Daily Archives: February 8, 2012

The corrective medicine for media abuse is a statutory right to reply

Robert Henderson

Paul Dacre, the editor of Britain’s largest selling newspaper the Daily Mail, appeared before the Leveson Inquiry into press abuse on 7 February 2012.  He made the  astonishing  proposal that in everything but name journalists should be licensed. Here is the thrust of what he said from the transcript of his evidence (pp 28/29 http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of-Afternoon-Hearing-6-February-20121.pdf)

“As you’ve said, there have been several calls to  your Inquiry for the licensing of journalists. It is clearly unacceptable. However, I do believe there’s an opportunity to build on existing haphazard press card system — there are 17 bodies at the moment providing these cards — by transforming it into an essential kite  mark for ethical and proper journalism. The key would be to make the cards available only — only – to  members of print news-gathering organisations or magazines who have signed up to the new body and its code.

“The public at large would know the journalists carrying such cards are bona fide operators, committed to a set of standards and a body to whom complaints can be made. Reporters and photographers would use the cards as proof that they are responsible journalists.

“There would, however, be universal agreement that briefings and press conferences by government bodies, local authorities and the police, access to sporting, royal and celebrity events, material from the BBC and ITV, and information from medical and scientific bodies would only, only be given to accredited journalists. It  would, after all, be in the interests of those bodies to agree to this, as many of their members make complaints to the PCC. Indeed, such bodies would have — or shouldn’t have access to the new regulator if they dealt with a non-accredited journalist.

“It is my considered view that no publisher could survive if its reporters and writers were barred from such vital areas of journalistic interest. It would be part of the civil contract, if you like, that the ombudsman figure would have the right to recommend that accredited journalists guilty of gross malfeasance have their press cards cancelled, as the GMC strikes off doctors.”

What Dacre is proposing is a quasi-judicial body which is run by the press which can restrict the right to be a professional journalist in much the same way that the showbiz union Equity try  to control entry into the entertainment business by restricting employment to Equity members. Dacre was unclear about  how the ombudsman for the press was to be appointed, although he did not rule out some form of government involvement:

“Q.(Jay Counsel to the Inquiry)  You say it would require the universal agreement of a number of bodies, including governments, don’t you?

 A. (Dacre)  Mm-hm.

 Q. (Jay) So the industry does it, but government would have to agree to it; is that right?

A. (Dacre) I think it would be in the governing — for press  briefings of ministries and lobby arrangements, I mean, why shouldn’t they subscribe to that? If journalists abuse those systems, then they should have right of  redress against those journalists.” (http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of-Afternoon-Hearing-6-February-20121.pdf – P31)

There are two dangers. One is that government could be directly  involved with the potential to be the dominant player in who was given a press card or who had one withdrawn. Because the new regulatory body could be represented to the public as being self-regulation, government could have its regulatory cake and eat it: control the regulation  while not being thought by the public to do so.

The other obnoxious outcome would be this:  such a system  would allow the mainstream media to both control rigidly who was employed by them and hold the threat of the withdrawal of the press card  over the heads of anyone who did not toe the corporate line.

Whether it was the government or the mainstream media itself wielding the power, anyone with views which were at odds with the prevailing elite ideology could find themselves excluded if they are judged to have “wrong” political opinions. It is worth adding that there is a great deal of collusion between the media and politicians already, with many riding the two horses at different times and some, like the Mayor of London Boris Johnson, riding both at the same time.

Dacre argued that his proposed system would not be licensing  because people without press cards could still write and broadcast. Those are weasel words because to be excluded from the mainstream media is effectively to be silenced in the overwhelming majority of cases.

Anyone who believes in the freedom of the press should understand that we want no regulatory body including the PCC, let alone one which licenses journalists. The remedy for media abuse is  a  statutory right of reply (RoR). This is the  thing of journalistic nightmares. That tells you it is the best remedy for those who cannot afford to sue for libel. But the media is looking a gift horse in the mouth for a RoR would provide the strongest guard against any government desire to formally regulate newspapers and to further interfere with broadcasters, because an effective cheap means of rapid redress available to everyone, including politicians incidentally, capsizes the prime argument for state regulation. A RoR is the perfect non-political remedy for media abuse because it is a self-sustaining and self-regulating mechanism.

Costs could easily be kept low. First, by making libel the only reason for refusing a RoR and then only for that part of a proposed reply which was libellous. Second, by empowering Small Claims Courts to decide whether a claimed libel exists and, if the court does not agree that it does, to order the newspaper or broadcaster to publish the disputed reply. There should be no higher court appeal against the Small Claims Court’s decision unless the appellant pays both sides’ costs. This would allow justice while preventing those seeking a RoR from being intimidated out of their right by the threat of heavy costs.

How would it work?

The qualification for a RoR would be simple and objective: a media outlet has printed or broadcast material about an individual.

In the case of newspapers I would give a respondent 300 words as an automatic right and another 500 words for every 1000 words published about him or her over 1500 words. The respondent’s reply should be printed on the same page as the story to which they are responding. If the newspaper responds to a reply then the person responded to would get another RoR.

Broadcasting is more problematic but a written reply by the person criticised could be read out on air. Where the person has the confidence to speak for themselves, they should be allowed to broadcast their reply.

Practical fears

The media will say that this is completely impractical, that their papers and broadcasts would be full of nothing but replies. In fact, the general experience of the introduction of new opportunities offered to the public is that there is an initial burst of activity which soon settles down to a hard core of those willing to make the effort. If the introduction of a right to reply proved the sociological odd man out and the media was overwhelmed, the system could be reviewed.

A narrow RoR would be worthless. A RoR should not be limited to inaccuracy. There is often no easy way of proving the truth or otherwise of ostensible “facts”. If a RoR was restricted to inaccuracy, the media would assuredly undermine it by arguing interminably.

Then there is opinion. This is often more damaging than inaccuracy. Moreover, there is no clear distinction between fact and opinion. Suppose I write of an actress that “she is a whore”that is a statement of fact which, in principle, can be tested objectively. But what if I write “she has the morals of a whore”? Is that fact or opinion?

The present non-legal remedies

These are both cumbersome and unfair. For example, the Press Complaints Commission (PCC) is comprised entirely of people drawn from the media or from those associated in some way with the media, and the organisation is funded by the press. Unsurprisingly, a non-celebrity complainant to the PCC rarely succeeds.

But this misses a larger point. No matter how formally honest any media regulating body was, it could no more serve the public generally than the legal profession can serve the general public in actions for libel where there is no legal aid.

The numbers of complaints actually considered formally by the PCC and the broadcasting authorities is minute, running into a few hundred a year — most complaints never get a full hearing or investigation. If the public began to use these bodies enthusiastically they would be overwhelmed.

The effect on the media

Faced with an immediate published response to any inaccuracy or abusive opinion and the possibility of having to submit themselves to public examination in a small claims court, journalists and broadcasters would cease to be cavalier about what they write.

The present relationship between the media and anyone they choose to criticise is analogous to someone who binds a man then punches him. It is not a contest but an act of  profound cowardice.

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