this section I will simply consider the proposals that have been put forward to deal with them.

12.4 Lord Black suggests the possibility of establishing an 'arbitral arm' as a part of the model he

proposes on behalf of the industry. However, this proposition is not worked up in any detail. It is clear that the value to the industry from this proposal would come principally from the ability to require complainants to use it.

12.5 The Alternative Libel Project submitted a proposal based around a new press regulator offering a voluntary arbitration service. The key elements of their proposal are:299 p3, para 7-8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Adam- Cannon.pdf p86, lines 4-20, Philip Williams, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of- Morning-Hearing-29-February-2012.pdf p84, lines 13-18, Neil Wallis, ibid p34, lines 14-17, ibid pp29-30, lines 21-25, Commissioner Hogan-Howe, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Morning-Hearing-20-March-2012.pdf p84, para 261, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-David- Cameron-MP.pdf p98, ibid p2, para 1.1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Submission-by-Alternative-Libel- Project-English-PEN-and-Index-on-Censorship.pdf para 27, ibid

(a) "increased use of mediation and arbitration; (b) the introduction of Early Neutral Evalation;

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(c) Costs penalties for failing to use these three forms of alternative dispute resolution (d) the introduction of a hearing to determine the meaning of an alleged defamatory statement, with fixed limits on evidence, argument and costs; (e) more robust case management; (f) a change in costs rules to protect a party from having to pay the other side's costs in the event of losing, and the introduction of an overall costs cap."

12.6 Under this model the regulator could offer a mediation service, with any unsettled cases

going on to court, an adjudication service, or an arbitration service where the findings would be final.300 The Alternative Libel Project supports voluntary ADR as part of a self-regulatory scheme which should be incentivised by costs orders made by the courts.301 They take this line because compelling people to use ADR would involve some form of statutory underpinning, which is opposed by Index on Censorship and English Pen as a form of statutory regulation.302

12.7 By contrast Sir Charles Gray and Early Resolution submitted to the Inquiry a proposal founded

on a statutory adjudication scheme which both claimants and defendants are required to use. Early Resolution (ER) is a not-for-profit company set up in 2011 for the specific purpose of helping those engaged in expensive and complex libel or privacy litigation.303 The Objective of ER is to bring about a fair, rapid and cost-effective resolution of disputes involving the media.304 Where both parties agree to arbitration, ER can resolve issues including, in relation to defamation the meaning of the publication complained of, whether the words are statement of fact or comment and the quantum of any damages. In relation to libel, ER can determine whether the defendant had infringed the claimant's right to privacy, and, if so, to what extent, whether the defendant had a defence of public interest and any damages.305 The benefits of this scheme are described as its speed, privacy and cost effectiveness.306

12.8 Sir Charles' proposal would be for a statutory regulator operating mediation for breaches of its

code and statutory adjudication for disputes involving a claim for compensation.307 Under this system both claimants and defendants would be compelled to participate in the adjudication process.308

12.9 Hugh Tomlinson QC's proposal on behalf of the Media Regulation Roundtable postulated

a fully integrated regulatory and ADR regime. Under this scheme, like the ER proposal, all complaints against scheme members would go to the regulator in the first instance. A complaint in relation to a breach of the code would be the subject of mediation and could then go to a dispute resolution tribunal if the claimant was not satisfied. A complaint of a legal wrong would also start with mediation but, if that was unsuccessful, would then go to a compulsory adjudication process. Any attempt to bypass the adjudication system by going straight to court would result in the court action being stayed. The adjudicators would operate a stringent filter to prevent vexatious or hopeless cases being brought. The case would be ruled on within 28 days and could be dealt with on the papers or after an oral

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hearing. The adjudicator's ruling would not be final or binding and could be challenged in the courts.309

12.10 Mr Mosley's proposal would establish a Press Tribunal which would have jurisdiction in parallel

with the High Court in respect of media cases. The Tribunal would operate by hearings in front of a single adjudicator, at very short notice if necessary. Lawyers would not be involved unless the complainant appointed one. The adjudicator would have no power to make orders for costs other than for wasted costs, but would have the power to award damages. Because the Tribunal would be operating as a regulator as well as an adjudicator it would also have regulatory sanctions and remedies available to it.310

12.11 There is much to be said for an effective alternative dispute resolution mechanism that

must be used by both complainants and defendants. I am struck by Sir Charles' experience that complainants at present are not incentivised to use an ADR mechanism. That may well change with changes to the conditional fee agreements (CFAs). But making it more difficult for complainants to use CFAs will put the balance of power firmly back with the newspapers when it comes to court action, making an alternative route to justice of critical importance for ordinary individuals.

  1. The role of the courts

13.1 Many of the proposals presented to the Inquiry envisage a role for the courts in some way. For

the most part, this is related to the extent to which the courts could take into consideration any membership of a self-regulatory body when considering defamation and privacy cases, and the relationship between the courts and any ADR mechanism. I have considered both of these issues thoroughly in sections 5 and 12 respectively of this Chapter and I do not propose to revisit them here.

13.2 A few of the proposals envisage the courts having a role in enforcing the decisions of the

regulatory body. Lord Black's proposal on behalf of the industry relies on contacts between the regulator and the regulated for enforcement of any regulatory decisions. The only mechanism for enforcement in that situation is to seek an order from the courts for specific performance. Similarly the Media Regulation Roundtable proposal suggests that the power to apply sanctions would sit in a contract between the regulator and those regulated,311 and the regulator would therefore similarly have to rely on the courts to enforce a sanction if the other party refused to comply voluntarily. The Campaign for Broadcasting and Press freedom suggests that its proposed regulator should be able to apply to the courts for an order to enforce a ruling about publication of a correction or apology.312 Similarly Ms Harman envisages the courts enforcing fines for failure of a newspaper to comply with a ruling by a new regulatory body.313 In practice, there would be a potential enforcement role for the courts in relation to any statutory provision. In addition, the decisions and actions of any

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statutory body would be subject to judicial review unless some other appropriate appeal mechanism was specifically provided for in the statute.

  1. Costs and funding 14.1 Any new regulatory regime will have costs and those costs will have to be met from

somewhere. This gives rise to three separate questions. The first is simply affordability. How much will it cost, can adequate resources be found and, from where? The second is about adequacy. Any regulator can only be as effective as its resources allow it to be, so how can a new system ensure that the regulatory body has sufficient funding to act effectively, particularly recognising that all private and public sector budgets are under pressure in the current economic circumstances? Third, how can the regulator maintain genuine operational independence from its funding body or bodies? This encompasses the obvious point that a regulator should not be put under financial pressure in relation to any individual decision or decisions, but also that a funding body should not be able to influence the regulator's overall approach in terms of how it organises its activities, sets its priorities or approaches its duties. This section is concerned only with the costs of a regulatory function (including complaint handling) and does not include any consideration of litigation costs in relation to dispute resolution.

How much will it cost? 14.2 The only proposal presented to the Inquiry with any estimate of the cost was that of Lord

Black. He estimated that the industry proposal would cost £2.25m per annum, together with (un-estimated) one-off transitional costs.314 Lord Black made it clear in oral evidence that this was an estimate and that clarity over costs remained an important issue for the industry. However, he said:315 "As always with the industry, if there is a case that is made out that more funding is needed, then the industry has always met it in the past. I think that we would need to sit down with the new regulator when that's in place, when we have further costings, and look at these elements and how much they're going to cost, but I have no doubt that sufficient funding will be made available to the regulator to fulfil its function."

14.3 The MST helpfully calculates that the cost of the PCC and Pressbof in 2011 (just over £2m)

amounted to approximately 0.05% of copy sales revenue for nationals and 0.13% for regionals.316 The MST also helpfully provides information on the costs of other self or co- regulators in the UK and other press councils around the world, but I fear that this information is limited in value unless there is a clear comparison between the models.

14.4 I have dealt above317 with suggestions that the PCC was unable to be effective because it was

not sufficiently funded. Without being able to give a view myself on what level of funding would be appropriate for any particular model put forward I certainly would make that point that any system must be adequately funded to carry out all of its functions.

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Who should pay?

14.5 The first point to make is that none of the proposals presented to the Inquiry suggest that

complainants should directly bear any part of the cost of a new regulatory regime. The NUJ expresses the point explicitly:318 "The body needs to be free for users at point of access so that there is no financial impediment to complaints about standards. The one small bit of praise for the PCC that is constantly and justly repeated is that it is fast and free. These are attributes that need to remain in a successor regulator…..." The MediaWise Trust points out that, whilst there is no fee to access the PCC's services at present, it cannot be considered to be 'free' to do so because the costs of, for example, se- curing professional advice, or obtaining transcripts of inquests or court cases, can be signifi- cant.319 Mr Mosley argues that it is essential that a tribunal should be available to both public and media free of charge.320

14.6 Lord Black makes it clear that his proposal would be fully funded by the industry. Indeed, he

goes further and says that:321 "It would be inappropriate in a system of self regulation for the taxpayer to make any contribution through state funding, and the industry is – to the best of my understanding – wholly opposed to that."

14.7 Others agree that the industry should be responsible for the full cost of a new regulatory

system. Ms Harman considers a circulation based levy on publications.322 Mr Mosley, who also proposes the establishment of a statutory tribunal, proposes that it should be funded by a combination of fines levied on companies and:323 "A levy of 'less than 1p (possibly as little as 0.1p) for every copy distributed of any publication with a circulation exceeding 30,000."324 The Campaign for Press and Broadcasting Freedom argue for a levy on advertising revenues generated by the activities of the relevant groups. The levy would take into account the varying capacities of organisations to pay as well as overarching principles of fairness.

14.8 Mr Mosley asserts that a 1p levy on newspaper distribution would raise about £47.5m

annually. Professor Greenslade says that publishers who sign up to the system will provide funds proportionate to the size of their circulations.325 The MST proposes a levy on all large news publishing organisations of 0.05% of revenues in order to fund its proposed Backstop

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Independent Auditor.326 The self-regulatory bodies would be (transparently) funded by members' subscriptions.327

14.9 There is a significant body of opinion that state funding of some sort should be provided. This

is particularly the case where the proposals envisage some form of statutory authority or powers for the new regulatory body. This ranges from those who would like to see a mix of public and industry funding to those who advocate a fully state funded solution.

14.10 The Carnegie Trust anticipates that the new regulatory regime is likely to be significantly more

costly than the current regime and that the full cost should not be met by the industry:328 "Given the challenging economic and market conditions facing the newspaper industry at present this could have a detrimental effect on the sustainability of a number of news outlets – and this is not in the interests of citizens." The Trust therefore suggests that the industry should pay some of the increased cost of a new system but that there should also be additional public funding to support the activities of the new regulator.329 Similarly, the MediaWise Trust advocates a mix of public funds and contribu- tions from the print and broadcasting companies, saying:330 "Just because public money is involved doesn't mean that control transfers to politicians."

14.11 The NUJ tends towards the view that state funding may be the easiest way to ensure true

independence, but also canvasses the idea of charging the companies complained of a case fee, with surcharges where complaints are upheld,331 although agreeing that one would have to be very careful about frivolous complaints. In giving oral evidence to the Inquiry Professor Frost said:332 "it's certainly a possibility that if the new body became concerned that newspapers were wilfully ignoring complaints that had come to them first, that they could charge a fee, but I have to say it's not my favoured option. I don't think we would want to push that. It would be much more sensible for the new body to be funded either from the industry or from state funds or a mix of the two."

publishers joining their voluntary scheme. They also advocate the 'polluter pays' principle, suggesting that those who breached the code would be expected to make enhanced contributions. Finally, they note that it is likely that an element of state funding will also be required, in particular to cover start up and transition costs.334 Sir Louis Blom-Cooper

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envisages that 'substantial public funding'335 would be required for his vision of a statutory independent Press Commission.

14.14 It seems to me that a pragmatic solution is probably called for. It is important that the funding

for any new system of press standards regulation should be sufficient to enable the job to be done properly. The press currently makes a contribution of just over £2m a year to fund the PCC and I can certainly see no reason why they should be called up on to pay any less towards a new system. I do, however, recognise that some parts of the industry are facing significant economic and market challenges and it is important to keep the burden on companies to a realistic and appropriate minimum. I see no objection in principle to public funds being used to help establish or run any system of regulation that depends on statute, although equally there is no reason why the industry should not meet the costs of any statutory regulation in this sector as they do in many others. Ultimately this must be a matter of judgment for the Government, having regard both to what is fair and to the ability of the industry and the public finances to contribute.

Adequacy and independence

14.15 Ofcom argues that:336

"Ensuring reasonable operational independence and appropriate scope could be best achieved through the application of fixed term funding settlements." Elaborating on this point in oral evidence Mr Richards made the point that a regulatory body requires financial security in order to be truly independent of its funding body:337

"If you have established to public satisfaction, as it were, all of the things that Colette was talking about a few moments ago, in other words your governance and independence framework, that in reality is not going to go very far if actually someone is controlling the purse strings on a regular basis and in effect can infer or imply that resourcing or money may be withheld or changed in one form or another should decisions be made which are not the ones that may be preferred, and I think this is extremely important. I think a very important dimension of independence and effectiveness is financial security. You can't have an in perpetuity arrangement, and I think we suggest a multi-year period, I think we might mention somewhere three or four years, such that there is a moment when a proper exercise takes place which asks what is the necessary funding for the body? And that's about efficiency and value for money. But after that, there should not be interference with that budget, to ensure that the operational daily decision-making is not subject to any risk, any risk of threat or intimidation or anything of that kind."

14.16 The difficulty of ensuring independence of the regulator from the body funding it was made by Professor Greenslade:338

"If you just take funding, for a start. Funding is not a sort of joke thing. If you pull that lever, you constrain that lever, you control. And so I would be really worried about the

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industry funding board aspect [of Lord Black's proposal]. It seems to me it's PressBoF reborn, and I think that's a problem. I thought his phrase about independently led self-regulation was beautifully put. It's actually in his submission too. But what we're really aiming for, are we not, is independently led independent regulation."

14.17 Mr Suter proposes a model in which regulation is carried out by approved self-regulatory

organisations. In recognition of the importance of maintaining the independence of the regulator from its funding body, he suggests that one of the three essential criteria against which a self-regulatory body should be assessed should be that the operational and funding arrangements are sufficient to fulfil their role.339

14.18 I agree with Mr Richards and Professor Greenslade on this point. It is essential that any new

regulatory body should have both security and independence of funding. I agree that this will mean that fixed term funding agreements should be reached to enable the regulatory body to manage its affairs as it sees fit without undue pressure or interference from the funding body, whether the funding comes from the industry or from Government, or both.

  1. Protection and promotion of freedom of expression 15.1 A number of the submissions put to the Inquiry suggest that any new regulatory regime should

include a positive role in relation to protection and promotion of freedom of expression or freedom of the press.

15.2 Ofcom starts from the position that there should be a clear statement of the public purposes of any regulatory system, and that the first of those purposes should be:340

"a requirement to protect the rights of the press in relation to freedom of expression."

The Campaign for Press and Broadcasting Freedom proposes that the aims of its proposed Media Standards and Freedom Council should include:341

"To promote both the free dissemination of news and information in the public interest, and professional and ethical standards."

The CCMR proposes that the Board of its News Publishing Commission would have a respon- sibility to monitor and champion press freedom.342 The MST identifies six key objectives for its proposed Backstop Independent Auditor, one of which is to protect and promote reporting in the public interest.343

15.3 Mr Tomlinson QC, on behalf of the Media Regulation Roundtable, proposes a 'Media Freedom

and Standards Act', which would include a provision, modelled on s3 of the Constitutional Reform Act 2005, which would place a duty on the relevant Secretary of State and other

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Ministers of the Crown to uphold the freedom of the press and its independence from the executive.344 His suggestion is in these terms: