by Natalie Fenton
Last week the culture minister Matt Hancock announced the government’s response to the public consultation on the Leveson Inquiry and its implementation. The government announced that it will repeal Section 40 of the Crime and Courts Act 2013 and will not continue with the Leveson Inquiry Part 2 that was supposed to consider corrupt relations between police and media and was unable to proceed at the time because of court cases that were ongoing.
For those who have lost track of this protracted process it is worth a quick flashback to over five years ago when the Leveson report was published. After an inquiry lasting nearly a year and a half, Lord Justice Leveson delivered his recommendations in November 2012. The report discussed in detail how the newspaper industry had become too powerful and that meaningful reform was needed to restore public confidence in the press. Leveson was clear to emphasise that his recommendations were about enshrining press freedom and ensuring that any subsequent regulatory system was independent from government, albeit underpinned by statute. He also had to satisfy the many victims of press abuse that his recommendations would bring about an independent regulatory system with teeth that could hold the industry to account when necessary while ensuring that the press could not, as was popularly remarked, mark their own homework.
Yet still the press industry objected with a simplistic response to so-called government interference in the workings of the press. This prompted the then prime minister, David Cameron, who had initially said he would implement the Leveson recommendations unless they were ‘bonkers’, to state that even statutory underpinning – a law to enact the costs and incentives of a new system with no interference whatsoever in the actual running of, or decision making of the new self-regulatory body – would be ‘crossing the Rubicon’. In other words, the sacrosanct position of a free press in a free society would be irreparably undermined – there would be no going back.
Invoking the language of free speech quickly became the default position of the press lobby. Of course, nobody would dispute the freedom of the press to hold power to account but this does not put the press themselves beyond accountability. Freedom without accountability is simply the freedom of the powerful over the powerless which, arguably, is precisely what the press are still trying to preserve: freedom to run roughshod over people’s lives causing harm and distress for the sake of increased sales and revenue.
But freedom works both ways and freedom of the press must be balanced by freedom of the public to assess and challenge the nature of that communication: freedom shared not power abused. In other words, democratic practice requires protective and enabling legislation and that is why it exists in other areas of public life. But with a general election creeping ever closer, Cameron bowed to the rhetoric of ‘press freedom’ and opted for setting up a new press self-regulatory body not by statutory underpinning but by Royal Charter. Initially, it looked like the press lobby were willing to accept this (it was, after all, devised in response to their concerns), but when their own version of the Charter was not accepted, powerful press interests soon backtracked and found excuses to repudiate this mechanism making it quite clear that they had no intention of ever agreeing to a system that they were not able to fully control. Instead they revamped the discredited Press Complaints Commission and called it the Independent Press Standards Organisation (IPSO) – an organisation run by the industry, that meets less than half of Leveson’s recommendations.
This has been a consistent pattern established over the last five years – where the press appear to be sympathetic to at least some of Leveson’s recommendations but over time repudiate most of them and then proceed to do exactly as they like.
This brings us to Section 40 (remember – the government is now set to repeal this part of the Crime and Courts Act). A crucial part of the new Royal Charter system relied on persuading the press to join a recognised regulator. Leveson knew this wouldn’t be easy and so devised a system hinged on costs and incentives that sought to balance two key objectives: providing access to justice for ordinary people wronged by the press without the risk of huge legal costs; and protecting news publishers from wealthy litigants threatening them with financially ruinous court proceedings. Section 40 of the Crime and Courts Act does this through a system of carrots and sticks – if a news publisher joins a recognised regulator then access to low cost arbitration becomes mandatory. This removes the threat of potentially huge losses for both ordinary citizens who may be the victims of illegal journalistic behaviour and for publishers who may be threatened by a wealthy litigant who doesn’t like what they have printed. Only claimants with a genuine legal case can be offered arbitration thereby avoiding trivial and malicious claims being brought. In reverse, if a newspaper decides not to join a recognised regulator and thereby refuses to offer affordable access to justice, then they will be liable to pay all costs of court action against them. The new system of regulation also includes protection for local and regional publishers to prevent causing them financial hardship.
Section 40 is integral to the success of the Royal Charter framework of press regulation and the press know it. Consequently, even after Section 40 had become law (but had not yet been commenced) much of the Press went on a propaganda offensive to try to ensure it never saw the light of day. Karen Bradley, then Secretary of State for Culture, Media and Sport came under increasing pressure from both sides of the debate and capitulated by putting the commencement of Section 40 out to public consultation (giving herself powers of decision over the terms of press regulation that had already been agreed by Parliament and immediately flouting the principle of no government interference that has since been flouted again by Matt Hancock’s announcement last week).
During the period of public consultation the press engaged in an industrial shutdown of debate over media reform. This has never been about a struggle for organisations whose fundamental mission is to hold power to account. Far from it. This has always been about hanging on to power without accountability.
It is worth considering the government’s reasoning for repealing S40 and abandoning Leveson Part 2.
Firstly, it claims that IPSO is doing a good job. On February 20th, just over a week before the government’s announcement, the Home Affairs Select Committee met to discuss the role of the press in spreading ‘hate crime and its violent consequences’. In October 2016 a few months after the Brexit campaign, the European Commission against Racism and Intolerance Report on the UK stated: “Hate speech in some traditional media, particularly tabloid newspapers, continues to be a problem, with biased or ill-founded information disseminated about vulnerable groups, which may contribute to perpetuating stereotypes…..It is no coincidence that racist violence is on the rise in the UK at the same time as we see worrying examples of intolerance and hate speech in the newspapers, online and even among politicians.”
One of the witnesses to the Select Committee was Sir Alan Moses, Chair of IPSO. The Committee heard that according to IPSO’s own data it had received 8,148 complaints in a single year relating to discrimination but that only one of those had been upheld. Moses said that this figure reflected the nature of Clause 12 of the Editors code that only allowed complaints of discrimination to be upheld when they are made against individuals and not a group of people such as Muslims, LGBTQ+, migrants, refugees, women etc. In other words it “gives license to general discrimination by explicitly excluding it from its definition”. So invoking Nazi rhetoric by talking about “the Muslim problem” as Trevor Kavanagh did (who was then on IPSO’s Board) in his column in The Sun is, according to IPSO, perfectly legitimate. The Editors’ code committee (chaired by the editor of the Daily Mail, Paul Dacre – the newspaper which has consistently been found to have committed the most breaches of the Code) had revised the Code in 2015 and knew precisely what it was doing. And so, it is perfectly happy to consider 8,148 complaints relating to discrimination and say that there is not a problem. IPSO is working just fine (if you happen to be a newspaper editor). Funnily enough none of the mainstream press covered the Select Committee hearing (apart from the Press Gazette a week later, after being called out on its failure to do so).
Second, the government argued that the media landscape has changed. On the face of it this is of course irrefutable – news now comes to us in many different ways. But the response to the government consultation pegs its argument on the claim that “the percentage of adults reading online news, newspapers or magazines has tripled from 20 per cent in 2007 to 64 per cent in 2017”. It then cites Ofcom research that the percentage of adults who read newspapers (excluding online versions) has fallen from “40% in 2013 to 21 per cent in 2016”. The argument put is that the power of the press is diminishing rapidly in the digital era and we should no longer be worried about it.
But if many more people are reading news online why exclude that readership from any analysis of the power of the press? Ofcom also notes that in 2016 just over 60% of consumers relied on just one or two wholesale news sources (regardless of which platform), less than they did in 2011 and that the combined print and digital readership of the Daily Mail and Mail on Sunday, The Sun and The Sun on Sunday, The Times and the Sunday Times, and the London Evening Standard increased between 2015 and 2016. Online intermediaries (such as Facebook and Google) most often amplify the voice of dominant news brands because their algorithms prioritise mainstream news content. Ofcom refer to data from Newscorp showing high levels of consumption of their content through third-party platforms and note that according to comScore’s News/Information category 68% of the total digital audience access the Mail Online/the Daily Mail and 64% access The Sun Online. The 2017 Digital News Report from the Reuters Institute also states that “[o]ur research suggests that the vast majority of news people consume still comes from mainstream media and that most of the reasons for distrust also relate to mainstream media” (p.19).
It is probably because most people’s news still comes from the mainstream news media that constant polling has shown high levels of support for media reform and a firm rejection of press manoeuvring. A poll undertaken by YouGov for Hacked Off in January 2017, after an onslaught of anti-press regulation coverage across all news media, still showed that 73 per cent of the public thought press behaviour had either got worse or not changed since the Leveson enquiry.
So why did the government consultation claim that the vast majority of responses (79%) favoured full repeal of Section 40? The government consultation chose to count only ‘direct responses’ to their survey – the total of 174,730 direct responses came in the form of emails, letters and online survey responses. They note that a large number of direct responses (although we are not told how many) came as a result of newspapers and their organisations encouraging their readers and members to respond directly to the consultation. Other organisations who encouraged members to respond such as Avaaz and 38 degrees with a combined total of 200,428 responses all supporting Leveson 2 were ignored because they were not considered to be ‘direct respondents’. How convenient.
It is worth reflecting on the history of failed press regulation. The first Royal Commission on the Press (1947-49) led to the press industry creating the General Council of the Press (1953). Dissatisfaction with its practice led to the second Royal Commission on the Press and to the General Council being replaced by the Press Council in 1962. In 1972 the Younger Committee report on Privacy was critical of the Press Council which rejected their concerns. In 1974 a third Royal Commission on the Press looked into editorial standards and freedom of choice for consumers. It suggested a new written Code of Practice. The Press Council again rejected the Commission’s suggestions. In 1990 the Calcutt Committee was established to look into press intrusion. Calcutt recommended replacing the Press Council with a new Press Complaints Commission (PCC) and a new Code of Practice. In 1993 Calcutt reported on the progress of the PCC. He determined that sufficient progress had not been made and recommended the introduction of a Statutory Press Complaints Tribunal. Once more the press industry objected and the government failed to act on the recommendation. In 1995 the National Heritage Select Committee published a report on privacy and press intrusion and made recommendations on a new Statutory Press Ombudsman. The press objected and yet again the government yielded and rejected the recommendations. In 2009 the PCC published a report in response to the Guardian phone hacking investigation ‘Phone Message Tapping Allegations’ (that was subsequently withdrawn on 6 July 2011). In July 2011 the Leveson Inquiry was announced. The discredited PCC was replaced by the Independent Press Standards Organisation (IPSO) and the majority of the mainstream press signed up to it. But, IPSO refused to be part of the system of press regulation under the Royal Charter.
What this history tells us is that the press have consistently promised to self-regulate adequately and consistently failed to do so. The government, keen to maintain good relations with the press, has consistently bowed down to industry pressure. Its ground-hog day all over again. Only this time something is different. The campaigns for media reform are now well established and reach across a vibrant and angry civil society that believe society deserves a free, fair and accountable press. We are not going away.
Natalie Fenton is Professor of Media and Communications at Goldsmiths, University of London and Chair of the Media Reform Coalition.
The Media Reform Coalition is holding a Media Democracy Festival on March 17