Jason Paul Grant

The Press Complaints Commission

The Press Complaints Commission (PCC) has always caused controversy throughout its eighteen years of existence. The PCC was created after the Calcutt Committee review in 1990[1], which called for a far more regulatory body to replace the then, much criticized Press Council. The PCC has never been fully accepted in society and it seems that the drums have started to beat once again for the removal of the voluntary self-regulatory system, in which the PCC operates, to a more statutory alternative that has powers enshrined in law.

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On the 15^th July 2008, a Labour MP Jim Sheridan was arguing the case for the PCC to be replaced in the House of Commons[2] . Sheridan was introducing the new bill, which would be the latest attempt to “introduce a statutory method for protecting the general public from inaccurate and, at times, inflammatory reports in the press and media”[3] . There was a strong emphasis on describing how the new proposed regulatory system would not have any effect on the freedom of the press and that it was the duty of a free press to “balance commercial considerations with its responsibilities to individuals and to society as a whole”[4] .

 

The main thrust of the argument is that the PCC should have more power to enforce its code and ensure that members correct their mistakes when proved to have transgressed. Apparently the National Union of Journalists has been calling for the PCC to become a public body which would allow its practices to be scrutinised through the Freedom of Information Act 2000[5]. The argument is that if the workings of the PCC were more transparent, then there would be less cause for complaint, in particular with regards to the amount of complaints that are actually upheld. Sheridan goes on to state that “there is an increasing body of anecdotal evidence to suggest that in situations in which victims feel that they have a strong case, they are brought off with minimal out-of-court cash settlements, and with a small retraction buried in the depths of the newspaper”[6] .

 

So with the debate creating some strong arguments to reform the PCC, this paper will discuss the main arguments for and against keeping the PCC as a voluntary body that has been using self-regulation as a watchdog on the newspaper industry. Also, the paper will look into the claims that by replacing the organisation with a statutory body that has more constructive powers to impose fines, withdraw publishing rights and force compliance, whether this would please the people who feel that the PCC has no effective means of redress for complainants.

 

THE FORMATION OF PCC

Press standards have always been in contention with certain members of the public but it was not until the press started to create new forms of journalism, that serious concerns were being raised about the industries ability to police its own affairs. The invasion of privacy was high at the top of the list of violations that the press continued to commit without any regard for its victims. The government at the time appointed Calcutt to form a committee which would report on the state of the Press Council, the then regulator of the print media. The Calcutt Committee reported (1990) that there should be a new, non-statutory Press Complaints Commission[7] . The PCC was set up by the newspaper industry to avoid the statutory controls that were being recommended by the committee. At the time, it was felt that the industry had worked well to ensure that they got a functioning regulatory body up and running. They were given just two years before another report would be made to look into the practices of the PCC, in particular whether it could protect privacy.

 

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The PCC opened for operations in 1991 with the newspaper industry wanting to work together on a voluntary basis, to ensure that a sensible code could be adhered to. The Calcutt Committee also suggested some key points which would strengthen the voluntary arrangement that newspapers were opting for. Gibbons explains that the first recommendation was for there to be “government action to extend access to information, secondly a Protection of Privacy Bill to cover all citizens, thirdly a contractual editorial responsibility for enforcing the industry’s code of practice, and lastly a statutory Ombudsman to deal with any inadequacies of the voluntary regulatory system”[8] .

 

The Editors’ Committee was also formed in 1990 to draft the first Code of Practice for the Press. The Editors’ Committee had the role of administering the new system of self-regulation and the PCC had the role of adjudicating complaints when editors had breached the code of practice.  In 1993, Calcutt reported again on the PCC and put forward the idea that the press industry could not maintain any decency, so should not be allowed to continue to self-regulate and called for a statutory body to take over the task of regulating the press. That statutory body would have to have the power to adjunct impending privacy beaches and fine journalists who broke the code.

 

Again the PCC survived the recommendations by constantly revising the Code, introducing an annual Code review, keeping alive the spirit of self-regulation in that only the press could police its affairs, and developing a working relationship between the Code, editors and journalists. The last major enquiry into the PCC was in 2003[9] when it received many criticisms but overall was applauded for its work that it was doing to protect privacy, enforce the Code and in particular its work on protecting vulnerable people. Robertson and Nicol have argued that “the PCC is exercising a recognised public adjudicative function as a government-brokered alternative either to a Calcutt-devised complaints tribunal or to a privacy law introduced by Act of Parliament”[10] .

 

HOW THE PCC WORKS

In its daily operations, the PCC functions just like any other self-regulatory body. Essentially there is a Code of Practice for which all complaints that are lodged are judged against the Code to test the validity of the complaint. The PCC reports regularly throughout the year with any major case findings and produces statistics on the amount of complaints received.

 

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There are a total number of seventeen members, ten are publicly appointed from outside the newspaper industry and seven are editors from national, regional and magazines. The actual organisation is funded by the industry itself, which ensures that all of the press organisations are members.

 

The actual Code consists of sixteen areas which the PCC primarily has to enforce.

They are as follows: Accuracy, Opportunity to reply, Privacy, Harassment, Intrusion

into grief or shock, Children, Children in sex cases, Hospitals, Reporting of crime,

Clandestine devices and subterfuge, Victims of sexual assault, Discrimination,

Financial journalism, Confidential sources, Witness payments in criminal trials, and

Payments to criminals[11]. So any member of the PCC has to ensure that they adhere to

those points in their reporting. The PCC relies heavily on the voluntary will of

editors of the press to ensure that journalists understand and comply with the Code.

 

If a member of the public wishes to make a complaint against a newspaper or magazine, the procedure will be explained to them. Crone states the four main points “All complaints are judged against the Code of Practice. The objective of the PCC is to achieve a speedy resolution of the grievance. The PCC will not usually entertain complaints from third parties. The PCC will not deal with a complaint if litigation, in respect to the story, is either in progress or about to commence”[12] .

 

In understanding how the PCC actually adjudicates on each case has of yet remained hidden from public scrutiny. It has been noted by Frost that “the commission has adjudicated on fewer than 800 complaints in its first ten years”[13] . This can of course be looked at in two ways, either the PCC is useless in dealing with complaints or that the PCC is actually so great at resolving complaints before they have to go through the adjudicative processes. Frost goes on to make a strong point, “an examination of these complaints and the decisions made by the PCC provides an insight into the workings of the PCC and, perhaps more significantly, into how press self-regulation is intended to change the ways in which journalists work”[14] . Even with many doubters of the PCC’s ability to control the beast that is the press industry, it should be noted that the PCC has managed to change the way in which the press operates.

 

ARGUMENTS FOR KEEPING THE PCC

The discussion will now move into the main arguments against the PCC becoming a statutory body. An important point is that the PCC actually works; it has resolved those complaints which have fallen under its remit and has enforced those decisions to be exposed in national newspapers. The Code is voluntary which makes editors more inclined to work with the PCC without feeling that they are forced into disciplinary actions. Lastly once a body like the PCC becomes regulated, the freedoms that the press have enjoyed will be lost.

 

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Lord Wakeham former chairman of the PCC, quoted on the BBC website in February 2001 says “the commission has raised standards of reporting and protected the vulnerable, resolving complaints more quickly than the courts could, at no cost to the complainants”[15] . Wakeham was speaking in defence to the ten year review of the PCC and his arguments can be look at in more detail.

 

It could be argued that the Code has been accepted by editors within the industry as being their own, which is not part of any trade union or outside political forces. The Code ensures that editors have a strict set of rules to follow when considering publishing anything that would breech the Code. The element of self-censorship allows editors to retain their power to edit the papers accordingly to their wishes, without feeling impinged upon by outside influences. Shannon maintains “the PCC has demonstrated that self-regulation continues to be the best way of ensuring high editorial standards in this country”[16] , so should be defended at all costs.

 

The main call from the opposition is to introduce statutory laws which are fixed, are imposed on media organisations, and fought relentlessly through the courts to ensure compliance. At the moment, the voluntary nature of the Code places all of the emphasis on the journalists and editors who transgress against the Code, if it were to be replaced with statutory measures, then all of the obligations would be placed upon the complainant. Furthermore, the newspapers would be able to unleash their regal legal teams who are well versed in finding loopholes to exploit, whilst the members of the public would have to find the means to fight any complaint through the courts. O’Malley and Soley expand this point by suggesting “enshrining the PCC Code in law places too much power in the hands of the courts. Court proceedings are costly and therefore of limited value to most people”[17] . So it should be noted that as it stands, the Code allows complainants to pursue complaints at no extra costs to themselves, which would not be the case otherwise.

 

Another strong point to be argued is that the PCC negotiates complaints between the press and the complainants without always needing to adjudicate. The PCC has managed to provide suitable remedies for most complaints very quickly and ensuring that all parties are satisfied with the result. As the Code is not fixed, it can be amended and changed to suit the needs of the complainants, newspapers and society at large when attitudes changes around particular parts of the Code. Finally, Underwood explains how “75% of all complaints are being dealt with in forty working days, which would almost certainly not be the case if there were a statutory system, which would be challenged all along the line by editors”[18] .

 

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The PCC can also be praised for nearly eradicating certain forms of abusive reporting that used to be the norm. The problem of jigsaw identification of children in child abuse cases, were a reader would be able to read different reports to piece together the identification of a child, has been wiped out. Similarly, the identification of victims of sexual assault within reports has stopped, with the full support of the industry due to the voluntary nature of the Code. Another area is to ensure that the privacy of hospital patients is maintained, which used to be breeched without any second thought. So the Code has fundamentally improved reporting standards for normal people.

 

The most contentious issue for the statutory lobby is the protection of privacy. When the Editors Code of Practice committee gave evidence to the select committee for Culture, Media and Sport in February 2007, they suggested “the protection of privacy is covered in eleven clauses of the Code, which is constantly evolving and often innovative in scope and approach. These strengths, inherent in a voluntary system are not often available in a statutory matrix”[19] . So the Code actually protects privacy in a number of ways and also ensures that complainants can seek remedies without having their private lives exposed in open courts. The PCC claim that everyone has the right to privacy but in practice it will depend on the public interest exception that is used to justify breaking the privacy of an individual. The public interest test is described by Sir Christopher Meyer, the chairman of the PCC as “does a story lead to the detection of a crime; expose wrongdoing; protect public health and safety; prevent the public from being misled; or uphold freedom of expression itself? We do not equate the public interest with whatever the public is interested in”[20] . So the claims that the PCC does not protect privacy are not entirely true, however it has to ensure that the public are kept informed if there is a case for it, which usually goes against the person who is being exposed. Lastly a majority of complaints that are presented to the PCC are matters related to taste and decency which fall outside of its remit. Maybe the case should be made to expand the Code to cover those aspects rather than replacing a voluntary Code with statutory controls that would bring an end to the freedom of the press.

 

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ARGUMENTS FOR CHANGING THE PCC

The media is a powerful medium which has to have restrictions and limits placed upon its power, otherwise it will claim no responsibility for damaging lives, spreading rumours, invading privacy and distorting debates with one sided commentary. It is these, and many more examples of unethical behaviour displayed by newspapers in particular that have led to renewed calls for statutory controls to be placed upon the industry. It should be noted that broadcasters have been subject to statutory controls which ensure that any breech of privacy, is met with the full force of regulatory powers that include heavy fines, suspending programmes and even the power to withdraw licences. The press has no similar restrictions placed on its operations and furthermore, the PCC lacks the might of Ofcom when regulating the media. Other regulatory bodies seem to be stronger, more active in pursuing and upholding the codes of practice and representing consumers throughout any complaints processes.

 

Robertson and Nichol lead a claim that the PCC “serve as public relations operations, funded by media industries to give the impression to Parliament that the press can put their houses in ethical order without the need for legislation”[21] . The PCC was formed out of desperation against the damning report from Calcutt and the impending doom of statutory regulations. Likewise, whenever a private members bill is being discussed in Parliament, the PCC usually revises its Code and presents their rulings to show that they are performing. The main case is that they could be doing much more to ensure that the newspaper industry is brought more inline with other media industries like broadcasting and advertising. For example Ofcom presents monthly bulletins where all complaints are presented and the adjudications are explained to all, so that decisions can be examined by any person. The PCC only presents complaints which it has upheld and the process in which it makes its decisions is not open to public scrutiny like Ofcom’s practices. Another example can be found with the Advertising Standards Agency which ensures that any advert that breaks its code, is removed from circulation or broadcasting. Whereas if a report breeches the PCC Code, a small retraction can be printed deep inside the paper, even if the offending piece was published on the front page.

 

There have been many calls for statutory controls and the points should be examined in detail. According to Crone “the Press Complaints Commission should concentrate on providing an effective means of redress for complaints against the press and should not operate a waiver of legal rights as a required prerequisite to having a complaint heard”[22] . If the PCC became known as a regulator that was feared by the press, than more would be done to ensure that transgressions are kept to a minimum. At the moment, it seems that the press are to close to the PCC, almost causing a conflict of interest. The other point is that the PCC does not look into any complaint that is going through the courts. However, just because a case is proceeding through the courts, does not mean that the press should be allowed to report whatever it likes.

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Barendt and Hitchens criticise the PCC for lacking effective sanctions. “It cannot impose a fine. It has not accepted proposals for a ‘hotline’ procedure, under which it would advise an editor not to publish a story or photo if it was plain that publication would infringe the Code”[23] . The first point is pretty simple; the PCC has no financial method of imposing itself upon the press. This means that newspapers can violate any part of the Code and be safe in the understanding that they will not face any financial sanctions. It is argued that the industry would pay more attention to the Code if they had to pay, from their own pockets. In regards to the hotline, it would allow the PCC to have a more effective relationship with editors directly to prevent wrongdoings before they occur.

Another area that the PCC fails to even recognise is the reporting of asylum seekers and refugees. There is a loophole that allows newspapers to report damaging untrue stories about these groups of people without naming any individuals specifically. This ensures that whole groups are significantly prejudice against and whips up public resentment against these vulnerable people. Underwood’s 2008 study highlights this problem and explains that it could be solved by allowing third parties the right to submit complaints against newspapers. As at the moment there is no way to outlaw this practice.

 

The main area of interest for the movement against the PCC retaining its independence is privacy. It could be argued that privacy affects the economics of papers as most of the contentious stories infringe on an individual’s privacy, and without those stories, certain papers would be out of business. At the moment, there is no real protection of privacy enshrined in UK law but since the Human Rights Act (HRA) 1998 came into effect, the courts have been using Article 8 European Convention on Human Rights, the idea that everyone has the right to respect for his private and family life, his home and his correspondence[24] to provide an effective remedy to protect individuals privacy.

 

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Feintuck and Varney demonstrate how legally the tide may be changing. “It should be observed that the HRA may seem to have allowed the courts to use constitutional principle in order to fill a gap left by the current regulatory regime” [25]. The decisions in cases such as Douglas versus Hello! Limited (2001), and the more recent decision of the House of Lords in Campbell versus Mirror Group Newspapers Ltd (2004) seem to indicate that common law can be used by those with the means for fighting lengthy courts battles, in particular the rich and famous. There is no doubt that the HRA has had a significant impact in this area, however these developments appear to illustrate and reconfirm the underlying weaknesses in the ‘front-line’ regulator, the PCC in protecting the privacy of individuals.

 

CONCLUSION

The main arguments for and against the PCC being scrapped and introducing a statutory body have been presented. Both sides of the debate have their own agendas, with the press wanting to keep control of its regulation and outside of the media world wanting more restrictions placed upon the press.

 

There was constant mention of other media regulators, most notably Ofcom and the calls were strong for the PCC to adopt the practices that the broadcasting regulator uses. The distinction between the two is structural; Ofcom has statutory powers which ensure that broadcasters can not get away with not following through with its rules. On the other hand, the PCC has no way of really enforcing the press into following its actions. The PCC relies on the goodwill of editors and journalists, the publication of offending articles and retractions, and editors actually dismissing journalists who repeat offences. Whereas, Ofcom can fines broadcasters huge sums of money and withdraw the use of licences.

 

The opponents of self-regulation argue that the only way to regulate the press is to enforce some form of financial penalty. This would prevent newspapers from producing damaging articles and printing contentious pictures. However, it could be argued that the real reason that complainants go straight to the courts, in particular famous celebrities, is that the can claim financial rewards for themselves. It should also be noted that Ofcom imposes fines on broadcasters but does not redistribute those funds to the people who have been transgressed against. Broadcasters still continue to produce content that is against Ofcom’s code, so the idea that introducing financial penalties would change the behaviour of certain newspapers is nonsense.

 

Furthermore, it could be argued that as anyone can self-publish to an audience without formally needing to become qualified, like how a doctor has to, the PCC is the only way of regulating an industry that affectively has no regulations. It is actually really commendable that an industry that can do what it likes, has come together to police its own affairs should be applauded. Remember that no matter how many fines that other regulators impose, they still have more and more cases to deal with each year.

 

Our free media should be defended at all costs. Self regulation has ensured that when strong cases have needed to be regulated, they have been. I am not arguing that the PCC is the prefect way to regulate the industry, but it should not be reformed without understanding that the whole media landscape needs to be addressed, otherwise those newspapers with the money will just create more problems than it is worth. The victims will be the people who can not afford to take complaints to court and those small media operations that will not have as much money to fight cases.

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[1] http://hansard.millbanksystems.com/commons/1990/jun/21/calcutt-report

[2] http://www.publications.parliament.uk/pa/cm200708/cmhansrd/cm080715/debtext/80715-0004.htm

[3] http://www.publications.parliament.uk/pa/cm200708/cmhansrd/cm080715/debtext/80715-0004.htm

[4] http://www.publications.parliament.uk/pa/cm200708/cmhansrd/cm080715/debtext/80715-0004.htm

[5] http://www.publications.parliament.uk/pa/cm200708/cmhansrd/cm080715/debtext/80715-0004.htm

[6] http://www.publications.parliament.uk/pa/cm200708/cmhansrd/cm080715/debtext/80715-0004.htm

[7] http://hansard.millbanksystems.com/commons/1990/jun/21/calcutt-report

[8] Gibbons (1998) p282

 

[9] http://www.publications.parliament.uk/pa/cm200203/cmselect/cmcumeds/458/458.pdf

[10] Robertson and Nicol (2008) p765

[11] http://www.pcc.org.uk/cop/practice.html

[12] Crone (1995) p195

[13] Frost (2004) p103

[14] Frost (2004) p103

[15] http://news.bbc.co.uk/1/hi/uk/1157911.stm

[16] Shannon (2001) p33

 

[17] O’Malley and Soley (2000) p189

 

[18] http://www.cultsock.ndirect.co.uk/MUHome/cshtml/media/pccdet.html

[19] http://www.editorscode.org.uk/downloads/press_releases/Code_selectcom1.pdf

 

[20] http://www.independent.co.uk/news/media/the-press-complaints-commission-the-best-a-press-can-get-416438.html

 

[21] Robertson and Nicol (2008) p757

[22] Crone (1995) p192

[23] Barendt and Hitchens (2000) p64

[24] http://www.hri.org/docs/ECHR50.html

[25] Feintuck and Varney (2006) p195