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Failure – the Legal versus the Economic View
Lord Judge claims that we should not regard the Press Complaints Commission (PCC) as having failed because it has failed to prevent such journalistic disasters as phone-hacking, in the same way that ‘[w]e do not say the General Medical Council (GMC) and self-regulation have failed when as sometimes happens, a doctor sexually molests one or more of his patients, or like Dr Shipman murders them.’ Once more this is a legalistic reading, rather than a practical one. Given that the GMC’s stated purpose is ‘to protect, promote and maintain the health and safety of the public by ensuring proper standards in the practice of medicine’ these events most definitely represent failures.
The practical question is whether the costs of such failures are outweighed by the costs of reducing the number and severity of them. The social optimum is the point at which these are equalised – or in economic terms we say that marginal benefit (of any additional regulatory effort) equals its marginal cost. It is a further surprise that the Lord Chief Justice overlooks the basis of medical ‘self-regulation’ in the Medical Act of 1983 and various Statutory Instruments enacted since.
Democracy as Regulator?
The press ‘industry’ is uniformly against a statutory regulator, in the sense of one that operates according to a specific legal framework. This is hardly a surprise, but in this view they claim support from Parliament, the communications regulator OfCOM and others. Yet in a democratic culture, ‘the community as a whole’ is ultimately represented through its elected legislative institutions, conditional on any supra-national treaties (such as the ECHR) that have been signed. Note that for the UK, this definition applies to Parliament, not the current government in power. So the logic of avoiding Parliament as the root of press regulation is either that there is something wrong with our democracy, or that press regulation is for the benefit of only a subset of the citizenry, rather than its totality. In the arguments of the media industry itself, there is no difficulty in identifying which side of this disjunction holds. But for the others it is not so clear where the real concern lies.
The most frequently stated argument against even the most general form of statutory press regulation is that the government of the day might amend or expand in its own favour any existing legislation. Yet it is a fact that any government, at any time, can propose de novo regulatory legislation. Whatever prevents a government introducing self-serving press regulation from scratch can also serve to prevent the abuse of a pre-existing regulatory framework. The elements that do so are treaties such as the ECHR, the oversight of the whole of Parliament – both Houses and of all parties – and pressure from an aware and informed citizenry. A move away from self-regulation, it is true, means that the plurality of the press may depend in part on external and internal plurality of national governance, but these we should regard as goods to be striven for in their own right. The requirement for an enlightened citizenry also sets up a virtuous circle for a press whose aim is to inform and enlighten rather than to channel opinions and cash in directions that suit.
The Black Heart of the Corporate Press
We don’t need to look far for evidence of the conflict between a press that is free to provide accurate, undistorted and unbiased in aggregate reporting, and a press that is free to promote itself, its business causes and the biases of its owners whether individual or corporate. This is transparent in the industry’s arguing of its own case for self-regulation. The proposals for a reformed regulator submitted by PressBof, the industry body for co-ordinating PCC funding, seem very likely to form the basis of any recommendations for reform proposed by the Leveson inquiry. In these proposals a key passage defends the ‘constitutional principle’ of press independence by enlisting the support of a Joint Committee of both Houses of Parliament. In doing so it provides the following sentence:
When studying these matters, the recent Joint Committee of both Houses of Parliament on Privacy and Super-Injunctions agreed that “we do not recommend statutory backing for the new regulator”. (Towards a New and Effective System of Independent Self-regulation, para 23)
A diligent reader will note the absence of a capital letter on ‘we’, indicating that something is omitted before the text given. In fact it turns out that not only is what is omitted before this text significant enough to alter the whole intention of the Committee’s words, so even more is what is omitted afterwards. It is well worth giving the relevant passage in full.
To be successful Lord Hunt of Wirral’s proposals [the PressBof proposals] must create an independent, powerful regulator which governs all major publishers and has the confidence of the public. However, decisions on the future of media regulation cannot be left to the industry alone to determine. At this stage we do not recommend statutory backing for the new regulator. Instead, assuming Lord Hunt’s proposals are adopted by all publishers, we recommend that a standing commission comprising members of both Houses of Parliament be established to scrutinise the process of reform over the coming years. The standing commission will report annually to Parliament on the progress of reform and the effectiveness of the reformed regulator. The annual report should be debated in both Houses. The standing commission must have the power to call for papers and summon witnesses.
However, should the industry fail to establish an independent regulator which commands public confidence, the Government should seriously consider establishing some form of statutory oversight. This could involve giving Ofcom or another body overall statutory responsibility for press regulation, the day-to-day running of which it could then devolve to a self-regulatory body, in a similar manner to the arrangements for regulating broadcast advertising. (Report of the Joint Committee on Privacy and Injunctions, paras 187,188.) [My emphasis.]
The sheer hypocrisy of the blatant distortion here is only heightened by the fact that the presenter of the PressBof submission, Lord Black of Brentwood, was himself a member of the Committee whose report this was and was part of the minority voting against its adoption. This example alone demonstrates that the internal conflict between the press as dominance-seeking corporations and the press as guardians of free speech is irreconcilable, even at this late stage when their independent life may depend upon it, and in a forum to which they had to be dragged kicking and screaming. So much more so will it be within any conceivable self-regulatory framework once the spotlight on phone-hacking, the BSkyB takeover and Leveson has moved on.