Regulation and codes of conduct: commentary

Press regulation provides the benchmark for behaviour and reassures audiences. It enables the public to have trust in the industry and maintains how we interact with our audiences.

Before the phone hacking scandal and the Leveson Inquiry, the PCC was already widely regarded as no more than ‘a toothless tiger’. It was a voluntary code of conduct and had no legal standing therefore any breaches resulted in pretty weak sanctions.

The outcome Lord Leveson suggested was a royal charter with statute regulation for the press just like broadcast journalism has Ofcom. However, not one of the papers has agreed to the suggestion deeming it as an invasion of the freedom of the press and as too much state intervention. Print journalists have put forward their own regulator, IPSO, an independent body made up of both editors and people outside of the industry.

The PCC did not address the corruption of phone hacking – this ethical issue was continuing whilst the PCC was in operation. They failed to hold the editor and journalists involved to account.

Who guards the guardians?

Ofcom applies to TV and radio broadcasts. It is independent and broadcasters cannot transmit without a licence. Ofcom has statutory powers to impose sanctions “when a broadcaster deliberately, seriously, or repeatedly breaches the code…”.

The body can stop the repetition of a programme, make the broadcast issue a correction or statement, impose a financial penalty of up to 5% of qualifying revenue or revoke a licence. There is an absolute requirement for “due accuracy and due impartiality” – this differs to print journalism.

The BBC have their own regulation as well as Ofcom. The editorial guidelines are designed to be a working tool for programme makers and journalists, and to act as a benchmark of good practise when considering complaints.

The guidelines set out standards for its journalism, including undercover investigations.

The BBC has an editorial complaints unit so that complainants unhappy with its decisions can appeal to the Trust, if it is alleged that material broadcast was unfair or offensive then complainants can directly contact Ofcom.

The NUJ has a code of conduct which is a useful guide to good conduct, but without the possibility of serious sanction, this body will do little to help reassure the public of their scepticism towards journalists’ conduct.

Codes of practise tend to concentrate on areas such as:
1. Ethical behaviour
2. Fair treatment and respect for privacy
3. Requirement for accuracy and impartiality
4. Protecting children and young people

CASES:

IPSO has rejected a complaint over Liz Jones’ column in The Mail on Sunday

Trinity Mirror group – new phone hacking scandal from a different publication

Piers Morgan – lunch with Jeremy Paxman, don’t you know this is what you do…

Becky Watts – named suspects *reporting crime and court restrictions

Adam Johnson – named under arrest *reporting crime and court restrictions

Rita Ora – One Show *taste and decency

This Morning – bondage for beginners Ofcom complaint *protecting under-18s and, taste and decency

Benefit Street – removing alarm tags from clothing stolen from a shop *covering crime

Peter Fincham – breach of guidelines, resignation over queen, complete overseer

Kelvin MacKenzie – Former The Sun editor during Hillsborough – Channel 4 correspondent doorstepped him. How far do we go?

Regulation: definitions and defences summary

Complaints about newspapers or magazines and their websites are channelled through a watchdog. A new watchdog began operating in 2014 – the Independent Press Standards Organisation – replacing the PCC.

In the UK, we have a relatively free press with no state controls on who can own or run publications. Print journalism does not have a requirement to be impartial like that of broadcast.

The newspaper and magazine industry established the PCC in 1991 to keep the threat of statutory regulation at bay. It did however, regulate the conduct of journalists and editors, and operated a free and relatively fast service to deal with complaints. Disclosure of the phone-hacking by News of the World killed the PCC and affirmed critics’ views of its ineptness however.

Leveson called for a new regulator – more independent of the industry than the PCC, with investigatory powers and the power to fine. IPSO will have the contractual power to fine up to a maximum of £1 million and will have a committee made up of not only editors but people outside of the industry as well. This is dissimilar to the Editors’ Code of Practice which was overseen by the PCC.

Stages of complaint:

An aggrieved person should complain first to the relevant editor

If they remain dissatisfied, they should then contact IPSO

Private or published apology enough? Intervention before publication? Financial penalty?

There are public interest exceptions to the ethical codes for journalists’ protection.

‘There is public interest in freedom of expression itself’

Clause 1: A significant inaccuracy, misleading statement or distortion must be corrected promptly, and any correction or apology must be given due prominence. The press must distinguish clearly between comment and fact.

Clause 2: A fair opportunity for reply to inaccuracies must be given.

Clause 5 states that reports of suicides should avoid giving excessive detail about the method used.

Journalists should normally be open when seeking information, making clear that they are the press. This means that normally photography or filming must be done openly and that eavesdropping will breach the code. The code says that such subterfuge should only be used when an open approach would not work, even when a public interest exception applies.

In the UK, it is legal for one party to record a phone call even if the other is not aware it is being done.

Broadcast regulation

Television and radio journalism is regulated by statute. Ofcom, an independent regulator, states broadcasters must be impartial when covering politics and social issues, and must be accurate, treat people fairly, respect privacy and avoid causing harm and offence. Ofcom licenses are granted for set durations and can be renewed. The BBC is not only subject to the Ofcom code but has a system of self-regulation.

Ofcom cannot shorten, suspend or revoke the licenses of the BBC, S4C or Channel 4; they are public service broadcasters. The body can fine up to a maximum of £250,000 or 5% of the broadcaster’s qualifying revenue.

Section1: protecting under-18s (TV watershed, radio limitations)

Section 2: avoiding harm and offence (*photosensitive epilepsy)

Section 3: covering crime

Section 4: covering religion

Section 5: due impartiality and due accuracy and undue prominence of views and opinions

Section 6: covering elections and referendums

Section 7: fairness (informed consent)

Section 8: protecting privacy

Section 9: commercial references in TV

Section 10: commercial communications in radio

Impartiality means not favouring one side over another – ‘due’ means adequate or appropriate to the programme’s subject or nature.

Confidentiality: cases and commentary

Confidentiality laws are there to protect information. It is a legal way to prevent intrusion and relates closely to privacy. A duty of confidence arises from the circumstances in which confidential information is expressed. A right to privacy can be expected based on the nature of the information itself – in that certain information is private and that is the sole reason why it should not be disclosed.

The most common instance of the assumption of privacy and confidentiality is the relationship between a doctor and a patient. This is an example of the duty of confidence arising from circumstance. Information concerning health is usually treated as being of the highest confidentiality.

In order to enforce the law of confidentiality, a direct relationship between the person who wishes to protect the information and the potential discloser is not required. It is merely required that whether a reasonable-minded person would understand from the circumstances and nature of the information that there is a duty of confidence.

Common examples of confidentiality breaches include:

Health – whistleblowers can also be threatened with a breach

Businesses (technological secrets and secret recipes)

Official Secrets

Celebrities

*Protect your sources*

HSBC: ‘the bank which helped clients break the law’. HSBC is a recent example in the news of a breach of confidence. Documents were leaked by a whistleblower to the press claiming that the Swiss branch of the bank were helping clients to avoid paying UK taxes. The ex-employee’s leak of information led to bank executives and HMRC being summoned by MPs to give evidence on the matter.

*Journalists must be clear on the allegations with tax stories; tax evasion is illegal but tax avoidance is legal.*

A journalist who receives leaked information usually has a duty not to reveal it. Obviously, as seen in the last example, the media do publish such leaked information but this is on the duty that it is significantly in the public’s interest. We must remember that this is still illegal. Another example is Edward Snowden.

Brief celebrity cases:

• Catherine Zeta Jones – Zeta Jones v Hello! magazine, OK! magazine v Hello! magazine

• Andrew Marr – super injunction

• John Terry – super injunction

• Naomi Campbell – Narcotics Anonymous. Campbell v Daily Mirror

• Cheryl Cole – Fernandez-Versini v Reveal

• J K Rowling – Rowling v Sunday Express

• Watergate Scandal – Bernstein and Woodward

• Princess Caroline – paparazzi photographs

• Max Mosley – Mosley v Google

A person can apply for a temporary injunction from the High Court to stop the disclosure of confidential information. Another option could be to sue the publisher for damages, to seek a court order for the confidential material to be ‘delivered up’ so that all copies can be destroyed.

A claimant seeking an injunction will need to prove that they have a ‘reasonable expectation of privacy’. Sexual relationships come under this umbrella in courts.

Disobeying an injunction can result in an action of contempt but the media do have defences as seen below.

Claimants will sometimes try to demand the publisher reveals their source but under freedom of expression journalists should refrain from doing so. See Bill Goodwin case.

Article 8 of the Human Rights Act guarantees the right to privacy: ‘Everyone has the right to respect for his private and family life’.

Article 10 of the same act creates tensions for privacy law: ‘Right to private life and right to freedom of expression’.

In order for a breach of confidence to arise:

1. The information must have quality of confidence and not be trivial

2. Circumstances must impose an obligation of confidence

3. Unauthorised use of the information must cause detriment

What are the defences?

1. The information doesn’t have quality of confidence – no detriment would be caused if the information was disclosed

2. The information is already in the public domain

3. Disclosure is in the public interest to publish wrongdoing, negligence, and hypocrisy

A journalist faces a dilemma when they hear of newsworthy confidential information. This is where the ‘right to reply’ comes into play; the journalist should approach the alleged to get balance and check facts.

The privacy law protects children from intrusive media attention aka J K Rowling.

Journalists who use electronic equipment to spy on others must be aware of the breach of privacy law and that they are in fact committing a crime. *Leveson*

*Fake Sheikh*