A Typo in the Constitution

Greg Callus' musings on law, politics, media, culture, and life

Post-Leveson Regulation: a bad debate

Post-Leveson Regulation: a bad debate

It didn’t need Leveson LJ to actually publish his report before the battle lines had been drawn and sides had been taken. I don’t think I’m disparaging anyone in particular when I say the recent debate over regulation of the press has been as tedious as it has been unedifying.

You don’t need to be an expert on the philosophy of Alasdair MacIntyre to recognise that when a debate is so shrill and intransigent, that the problem might not be the incompatibility of the solutions proposed, but an incommensurability of premises. So it is with abortion, or Israel/Palestine, or the Iraq War: it’s not just that the different sides want different outcomes, they start with different premises and different definition of terms.

I may not have any better answer, but I hope that beyond chucking in my tuppence’worth,this article can suggest how to tidy up the terms we’re all using when we argue about what should happen next and why.

DEFINING REGULATORS

There are different types of Regulator (by which I mean a body whose job it is to regulate things and make decisions as to whether rules have been broken). 

One particular type of Regulator regulates generally UNRESTRICTED ACTIVITIES that are/can be undertaken by ANYONE (competent adults, at least). Walking around in public, buying things, leasing property, singing songs and so on. All of these can be done by the public at large, and the way in which they do them is governed by Civil and Criminal Law (such as trespass, nuisance, public order offences, Sale of Goods Act and so on). Thus the Courts (civil and criminal) are the main Regulators of Unrestricted activities

At the other end of the spectrum, there are Regulators of RESTRICTED ACTIVITES which can only be undertaken by LICENSED PERSONS. The Bar Standards Board or the General Medical Council regulate restricted activities (practicing law and medicine) which can only be done by qualified people with an extant licence (Barristers and Doctors). The same is true for Bankers and Teachers and Plumbers and Solicitors and Accountants and so on 

The majority of Regulators (excluding the Courts) are the latter type - Bar Council, Law Society, General Medical Council etc. They don’t really regulate an activity at all - they regulate a defined group of people who are the only ones allowed to do an activity. If there is a breach of their rules, they can stop that person from doing that activity. This type of Regulator needs to be able to (1) prevent people from doing the activity (backed up by law) and (2) determine who is subject to its jurisdiction and who isn’t (by a system of licensing)

This isn’t a strict binary separation though. Some Regulators only regulate a limited number of persons based on activities that are de jure unrestricted, but de facto restricted. The BBFC classifies movies - the making of movies is a de jure unrestricted activity (you don’t need to be a licensed film director to do it) but it is de facto restricted because only a very small number of people have the resources to do that activity and therefore be regulated. The de facto restriction might not be much of a restriction - most people could afford to place an advertisement in a newspaper, and so could be under the (not very powerful) remit of the Advertising Standards Agency.

So what type of activity is journalism?

It’s become a truism to say that journalism is an unrestricted activity - that everyone can (and maybe should) do journalism via Facebook or Tumblr or Twitter. Certainly, since the internet came along, it is harder than ever to maintain the fiction that journalism is a profession like medicine, law or teaching - that’s not to deride the brilliantly talented people who do great journalism, but the hallmarks of a profession - formalised mandatory training and ethics codes, a licensing regime, the possibility of being struck off - were never really in place. Journalism has not been a de jure restricted activity for centuries - but it was de facto restricted because to reach 100,000 readers you needed your own Fortress Wapping and a major distribution chain. It made sense to have the PCC, like the film industry has the BBFC, because the de facto restriction limited the class of people regulated to a manageable and discrete number.

DEFINING JOURNALISMS

But it’s also facile to say that ‘journalism’ is something that everyone does, because it relies on a fuzziness of what the term ‘journalism’ means.

If we were talking about the oil or mining industries, we’d talk about three major phases of activity for our product: Upstream (drilling, mining, pumping etc), Processing (refining, cracking, purefying, blending etc), and Downstream (distribution to customers/consumers, marketing etc).

The same three phases exist in journalism, but they need different terms. 

- REPORTING (any capture of information, tips, sources, intercepts, etc etc)

- PRODUCING (the ‘creative’ act of journalism, be it writing, filming, editing, recording turning the information gathered in the reporting into a product)

- PUBLISHING (any dissemination of that creative product which has been produced).

Modern journalism almost always involves the latter two stages. Writing a blog, recording a podcast, editing video are all unrestricted acts of journalism. Publishing (on a website, on leaflets, uploading video to YouTube, or tweeting) is sometimes a part of journalism (all journalists publish their content) and it is often done as a non-journalistic act. But when Production/Publishing is done, it is an unrestricted activity. Anyone (more or less) can Produce and Publish.

Because Producing and Publishing are unrestricted activities, they are covered by the Civil and Criminal Law (defamation, harassment, malicious communications etc). Everyone can do them, and the proper forum for regulating something everyone can do is the Courts applying the general law. Unrestricted activities do not need a regulator - which is why the ASA is something of a duck-billed platyus of a quango: a regulator of unrestricted activities that has little or no power to impose anything on the people it purports to regulate.

There is a Defamation Bill in the pipeline, and new CPS guidance on its way as to prosecuting crimes committed on social media, and other such activity. I am satisfied that, although I don’t necessary like much of the media law we have, that the general law (civil and criminal) is the right tool to regulate unrestricted activities that can be done by anyone. 

Making an unrestricted activity (like Producing or Publishing) a restricted activity would be a highly authoritarian step, and I do not think it could be compatible with Article 10. Freedom of thought and expression, within the confines of the criminal and civil law, must not be subject to the interference or approval of any state body other than the Courts. 

WHY REPORTING IS DIFFERENT

But you’ll notice I’ve not talked yet about Reporting. What is interesting is that, even within major news organisations let alone in the world of blogs/Twitter, very little journalism (by volume or readership) involves much formal Reporting. The overwhelming of everything that is Produced and Published does not rest on original Reporting - think of all the Opinion pages, blogs, tweets, comments on websites. Some of these may (though sadly rarely in many cases) involve some background research, but other (more formal) types of Reporting (such as interviewing sources, receiving leaked documents, discovering new facts, going little-known places) are not present in the vast majority of pieces of Produced and Published expression. Even newspapers rely more than ever on the newswires, press releases, rival publications for things like film reviews, restaurant reviews, press conferences, financial news: so even where there is Reporting going on (ie the receipt and capture of information), it is non-contentious. The subject is a willing (sometimes too willing) actor in the reporting process. 

This is significant. In spite of attempts to raise the role of Page 3 in perpetuating the patriarchy, or the expressions of distaste for the Charlotte Church virginity countdown clock, we did not have the Leveson Inquiry because of what was ever Produced or Published. No-one was surprised to be reminded of the less-savoury stories and editorial decisions made by the British press in the last ten years. But that was not the reason for the Inquiry. However grubby we may find Page 3 or stories about a marriage falling apart, very few people would support a Regulator to prevent the Production or Publishing of those stories. 

David Cameron wasn’t spurred to instigate the Leveson Inquiry because of failings in Producing and Publishing. The catalyst for this review was to look at gross and egregious breaches of the civil and criminal law by journalists in the act of Reporting. Hacking phones, sending in blaggers and bin-rummagers, pinging phones to get celebs’ locations, getting copies of utility bills and credit card statements and medical records. None of these activities was to do with the Production process nor with Publishing. All of these activities, some of them crimes, were in the phase concerned with the capture of information. They were Reporting misdemeanors.

So if Producing and Publishing are Unrestricted Activities, and should remain subject only to the civil and criminal law, how about Reporting? Clearly, to excessively restrict reporting would do significant harm as a matter of public policy (no whistleblowers, no leaks, no protection from corruption). But Reporting is already a de facto restricted process. The internet might have removed the de facto restrictions on Producing and Publishing, but it has had lesser effect in reducing the time and cost barriers to entry in reporting. Research using the internet makes it possible for all to do some research, but proper Reporting is resource-intensive. It takes time and money to do it well.

If Reporting is already de facto restricted, would it do untold harm to reflect that de facto restriction in de jure regulation? I’d argue probably not. That’s not to say there should be Licensed Reporters (heaven forbid) but it is to say that the activity of Reporting (unlike Producing and Publishing) requires both (1) a technical capability to do it well enough for it to be socially useful, and (2) observance of a certain moral code in the process of doing it. Only where both are in place should any provileged position in law be acknowledged. Reporting that includes these elements is of massive social benefit. Without either of them, it is a terrifying power held by some over others.

REGULATING REPORTING

Is Reporting effectively regulated already? I’d argue it probably is on paper. The Data Protection Act, the Freedom of Information Act, the Regulation of Investigatory Powers Act, and the Computer Misuse Act all regulate Reporting, and provide both civil and criminal penalties for their breach. However, they were ineffectively deployed to prevent some of the most egregious misfeasance that was uncovered in the run-up to Leveson. So what is the answer.

Most people recognise that there should be a forum to arbitrate misdeeds associated with Producing and Publishing (libel, contempt of court, unlawful menaces) and with Reporting (data/privacy breaches, hacking, harassment). It should be low cost, largely funded out of the proceeds generated by these activities. However, how to solve the infamous ‘participation problem’?

I don’t think there should be a Regulator. I don’t see how even a reconvened Press Complaints Commission with a whip-taking politician at its helm is compatible with the independence required to arbitrate these claims. Given that the misdemeanors in Producing and Publishing are against the general law, they should be dealt with (albeit more quickly and at a lower cost) by some form of court - a Media Arbitral Tribunal, like the First-Tier Tribunals for Employment, Tax, Information Law, and Immigration. But for Reporting misdemeanors, such as hacking etc, are we really expecting every complainant to go to court? And if not, what incentive to Reporting entities (whether bloggers like Guido Fawkes or newspapers like the Daily Mail) have to submit to the jurisdiction of a non-court entity who passes judgment on their journalism and imposes penalties.

If you read the Data Protection Act, or the Defamation Act, or the Contempt of Court Act, you’ll frequently find formal defences based on the fact that the conduct was committed as an act of journalism. Whilst Freedom of Thought and Expression is (in most eyes, anyway) a fundamental right, the statutory journalistic defences to various crimes and tort are not fundamental rights. They are discretionary defences that must be proven on the facts - “was this conduct really related to journalism? If so, then the right to plead that defence will be given (even if it doesn’t work)”.

Perhaps the answer is to make statutory journalism defences contingent on a totality of conduct being consistent and commensurate with journalistic rigour. Part of that totality of conduct might be a preparedness to submit to the jurisdiction of a Media Arbitral Tribunal. No-one should be prevented from Producing or Publishing content because they won’t sign up to such a Tribunal, but it is perhaps less clearly unfair to insist that anyone seeking to rely on journalistic defences to DPA offences or other forms of Reporting misconduct demonstrates in return a willingness to Report responsibly.

In this sense, agreeing to belong to a low-cost Media Arbitration/Tribunal system would still be voluntary, and the carrot/stick of belonging would be the right to rely on statutory ‘journalistic’ defences. I don’t think it could be a blanket solution - independent bloggers would not want to pay into such a system given they could agree to arbitrate only if the need arose - but I think a refusal to allow a complainant the option of arbitration/tribunal could reasonably give rise to a legal presumption that statutory journalistic defences would not be available.

The second carrot/stick that could be deployed is that the Civil Procedure Rules could be amended to determine that any misdeed connected to Reporting and/or Producing and Publishing should be heard by consent of the parties in the Media Arbitration/Tribunal. Any journalistic entity could refuse their consent, but would result in the refusing party paying both parties’ costs irrespective of verdict in court. If both parties refused, then the presumption would be that both sides bear either their own or each other’s costs. This would incentivise both claimants and defendants to use quicker and cheaper arbitration/tribunal arrangements, rather than the courts.

GENERAL LAW, OR ADDITIONAL PROFESSIONAL STANDARDS?

And should the Media Arbitration/Tribunal just enforce the general criminal and civil law, or should there be additional standards to which journalistic outlets should have to subscribe. I’m open-minded on this. The PCC had various elements of its code based on accuracy, and ethics. I’m not convinced that these should be mandatory for all who would use the Tribunal, but it might be that voluntary submission to such a code would provide for more favourable judgments on costs. 

I’m genuinely open-minded on the composition of the Media Arbitration/Tribunal. I think it should be judicial, in the same way that Tax and Immigration are judicial, but that would still keep it independent of the Executive and Legislature who are elected and therefore fear the press. Use of the Arbitration/Tribunal would be voluntary, but the costs implications of refusing to do so (and the presumption against being able to rely on statutory defences) would be a strong incentive for the few institutions that do significant volumes of reporting. 

What would be the involvement of government? If a Tribunal, like Tax or Immigration, then the Court would be created by statute and staffed judicially. But it would only be adjudicating the general law (defamation, contempt, breach of confidence) as the Courts do at the moment, just more cheaply. To bring a general complaint against a newspaper would be much easier than independent causes of action sent to the Information Commissioner (for DPA offences), defamation in the Queen’s Bench Division, breach of confidence in the Chancery Division, an injunction from the Family Division, and a criminal complaint about harrassment. Alternatively, it could be an entirely private body - a real Arbitration - where membership was purely contractual and with no involvement of government. I think what critics of a Press Regulator are right to be fearful of is a Regulator which belongs (or quasi-belongs) to the Executive Branch (like OfCom), but I cannot see how a consensual Arbitration or judicial Tribunal would be as problematic.

CONCLUSION

It seems from Leveson that it is too difficult and too expensive for most complainants about the media to get remedies afforded by the civil and criminal law, even though those laws are (on balance) probably adequate on paper. Most of the serious breaches were in the Reporting phase, rather than the Producing and Publishing phase. Whilst I think that making Producing and Publishing in any way restricted activities (subject to mandatory regulation) would be a breach of Article 10, I do not think that Reporting is as obviously protected. Consistency with Article 8 demands that there are restriction on Reporting, such as DPA offences, and the good public policy reasons for allowing statutory journalistic defences could easily be made in some way contingent on good journalistic conduct as evidenced by a willingness to participate in a Media Arbitration/Tribunal.

Any Tribunal should, however, be a judicial tribunal and/or a private contractual standing Arbitration, rather than a Regulator belonging to the Executive Branch. The benefits of submitting to that body (on a voluntary basis) rather than forcing all complainants into the courts would sound in costs (as determined by a Practice Direction from the Lord Chief Justice). Preparedness to sign up to additional ethics standards (accuracy etc) would have further cost benefits within the Tribunal. 

We can’t keep having a debate where Reporting/Production/Publishing are all rolled into ‘Journalism’, and we can’t have a debate where we don’t distinguish between ‘journalism’  (as a hitherto de facto restricted activity, now unrestricted) and ‘the press’ (a once-definable group of people, suggestive of a de facto or de jure restricted activity). We have to be able to distinguish between arbitrations (private), tribunals (judicial), and other regulators (mostly belonging to the executive). It is important to understand what “the Freedom of Thought and Expression” intrinsically covers (the unrestricted activities of Production and Publishing, rather than de facto restricted activity of Reporting), and why unrestricted activities (Production/Publishing) should only be subject to the general law, whereas they *may* be a case for additional regulating of restricted activities (Reporting) beyond the general law (no paparazzi photos of children, for example). 

If we’re not prepared to recognise these distinctions, and insist on repeating our well-rehearsed ‘State Censorship vs Unregulated Corporate Media’ arguments, this post-Leveson debate isn’t even worth attempting. Something has to change - we can’t sensibly suggest what that should be until we agree on the terms we’re using. 

As always, other views welcome - I’m @Greg_Callus on Twitter

  • 2 December 2012
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