Regulation of the Press Nine Key Questions for Civil Society ACKNOWLEDGEMENTS This paper was written by Douglas White, with assistance from Jennifer Wallace. Invaluable comment, feedback and support was provided by Martyn Evans, Martine Miller, Blair Jenkins and Bill Livingstone. © This work is licensed under a Creative Commons Attribution-ShareAlike 3.0 Unported License. To view a copy of this license visit, http://creativecommons.org/licenses/by-sa/3.0/ or send a letter to Creative Commons, 444 Castro Street, Suite 900, Mountain View, California, 94041, USA. This report is printed on paper that is FSC certified. i Regulation Of ThE press Contents Foreword and summary ii Background 1 Context 2 Why is the Carnegie UK Trust getting involved in the debate about press regulation? 2 What is the aim of this discussion paper? 3 The theory of regulation 4 Regulation of the press – nine key questions for civil society 5 1. Why is press regulation a special case? 6 2. Who are we trying to regulate? 7 3. What do we want to regulate? 8 4. Who should do the regulating? 10 5. Who pays for the regulation of the press? 11 6. What model of regulation should be used? 13 7. How do citizens access redress? 15 8. How should regulations be enforced? 16 9. What are the limits of regulation? 17 10. Concluding remarks 18 foreword and summary iii Regulation Of ThE press foreword This is a year in which many of the news there has been a loss of public confidence in the headlines have been dominated by shocking current regulatory arrangements and trust must Blair Jenkins OBE stories about the very people who report the now be restored. Carnegie Fellow news. In the wake of the phone-hacking scandal Former Head of News in the UK, journalists who are used to scrutinising It is our hope that there will be a wider and and Current Affairs, and questioning the actions of others have found deeper engagement by citizens and civil society BBC Scotland and STV the searchlight shining in their direction. organisations in helping to secure a sustainable balance between a free press and a responsible Bill Livingstone Some are likely to find it an uncomfortable press. This discussion paper is offered by the Trustee experience. A public judicial inquiry under Lord Carnegie UK Trust to support that process, by Former Chairman, Justice Leveson has been appointed to look into framing the key questions that we believe must be Society of Editors (Scotland) the culture, practices and ethics of the press addressed if the right path is to be found. and to make recommendations on “a new more effective policy and regulatory regime”. The paper by the Trust is designed as a gateway to the debate and certainly not as any kind of a The Carnegie UK Trust has a long-standing conclusion. In so far as any recommendations interest in the relationship between news media, are made, these are largely on points of broad civil society and healthy democracy. We firmly principle and should be regarded as indicative believe in the importance of robust and reliable rather than definitive at this stage. news sources and that newspapers are an essential part of that landscape. Finally, it should not be forgotten that providing the right regulatory framework is only part of If an overhaul of press regulation is to be one the solution in securing better news media in outcome of public concern over the conduct of the digital age. There are also important issues some newspapers, then it is a task which must be in journalism education, in new technology approached with great care. Strong high-quality and innovative business models and in journalism is vital for holding the powerful to widening public access to high-quality news. account and it is not in society’s interest to place We will address this broader debate in future new obstacles in its way. Equally, it is clear that publications. iv Regulation Of ThE press Section heading Summary Overview we believe must be considered and addressed services might be delivered in the UK in the Following the phone hacking crisis this summer, as part of these deliberations. In doing this, we digital age. A comprehensive report from this a wide-ranging public inquiry has been hope to widen the parameters of the debate work will be published in late 2011, focusing on appointed to investigate the entire affair. As and increase the range of views and parties ethical standards in journalism, the increasing part of its remit, the inquiry, to be led by Lord contributing to it – and therefore help those importance of new forms of local news, and Justice Leveson, has been asked to provide involved to achieve a set of outcomes which how civic society can contribute to stronger “recommendations for a new more effective meets the needs of all concerned. media. This discussion paper on the regulation policy and regulatory regime” for the press. of the press is intended as a prelude to this The Carnegie UK Trust has a long-standing interest forthcoming, broader report. Given the critical role of the press in a democracy, and involvement in the relationship between this is an extremely complex and challenging media, civil society and democracy. In 2010, we task – and we believe that civil society must be argued that media ownership and content is a 1. Why is press regulation at the heart of the debate about how this can priority issue for civil society organisations and a special case? be achieved. Civil society organisations are an public policy-makers to consider and address. The press has a unique position and role in a essential complement to, and influence upon, the democracy, which makes it unlike any other more formal institutions of democracy, and they Through our Commission on the Future of Civil industry that may be the subject of regulation. have energy, expertise, knowledge, and breadth Society, we argued that principles for media It plays an essential role in investigating, of opinions and perspectives to offer. We believe should be: scrutinising and monitoring decision-makers their input to the debate about press regulation is and those in positions of power. Indeed, the critical to finding a workable set of solutions that • freedom for civil society to engage with the content of newspapers is covered by the right secures the correct balance between maximising media and shape content; of freedom of expression, under Article 10 of press freedom while providing the level of scrutiny • pluralism to ensure the media is controlled by the European Convention of Human Rights. and protection that is required. a wide range of different interests; and We believe that the press must continue to • integrity to ensure that news media promotes have the freedom that it needs to carry out this This discussion paper is therefore aimed at essential values such as honesty and accuracy. vital role of holding individuals, organisations civil society organisations across the UK and is and governments to account on behalf of the designed to support their engagement in this To build upon the work of the Commission, we public – and therefore the configuration of crucial debate. To support this process, we have appointed Blair Jenkins as a Carnegie Fellow in the new regulatory system will need careful identified and explored nine key questions that February 2011 to investigate how better news consideration. v Regulation Of ThE press At the same time, it is important to recognise that and could seriously impair freedom of expression. has an unusual right to engage in otherwise our society already imposes regulations upon the On the other hand, failure to address digital prohibited activities in order to protect the press in a number of perfectly appropriate and publication could undermine regulation of the public interest. They have a legitimate argument legitimate ways – including through criminal law, press, as this increasingly becomes the medium of that the ends can justify the means. However, competition law, and civil law. Meanwhile, Article choice for consumers of news journalism. does there need to be a strengthening of the 10 places restrictions on freedom of expression, regulatory framework around the public interest and further restrictions are placed on the activities A further issue in relation to who we are trying to test, including a greater role for civil society in of the news media by Article 8 of the Convention, regulate focuses on whether we aim to regulate determining the public interest? which covers the right to privacy. Much of the individual journalists or editors and journalists. current debate about the future of press regulation For example, would it make sense to have focuses on the balance between the right to separate and specific regulatory requirements for 4. Who should do the regulating? freedom of expression and the restrictions placed newspaper proprietors, editors and journalists? We believe that the unique role of the press upon it by both Article 10 and Article 8. And if so, does this simplify or complicate the in holding decision-makers to account means question on regulating digital news? that government’s role in regulating the press The phone hacking crisis provides a perfect illustration should be minimised. However, parliament of the nature of these tensions, as it showed that could potentially play an important role in elements of the press had been engaging in intrusive 3. What do we want to regulate? developing a statutory basis for regulation by activities that they should not have been – but at Most of the public discourse and attention on requiring proprietors, editors and/or journalists the same time it was investigative journalism carried the phone hacking crisis has centred on the to be members of a compulsory scheme.