Friday, 30 November 2012

The (very) liberal case for Leveson's proposals

Unfortunately the aftermath of yesterday's Leveson Report is not pretty for liberals, regardless of which way you see the debate. On one side you have those that seem to align with libertarianism, who see Cameron's instant (and solitary) statement that "statutory regulation" is not an option as the right call for our liberties, in turn putting the rights of a select few individuals ahead of the rest of the public for little reason other than a vague principle of "freedom of the press" that Leveson's proposals must surely break.

Then you have the side that perhaps are more socially liberal who feel that the rights of those people that have their lives or reputations destroyed because of the lack of ethics in the press need to have some balance versus the obviously vital need for an independent press to hold our government to account, and side more with Nick Clegg and Ed Miliband in their calls for swift implementation of the core proposals with regards to regulation of the press.

But what is the regulation that is being suggested? If you want a perhaps shorter version of what I'm about to write, check out this fine post, otherwise read on.

Leveson is trying to create robust suggestions for a self-regulatory system that must, to be effective, include all the main players in the press industry.

Right off the bat it's important to see here that Leveson is not suggesting that there is compulsion upon the industry to join a regulator. This is completely different from, say, the energy market where being a provider of energy means that you are under the scope of OFGEM, for example.

Leveson used a turn of phrase at the end of his press conference, that this is about "guarding the guardians", probably from themselves as much as anything else right now...and the comparison is apt. While OFGEM or OFCOM watch their respective industries, the system Leveson wants here will be one that comes from within.

So Leveson wants a body with an "independent board" that will oversee the industry. It needs to be mostly independent, the reason for this illustrated quite clearly by the failings of the PCC where, as the Leveson report highlights, editors weren't keen on punishing each other and a culture brewed of simply not investigating issues brought before them.

Without a mainly independent component, all we will have is a PCC that keeps getting beaten down and forces true state regulation to be required, with a clear battle-line drawn between a state body and a body that retains all of the vested interests and corrupt practices the PCC has shown.

Leveson says these independent people need to be appointed in a transparent and independent way. No press people, no press parachuting their buddies in, and certainly no appointing these people in a dark back room somewhere. This is primarily about trust, so that the public know that those looking after the industry are doing so without the inherent bias and vested interests we have come to know and loathe.

He also believes that initially the chair is selected by an independent body, a body that is free from influence by the press, by political parties.

This is where the libertarian leaning side of the debate find their "light" statutory regulation. Their concern is that as soon as you define the process for finding independent members of a board that the process can be abused. This is why, however, the light regulation is needed. Barring current editors and current politicians from the board ensures that the panel is, at it's start, free from direct influence on either side.

While careful scrutiny will have to be had at the legislation that dictates the need for this independent process, it is hard to argue that if a truly open and transparent process is put in to legislation that the press will simply roll over and not scrutinise the process as it is used!

Leveson even wants to make sure that "we can't afford it" isn't an argument for the press, and suggests that public money can go towards the formation of this body. It is, after all, for the public good.

It's here where "regulatory control" finishes. The body may be required to have a standards code, but the independently selected with a broad mix of independent participants and those experienced in the industry...will have control on defining that, within some specific guidelines. These guidelines are regarding privacy, accuracy, public interest, freedom of speech and individual rights. It's important to recognise Leveson isn't stating that certain codes of conduct and standards must be accepted by being enshrined in law, only that the document must consider those elements.

The purpose of this is purely to ensure that there is public confidence in the body, in the press, and to have a clear definition...self-defined by the body...of what those various things mean to the industry.

Leveson welcomes that an advisory body, as suggested by the current PCC chair, is something that may be needed to ensure that those in control of the newspapers have proper input as to the standards they should adhere to. Of course all of this is also about public trust, so it is sensible to say that it's appropriate for this standards code to be open to consultation.

Leveson then moves on to what should be expected of the members of the regulatory body, the newspapers that will be self-regulated. For a start the organisations should have a clear governance framework that details how they will adhere to the standards code, and be required to be forthcoming about breaches in the code it discovers and how it is dealing with it.

This obviously reflects the issues with phone hacking, and how the culture at the papers, ignored by the PCC, was to simply wash over it with a "everyone does it" implicit acceptance. The intention is to make it harder for organisations to get away with gross breaches of their industrys own code of ethics.

Importantly Leveson sees the board as a "last stop" for complaints. While the PCC may have been the only (scant) resource for some to get serious complaints addressed from outside of a legal challenge, Leveson wants individual organisations to make a (speedy) complaints procedure transparent to people. He clearly feels that the importance is on newspapers individually being able to rectify their own mistakes and to treat issues at the appropriate level.

Then we move on to complaints to the regulatory body. Away from the current situation where a limited scope of people can apply to complain to the PCC, the idea is that the board can decide who they take complaints from and should consider all complaints. They can throw them out if they don't meet certain criteria, but they should be responsive to anyone with a legitimate complaint, and without cost to the complainant.

The suggestion here is that the board may not be adequately equipped to make a fully informed decision on such complaints, and Leveson (as he regularly does) says the body can set up it's structures as it wishes, but does say that any such structure must not have the conflict of interest currently built in to the PCC model, which is primarily that editors of papers have no place deciding on the credibility of complaints.

On top of this, where an investigation is needed, the regulator needs to be protected to conduct those investigations as they see fit, without such processes that allow editors to bog down complaints with appeal after appeal. This is, after all, a regulator proposal, and it'd be ridiculous to have a regulator who lacked the authority to conduct itself!

When dealing with the outcome of these complaints it's important to move away from the current situation also, one of people fighting an uphill battle to have their complaint recognised properly even if it is upheld. One of the main criticisms of papers making errors in their own standards is that no-one ever sees that they've done wrong.

Leveson starts out to rectify this by saying there should be a requirement for a register of sorts, to have a publicly accessible list of complaints and their outcomes maintained by the regulator. He stops short of going further, in deciding there should be legislation that dictates how apologies should be dealt out. While he wants to ensure scope is extended so that there doesn't have to be an identifiable person wronged for an apology to be required by the body, he leaves it to the body and the industry to work out what an appropriate standard of apology would be.

Obviously, we would all prefer that misleading errors in fact on migration figures, on the front page, were corrected with apology on the front page too. While I doubt we'd ever see a regulatory body getting that on the books, at least with an independent body there is more chance of such apologies being harder to miss than they are currently under a PCC that cares more for the paper than the wronged individual when it comes to printing apologies.

Also in legislation Leveson recommends capping the amount that a regulatory body can fine those who breach the standards code. 1% of turnover, or £1mil, whichever is lowest. This may mean more scope for putting fines on to papers that misbehave, but it also puts some form of protection in for the industry against unreasonable financial penalties that an independent body may, for whatever reason, try to impose.

Now...let's pay careful attention to this, as it's important to the "freedom of the press" issue. Leveson is stating that one of the key things that the regulatory body must NOT be able to do, is prevent publication. They may, as the PCC currently does, request on the behalf of individuals that the press not approach them, but they cannot say what they can or can't put to print.

In fact, through this body the stricter requirements on all involved to be open, transparent and have well defined standards means that, in Leveson's opinion, editors could actually go to the regulatory body to get advice on things they have published within the context of it's own standards. Leveson sees this as potentially very useful to courts in, amongst other things, protecting the freedom of the press by providing context that judges may find useful in, to name a specific example, cases of injunctions.

As with any other similar structure Leveson also wants it to follow standard practice...annual reports for transparency to the public are a must.

An area that Leveson talks about that I believe everyone agrees about, regardless of opinion on the issue of statutory regulation, is the suggestions of an arbitration body. Intended to cut out the need for the press to always go to court to defend itself, and to provide a quick, cheap and effective route for complainants to use.

There is also some recommendation that courts should take in to account the lack of a publisher's membership to a regulatory body when awarding costs to someone that goes to court to make their complaint, even if unsuccessful. Vice versa, if a paper has to pay to defend itself in court when the individual hasn't tried arbitration the court should have the freedom to take that in to account when awarding costs.

To give the whole structure legitimacy there must be some legal "rubber stamping". Where a regulator comes forward, who meets the criteria set out above to do this duty, then someone has to be responsible for reviewing that criteria and approving it. In this case the job is recommended to OFCOM.

While "bloated" as Cameron may like to say, OFCOM provides the best level of experience for assessing these bodies, with an internationally recognised level of independence in it's job. There is the worry that the chair of OFCOM is Government appointed, but this isn't a real issue. Leveson doesn't rule out the fact that if people don't agree with the OFCOM decision to appoint a regulatory body or not, there is always the court.

Indeed it appears the only reason to appoint the role of recognition body to OFCOM is to ensure that the courts don't get bogged down with administrative issues, in a format they're not equipped to deal with. The courts will always be ultimately responsible, but OFCOM can make the process smoother.

Then, here's the best bit.. if the papers think they're getting an unfair rub, that the "independent" regulator is no longer independent...they can go and organise to join a new regulatory body and get it recognised by OFCOM. There is no requirement for only one regulator (though this is obviously preferable) and it ensures that all involved have to work together for the system to work. If the press don't feel comfortable, then they can change how they are regulated. The government will have zero control over this.

Tinfoil hatters can argue that OFCOM would keep blocking new regulators from being formed, keeping the press locked in, but the press would be able to take the issue to court. The courts would look at the very transparent and clear criteria upon which a regulator can form, and the courts would rule against OFCOM (and therefore the government).

And just in case that wasn't enough, any legislation that passes on this, Leveson suggests should include a very explicit term that the government must uphold the freedom of the press. You can't say fairer than that, as without writing that piece of law out of the books, any part of the industry will be able to use the courts readily should there be even the slightest hint of governmental interference in what they can or cannot publish.

Now, where in all this is there a clear desire to have political influence over the papers, or legislation that cannot be clearly and properly written to shut out such influence? Where in this whole system to papers get locked in to a system that means they are not free to publish what they like, and operate on their own terms (as long as they pay respect to providing standards of conduct in explicit areas of concern)?

I argue that the stance by those seeing any legislation to underpin regulation as too a threat to freedom of speech and freedom of the press are, in this case, paranoid and unfortunately not dealing with the content of the proposals so much as less relevant abstract ideas and beliefs.