Media Standards and Media Regulation

Viscount Younger of Leckie Excerpts

Thursday 25th October 2012 Lords Chamber

[Viscount Younger of Leckie]

My Lords, first, I take this opportunity to thank the noble Baroness, Lady O’Neill, for tabling this debate and drawing attention to this most important issue, and at such a significant moment, as we await Lord Justice Leveson’s findings on his inquiry into the culture, practices and ethics of the press. I also take this opportunity to congratulate the noble Baroness on her recent appointment as chair of the Equality and Human Rights Commission, and I am sure that it will flourish under her leadership. The noble Baroness is of course a most respected contributor to this debate, tackling the issue of press and media freedom a decade ago as part of her 2002 Reith lecture series, “A Question of Trust” and more recently in contributions including her 2011 Reuters memorial lecture, “The Rights of Journalism and the Needs of Audiences”, and a development of that argument which she presented earlier this year in evidence to the Leveson inquiry.

In terms of the Leveson inquiry itself, it will be of little surprise to your Lordships that it would not be appropriate for the Government to prejudge its findings by speculating here about what it may contain, or indicating any sense of preference for the recommendations. But that does not stop this Chamber from debating the issues that will need addressing once Lord Justice Leveson has reported. It is important to state very clearly that, come what may, the Government recognise the fundamental importance of freedom of speech and a vigorous press to support this as part of the democratic process. The press plays an essential role in holding the powerful to account; it brings matters of public interest to the fore, informing citizens, and enabling them to exercise their democratic rights. Of course, it also entertains and educates them. As the noble Baroness, Lady O’Neill, states, it secures the communication on which social, cultural and political life depend. Whatever steps are taken, it is vital that we maintain a press that is free to conduct this important role in our society. My noble friend Lord Black highlights the important point that Great Britain is a beacon in the Commonwealth, and indeed the world, for setting the bar high for press freedom.

The Government set up the Leveson inquiry last year in response to the phone-hacking scandal, culminating in the news that Milly Dowler’s phone had been hacked by the News of the World. The Government are determined to get to the bottom of all that journalists and their agents were doing in hacking into phone messages, what the police knew when, what they did about it, and how we might learn lessons for the future. But it is important to remember that phone-hacking is illegal; regulatory reform should not therefore be about creating a system that prevents illegal behaviour, as that remains a matter for the courts. What it must do, however, is tackle the culture and practices that provided the context in which that illegal behaviour became widespread. In doing so, we need to separate out actions that were, and which remain, illegal and subject to the criminal law from those which are issues of culture and operational standards, though the two are linked. I agree with my noble friend Lord Fowler that the Leveson inquiry is proving to be thorough, full and detailed.

It is important that going forward the regulatory framework for the press is effective, ensuring that the systematic failings as evidenced through the inquiry are not repeated, as my noble friend Lord Razzall iterated in strong terms. When he set up the inquiry, the Prime Minister said that he wanted to aim for independent regulation of the press. That remains the Government’s ambition and, as the Prime Minister has recently said, we must be able to look the Dowler family in the eye with any future solution.

In considering these issues, the noble Baroness’s work gives us some very useful tools which help us to frame the debate. She asks us to take a step back, to consider what role we expect of the media in society more generally; what we mean by media freedom; and importantly, where the corresponding balance may lie between its freedom and its responsibility towards the public it serves. The noble Baroness also articulates the importance of understanding first what we are trying to regulate—that is, the standards—before it is possible to understand or debate what may be an appropriate form of regulation to uphold these. As she points out, there is a crucial distinction between regulating media processes and attempting to control media content, or the difference between the how and the what. Let us be clear, the Government agree with her that we must not stray into the regulation of content itself, beyond the application of the general rule of law as it already applies today. The noble Lord, Lord Janvrin, also made that important point. By articulating media process as the focus of regulation, therefore, it is possible to distinguish very clearly where we should engage in debate in order to assess whether regulatory solutions are likely to encroach upon media freedoms.

The noble Baroness, Lady O’Neill, goes on to state that media standards as currently formulated are not sufficient. She argues there are three essential ingredients needed to ensure the public are presented with accessible, intelligible and assessable information through the media. It is the last point, the assessability of information presented to the public by the media, that she feels is least well served, as she has highlighted so eloquently today.

I turn now to a number of observations from noble Lords who have spoken. First, my noble friend Lord Eccles rightly focused on the human interest stories, when individuals are caught up unwittingly in a media storm. I agree with him that they have a particular right of protection—but, as he pointed out, without statutory regulation.

My noble friend Lord Stoneham pointed out in detailed terms the importance of looking at market dominance. I can confirm that Lord Justice Leveson is looking at media ownership and plurality—and there is hope that he will comment on that when he reports.

The noble Lord, Lord Janvrin, made a strong point about having a stronger and more effective code of conduct. I agree with that, and I have noted it. This particular code of conduct has of course to be accepted and respected by all stakeholders.

The noble Lord, Lord Sugar, made the point that there has never been such a demand for stories. He said that these stories are produced so quickly, to keep the media going, that media standards are lowered. Certainly that is something that needs to be looked at in terms of media process. It comes back to the lack of assessability.

Several comments were made about the internet and convergence. My noble friends Lord Inglewood and Lord Black spoke on that subject, making some powerful points, along with my noble friend Lord Wakeham and the noble Lord, Lord Janvrin, about the increasing power of the internet and the power of media contact and stories that can be experienced across a wide variety of platforms, from print to online publishing to TV, video, smart phones and tablets. In other words, it has become an extremely complex landscape. Stories can go viral and almost immediately they are global, so there are very important issues around convergence. These will be considered by the Government in their communications review. As your Lordships will know, a White Paper will come out in the new year. Surely responsibility for process must ultimately lie with the originator. Only the originator of a story can answer for that, as the noble Lord, Lord Puttnam, pointed out.

I note from following the inquiry that Lord Justice Leveson has received a range of proposals for future press regulation. I felt it was easiest to present these by placing them on a continuum or a sliding scale. These proposals ranged from at the one end a continued form of self-regulation through to a fully fledged statutory approach at the other. However, I note that today no speaker has focused on the regulation side in great depth.

I would like to pick up a number of comments that were made about self-regulation and the degrees of self-regulation that we hope are being considered. The noble Lord, Lord Black, referred to the work that my noble friend Lord Hunt has done in making some proposals and, indeed, pioneering a form of self-regulation that they believe will be a way forward. It is a form of self-regulation backed by contracts between the press and the regulator. As my noble friend Lord Black pointed out, that regulation would essentially be buttressed by civil law and would not be statutory. It would have real powers of investigation and sanctions to deal with breakdowns. My noble friend Lord Black mentioned that fines of up to seven figures would be possible. However, such fines would need to be proportionate to the size of the media involved. Then the question arises of why a publication would sign up to this. Let us presuppose that publications signed such a contract. We assume that this would be a rolling five-year contract. In essence, if any publication decided to pull out, that would be a breach of contract and penalties would be involved. Let us assume that those penalties would be strong enough to prevent them so doing.

A number of incentives to join such a scheme are being considered, as has been mentioned by noble Lords today. They include legal incentives: for example, partial defence in defamation cases, as in the Irish cases, and a defence can be claimed by members of a regulator. In addition, there would be a cap on damages in civil court cases as an incentive to join and a delay in court proceedings to allow complaints to be followed up. The noble Lord, Lord Soley, mentioned a financial incentive. Publications that signed up to the scheme would be subject to a zero rate of VAT.

Kitemark schemes have been mentioned. I believe this is an interesting way forward in that publications that did join up would in effect be accredited and would have a kitemark attached to them, which would give them a great deal of credibility. This was mentioned by the noble Lord, Lord Janvrin. The noble Lord, Lord Soley, was very helpful in highlighting these incentives.

Taking a further step along the sliding scale, the introduction of an underpinning statute was suggested. This option would still see the continuation of self-regulation in day-to-day practice, but with the provision of backstop powers for use in the event that it was failing. Put forward by the Media Standards Trust among others, this option would provide additional teeth and involve creating a small body which would oversee the regulator or regulators. Such a body would be able to intervene if certain agreed standards were not met by the regulator, adding a further layer of accountability to the system and a safeguard if the regulator was not performing as it should.

Returning to the arguments made by the noble Baroness in opening this debate, I note that, having established that regulation should be limited to media process, she argued that an element of statutory underpinning is now needed to place it on an effective footing. While any system needs to safeguard media freedom, the distinctions made by the noble Baroness today are helpful in focusing the debate more specifically on the question we must all consider: the extent to which the freedom to publish would be impacted by underpinning the regulation of some aspects of press processes. If such a course were taken, we would need to think very carefully and safeguards would need to be put in place. I note the passionate argument of my noble friend Lord Black of Brentwood against state intervention, particularly that any use of statute risks sliding down a slippery slope. However, I think it is helpful to be clear that regulating process may not be the same as regulating content if it came to a form of statutory underpinning.

The outcome of any new system must be to give the public confidence that the press is operating responsibly and that all complaints will be transparently and fairly handled, while allowing the press to remain free to continue pursuing world-class journalism. The key question must be: what constitutes the most effective way of achieving these ends? They would be achieved by a system that is appropriately independent of the press, government and politicians, is accountable, has teeth and is capable of delivering access to fair, cheap, quick and reliable justice for victims, which is what everyone has called for during the Leveson inquiry.

As the Prime Minister has recently commented:

“We don’t want heavy-handed state intervention”.

However, he added:

“The status quo is not an option”.