Fullrunner

Thursday 12 May 2011

Self-regulation: Rusbridger v. Dacre/Black

The first thing you’ll notice when you read the annual report of the Press Board of Finance is that it looks like a restaurant menu, from somewhere like the Savoy Grill in pre-Gordon Ramsay days.

The second notable thing is the anachronistic language, which reads like a cross between a press statement from Buckingham Palace and a letter to shareholders written by the CEO of a British company in the 1950s.

Like the contents of a time capsule, the Press Board’s annual report is shockingly odd, alarmingly antique. It’s a reminder that the modernizing corporatism of the Blair-Brown years didn’t quite reach into every nook and cranny of public life.

Little known and even less well understood, The Press Board of Finance (or PressBof as it styles itself) is the shadowy club of newspaper and magazine executives that finances the Press Complaints Commission by levying fees on publishers.

But there’s more to PressBof than the £2m of membership fees it collects annually. This, after all, is the cabal — self-regulating and apparently self-perpetuating — that writes the rules enforced by the Press Complaints Commission.

Paul Dacre, editor in chief of Associated Newspapers, runs PressBof’s Code of Practice Committee, which, in the words of PressBof’s annual report, keeps the “foundation stone” of the self-regulatory system “fresh, responsive and relevant”. (Quite how a “foundation stone” can be made “responsive” remains something of a mystery.)

There’s also the role of PressBof’s chairman Guy Black (or Baron Black of Brentwood as he became known last year) to consider. Fiercely bright (a double-first from Peterhouse) and absurdly well-connected, Black is probably Fleet Street’s ultimate insider.

He sits on the board at Telegraph Media Group, worked as the Tories’ director of communications in opposition, goes on holiday with Rebekah Brooks and is the civil partner of Mark Bolland, the former PCC director and ex-aide to Prince Charles.

Lord Black’s modus operandi calls to mind an early 19th century Tory peer at the controls of a radar-evading stealth fighter. PressBOF doesn’t maintain its own web site. Invisible and largely mute in public, Black doesn’t give interviews (or rather, he does, but at the rate of one per decade). Although he sits at the apex of the industry’s self-regulatory structure, one-way communication with the British public, via PressBOF’s annual report, seems to be his preference.

This, it has to be said, resembles the way in which the PCC has conducted itself. If you doubt this, take a look at the regulator’s own “governance review” (published in July 2010). Among other things, this review recommended that the PCC should:

  • “publicly define its purpose”
  • scrutinize its own performance more effectively
  • bring in more editors to work with it
  • “draw more heavily” on the experience of “lay members”
  • “develop thinking in challenging areas of policy”
  • start making appointments on the basis of “consistent rules”
  • publish “consistent, accessible, data that allows easier analysis and assessment of the PCC’s work by the public”.

Most of recommendations involve transparency, trust and accountability. The report’s rather damaging implication is that the PCC hasn’t been doing enough in any of these areas.

In finance, there’s Black Scholes equation, which will forever be associated with light-touch regulation that culminated in the disasters of 2008. When it comes to press self-regulation, it’s tempting to suggest the existence of a Black-Dacre equation.

Dacre’s views about self-regulation, for example, begin and end with the notion that the “public shaming” of “those who have offended public standards of decency” is “a vital element in defending. . . acceptable standards of social behaviour”. The law, and therefore press regulation, he argues, should support this aim, rather than remain “neutral”.

Rather like PressBOF’s annual reports, Mr Dacre’s position is fairly antique. It seems to jar badly, for example, with the views of a majority of Britons, who believe that information about anyone’s sexuality, health, family life, personal correspondence or finances should remain “essentially” private.

Dacre also takes a dim view of judge-made privacy law. In particular, he has harsh words for Mr Justice Eady, whose “arrogant and amoral” privacy judgements are allowing “the corrupt and the crooked to sleep easily in their beds”. Lord Black agrees. PressBof’s 2009-2010 annual report condemns the “muddled” application of the Human Rights Act by the courts, alleging judicial subterfuge in creating a “back-door privacy law”. Judges, it seems, have become a major inconvenience for Dacre and Black. As Dacre puts it: “Our problem, of course, is that the [PCC’s] Code cannot sit above the law.”

Lord Black doesn’t like the idea that the PCC should impose fines, either. This proposal, made by the Commons Culture, Media and Sport Committee in early 2010, would, he argues, “slow the complaints process down and make resolution. . . much more difficult.” Black rejects the Select Committee’s argument that the PCC is “toothless”. It has “real bite”, he writes. This, we’re told, is why it has “done so much to raise standards of reporting since it was established in 1991”.

Behind all of this sits an aggressive defence of the tabloid business model, which is being threatened by both privacy law and disaggregation on the web. As Dacre puts it, increasing regulation is “undermining the ability of mass-circulation newspapers to sell newspapers in an ever more difficult market”. Prying into the private lives of the rich and famous isn’t just commercially necessary; it also supports healthy democratic debate:

“if mass-circulation newspapers, which also devote considerable space to reporting and analysis of public affairs, don’t have the freedom to write about scandal, I doubt whether they will retain their mass circulations with the obvious worrying implications for the democratic process.”

This, then, is the Black-Dacre equation. It involves slow incremental change (what else can be expected of a “foundation stone”?) and trenchant opposition to the ideas of the judiciary and Parliament — all in the name of a moral society and a healthy democracy. This argument is reinforced by the suggestion that anyone who wants to take on PressBof will find their task complicated by the influence that Lord Black wields at the very highest circles.

For if you want something fixed in the newspaper industry, Black is your man. The Scarlet Pimpernel of high-level lobbying, his influence is reputed to run deep and wide. Indeed, this week, Roy Greenslade suggested he might have been responsible for David Cameron’s apparently warm words about the Press Complaints Commission, which were uttered in the face of much public scepticism.

“I sense that there’s still more to be done to recognise that actually the Press Complaints Commission has come on a lot in recent years, and we should be working with that organisation to make sure that people get the protection that they need…. while still having a free and vibrant press.”

Significantly, Cameron said this in the same interview: “We don’t want statutory regulation of the press.”

Neither does Alan Rusbridger, the editor-in-chief of The Guardian, who this week delivered the Anthony Sampson lecture at City University. Ostensibly, Rusbridger’s theme was libel reform. Privacy cropped up just as frequently. But the theme that really got the audience going was self-regulation.

Rusbridger’s references to the PCC’s handling of the phone hacking scandal dripped with sarcasm. His views about self-regulation are very different from the Black-Dacre equation. They haven’t changed much, either. Indeed, two years ago, Rusbridger resigned from the Paul Dacre’s Code Of Practice Committee, criticizing “a self-regulation system that’s finding nothing out and has no teeth”.

On Tuesday night at City University, the laughter from the floor that greeted Rusbridger’s skewering of the PCC’s apparently compromised manoeuverings on phone hacking struck me as significant.

Rusbridger’s take on self-regulation, it seems, isn’t a minority view. If journalists have started sneering at the PCC, the game must surely be up. On the other hand, however, there are Lord Black, Mr Dacre and Mr Cameron to consider. None of them seem to think that there’s much wrong with the current regime.

So what will come next, once the Met’s investigation of News International reaches a conclusion? You’d have to bet on some kind of public inquiry. In addition, Christopher Graham, the Information Commissioner, talks of “a regulatory vacuum” when it comes to defining what journalists can and cannot do in pursuit of stories. New legislation may be required, he suggests.

There’s also the prospect that Parliament may decide to address the question of judge-made privacy law. Where might this lead? In his lecture, Rusbridger addressed the four options advanced by the media QC Hugh Tomlinson:

(1) Active steps could be taken to abolish the law of privacy and return to the pre-Human Rights Act position.

(2) The current “judge made” law of privacy could be replaced by a new “statutory tort” of invasion of privacy.

(3) A special “privacy regime” for the media could be established under a statutory regulator.

(4) “Steady as she goes” – the law of privacy could be left to develop in the current way – by the judges on the basis of the Article 8 and Article 10 case law.

Here’s how Tomlinson concludes his argument, in direct opposition to the Prime Minister (and, one must assume, PressBof, too):

Assuming that the United Kingdom remains party to the European Convention on Human Rights, the only alternative to abdicating responsibility for the development of privacy law to the Strasbourg judges is for the press and Parliament finally to accept that privacy is a proper subject for legislation.

. . .

A statutory regulator would have the legitimacy and the powers which the PCC lacks and would serve the interest of both public and media by providing quick and effective resolution of complaints.

Or as Rusbridger puts it:

Tomlinson comes down on the side of a statutory regulator, with the powers to award compensation, order the publication of apologies or corrections and grant injunctions.

It’s telling that he doesn’t even mention self-regulation.

By contrast, Rusbridger argued for giving self-regulation a second chance. He foresees a root-and-branch reform, including dramatically expanded resources. As for that “foundation stone” protected so lovingly by Paul Dacre, you get the impression that Rusbridger wouldn’t mind going at it with a hammer and chisel.

How aggressively would a Rusbridger-style PCC pursue miscreants? Fairly aggressively if the precedents cited last night are a reliable guide.

In particular, Rusbridger seems taken with the way in which the now-defunct Independent Television Commission took Carlton (now part of ITV) to the cleaners in 1998 after it screened The Connection, a documentary about the drugs trade that breached several aspects of the ITC’s Programme Code.

As Rusbridger recalls it, the ITC “sent in” Michael Beloff, a prominent barrister, to investigate. (This doesn’t seem to be entirely the case: as the ITC’s annual report for 1998 describes it, Carlton “established its own enquiry”, retaining Beloff and an unnamed former controller of editorial policy at the BBC for a six month investigation. The ITC waited for the results of Carllton’s report, which were damning, and then proceeded to fine Carlton £2m.)

Rusbridger argued for applying a similar logic in situations where large-scale problems emerge, as with phone hacking. Appoint an independent barrister, give them all of the evidence (including police files), and wait for a conclusion to emerge. A Rusbridger-style PCC would have the power to fine News International a large amount of money, which could, in theory, cover the cost of the investigation itself.

From the floor, Steve Barnett, professor of communications at the University of Westminster, offered a stern response, arguing that an approach like this would face significant problems. Self-regulation, Barnett argued, will only ever be as tough as the industry wants it to be (in other words, not very tough at all).

In suggesting this, Barnett is merely reflecting widespread scepticism. For even as Lord Black whispers in David Cameron’s ear, hoping keep the pace of change glacial, judges continue to make privacy law on the fly, MPs argue for fines and the Information Commissioner suggests that new laws might be required.

The dogs might bark, but the caravan has moved on: the view is now widespread that self-regulation is an exercise in butt-covering, undertaken by an industry that feels able to bully MPs with impunity. The Phone Hacking Review Committee set up by Peta Buscombe, the chairman of the PCC, will need to cover a lot of ground if it’s to challenge this perception successfully.

David Cameron — who ran Carlton’s PR during the 1997 ITC investigation — seems to understand the image problem that results in journalists guffawing at the compromised self-regulation regime that oversees their own industry. Rewind the PM’s words on the Today programme one more time:

I sense that there’s still more to be done to recognise that actually the Press Complaints Commission has come on a lot in recent years. . .

More to be done? It’s certainly possible to read this as a veiled criticism of Lord Black’s preference for one-way communication and behind the scenes influence-peddling.

But Cameron’s words may also be a warning. Statutory regulation may not become a reality this time around. But as the tabloid business model is progressively undermined by privacy law and web economics, triggering a need for more and more aggressive sensationalism, its time may yet come. Alan Rusbridger, I suspect, knows this only too well.

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