Media Standards and Media Regulation

Baroness O'Neill of Bengarve Excerpts

Thursday 25th October 2012 Lords Chamber

Moved By

[Baroness O'Neill of Bengarve]

That this House takes note of the relationship between media standards and media regulation.

[Baroness O'Neill of Bengarve]

My Lords, it is a privilege to open this debate on media standards and regulation, and to do so at this stage in events. Some noble Lords may be wondering whether this is the right time to debate this topic, given that Lord Justice Leveson has yet to report on his inquiry into the sad and sometimes criminal practices that have made media standards and regulation an urgent issue. Ministers will, of course, not wish to take a position on media standards and regulation in advance of his report. I think that we all recognise that as the context of this debate. However, I believe that we still lack a clear view of the sorts of issues that will be at stake when Lord Justice Leveson reports. Therefore, this is, on the contrary, rather a good point at which to have an initial debate, which I hope can help pave the way for later and more detailed consideration. I look forward with great pleasure to hearing the speeches from so many noble Lords today.

I begin by declaring an interest as the incoming chair of the Equality and Human Rights Commission. The issues raised by this debate bear on rights of freedom of expression, rights to privacy and many related rights. Everything that I shall say in this debate draws on work done across the previous decade on a wide range of speech rights, including international debates in political philosophy and jurisprudence. None of it draws on positions taken by the commission that I shall shortly begin to chair.

I shall focus on two questions. The first is whether media regulation can be used to support media standards without risk of censorship. I think that that is a formulation of the fundamental issue. And, if it can, what sort of media regulation would be compatible with a free press? Discussion of the first question is already widespread and it is often said that any regulation, other than self-regulation, far from supporting media standards and freedom, would corrupt them. Others think that media regulation and media freedom need a statutory basis; namely, regulation that can use specific and limited powers to investigate and to sanction failures.

The particular form of regulation provided by the Press Complaints Commission has come in for a lot of criticism, even by those who think that self-regulation of some other sort could be made to work. In my judgment, however, the details of the PCC complaints process are only part of what has been defective. We should not expect a complaints procedure of any type to make more than a minor, if useful, contribution to maintaining media standards. Media content is not a consumer good in the standard sense but is a public good in the economists’ sense of the term. Complaints procedures alone therefore cannot do much to secure media standards. That may, of course, have been part of the appeal of the PCC approach in certain quarters. In the event, the governance and funding of the PCC did not enable it to achieve even those benefits that a good complaints procedure might have achieved. The defects of its complaints so-called resolution procedure have been amply documented by Full Fact, an independent fact-checking organisation, whose recent briefing demonstrates the sad limitations of the PCC’s supposed commitment to accuracy and the ways in which complainants have been let down.

Those who are searching for alternative and more adequate forms of self-regulation have made many suggestions, and I will be interested to hear proposals that other noble Lords may think could be made to work. My own belief is that there are strong reasons to be sceptical about the possibility of devising adequate forms of self-regulation, even if the format of a complaints procedure is seen for what it is. Let me remind your Lordships of a few of those reasons. This is certainly not a new problem, and the evidence that self-regulation will not work is now very substantial. Since the first Royal Commission on the Press, set up in 1947, there have been repeated attempts to find an effective form of media self-regulation. Across more than 60 years, all have come to grief, as has been documented by the Media Standards Trust in its recent report A Free and Accountable Media and covered in recent briefings from the Foundation for Law, Justice and Society. So the burden of proof that self-regulation can work now sits squarely with its proponents. The history of successive failures in self-regulation provides strong evidence that it always ends up as self-interested regulation.

Secondly, the task of convincing others, and above all the public, is much harder than it would have been in the 1940s, for several reasons. Society has changed in immense ways; other institutions and professions have lost the privilege and the culture of self-regulation, making it hard to see how such privilege can be justified or can work for the media. Thirdly, self-regulation is not, contrary to some assertions, necessary to protect media freedom. We know that because other countries which also enjoy a free press have found approaches to media regulation, not self-regulation, that are compatible with press freedom. I call attention to Lara Fielden’s recent report for the Reuter’s Institute, titled Regulating the Press: A Comparative Study of International Press Councils.

Finally, proponents of self-regulation all too often assert that the press should be free, “apart from requirements to comply with the law”. That may be true, but shows nothing about what form the law should take. The assertion simply begs the question of showing which forms of media regulation are, and which are not, compatible with a free press and adequate standards of journalistic practice.

I turn now from the question of whether regulation must be ruled out in principle to consider which sorts of regulation are and which are not acceptable. Why should we support and protect one or another conception or configuration of media freedom? What do appeals to freedom of the press, or freedom of expression justify? What limits do they set on permissible statutory regulation? Do they require specific approaches to statutory regulation? These fundamental questions cannot be settled by mere assertion, yet recent discussions often do no more. Appeals are made to rights of free speech and a free press or, as we have been used to saying since the Universal Declaration and the European Convention on Human Rights 50 years ago, rights to freedom of expression. So far, so good, but an appeal to a charter, declaration, constitution or convention is in itself no more than an argument from authority. But these documents are respected authorities. Similarly, US debates of press freedom appeal to the First Amendment to their constitution, which asserts that Congress shall make no law abridging the freedom of press, and they too appeal to good authority. These august documents do not justify any specific configuration of media freedom. That is both because declarations and constitutions do not do justifications, and because they are very indeterminate. They offer only starting points for justifying press freedom, and each requires interpretation. The accounts of press freedom that emerge from the best reasoned interpretations of human rights documents will be the best justifications that we can offer for specific configurations of media freedoms.

If this point seems contentious, it may help to remember that these authoritative documents do not proclaim absolute rights. They point to a range of rights each to be realised in ways that respect other rights. Article 10(1) of the European Convention starts with a ringing and well known assertion:

“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers”.

However, Article 10(2), so much less read and so much less cited, qualifies this point by stating that:

“The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others”,

and so on. So much for the thought that a mere appeal to human rights documents is going to settle anything, but what else do we have? I believe we have a lot more. The best arguments we have will not justify unconditional media freedom but they will show us something about the acceptable limits of media freedom, and thereby the acceptable limits of regulation.

One argument often invoked is that media freedom is necessary for discovering truth. The argument has deep roots in British political thought: John Milton wrote in Areopagitica,

“though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously, by licensing and prohibiting, to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter?”.

It pains me to say this but Milton’s argument is doubly defective as a justification of media freedoms. Truth is often worsted in free and open encounters: that is why we regulate speech where truth matters: for example, in courts of law and academic publishing.

Secondly, we need media freedom that also protects speech that does not even aim at truth, such as literary and artistic expression and horoscopes. Where media speech aims to discover truth, disciplines analogous to, but different from, those needed in other truth-seeking endeavours matter. Pausing for a moment on that specific point, we shall need to think about special protection for genuine—I emphasise “genuine”—investigative journalism. We discussed this to some extent exactly three months ago today in a debate on the Select Committee on Communications report on investigative journalism, chaired by the noble Lord, Lord Inglewood.

We also hear frequent references to another landmark of British political thought, John Stuart Mill’s famous argument on behalf of rights of self-expression for individuals. However, it is one thing to say that individuals have rights of self-expression, and Mill’s argument applies to individuals, not to organisations, which are not “selves” in the relevant sense. In general, I believe we are right when we think we should regulate the speech of powerful organisations, and we must consider the case for statutory regulation of media communication, but the problem is: how is this to be done in a way that is compatible with the necessary media freedoms? My suggestion is that the media should be free to communicate any content they choose provided that the processes they use enable their intended audiences to follow, understand and assess that content. Regulation of process but not content would protect media freedom but also media standards. Good journalism has always aimed to do this.

I finish with brief examples not drawn from the grand heights of investigative journalism, on which we are so often rightly asked to focus, but from the daily content of humbler journalism, in which much is hidden from audiences that they need to know if they are to assess content. I suggest that if the media were required to be transparent in some of the ways in which they have insisted other organisations and professions should be transparent, we might add a great deal to media standards. I suggest three possible forms of transparency. One is openness about payments from others. At present we cannot tell whether money has been paid to secure certain content. Did celebrities pay for it? Who paid for the lovely clothes, hotels and meals that are supposedly reviewed? I think that readers, listeners and viewers should be able to tell. Why should advertising standards not apply to all paid-for content, including that paid for or provided in kind?

Secondly, there should be openness about payments to others. At present, audiences cannot tell which media content has been purchased. Even where it is not possible to reveal the name of the vendor, surely it could be made clear that certain content had been acquired by payment.

Thirdly, there should be openness about interests. Owners, editors, programme makers and journalists, like many others, have interests. However, they remain curiously exempt from requirements to disclose them. The media often demand transparency about the interests of others in powerful organisations. I suggest that what is sauce for the goose is sauce for the gander too.

Finally, we must, of course, protect investigative reporting and think with care. There is much more to be said about the protection of genuine investigative journalism, about the limited nature of anti-monopoly provisions and about the domination of British newspapers by owners who are not taxpayers. I have merely pointed to some of the things we need to consider at this stage and I look forward to hearing other contributions.

--- Later in debate ---

[Baroness O'Neill of Bengarve]

My Lords, I am grateful to all noble Lords who have taken part in the debate. There cannot be any of us who has not learnt a great deal. I particularly wish to thank the Minister for the care with which he has followed my lines of argument. It is rare to find at the Dispatch Box such a detailed grasp of the various lines of argument that are put forward round the House and I appreciate that very much.

As we listened to positions that challenged each of us in various ways, it occurred to me that we have to be very careful about our future use of the term “independent”. Surely what we want are independent media. Sometimes I felt that the adjective was sliding to and fro between the media and the regulation. There are many different forms of regulation. I would be extremely critical of—what shall we call it?—a full waterfront mode of regulation for the media. I do not think that it could serve its purpose. As I suggested, I would be highly appreciative of a complaints service that really served the needs of the public in a way that at its best the Press Complaints Commission has succeeded in doing. However, one has to say that often it has not left members of the public feeling that their complaint was heard or that the corrections had an adequate prominence to constitute any sort of reparation.

There is a long way to go. We wait for Lord Justice Leveson to give us the next chapter, but I am sure that we will be back debating these things in the not-too-distant future. When we do, I hope that we can, as it were, put on one side the thought that there is one position that owns the label “independent regulation”. As I suggested, self-regulation does not automatically count as independent regulation. It is too often and too readily a form of self-serving regulation. But, equally, we can all of us imagine forms of statutory regulation which would probably kill the goose as they sought to protect it. I believe that statutory regulation will in the end be needed but only on a very narrow front to enable independent bodies to have the necessary powers. The thought that it can be done by the civil law is, of course, highly attractive but you have to contract in at the beginning, and there is the rub. Not everybody will wish to contract in at the beginning. Therefore, departing will carry no sanctions for them and we will have perhaps a small, high-quality press that has contracted in and others who see that there is profit and advantage in remaining an outlaw. Therefore, we have not solved the problem. We did not expect to do so this morning, but I do not regret having this debate at this time. I thank everybody who has contributed.

Motion agreed.