But an incidental digital (and Google) record around court proceedings is being created nonetheless: when a blogger quotes or reproduces part of a judgment, in newspaper reports, on Twitter and so on.  Information that is available in open court – such as a defendant’s personal details – often (and legitimately) makes its way online.

Would it be better to have a complete record noting the outcome of the case, or leave it to this current state of play, where it’s a matter of chance whether a digital record gets created, often left incomplete? There are numerous complaints to the PCC where a newspaper has only partially reported a case, for example.

There needs to be proper consideration of what type of information should be part of a digital courts record, and how it should be released, as this recent example brought to my attention by Richard Taylor, shows.

He put in a freedom of information request for his local Magistrates’ court lists and was pleased that it resulted in its release in a “reasonably timely manner” (6 days).

But, of rather more concern, Taylor believes the list contained material that would be illegal to publish and so he has redacted the record, and removed it from WhatDoTheyKnow.com.

As a result of his request he has published “example court lists in full for selected upcoming sittings to be held at Cambridge Magistrates Courts, as well as further selected individual listed items in full“, which may be “the first time this has been done“.

In regards to the responsible – and legal – release of information, he says:

If the Courts and the Tribunals Service had a responsibility to remove such information prior to releasing the information is an interesting question. This is information anyone can obtain either by making the same freedom of information request I did, or by turning up to the court and asking for a copy of the court list on the day of the hearing, or indeed by sitting in the court and hearing the charges being read out…

To be continued. I’m hoping that other legal bloggers might add their views on the questions raised by Richard Taylor’s post…

More digital open justice reading:

• Open Justice in the Digital Era project: http://bit.ly/openjustice
• Emily Goodhand: ‘Who owns the copyright on barristers’ advocacy?’

Update here (11.02.13).

Full Law and Media Round Up at Inforrm’s blog…

Dr Damian Carney proposes the setting up of a new regulatory body for the press providing strong remedies for complainants, better internal controls on ethics and complaints – and enough independence from government and industry to appease the general public

In the first edition of The Phone Hacking Scandal, I put forward a number of arguments as to why I believe a form of statutory regulation of the printed media is the only way forward to deal with the issues which have been raised by the Leveson Inquiry, and identified some features which I felt the new statutory based regulator should have.

In this new chapter [to be published October 2012], I want to study some of the proposals which have been made at the inquiry as to the form that new regulation or self-regulation might take, examining what aspects of these proposals Lord Justice Leveson is likely to endorse.

I write at a time when the Fourth Module of the Inquiry: Submissions on the Future of Press Regulation has already begun, and I do so knowing that by the time the book is published, the inquiry will have completed hearing the evidence and may have made recommendations.

Thus, in attempting to predict Lord Justice Leveson’s recommendations, it may seem that I am trying to be a Mystic Meg with all the chances of proving fallible. However, I believe this exercise is necessary as since the first edition several important developments have occurred which may have an important bearing upon what Leveson finally proposes.

In asking for submissions to the Fourth Module, Lord Justice Leveson identified five criteria by which a new regulatory regime would be assessed: effectiveness; fairness and objectivity of standards; independence and transparency of enforcement and compliance; powers and remedies of the regulator; and costs (Leveson 2012). Each of the models which follow will be assessed by these criteria.

The Decision to End the PCC

The cacophony of criticism levelled at the PCC in the aftermath of the phone hacking scandal, and the initial stages of the Leveson Inquiry, led to the acceptance by those associated with the PCC (its chairman Lord Hunt, and PressBof – the industry funding body) that it needed to be replaced.

Rumblings to this effect began to be heard in December 2011, but it was officially announced on 9 March 2012 that the PCC had agreed to undergo a transitional stage whereby its assets would be transferred to a new regulator (Press Complaints Commission 2012).

This was a sensible move as it would enable any new regulator to start afresh without any of baggage associated with the PCC. Two very similar self-regulatory models were proposed by Lord Hunt, and Lord Black of the PressBof.

Both proposals envisaged a body which would continue to deal with complaints about breaches of the regulator’s code, but would also have a standards arm (called Investigations and Compliance Panel by Lord Black) which would have the power to investigate:

• ‘significant or systemic breaches’ of codes or ethical standards;
• where serious breaches of criminal or civil law has occurred and though resolved by court, the regulator believes that an investigation would be beneficial because of the wider issues involved;
• where there is a significant and substantive issue arising from a single issue, or a long-term pattern of breaches of the code (Black: para 15; Hunt 2012: paras 88-89).

In Lord Black’s version, the standards arm would have the power to impose sanctions (up to £1,000,000 or 1 per cent of turnover) (Black 2012: para 55), whilst the complaints arm would have a ladder of sanctions (informal resolution, published apologies, formal reprimand and then adjudication) (ibid: para 98).

Whilst Lord Hunt’s model would focus upon the complaints arm largely acting as a form of brokered negotiation (Hunt 2012: para 104), the Black model emphasises the role of the new regulator as a mediator (Black 2012: para 35).

However, in both models recourse to the new regulator would only be available after the complainant had used the internal complaints procedure that each publishing group or publication would be required to set up as a result of the contract which they would sign with the regulator (ibid: para 97; Hunt 2012: para 10).

The publishers would also under this contract be required to give the new regulator an annual report which, inter alia, explained how complaints were dealt with and how ethics were encouraged in the publication (Hunt 2012: para 78; Black 2012: para 22).

Incentives to Join New Contractual Schemes

This contractual underpinning is seen as a mechanism of ensuring that the sanctions imposed can be strong and coercive, and so not necessitate any statutory underpinnings or interference. However, as they are voluntary, both these models are predicated on a series of incentives which would encourage not only established print publications from joining the new self-regulatory schemes, but would incentivise publications on new media platforms to sign up to the scheme.

A common feature to both schemes is some form of kitemarking, or badge, which indicates adherence to the regulator’s code which can be removed should a publication be guilty of systematic breaches (Hunt 2012: para 53; Black 2012: para 24). Lord Hunt suggests adopting the Irish position and enabling those who adhere to the code to have some defences or reduced damages if they have to defend defamation actions (Hunt: paras 47-49).

Lord Black’s proposal suggests that press cards would only be given to those who signed up to the regulatory system, and only members of the regulatory regime would be able to have access to Press Association copy (Black 2012: para 65). In addition, he suggested looking at ways in which advertisers could support the system, perhaps through refusing to work with publications outside of the system (ibid: para 69).

Black proposed that the contract between publisher and regulator would be ‘long-term’ but then suggested this meant initially for five years and then on a rolling contract (ibid: para 63). Publishers who sought to leave the regulatory regime would have to pay costs equivalent to the revenues the regulatory would have received from them in the remainder of the contract (ibid: para 12).

Do these Self-Regulatory Proposals Secure Independence of the New Regulator and Public Confidence in the System?

In both models all the component parts of the new regulator, bar the Code Committee (which Lord Hunt would have outside of the new regulator’s control) (Hunt 2012: para 59), would have a majority of laypersons which would emphasise the independence of the new regulator (ibid: para 58; Black 2012: para 10).

In Lord Black’s proposal for example, the co-ordinating body the Trust Board would have four lay persons (including the chair) and three press representatives; the Complaints Committee would have only five editors but eight laypersons. The Investigations Panel, which would be brought together on an ad hoc basis from a panel of experts, would have only one press representative (not a serving editor but with editorial experience) but two lay persons (ibid: para 18).

Laypersons’ appointments and that of the Investigations Panel, and any Independent Assessor appointed to hear appeals from the Complaints Committee, would be appointed by the Trust Board, not the industry (ibid: para 20). Lord Hunt’s model would have a small board which co-ordinates the other limbs of the regulator being formed with a majority of laypeople, and a minority of press representatives who would be non-serving editors (Hunt 2012: para 28).

The chair would be titled an Ombudsman and he would be the chief arbiter of standards (ibid: para 67). The complaints arm in Hunt’s model would have the same make-up as Lord Black’s, or could be smaller with seven laypersons and four press representatives, although Lord Hunt seems to favour membership which is influenced by the requirement to be representative of the country in much the same way as the Public Appointments Commissioner is required to take this into account (ibid: paras 31 and 69).

Both proposals also suggest that press representation should be more representative, and not dominated by the national press as the current PCC is. Whilst both proposals accept a need for the presence of laypersons on the Code Committee, they would be in the minority, which they justify on the basis that only editors would have the knowledge of what is happening in the field to know whether the code needs amending or not (ibid: para 58; Black 2012: para 80).

Despite both being called ‘drafts’ and with some detail needing to be added, they are clearly very well-worked out and there have been grumblings that they are attempts by the press (although Lord Hunt tries to distance himself by saying this is the PCC view) to give Lord Justice Leveson a fait accompli.

Critics draw comparison to the establishment of the PCC whilst the Calcutt Inquiry was ongoing as being evidence of the press’s willingness to do the ‘absolute minimum reform needed to stifle opposition’ (Frost 2012: para 14). In fairness to these proposals, they do suggest widespread changes to both the functions and make-up of the body, but one could argue, given the crisis in confidence in journalism that the phone hacking scandal has caused, minor reforms would simply have been ignored by Leveson and the government.

However, Lord Black has argued that his proposal is viewed as credible, and therefore likely to be effective, because it was formulated within the industry (Black 2012: para 8). But in being so parochial (with no public consultation) (ibid: para 9) and without any input from journalist organisations such as the National Union of Journalists, and some publications claiming to have not been consulted (South West Wales Media 2012) the origins of the proposals may prove to be the ultimate reason why neither is accepted.

Contractual Basis of New Self regulators

Whilst the contractual basis of the new proposed self regulators would seem to give the regulators greater powers than the existing PCC, and be flexible enough to deal with new media platforms, thus complying with the requirement in para 1.1.d of Leveson’s Draft Criteria for a Regulatory Solution that it is ‘sufficiently flexible to work for future markets and technology’, it is not without flaws. The initial contract is for five years, and thereafter it would be a rolling ‘five-year’ contract.

These contracts are not long enough. They give publishers relatively regular opportunities of withdrawal which may occur if the scheme does not meet with the individual publisher’s liking (e.g. they may be subject to adverse findings by either the Complaints or Standards arms) (Media Standards Trust 2012: 44). Once the scheme lacks all major publishers it begins to lose its credibility with the public, and if there are not adequate financial or other incentives to join the scheme, it is unlikely that newer online news outlets will join.

Many of the examples that Lord Hunt used to support his adherence to voluntary contractual arrangements were taken from the sporting world (e.g. the Premier League, Jockey Club and England and Wales Cricket Board) where if a team or individual is outside of the competition (either through sanction or withdrawal) they face a clear financial penalty as they cannot continue to compete (ibid: 44-46). In media regulation there are no such similar incentives, if the newspaper does not want to play by the rules of the self-regulator it can still continue in business.

Concluding Remarks on the Proposed Self-Regulatory Models

In terms of the Leveson’s criteria, the proposals fall down badly on the ‘fairness and objectivity of standards’ criteria which requires the setting of standards to be ‘sufficiently independent of media interests, in order to command public respect.’(Leveson 2012: para 2).

In both proposals the Code Committee is dominated by current editors, and in Lord Hunt’s proposals the Code Committee could even be located outside of the new regulator (i.e. be determined and manned by the Press). This is a basic flaw in the design, and questions need to be asked as to why, when other parts of the proposed regulators have a layman majority the code (which is to be enforced) does not.

The code is the crucial element of the regulator scheme. It is this which the complaints arm adjudicates on and the standards arm enforces, and in the draft criteria it is clear that some of the interests which much be considered may run counter to what publishers would want on a self-interested basis (i.e. the need to consider ‘the rule of law, personal privacy and other private rights’ (ibid: para 1.1.b).

The general public’s concern is more likely to be sated, if they are convinced that the code is being developed with the ‘public interest’ determined by a body much more diverse than that which currently exists, and in which editors are in the minority, otherwise the fear may be that press interests rather than public interests will influence the content of the code.

With the exception of the Code Committee the proposals do guarantee a high degree of independence both from media interests, and the state. There is a total absence of state input.  Appointments to the new regulator have being taken out of the hand of the industry and given to the Trust Board/board of the new regulator, and the influence of the industry funding body is greatly minimised. There do remain questions as to whether the funding of the new regulators would be adequate enough.

The Statutory Backdrop Model

There is often an over-simplistic presentation of a black and white choice between either statutory regulation or self-regulation, when in reality there are a range of different co-regulatory and statutory forms which can give varying degrees of choice those designing self-regulatory systems.

Most professions and key industries, with the exception of the printed media, fit into one of these co-regulatory arrangements. The term co-regulation means that whilst the profession, or industry, has a degree of control over their own affairs, there is a state body which oversees the self-regulation to ensure it meets certain statutory obligations. The case of the Legal Services Board illustrates this perfectly (see Legal Services Act 2007).

Several proposals have been put forward to the inquiry recommending the adoption of such a model. The Media Standards Authority (MSA), put forward by the Reuters Roundtable on Media Regulation, and drafted by Hugh Tomlinson QC, has many similarities to the self-regulatory approaches described in the previous section.

Although it would be a creature of statute whose main aims would be to promote and protect public interest journalism, and to protect privacy and reputational rights of individual providing them with ‘swift and cost effective resolution of disputes’ and providing the public with accurate information (Reuters 2012: para 5).

With a statutory guarantee of independence from both the press and the government, the scheme would be voluntary and be based on five-year rolling contracts (ibid: paras 5-8, 15) and internal complaints system within each publication (ibid: para 31) with each publication producing annual reports about compliance (ibid: para 43).

Publications would be encouraged to join by incentives, which would centre on providing a cheaper dispute resolution method than the courts. There would be initially compulsory mediation but if complainants were not satisfied with this, they could seek a remedy from a Dispute Resolution Tribunal (ibid: paras 23-25).

By point of contrast, under the Media Standards Trust’s proposal the print industry would be left to create its own self-regulator(s) (with the possibility of different bodies being set up for national and regional newspapers and magazines), with obligations to join imposed on those that did not meet to the definition of ‘small company’ in the Company Act 2006 (Media Standards Trust 2012: 73-75).

Small publishers and bloggers could voluntarily join a self-regulatory scheme (ibid: 75). Membership, by way of contract and the self-regulatory regime, would be left largely to the members to define but would have to satisfy a Backstop Independent Auditor (a statutory body funded by a levy on large news organisations) that certain criteria are met. These criteria would be to:

• provide the public with an independent forum for resolving complaints about member organisations;
• provide meaningful, proportionate and timely redress to the public, particularly with regard to inaccuracy, unfairness, and unjustified privacy intrusion;
• protect the freedom of journalists to report in the public interest (ibid: 79).

If the Auditor is not satisfied that these criteria have been met then the self-regulator can be struck off. This would force the media organisations to establish a new self-regulator, or join another existing one, but would not prevent the publishers from continuing to publish (ibid: p83), but would also ensure that, whilst the system of complaints was primarily self-regulated, it would be difficult for it to operate in a way which disregard the wider public interest as it would be constantly monitored.

The Backstop Independent Auditor would have the power to fine media companies which do not meet the small company criteria and have not joined a self-regulator (ibid: 81), and would ensure that the self-regulators are independent, but would not be a ‘court of appeal’ like the Legal Ombudsman (ibid: 89).

Need to Establish Internal Complaints and Compliance Systems

As well as membership of a self-regulatory scheme, the larger media companies would have to establish internal complaints and compliance systems (ibid: 72) which would create a paper trail, particularly in cases where privacy was invaded (ibid: 77).

Again the complaints function previously performed by the PCC is expected to continue in this proposal, with the Media Standards Trust also recommending that where there is evidence of malpractice the media organ should be required to pay the costs of investigations if more than three investigations are launched against it in a year on a ‘polluters pays principle’ (ibid: 79-80).

This proposal wants to minimise the amount of state interference/control of the printed media, and concentrates its efforts on a limited number of big players which it feels are most guilty or most likely to abuse the power that freedom of the press gives them. In the process the ‘light touch’ regulation which it is calling for seems too limited in the constraints it places upon the media in setting up the self-regulator.

True, the current Hunt and Black proposals may dispel such concerns but even the presence of the auditor as currently envisaged in this proposal would not stop future watering down of the current media orientated proposals. The lack of restrictions on the number of media representatives on the different self-regulatory organs raises questions about how independent the self-regulatory organs would be of ‘media interests’ (Leveson 2012: para 3.2).

It may be that the auditor would not authorise any self-regulator which did not have a majority of lay people, but the proposal would be strengthened if the large media organisations had to create self-regulatory organs that had certain minimum features.

This might include that all components of the self-regulator had a lay majority, that it be led by a lay chairman, and that journalist organisations such as the NUJ needed to be represented. It might also require that certain remedies are given by the self-regulator, e.g. right of reply or requirement that adverse adjudication be given as strong a prominence as the original article.

Another criticism of the Media Standards Trust proposals is that they seem to promote the creation of several self-regulatory organisations. The trust justifies this on the grounds that with new technology and new platforms there will be less cohesion between news providers, and forcing them all into ‘one tent’ would not necessarily work, although this would seem to fall foul of the need for ‘universal application’ in para 1.1.d of the Draft Criteria (Leveson 2012).

Allowing new self-regulators to be created to deal with technological developments would, they argue, be easier under this type of proposal, whilst fears that multiple self-regulators would create conflicting standards would be addressed by the Backstop Independent Auditor setting minimum standards (Media Standards Trust 2012: 8). A plethora of self-regulators creates several problems.

Whilst the auditor might be able to keep a minimum standard, there may be some self-regulators that wish to keep to the basic minimum laid down by the auditor and others which are looking for more of a gold standard. The likelihood is that if media organs are free to choose between the self-regulators then those organs most likely to engage in unethical conduct are going to join the regulatory regime which will impose the least burdens upon them.

It may be that the Auditor would restrict self-regulators to one per specific sector of media (e.g. having one self-regulator for newspapers, one for magazines, one for online sources and so on), but there is nothing to stop multiple self-regulators. The proposals also runs counter to arguments which have been put forward to create a multimedia regulator to accommodate the increasing convergence in media output.

Defamation Reform

Running in parallel with the Leveson Inquiry has been parliamentary consideration of major reforms to the law of defamation. The current Defamation Bill 2012, does much to recalibrate the existing law of libel to improve the position of defendants such as media organisations, but fails to address one of the major concerns that has arisen in relation to the existing defamation proceedings – namely costs and length of proceedings.

Whilst s44 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 provides the Lord Chancellor with powers to limit the maximum charged in Conditional Fees Arrangements and with strong indications that this will be applied in libel cases, procedural reform has been neglected and yet needs to be addressed if the overall costs are to be reduced to reasonable levels.

The failure of the Defamation Bill to address these issues has meant that several respondents to the inquiry have proposed creating dispute resolution schemes for defamation claims within the new media regulator, and even Lord Black’s proposal leaves open the option of adding an ‘arbitral’ arm to deal with libel (or potentially privacy issues) (Black 2012: para 36) which suggests that the industry suspect some major procedural reform of defamation is only a matter of time in coming.

The Alternative Libel Project, which is a collaboration of English PEN (‘the writers union’) and Index on Censorship, have made this the central aspect of their contribution to the inquiry. Although not suggesting a particular model, the project identifies three options which could help reduce the number of cases going to court, and the costs associated with concluding these claims. The project identifies a series of options which a new regulator could employ to resolve defamation claims:

• a voluntary arbitration service;
• a voluntary mediation service;
• a voluntary adjudication service;
• plus some form of Early Neutral Evaluation service (Index on Censorship/English PEN 2012: para 1.1 to 1.5).

It is noticeable that the proposals allow parties to opt to use the process rather than making it mandatory, which is justified on the grounds that the only way mandatory usage could be ensured would require state intervention which both organisations are opposed to (ibid: para 1.10-11). There are no incentives (other than perhaps the implicit cheapness of these alternatives) which are given to parties to use these mechanisms, but if parties chose to use the adjudication service and then one of them challenges that decision there are possible costs order which could be imposed on the challenger (ibid: para 1.11).

Whilst the project highlights how the proposal is effective in that it offers a number of ‘low cost options for those genuinely interested in resolving their dispute’ (ibid: 1.12, 2.3), it does recognise that extremely wealthy people may bypass the system (ibid, 1.13) and go straight to court resulting, unless otherwise dealt with by other statutory reforms, in high litigation costs in the individual case.

Others are less worried about statutory intervention. The Early Resolution CIC, headed by Sir Charles Gray (a retired High Court judge), recommended creating a statutory backed mandatory ADR process (Early Resolution: para 4.3, 6.2). Based on an existing scheme that Early Resolution started in 2011 (ibid: para 1.1, 7.1) that provides for adjudication on the issues by a member of a panel of media law specialists, assisted in some cases by two lay assessors, (ibid: para 7.1) the statutory scheme would be automatic, and any claim commenced in the High Court without using the system would automatically be stayed and referred to the fast-track mandatory adjudication process (ibid: para 7.3).

By doing so all the costs associated with the legal proceedings would be reduced, and the only cost would be the payment of the arbitrator(s) which in the region of £3,500 (ibid, 1.13) is significantly less than the average costs of defamation actions, and these costs the publishers would be encouraged to pay (ibid: para 7.5).

The dangers of publishers facing ‘vexatious or frivolous claims’ could be dealt with by defendants being able to request that the adjudicator require the claimant to provide security for costs or pay for all or part of the proceedings (ibid: para 7.6).

The great virtue of this system is that it provides a cheap means of resolving disputes and places no burden on the state (indeed, relieves the state of the costs of hearing most libel cases), reduces dramatically the costs to media publishers of having to defend such claims, and provides no barrier of access to justice to bone fides complainants. It clearly meets the draft criteria’s criteria for costs (Leveson: para 4) but if it is to work it needs to provide credible remedies which are at least on par with remedies currently awarded by the High Court including quantum of damages.

The ADR-type scheme suggested by both of these proposals is to be preferred to the over-legalistic suggestion such as Reuters’ Dispute Resolution Tribunal which would call for the creation of a full-blown adversarial tribunal which, whilst possibly cheaper than court proceedings, would still be substantially more costly than the ADR alternatives.

It is true that the Reuters’ scheme only permits use of the tribunal when mediation proves unsuccessful, and any form of adjudication has the benefit of helping to establish precedents and guidance, but adoption of adversarial approaches to these issues are costly and unnecessary. If the complainant is unsatisfied with the compulsory mediation he always has the remedy of seeking review of the decision by a court.

Predicting Leveson

Whilst a number of different schemes have been put forward to the inquiry, there are certain features on which a large degree of consensus is emerging. The new body has to be more separated from the press than the PCC and seen to be more independent, and many contributors believe the way to do this is by having a majority of non-press members on the constituent parts.

There is general consensus that appointments must be by an independent body (which may include the new regulator itself) rather than government. Publications should be required as part of the new regulatory regime to establish more robust internal complaints mechanisms, with the role of the new regulator being only to hear those complaints that the internal mechanisms cannot deal with.

This is very important as it also provides a means of reducing the costs of the new regulator by making use of it a ‘last resort,’ whilst the calls for annual reports and the identification of an employee of the publication as having responsibility for dealing with complaints/ensuring compliance that normally accompany such proposals, ensures the transparency which the draft criteria demands.

Identifying a responsible person for a publication or publishing group’s ethics gives that individual an incentive to ensure that the code is complied with within their organisation. There is some consensus that the new regulator must have both a complaints and a standards compliance role, although much variation exists as to the former.

There are other areas of much disagreement. The debate as to whether the new scheme should be based on statute or left to the publications to self-regulate is hotly contested. However, given that many of the high profile statutory scheme proposals are very light touch, it seems unlikely that Lord Justice Leveson would recommend a statutory body, funded by the government, in which the government would have any direct input in its day to day running.

Fears of the press that any statutory underpinnings or recognition of the new regulator would lead to a slippery slope whereby more and more statutory control was imposed, seems to be scaremongering of the worst kind. Statute has created numerous bodies and offices where the government of the day has been prevented from intervention once they have been set up and operated.

The emphasis in proposals on an independent appointments system, highlight a broad consensus that the government should not be involved in the appointments of the new regulator; and most of the funding schemes which have been suggested indicate that no state subsidy is desirable. Whilst this might be desirable, it may not be practical.

The proposals looked at here stress that a new robust regulatory system with greater powers to investigate and control standards can be funded by relatively minimum levies on media companies (for example, the Media Standards Trust suggest a levy of 0.05 per cent of revenues of the large companies in its scheme (Media Standards Trust 2012: 91), or media companies paying for investigations against them (Black 2012: para 82).

The argument that this would, therefore, allow the complainant to continue with his complaint, and not place an excessive cost burden on the state may seem attractive but it places a much greater financial burden on the press than the existing PCC system (exacerbated by the likely requirement for new internal complaints and compliance systems).

The new regulator is also likely to have a more broader remit, with responsibility for at least some online-only publications, and levies on publications may have to be substantial in order for the new functions it is to take on to work.

Suggestions that a ‘polluters pay principle’ (Black 2012: para 92; Media Standards Trust 2012: 80) should be in operation to ensure that the additional burden is borne by those publications that are found to be in breach of the code has a certain attraction since, if properly calibrated, it could avoid or reduce substantially any need for state funding.

In the environmental field, the government’s use of administrative cost-recovery charging has resulted in those premises which are most frequently visited, or engage in more dangerous activities, or have a record of non-compliance, paying more than other regulated operations (Bell and McGillivray 2008: 240-241).

If an unethical media organisation is to pay more of the costs of the regulatory system this would deter breaches of the code, which would have the virtue of incentivising publications to comply with the code. If this works then it would help reduce the costs to the regulator over time as the regulator would have less work to do.

The need for government funding in such a system may therefore seem to be unnecessary, although questions remain as to whether the state should give a one-off start-up grant to enable the new regulator to start  and provide a financial buffer in case of media organisations being reluctant to pay their dues.

A further issue which needs resolving is what publications the new regulator should cover. The ‘death of print’ and emergence of online news outlets such as the Huffington Post suggests that the new regulator should be spreading its wings beyond traditional printed newspapers and journals. This immediately raises the spectre of control of the internet and the blogger, and possible major infringement of free speech.

The Media Standards Trust’s suggestion that regulation should only be applied if the media company was of a particular size or wished to voluntarily join the regulatory regime (Media Standards Trust 2012: 73-75), might draw into the new regime major online publications or those online publications wishing to demonstrate ‘journalistic credibility’. But it would still exclude many tabloid or celebrity websites which are more likely to engage in the type of ‘journalistic practices’ which may be unethical.

Such sites might have a large following, yet not the personnel nor turnover, to fall with the proposed Media Standards Trust’s regulatory system. In one sense this may not matter as engagement in unethical behaviour by such sites may also involve breach of the law, and lacking the resources of major media players, such sites will be checked to a degree by the ordinary law. The target of their attention celebrities can afford to litigate when there are invasions of privacy or harassment, whilst if ‘civilians’ are caught up in the report the relatively cheap harassment suit or prosecution is available.

The problem with online publications is that they can be set up relatively cheaply and quickly and have a huge following in a relative short space of time. Their influence can, therefore, be potentially as important as major media players, and the spectre in recent years of politicians playing to websites such as Mumsnet, shows how even what might be considered a non-political special interest site becoming an agenda-setter.

Yet no one would suggest that Mumsnet should be regulated. It provides news much in the same way as the newsletter or bulletin did in the pre-internet world. Can a definition of the type of site which has a degree of equivalence to the newspaper rather newsletter be made? If it can, what is to stop such sites off-shoring? Extending a regulator’s coverage to online and new media platform publications is perhaps one of the most difficult tasks facing Lord Justice Leveson.

Lord Justice Leveson’s draft criteria states:

Any solution must be perceived as effective and credible both by the press as an industry and by the public: a) It must strike a balance, capable of being accepted as reasonable, legitimate and in the public interest by all (Leveson 2012: 1.1.).

The public interest is at the core of the new regime, and it must be addressed both in the structure of the new regulator, its powers and the code it enforces.

For this reason, it is important that Lord Justice Leveson ensure that the new regulator does not overburden the press with costs and new sanctions, but provides sufficient relief to those complaining about press misconduct; minimizes both press and state influence over the regulator (which can be achieved by increasing the presence of laypersons and including representatives from civil society and journalist organisations such as Liberty and the NUJ); and ensures that all regular publications above a certain size (which might include elements of turnover and readership) are within its control.

This suggests a form of statutory regime which makes membership of the new regulator compulsory for those publications that meet criteria similar to those in the previous sentence.

References

Bell, Stuart and McGillivray, Donald (2008) Environmental Law, Oxford: Oxford University Press, seventh edition

Black, Lord (2012) Third Witness Statement of Lord Black of Brentwood to the Leveson Inquiry. Available online at http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Submission-by-Lord-Black-of-Brentwood1.pdf, accessed on 20 July 2012

Frost, Chris (2012) Witness Statement of Professor Chris Frost, Chair of NUJ Ethics Council, National Union of Journalists. Available online at http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Submission-by-Chris-Frost-on-behalf-of-the-National-Union-of-Journalists.pdf, accessed on 20 July 2012

Hunt, Lord (2012) Submission to the Leveson Inquiry of the Rt Hon Lord Hunt of the Wirral MBE. Available online at http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Submission-by-Lord-Hunt-of-Wirrall1.pdf, accessed on 20 July 2012

Index on Censorship/English PEN (2012) Alternative Libel Project: Submission to the Leveson Inquiry. Available online at http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Submission-by-Alternative-Libel-Project-English-PEN-and-Index-on-Censorship.pdf, accessed on 20 July 2012

Leveson, Lord Justice (2012) Draft criteria for a regulatory solution, Available online at http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Draft-Criteria-for-an-effective-Regulatory-Regime.pdf, accessed on 20 July 2012

Media Regulation Roundtable (2012) Final proposal for the future regulation of the media: a Media Standards Authority, Available online at http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Submission-by-Media-Regulation-Round-Table.pdf, accessed on 20 July 2012

Media Standards Trust (2012) A free and accountable media: Reform of press self-regulation: Report and recommendations, Media Standards Trust submission to the Leveson Inquiry. Available online at http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Submission-by-Media-Standards-Trust.pdf, accessed on 20 July 2012

Press Complaints Commission (2012) PCC transition to a new regulatory body, Available online at http://www.pcc.org.uk/news/index.html?article=NzcyNA==, accessed on 20 July 2012

South West Wales Media (2012) Submission to Leveson Inquiry, Available online at http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-from-South-West-Wales-Media.pdf, accessed on 20 July 2012

Note on the contributor

Dr Damian Paul Carney is Principal Lecturer in Law at the University of Portsmouth. A qualified barrister, he has published extensively on media law including the first legal academic article on phone-hacking at the News of the World. Currently, he is writing a monograph that studies the use of unattributed sources by journalists and other public communicators.

This is an extract from The Phone Hacking Scandal: Journalism on Trial, second and updated edition (edited by Richard Lance Keeble and John Mair). It will be published by Abramis on 15 October 2012. This online version was edited for format.

Reblogged from Inforrm's Blog:

Parliamentarians are still in recess, Lord Justice Leveson has finished taking evidence for Part 1 of his Inquiry, the Michaelmas legal term has not yet begun, but there have been more than enough media law related developments to justify a mid-summer round up, including new dates for the autumn calendar.

Read more… 2,792 more words

HEY! REGULATOR! LEAVE THOSE HYPERLOCALS ALONE

By Damian Radcliffe

Hyperlocal media – news or content pertaining to a town, village, single postcode or other small, geographically defined community – is not a new sector. But a fusion of technology, social media platforms and gaps in traditional media provision, have all combined to create the perfect conditions for  this sector to bloom.

As a result, hyperlocal media has grown substantially in the UK and other countries in recent years, with concerned citizens, new entrants and established media operators all taking advantage of this perfect storm to create and distribute locally relevant content. And despite very real challenges in making hyperlocal pay, we are only likely to see the sector grow, especially as smartphone technology continues to make it easier to create, distribute and consume locally relevant content.

Currently, the hyperlocal media sector is still relatively small. But as it grows, the issue of regulation is likely to rise up the policy agenda. Whether it is likely to be caught up in the slightly larger considerations of the Leveson Inquiry remains to be seen, but I believe there is a strong case for arguing against the statutory regulation of online hyperlocal media. In fact, I would go further and argue that not only should it be avoided, but that it would also be impossible to enforce.

As someone who spent just under five years working for the UK regulator, and who now works for a different regulatory body in a very different part of the world, that might seem a strange thing to say. So below I will explore five reasons why the sector should be unregulated, and why I think attempts at such regulation would ultimately prove unsuccessful.

Part One: the case against regulation

In my view there are five key areas which need to be explored when examining the case for regulation of this nascent sector. They are:  the open internet philosophy; the inapplicability of historic rules of regulation; practicalities of enforcement; the role of Citizen/Community Journalism; and innovation.

Taking each of these in turn:

1. The Open Internet Philosophy

This is a subject which has been written about far more extensively than we have space to explore here. However it is, a useful – if rudimentary – starting point. If you believe in the open internet, then the web should be a predominantly unregulated space. Clearly there are exceptions, such as the need to protect the exploitation of minors, but most of these concerns are not applicable to hyperlocal websites.

Provided that the law of the land is not being broken, then hyperlocal websites should generally be left alone, free to self-manage, without recourse to a wider regulatory power.

2. The historic rules of regulation do not apply

In a broadcast world, regulation was used to create a framework for licensees. In return for abiding by the rules, which included signing up to a code of conduct and agreeing terms of trade (e.g. what type of service you are, or specific obligations such as the amount of local news you produce), then license holders got access to a precious commodity: spectrum, and with it the right to broadcast direct to people in their homes.

This two-way contract has been a key tool in making broadcast regulation work, but it is not a framework which logically transfers to the online space. Online space is virtually limitless, the challenges faced by hyperlocal practitioners – such as discoverability, scale and financial sustainability – are only recent considerations for traditional media players in a multi-channel, online, world.

Without the obvious means for a similar sort of two-way contract between the regulator and the service provider, we have to reconsider how and why we might regulation in the Internet age.

3. The (im)practicalities of enforcement

Anyone can set up a hyperlocal website or channel using tools like Facebook, WordPress or Twitter. These tools are often free, and fairly easy to use, with the result that you can set up your website in minutes. And it also means that if your website gets into trouble, you can dismantle and remove traces of it pretty quickly too. This means that not only is it impossible to comprehensively capture what hyperlocal sites exist, it will be equally impossible to monitor them effectively.

In contrast launching a newspaper, TV or radio station has often required specific licenses, equipment and training, as well as clear monitoring requirements. Broadcasters, for example, have a legal requirement to keep a record of what they have transmitted, whilst newspaper owners see their physical product in the public’s hands.

This makes it rather hard to hide any potential crimes and misdemeanors.

4. Concerned Citizens and Community Journalism

Whilst commercial hyperlocal outlets and networks do exist, the majority of hyperlocal content in the UK is produced by citizens, often for free, or certainly very small sums of money.

This in itself is no bad thing, indeed I have previously suggested that the best sites stem from local need, by people steeped in their communities. In many cases, but not always, this manifests itself in the form of active citizens investigating and reporting on what matters to them.

Looking at the US hyperlocal scene, the Federal Communications Commission in their extensive report  “The Information Needs of Communities: The changing media landscape in a broadband age” noted:

“Even in the fattest-and-happiest days of traditional media, they could not regularly provide news on such a granular level. Professional media have been joined by a wide range of local blogs, email lists, websites and the proliferation of local groups on national websites like Facebook or Yahoo!

For the most part, hyperlocally oriented websites and blogs do not operate as profitable businesses, but they do not need to. This is journalism as voluntarism—a thousand points of news.”   (Page 16)

This sentiment is equally applicable to the UK and any other county with a growing hyperlocal scene.

The voluntarism described by the FCC should be encouraged and nurtured, not stifled. Attempts at regulation of this sector are only likely to reduce transparency and accountability, not increase it, by discouraging citizen related activity.

Few community journalists would be able to afford any inevitable regulatory fees, and the very presence of such fees would undoubtedly deter some citizens setting up their own hyperlocal sites.

It is also likely that few concerned citizens would not even know that their Facebook Group, or blog fell under any regulatory regime. Used to using open, social, internet platforms without restriction to comment on issues of interest to them, why would their local website be regulated when posts on local food or their holidays are not?

Determining what citizen content fell in – or out – of any regulatory regime would be a very difficult call.

5. Innovation

Lastly, there is the issue of innovation. Regulators always like to talk a lot about their role in encouraging innovation, creativity and new business models. Perhaps the extent of this is overplayed, but regulators can certainly play a role in ensuring that barriers to innovation are kept to a minimum. With the online hyperlocal sector still in its infancy there is a very real risk that innovation would be stymied by unnecessary regulation.

 Part Two: the case for regulation

When I wrote the original blog article which formed the basis of this contribution,  I also spent considerable time considering the reasons for regulation. Then, as now, I struggled somewhat – both in terms of the mechanisms for enforcement, as well as the potential benefits.

For the former, I considered the option of income thresholds – that sites above a certain income would need to be regulated – and in turn whether sites might opt in to be regulated by the PCC or some other body. Finally, I also wondered if there was merit in the industry coming together and devising its own system of self-regulation.

The latter provoked some discussion, and I am grateful in particular to William Perrin, Philip John, Judith Townend and Mike Rawlins for their thoughts and contributions.

Of these, I think the three strongest arguments for regulation are around protection, credibility and parity for hyperlocal publishers.

All of these are desirable outcomes, but I am yet to be convinced that they way to achieve them is through regulation or indeed self-regulation. Rather, they require attitudinal changes and shifts more than anything else from big media, the NUJ and in some cases media consumers.

Again, taking each of these areas in turn:

1.            Legal standing and support

Potentially the biggest benefit of regulation for the sector is that it may make it easier to unlock union and legal support. At present most hyperlocal writers are unrecognised by the NUJ and – in contrast to their traditional media peers – they do not enjoy the backing of a large legal department.

Legal support is an area the hyperlocal sector would benefit from. The day will come when a hyperlocal practitioner loses their home due to a legal dispute stemming from content on their site.  Sadly, it may take such an incident for this issue to be given the consideration it deserves.

We need to find a means to redress this, as the level of legal support for the citizen journalist/reporter is often minimal, if indeed there is any at all.

To counteract this, in the US, J-Lab and the Knight Foundation ran a Legal Risk Blog for American citizen journalists, bloggers and social network users. Different media laws mean that its usefulness as a tool for UK practitioners is limited, although the site is not without value.

One way this could work in the UK would be to encourage big media groups – perhaps through a regulatory lever – to provide a certain amount of pro-bono legal support to hyperlocal outlets.

Alternatively they may have to pay a small levy to a central legal fund, which could either ensure 24/7 legal support for hyperlocal practitioners, or support a financial pool to draw on when the litigation starts. Such an idea is not without risk of abuse, but if we are to encourage better relationships between community media outlets players and traditional media, providing meaningful support between the sectors in this way would be one way of doing it.

2.            Credibility

Rightly or wrongly, there can be misconceptions amongst consumers and traditional media alike about the content and accuracy of hyperlocal content. Being part of a regulatory regime may help to change that, but I am skeptical. Many regulated bodies – across media, finance and other industries – are severely lacking in credibility at present. As are their regulators.

Moreover, Ofcom research shows that many media consumers are already confused and ill-informed about regulation and funding. So being part of a regulatory regime will not necessarily change public perceptions. Or indeed those held by old media.

More effective measures could simply be cosmetic. Lichfield Blog for example renamed itself Lichfield Live, because it became “hard to escape the fact that having ‘blog’ in our name was causing problems with how we were perceived”.

Some of the Lichfield team have also posited the idea of self-regulation, with hyperlocal players signing up to an agreed “Code of Conduct”, in part to boost credibility.  I can see the merit of such a code, and such an approach could be especially useful for new sites in giving them best practice and a set of standards to aspire to, but I am not sure that it will make much of a difference in the credibility stakes.

That does not mean however that hyperlocals should not do it, and there would be a merit to having agreed and shared text on issues such as fairness and complaint handling, but the benefits of this approach are, in my view, of more benefit for practitioners, than big media partners and audiences.

Instead, I would argue that activities such as public visibility – reporting from, or organizing local events – or making your content available offline as well as online, may be much more effective at boosting credibility and changing perceptions than being part of any new regulatory body.

3. Creating a level playing field

The underlying consideration here is how to establish a more level playing field, particularly in terms of legal protection and credibility.  For some commentators, the only way to do this is by bringing hyperlocal media into any post-Leveson regulatory regime.

That may be so, but I think this argument is fallacious and that these objectives can be achieved through other non-regulatory means. Examples of credible, respected hyperlocal websites abound (see: http://kingscrossenvironment.com/ , http://parwich.org/ , http://pitsnpots.co.uk/ , http://www.london-se1.co.uk  and http://ventnorblog.com/  as just some examples). As, increasingly, do examples of creative partnerships between this sector and traditional media.

Regulation also risks having accidental consequences, from stifling innovation and driving small scale hyperlocal practitioners out of business, through to creating a two tier hyperlocal sector, with some outlets being regulated (perhaps due to their size, scale and or platform) whilst others are not (e.g. those on Facebook).

Far from creating a level playing field therefore, such a scenario risks widening gaps, not reducing them.

Concluding Thoughts

I argued earlier that a number of factors – the open internet philosophy; the inapplicability of historic rules of regulation; practicalities of enforcement; the role of Citizen/Community Journalism; and innovation – were all good reasons, both individually and collectively, against statutory regulation.

Similarly, I remain unconvinced at the viability of self-regulation, or that it is the means to deliver outcomes such as enhanced protection or credibility.

In my experience most hyperlocal outlets take questions of balance and accuracy very seriously and where they have an editorial agenda it is usually pretty clear.

Just because you are unregulated, does not mean that your standards are any lower.  Nor will being regulated suddenly mean that the public will view you content differently, that relationships with traditional media will transform overnight, or that late night telephone calls from aggrieved Press Officers will cease.

Instead, we need to recognize that hyperlocal publishers are an increasingly important part of our media ecosystem. They can, and do, on occasion provide great content for other media outlets – acting as a local wire service. Hyperlocal outlets can also be a great way for traditional media to find new voices and talent, whilst for audiences they can help plug gaps in content provision – or provide a new level of ultralocal reporting.

Nurturing and supporting the industry should be the aim of policy makers.  And it does not need regulation to make this happen.  Key challenges such as finding ways to develop partnerships, or unlocking legal training and support for hyperlocal publishers, can all happen without the need for regulatory intervention or frameworks.

Let’s see if we can make it happen.

Democracy Society / Damian Radcliffe. An extract from Media Regulation & Democracy [PDF], Demsoc 4 (July 2012), pp. 33-43. This content is licensed under a Creative Commons Attribution-Non-Commercial 3.0 Licence.

The Democratic Society is a non-partisan membership organisation supporting participation, democracy and new models of networked governance.

Damian Radcliffe is the author of Here and Now – UK hyperlocal media today, the UK’s first review of this emerging sector, and an Honorary Research Fellow of the School of Journalism, Media and Cultural Studies at Cardiff University. Twitter: @mrdamian76.

Reblogged from Inforrm's Blog:

• 

There is no need for statutory media regulation because there are a whole range of statutory controls that presently exist, Lord Hunt of Wirral said at the launch of the new edition of McNae's Essential Law for Journalists last Friday.

Additionally, judges can fill gaps through case law, said Hunt, chair of the Press Complaints Commission. "You do have in decided cases the ability to fill gaps and we've seen that with some of the recent judgments of Mr Justice Tugendhat and before that David Eady.

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Leonard McNae, 1902-1996, wrote the first Essential Law for Journalists for the National Council for the Training of Journalists (NCTJ), which was published as a book in 1954, replacing the NUJ’s The Pressman and the Law by G.F.L. Bridgman of the Middle Temple.

Its latest edition written by Mike Dodd, legal advisor to the Press Association, and Mark Hanna, senior lecturer at the University of Sheffield, launched on 30 March at The Honourable Society of Gray’s Inn, London.

Among the lawyers, academics and journalists attending the launch on Friday were Dodd and Hanna’s predecessors, Tom Welsh and Walter Greenwood.

Lord Hunt, chairman of the Press Complaints Commission, gave the keynote speech which outlined some of his experiences at the self-regulatory body so far, as it moves into its transition phase. Against any form of statutory regulation, he has drawn up a draft for a regulatory system [PDF] but is steering clear of a name for the new body at this time. As he told Lord Justice Leveson at the Inquiry in January,

“I rely on “The Essential Law for Journalists” to point out all the statutory provisions that apply and restrict freedom of the press. I’m not just talking about defamation or the Data Protection Act or the Freedom of Information Act. The list is endless. It’s a massive textbook.”

McNae’s has become “an institution in its own right“, Lord Hunt said on Friday.

Images courtesy of the NCTJ.

Baroness Buscombe, who will step down from the self-regulation body in the new year this week, was at City University London to deliver the Centre for Law, Justice and Journalism annual lecture.

[Update: the Conservative Peer Lord David Hunt has been named as Buscombe's successor and will take up the position on 17 October]

Following her speech, she took issue with a question from data journalist James Ball, who introduced himself as from the Guardian.

Rattled by his question about her position on enforced regulation compliance, she several times referred to the Guardian in subsequent questions, saying: “I’m worried that the Guardian, as usual, is going to misquote me”.

“Can I just ask you what you are going to tweet to the Guardian,” she asked Ball, at one point.

“I’ve been misquoted non-stop for three years by the Guardian”, she said. “It’s really boring.”

She was assured that there would be a recording of the event made available.

Ball, who is not a media reporter, asked Buscombe about her suggestion that publications should not be able to opt-out of regulation.

There should be some of “back stop” power outside the PCC, which would “demand compliance”, Buscombe had stated in her lecture.

… if a publisher is “in” the system but doesn’t like an adjudication, he is at liberty to opt out of the system altogether. This is not sustainable, either in principle or in practice.

The solution? There should be some form of back stop power, vested in another body and, given that body needs sufficient powers to demand compliance, it will, regrettably have to be one regulated by the state.

This need not nor should it in any way compromise freedom of expression or lead to some form of licensing; it is just to ensure that compliance with the system is universal and no-one can just choose to opt out.

The problem was, she later added, that the Express and Star national newspapers don’t have to opt-in to a regulation system.  They can do what they like unless someone takes them to a court of law. [Express owners, Northern & Shell were removed from the self-regulatory system in January 2011 after the company failed to renew its membership].

But, the PCC chairman said, she was fully opposed to any form of statutory regulation.

She later claimed she was “having a bit of fun” with her jibes at the Guardian newspaper.  Other suggestions in her lecture included:

• A whistleblowing system within newspapers: “ there should, as a matter of course, be a credible independent whistle blowing system in place, within all media organisations – so that any beleaguered journalist can have free access, without fear, to a second opinion as to his rights in law.”

• The development of international regulatory frameworks with varying sanctions and rules of compliance: “All websites that comply with a system could carry an internationally recognised kite mark to give the reader and viewer the confidence that it is a trusted site, as opposed to a free for all; that would, I am convinced, encourage more publishers to opt in to the system as it would attract more unique visitors.”

She called for a “need for change in culture and practice” in British media. “I do not limit this to tabloids or News International,” she said.

Buscombe defended the body’s handling of phone hacking and said she was “weary” of responding to that question. The PCC is not set up to investigate criminality, nor should it be, she added.

Earlier, in defence of the PCC’s existing sanctions, she claimed:

“I wish some critics of the PCC could hear editors when the PCC have adjudicated against them; it is not music to the ears, believe me, they hurt.”

Media blogger Jon Slattery also has a report, here.