The current telephone hacking scandal in England has brought on a parliamentary inquiry (still ongoing) into Rupert Murdoch’s media empire practices, the arrests of several of his reporters and editors (and those who actually did the wiretapping or provided police assistance), resignations, interrogations-and-the closing of his 168-year-old News of the World, a newspaper with more than two million circulation. The media practices of Murdoch and his wide-flung News Corp. have been a frequent focus of attention in “Ethicalia: A Compendium of Global Ethical Minutiae” published in this magazine over the years: and this seems to be a good time to excerpt and review some of the more interesting cases involving Murdoch’s empire we’ve brought up during the past dozen years. Summary: It does not appear to be a pretty picture.
The discovery that agents of the News of the World newspaper hacked the phones of war widows, missing children, and the victims of terrorist attacks has shaken the British press establishment to its foundations. In a dizzying few weeks, we witnessed the closure of the News of the World (a newspaper, lest we forget, with several million readers), the hauling of Rupert and James Murdoch before a select committee of the House of Commons, and the resignation of Peta Buscombe, the Chairman of the industry regulator, the Press Complaints Commission (PCC).
Understandably, press regulation is a topic firmly back in the public eye. Prime Minister David Cameron has announced that Lord Justice Brian Leveson will lead an inquiry into the ethics, practices, and culture of the British press. Commenting on the daunting task ahead of him and his team, Lord Justice Leveson stated, “The press provides an essential check on all aspects of public life. That is why any failure of the media affects all of us. At the heart of this inequity, therefore, may be one simple question: who guards the guardians.”
The Merry-Go-Round of Regulation
Much like other western countries, regulation in Britain varies according to media concern. British broadcasting, for example, has been tightly regulated since its inception, with the BBC funded from a special public television license fee. It has been a different story for British newspapers. We need only consult John Milton’s opus, Areopagitica, to understand the authoritarian nature of press regulation in Britain prior to the 17th century. Since emerging from the shadow of the Star Chamber, however, the British press has long been operationally free.
In the 20th century, a series of crises of media ethics and the emergence of the strictly regulated broadcasting industry prompted the formation of the General Council in 1953 as an industry regulator. The General Council began under a non-binding framework, tasked with shepherding the press to a more ethical performance after a lapse in public trust in the media. Funded by newspaper proprietors and staffed by newspaper editors, the General Council was created as an alternative to the specter of statutory regulation, establishing a trend that would last for over fifty years.
Ongoing public dissatisfaction with press performance led to the dissolution of the General Council in 1962 and the creation of a new body, the Press Council, which included members of the general public as 20% of its membership. However, a 1977 Royal Commission on the Press criticized the Press Council for its ineffectiveness and called for a written Code of Practice, which was vigorously denounced by the regulator. In 1980, the National Union of Journalists (NUJ) withdrew from the Press Council in protest at a lack of reform in the organization.
A series of media ethics crises in the 1980s and early 1990s –perhaps most notably when the actor Gordon Kaye was photographed in a hospital while recovering from emergency brain surgery–saw the Press Council fall into disrepute. The government of the day organized a committee chaired by Sir David Calcutt QC to investigate the effectiveness of press regulation. The committee’s report called for the dissolution of the Press Council and the establishment of a Press Complaints Commission. The PCC was founded in 1991 with a remit to demonstrate that self-regulation could work. If it could not, the only alternative would be statutory regulation. The press was, to quote the former government minister David Mellor, “drinking in the Last Chance saloon.” Thus, the story of press regulation in Britain is a dizzying merry-go-round of ethical crises, followed by reassurances that self-regulation works, followed by yet another crisis.
The Industry Fig Leaf
The present regulator, the PCC, deals with cases brought before it by members of the public who allege that a particular publication has breached the standards outlined in the PCC Code of Conduct. The PCC then adjudicates on whether the Code has in fact been broken. However, the PCC has no legal authority to impose sanctions in the event of a Code breach, however serious that breach may be.
The PCC is funded through an opt-in levy system. Its budget is organized by the Press Standards Board of Finance, whose membership includes Clive Milner, a former official at News International, and Paul Dacre, the current editor of the Daily Mail, while its Code of Practice is authored by newspaper editors including Dacre and John Witherow of the Murdoch-owned Sunday Times. It is clear that the PCC’s funding and operational structure makes it very difficult to regulate an industry where vested interests are at stake. As early as 1993, Sir David Calcutt QC complained that the PCC was “in essence, a body set up by the industry, financed by the industry, dominated by the industry, and operating a code of practice devised by the industry and which is over-favorable to the industry.”
The Guardian newspaper was sounding the alarm bells regarding telephone “hacking” as early as 2009, to be met with indifference from the PCC. The weaknesses of the PCC are not confined to News International or to phone hacking; an illustrative tale comes from 2004, when journalists from the Daily Express approached the PCC with claims that they were being pressured to write racist articles. The PCC ruled that it had no jurisdiction on the matter (indeed, in early 2011, the Express Group of newspapers and magazines opted-out altogether of the PCC, meaning that members of the public have no recourse if they are aggrieved by the content of an Express Group publication). Another sorry episode in the PCC’s recent history is its lack of action following a record 21 thousand complaints regarding the manner in which Daily Mail columnist Jan Moir wrote about the death of gay singer Stephen Gately. Despite "the highest number of complaints ever received about a single article in the history of the Commission," the PCC took no action, ruling that Moir and the Daily Mail had “just failed to cross the line.”
The 2009 documentary Starsuckers revealed the extraordinary lengths to which the British tabloid press will go to get exposés on the private lives of celebrities. In it, a reporter claimed that "a lot of papers just brush [the PCC] aside, all it is…is a little apology somewhere in the paper… [and a] slap on the wrist." The PCC has always been stymied by its lack of punitive power and has, sadly, become little more than a fig leaf covering nakedly immoral activities. It has also become dangerously delusional about its role, typified by its yearly boasts that it is dealing with more complaints than the year before, demonstrating a navïeté that is as hilarious as it is tragic. The British public deserve better. The
“Acid” Culture of the British Press
The phone hacking scandal has demonstrated that the self-regulatory model is tired and broken. A recent study by the Media Standards Trust, an independent charity "that fosters high standards in news on behalf of the public," found that only 7% of the British public believed the press to be a responsible and trustworthy institution. The BBC journalist Ander Marr described newspaper culture at the turn of the 21st century as an "acid…eating away at the thoughtful culture of public discourse, burning out nuance, gobbling up detail, dissolving mere facts." This is a culture, to quote a former News of the World news editor, that sets out to "destroy other people’s lives."
What the phone hacking scandal reveals is the result of a news culture that has elevated freedom over every other virtue. It demonstrates the sad consequences of what happens when power is left untrammeled, of when you have a press that is “free” to wallow in the sewer in a moral race to the bottom instead of fulfilling its historic obligation to the polity. Press freedom is a precious gift entrusted to journalists by the public, not a god-given right. The phone hacking scandal is a betrayal of this gift. Freedom of the press, if it means anything at all, is the freedom to hold the powerful to account. It is not a license to do whatever one pleases.
In the 1930s, the then British Prime Minister Stanley Baldwin famously castigated the newspaper industry of his day for exercising "power without responsibility, the prerogative of the harlot down the ages." Baldwin caught on to an important aspect of the media system–its power. What the advocates and architects of the free press system correctly identified was the power of government and the need for a countervailing force to hold it in check and keep it accountable to the polity. What they could not possibly have identified was the fact that media companies themselves would become powerful institutions in their own right, straddling the globe as, to quote Ben Bagdikian, "lords of the global village."
Where Do We Go from Here?
Instead of repeating the same old narrative of crisis-and-sticking-plaster, there is now an opportunity for meaningful reform. To accomplish this, the PCC must be dissolved and a new, independent regulator must be created to take its place, funded through a mandatory levy. Newspapers must not be able to opt-out, as the Express Group has done. Acts such as this make any serious conversation about press ethics a non-starter. Rather, payment of the levy must be a precondition to the existence of a newspaper. The new regulator’s composition must better reflect the pluralism of British society and must also draw from the experience of working and retired journalists (as opposed to editors) and surely, professors of journalism.
Most importantly of all, it must have power to impose sanctions on newspapers that breach an industry-developed code of conduct. The idea that PCC rulings would shame bad editors into good practice was always a fanciful idea; the phone hacking scandal has revealed it to be a busted flush. Its replacement must be given the bite to back its bark by way of the ability to impose financial sanctions on offending newspapers. Second, there is the necessity of having complaint meetings held in public with the involved media outlet being required to publish the regulator’s report in full. [CORRECTION: Although many media organizations involved in hearings conducted by the last remaining news council in the United States, the Washington News Council, do publish the hearing's findings, this is not mandatory. Participation by the media in the WNC's hearings is entirely voluntary. 5-21-12]. The new organization should also be given the power to suspend or even shut down newspapers for serious breaches of the agreed code of Practice. There exists a “fit and proper” test for ownership of media companies in the United Kingdom; we should build upon this to incorporate the fitness of a newspaper to participate in the public discourse. Lest I be accused of being draconian, I should add that the PCC Code of Practice already, theoretically, has press support, so it is not too much to ask that its enforcement be taken seriously. Otherwise, it is meaningless text.
Predictably, the Chicken Littles of the media world have emerged with their usual cry of “the sky is falling! The sky is falling!” The defenders of a system that has so comprehensively failed have begun to creep into news reports and op-eds to warn of a government takeover of the British press. The Daily Mail’s typically measured response bemoaned the “possibly irreparable damage on the cause of press freedom” caused by the scandal, while the former chairman of the BBC, Lord Grade, cautioned against a "knee-jerk" reaction that would erode press freedoms. Demonstrating a dazzling lack of self-awareness, the PCC angrily argued that the aftermath of the scandal meant that the cause of "a press allowed to have freedom of expression" was now "grossly undervalued."
Of course, the Chicken Littles should be ignored. It is utterly perplexing that any effort at regulation is denounced as a government takeover and the start of a “slippery slope” to an authoritarian media system, when one needs only look at British broadcasting to see the result of a system that is strictly regulated yet operationally free. It would be extremely difficult to argue that the BBC, for example, has either consistently low standards or operates under constraints that make it difficult to hold the government of the day to account. Indeed, it is praised to this day for the robustness and quality of its content. We should treat the “slippery slope” narrative for the rhetorical fallacy that it is.
Calling for a strengthening of the regulatory framework is a sensible measure that orients the field toward ethics and responsibility while retaining the operational freedom of the media. This is, of course, a far cry from giving any regulator the power of prior restraint, which would indeed be a breach of press freedoms. In a similar vein, Prime Minister David Cameron’s recent suggestion that a law be passed that would mandate the recording of journalist’s meetings with government ministers is both far-fetched and heavy-handed. What is important is that the debate about regulation is sensible and level-headed, taking into account both the rights and the responsibilities of the press.
The Window of Opportunity
Advocates of media reform now have a window of opportunity to make the case for a press that is responsible, robust, and accountable for its actions. A statutory right of reply, a new framework on media ownership laws, a re-examination of privacy law, a “conscience clause” that would allow journalists to refuse to undertake work they consider to be in breach of the regulator’s code of Practice without threat of dismissal, the strengthening of journalists’ trade unions, and the use of statutory press ombudsmen are all topics that are back on the table for discussion, and it is healthy that this is so.
It would, of course, be churlish to gush over the demise of the News of the World, given that hundreds of employees, most of whom had nothing to do with the phone hacking scandal, lost their jobs as a result of the newspaper’s closure. At the same time, however, those who are concerned about media ethics and the need for a responsible press system should draw comfort from the fact that there now exists a window of opportunity for the discussion of ideas that were previously alien to public discourse on the matter, which is a profoundly positive outcome.