The transcripts of the official inquiry into the culture, practices and ethics of the press. More…

  • MR TIMOTHY JOHN SUTER (sworn).

  • Your full name, please?

  • You've kindly provided us with a witness statement under tab 38, sir, of your bundle.

  • Thank you very much indeed. Mr Suter, thank you very much for stepping into this area and providing us with the benefit of your views. Thank you.

  • I want to ask you first of all, having identified the statement, to confirm that it's true to the best of your belief; is that right?

  • Can you explain first of all, Mr Suter, who you are and what Perspective Associates is?

  • Certainly. I run a small advisory company, we advise around media policy and regulatory strategy. Before that, I was a partner at Ofcom. I was the founding partner at Ofcom for content and standards, which was the bit of Ofcom that was responsible for the regulation of content, primarily broadcast but also addressing other non-linear types of content.

  • Thank you. First of all, please, this is the introduction to your statement, can I ask you to summarise what you're proposing and where you're coming from?

  • It seems to me that -- building on what Professor Greenslade has just said, this is an opportunity not just to address print, which clearly he sees as the priority, but I think it's an opportunity to update the way we address content regulation for the future as well. Because it will change, media will change, the types of information people are getting will change, and the regulatory framework needs to adapt with it, and I think there's an opportunity here to think about the nature of the statutory underpinning that will apply across different kinds of media to the press but also to other kinds of media that will deliver I think a more flexible, a more effective and a more forward-looking type of regulation, and in the process, I think, has the opportunity to address the central concern, as I see it, which is of whether there should be a statutory underpinning to press regulation, and if so, how to achieve it.

  • Your introduction makes it clear that you share the abhorrence expressed by every witness to the Inquiry of state control of the press, you're not therefore advocating that, but you're advocating a form of statutory underpinning. What's the difference between statutory underpinning and state control?

  • By state control I think everybody has set up this dangerous notion that the state would dictate what the press could do, would dictate the standards by which the press had to operate and would form judgments as to what was or was not acceptable. I see statutory underpinning as being further removed from that, or setting a framework within which the regulation happens, but where the regulation itself is carried out by independent bodies dealing directly with the press and the regulated entities.

  • The four core principles which you're outlining -- this is at page 00759, the second page of your statement -- could you explain those to us, please, and the role of Ofcom within that framework?

  • It seems to me that what -- a number of people, the Media Standards Trust and Professor Greenslade as well, have come up with, devised a way of creating a link between the state and the system of regulation. What I'm proposing is that that link already exists, it exists in the shape of Ofcom, and that what you could therefore do is require Ofcom to do two very specific things.

    In the first instance, it could identify the core standards that it expects media to uphold, and it could identify the characteristics of the types of media service that should be submitted to some form of regulation. That would be Ofcom's primary job, to set out at a very high level what those core standards should be, and to set out the characteristics of services that should be regulated. If you like, it's asking Ofcom to do what Dr Moore did with his definition of the types of services that should be subjected to regulation, but in a slightly more flexible way. It's giving Ofcom the opportunity to determine for itself what are those characteristics.

  • Dr Moore's -- I think he called it the backstop independent auditor who had statutory underpinning. Ofcom is going to be undertaking that function?

  • Ofcom will undertake that function.

  • But in a slightly different way, we pick this up at paragraph 8 of your statement:

    "Ofcom should define the characteristics of media services that should be regulated and they'll take into account three issues."

    Could you explain that for us in somewhat more detail? What do you mean by that?

  • What I envisage is that Ofcom has to make a decision about the types of services, broadcast, non-broadcast, press, online, that require some form of regulation, and I think there are certain characteristics that are likely to be taken into account. They may be requiring some form of regulation because they are the creatures of some kind of public policy, public broadcasters. They may require some form of regulation -- you may want to take into account the practicability of enforcing some regulation against them, if it's feasible and possible to regulate them, and you'd also want to take account of proportionality. Actually, what is the nature of the harm that these services might do and is it proportionate therefore to regulate them?

    So I think you would ask Ofcom to make those determinations and to define the characteristics of services that should therefore be regulated.

  • But would Ofcom then be given considerable discretion in particular cases or would you be expecting it to say in relation to the printed media: okay, they don't meet the public policy limb because that's to do with broadcasting, which is publicly funded, but they probably meet the practicability limb and certainly the proportionality limb if you're talking about newspapers which are large enough; is that it?

  • Yes, that's exactly right, whereas there might be other print publications that would not meet the proportionality test, might well meet the practicability test but would not meet the proportionality test. They're too small, they're too specialised, they're unlikely to trigger that degree of potential concern.

  • Is there a danger, though, that Ofcom may make the wrong decision in relation to the press? Okay, we can argue about size, and we saw Dr Moore's approach, let's take the definition of small company in the Companies Act, but that's an objective measure, we could put forward different measures, but on practicability, is there a risk that certain entities may fall outside the net or not?

  • I think if you're asking the practicability question, I suspect Ofcom is as well, if not better, placed than anybody to be able to judge that in relation to its knowledge of media and the way it is developing. I suspect on practicability, it's going to be pretty close.

    Clearly there is one approach that says you create a bright line and you use that, it's very clear, everybody knows exactly where they are, and that's what Dr Moore's solution would give you. This is suggesting that you might want a more flexible approach. You would give a body like Ofcom the responsibility to take a flexible approach.

  • And Ofcom, having made the decision, wouldn't issue a licence as such but would issue a general authorisation and it would be unlawful, is that right, to continue to publish your newspaper if you didn't have that authorisation?

  • Yes. That's right. It's not a licensing regime, but if you fall within those characteristics then it is a requirement that you should be subject to some form of independent external regulation.

  • In terms of over-arching principles, we've dealt with characteristics, you also deal in paragraph 10 with the outcomes, again at a high level. You see four principles. We don't see the freedom of the press there or the need in a democratic society for the press to express themselves as freely as they might as part of your four core principles. Have I overlooked something or is there a reason for that?

  • No, it is included in paragraph 12. It's actually that included within shall be a clear and unambiguous statement of the importance of a free and vigorous press.

  • So that would be as it were freestanding?

  • So it's freestanding, I think it's a freestanding statement of intent.

  • Can I ask you about the specific content requirements in paragraph 11. These are I suppose at a greater level of particularity than the four over-arching principles, but for broadcast news you would have an impartiality requirement but for print news, you wouldn't.

  • Exactly. Given that the framework I've suggested here goes beyond simply the regulation of the press, it's also trying to look at what are the other kinds of content requirements that Ofcom might seek or be required to impose, and at the moment there is an obligation on broadcast journalism that it should be both accurate and impartial, that is clearly something that Ofcom would therefore require.

  • Once Ofcom has made the decision that a particular press entity is within scope, you're then -- this is your second main theme, which is between paragraphs 12 and 13 of your statement -- you're expecting that independent but industry-led regulators will grow up to meet the requirement imposed by Ofcom. How is that going to happen in practice? How is it going to start?

  • Well, I think it will start happening by building on what we already have. We already have a PCC, we will have a replacement body for the PCC. There are lots of ideas around as to what that will be. That is precisely the sort of process that I would imagine would happen here. The press, those parts of the press that would require to be regulated, it would be in their interests to create a body that would meet the requirements of Ofcom in terms of independence and operational capacity, in order to get the necessary authorisation.

    What I would envisage happening is the process that's actually been happening over the course of the last year.

  • But Ofcom's content board -- well, Ofcom having given the general authorisation, there would then be authorisation which addressed three essential criteria and that's the box under paragraph 11, I think; is that right? They have to be adequate governance arrangements which are independent, adequate regulatory scope and adequate operational funding arrangements?

  • Yes, under paragraph 16, yes. That's right. So that is the process of authorisation of the regulatory body itself.

  • You'd better explain the difference between Ofcom generically and the content board, because that's a further distance, isn't it, from government?

  • Yes, and that was the reason for suggesting that you would give this particular role to, in a sense, a separate entity, which is the content board, which already exists within Ofcom, has specific roles in relation to the regulation of broadcast content.

    The reason for giving it a role here is that it takes the relationship between the regulatory authority and Ofcom itself, it puts one more bit of distinction between it. It gives a separate body there, whose job it is to authorise the regulatory bodies.

  • Would the content board, you explain in paragraph 16 that it's going to be appointed directly by Ofcom. Would there be a requirement for an appropriate mix of lay or public representation and press representation on the board or how is it going to work?

  • The content board is already appointed by Ofcom and has requirements to meet certain -- I think I'm right in saying that it only has some specific obligations to have members who represent the nations. Its requirement is that it should be able to carry out the functions that are given to it by the main board, and clearly if this was one of the functions that it had to fulfil, then you would expect the main board to appoint accordingly.

  • There would have to be an amendment of the enabling statute, whether it be the Communications Act of 2003 or the Broadcasting Act of 1996, I have to check, which would bring press, as it were, within the scope of Ofcom and the content board, is that how you see it?

  • Yes. In order to create this kind of authorisation regime, I'm sure you would need to amend the act.

  • The other attribute of the system, paragraph 14, is that the independent regulator, which is blessed, as it were, by the content board, will then have responsibility for all the services operated by the participating members, so that if you have, for example, a press entity which is in the realm of printing newspapers publishing online and audiovisual content, it would all be dealt with by one regulator who deals with all three aspects?

  • Yes. I think we are already seeing the potential fragmentation of regulatory bodies, dealing with different kinds of distribution systems and different kinds of content. That is entirely understandable, but it doesn't seem to me necessarily wholly desirable if you wish to have a body like, for instance, the body that's dealing with the press that could cover all of the services that the press are themselves offering. Last year there was a little bit of a spat as to whether the press could come under -- the audiovisual services offered by the press should be regulated by ATVOD or not and Ofcom on appeal determined that they shouldn't, but there is nevertheless a danger that you will end up with a range of different regulatory bodies and this may be a way to solve that.

  • Is that a convenient moment?

  • Certainly. We'll take a short break. Thank you, Mr Suter.

  • (A short break)

  • Mr Suter, in paragraph 17 you begin to pick up the three essential criteria which we'd seen in the box below paragraph 16. Can I ask you to explain each of those separately. First, the point of independence or degree of independence guaranteed by governance arrangements, how is that going to work in your view?

  • Well, if you were to play back the conversation that you were having with Professor Greenslade towards the end of the session there where you were discussing the appropriate means of securing independence in relation to the appointment of the chairman, the appointment of the board, the role of the funding body in those appointments, it will be exactly around those sorts of criteria that I would expect Ofcom and the content board to develop its thinking and to assess the proposals that were coming forward, so that if there are legitimate concerns about, for instance, the role of the funding body in determining the nature or composition of the regulatory board, that would be the moment that they could be addressed, and if necessary rectified.

  • Thank you, but the content board itself would be developing criteria, and these are sort of at lower level or a greater degree of specificity than the over-arching criteria that you mentioned earlier in your statement, is that it?

  • They would be developing criteria against which the individual bodies would come forward and put their proposals, so I don't think you would be wanting the content board to be prescriptive about what different governance arrangements there should be, but it would set out the principles that those governance arrangements should meet, and it would have the opportunity to assess whether the individual proposals did indeed meet them or not. And that would be a condition of authorisation.

  • The second element, this is the next bullet point: adequate regulatory scope, industry coverage and powers. The content board would look at the regulatory outcomes and service characteristics and again assess whether the authority had adequately drawn its remit. In other words, it would look at the proposal on offer and say "yes" or "no" or, more likely, "This has to be tweaked in order to satisfy us"?

  • Exactly. It would have as a requirement those characteristics that Ofcom had itself determined, for instance in relation to the press or a broadcast service, so it would ensure that those were adequately reflected in the code in front of it, and it would also ensure that the powers that the regulatory body was taking to itself to investigate and to impose sanctions, where necessary, were sufficient actually to do the job that it was claiming it was going to do.

  • You define the minimum characteristics as: complaints handling resolution, the power to investigate broad or systemic problems, et cetera.

  • The source of power, though, of the regulator which is putting itself forward for approval by the contents board will be contractual, I think, will it not?

  • Almost certainly I would imagine that it would be contractual, but it is underpinned, which I suspect we shall come on to in a minute, by the degree of compulsion that this process requires, so the nature of association that the industry bodies come to is for them to determine, but what they won't be able to do is to duck out of being regulated.

  • Can I just understand that last point? It's the paragraph at the end of the second bullet point. You say:

    "The content board would note the degree to which the authority had secured acceptance among the entities it proposed to regulate. It would be for the services themselves to join a relevant regulatory scheme rather than a requirement on the independent regulator to secure their membership."

    I think you pick that up again in paragraph 22.

  • This is leaving or indeed declining to join. Can you explain, please, how the individual entities being regulated are being bound to this system?

  • Well, they are bound to the system first of all by virtue of the fact that they fall into the category of service which Ofcom has determined should be regulated, so that means that they have to find for themselves an independent regulator. You would assume that what they will do is to create one that has sufficient coverage and deals with a sufficiently broad number of institutions of like kind, but the compulsion doesn't rest on the regulator to secure their membership. The compulsion falls on them to be part of an appropriate scheme. And if they decide that actually they don't want to be part of a scheme, if you have -- to confront, if you like, the Northern & Shell issue, they can't avoid being part of the scheme, and if they decide they're definitely not going to enter into any contract and join in, then it remains for Ofcom to apply what it considers to be the most relevant code of any of those that it has authorised to them itself.

  • Ah, so the backstop power would reside in Ofcom. It wouldn't be Ofcom's role to withdraw the general authorisation and make it unlawful, as it were, to trade, but Ofcom would say, "You're not agreeing to participate in this system, you must participate in our system", Ofcom's system?

  • Yes. So the -- an organisation says, "We don't want to join under the authority of that particular group", for whatever reason it might be. Ofcom says, "Well, in our view you still remain a service that ought to be regulated and therefore, even though you don't want to belong to that scheme, we will apply its code to you, because it is a code we have authorised for services like yours."

  • -- with its regulatory power available to it?

  • Presumably exercised in a way that encourages those who actually fall back to Ofcom to have it regulated in that way to think twice about going back to the body that they should be party of?

  • I'm sure Ofcom wouldn't want to do it in such a way as to encourage everybody to come and be regulated by them, but nor should it do it in a way which is discriminatory, but you would hope that in regulating it by the industry code it would ensure that it continued to be regulated, continued to be regulated in an appropriate way and you would hope in a way that encourages it to go back and join in.

  • So Ofcom is backstop or last resort regulator, so this on analysis is a form of co-regulation, I think, is it not? Your proposal?

  • Yes, I suspect it is. I know there are terms of art around self and co-regulation, but I think this is co-regulation in that it envisages a framework of regulation which is determined by Ofcom and where Ofcom remains as the batsman.

  • The third bullet point we can touch on lightly because it's self-explanatory, but "Ofcom's content board should be required to assess the accuracy of operational and budgetary plans". Isn't there a danger, though, with this system that Ofcom will be tending to look at proposals which have come out of the industry and then there will be a sort of negotiation between Ofcom and the industry, the industry wanting to put forward the most lenient proposal it might wish for, and it becomes a form of negotiation and in the end you get something which is not necessarily wholly in the public interest because the public interest won't have contributed to the debate in what the industry is putting forward; it will be a dialogue only between Ofcom and the industry?

  • But I think that's why it's important that you do at least have some organisation like Ofcom, through its content board, whose sole job is to represent the interests of the public. At least there is some degree of negotiation on behalf the public as to what the powers, the competence, the funding, the operational capacity of that body should be.

    It may not be possible for the public directly to engage in that conversation, but it is not impossible to have a body whose sole purpose is to represent their interests in ensuring that there is an adequacy of operational resource.

  • In paragraph 18 you say:

    "Where the content board believes an independent regulator is deficient against these criteria its authorisation should be withheld until those concerns are addressed."

    In the interregnum are you proposing that Ofcom is the direct regulator?

  • Where there is a code that it can use, yes, and as I think I say further on in relation to where a set of services emerge where there is not yet a code or where there is a gap, then Ofcom would have to fill that gap, yes.

  • I suppose if we're looking at the future here, what the content board would be likely to do would be to say to the press, "Well, the independent regulator you're putting forward looks deficient to us, you've run out of time" -- because there would have to be a time period for this to develop, maybe six months or a year, a matter of debate.

  • "While you sort yourselves out, you must apply the current PCC code."

  • Precisely, yes, something like that.

  • As you say in paragraph 23, Mr Suter, it would be open to the content board, looking at the Editors' Code of Practice, to say, "Apply that with these amendments, because we think in our judgment that that's appropriate", because that's implicit, I think, in the last clause, isn't it, of paragraph 23? Or have I misunderstood it?

  • Well, in paragraph 23 I was trying to address where you might in future have services that emerge of a particular nature or characteristic such that there is as yet no industry body created, and it's going to take them time to get themselves together to create such a body, and in those circumstances Ofcom would have to devise an appropriate code against which they should be regulated.

  • Pending the creation of an appropriate body.

  • So paragraph 23 is to do with new technology, new services?

  • Ofcom using its experience would say, "We're not quite sure what the independent regulator is going to do, but we think, drawing from various codes which apply to analogous services, in the interim these are the standards you should be applying"?

  • Yes. And what might emerge would be either a body that was wholly focused on those kinds of services or that you would find existing independent regulatory bodies would absorb those principles and take those new services under their wing.

  • Can I just understand the difference between your proposal and Dr Moore's proposal, speaking for the Media Standards Trust. If instead of Ofcom we were to have his statutory entity, which is the BIA, which of course has statutory powers and statutory underpinning, your proposal is very similar, isn't it? Or if I've misunderstood it, where are the differences?

  • Yes, I'm sure it's possible for two people to arrive at a very similar solution from different points of view, but I think there are some differences. As I understand Dr Moore's proposal, first of all his is more limited in its scope in the number of organisations that it deals with, whereas what I'm suggesting is a reformulation of Ofcom's existing role covering a much wider range of media services.

    Secondly, what I don't think is present in Dr Moore's proposal is that the backstop regulator should be able to regulate services that either choose not to put themselves under an independent regulator or for whom there is as yet no appropriate body to take on the role.

    So I think it differs in those two respects, but in the middle I think they're very similar.

  • In chapter 2 of your statement, paragraph 34 and following, our page 00763, you apply these principles to the press and you explain how the regulatory body would achieve its genesis and then develop. You're contemplating the likelihood of a contractual system. In paragraph 25:

    "The arrangements put forward would have to be authorised by the content board using the framework set by Ofcom" and as you've explained earlier we're looking at the characteristics and the three subprinciples you've identified there, the general regulatory outcomes and then the definition of the public interest, the -- I may have missed this one -- where is the public interest coming into the over-arching system? Where did you deal with that?

  • I think I deal with that effectively --

  • It's paragraph 12.

  • Yes. The definition of the public interest that you would expect to see applied.

  • Thank you. And then you've touched on this earlier. Paragraph 26, the characteristics. You're looking not just at size, you're looking at scope and coverage, but I think you're effectively saying that if you're too small in all the senses of the term, you don't need to be regulated?

  • Yes. It really -- I think fundamentally it is not appropriate to try to devise a regulatory system that is going to catch everything. That would be inappropriate, impossible and disproportionate. I think you need an organisation -- and I would say Ofcom is well placed to do this -- to determine the proportionality of regulation and the potential for harm or detriment that might occur from those services, and to develop its criteria as to how it's going to do that I think in a very similar way to the way that it's proposing to develop criteria around the public interest in terms of plurality investigations. So there will be some sort of proportionality test that it will apply.

  • Out of interest, have you found out informally from Ofcom whether they are delighted or otherwise with what you're proposing might be their role? It's quite a heavy and large hot potato, isn't it?

  • I've scrupulously avoided inviting any views from them on that. No doubt they'll share them with you.

  • I think they probably will.

  • In terms of regulatory outcomes, I think this is -- indeed I know it's clear from the principles that you've explained earlier, the fifth point, you've touched on the AVMS directive, adherence to international obligations, which is currently, I think, ATVOD, if I've got the acronym correct. Can you explain for us again how that's working in the framework of regulatory outcomes?

  • Well, there is a requirement already through this new European directive that audiovisual services that meet certain characteristics will need to be independently regulated, and there was, as I said earlier, there was a discussion last year between the press and the industry regulator ATVOD as to whether some of the services they offered did indeed meet those characteristics or not. Ofcom on appeal decided that they didn't, but that's not to say that in future some services won't meet those criteria as being a separate television-like service that is being offered by the press in an on-demand delivery mode, and therefore --

  • So let me see if I understand that. Does that mean that if the BBC have a video clip which they put online, that's obviously covered within the Ofcom code and the regulatory framework of broadcasters?

  • I suspect it probably isn't, in that if it's the BBC iPlayer that you are talking about, which is clearly delivering television-like services, I think it would be covered by ATVOD if it was covered at all. I'm not sure whether ATVOD's writ does extend to the BBC iPlayer, I think it does.

  • And the bits of video that go or are embedded in news items on BBC Online?

  • Would be subject to regulation by the BBC Trust but not by Ofcom.

  • So to that extent it's the same as the press using video clips on their digital platform?

  • Yes, and I think that was the issue that was being tackled last year as to whether the inclusion of video clips within a press website constituted a separate television-like service, such that it would then fall to be regulated by the video on demand regulator, and Ofcom's conclusion was that it didn't, but it clearly left open the possibility that the press would develop services that would more closely resemble television-like services that would have to be regulated by virtue of the European regulation, so it may emerge. I suspect it probably will emerge. So the purpose of this is to be ready for that moment.

  • We'll have to look again at the DCMS module 4 submission in the light of what we have just heard.

  • Yes, we might ask Ofcom about it as well.

  • Paragraph 28 again is self-explanatory really, you having now clearly explained how this works in terms of the three elements of governance and powers and financing, this is what will happen, and then there will be an auditing process which your statement also deals with. Can I ask you though, in the context of independence from the state, that the one area which may be slightly controversial is this, that Ofcom is in one sense an emanation of the state. The relevant officials are appointed by ministers, you remind us. Not everybody, of course. The content board is appointed by Ofcom, and the content board is responsible for providing the general authorisation and then the more specific authorisations. Could it be said that in the light of that matrix there is at least the appearance of quite a lot of state -- not so much intervention, but influence, if I can put it in those terms?

  • I think if you're going to have statutory underpinning, there is going to be an engagement with the state somewhere. There is going to be some hook that gives the state some degree of purchase and oversight of the system.

    The reason for inserting the content board's role in there is to create an additional layer between those who are directly appointed by government and the regulatory bodies who are charged with regulating the press, and that was indeed the reason for putting the content board into that role.

  • I understand. In the next section you measure or calibrate your proposal against the Inquiry's draft criteria and that's all fully understood, but can you explain your long-term vision, which is section 3, paragraphs 40 to 45, and how this is going to pan out in future, please, in your own words?

  • Yes. It does seem to me that we are in danger of having different kinds of services that develop in different kinds of ways, that attract different kinds of regulatory oversight, and that we could have real fragmentation of an approach here, and that citizens will not be necessarily well served in understanding exactly where they should go for regulatory redress. If it's a printed publication, then I go to the PCC or whatever replaces it, but if it's one of their television-like services, I go to ATVOD, unless it is actually -- it has changed and it is genuinely a local television service that they're running in which case I'm going to go to Ofcom.

    This doesn't seem to me in future to be necessarily desirable, nor do I think it's desirable to have a single regulator who is going to regulate absolutely everything. What I do think will be helpful is for there to be a single framework within which all of the content that we as a public believe needs to be regulated, that that framework can encompass everything and can authorise the necessary regulatory bodies who will be able to carry that out in a way that is responsive to the way that industry is developing, the way that audiences are consuming content, but that is still rooted in what the public believes should be delivered in terms of safeguarding our standards.

  • Thank you. Are there any other points you would like to bring out orally from your statement or do you feel, Mr Suter, we've covered the ground?

  • No, I think we've covered the ground. I'm very happy.

  • Mr Suter, thank you very, very much. You're very welcome to stay and see what Ofcom think of your idea.

  • Seriously, I'm very grateful, because unless those who have knowledge and experience of this world help with ideas and suggestions and challenges, an ultimate solution will be much more difficult to come by.

  • We move on now to Colette Bowe and Ed Richards, please.