Archive for January, 2011
The PCC released a statement this week saying that it was concerned about the new allegations of phone hacking and announcing the formation of a phone hacking working group ‘to consider the new information that becomes available, and make recommendations to the Commission’.
But even if the Commission is concerned about the practice, what could it actually do and, if it can’t do anything, why is phone hacking (and other forms of subterfuge) in its code of practice?The editors code of practice clearly states that the press must not engage in phone hacking:
Clause 10 * Clandestine devices and subterfuge
The press must not seek to obtain or publish material acquired by using hidden cameras or clandestine listening devices; or by intercepting private or mobile telephone calls, messages or emails; or by the unauthorised removal of documents, or photographs; or by accessing digitally-held private information without consent.
Engaging in misrepresentation or subterfuge, including by agents or intermediaries, can generally be justified only in the public interest and then only when the material cannot be obtained by other means.
The code is clear and consistent with the law of the land. But, as the PCC frequently states, it is the Press Complaints Commission’s job to uphold the code of practice not the law of the land (that is for the police).
However, in practice, the PCC cannot uphold the code in relation to phone hacking. It does not have the power or resources to conduct an investigation, it lacks the authority to conduct work which overlaps with that of the police, and it has no effective powers of sanction. When it has sought to uphold the code, it has caused the PCC greater problems.
The major instance of phone hacking relates to the prosecution of Clive Goodman, the News of the World reporter who listened to the voicemail of the Princes. The PCC did not have a role in this until after the court case, when it said it had put in place measures to ensure that other newspapers did not engage in phone hacking.
Since 2004, the PCC’s published statistics about breaches of its clause on phone hacking reveal just one complaint that has been considered (a further three have insufficient explanation to know what happened*). In that case, Merlyn Brown v Ballymoney Chronicle, the Commission found that:
“there was a sharp conflict of evidence in relation to the circumstances in which the newspaper had obtained the leaflet in question. In light of this – and taking into account the fact that the Commission does not have legal powers of sub poena or cross examination – the Commission could not make a finding under Clause 10.”
The PCC did, however, say that it had conducted an investigation after Nick Davies’ articles in the Guardian alleged new evidence of phone hacking at the News of the World. During that investigation it was told by the editor of the News of the World that after a thorough search of its computer systems, the News of the World could find no evidence that any News of the World staff (other than Goodman and Mulcaire) knew of phone hacking. The commission concluded:
“the Guardian’s stories did not quite live up to the dramatic billing they were initially given . . . there did not seem to be anything concrete to support the implication that there had been a hitherto concealed criminal conspiracy . . . there is no evidence that the practice of phone message tapping is ongoing. The Commission is satisfied that – so far as it is possible to tell – its work aimed at improving the integrity of undercover journalism has played its part in raising standards in this area.”
In this investigation it also had no legal power of sub poena or cross examination but said it was sufficiently satisfied by the evidence it was given that The Guardian was at fault. The Guardian’s editor, Alan Rusbridger resigned from the editors code committee following publication of the PCC’s report.
However, chairman Baroness Buscombe reassured the public that:
“If there was a whiff of any continuing activity in this regard, or anything like it, then we would be on it like a ton of bricks”
Buscombe later told the industry conference, the Society of Editors, that allegations that the number of people that had been hacked numbered in the thousands were misleading, criticising lawyer Mark Lewis who made the allegation. The PCC later had to make a libel payment to Lewis for her remarks.
The following year, it emerged that the News of the World informed the PCC that it suspended a reporter (understood to be Dan Evans) after a new instance of phone hacking. The PCC did nothing because the case was subject to a police investigation.
In the last fortnight, we discovered that Ian Edmondson, news editor of the News of the World has been sacked over his role in phone hacking. The PCC does not appear to have played any role in this case either; not in revealing the phone hacking or the disciplinary action or even just recording the breach of the code.
It is illegal for newspapers to engage in phone hacking. If someone believes their phone has been hacked they should go to the police (whether the police take action is a different question).
If they went to the PCC, the Commission would tell them to report it to the police. If the police found no evidence, then the case would not be pursued. If it found evidence then they would take action (and / or the individual concerned would take the offender to court).
So why is the clause included in the editors code? Including it gives the impression that the PCC has responsibility for it and can do something about it should it find has happened. Since they do not and cannot then it seems misleading to include it.
The PCC has confirmed that it is investigating the Telegraph’s sting operation of Lib Dem ministers. The newspaper, which sent two undercover reporters with a recording device to the ministers’ constituency advice surgeries, could have to print a prominent apology if it is found to have breached the PCC code of practice. The case will be far from simple so we have analysed the PCC’s previous rulings on the use of subterfuge to understand how the PCC might make its final decision.
The PCC’s code of practice states:
“The press must not seek to obtain or publish material acquired by using hidden cameras or clandestine listening devices.
“Engaging in misrepresentation or subterfuge . . . can generally be justified only in the public interest and then only when the material cannot be obtained by other means.”
The newspaper’s likely defence will probably pass these tests in relation to the revelations about Vince Cable’s views on Ofcom – if that was the story the Telegraph was looking for:
1. The material could not have been obtained by other means
If the Telegraph had spoken to Vince Cable directly, or via the departmental press office, it would not have gained the story about his views on Ofcom.
2. The story was in the public interest
The central revelation in the story was that the business secretary was prejudiced in his views of Rupert Murdoch and therefore would be unable to make a fair decision as to the merits of News Corporation purchasing the rest of Sky. As a matter of public policy it was in the public interest – and Cable’s subsequent removal from the decision further supports the newspaper’s case.
However, the PCC’s previous rulings have established two further principles which it will need to address in this case.
1. Was the newspaper aware of Cable’s views before the sting?
The PCC ruled that “retrospective justification – that the journalist had found some shortcomings once he was there which he was unaware about before – was not acceptable” (Munro and Bancroft v Evening Standard). The Telegraph will need to persuade the commission that there were grounds for believing Cable held these views before its sting – although it is unlikely to have to prove this. In Keith Vaz vs the Daily Telegraph the PCC ruled that “Because of the Code’s requirement on journalists to protect confidential sources of information, it was not possible for the Commission to ascertain the precise circumstances relating to how it came into the newspaper’s possession”.
2. Is an advice surgery a private gathering or a public gathering?
If the PCC considers an advice surgery to be a public gathering, then the newspaper’s defence will be much stronger. On this issue, the commission has relatively little precedent to draw upon.
The PCC ruled against the News of the World when undercover reporters filmed guests at a private party for people working on TV soap Emmerdale. The PCC rejected the newspaper’s justification that the journalists might have discovered people behaving in a way which would have justified publication in the public interest, on the basis that it would have given newspapers carte blanche to intrude on any private gathering of high profile figures (Ryle v News of the World).
MPs advertise advice surgeries locally and people can usually either attend by making an appointment through the constituency office or just ‘dropping in’ to the venue and waiting to be seen. If the PCC considers this to be a public event, then the Telegraph’s justification shouldn’t have to be as robust.
However, the cases involving the other Lib Dem ministers are altogether more complex, and if considered together, undermine the defence of the Vince Cable story.
1. Could the material have been obtained by other means?
The Lib Dem ministers targeted by the Telegraph were known to be on the social democrat wing of the party – that most uncomfortable with the coalition. Was subterfuge the only way of substantiating that they didn’t like their Tory colleagues? Surely if the MPs spoke freely to people they hadn’t previously met, then perhaps there would be others (eg. local party colleagues) who could have substantiated the story without the need for subterfuge.
2. Was the story in the public interest?
The stability of the government is in a matter of public interest and so by extension, any story that reveals this is at risk is in the public interest. However, the Telegraph’s revelations about David Heath, Paul Burstow and Andrew Stunnell, weren’t principally about the stability of the government. Neither minister is sufficiently powerful to threaten it. And the controversial remarks were about personality splits, not policy. The Telegraph itself reported:
“The deep personal animosity and distrust at the highest level of government between ministerial colleagues can be disclosed today”.
So if the stories about Heath, Burstow and Stunnell don’t meet the PCC’s criteria, then it would appear to make the Cable story about Ofcom a fluke, rather than part of a targeted investigation. The fact that the Telegraph targeted a number of ministers – and that the bulk of the stories related to their views about their Tory colleagues – suggests that the Telegraph had embarked on the sort of fishing expedition that the editors code book specifically warns against.
The PCC’s judgements on the use of subterfuge must be amongst the most tricky it has to make. The Vince Cable story was clearly in the public interest but the key questions are whether the newspaper was producing the evidence for a story it already had, whether the advice surgery was a public event and if not, whether the invasion of privacy was justified. But if the cases are considered together – and the method of the newsgathering is the focus of the inquiry – then the public interest defence for the Vince Cable story appears weaker.
If the newspaper is found to have broken the code and has to publish an upheld adjudication then it’s reasonable to expect the editor of the Telegraph to resign.
This is the second of a two part review of the PCC’s response to the governance review. You can read the first part here.
Most of what the PCC does goes unreported in newspapers. But surely if they considered that the governance review had led to a stronger PCC, more able to represent its readers (or constrain its newspapers) they might have informed their readers? Instead, no newspaper carried a single word on the PCC’s final document.
The press’ disinterest in the governance review just might be because the governance review will lead to little significant change. For the following reasons, the governance review was a missed opportunity.
1. Clarity of purpose
The clarity of purpose section is well-worded and largely clear. However, it is fundamentally weakened by misleading language. For example, it asserts that “the PCC can enforce a range of sanctions”. This is simply untrue. Misleading prospective complainants in this way is deeply unfortunate.
The way in which the PCC will demonstrate its effectiveness will basically remain unchanged. Its complaints survey produces basically the same results each year – on a very small number of responses – with the vast majority satisfied by the PCC – although the wider system does not form part of the survey.
The complication over the PCC’s statistics may improve – but the response to the governance review is not a good starting point. It says that it will publish all cases where there is a breach of the code. So presumably all those (or only some?) which are not, will not be recorded. So the public will not be able to judge people who bring vexatious, repetitive complaints or whether some newspapers are unfairly targeted by campaigners.
The PCC also asserts that its sanctions must be better understood despite it only having one real sanction – requesting an adjudication – and no legal mechanism to enforce it. If it does admonish editors and publish this, it is to be welcome. But surely it is odd that the PCC is only committed to providing ‘examples’ of this rather than a complete list.
The PCC also rejects that any claimant should be able to make an oral case to the commission. On this point, it may be that the PCC is right – that most members of the public are better represented (and more cost effectively) in written form, with the assistance of the commission secretariat. However, the PCC finds:
“The current system allows for complainants and papers to set down their positions before being examined by the Commission. There is no need for lawyers to advocate on a complainant’s behalf”
And this statement clearly side-steps the fact that newspapers have their submissions written by lawyers – so the process is even harder for members of the public.
This is the strongest section of the document. Essentially, the PCC is operationally independent of the industry. However, the governance review did not find a case for barring working editors from the commission, or involving senior journalists on the PCC. As long as complainants dislike the PCC’s decisions, the role of working editors will continue to provoke suggestions that the PCC lacks independence.
In contrast, this is probably the weakest section of the document. It doesn’t even codify the PCC’s existing commitments, let alone push it towards reaching the standards that the press expect of others.
The PCC chairman has previously committed the PCC to act in the spirit of the freedom of information legislation. Given that it has failed to do this when asked, the only conclusion from the document can be that the PCC has no wish to make information freely available except on its own terms. Even the protocol which it says it has developed is not obviously publicly available.
The biggest problem with the changes to the PCC’s accountability is the continued unwillingness of the PCC to allow a right of appeal to its decisions. It believes this on the basis that a smaller number of people should not be allowed to overturn the decision of a larger number. This is an odd principle which is not applied elsewhere (appeal court judges can overturn a jury, judges can kick out an MP elected by 80,000). But the intransigence means that when the PCC is inaccurate, the law is the only course of action for a complainant – which weakens self-regulation.
By side-stepping big issues on sanctions, freedom of information and appeals the governance review outcomes ensure that the PCC will not be a significantly different place – and the newspapers that it covers presumably believe this to be the case. So on the big issues – whether high profile defamation cases or serious breaches of personal privacy – the experience for the public and the complainant will be little different.
UPDATE: Guy Black, chairman of Press BoF has also replied to the MST’s questions. He confirmed:
“The PressBof press release made clear that Northern and Shell’s decision will have no impact whatever on the PCC’s 2011 budget. Its excellent standards of service to the public will therefore be maintained.
On the other issues you raise, relating to the question of contributions, the PressBof Board is currently studying the recommendations of the independent Governance Review.”
UPDATE: The PCC has responded to the Media Standards Trust’s questions about the implications of the withdrawl of Northern and Shell from the commission. The most important and significant point is that the PCC’s service will not be affected by the loss of income.
1. What impact will Northern & Shell’s withdrawal have on the PCC’s overall funding? Given that the amount contributed by national newspapers is kept secret it is currently not possible for those outside the industry to work out what effect the exit will have.
The budget for 2011 has been fixed, and Northern and Shell’s departure won’t affect that at all.
2. Will the PCC be able to maintain the same level of service on a lower budget?
The budget will not be lower.
3. In the PCC statement – and for the first time – you revealed some of the publications not covered by the PCC (i.e. Northern & Shell publications). Will the PCC now publish a list of all those that subscribe?
Details of subscribers are a matter for PressBof, and the Governance Review made recommendations in that area to PressBof.
4. Was Northern & Shell clear as to what motivated its withdrawal? And, if so, is it clear under what terms it might return to the system?
All we have been informed is that the decision was taken for monetary reasons. We hope that N and S will rejoin the system.
Thank you to the PCC for its swift and informative response.
After weeks of industry speculation, the Press Complaints Commission (PCC) confirmed today that Richard Desmond-owned Northern & Shell has stopped paying towards the system of press self-regulation. As a consequence the Press Board of Finance and the PCC, quite properly, ejected Northern & Shell publications from the self-regulatory system.
The Media Standards Trust today asks the following open questions of Northern & Shell, the Press Complaints Commission (PCC) and the Press Board of Finance (PressBof):
Northern and Shell
- Will you guarantee to offer the same levels of protection to members of the public – such as families who have suffered a suicide – as you did when covered by the PCC code?
- If a member of the public feels harassed by a journalist claiming to work for Northern & Shell, what should they do?
- If you discover that a high profile public figure is pregnant before their 12 week scan, will you protect their privacy as other newspapers have agreed, or just publish the story?
- Will your publications continue to write to the PCC Editorial Code, or is Northern & Shell opting out of all existing codes of self-regulation?
- How should a reader go about making a complaint about something that is written in one of your titles?
- When the Media Standards Trust wanted to make a complaint to the Daily Star, it found that the newspaper did not make public the name of its editor or a phone number for anything other than the newsdesk. Will the affected titles now make clear how to contact the editor and/or provide a clear internal complaints system?
- What motivated your withdrawal and on what terms, if any, would you return to the system overseen by the PCC?
Press Complaints Commission
- What impact will Northern & Shell’s withdrawal have on the PCC’s overall funding? Given that the amount contributed by national newspapers is kept secret, it is currently not possible for those outside the industry to work out what effect the exit will have.
- Will the PCC be able to maintain the same level of service on a lower budget?
- In its statement – and for the first time – the PCC revealed some of the publications not covered by the PCC (i.e. Northern & Shell publications). Will the PCC now publish a list of all those that do subscribe?
- Was Northern & Shell clear as to what motivated its withdrawal? And, if so, is it clear under what terms it might return to the system?
- This is the second time in two months that the PCC budget has been hit (the first being the libel settlement and costs in November 2010). PressBof was not transparent about the cost of the first (and did not respond to the Media Standards Trust’s letter requesting further information); will it now be transparent about the cost of the Northern & Shell withdrawal?
- PressBof has previously refused to provide any assurances on what this means for the PCC’s level of service. Will it now provide assurances that the level of service the PCC provides will be maintained?
- Given the importance of national newspaper contributions to the sustainability of the PCC, will PressBof now lift the secrecy surrounding those contributions, and publish information on who pays for the PCC and how much each pays?
Martin Moore, the director of the Media Standards Trust, said: “The withdrawal of Northern & Shell raises fundamental questions about the sustainability of the current system of self-regulation. The PCC and PressBof need to reassure the public that they will continue to have adequate avenues of complaint. Northern & Shell needs to be clear as to how it will, in future, fulfil its obligations to its readers and to the broader public.
“The Press Complaints Commission argues consistently that it exists as a better alternative – and deterrent to – statutory regulation. It now needs to explain what impact Northern & Shell’s withdrawal will have on the general public, and what it plans to do to ensure the comprehensiveness and sustainability of press self-regulation.”
This is the first of a two part review of the PCC’s response to the governance review
The Press Complaints Commission published its response to the governance review that it established in August 2009. The overriding sense from the document is that the reforms will do much to tidy up the process for those concerned about small-scale inaccuracies but little to make a step-change to a PCC that could protect, for example, the McCann’s from libellous articles.
Naturally there are things that we both agree with (either because they reflect the MST’s submission to the governance review or because they’re just eminently sensible) and disagree with. So to be as fair as possible, we wanted to respond to the review in two parts – those that are positive things and those that are not.
The PCC is used to having a low profile in the newspapers that created it. Nevertheless, it’s surprising to PCC Watch that the PCC’s recommendations have not received a single line in a national newspaper. But the PCC’s document is detailed, thoughtful and clearly addresses each point raised by the review team – and so deserves a considered response.
1. The review was a positive process, and the response well considered
The governance review process was reasonably transparent, with a separate website and the written submissions published online. The governance review document clearly set out the big issues that it had considered during its evidence-gathering and did not appear to feel unduly constrained by the tight brief that it was given.
The PCC’s response is a similarly professional document, with a paragraph by paragraph response to the governance review panel’s recommendations
The PCC’s response to the governance review sets out many things that it is already committed to doing in order to ensure that it is effective. The PCC has committed to a more efficient handling of most complaints (20 days instead of 30) and seeks to provide as much information as possible in the summaries of the complaints published on the website.
The commission has also begun the process of redeveloping its website in order to ensure that the data is presented more clearly and year-on-year comparisons are available in its annual report. This is welcome and will better enable people to hold the press and PCC more accountable (as we have sought to do with our Press Complaints site).
The PCC has also committed to being clearer about its use of sanctions. Whilst the MST found this to be one of the weaker parts of the response, it should also be noted that the establishment of a working group with Press BoF to consider sanctions at least provides a mechanism for further consideration to be given to this vital area.
Most of the recommendations on independence have been accepted by the commission. Minutes of the meetings are already published on the website and an enhanced register of interests will better enable the public to see when an editor does and does not have to recuse themselves from discussions about complaints against publications with which they have a relationship.
However, the most significant part of this section concerns the funding of the PCC. Whilst Press BoF has been willing to reveal the formula which determines what regional newspapers and magazines contribute towards the PCC, they have kept secret the contributions from national newspapers. The only argument that we have heard in favour of doing this is that it protects the PCC from inadvertently favouring the largest contributors.
It’s significant, therefore, that the PCC “endorses the idea that there should be greater transparency about the funding structure”. Not because it will lead to an immediate change, but because Press BoF is rapidly running out of credible arguments in favour of its secret approach.
Lastly, the PCC has also created a mechanism by which PCC board members who have failed to fulfil their duties and responsibilities may be discharged from the commission, by a two-thirds majority vote. If implemented correctly, this would have enabled a proper procedure to be followed to strip the editor of the Daily Express of his PCC post after his newspaper paid out a significant sum for libelling the McCanns.
The PCC has committed to a protocol which has now been agreed and put in place. However, this section of the response was largely disappointing and so will be dealt with in the second of the two blogposts.
The PCC has simplified the names of the charter commissioner and the charter compliance panel, although in other respects the roles appear largely unchanged. There are a number of smaller sensible, small-scale recommendations which will further improve the PCC’s accountability, including an internal review mechanism for each commissioner. Within the limits of the recommendations of the governance review, the PCC’s response is largely constructive.
The PCC’s response to the governance review will help nudge the commission to being a more rigorous, professionally-run organisation. However, as we will see in the second section, none of the recommendations represent a step-change in the way that the PCC operates so are unlikely to mean a PCC which receives less criticism from those who want a tougher body with a wider remit.
Newspapers are now required to agree with the PCC the prominence of corrections before they are printed – after changes introduced by the editors code committee. This could be a small change to alleviate complainants concerns when a correction lacks due prominence. Implemented a different way, it could be a significant step for the PCC to demonstrate the strength of self-regulation.
Editors’ code committee secretary, Ian Beales, said of the change:
“This amendment is designed to help kill the myth that newspapers and magazines routinely bury corrections. Research conducted by the PCC has shown this to be untrue – nearly 85% of PCC-negotiated corrections and apologies appear no further back than the original transgression, or in a designated corrections column.”
There are a number of ways the PCC could use this to ensure a more effective regulatory regime. The PCC could routinely record on which page the original story appeared (or where the headline and hyperlink appeared) and then where the correction appeared (or where the headline and hyperlink appeared). It could put this data in a consistent format to enable the public to compare the data. The PCC could even measure the column inches of both, to provide further explanation of what it means by “due prominence”. ‘Any ways in which the PCC can record where an apology/correction appeared and with how much prominence would help substantiate the Commission’s claim that 85% appear no further back than the original transgression.
An apology in the Sun reveals one of the challenges around the ‘due prominence’ debate. The apology appears on page 2, correcting a frontpage story that was basically entirely untrue. This is a similar approach to a Daily Star correction of a false frontpage story. So in the end of year statistics, these will both look like acceptably prominent corrections. A more constructive debate would enable the PCC to defend a page 3 apology for a frontpage correction, on the basis that page 3 is more read than page 2 – for example.
The PCC could also use the data of apologies in order to produce a league table of which newspapers have broken the code most frequently – and on what issues. This would enable the public to compare the performance of newspapers and lead to a more informed debate whenthe next frontpage story appears about an Al Qaeda threat , for example, And in the interests of fairness, the PCC could also log those stories where there was no breach of the code, in defence of the freedom of expression.
Currently, despite playing the leading role in negotiating corrections in the Sun and Heat magazine, the PCC has not ruled whether either newspaper breached the code. So there appears to be no sanction against the newspaper.
Self-regulation needs to remain flexible and responsive – as the governance review process highlighted. And this very approach enables the PCC to institute an effective regulatory regime – but only if it interprets its role in the wider public interest rather than the narrow interpretation of the satisfaction of each complainant.