Spinning in the Last Chance Saloon – Why the “Son of PCC” regulator fails all the tests – Part 2

By Evan Harris

In part one we looked at the rhetoric of the press release issued by newspaper proprietors. Here is an analysis of their claims to have implemented Leveson in their scheme. Again those people who seek to oversee journalistic ethics are guilty of distortion, misrepresentation and worse.

The press release states

The Independent Press Standards Organisation will be a complete break with the past, and will deliver all the key Leveson recommendations:

This is untrue. It is PCC Mark 2 – as has been set out in these detailed analyses of the criteria it needs to fulfil. It is essentially the same as the Hunt-Black Plan which the press offered to Leveson and both he and the Prime Minister rejected as inadequate.

  • A majority of independent members at every level, and no industry veto on appointments (Articles of Association 22,26,27).

This is not true:

1)                              The Code Committee will not – despite Leveson’s recommendation (paragraph 60 of his report’s executive summary) have a majority of independent members,

2)                              Leveson did not merely recommend majority of lay (“independent”) members – he also laid out detailed criteria for independent appointment of the board relating to true independence from the industry. It was not enough, he made clear, just to have “lay members”.

3)                              Leveson demanded independence from politicians. He barred not just MPs, but party political peers (who previously ran the PCC and PressBoF), MEPs, and elected members of the devolved parliaments/assemblies from the Board of the Regulator. The PressBoF scheme permits them (see Schedule 3, para 5 of the PressBoF Royal Charter)

4)       PressBoF say that requirement that the decision of the appointments committee on nominations to the board, be unanimous (such that a single “press representative” had a veto) is now, instead, that it be by consensus. According to the Times on 9th July, this means that an appointment can be blocked – by opposition from both the press industry representatives on the appointments committee. That is still an industry veto.

This is misleading because

1) The fines are capped at 1% of turnover of the publication which is thus almost always less than £1m.

2) Fines only apply when the Code is found to have been breached after an investigation. If the writing of the Code is retained exclusively with the editors it can be watered down.

3) Fines only apply when the Code is found to have been breached after an investigation. The lack of independence of the board in respect of finance and appointment will lead to a repeat of the PCC unwillingness to properly investigate, find breaches or take tough measures.

4) Fines only apply when the Code is found to have been breached after an investigation. Unless investigations are sensible and credible this will never happen. See here for what the investigations system proposed by pressBoF is. (link)

5) Unless this is a Leveson-compliant regulator (when cost penalties apply) there are few deterrents to those who are found to have breached the code from walking out of the regulator – the Desmond problem.

  • Upfront corrections and adjudications – whether editors like it or not. (Regulations 18-22).

Not true.

1) A regulator need not (under the pressBoF Royal Charter) and, under the IPSO model, does not have the power to direct the prominence of apologies or corrections. In fact there is no mention of apologies whatsoever. The complaints system is even more convoluted and drawn out than the PCC. This can be seen from Regulations 13-22 – see below at foot of this paper.

  • A standards and compliance arm with investigative powers to call editors to account. (Regulations 45-68).

This is a weaker version than Leveson proposed. There is no guarantee investigations will be funded or effective.  They are not required by the PressBof Royal Charter, to be ‘simple and credible’, as Leveson insisted they must be. 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 from the 18th March Royal Charter)

The investigations process appears, on first read through, to be the same as the one submitted by Lord Black to Leveson and rejected by the judge. Nor is there any reference in the two documents (regulations and Articles) to a ring-fenced enforcement fund.

Fines appear to have to follow an investigation (see Financial Sanctions Guidance 2.1: “Subject  to  paragraph  2.2  below,  the  Trust  Board  shall  have  the  power  to  fine  a Regulated  Entity  up  to  1%  of  its  UK  annual  turnover relating  to  the  publication(s) (both print and electronic) which is/are, following a Standards Investigation, found to have committed a Systemic Failure (as defined in the Regulations”).

But if investigations aren’t funded, and they are neither simple nor credible, then it is unlikely anyone will ever be fined. There are 7 barriers to a simple and credible investigations system – set out here

  • An Arbitration Service to offer a speedy and inexpensive alternative to the libel courts, subject to the successful conclusion of a pilot scheme (Scheme Membership Agreement 5.4).

There is no certainty of any such scheme which was a requirement of Leveson, and it is not proposed to be a free service for founded complaints, regardless of whether complainants can afford a fee to make a claim.

If this ever happens, the main problem is that there is no conscience clause in journalists’ contracts which Leveson urged the regulator to consider requiring and which the NUJ have campaigned for. But PressBoF have insisted it is not included.

  • A warning service to alert the press, and other media such as broadcasters, when members of the public make it clear that they do not wish to be the subject of media attention.

 

This already exists in the PCC. It is not very effective.

 

But is that it? There were over 30 requirements in the Leveson Report. It is very telling that the press have not issued a score-card on how many they have met, or agreed to an independent assessment of it.

 

The following additional breaches of Leveson are likely to arise in the IPSO scheme (references are to requirements in the 18 March Royal Charter and how it is changed by the PressBoF version)

 

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)

 

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 (Schedule 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

 

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)

In summary then any claim that the PressBof “Son of PCC” actually implements the Leveson Report is an insult to the intelligence of the public.

 

Evan Harris is Associate Director of Hacked Off.

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1 Comment

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Robert Reynoldsreply
July 11, 2013 at 6:16 am

Thank you for your continued attention to detail – regrettably so necessary – against what amounts to a conspiracy of deception, proof if further proof were needed that our press owners are amongst their own worst enemies, and ours.

Not content with the privileges of ownership, of service and profit, not content with their consequential freedom to speak truth unto power, nor with their ability to fund investigation in depth of malpractice in all spheres, even of government, our ‘press barons’ have in competition become obligate parasites, with greedy carelessness of ordinary decency, hiding behind misconceptions as to democratic role, in breach of ethical duty to educate.

Few will doubt there is a sickness at the heart of ‘British parliamentary democracy’, with respect to understanding and outcomes, a democratic deficit of which the press – and its apparently privileged owners – are amongst victims as well as agents, educationally deprived, trapped in fear and greed. Responsibility is shared with readers for the exploitation of interest in entertainment, in sport and gossip and satirical reporting. Faithful support of the good and the passable has enabled a too often lazy and shocking indulgence of the boorish and mendacious, with exclusion of genuine democratic perspective.

Responsibility shared is, with respect to the press, not responsibility lessened. Even if there must be sympathy for all with stakes in the print-media, threatened by a fast-moving technological media-revolution, the aim of profitable independence cannot be the excuse for endless dereliction of ethical duties, still less for activity ‘on the wrong side’ of the issue between suppressed hopes of equal partnership and vain hoes of trickle-down for all in the service of Mammon.

The time may be approaching for deeper reform, for journalists – as individuals and as ‘stables’ – to vie for following and so for place and prominence in a single ‘UK Times’, perhaps established by Royal Charter, with assured representation of views and arguments in politics across a decent spectrum, and with freedom to consider well ‘the public interest’ in the publication of life-stories, ‘in conscience’ balancing the varieties of ‘interest’ amongst the public, and the levels of privacy to which the subjects of interest might be entitled.

Sadly, our barons are far from engaging in thoughts of press design to meet public purposes, though all the more urgent such thoughts if – as they imply – the funding of truly effective self-regulation might be the last straw on a falling camel’s back. Suspicion must be that commercial and political greed explain the on-going attempt to outrun public support for Hacked Off, for Leveson, and for the All-Party Charter.

On the backs of the newspaper-reading public who meet cover-prices, and of the wider public who subsidise ‘price accessibility’ from advertising revenue and from the intangibles of political context reward, our press barons enjoy riches and political clout that make any cost ‘probably worthwhile’ in the delay or dilution of ‘democratic change’.

For both sides, democracy and kleptocracy, ‘all to play for’.

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