Recent reports in a number of national newspapers that the supporters of the PressBoF Charter have offered a significant concession by removing an industry veto on appointments to the Board of a new self-regulator raise two problems.

The first, that initially appears more important, is that the veto simply doesn’t exist in the PressBoF Charter. Instead, it is – we are told – in the Articles of Association (never made public), and so we remain unsure whether the move from ‘qualified-majority voting’ to ‘consensus’ decision-making will in practice ensure that a co-ordinated bloc could not dominate the process.

The second problem renders the first almost completely irrelevant. The concession of the ‘veto’ is an acknowledgement that a perceived lack of independence from the industry is a shortcoming of the PressBoF Charter. However, the structure of this Royal Charter is such that industry dominance – specifically the dominance of PressBoF and its rebranded replacement, the Industry Funding Body (IFB) – is so great that a slight adjustment of the appointments process to one component of the system barely registers. The lack of the veto makes no difference when industry control of the new system is achieved by other means.

Before addressing these, however, it is worth looking more closely at PressBoF itself. PressBoF currently raises the levy on members of the PCC in order to fund the self-regulatory body. It does this through liaising with the various industry representation bodies, whose representatives make up the Board alongside delegates from those newspaper groups who launched the PressBoF Charter.

These industry bodies are: the Newspaper Publishers Association (NPA) (from where PressBoF’s Chair, Lord Guy Black of the Telegraph Media Group, is drawn) and the Newspaper Society (NS), which represents local and regional papers, alongside the Scottish Newspaper Society (SNS) and the PPA (representing magazines). PressBoF also shares a director, David Newell, with both the NPA and the NS (according to information on Companies House). The NPA has no web presence beyond this rudimentary site, and PressBoF and Scottish Newspaper Society (SNS) appear to have no independent web presence whatsoever. The industry bodies have been instrumental in leading industry negotiations on press reform, post-Leveson. David Newell has been particularly vocal recently in lobbying on the virtues of the PressBoF Charter.

However, the Charter proposed by PressBoF specifies (Schedule 4, Para 2(j)) that PressBoF itself will be replaced by the IFB, which will be “the body established by the newspaper and magazine industry to collect and provide funding for the independent self-regulation of the press”.

In lieu of any more information, it would appear that the IFB will be constituted as set out in Lord Black’s First (Para 15) and Fourth (Paras 20 & 21) Witness Statements to the Leveson Inquiry, that the previous structure will largely continue.

In his report, Lord Justice Leveson singled out PressBoF as a key component of the PCC’s ‘profound lack of any fundamental or meaningful independence from the industry’, by exerting actual and de factobudgetary control over the regulator and participating in key appointments processes (Volume IV, Part J, pp1520-1522). Elsewhere, he claimed that he saw “no need for such a body to exist at all” (Volume IV, Part K, pp1761-1762).

So, taking at face value the concession of the veto offered by the industry, how much control over the regulatory system does PressBoF exert in its own Charter?

1. The Charter itself is granted to PressBoF, and the current members of PressBoF will make up the initial recognition panel (Petition, Preamble, and Article 1 of the PressBoF Charter). The recognition panel will subsequently be replaced, but a “representative of the press” agreed with PressBoF/IFB will sit on the appointments panel (Schedule 1, Para 2.3).
2. PressBoF/IFB will retain year-to-year funding of the recognition panel, rather than funding being on a longer-term basis as Leveson recommended (Article 11). This maintains the unspoken obligation to the funding body that Leveson singled out as a severe problem with the previous system and sought to replace with four or five year funding periods agreed in advance.
3. Contracts for members of the recognition panel are far less secure than Leveson specified, being reduced from 5 years to 2 years, and they can be terminated unilaterally by the Chair of the panel (Schedule 1, Paras 5 & 6).
4. The Leveson recommendation that investigations carried out by the self-regulator should be financed by a ring-fenced fund has been removed from the PressBoF Charter. Without more information, it can be assumed that this fund is now optional, if it exists at all. In that case, investigations will be dependent on agreement by the funding body for the self-regulator, which could be PressBoF/IFB according to Schedule 3, Para 1.
5. The specification that investigations should be ‘simple and credible’ has also been removed (Schedule 3, Para 18), allowing for the convoluted investigations process with scope for multiple representations on the part of newspapers proposed by Lord Black and rejected by Leveson (Volume IV, Part K, p1766). The self-regulator would, it must be stressed, only be able to levy the much-vaunted £1,000,000 fines (or any fines) after a successful investigation.
6. Finally, PressBoF/IFB will have a veto over amendments to the Charter (Article 9.2) and a veto on dissolution to the Charter (Article 10.2). In effect, the ‘triple lock’ that supporters claim to be a protection against political interference is in fact a means of ensuring the influence of PressBoF/IFB in press regulation in perpetuity.

So, far from being a noble concession to opponents and an attempt to reopen negotiations on a cross-party Charter that is backed by public opinion and the will of Parliament, the loss of a veto (if it ever existed) on appointments to the Board of the self-regulator appears somewhat insignificant in the face of the proposed influence of the industry throughout the structure of the PressBoF charter.

Gordon Ramsay is Research Fellow at the Media Standards Trust. He tweets at @g_n_ramsay.
This article was cross-posted from the LSE Media Policy Project blog.

At the heart of any debate on constitutional affairs and equalities is parliamentary democracy and the importance of respecting that democracy. We in this House have an important role. We can advise, but it is the elected House that decides. It has the authority that comes from being the elected House-the authority that comes from the people or the citizen. It is in that respect that I want to test just two measures that will be debated in Parliament over the coming weeks, although neither was specifically mentioned in the Queen’s Speech.

The first is the proposed royal charter on the press. To be frank, I thought that that debate was over. No one thought that a few weeks later we would be asked to consider a rival royal charter put together by a number of big newspapers-a rival royal charter that, in the words of the respected media analyst Claire Enders, is,

further away from what Leveson recommended than anything that has gone before.

On 18 March, we should remember, there was a debate in the other place on the Government’s royal charter proposals. Everyone agreed that it was a compromise, but it was a compromise agreed by all three major parties in Parliament. A final line had been drawn, or so we thought. The Prime Minister said:

My message to the press is now very clear: we have had the debate, now it is time to get on and make this system work.

For the Labour Party, Mr Miliband said:

Today represents a huge moment for the House. We are doing the right thing. Politics has failed to grasp this issue for decades, but today politicians have come together to put the victims first.-[Official Report, Commons, 18/3/13; cols. 636-37.]

And for the Liberal Democrats, the Deputy Prime Minister said:

Today we turn a page on the mistakes of the past and, finally, establish a proper independent watchdog to serve the British people while protecting our free press.-[Official Report, Commons, 18/3/13; col. 640.]

Therefore, there is no conceivable doubt about what the leaders of the three parties intended. They had agreed a way forward that protected the freedom of the press but which also sought to protect the public from the abuse of press power. No objective observer looking at what had been revealed by the Leveson inquiry could fairly argue that they were overreacting. The agreement followed the worst set of scandals to affect some of the national press for the past half century. The private details of phone conversations, not just of celebrities but of ordinary people, had been revealed. Great harm was done to individuals – to citizens – in this country. The scandal forced the closure of one high-circulation and profitable newspaper because of the action that had been taken. Journalists and quasi-journalists have been arrested-about 100 to date-and 24 have been charged.

As Leveson made clear, the knowledge of what was going on was not confined to one or two rogue journalists or one or two junior executives; it went much higher than that. That is the answer to those who say that as phone hacking is a criminal offence no further action is required because the criminal law will look after all that. The point is that the culture of newspapers, where phone hacking was allowed and the results published, had to be changed. It was for such reasons that the Government proposed their royal charter. Even more important, that was why the House of Commons supported them. When it came to the crucial vote on damages, 530 Members of Parliament voted in favour of the Government’s proposals and 13 voted against. The next day the Times had the headline on its front page, “Press deal divides parties”. Divides parties? A vote of 530 to 13? Just imagine the Whips going into immediate crisis talks on that, or those nice people at the National Theatre who put on that excellent play, “This House”, based on Labour’s voting problems in the 1970s, immediately asking for a sequel.

There is a much more serious point. The Government’s royal charter of March has been subject to a barrage of black propaganda from the newspapers that eventually produced their own royal charter. No issue has been too small to build up an attack. An affair between two people at the inquiry is portrayed as invalidating the whole painstaking Leveson inquiry in spite of Lord Justice Leveson’s assurance that there was no effect whatever. The poor old Hacked Off campaign is portrayed as a deeply sinister organisation with unlimited funds to do damage to the British press. If anyone had any doubts about why the Government’s course was best, we had only to look at the tactics employed by newspapers whose self-interest is utterly clear. The truth is that this has been a David and Goliath struggle, and the Goliath has been the big national newspapers, which have had the resources to place deeply misleading and untruthful advertisements in their own papers and to instruct their reporters to get any story that might cast doubt on the Government’s proposals.

I very much hope that no one in the special adviser group, which seems to surround this Government just as it did the previous one, believes that if further concessions are given to the newspapers that are proposing their own royal charter, that will be to the benefit of the Government. Bluntly, it will be seen as a defeat, and it is not healthy in any democracy for Parliament and the Government to be defeated by an outside group, however powerful that group may be. We did not allow it with the trades union barons and we should not allow it with the press barons either.

The basic question I want to ask the Government is very simple: why have we paused? Why, to use the Prime Minister’s words, are we not getting on with it? The public are on the side of the Government and will remain so as long as the issue is fought with strength and consistency. The public are not fools; they know that newspapers are not innocents dressed in white. They do not want to challenge press freedom, but they to want to challenge the blatant misuse of press power.

(Lord Fowler went on to address separate concerns about the progress of the Marriage (Same Sex Couples) Bill.)

The headline results are eye catching:

“Nearly half of all editors believe their papers’ relationship with readers had been negatively affected by the Leveson Inquiry. Just 8% of editors believe it is getting easier to get information from local public bodies. More than a quarter of local newspapers have received a threat from a public body to suspend advertising as a result of journalistic activity”.

The eye of the Times was caught and it published an article based on the survey under the headline “Local Press held to ransom after Leveson say editors“.

Details of the Editors Survey have been published in a Research-presentation [ppt].   This contains a number of pie charts and diagrams showing the percentage of editors who take different views on various important issues of the day.

What then was the metholodogy of this important survey of editors’ opinions?  This is set out in the last slide:

The NS conducted an online survey of member editors of daily and weekly regional and local newspapers in March 2013, prior to publication of the Government’s Royal Charter for press regulation. 37 editors completed an online questionnaire which was emailed to all editors listed on the NS database.

So, out of 1,100 local and regional newspaper editors, a self-selecting group of 37 answered the survey – for the statistically inclined that is 3.36%.  In other words, when the Newspaper Society tells us that 46% of editors believe that their paper’s relationship with readers has been “negatively affected” by the Leveson inquiry, we are talking about 17 editors (that is, 1.54% of the total).  Incidentally, 18 editors (that is, 49% of those surveyed) thought that the Leveson inquiry had not affected their relationship with readers) – so, even on the Newspaper Society’s own analysis the presentation of the results are misleading.

A “self selecting” survey of this kind is a classic form of “unscientific survey” (see Peter Kellner’s advice to journalist on polls) – however large the response.  The editors who responded were, presumably, those who felt strongly about the issues – the sample is not only very small it is also entirely unrepresentative.

And one further point.   The “survey” tells us that

Just eight per cent of editors said it was getting easier to get information from local public bodies, 22 per cent said it was about the same, and 70 per cent said it was getting harder.

What the Newspaper Society does not mention is that when it ran the same survey in 2010, (with a response rate of 63 out of 1,100) the headline results were even worse: in 2010 78% of editors felt that local authorities were becoming more difficult to get information out of.  So the position is, in fact improving!

The Newspaper Society has, unfortunately, consistently failed to give a fair representation of the findings of the Leveson inquiry to the public and to its members. It has consistently misunderstood and misrepresented the effect of his recommendations on the local press. This “survey” further distorts the debate. Newspaper Society members are not being well-served by their representative body.

This blog was originally posted on Inforrm. Read the original here.

Last month the Committee to Protect Journalists (CPJ) wrote to David Cameron asking him to think again about the Royal Charter approved by Parliament and arguing that authoritarian regimes around the world could see it as an excuse to introduce statutory media controls.

I wrote in reply making clear that such regimes could only find encouragement from events in Britain if those events were misinterpreted or misrepresented. I urged the CPJ to check the facts and reconsider its position.

I also spoke to the CPJ director, Joel Simon, who agreed to review the matter and respond. He has done so and his reply can be read here.

Disappointingly, he does not seem to have looked at the evidence of the British experience or grasped the consequences. Look at this sentence: ‘The media’s shortcomings – which are always present – never justify government intervention.’

That position is an attractive one, especially for journalists, but it is unsustainable. Britain’s democratically elected Parliament quite often passes laws that interfere with the press. For example, it has just passed a Defamation Act which is necessary in part because newspapers sometimes libel people, and which has lots of bearing on what the press can and can’t publish.  

Similarly legislation can be necessary to prevent the development of media monopolies, or to protect the private medical data of citizens, or to prevent breaches of the rights of children. These are justified government actions that address media shortcomings. It simply can’t be argued that the media’s shortcomings ‘never justify government intervention’.

A cheap point, you might say, but this kind of thinking – general observations that don’t survive scrutiny – crops up several times in the CPJ reply. For all the good work it does, The CPJ seems to be clinging to a principle that demonstrably is not valid in all cases, and rather than rethinking that principle as it should, it seems to be closing its eyes to the evidence.

Look at this: ‘CPJ has not been active in the debate over how to address the complex and difficult problems identified in the Leveson inquiry. But we oppose any solution that requires Parliamentary action.’ As I understand that, it means that they have not tracked events in Britain, but no matter what may have happened here the CPJ would not alter its position.

That is like a scientist refusing to modify his theory even when an experiment has clearly shown that it doesn’t always work in practice.

Britain’s recent press experiences undoubtedly make uncomfortable reading for journalists, but we can’t pretend they have not happened.

Here is how I see it, and I am a journalist. We like to think journalists are the good guys and governments the bad ones. In any contest between the two – as the CPJ says, there is often tension – we tend to give journalists the benefit of the doubt.

That’s fine as far as it goes, but we need to be clear who journalists are good for. That is to say, we have to acknowledge that journalism is only good insofar as it serves the public. Serving the interests of journalists themselves is not enough, and indeed may actually harm the public. As for journalism that serves corporate or political interests, that is usually a very bad thing.

So what happens when, in a democracy, powerful corporate groups of journalists start to operate contrary to the interests of the public? Remember that journalists are not like ordinary citizens, because they have what Rupert Murdoch once called ‘a great power for evil’ – the power to hide, to cover up and to misrepresent.

That happened in Britain. A group of newspaper companies that between them control well over 80 per cent of national sales entered into a tacit, long-term conspiracy to cover up each others’ wrongdoings.

Some of these wrongdoings were illegal – hacking, data theft, libel, intrusion – and some were grossly unethical – harassment, bullying, surveillance, distortion. What they had in common was that, on the rare occasions when journalists were caught doing them, other papers would routinely ignore, play down or defend what had happened.

They all, moreover, enjoyed the shelter of a regulator that wasn’t really a regulator, operating an ethical code of practice written exclusively by editors and rarely applied where it might seriously inconvenience powerful papers.

Add to this the extraordinary influence over politicians that these newspapers enjoyed – influence that extended to an almost routine ability to bend policy and legislation in their favour – and you have a serious problem for a democracy.

It means ordinary people are not supplied with important information they need if they are to function as effective citizens. Equally, laws are not written or applied in ways that serve the public interest. Public life is poisoned, and all the time the effects of the poison are cynically presented as good health.

The effects are not just general, which would be bad enough. Plenty of people suffer personally from press abuses and they very often have no access to legal remedy and little help from the regulator. They can’t, for obvious reasons, take their cases to the press, and some are victims because they have stood up to this abuse of power and become targets as a result.

And what about journalists themselves? The CPJ, in its mission statement, says that it ‘defends the right of journalists to report the news without fear of reprisal’. Here was a case where, if journalists sought to report the news about the activities of their own employers, they had every reason to fear reprisal from those same employers.

In this situation – and I believe that I have not exaggerated this British case study – what should people do in a democratic society?

If this problem involved corrupt banks or utility companies you might turn to the press for help, but you can’t do that here. So whom should you turn to? Your elected, representative politicians.

In Britain, that is what happened. And the politicians responded. They set up a public inquiry under an independent judge who heard the views and evidence of all interested parties, including the press. When he reported someone had to implement his recommendations and it was not going to be the press corporations themselves, which have refused to change for 70 years and are not about to do so voluntarily now. So it had to be our Parliament.

And what did they do? They took care to act together – all of the parties. And they acted with the utmost restraint, introducing a system hedged around with far better protections for the freedom of public-interest journalism than ever existed in this country before. It is a good system, one that any democrat can be proud of.

But the CPJ, which ‘has not been active in the debate over how to address the complex and difficult problems identified in the Leveson inquiry’, blithely tells us that no, a better solution can surely be found – and it apparently suggests handing the problem over to the same journalists whose failures and wrongdoing caused the crisis in the first place.

It must be comfortable and convenient for journalists to live in a world where the rights of journalists trump everything, no matter what the journalists actually do. Unlike the CPJ, we in Britain can’t afford to do that because real, ordinary people have been suffering, and so has our democracy.

And so we suggest, once again, that the CPJ looks more closely at the British experience and the lessons it teaches.

The Committee says it is worried about what it should tell dictators about events in Britain. It is surely best to follow the golden rule of journalism and try to tell the unvarnished truth.

(The CPJ notes that I alleged that its letter to David Cameron contained inaccuracies and distortions and says that, having looked, it has not found any. I will discuss this in another blog.)

Brian Cathcart is director of Hacked Off. He tweets at @BrianCathcart.

Here are some of its findings:

1. Over 2,000 articles and over one million words were published on the Inquiry between July 2011 and November 2012 – 73% of them during the period of oral hearings;

2. One viewpoint dominated evaluative coverage of the Inquiry. Of those articles that expressed a view, 76% presented one perspective;

3. That viewpoint was overwhelmingly negative. Only 18% of articles that expressed or contained a view were positive (6% contained both positive and negative views). Negative coverage increased substantially in the 100 days before publication of the Leveson Report;

4. Reporting on proposed regulatory outcomes was virtually non-existent. Of the 3% of articles that dealt substantively with plans for a new system of press regulation, 9 out of 10 were about the newspaper industry’s own plan;

5. Negative coverage usually framed the Inquiry as a potential threat to press freedom. 280 stories (64%) of those with evaluative coverage) contained descriptions of the ‘threats’ posed by press regulation. In contrast, there were 103 positive references to the Inquiry in all newspapers across the whole period of study;

6. In the 100 days prior to the publication of the report, newspaper leader articles on the Inquiry nearly all contained negative references to the Inquiry or its outcomes. Of 28 leaders in all papers published between 20 August and 27 November 2012, 23 contained only negative viewpoints on the Inquiry. Two contained no evaluative statements at all, while three contained both positive and negative viewpoints. None was purely positive.

The report is published alongside the datasets generated by the project (available here), and the MST has invited the public to analyse the data first-hand for their own research, or to comment on the content of the report.

The author of the report, Dr Gordon Neil Ramsay, said: ‘It is startling to see the lack of diversity of viewpoints in the Leveson coverage, not just in opinion pieces, but also from sources in news articles.

‘It is also striking that, while expressing a clear view of their own, few papers gave the public the information necessary to make their own minds up about the future system of regulation.’

In an attempt to undermine the Royal Charter on press regulation that has been agreed by all parties in Parliament, some of the big press corporations (Associated/NewsInt/Telegraph) have published their own rival charter, the “PressBoF” Royal Charter.                                                                                           http://www.guardian.co.uk/media/interactive/2013/apr/25/draft-alternative-royal-charter-press-regulation

On behalf of victims, Hacked Off is pleased that all political parties are sticking to the promises they made to the victims of press abuse and to the public that there will be no renegotiation (as set out here) of the Leveson-based cross-party Royal Charter.

Here we identify and explain the 12 main flaws in this charter, when it is compared with the Leveson Royal Charter.

NB To fully capture the deceit and conceit behind this scheme you need to know that “PressBoF” – the Press Standards Board of Finance is the shadowy body of top press executives that funds and dominates the failed Press Complaints Commission. It is chaired by the Tory peer, Telegraph boss and former PCC director Guy Black, whose 2012 plan for future press self-regulation was comprehensively rejected by Lord Justice Leveson. Look at the list of who is on it and play “spot the independent”.

The differences between the two options – and how the changes create the flaws set out below – can be seen here in glorious technicolor.

Those top 12 flaws in full:

The “Press Industry” Royal Charter compared to the “Victims’ & Cross-Party” Royal Charter – Top 12 problems

1.    Arbitration is optional

• •   In the ANL/NewsIntl/Telegraph Charter there is no requirement for an arbitration scheme, one of the central recommendations of the Leveson regulatory recommendations (Schedule 3, para 22)

2.    PressBoF runs the show

The Press Board of Finance (dominated by Associated/News International/Telegraph Group) is written into the Charter and has a great deal of power

• •   The Charter is granted to PressBof: (Petition and Preamble and Art 1)
• •   Members of PressBof make up the initial Recognition Panel (Art1.2)
• •   PressBof/Industry Funding Body (and trade bodies) have a veto on amendments to Charter (Art 9.2)
• •   PressBof/Industry Funding Body (and trade bodies) have a veto on dissolving the Charter (Art 10.2)
• •   PressBof can fund the Recognition Panel on a year to year, rather than a long-term basis: (Art 11)

3.    No power to direct equal place and prominence apologies/corrections

The regulator has no power to direct corrections or apologies. Instead the regulator only has the power to “require a remedy”.  The regulator will, like the current PCC, be in the position of negotiating what sort of remedial action is suitable and have no power to specify the nature of the remedy or how or where a correction or apology should be published (Schedule 3, paras15 & 16)

4.    Editors are in almost total control of the Code of Practice

It is the published policy of the press industry – which their Charter wording allows – to continue the status quo with a majority of editors on the Code Committee. The PressBoF Charter only requires 1 or 2 non-editors. This is to the exclusion of working journalists, and significantly reducing the role of the public and independent appointees or independently-appointed people (Schedule 3, para 7)

5.    There is no guarantee investigations will be funded or effective

They are not required to be ‘simple and credible’. There is no requirement for a ring-fenced investigations fund. The recognition panel cannot use its judgment to assess the effectiveness of investigations. (Schedule 3, paras 18 & deletion of 19A)

6.    The appointments process of the Recognition Panel is far less independent of the industry

• •   The Commissioner for Public Appointments (CPA) no longer has control of process of appointments to the panel (deletions in Schedule 1, para 2.1 and para 4.2).
• •   The Chair appoints the other members instead of this being done by the CPA (Schedule 1, para 2.2).
• •   One member of the (4 person) appointments committee has to be agreed with the PressBof/Industry Funding Body and will be a “representative of the press” (Schedule 1, para 2.3).
• •   Members of the recognition panel serve only 2 years not 5 years – considerably increasing turnover and ability to influence appointments (Schedule 1, para 5.2)
• •   Former editors can be appointed to the recognition panel (Schedule1, para 3.3 (a))

7.    Politicians are let back in everywhere

• •   Any and all politicians (including serving MPs) can play a role on the staff of the Recognition Panel including its director, as the total bar has been removed (see Article 7.3).
• •   The bar on Party political peers and MEPs – from the Appointments Committee and the Board of the Recognition Panel – has been removed (see Schedule1, paras 2.4 & 3.3)
• •   The bar on Party political peers, MEPs, and elected members of the devolved parliaments/assemblies – from the Board of the Regulator – has been removed (see Schedule 3, para 5)

8.     Curtailment of judgement of the Recognition Panel

• •   The Recognition Panel cannot use its judgment to see whether the regulator is independent and effective, it is bound strictly to the tick-box approach recognition criteria (Schedule 2:, para1)

9.    Whistle-blowing hotline is still not a definite recognition requirement

• •   Although the final draft now purports to include a “requirement” (Schedule 3 Para 8A) to have a whistle-blowing hotline, this would appear to be misleading. While Schedule 2 para1 says that the recognition criteria in Schedule 3 must be met, this is qualified in the Press Industry Charter by the explicit rejection of this requirement, and other Leveson recommendations, as recognition criteria in Schedule 2, para 4 of the PressBoF version.
• •   There remains not even a superficial requirement for the regulator to provide guidance on the public interest, or general advice to the public about the Code and privacy issues (Deletion of Schedule 3, paras 8A-8C in 18th March Charter).

10.  Extra barriers for bringing complaints

• •   It will be very difficult indeed for representative groups to complain (Schedule 3, para11(b)). A representative group complaint has to be a ‘significant’ code breach, there has to be ‘substantial’ public interest, and it has to qualify for ‘formal’ consideration.
• •   This is a higher hurdle even than PCC
• •   It is not needed because bars on “opinion-based”, “lobbying” or “unjustified” complaints are already excluded in both Charters (Schedule 3 para 11)

11.  Lack of Independence of the Chair of the “independent self-regulator”

The Chair of the “independent self-regulator” could even – it seems – even be

• •   a serving editor as per Schedule 3 para 5(d),
• •   a serving MP (or any politician) as per Schedule 3 para 5(e) or
• •   someone who cannot in the view of the panel act fairly and impartially (deletion of Sched 3 para 5(f).

This is due to the

• •   deletion of Schedule 3, para 5 (f) entirely – a requirement that Chair and board members are able to act fairly and impartially,
• •   deletion of Schedule 3 para 5 (d) and (e) from the criteria relating to the Chair in para 2,
• •   together with the caveat at the end of para 1 that industry involvement in making appointments to the board in line with para 5 is not a breach of para 1.
• •   The lack of clarity on whether para 4 safeguards applies to the appointment of the Chair
• •   And the only “check” on such an obvious breach of the Leveson requirements would be the Recognition Panel. However if the self-regulator is put to the Recognition Panel as soon as it is created, the Panel would be … PressBoF itself

12.  Power to exclude publishers by lack of differential subscription rules

• •   The self-regulator will be able to exclude some publishers by virtue of not being required to provide differential membership terms based on different characteristics of the publishers (deletion of words in Schedule 3, para 23). Unlike the deleted wording, the wording in Schedule 2 para 5 does not require a regulator to offer differential arrangements for different classes of members.

What about the veto on the members of the board of the regulator – said to have been dropped by the industry?

• •   We have heard that an ‘industry veto’ on appointments to the self-regulator has been ‘conceded’. That planned veto does not even appear in the PressBoF charter and it is does not therefore even make our Top 12 above. It turns out  that it was instead an “intention” of the industry (who draw up the detailed rules beyond any Charter framework) to require the decision of the appointments committee in Schedule 3 paras 4 & 5, on nominations to the board, to be by “qualified majority voting” such that the “press representative (s)” had a veto. Now, instead, it will be by consensus – which may be no better if that merely means unanimity. So they merely planned a veto in the standing orders behind the Charter but had not made it public.
• •   In any event the lack of independence of the self-regulator remains –see (7) and 11) below, as well as the nobbling of the “independent” Recognition Panel – see (2), (6) and (7) below.
• •   It would be appropriate for the press industry to publish its draft Articles of Association and Standing Orders so people can see what other anti-Leveson plans are hidden therein.

Evan Harris is Associate Director at Hacked Off. He tweets at @DrEvanHarris.

This article was revised at 13:02 on 24/05/2013 to make minor text changes to improve clarity and add a link.

Hold the front page! The newspaper bosses are making concessions – and apparently they think we should be grateful. There seems to be no limit to their vanity, and their nerve.

We have a Royal Charter that has been approved – most unusually for any political action – by every single party in Parliament. It is backed by the mass of public opinion. And it is based on the recommendations of a year-long, judge-led public inquiry of remarkable thoroughness.

And now the people who run some of our big newspaper corporations – an industry condemned by that inquiry for ‘wreaking havoc in the lives of innocent people’ – say they have made a concession towards it.

They just do not get it. They have learned nothing and they assume that they can simply con us into believing they have a right to be unaccountable, a right to mark their own homework, a right to bend British politics to their will.

And what is this concession? They have agreed not to demand a veto on who will regulate them. That’s right. They have graciously offered not to handpick the members of the independent body whose job is to ensure that – in a total breach with the past – they actually observe their own industry code of standards.

On any sensible measure this concession might get them to square one in the understanding of the idea of independence, and no further.

But it’s worse than that, because actually what they are attempting here is to assert a veto over all press regulation. They are saying that if they don’t accept it, it can’t work, and so the British public has no choice but to accept press regulation on the terms laid down by press corporations themselves – the very companies whose disgraceful activities made the Leveson inquiry necessary.

And what is their plan? Their plan is an alternative Royal Charter that will deny the public access to justice through a cheap, quick arbitration system, that will enable editors to go on making their own rules and allow them to pick and choose which complaints to consider, that will enable papers to go on burying corrections on page 94 – and above all that will not be independent, of the industry or of politicians. Unbelievably, they want to have serving politicians in charge.

In short, they want no change from the old PCC, although they may be ready to put different lipstick on the model this time.

We must call their bluff. They can not be allowed to go on abusing the British public as they have in the past, and they certainly should not be allowed to raise two fingers to the public, to Parliament and to the fair findings of the Leveson inquiry (at which their views were heard and taken account of).

The Royal Charter approved by Parliament is the way forward. Give it time, and everyone will see its great merits. It is democratic and it promises to provide effective, independent press self-regulation without any impact on freedom of expression. That is why the press barons hate it. And that is why we should all support it.

Brian Cathcart is director of Hacked Off. He tweets at @BrianCathcart.

Almost three times as many people distrust the press regulation scheme put forward by some of the newspapers as trust it, according to a new opinion poll by the YouGov organisation.

In March, a Royal Charter based on Leveson was backed by all parties in Parliament and it is due to be approved by the Privy Council in June, but last month a group of news organisations published a rival scheme.

When people were asked ‘How much confidence would you have in the alternative system proposed by newspaper publishers?’, 20% said they would have a fair amount or a lot of confidence, while 56% said they would have not much or none. The poll was commissioned by the Media Standards Trust.

The editors of the Mail and Telegraph papers and of the Murdoch press have published many articles encouraging the view that their version is better, but the poll shows they have not even convinced their own readers.

Readers of the Times were among the most opposed to the press scheme, with 73% saying they did not have confidence in it and just 20% in favour. At the Telegraph the ratio was two to one and at the Mail it was almost two to one. (At the Guardian, which has not endorsed the alternative charter scheme, the ratio was seven to one.)

And when people were asked whether, if the press bosses’ scheme was adopted, they thought there was a risk of a repeat of practices such as phone hacking and intrusion, 73% said they saw a risk and 9% did not.

The survey also sought people’s views on whether they thought that the newspaper they tended to read most should join a regulator set up under the charter scheme approved by Parliament: 52% said they wanted their paper to join and 10% did not. Again, Times readers showed a very strong preference for joining, by a ratio of almost seven to one.

The poll also clearly showed that people want to see the regulator wielding real power, with 76% in favour of it having the authority to direct a paper to print a correction or apology on the same page as the offending article – even if that meant a correction on the front page. Under the press draft scheme, the regulator would not have this power.

And 52% said they wanted the regulator to offer a fast, low-cost arbitration service (as Lord Justice Leveson recommended they must), against 18% who did not. The press scheme leaves the provision of such a service in doubt.

People had mixed views on urgency, with 38% saying it should be signed off this month (as was expected before last week’s deferral) and 37% saying it ‘should be delayed until agreement is reached with newspapers’. On this point a high figure – 25% – didn’t know which they preferred.

The full poll data are available here. The poll was reported in today’s Guardian. Will any other paper report it?

Another poll carried out by YouGov and published by the Sunday Times, also revealed views that will have disappointed some editors. Although their papers have been campaigning strongly to have the police regularly give out the names of people who are arrested, the public does not agree with this.

The data, published here, show strong public support for keeping secret the names of people arrested but not yet charged, and that support remains strong when the person has been arrested on suspicion of sexual crimes, terrorism, murder and domestic violence.

Brian Cathcart is director of Hacked Off. He tweets at @BrianCathcart.

All three party leaders promised the victims of press abuse that they would deliver a system which would meet the standards laid down by the Leveson Report.

Only one of these Royal Charters is compliant and this is the case by a mile. Victims expect all of the parties to stand by their leaders’ promises.

Press reform has been overdue for decades. If there is another delay for a further month, that can be borne.

What is the reason for the delay?

Hacked Off understands that the Government have received legal advice that, in order to avoid being judicially reviewed, before the cross-party Leveson charter can be signed at Privy Council, they must formally consider the Royal Charter prepared by News International, Associated Newspapers and the Telegraph Group.

Is the Government still committed to the cross-party charter?

A government source has told Hacked Off: “The cross-party Royal Charter meets the Leveson principles, has been agreed by the three main political parties, and has been approved by Parliament. The Government’s view on the cross-party Royal Charter has not changed. We believe it would put in place a system of independent self-regulation of the press. It would provide victims of press excesses, like the McCanns and the Dowlers, with real redress while protecting the freedom of the press.”

What is the timetable from here?

“Pre-publication” of the press’s charter on the Privy Council website is expected to continue until 24th May. This is not a formal consultation process. From 24th May to the 21st June, the DCMS is expected to carry out a formal consideration of the press charter. In order to proceed to the next stage, the press version will then require the approval of all three parties. Assuming that (any of) the three parties keep their promise to victims to provide a Leveson-compliant charter, the Government will have to reject the press charter at this stage. When the press charter is rejected, the cross-party Leveson charter will be put to the Privy Council. This is expected to happen soon after 21st June.

Can the press version of the charter become “Leveson compliant”?

No. It is impossible for the press charter to meet the Leveson criteria, as it is deficient in at least 20 ways. See this blog for some examples.

On this basis it is easy to see why hard-pressed local editors might object to the Royal Charter – because the body that claims to promote their interests is giving them such a biased picture. Below is the briefing, with our comments in bold. 

Why the industry is opposed to the March 18^th Royal Charter provisions?

The Royal Charter framework would not be independent self regulation in any sense of the word. The Deputy Prime Minister has said that ‘the regional and local press… must not pay the price for a problem they did not create’. The proposals extract an unacceptably high price for regional and local newspapers, including huge financial penalties for publishers who chose to be outside the system and an arbitration service which would open the floodgates to compensation claims.

These claims about an ‘unacceptably high price’, ‘huge financial penalties’ and opening ‘the floodgates of compensation claims’ are wrong, as is explained below.

Statutory Underpinning

The principle that a free press should not be subject to Parliamentary statute has been conceded.

There is no principle that places the press beyond the reach of statute. If there was it was violated by the Human Rights Act, in which the industry sought protections specifically for the press. And by the Data Protection Act, where again the press is singled out for special treatment – welcomed by the press. And by the Contempt of Court Act, the recent Defamation Act and many more Acts that have direct impact on the press. In a democracy the ‘free press’, like everyone else, is subject to the rule of law.

The Royal Charter will be underpinned by statutory provisions locking in the Charter and recognition criteria [and] making it extremely hard for them to be altered.

The reason it should be hard to alter the Charter is to protect the press from political interference. It would not have been consistent with press freedom to leave the Charter open to easy meddling by the Privy Council, which is controlled by ministers and meets in private.

This means that the industry does not have the flexibility to develop a system of independent self-regulation that works for the regional and local newspaper industry.

The Charter leaves ample flexibility for this, but total flexibility can’t be an option since that would imply the flexibility to do nothing or the flexibility to create something Draconian. The public expects to see a regulator or regulators that are effective and also independent, both of the politicians and of editors and proprietors. This is precisely what Leveson recommended and what the Charter is set up to deliver.

Exemplary Damages

The system will be underpinned by statutory penalty clauses.

They are not penalty clauses but incentives to membership. 

Exemplary damages and costs in libel and other cases – which could run to hundreds of thousands of pounds – could be imposed by a court to penalise those publishers who do not sign up to an “approved regulator”.

On exemplary damages, the clauses actually provide protection – a statutory immunity, in fact – for newspapers that join the regulator, and (for libel awards) they do not increase the likelihood of such damages if you are outside the regulator. Such damages have long been available to judges where the defendant’s conduct was calculated to make a profit. Now privacy and harassment claims will also be eligible, but the threshold is, if anything, higher – deliberately or recklessly disregarding the rights of others, and where the conduct is ‘outrageous’. Such damages will continue to be very rare – they have not been awarded in a single media case in this century.

On costs, again the Charter gives protection to newspapers. If a paper participates in a regulator offering a cheap, quick and fair arbitration system and a claimant insists on taking that paper to court instead, the paper will generally not have to pay legal costs, whatever the verdict. That is good news for newspapers. It follows, however, that if a newspaper stays outside and denies a claimant the option of arbitration, it is the paper that will generally pay all costs, win or lose. That is fair.  

This is likely to contravene European Human Rights law and will have a chilling impact on freedom of expression.

Most legal opinion, including that relied on by Government, says there is no breach of human rights law. But if there is, then newspapers that object will be able to overturn all these measures, so there is presumably no reason for them to be concerned and no reason for them to be chilled. 

It impacts on newspapers, magazines and websites (but not broadcasters). Furthermore, even where Publishers sign up to an “approved regulator” they are not guaranteed total protection from these measures.

This is wrong. Where publishers join a recognised self-regulator they are guaranteed total protection from exemplary damages, except where a court finds that the self-regulator has behaved over the matter in a ‘manifestly irrational’ way, which is a very high test. And the cost penalties do not apply to those signed up, while the cost protections do apply. Newspapers that join a recognised self-regulator can of course still be found liable for ordinary damages and costs in the arbitral scheme, but this should be cheaper than going to court.

Arbitration Service

The Charter requires the establishment of an arbitration service for civil legal claims which will be free for complainants to use. This will inevitably lead to many thousands of legal claims against regional and local publishers and significant legal costs.

No evidence is offered to show that any extra claims will be made, let alone ‘many thousands’, nor is there any reason to believe such things. To be heard by the arbitrator, complainants will have to show that their cases would be capable of going to court, in other words that their legal rights have been breached. Why would there suddenly be ‘many thousands’ of such cases where there were not before? Lord Justice Leveson praised regional and local papers for their law-abiding ways. Was he wrong?

Claims that are currently resolved easily and without cost to either side could become compensation claims. The current code complaints system would be sidelined with the majority of complainants seeking money.

This assumes that a very large number of complaints to the PCC are not just about code breaches (e.g. accuracy) but are capable of being legal actions, meaning that the complainants’ civil rights have been breached. It also assumes that complainants will want to go to arbitration, even though for years the industry has asserted that most people merely want the record put straight. The Newspaper Society had produced no evidence to show that most complainants have any grounds for seeking compensation, nor that they would choose to do so if they did. 

Funding

The regulatory body must agree a funding system with the industry so that it can fulfil its wide and extensive obligations. Inevitably the regulatory body will dictate its funding needs to the industry.

Here is what the Charter says: ‘Funding for the system should be settled in agreement between the industry and the Board, taking into account the cost of fulfilling the obligations of the regulator and the commercial pressures on the industry.’ 

Powers

These will be greater than the courts and more extensive than any press regulator in the western world.

This is mere rhetoric. 

The regulator will have powers to award fines of up to £1 million.

It will, though the Charter states ‘up to 1% of turnover attributable to the publication concerned with a maximum of £1million’. So small publications can never face anything like £1million fines. And whose idea were £1m fines? They were first proposed by Lord Black and Lord Hunt, representing the press industry, in their evidence to the Leveson Inquiry.

It will have powers to hear third party and group complaints (e.g. from Pressure Groups, Local Authorities and others).

The PCC is able to hear third party complaints at present and sometimes does so. The Charter brings clarity to this. The Charter explicitly gives the regulator ‘discretion not to look at complaints if they feel that the complaint is without justification, is an attempt to argue a point of opinion rather than a standards code breach, or is simply an attempt to lobby’. So there is plenty of protection from frivolous or vexatious complainants.

It will have powers to require demanding reporting and audit functions relating to code compliance and the recording and documentation of complaints.

Yes, under the new system news publishers will have to have internal procedures in place to protect the public from abuse. This is a good thing, and exactly what newspapers would expect of any other industry they were writing about.

The regulator can direct front page apologies and corrections.

Yes, where they are appropriate. A paper that harms someone with a false report on its front page should not be allowed to tuck the correction away inside. Again this is not something that journalists would tolerate in any other industry they were reporting on.

There will be a heavy compliance cost on publishers in terms of professional advice and expertise.

No evidence is given to support this. How many regional and local papers currently have no compliance and legal advice? For their own protection and the public’s they should have access to these. It is surely essential to conducting any modern business and there is no reason it should be especially expensive. (And remember, membership of the regulator will reduce some costs and some risks.)

Editorial Code

The Editorial Code Committee must in future be appointed by the independent Board and the Code approved by the independent Board. Only a third of the Code Committee will be editors. Currently, the Code Committee is appointed by the industry and is composed of editors. This has been the cornerstone of the self regulatory system that works for regional and local papers. The Editors’ Code will no longer be an Editors’ Code.

The Charter says that one third of the code committee will be editors and one third will be other working journalists (with special provision made to include regional and local journalists). Do editors object so strongly to cooperating with working journalists? Is it editors alone who understand the ethical requirements of good journalism?

What happens next?

Regional and local newspapers have been cut out of negotiations and consultations with the Government over the March 18^th Royal Charter and Recognition Scheme.

Regional and local papers were able to give evidence at length to the Leveson Inquiry, where their record attracted praise. The judge’s recommendations were fair and balanced and on any rational assessment generous to the press. The Charter embodies those recommendations. The regional and local press had many meetings with the political parties and attended cross-party talks in March. And if regional and local papers were cut out of all negotiations, why did Paul Vickers of Trinity Mirror say in February that he had been engaged in ‘intensive talks’? The Labour, Lib Dem and Conservative parties say they met the regional and national press several times as they were formulating their Charter versions, including the LibDem/Labour draft that was the basis for the final document approved by Parliament.

The Royal Charter and Recognition Scheme contravene the Leveson Report in fundamental ways. The Leveson Report recommended that the new regulatory model “should not provide an added burden to the regional and local press.” It said that “local, high-quality and trusted newspapers are good for our communities, our identity and our democracy and play an important social role” and that their “contribution to local life is truly without parallel.” It said the Government should “look urgently as what action it might be able take to help safeguard the ongoing viability of this much valued and important part of the British press.” The Government should honour these recommendations and not just pay lip service to them.

The Royal Charter not only provides for fair and differential terms for different types of publisher but requires an approved self-regulator to deliver this. (Curiously, this requirement was opposed by national press representatives.) No doubt, when they come to negotiating their share of the costs of the new system, regional and local newspapers will strike a hard bargain with the national newspapers whose conduct did so much to make change essential. Paul Dacre, editor of the Daily Mail, endorsed in a speech at the Leveson Inquiry the principle that ‘the polluter pays’. National papers could be held to that.

The Government has rejected calls by the industry to discuss the economic impact of their proposals on the regional and local newspaper industry and their impact on editorial and press freedoms and the freedom to publish.

These issues were discussed, in some cases at exhaustive length, at Lord Justice Leveson’s public inquiry, and those discussions informed his careful and balanced recommendations. 

The Royal Charter proposals should be discussed with the industry before they are presented to the Queen.

The Charter embodies the Leveson recommendations and these were discussed with the industry – including the regional press – by politicians in Mr Vickers’s ‘intensive talks’ from January to March.

This Government is misleading in making out that regional and local newspapers will under their Royal Charter proposals have flexibility to set up their own regulatory system which overcomes the substantial issues of concern to regional and local newspapers summarised in this note.

Regional and local papers are entitled to set up their own self-regulator under the Charter. Has the Newspaper Society costed such an initiative? Does it have evidence for what it says? 

The industry could set up its own regional and local newspaper regulatory body and apply for recognition under the Royal Charter if the Royal Charter is granted by the Queen and after the Recognition Panel is established (it would not be until September). However, no regulatory body will obtain recognition unless it fulfils the recognition criteria which are enshrined in the Charter. These criteria are common to all (nationals, regionals, locals, magazines, and news websites) and a regional and local newspaper regulator would have to comply with all the provisions, including the establishment of a free arbitration service for complainants with the power to award compensation.

Again, where is the evidence that complying with the recognition criteria would be prohibitively expensive? And that reference to ‘a free arbitration service for complainants’ is misleading. It may give the impression to local newspaper editors that members of the public can take a case through the arbitration process without paying anything, which in turn would imply that the whole bill would fall to newspapers. This is wrong. It was not Leveson’s proposal, nor is it in the Charter. Under the Charter arbitration is free for access, meaning there is no up-front charge to the plaintiff, but once the process is under way a losing claimant will have to cover his or her costs and, in frivolous or vexatious cases, pay the newspapers’ costs. It happens that the costs – for both sides – will be far lower than court costs.