‘Toothless’ press regulator is a busted flush, but genuine post-Leveson reform is still on the way

Since the dust settled on the Leveson Inquiry and its recommendations, much of the UK media has sought to portray the newly-formed Independent Press Standards Organisation (IPSO) as the answer to the press regulation question and the end of the story. Steven Barnett argues this is far from the case, and genuine independent regulation through the Royal Charter framework remains both necessary and very much still on the cards.

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As criminal trials proceed against more journalists for alleged corrupt payments to public officials, and more evidence emerges about industrial-scale phone-hacking at Mirror Group newspapers, the Sun appears to have ratcheted up its “save our press freedom” mantra with a systematic attack on the Crown Prosecution Service. Meanwhile, it seems, powerful newspaper proprietors and editors continue to exercise their licence to bully, intimidate and abuse ordinary people (as well as sometimes their own journalists) in their search for “exclusives”. Some are saying “whatever happened to Leveson?”

Those following the story of press regulation through our national press could be forgiven for two misapprehensions: first, that the press, in creating their Independent Press Standards Organisation (IPSO), have produced a genuinely tough and independent system for protecting both journalists and the public; and second, that the carefully calibrated recommendations of Sir Brian Leveson for genuinely independent and effective self-regulation, introduced by Parliament through a Royal Charter after cross-party agreement, are dead in the water. In fact, as a series of hearings in front of the House of Lords select committee on Communications over the last few weeks demonstrated, exactly the opposite is true.

IPSO – a busted flush?

Most of the national press, with the exception of the Independent, Guardian and Financial Times, have signed up to IPSO, frequently described by its apologists as “the toughest regulator in the western world” with the power to levy “million pound fines”. These same newspapers trumpeted the appointment of the highly respected and charismatic retired appeal court judge Sir Alan Moses as IPSO’s first chairman. Here, surely, was undisputed proof of their new regulator’s independence from the industry.

Unfortunately, Sir Alan is not master of his own house. IPSO’s paymasters are the Regulatory Funding Company (RFC), a combination of the same large and powerful press groups which controlled the discredited Press Complaints Committee. And, as the Media Standards Trust demonstrated over a year ago in a forensic analysis of its constitution and governing regulations, “IPSO’s budget, its rules, its code, its sanctions, its investigations, will all be controlled by the RFC”. There will be at least six opportunities for publishers to intervene in investigations, more if IPSO attempts to impose sanctions. A one million pound fine is about as likely as a Daily Mail editorial welcoming Romanian immigrants.

Since he started last September, Sir Alan Moses has committed himself to demanding changes from the RFC’s rulebook, hinting at resignation if they fail to deliver. He told the Lords select committee that “many of the rules – this awful collection of rules and regulations – are opaque, sometimes self-contradictory, difficult to understand and sometimes difficult to find”. The rules on investigations, he conceded, “require a large amount of red pencil”. Precisely how many changes he was demanding, in what terms, and within what timescale remain unknown. Despite Sir Alan’s repeated commitment to transparency, nothing has been made public.

It is now clear, however, that Sir Alan will be getting short shrift from the RFC. When its chairman Paul Vickers appeared in front of the committee a week later he was unequivocal: “When Sir Alan says he’s going to put a red line through a whole load of things, he can’t.” The RFC have told him to come back “when you’ve got some experience of running the system [and]….. if things aren’t working, we’ll see if through the signatory members of the industry we can change the system”. His message could not have been clearer: given the difficulty of persuading publishers to sign up to IPSO’s current terms, further negotiations will be lengthy, complex and futile.

Royal Charter framework

Thankfully, the framework agreed by Parliament is progressing and now offers a real chance of meaningful reform. Under the terms of the Royal Charter, a Press Recognition Panel (PRP) was formally established on 3 November last year. It is entirely independent of both politicians and the industry, and its job is to scrutinise any press self-regulator that puts itself forward for recognition and ensure that it meets the Leveson criteria of independence and effectiveness enshrined in the Charter. Its chair, Dr David Wolfe QC, told the Lords committee that it was in the process of recruiting staff and establishing detailed recognition criteria, would be consulting widely and transparently, and would certainly be in a position to process applications before their first anniversary – and earlier if a candidate self-regulator was ready to apply.

In fact, a Charter-compliant regulator is well on track to make such an application. The Independent Monitor for the Press (Impress), instigated by free speech campaigner and former director of English Pen Jonathan Heawood – with support from writers and journalists – went through a wholly independent appointments process and now has an independent Board and chairman designate, Walter Merricks. Merricks told the Lords committee that they expect to have completed all necessary steps to be a Charter-compliant body within the next three months. And while no national publishers have yet been approached, there are several smaller online, regional and hyperlocal publishers that have expressed a clear interest in accessing the kite-marking and protection benefits of being within a recognised self-regulator.

Those benefits – for both journalists and members of the public – consists of new rules for legal costs contained within the Crime and Courts Act which are triggered as soon as a self-regulator is recognised by the PRP. Those who bring an arguable claim for privacy or defamation against a publisher who is NOT part of a recognised regulator will be protected from court costs even if they lose, on the perfectly rational basis that they have been denied the opportunity of low-cost resolution that a recognised regulator must provide.

Conversely, any wealthy or powerful individual or corporation who brings a similar claim against a publisher which IS within a recognised regulator – if they insist on going to court rather than using arbitration – will have to pay their own costs even if they win. Hence, publishers are protected from the chilling effects of a Robert Maxwell type figure threatening to bankrupt them if they dare to publish unflattering information.

A separate provision – which provides immunity from exemplary damages in privacy and defamation cases for publishers inside a recognised regulator – comes into force automatically on 3rd November this year, the first anniversary of the PRP. It offers a further incentive for publishers to join a recognised self-regulator.

The future

At some point, the RFC will trumpet one or two minor concessions to IPSO as if Sir Alan Moses has forced them into wholesale submission. In fact, it will continue as an utterly compromised and toothless industry creature, just like its predecessors, wholly incapable of holding a powerful industry to account. The only protection – both for ordinary people whose lives are trashed to boost circulations, and for journalists who want to pursue hard-hitting, watchdog journalism – will come from the Leveson mechanisms rooted in the Royal Charter, which could well be up and running by the summer. That, of course, assumes that a majority Conservative government does not reward its newspaper allies, renege on Mr Cameron’s personal pledge to victims, and sweep away the whole cross-party consensus.

Assuming common sense and the public interest prevail, we should at that point have a better idea of whether and how the new regime for press self-regulation is effective. If not, legislators will no doubt start contemplating Leveson’s “failsafe”: a statutory regime, which obliges major publishers to join a regulator. No doubt at that point, press hysteria about North Korea and Zimbabwe will reach deafening proportions.

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An edited version of this article appears today in The Conversation. It represents the views of the author, and not those of Democratic Audit or the LSE. Please read our comments policy before posting.

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Steven Barnett is Professor of Communications at the University of Westminster