Policy Papers


Seventy years and counting: the unsolved problem of press regulation

Tom O'Malley |

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Executive Summary

  • The newspaper press was freed from pre-publication censorship at the end of the seventeenth century, and from restrictive economic controls such as stamp duties by the 1860s.
  • Criticisms of press standards are as old as the industry, but the competitive conditions of the mass press from the 1920s onwards led to recurrent complaints about the way it intruded into privacy, was sensationalist and inaccurate. By the 1940s plans for a system of voluntary regulation gained widespread political support, and a General Council of the Press was finally established in 1953.
  • Despite various reforms since 1953, self-regulation has failed primarily because it is funded and controlled by proprietors who are reluctant to enforce standards effectively. Politicians have been reluctant to back statutory reform for fear of provoking the hostility of the industry.
  • In the wake of the Leveson report into press standards, which itself was very historically literate, there has been a polarised debate about statutory regulation. This has ignored the complex history of the ways in which the state has continued to impose pre-publication restraint - for example, through the Official Secrets Act and contempt of court legislation - without undermining press freedom.
  • The options now available to policy makers are: to accept a new version of the status quo in the form of an industry-run regulator; support an industry-run regulator whose structure and practices would be validated by an independent recognition body established by Royal Charter and underpinned by statute; or kick the problem into the political long grass.
  • History suggests that neither the first nor the last option will solve the problem of unjustified intrusions into privacy, inaccurate reporting, and persistent breaches of the industry's code of practice.

Introduction

On 5 July 2011 The Guardian revealed that in 2002 the News of the World had hacked into the mobile phone voicemail of the missing school girl Milly Dowler. It also alleged that messages were then deleted; leading friends and relatives of Milly to think, wrongly, that she might be alive. This revelation came amid mounting evidence that journalists at the News of the World had hacked into the phones of hundreds of individuals, including politicians and celebrities. The Guardian report caused public uproar about illegal news-gathering techniques in the national press, and forced the Government to act. On 8 July the Prime Minister, David Cameron, announced an inquiry into the practices and ethics of the press, under the chairmanship of Lord Justice Brian Leveson, assisted by six assessors, four of whom had close links to either newspapers or media regulation. Their task was to make their expertise available to Lord Leveson, suggest lines of questioning, and comment on the practical implications of any recommendations. The terms of reference required the inquiry to make recommendations on, among other things:

...a new more effective policy and regulatory regime which supports the integrity and freedom of the press, the plurality of the media, and its independence, including from Government, while encouraging the highest ethical and professional standards... for how future concerns about press behaviour, media policy, regulation and cross-media ownership should be dealt with by all the relevant authorities, including Parliament, Government, the prosecuting authorities and the police...

This paper explores the historical context to the Leveson inquiry and report, highlighting the key issues in more than sixty-years of debates over press regulation, and considers some of the options currently available to policy makers. As Lord Leveson has stated, his was the seventh government-commissioned inquiry in the last seventy years to deal with concerns about the press; a testimony in itself to the recurrent failure of press regulation.

Liberty, commerce and scandal

State licensing of the press was discontinued in England and Wales after 1694, and the traditional narrative of press history recounts its complex but positive contribution to freedom of expression and the public good thereafter. The principle that underpinned subsequent developments was expressed in the eighteenth century by Lord Blackstone:

The liberty of the Press is indeed essential to the nature of a free State; but this consists in laying no previous restraints on publications, and not in freedom from censure for criminal matter when published.

This did not stop governments seeking to restrict the number and kinds of newspapers using economic controls, such as Stamp Duties, or legal tools such as prosecutions for seditious libel.

Economic controls were removed during the mid-nineteenth century and there followed an explosion in the number and circulation of newspapers. Between 1855 and 1861, 492 newspapers were established in the UK, many short-lived. In 1856 the total number of daily, evening, London and provincial papers stood at just 30, but by 1900 this had risen to 203. Steadily improving literacy rates created a growing and lucrative market for print in all forms, which increased competition for readers. By the end of the nineteenth century the idea that the press, in wresting its hard-won independence from state licensing and economic controls, had contributed to the growth of democracy and freedom was entrenched in the minds of journalists, politicians, and the public.

Even at this stage there were criticisms of press standards. In 1874, for example, John Forster, Charles Dickens' friend and biographer, complained that the removal of taxes on newspapers had 'done much to make vulgar ways of looking at things and vulgar ways of speaking of them stronger and stronger'. In 1904, W.T. Stead, the noted journalist and editor who famously campaigned against child prostitution, attacked the jingoism, sensationalism and inaccuracy of the London press. Four years later, even the newly created National Union of Journalists (NUJ) was protesting against 'the practice of employing convicted murders and criminals as journalists'.

A new phase of press expansion began from the 1890s, and as the press grew in circulation and influence so too did complaints. By the 1930s a mass, popular daily press was well-established. In 1890 the circulation of daily papers stood at around 700,000 and of Sunday papers at 1,725,000. By 1947 this had risen to 15 and 29 million respectively. In the 1920s and 1930s the behaviour of newspapers was characterised by routine invasions of privacy, sensationalism and inaccuracy. The exploitation of 'human interest' stories in divorce cases led to the passage of the Judicial Proceedings Act (1926) which prohibited the publication of full reports of divorce and matrimonial cases. Press interest was not, however, limited to divorce cases. Photographers, or 'picture snatchers', were employed specifically to take pictures of people involved in crime and murder stories, by whatever means necessary. In 1932 the Bishop of Salisbury complained that the 'cheap press' dealt in 'nothing except dirty sex affairs, murders and accidents' and was 'a menace to the nation'. A correspondent to The Times in 1933 complained of several instances of the bereaved being harassed by journalists 'in the nauseous pretence of offering sympathy'.

Circulation wars between newspapers and intense competition drove practices which seemed to undermine standards. In 1936 one newspaper proprietor addressing the Newspaper Society pointed out that:

The struggle for sensation, to go one better than one's competitors, the intrusion into private grief, the utter lack of good taste which are the principal characteristics of a large and widely read section of the press are a cause of much lack of sympathy in the very real difficulties we face today.

The 'difficulties' arose because of the increased number of libel cases in which juries awarded large sums to plaintiffs. In 1938, a former editor of The Times, Henry Wickham Steed, pointed to a new challenge which had emerged in response to the poor standards in much of the press:

Public men are no longer quite at the mercy of the newspaper Press. They can speak to millions direct through the broadcasting microphones. They can help to build standards of taste and judgement to which the pressure of public feelings would compel the controllers of newspapers to conform.

The BBC was seen to offer a better standard of reporting and comment on public affairs, a standard which much of the popular press failed to match. In 1943 the NUJ's official historian F. J. Mansfield attacked:

The low down kind of journalism which exploits the bawdy and the horrific and cares not how it gets its stories of frailty, folly, crime and the abnormal. There is plenty of healthy thrill in life without raking the sewers.

This climate of criticism encouraged attempts at reform. In 1934 the NUJ passed a code of professional conduct which asserted that reporters and photographers 'should do nothing that will cause pain or humiliation to innocent, bereaved, or otherwise distressed persons'. The following year, the Institute of Journalists sought, but failed to win, parliamentary support for a Journalists' (Registration) Bill, which would have made it an offence for an unregistered person to use the title journalist. In 1938, the independent social research organisation, Political and Economic Planning, produced a detailed and comprehensive Report on the British Press. It advocated a voluntary system of press regulation of standards, similar to that in the legal and medical professions. In 1943 The Economist echoed this call, arguing that measures needed to be taken to provide 'professional guidance' and to maintain standards.

The chequered history of self-regulation

These concerns were the backdrop to the first post-war Royal Commission on the Press, which reported in 1949. Its terms of reference combined the idea that the press should be 'free' with a desire to foster responsibility: 'to safeguard the freedom of the press; to encourage the growth of a sense of public responsibility and public service amongst all engaged in the profession of journalism'. On the question of standards and press freedom the Commission recommended:

That the Press should establish a General Council of the Press consisting of at least 25 members representing proprietors, editors, and other journalists and having lay members amounting to about 20 per cent of the total including the chairman.

It was to 'keep under review any developments likely to restrict the supply of information of public interest and importance' and crucially:

by censuring undesirable types of journalistic conduct, and by all other possible means, to build up a code in accordance with the highest professional standards. In this connection it should have the right to consider any complaints which it may receive about the conduct of the Press or of any persons [emphasis added] towards the Press, to deal with these complaints in whatever manner may seem to it practicable and appropriate, and to include in its annual report any action under this heading.

This voluntary system was supported by the Labour government and the NUJ but resolutely opposed by proprietors. The delay caused mounting political controversy and in 1953, after pressure from MPs and the now-Conservative Government, the proprietors established a General Council of the Press (GCP). Its role was to preserve press freedom and to consider only those complaints about the press which came from people directly affected. It was funded by proprietors, included an overwhelming preponderance of editors and owners, a minority of journalists from the NUJ and the Institute of Journalists, and, flying in the face of the 1947-9 Commission, no lay members.

The failure of the GCP to deal properly with public complaints and to foresee and intervene in the wave of newspaper closures at the end of the 1950s led to more complaints and calls for better regulation. The 1960-1962 Royal Commission on the Press recommended self-regulation, but did not rule out statutory measures:

We think that the Press should ... voluntarily ... establish an authoritative General Council with a lay element as recommended by the 1949 Commission. We recommend, however, that the Government should specify a limit after which legislation would be introduced for the establishment of such a body, if in the meantime it had not been set up voluntarily.

The GCP announced it would reconstitute itself as the Press Council from July 1963, this time with 20 per cent of the membership from outside the industry. In spite of being chaired by an activist chairman, Lord Devlin, which for a time seemed to demonstrate its effectiveness, problems persisted. Newspapers were reluctant to publish negative rulings by the Council. Instances multiplied of questionable practice. There were complaints about insensitive coverage of national disasters, such as the devastating coal waste slip at the South Wales coal-mining village of Aberfan in 1966. Papers like the News of the World seemed to flout the Council and the courts, by paying witnesses in high profile court cases, such as the Moors murder trial in the same year. In March 1968 Edwin Brooks MP called for legislation to force the publication of details of payments to witnesses. By April 1968 Lord Devlin needed to impress upon the Guild of British Newspaper Editors the 'important role of the Press Council as an alternative to statutory control of the press'.

In the 1970s the Conservatives attacked the system of self-regulation as inadequate consumer protection, the Liberals and Labour for its lack of proper sanctions. Concerns about the inability of the Council to raise standards were part of the background to the next Royal Commission on the Press in 1974-77. This Commission rehearsed the shortcomings of the Council and urged a raft of reforms in the way it was constituted, how it dealt with the public and their complaints, and how it enforced its adjudications. The Council accepted some recommendations but not all; in particular it refused to draft a code of conduct or to spend more money publicising its adjudications.

Circumstances changed in the 1980s and 1990s. Press competition intensified and the aggressive journalism encouraged by powerful proprietors, such as Rupert Murdoch, owner of The Sun and the News of the World, led to a series of scandals. In 1987 a story in The Sun about the private life of Elton John resulted in a libel action, which the singer won. In 1991 journalists from the Sunday Sport gate-crashed the hospital where actor Gordon Kaye was lying injured, taking pictures without his permission. Other cases prompting concern involved ordinary people like the McKeevers, who in 1991 had their hopes of a miracle cure for their son's rare medical condition falsely raised by a report in the Daily Mirror. These scandals prompted a series of unsuccessful Private Members' Bills in the 1980s and 1990s aimed at raising press standards through statutory means.

The Government was eventually forced to act. In 1989 David Calcutt QC was asked to investigate press standards. The report of his committee in 1990 recommended a new industry-run body, a Press Complaints Commission (PCC), and a raft of new measures designed to protect privacy. The PCC was to be given a period of probation. Recognising the writing was on the wall, the Press Council was disbanded and the PCC formed by the industry in 1991. In July 1992 Calcutt was appointed to review the record of the PCC, in the wake of a wave of new press scandals surrounding the private lives of members of the Royal family and politicians including the Liberal Democrat Leader Paddy Ashdown and David Mellor, Secretary of State at the Department of National Heritage (DNH). The Calcutt review coincided with a high-profile debate surrounding Clive Soley's 1992 Press Freedom and Responsibility Bill, which sought to introduce a statutory requirement to correct factual inaccuracies, known as a Right to Reply, as well as promoting press freedom. Calcutt decided that the PCC had failed and should be replaced by a statutory body charged primarily with dealing with complaints.

By the time that Calcutt had reported in January 1993, the Conservative Government was on the back foot. The minister responsible, Peter Brooke, who had succeeded Mellor at the DNH, was genuinely concerned that statutory intervention might undermine press freedom. At the same time, the Government was under sustained assault from sections of the traditionally Conservative-supporting press over Europe and the inadequacies of Prime Minister John Major's leadership. In this climate, the idea of statutory regulation was dropped. In the 1990s the Labour Party also withdrew its commitment to the statutory Right of Reply, which it had supported since the 1980s, because it was keen to gain political support from the newspaper industry ahead of the next General Election.

An intractable problem?

The debates around Right of Reply and the Privacy Bills in the 1980s and 1990s pre-figure almost all those that have circulated around the Leveson inquiry, and have surfaced with depressing regularity since the 1947-9 Royal Commission. They always list the failings of the press and self-regulation and put the case for more effective, often statutory, regulation of standards. These concerns were always countered by assertions that statutory reform would be the 'thin end of the wedge', leading to state censorship of content; portraying the press as threatened by the monster of state control, waiting for its moment to pounce and devour hard won freedoms. In the end politicians have always supported the continuance of self-regulation, as they did in 1993.

The history of debates about regulation have been characterised by the portrayal of 'the state' (encompassing the government of the day, and the instruments described as being at its disposal, the courts and the police) as the real or potential 'enemy' of press freedom. This entrenched perception derives from the historical conditions under which that freedom had emerged. The state did censor the press in the past and this fact, which remains potent in the consciousness of many journalists and politicians, has been deployed routinely by the industry whenever attempts are made to reform regulation. The spectre of state censorship was conjured up at a meeting of 'distinguished editors and parliamentarians' convened to ruminate on the future of press regulation on 20 September 2011. Early on in the debate, Sir Harold Evans, the former editor of The Sunday Times,

asked the 12-strong panel and the audience if they preferred self-regulation to state regulation of the press: unsurprisingly, there was an overwhelmingly positive vote. As Steve Hewlett, of Radio 4's Media Show, put it: do we really want state-licensed newspapers and state-licensed journalists? This was a point echoed by Peta Buscombe, soon to depart as chair of the Press Complaints Commission: 'beware what you wish for,' she admonished panellists who were particularly scathing about the PCC.

The measures used to regulate the press after the lapse of economic controls in the nineteenth century did not involve licensing newspapers, no more than contemporary calls for statutory regulation of standards do, but they did involve, from the early twentieth century, secrecy legislation, which has been supplemented by laws allowing prosecution of journalists for contempt of court, causing offence or supporting terrorism. Ironically, Amelia Hill, The Guardian journalist who along with Nick Davies broke the story that Milly Dowler's phone had been hacked, was herself investigated by police for breaking the Official Secrets Act by refusing to reveal her sources to police. The investigation was dropped, and described by The Guardian's editor Alan Rusbridger as, 'a sinister new device to get round the protection of journalists' confidential sources'. Other, more recent laws now make it an offence to incite racial hatred or to name victims in certain categories of crime.

Thus, although much of the debate over Leveson has assumed that the 'status quo' meant the complete absence of state-led pre-publication censorship, in fact the state has continued to play a significant role in regulating the content of the press since 1694, both before and after publication. In addition the state has, and continues to, regulate standards in broadcasting through the agency of the BBC and Ofcom. Though problems exist with these arrangements, few would deny that this has led to the maintenance of consistently higher standards of journalism in broadcasting, compared with the press.

There does not appear to be any strong reason why a system of statutory regulation of press standards would open the door to pre-publication censorship; in fact the very transparency of such a mechanism would militate against that development.

The failure of self regulation and the interests of the press

The various incarnations of self-regulation - the GCP, the Press Council and the PCC - have failed because they lacked powers to impose effective sanctions on newspapers which flout industry-wide codes. They have lacked these powers because the proprietors, who have funded self-regulation, do not want their room for commercial manoeuvre limited by the effective regulation of standards, particularly at a time when circulation figures are tumbling. However the current debate is characterised by a degree of forgetfulness about recent history, one which implies that self-regulation has not been given a fair chance. For instance at the meeting on 20 September 2011 it was reported by the former TV executive and media commentator David Elstein that:

Alan Rusbridger, editor of The Guardian, had little confidence in the PCC as an effective body: it had barely attempted to regulate the press - perhaps we should actually try self-regulation before concluding it does not work.

But, in 1993 the government agreed to just that, to give the press the chance to put its house in order, reform the PCC and move forward. Indeed the next 18 years were a prolonged trial and application of a reformed system of self-regulation. But the outcome of this trial seems to demonstrate beyond reasonable doubt that self-regulation does not work in the public interest. The press masks this failure by shifting the argument to territory which it can dominate. It represents its own interests in self-regulation as being the same as the general right to 'freedom of expression', and implies that limits on the former must mean harm to the latter. The newspaper columns remain open to these arguments, while other positions rarely gain a foothold. Thus the public and politicians are faced with a barrage of powerful, self-interested and partial formulations of the problem.

Finally the problem with self-regulation can be understood in terms of the concept of regulatory capture. This occurs when government-created regulators, such as Ofcom, interpret their role as protecting the interests of the industry, rather than those of the public. It can also apply to ostensibly independent bodies established by industries to regulate themselves. Self-regulation of the press clearly falls under this heading.

The post-Leveson policy climate

Lord Justice Leveson reported in November 2012, calling for the creation of an independent, self-regulatory body, governed by an independent board, without any influence from either industry or Government. He suggested the body be industry-funded, but that the majority of its members should be independent of it. It would set up a code to balance press freedom and the public interest, deal with complaints from individuals and groups, and have the power to direct the nature and placing of apologies. Serious breaches of the code could be punished by fines of up to 1 per cent of turnover, to a maximum of £1million.

A fast track arbitration service would deal with civil legal claims against newspapers. Subscribing publications could have their membership taken into account when courts determined the level of any legal costs in civil cases. This was the key financial incentive Leveson offered to proprietors to sign up to the system.

Leveson recommended that a 'recognition body' be established by statute with the sole purpose of verifying that the self-regulator fulfilled the criteria for such a body as set out in the report. The national press subsequently agreed to reform self-regulation along lines laid out by Leveson, but rejected outright the introduction of statutory underpinning for the new body. Labour and the Liberal Democrats favoured statutory underpinning, but the Conservative Party, and the Prime Minister, David Cameron rejected it, and set out proposals to guarantee the independence of the new body through the instrument of a Royal Charter. This was widely criticised by bodies like Hacked Off, which campaigns for the victims of phone-hacking. The NUJ has also pointed out that the Charter would not properly take on board Leveson's recommendations, leaving the ultimate power over the process of verifying any new industry procedures in the hands of a few politicians acting without Parliamentary scrutiny.

On 18th March 2013, after intense negotiations between all three political parties, an agreement on the Royal Charter was reached. This will establish a Recognition Panel to validate the industry's regulatory procedures, backed up by an amendment to the Enterprise and Regulatory Reform Bill stipulating that changes could only be made by a Parliamentary vote, not by Ministers.

The territory is now fairly clearly mapped. The Conservative Party does not have a majority in the House of Commons, and would be unlikely to win a vote on any measure that did not have the support of both Labour and the Liberal Democrats. This explains why the Government agreed to a mild form of statutory underpinning, something which the two other parties continue to insist on. The industry remains hostile to the deal, claiming they were frozen out of the negotiations, that the measure did not account properly for news on the internet, and that it was a threat to press freedom.

With cross-party support in place, the Government may forge ahead and establish what, viewed in historical terms, is a very mild reform of the system of self-regulation. But given the close political links between Conservative politicians and the newspaper industry, and the mobilisation of the press against the new deal, this seems a risky option for David Cameron. With a General Election only two years away, he might rightly fear the repercussions of sticking to the current agreement.

It is unfortunate that after so much effort by so many people involved in the Leveson committee, a modified version of the status quo looks, at the time of writing, increasingly likely to be the outcome. It will be yet another victory for the newspaper industry, a defeat for reforming politicians and campaigners, and is likely do nothing to curb the recurrence of problems similar to those that Leveson and his six predecessors have had to face. An eighth investigation into the regulation of press standards seems a foregone conclusion.


Further Reading


Bingham, Adrian: 'Drinking in the Last Chance Saloon', Media History, 13:1 (2007), pp.79-92

Bromley, Michael and O'Malley, Tom: A Journalism Reader (London, 1997)

Davies, Nick: Flat Earth News (London, 2008)

Engel, Matthew: Tickle the Public: One Hundred Years of the Popular Press (London, 1996)

Frost, Chris: 'Newspapers on the Naughty Step', Journalism Education, 1:1 (2012), pp.21-34.

Jones, Aled: Powers of the Press (Aldershot, 1996)

The Leveson Inquiry, The Report into the Culture, Practices and Ethics of the Press (London, TSO, November 2012)

O'Malley, Tom and Soley, Clive: Regulating the Press (London, 2000)

Wakeham, John, Cole Peter, O'Malley Tom: 'Debate' Journalism Studies, Vol.1 No2: pp.323-335 (2000)

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