30 November 2012

Press Freedom: serving an Ace

Let’s say that something unpleasant was written about me in the press, and not just unpleasant but untrue. I don’t like it, and I sue the newspaper and win; I win financial compensation, and get some sort of printed apology (which is probably well hidden).

I’m financially compensated for my hurt; yet there is the lingering doubt in the public mind that the press wouldn’t have written about me unless there was something to go on, the “no smoke without fire” argument; and of course “mud sticks”.

And although I’m richer now, really, I’d prefer to have the perpetrators in the pillory and throw rotten eggs at them.

But this isn’t going to happen; to sue for libel you need to be rich, or have lawyers risk an action on a “no fee, no win” basis. I doubt if any would really want to help me, and I’m not rich, certainly not rich enough to risk loosing a suit. So, I’m effectively powerless.

Anyway, why should I have to chase the perpetrators? I haven’t done anything wrong, yet it’s up to me to take action. If I do nothing, they aren’t going to apologise, to retract or to pay compensation. The “ball is in my court”, but I didn’t ask for the serve, and I can’t return it: it’s an “ace”.
Yet the press does have a code of conduct, one which covers what they should do and what they should not; and it seems to be very sensible and reasonable. The problem is that it’s been ignored by those who think they can get away with it. It’s not the code that’s lacking, it’s the enforcement of it, the compliance.

An aside: the code wouldn’t approve of illegal methods of news gathering, or paying for stolen goods. Yet the MPs and their amazing expenses only came to light through the Daily Telegraph — not my choice of reading material — obtaining such stolen information by paying for it. I don’t know of any similar investigation where the results have depended on hacking phones or intercepting emails; an investigation turning over the murkier, perhaps criminal, aspects of life. But I could appreciate that in such a case, the ends could well justify the means. If it’s illegal to illegally hack phones and emails, there must be an implicit but unstated legal use of such activities. (Of course, hacking phones of “celebrities” and suchlike for purely salacious, lubricious ends is in no way comparable. Who doesn’t have feet of clay?)

If compliance is the real problem, how then is it to be enforced? Lord Justice Leveson favours self-regulation, which is “underpinned” by statute, and which seems to have a second regulator checking on the first. Unsurprisingly, this is being spun as an infringement on a “free” press, as government control of the press. He offers sticks and carrots to try to ensure that all newspapers will agree to it — but he recognises that membership cannot be enforced, however desirable; and he recommends that the “freedom of the press” be enshrined in legislation.


What would life for the press be under a “statutory regulator”? I can’t offer a very exact parallel, but I can suggest how it could work.

Before the Medical Act of 1858, medicine was an unregulated profession, attracting more than its fair share of charlatans, snake oil merchants and the like. The Act set up the General Medical Council which required doctors to be registered with it, and which had the power to censure doctors, and to strike them off. The GMC is an example of “self-regulation”, where its formation is statutory, but it’s actions are determined by itself.

The GMC’s remit has been updated through the years; medical Royal Colleges through their charters also have regulatory powers, though these are essentially devolved to the GMC.

The GMC is a “regulator” established by statute; its activities include publishing codes of conduct for doctors. But the government does not interfere with its work; the government’s activity is limited to introducing new legislation to “update” the GMCs functions.

Almost all doctors in the UK are employed in the NHS, in “Trusts” or general practitioner groups. These are not free agents; they are required, for example, to accede to “best practice”, as defined by NICE; and to be aware of financial pressures. Doctors in NHS practice are not “free agents”, they cannot offer whatever treatments they like — even if, in the past, this was the case. Yet most of them would accept the NICE guidelines, though financial pressures may require them to act to ration treatment, something that can be very difficult, yet is largely outside of “regulation”. Within the NHS there are various ways in which practice (or personal relationships) suspected of being substandard, ineffective or harmful can be investigated. This range of possibilities includes an informal visit from the “three wise men” to a formal, full scale enquiry.

These problems are not found in private practice, where the only regulation of the individual is through the GMC. (Of course, there are regulations around the safety of installations in much the same way as a printing press would be subject to Health & Safety regulations.)

There are two main, important ways in which this “statutory regulation” differs from that suggested for the press. Firstly, medical registration is compulsory; and secondly, it applies to individuals rather than to organisations.


It’s not a very good comparison, I freely admit, but it’s the best I can do. And while I’m at it, aren’t there similar “statutory underpinnings” to the self regulation of other professions such as lawyers? I don’t know if there is a “regulator” for judges, but then they don’t like being criticised, and any suggestion of criticism is likely to find you being sent down to cool your heels for a night or two.
However, I think that the scaremongering about the end of a “free press” is no more than puffery; we know that self-regulation hasn’t worked, and more of the same, slightly modified, isn’t going to change things. The difficulties are how to get the main players to sign up, and how to get them to follow a code of conduct.

As far as a code of conduct is concerned, periodic inspections might be a way; the encouragement of “whistleblowers”, and some form of sanctions that are actually effective.

But as for compulsory membership; I can immediately see difficulties. The regulation is aimed at major players, daily papers with large circulations; but how do you — should you — separate them from quite innocuous publications such as the Ambridge Gardening Gazette? If some papers opt out, well they come under the aegis of Ofcom according to Lord Leveson, and lose the “carrots”. Whether Ofcom actually wants — or is capable of — this activity isn’t certain. Perhaps the carrots will be a sufficient inducement.

There just might be another approach to this. The editor of the newspaper is, at least in theory, responsible for all the content of the paper. Why not make the editor the subject of the regulation, and let him or her implement the appropriate codes of conduct. No hiding behind any sort of “corporate responsibility”, if there is a problem the editor personally is responsible. Would this be too inhibitory? Would this transfer of responsibility from the organisation to a single, named individual work in practice, or is the work of an editor such that the extra work of ensuring compliance would be excessive. An editor could appoint a “compliance officer”, though this sounds excessively bureaucratic.

No system will prevent all errors; but a sensible system of regulation should prevent malicious defamation of the sort that we are only too familiar with. What we might think of as “honest” errors should be swiftly corrected. (And, whisper it quietly lest they hear, even judges make mistakes; if they didn’t there would be no need for the High Court, the Court of Appeal and the Supreme Court.)

Disclosure: many, many years ago I was once part of a “three wise men” triumvirate.

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