Archive for May, 2014

The Challenges facing Sir Alan Moses

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This post was originally published at the Huffington Post on 9th May 2014.

In his short statement accepting his appointment as Chair of IPSO (the ‘Independent Press Standards Organisation‘), Sir Alan Moses uses the word ‘independent’ or ‘independence’ five times. ‘The public and the press are entitled to a successful system of independent regulation‘ he says.

He then refers to those who have voiced concerns about the ability of IPSO to be independent. In response he points to his career, which he says has been characterized by ‘independent mind and independent judgment‘. ‘I do not‘, he says, ‘intend to do away with that independence now‘.

There is no reason to doubt Sir Alan’s sincerity, nor his personal desire to act independently. But it will be fascinating to see how he tries to put his personal independence into practice from a position where the independence and freedom to manoeuvre is so seriously compromised and constrained before he has even stepped over the threshold.

IPSO has been structured in such a way that few significant decisions can be taken by the Chair, or his Board, without first consulting the industry. Sir Alan will not be expected to determine IPSO’s regulations or structure, these have already been set by the industry, and will be maintained by the industry body behind IPSO – the Regulatory Funding Company (RFC).

The RFC, the successor to PressBoF, is the power behind the whole IPSO system. Its role goes far beyond funding; it stretches into appointments, regulations, investigations, sanctions, arbitration, and the Code. Whatever the Chair’s personal convictions, his powers are fundamentally circumscribed.

Nor is Moses the first judge to believe he can bring his judicial experience and previous independence to bear on press self-regulation, only to be frustrated once in position (see Roy Greenslade).

If Sir Alan wants to avoid the frustrations of his predecessors and does not want to be directed by the principal funders of IPSO (the biggest news publishers), then he will need to test his authority and independence of action early on. Right now he has more leverage then he will ever have later.

So what should Sir Alan do? He could start by trying to:

Free IPSO from direct financial control by the industry

‘It is also clear to me that the funding made available to the PCC is barely sufficient to enable it to conduct its complaints handling functions effectively. Further, in so limiting the funding available to the PCC, the organisation was unable to exercise other functions that might be properly expected of a regulator, for example, in relation to investigations into industry conduct, and the promotion of standards’ (The Leveson Report, p.1521)

If Sir Alan is to be independent, then IPSO will need sufficient funds. He will therefore need to:

Recalculate the budget for IPSO and tell the RFC how much IPSO needs to do its job properly (IPSO’s budget is currently drawn up by the RFC)

  • This requires change to RFC Articles of Association 24.4 & Schedule: 1.10

Make the industry’s budget commitment for a minimum of four years – so that it does not need renegotiation on an annual basis

  • This requires change to RFC Articles of Association 24.4

Make clear that it is IPSO’s responsibility, not the RFC’s to determine the pay of Board members, members of the Complaints Committee, and members of the Appointment panel.

  • Therefore IPSO Articles 24.2, 26.8, and 27.9 will need changing

Remove the RFC’s veto over key IPSO responsibilities

‘The powers of the Independent Funding Body [the proposed successor to PressBoF], which run throughout this proposal, undermine claims to independence of the regulatory system’(The Leveson Report, p.1,630)

An independent regulator does not give its funding body the power of veto over critical decisions.

Sir Alan should tell the newly appointed directors of the RFC that the RFC’s veto in certain areas needs to be removed, such that:

  • The RFC does not have a veto over any changes to the IPSO regulations (IPSO Contract, Clause 7.1)
  • The RFC does not have a veto over any changes to the Code – variations to the Editors’ Code, ‘must first be approved by the Directors [of the RFC]‘ (RFC Articles 10.11)
  • The RFC does not have a veto over the arbitration service (IPSO Contract, Clause 5.4.3)

Give IPSO the freedom to make independent appointments

‘The power of PressBoF in relation to appointments, the Code Committee and the funding of the PCC means that the PCC is far from being an independent body.’ (The Leveon Report, p.1,576)

IPSO should not be required to take account of the views of the RFC when making appointments, either to the Board (via the Appointments Panel) or the Complaints Committee

  • This requires a change to IPSO Articles of Association 22.5 and 27.4 and Regulations 34

Give IPSO the freedom to investigate

‘[I]f there is to be any value in the investigations process, which is itself the only genuinely new part of this proposal from the industry, then it is essential that it should be capable of operating without continually being frustrated by those subject to regulation’ (The Leveson Report, p.1,636).

The power to investigate should be central to IPSO’s effectiveness, but – as currently set out – it is difficult for IPSO to initiate an investigation, and once started, is open to frustration by publishers. To have the freedom to investigate and sanction Sir Alan should seek to:

Enable IPSO to investigate if it finds evidence of serious or systemic breaches of the Code

  • This requires a change to IPSO Articles of Association 8.1.2.b

Reduce the number of opportunities available to publishers to intervene and potentially obstruct investigations

  • This requires a change to IPSO Regulations 40-62

Find out the size of the investigations fund, and alter IPSO’s articles so that IPSO – not the RFC – determines the size of the investigations fund

  • The IPSO Contract, Clause 10 will need altering to reflect this

Give IPSO – and the public – a proper say in the Code of Practice

In addition to outlining the public’s right to privacy, and the publishers’ responsibility to accuracy, the Code of Practice defines the ‘public interest’. The definition, and interpretation, of public interest was central to the Leveson Inquiry. It would therefore seem strange to give Editors’ decisive control over this definition (as the industry currently proposes to do). Therefore if he wants to comes closer to Leveson’s recommendations and ensure the independence of regulation Sir Alan should:

Make the Code of Practice committee a subcommittee of IPSO, not – as now – of the RFC, including the power to appoint members, in consultation with the industry

  • This would require a change to RFC Articles 2.2

Appoint a minority of editors to the Code of Practice Committee

  • This should be part of IPSO’s responsibility as the parent of the Code Committee and would require changes to RFC Articles 2.2 and additions to IPSO’s articles of association

Institute a formal biennial open public consultation on the Code of Practice

  • This would require additions to the IPSO articles of association

Give IPSO the freedom to accept complaints on their merit, not based on who they come from

‘The Board should have the power (but not necessarily in all cases depending on the circumstances the duty) to hear complaints whoever they come from, whether personally and directly affected by the alleged breach, or a representative group affected by the alleged breach, or a third party seeking to ensure accuracy of published information’ (The Leveson Report, p.1,765)

If Sir Alan wants IPSO to accept complaints on merit, he will need to:

Remove the restriction that only allows IPSO to accept complaints from representative groups if they represent a ‘significant’ breach of the Code and there is a ‘substantial’ public interest in accepting the complaint

  • This would require a change to the IPSO Regulation 8

Give IPSO the evidence to launch investigations & publish league tables

There is currently no obligation for IPSO to record whether complaints that cannot be resolved by the news publisher have breached the Code. Indeed it has the opposite obligation. After a publisher has failed to resolve a complaint IPSO is obliged to begin trying to mediate that complaint. No record is kept as to whether a mediated complaint breached the code. Without such a record IPSO will find it difficult to justify launching an investigation, especially an investigation justified by ‘systematic’ breaches of the Code. To give IPSO such evidence Sir Alan should:

Give IPSO the obligation to record all breaches of the Code that cannot be resolved at the publisher concerned

  • This would require a change to IPSO Regulations 14-21

Give IPSO adequate powers to secure meaningful remedies and end the practice of burying apologies

‘the power to direct the nature, extent and placement of apologies should lie with the Board [of the Regulator]‘ (The Leveson Report, p.1,767)

If Sir Alan wants IPSO to have the powers the public believe are necessary (according to opinion polls), he will need to:

Give IPSO the freedom to direct the placement and prominence of apologies where it deems that one is appropriate

  • This would require a change to the IPSO Regulation 22

Take responsibility for the financial sanctions guidance (the guidance which determines the scale of fines)

  • This requires a change to IPSO Contract, Clause 1.1

This is not an exhaustive list, but were Sir Alan Moses to achieve these changes, then he might find he was much freer to maintain his independence of mind and judgment. It might also give IPSO some of the credibility it so sorely lacks at the moment.

Written by Martin Moore

May 27th, 2014 at 3:24 pm

Using the rhetoric of press freedom to thwart free speech

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On how the British press has denied the British public a proper debate on press regulation. This post was originally published on Free Speech Debate on December 12th 2013

It rarely takes long, in arguments about free speech, before someone refers to John Milton or John Stuart Mill. Most of us remember one particularly strong defence of free speech made in both Milton’s Areopagatica and Mill’s On Liberty. Any attempt to censor, suppress or constrain free speech, Milton and Mill argue, denies people access to the truth.

Truth and falsehood should do battle, Milton wrote, in a free and open encounter. Only in such circumstances could truth triumph.

Silencing an opinion, Mill wrote, either robs people of the truth, or – if the opinion is wrong – deprives people of “the clearer perception and livelier impression of truth, produced by its collision with error.”

In the heated, often fractious, debate about press regulation in Britain, the rhetoric of freedom has been widely deployed. Barely a day went by in October 2013 when a national newspaper did not publish a report, editorial or leader about the importance of our free press. This freedom was, most of those pieces argued, put in jeopardy by the system of regulation set out in the cross-party royal charter and agreed on 30 October 2013.

Yet it would be hard to find a debate in modern times that has been less free than the one about press regulation. Far from being Milton’s “free and open encounter” between different views, the debate in the press has been virtually monopolised by those with one perspective. The public have, to use Mill’s terms, been deprived “the clearer and livelier perception of truth” since they have, with notable exceptions, only been presented with one view.

The public have not been given the facts, the arguments, or the diversity of perspective from which to make up their own minds about press regulation.

On the facts, the public have been deprived of even the basic material from which to make up their own minds. During the Leveson Inquiry, for example, the press simply failed to report on potential alternative systems of press regulation. Though numerous proposals were put forward for new systems, including ‘A Free and Accountable Media’, from the Media Standards Trust. almost none were reported on. This is despite the fact that Leveson based many of his eventual recommendations on these proposals. By contrast, there were 56 articles about the press’ own plan (see our ‘Analysis: Press Coverage of Leveson, Part 1′)

When it came to the report itself, the misreporting of Leveson’s main recommendation was, as the renowned editor Harold Evans said in the Hugh Cudlipp lecture, “staggering.” David Yelland, former editor of The Sun, said in his inaugural Leveson Anniversary Lecture, there was a party line amongst newspapers about what Leveson said which was “not really true.” Leveson wrote: “Despite what will be said about these recommendations by those who oppose them, this is not, and cannot be characterised as, statutory regulation of the press.” Yet this is exactly how they were characterised.

Leveson’s system would, many newspapers claimed, allow for state censorship. This is despite the fact that Leveson was adamant, throughout this recommendations, that the state should have no role in the system beyond its establishment, and that no regulator should have the power to stop anyone publishing anything.

Leveson’s recommendations would enable government interference, other papers claimed. Yet Leveson recommended the opposite, going so far as to say that the UK needed a law to prevent government interference. This recommendation was not even referred to in the Daily Mail, the Mail on Sunday, The Sun, The Times, The Sunday Times or in the Daily Express. It was referred to only once in most other papers when the report was published.

Then there was the coverage of, or failure to cover, the process that followed the publication of the report. In January and February 2013  the Prime Minister David Cameron and two other key ministers, Oliver Letwin and Maria Miller, together had more than 30 meetings with senior executives and editors from the press. You would not know this because not a single one of those meetings was reported. In February, we – the Media Standards Trust – wrote to Lord (Guy) Black, one of the key figures drawing up the industry’s response to Leveson who attended at least eleven of these, requesting that they be made public. He refused. We only now know of them because of the official lists of Ministers’ meetings published in the autumn (Oliver Letwin meetings, January-March 2013; Maria Miller meetings, January-March 2013; David Cameron meetings January-March 2013). Yet they remain unreported in the press.

Instead, newspapers chose to fixate on a single meeting that was held on the evening of Sunday 17 March, at which representatives of the victims’ campaign group – and the author of this piece – were invited to view the agreed cross-party charter before it went before parliament on 18 March. At this meeting, newspapers claim, a royal charter was cobbled together over pizza. Except it wasn’t. What happened at this meeting, and context for it, has been described in detail by Oliver Letwin to a parliamentary select committee (Oral Evidence, 16th April 2013). Yet Letwin’s account has been ignored because it contradicts the press’ narrative.

Therefore by the time a cross-party royal charter was agreed on 18 March, a member of the public would probably have thought – based on what they had read in most papers – that Leveson concocted a new system from his head, that this new system allowed for state censorship and government interference, and that the agreed royal charter to implement the system was improvised by campaigners for the victims in the middle of the night in Ed Miliband’s office. None of this is true.

Members of the public have been similarly ill-served by much of their press when it comes to argument and diversity of opinion. There has not been “the collision of adverse opinions” as Mill argued there needs to be. In the lead up to the publication of Leveson’s report there were 28 leader columns about press regulation in national newspapers. 23 were wholly negative. Three had negative and positive comments. Two were neutral. Not one was wholly positive. Since publication of the report, editorials and opinion pieces have been just as consistently negative.

What is remarkable is that throughout this period, despite the consistently negative press coverage, public opinion has remained stubbornly steady. The public want tougher regulation of the press. They are in favour of a system similar to the one proposed by Leveson. They are comfortable with a system of regulation underpinned by law. In other words, the majority of the public disagree with the press (see this list of polls since May 2012). Yet their views are not represented in the papers.

Instead of representing the views of their public, much of the press have chosen to deploy the rhetoric of press freedom to stamp on dissenting voices. Ironically, Leveson predicted the press’ response to his own report. Buried in Volume Three, amongst a detailed examination of the Data Protection Act, Leveson lays out the modus operandi of certain newspapers when put under pressure to reform. First, there is “resistance to independent regulation of both law and standards.” Next, the press present “a confrontational, aggressive and personal approach to its critics.” It then engages in “powerful behind the scenes political lobbying in its own interests.” Finally, it uses “the deployment, through a very loud megaphone, of the rhetoric of the freedom of the press to stifle rational criticism and debate about where the public interest lies”(Volume 3, p.1,107).

The rhetoric of press freedom has been, and continues to be, used by parts of the press as a way of preventing a “free and open encounter” between truth and falsehood in the debate over press regulation. The British public, sadly, have been the losers.

Written by Martin Moore

May 27th, 2014 at 3:20 pm