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

  • MS LARA ANN FIELDEN (affirmed).

  • Your full name, please, Ms Fielden.

  • Now, you kindly provided us with a report which is entitled Regulating the Press: Comparative Study of International Press Councils, dated April 2012. It's under tab 32.

    Insofar as there are statements of fact in this document, are they true to the best of your belief?

  • Will you tell us, first of all, about yourself? This is -- on the internal numbering it's going to be page 1, our page 00580.

    Your a Visiting Fellow at the Reuters Institute for the Study of Journalism. Before then, between 2005 and 2010, you were with Ofcom, and before working for Ofcom you spent ten years as a news and current affairs producer for the BBC; is that right?

  • That's all correct, yes.

  • Can you tell us, please, the circumstances in which this report came into being?

  • Yes. I'm currently a Visiting Fellow at the Reuters Institute for the Study of Journalism, and as part of that Visiting Fellowship I have produced two publications, one looking at cross-media regulation and current inconsistencies and a potential coherent framework for the future, and a second publication, which is the one that you refer to, which looks at six international press councils, really looking at what the lessons of principles might be from each of these, not by suggesting that any, by any means, is a blueprint for this country, but looking at whether there are lessons that can be learned.

  • I notice you say in November 2011 you published a book. When did you produce this?

  • This was published in April.

  • That's what I thought. Was it prepared specifically with the Inquiry in mind, or was this a piece of work you were doing anyway?

  • The book that I wrote last year, looking at regulation across platforms, drew on some international examples, and I was then asked by the Reuters Institute to amplify those examples, and I think there was some discussion between the Institute and the Inquiry as to whether that might be helpful, and it was decided it was.

  • That's what I thought. It was to you that I was referring earlier today. This is a monumental piece of work which must have taken you --

  • No, no, it's my admiration. It must have taken an enormous amount of time to put together and I'm very grateful to you. One could go into each one of the examples in enormous detail. I have read it all.

    What I would be very keen to do -- and of course it's subject to what Mr Jay wants to ask you about -- is to focus on those that are likely to be most similar to our own cultural requirements because, as you heard Professor Horgan this morning, he spoke about the cultural differences between Ireland and England, which might mean a different approach works in one place where it doesn't work in the other.

  • So I have no doubt at all that in some of the countries with which this report deals, their cultural relationships with the press are very different to that which is experienced in this country.

  • I think -- I think of course there's -- of course there's truth in that. But I would say I think they're more similar to us potentially than they are different in that in choosing the countries that would be most relevant for this report and for the Inquiry, the idea was to look at -- they're all mature democracies. They all rank on the various press freedom indices as having a free press. They all value freedom of expression, freedom both to impart and receive information. They all have a press council framework.

    So that was the sort of common ground between them. And of course you are absolutely right. There are cultural differences, although I must say I've been quite surprised in terms of actual specifics of complaints and stories pointed to me, they're incredibly familiar actually across the tabloids and the press that these press councils regulate.

  • That's itself a very important piece of evidence. So do you think that it is misplaced to say that the issues that have arisen in this country in relation to aspects of the press -- not all the press; I'm happy to record, as I do, that a very great deal of the journalism that goes on in this country is all in the public interest and very well done -- but it's misplaced to think that aspects of the press in this country are very different to the sort of approach that would be seen in these other democracies?

  • Well, what I haven't done in this report is an exhaustive survey in terms of diversity and plurality and ownership of the media in the countries that I have looked at.

    But what I am aware of from what the press councils have pointed up to me are examples of, for example, Bild newspaper, very high circulation, very influential newspaper in Germany, credited with bringing down the German President earlier this year, Christian Wolff, because of an investigation into his financial dealings, that sort of power. And in Scandinavian countries, you know, a very much stronger tabloid press than there may have been in the past, much keener to look at the shenanigans of their politicians potentially than they might have in the past.

    So I would say that the examples, as I said, felt familiar to me in terms of what the press councils were dealing with.

    Their starting points though -- in terms of cultural difference, their starting points, I would say there's difference in the Scandinavian countries over privacy, for example; that the starting point is "you will not infringe privacy unless there's a very good reason to", whereas, say, in Germany, Finland -- Germany and Australia, there's much more of a sense of "if you infringe privacy, it better be for a good reason".

    So there's more of a recognition of competing rights. So those, I would say, are differences.

  • In terms of how we best proceed, it may be helpful, Ms Fielden, if in your own words you could summarise the different regulatory systems in the six countries which are the primary focus of your study.

    You draw in lessons from Canada, New Zealand and Norway, but only on an eclectic basis.

  • Exactly. I'll try just to do this briefly, and do please move me on if you've heard enough about one country.

    If I take you from the self-regulatory voluntary end through to the co-regulatory mandatory end, if that assists.

    So at the most self-regulatory end, pure self-regulation, if you like, I would point to Germany. This is a press council that has no independent members on it whatsoever. It is regulation of the press by the press, entirely voluntary, entirely self-regulated.

    Moving along the spectrum is Finland, where there are independent members of the Press Council, but it's an industry majority. But interestingly, it actually regulates across both print and broadcasting. So there's a slightly different dimension there.

    Sweden operates a more independent self-regulatory system in that the Press Council chair and vice chair must be members of the Supreme Court, and that is seen as a way of guaranteeing some sense of independence, and again there's a lay or independent majority on the Press Council.

  • So they are judges? So the chairman and vice chairman are judges?

  • I don't think they would like that in this country.

  • Possibly not, but that's the system they have in Sweden, and they do see it as a way -- freedom of the press is extremely important in Sweden, but they see it as a way of underpinning independence. That's for what it's worth.

    Moving to Ireland, I think you start to encounter statute, as you heard in detail this morning from Professor John Horgan of the Irish Press Ombudsman, where there is statutory recognition in relation to the Press Council and an independent majority.

    And at the furthest end I would point to Denmark, where there is -- the Press Council is actually is set up in statute in the Media Liability Act, Accountability Act, and that means that the Press Council has the duty to enforce the right of reply as well as to uphold press ethics.

    I think we would call it a co-regulatory system, because although it's established in statute, as far as the press ethics rules are concerned, there is then a sort of self-regulatory element in terms of who is actually adjudicating, who is on the board, who is responsible for the rules.

    Outside of those countries I would point to Australia, which is going through seismic change at the moment. So it currently has an independent Press Council, but the Australian Convergence Review, which has just reported to government, is suggesting dismantling the structures, both for broadcasting and for the press, and regulating across media where the largest media providers across platforms would be subject to mandatory and statutory regulation. So it's difficult to place Australia at the moment.

  • But that's still up for debate?

  • It is, it is. The recommendation --

  • We have heard that's the Convergence Review.

  • That's right, and the recommendations are sitting with government at the moment.

  • By a silk? A retired judge?

  • That's right. It is a retired judge.

  • Finkelstein, I think, was the --

  • The Finkelstein Review fed into it. They didn't actually go -- his recommendations were somewhat more draconian, and they didn't go with those at the end. Their recommendations would only capture the top -- the 15 largest media providers in Australia, whereas I think he was suggesting a mandatory regulation of effectively the media barring the very smallest.

  • In some of the countries you have mentioned the Press Council, the regulator, is principally involved with resolving complaints, but in others there's an additional standards setting and enforcement function.

    Could you explain to us which countries fall into which categories?

  • Yes, absolutely. In fact, it's not even quite that simple because within complaints I would draw a distinction between those countries where the Press Council only takes complaints from somebody personally affected by the material and those countries that will take complaints from the whole general public.

    So in Sweden and in Denmark and in Ireland you can only bring a complaint if you are personally affected. In fact professor Horgan, who you heard from this morning, adopts a fair degree of latitude in terms of accepting complaints. But you do have to demonstrate that you are personally affected.

    Whereas in Germany and Finland and in Australia any member of the public can bring a complaint, which means, for example, if you feel that there were misleading statistics to do with crime or immigration used for a particular purpose, you could bring that -- simply as a citizen, you could bring that complaint to the Press Council.

    In terms of wider standards, if you start to drill down, although lots of these press councils say on the surface, "Yes, of course we're very concerned with standards", if you ask them to demonstrate that, I think often they find it quite difficult.

    So even in Ireland, for example, I think Professor Horgan would be out and about and engaged in debate, and it is certainly open in many of these countries for journalists to ask advice and to seek to raise their standards in conjunction with the press council.

    But I would point really only to Australia as a press council that has quite recently, but quite dramatically, decided that they are going to be involved in standards to the same extent as they are to complaints.

    In fact, I think the current chairman of the Press Council there is actually much more interested in standards. They've recently set up an advisory board, which I believe will be involved in what they call impact monitoring. So as well as the complaints that come in, they will actually look at the Australian press and consider what is the coverage of a particular topic, be it something like climate change or immigration or something like that, and not be entirely complaints-driven. Although it may be because of complaints that they look at those issues, they'll have a wider scope.

    In looking at standards, what the Australian Press Council also does, I think somewhat uniquely, is really engage the public, and it's been through a whole series of public consultations recently, triggered, I think, as well, by the Convergence Review, and I think triggered by the fallout from phone hacking here, to really ask Australian citizens -- and they've literally gone round the country consulting as part of the Convergence Review -- what is it that they want out of their regulation.

  • Have they had the response?

  • Well, I think they've had very interesting debates about this. I mean, Australia is very different to us, and one of the key differences I would point to is actually within the code. There's a requirement for balance within the code, and I think that's something that citizens have fed back to them.

    It's different, I think, to what we understand by impartiality in terms of broadcasting, but Australia, I think, has a problem, which is in many of its largest cities, the Press Council put it to me, there will only be one newspaper. You're either a News Limited city or you're a Fairfax Limited city, or -- there's a lot of concern that although nationwide there's a whole range of media, for some citizens they will not have access to that regularly, and that's where this -- and unique amongst the countries I have looked at, this issue of balance has come in.

  • Across the six countries you're principally looking at, the powers of the regulator differ significantly. Sometimes there's power to award compensation; sometimes there isn't. Sometimes there's power to impose a sanction beyond a critical adjudication; sometimes there's not.

    Could you summarise those differences for us, please?

  • Yes. There's no power to award compensation in any of these, and in fact as a primary sanction there's no power to fine in any of these press councils.

    The leading sanction is publication of a press council adjudication or, in the case of Denmark, that right to reply results in a published correction.

    Where money sort of comes into it is that in Sweden there is -- I think it's akin to an award of costs. If you breach, you will be expected to contribute towards the costs of that breach. It's that polluter pays -- I think we were discussing earlier on -- that polluter pays aspect, and therefore you will pay an administrative fee. But that's not a fine. It does actually contribute up to 20 per cent of the income of the Press Council there, but that's the only way that would come into play.

    In Denmark, which as I said is a mandatory -- you are obliged to be regulated by the Danish Press Council if you are a broadcast licensee or if you are a print publication printing more than twice a year. If you fail to publish the Press Council's adjudication, then you, as the editor-in-chief, could be fined or sent to prison for up to four months. It's never -- the prison sentence aspect has never happened. There were a few fines in the early years, in the 1990s, and they've not happened since.

    In fact, I wouldn't mind returning to compliance in Denmark later.

  • I think Mr Tomlinson said that his right of reply provision, which he explained towards the end of his evidence, was derived from the Finnish example. Was he right about that? I think from what you're saying it may be the Danish example.

  • No, there is a Finnish -- set out in the Media Act in Finland there is a right to reply, and there is one in Germany under the German constitution.

    But when I asked the press councils about this, they said, "You must understand that is entirely separate to the scope of the Press Council. That is a right that you would pursue, and it's your right as a citizen, through the courts. What we do is to provide a different remedy in terms of publication of our adjudication, and we are led by the standards set out in our code. That's separate to the courts".

    In fact I have to say, each of the Press Council shares and ombudsmen made this point to me. Even the Danish Press Council chair, who is also a Supreme Court judge -- that's how it's also established in Denmark -- made this point that the right to reply that is administered by the Press Council is very narrow. It's a correction of very specific factual inaccuracies that could have -- that you would say, as a complainant, has materially affected you or disadvantaged you or had a negative consequence. But again, that is separate to the courts.

  • In different countries are there in certain situations, certain countries, threshold size requirements? In other words, if you are small enough, you're outside the regulatory net altogether?

  • Well, I'll talk about what Australia is proposing in had a moment. But as the press councils stand at the moment, all bar Denmark are voluntary systems. So there isn't an issue in terms of whether you're large or small.

    But in the Scandinavian countries, you are required to register your publication. It's put to me as similar to sort of Companies House. It's not licensing of the press, but you are required to register your publication and your editor-in-chief, a named editor-in-chief who is responsible, and so that sort of takes you into the ambit of, you know, what's considered to be the press there. But no, there's no threshold.

    What's proposed in Australia under the Convergence Review is that, regardless of the platform on which you deliver your content -- so it could be online, it could be broadcast, it could be in print -- if you hit a certain threshold -- I think they're talking about a revenue of more than 50 million Australian dollars a year -- coupled with a threshold of an impact on Australians -- so you have a certain number of readers or hits -- then you will be caught by mandatory regulation, and so caught in there are the 15 largest companies.

    But Google, for example, would not be caught by it because although it has a very large access by Australians, the revenue actually comes under in terms of professionally produced material. Some of the Australian press have somewhat cynically argued that actually the Convergence Review set out with 15 companies in mind, and then set the requirements in order to catch them in terms of mandatory regulation, but I don't know if that's true.

  • What about different approaches to new media across the six or nine countries you've been looking at?

  • So Australia, under the Convergence Review, new media would be caught equally as old media, depending on whether they hit that threshold.

    For the other countries, I would say they are as -- they're on the back foot as far as new media is concerned, I think as we are here, because each of these press councils have been set up with the printed press in mind.

    They've then been enlarged to take the online versions of the printed press, and now they're confronted by new media, and that's a huge issue, because if your funding mechanism is set up based around print publications -- and some of them also have contributions from journalists' unions as well. But that is your model, and then new media want to join, which of course you would want to encourage those standards, it's a problem in terms of how do they pay in, what do you expect of them, and more to the point, if they're paying for it, what seat do they have at the governance table?

    Those are real questions, and as far as I could see at the moment, there are a whole series of fudges going on while they grapple well this, and to some extent look here to see what happens.

    So in Sweden new media can come in. They simply pay on that polluter pays basis, and it's just a short-term fudge. If you can keep out of trouble, then you don't need to pay. If you're in trouble, that's the mechanism through which you pay.

    In Ireland you pay a flat fee of GBP200 a year.

    So there are different ways of approaching it, but I think they all dread the point at which they will have to dismantle the existing structures.

  • And they are looking to this country for an example?

  • Well, they're interested. It was mentioned to me that they're interested to see what happens here. But I would say only in Australia is the Convergence Review, because it's looking completely across platforms, and actually looking to -- suggesting dismantling the broadcasting licensing regime at the same time, everything then comes into play there.

    I think they're also concerned about, you know, what are the standards then that they would expect of new media, and then new media themselves aren't necessarily seeking to join in droves -- I'd like to come back to Denmark on that -- because they've always seen themselves as sort of -- if you talk about the fourth estate in terms of journalists, they see themselves as the estate four and a half. They want to sit outside. They are part of that debate.

    If I could just spend a moment on Denmark, what interests me about Denmark actually is not the mandatory co-regulatory model. It's the fact that online providers can join on a voluntary basis, and they are joining. In Denmark they are joining in droves, and the reason that they're joining is it's, I think, in their commercial as well as ethical interests to join up.

    So in Denmark you can join a Twitter account, a LinkedIn profile, Facebook. All can be members if they are imparting news in some way. And the benefit that they get from that is being able to differentiate themselves from other media that's unregulated, and an access to things like protection of sources if they came up against the same issues that traditional media come up against. And that seems to be very interesting, that they are -- they are embracing regulation as something positive that differentiates them from the rest of the online world.

  • Well, another positive is they don't pay at the moment. So they are accepted in and they're sort of freeloading, as it were, on the system while the Danes try to catch up. So they haven't yet worked out a funding mechanism. They only pay if they are affiliates of existing members. So if it's the online presence of a broadcaster or the printed press. But online only don't pay. Nor does commercial television pay in fact. It's funded by public service television, the broadcasting part of it.

  • This question of protection of sources, which of course is available in this country for journalists, I would have to think about whether somebody who put a blog online could claim that protection, because I can see that would be a tremendously valuable asset.

  • Absolutely. Absolutely. And it does have value. I think online providers are realising that, you know, they could be caught by some of the restrictions that might potentially be placed on them exercising freedom of expression certainly in a way, and yet not have benefits that traditional journalism have had, and this is a way for them to join the system in that sense, and I think they see that as protective.

  • So if you define -- it may not be possible, I've not thought about it -- journalistic protection as involving membership of an organisation that regulates how you're doing your business --

  • -- that becomes an incentive. Whether it works or not, I'll have to think about.

  • I don't know if I can pursue that thought. I know -- I don't want to add countries into the mix, willy nilly, but I would quite like to mention New Zealand in that context.

    There's recently been a Law Commission review in New Zealand, and it's looking at where what they call new media and traditional news media collide.

    What the Law Commission has asked there is: what are the privileges and the benefits that we accord to traditional media which we might think about according to new media?

    They've come up with a list of those, and they're the sorts of areas where, whether you call it a privilege or a right or a benefit, where you might argue, as I think you have heard from other witnesses -- they've looked at things like defamation proceedings and whether you're arguing responsible journalism there, and maybe a public interest defence. Privacy proceedings. They've looked at protection of sources. They've looked at the privileges in terms of court proceedings, you know, access to confidential briefings.

    Potentially, I think you coul add into that any areas where traditional media -- where we give a privileged position to traditional media. You could start to ask: well, who should benefit from those privileges?

    So, for example, I know there have been discussions about the public interest in relation to prosecutions by the CPS, or even the public interest test that applies to cross-media ownership.

    I think there's a whole network of ways in which we privilege or give a special place to the media, and in New Zealand they are asking whether those -- a bundle of rights and privileges should be extended.

    What they have consulted on is whether as a quid pro quo for that you would expect new media to voluntarily or on a mandatory basis be part of a regulatory body.

  • Well, it wouldn't necessarily be a quid pro quo, would it? It would be saying one of the ways you demonstrate that you're entitled to X, Y and Z is by demonstrating that you should have them by being involved in that sort of system.

  • That's exactly right. And that's where the Irish model, which you heard about this morning, I think is very clever because I know they don't have a whole bundle of these. They just look at defamation. But it seems to me that what the Defamation Act in Ireland is saying is not -- they're not particularly interested in fact in the Press Council as a tick-box membership. They're interested in: have you got a commitment to regulatory -- to responsible journalism, to accountability? And a way of demonstrating that is to be a member of the Irish Press Council.

    But they leave the door open to other ways of demonstrating that. So if you sit outside the Irish jurisdiction, you might be a member of a different body. If you're Thompson Reuters and you are global, you might point to your own standards. If you're a little blogger, you might point to, again, your own standards set out on your website. But the easiest way to demonstrate those standards is to be a member of the Irish Press Council.

    So that gives regulation, it seems to me, a value, and that's why I would argue Richard Desmond isn't a member of the PCC, but is a member of the Irish Press Council, because membership of that body demonstrating your ethical standards has a value there. It has a legal value, as well as an ethical value, potentially a commercial value.

  • Well, that leads into the issue of incentives, because they vary across the various voluntary systems you have looked at. Plainly they aren't so important in a compulsory system. Could you tell us, please, about how the incentives operate across those systems?

  • Yes. I think Press Council membership that is voluntary -- I mean, one of the leading incentives is that you have access to a very easy and swift complaints mechanism, whoever you take complaints from, whether it's public or purely the individuals concerned, and that's hopefully a way in which you avoid expensive legal proceedings. So that's one of the central planks.

    But I think now in the online world, it's also becoming an issue about differentiating yourself. So the Swedish Press Council -- and you might argue there's a very different cultural context there. But the Swedish Press Ombudsman pointed me to a recent example, where a Swedish paper that had got something very wrong had been censured by the Press Council and ordered to publish the Press Council decision, off its own bat published it on the front page, and the reason it did that was to say, "This is our compact with you, the reader. We are different. We aspire to very high standards. When we get it wrong, we will tell you that we've got it wrong, very visibly so". And so I think increasingly it's becoming a way of differentiating your content.

    Certainly in Ireland and Australia, they are seeking now to link it with a standards mark that is readily recognisable by the public.

  • And that is to demonstrate that news read in the press, whether it's paper or online, carries with it some assurance of accuracy, validity, proper research, which the conversation in the pub never would.

  • That's exactly it. It's an issue of credibility. And I think people have talked about "kitemarks" here.

    Kitemarks, I think you associate with things like boilers and pieces of equipment. I think this is more like the sort of Fairtrade Mark, where Fairtrade says to you, "Our products conform to certain standards. They're ethically sourced". And it's a bit like saying, "We have a commitment to standards and our journalism is ethically sourced," as it were, and that's what you are demonstrating.

    So rather than it being, sort of, you know, buried on your letters page, you would emblazon that. I think that's what's being encouraged now in Australia, in terms of differentiating.

    It's on the front page online, not six clicks in. I think earlier this week you referred, your Lordship, to the old Groucho Marx adage about: "I do not want to be a member of a club that would have me". This is a club you want to be in. It's a valuable commodity, and in Australia, where they're sort of trying to move the approach to regulation ...

  • You wanted to address the issue of compliance, I think. It may be a convenient moment now to do so.

  • Well, I suppose to say that the examples that I've drawn on that interest me in terms of compliance comes to this issue of: is regulation something that you try as far as possible to avoid, and to slough off, and to make sure is as minimal as possible, or is it something that's actually part of your DNA, and that your standards are a selling point?

    I think that is where there seems to be starting to be a debate around.

    Martin Moore, I think, from the Media Standards Trust, earlier this week said he didn't like the idea of incentives, because it smacks of trying to cajole a reluctant provider into the regulatory fold, or you compel them to be in the regulatory fold.

    Whereas if you see a real value to being in, then actually the biggest threat to you would be to be turfed out of that regulatory fold, not to be able to display that mark of your standards, and not to be able to use your Press Council membership to demonstrate responsible journalism in court proceedings or wherever else, as is being explored in New Zealand.

    In Denmark there is a co-regulatory system, as I have said, statutory. And it's backed, as I have explained, by the threat of a prison sentence. And yet there is currently parliamentary scrutiny by the select committees in Denmark of culture and legal affairs, which is looking at why there are failures within the Danish system. Why are Danish newspapers still, even within this co-regulatory framework, burying publication of an adjudication on sort of page 54?

    Where I think there's an interesting distinction is between those publications that are caught and are required to conform to the regulation, and those online providers that are actively seeking it out. That's where I think there is a different approach to what "regulation" means.

  • Can I ask you, please, about the public interest? This is section 6 of your approach. There are different approaches to it.

    You touched on it earlier, that the burden of proof, as it were, differs, that in some countries -- and we can see rule 7 of the Swedish code:

    "Refrain from publicity which could violate the privacy of individuals, unless the public interest obviously demands public scrutiny."

    So that's quite a high standard to prove. But could you tell us, please, how the position differs across the six countries you have been looking at?

  • I think the broad distinction, as I mentioned very briefly earlier on, is between the Scandinavian countries and the others.

    I think the Scandinavian countries, as you say, it's a much higher -- the starting point is a thou shalt not, that you start from a position where you do not infringe privacy unless there's an overriding public interest.

    Whereas in the countries I looked at -- Ireland and Australia and Germany -- there's a different approach. It's more of a sort of balancing act approach, as it were.

    In terms of the public interest, although it's mentioned in each of the codes, it's only in Ireland and in Australia that they, as it were, have a stab at defining it. You heard the principle from Professor Horgan this morning, and essentially Australia does the same thing.

    But it seems to me what they do actually is to substitute "legitimate". They say it's a legitimate interest. I think they all look on a case-by-case basis at the public interest.

  • Virtually all of the instances you have been looking at, one has to calibrate it against Article 8 and Article 10 of the Convention. I'm not sure all six of your principal countries are -- I think actually they are all signatories to the Convention?

  • Before you pass on, could I go back? I meant to ask you when you were talking about in or out.

  • One of your boxes on page 44 of your report refers to what was happening in Canada, as press councils in a number of the provinces are closing down.

    Your example there is some months old. How has that developed?

  • Since I published this, the newspapers association in Canada convened a conference, and are now effectively consulting on what the future might be, because they are very aware that they're -- there is a real tension here.

    Voluntary members of the Press Council began to see the press councils as, I think, overly politically correct, overly constraining. There was no value -- to go back to Richard Desmond -- to being a member of the Press Council, they began to see. And they started to pull out. Therefore funding pulled out, and you saw this kind of breakdown.

    The response on the other side -- and I think most prominently in Quebec -- has been to think about potential mandatory requirements to pull them back in, which has been very controversial.

    I think in Quebec they were grappling again, like New Zealand, with: what is a journalist today? What do we expect of a professional journalist? And they were thinking there about statute in terms of defining what a professional journalist is, and therefore whether subsidies and other things flow to publications which sit in a regulatory fold.

    That's something that has been discussed and consulted on. They haven't yet decided where to go with it. But this concept of a professional journalist who you would expect certain standard of has been seen as effectively a licensing of journalists.

    So you would be barred from certain things if you didn't meet the criteria of being a professional journalist; one of which would be to be a member of a press council, and it effectively makes membership mandatory.

  • Is there a reason that this is all coming up at the same time? We've spoken about Australia and the paper and the Convergence Review. We have talked about New Zealand. You have now mentioned Canada. The Inquiry has heard from India, that they're looking to see -- we know about that. What's happened to cause all this?

  • Well, I think there is an issue about convergence. And I have to say, I started looking at this about a year and a half ago for the Reuters Institute, before the phone hacking scandal. So just looking at the discrepancies that now seem to be arising between not so much complaint mechanisms, but as citizens, what should our expectations be of content that's out there? How is it that broadcasting is, you know, regulated by comprehensive statutory rules, whereas the press is subject to voluntary rules? Online to barely no -- any rules at all. Video-on-demand to two very, very circumscribed editorial rules.

    And yet it's all starting to look the same, combined with influential bloggers, new media, a whole debate going on there that simply doesn't fit currently comfortably within the regulatory structures. And I think that's where these tensions have arisen. They're being faced by the press councils, as I said, all over the world, and I believe they were there before this Inquiry, and they have been bubbling up for some considerable time.

  • What's the prospect of them reporting in time for me to learn something?

  • The Convergence Review in Australia or --

  • The Convergence Review has been --

  • The government hasn't yet made its decision.

  • But they have not made a decision.

  • Anybody else anywhere near making a decision?

  • The decision is due in the autumn. I think New Zealand, the decision is due in the autumn on their -- maybe there's some reason why they're all waiting. It's also due in the autumn. The Danish parliamentary scrutiny is also due in the autumn.

  • You touch on this in your report, Ms Fielden, but only touch on it. Are you able to assist us with how effective these different systems are assessed to be in their individual jurisdictions? There's a hint in your report that in Germany it may not be working particularly well. But can you evaluate these for us?

  • It's a very difficult question to answer.

    In Germany, I think you can point to -- I mean, I pointed to two examples where press council members were required to publish the determinations of the press council adjudication, and in one case Bild newspaper put the headline as "Crazy Press Council Decision", then ran the adjudication, and then afterwards, with a right of reply that they have under the German constitution, wrote, "This is clearly a rubbish decision and we stand by our story".

    So that's one indication of an issue over compliance. Bauer Media in Germany currently has not published the adjudications from last year, and is refusing to sign the voluntary undertaking that exists in Germany to publish those determinations.

    So that's an issue there obviously in terms of how successful the press council in that completely self-regulatory way is, and actually, you know, managing its constituents.

    If you measure by complaints --

  • So the risk, therefore, is that that will generate sufficient public demand for something rather different?

  • Yes, although I think that works out -- I mean, in Germany there's very vibrant public space, public debate blogs that enter into debate over this. It's almost as if the press council is one area of debate and regulation. But if the press council cannot oblige one of its members, as large as Bauer, to publish its adjudication, obviously there's a serious issue there.

    But if you're trying to measure this in terms of complaints and complainants, then I think press councils point to mediation as one way of remedying what the public are asking for.

    So in Australia they -- as the press council chairman put it to me, he feels that adjudications are the sort of absolute last resort and really where everything else has failed, because a simple remedy, you know, an elderly widow whose son's suicide has been all over her local press and misrepresented in some way may want something very specific and very swift in terms of a takedown or an apology, or whatever it might be, and you don't need to get to the formal adjudication side.

    So it's difficult to use any measures to say, "This demonstrably works because you get X number of published adjudications" --

  • That was one of the points I was making with the professor this morning, that one can't just look at the number of adjudications.

  • But the problem about mediation or personal resolution is one may default to the lowest common denominator, and the complainant, who doesn't have power or authority, may feel inhibited from taking on the press that does have power and authority, and therefore accepting something that may be far less than ultimately he or she might receive is preferable to undergoing yet another bout of argument about it.

  • I think that's true, although I think -- actually I'm sort of thinking back to when I was involved in Ofcom in terms of regulating complaints, fairness and privacy complaints -- that most often people, they may not know what their rights are, but they actually have a very clear idea about what the remedy is that they would like.

    Clearly, if they want a financial remedy, at Ofcom as elsewhere, they can't gain that. But they often do have a very clear idea about the bit of the record that they want set straight, or the apology that they would like to receive.

    So I think it's true people could be disadvantaged by not fully understanding their rights and what they might be able to get out of the publisher. But in my experience, they do have a clear idea about the remedy that would satisfy them.

  • And that may be sufficient, is what you're saying?

  • That's right. And is there any need to have a long and protracted process? As long as you keep tabs on, as I think Professor Horgan said, what is being settled and how. So that you can think about compliance in terms of the members.

  • But that's a problem, isn't it? Because if you're requiring the complainant first to go to the newspaper, then you will never know how many complaints have been --

  • -- resolved by the newspaper's publication of some correction or apology, and therefore have never, as it were, come above the parapet, unless you have then -- thinking aloud -- some requirement for audit.

  • So that the press has to report in once a year how many complaints they received, how many they rejected, how many they mediated by this, that or the other. So that you can keep an eye and decide whether you want a wider standards audit. But that's outwith most of your press councils.

  • That's right. In terms of requiring an audit, that's right, they don't require that. And you are right, that's absolutely a way to do it.

    The other way in Australia is you actually encourage them to come to the press council first, rather than to the members.

    So they take the flipside, say, to Ireland, where you're required to go to the newspaper first. In Australia they encourage you to come straight to the press council. They want to keep tabs on it, and they want any investment in complaint handling to be through them. So that will be funded by the industry but through them for that very reason. Complaints then aren't delayed and they have a handle on compliance -- that's not compliance. They have a handle on how many complaints are being made. Of course they would do.

  • I'm taking you outside your brief, but my immediate reaction to that is that one would want to encourage everybody to have their own complaints handling system and to deal with them efficiently, not least to minimise the work of whatever council is exercising an overarching influence. But that does require some sort of audit to maintain standards.

  • Yes. Yes, I think it does. If you go down that route, then I think it does.

  • Ms Fielden, may we look at your conclusion section. On the internal numbering it's on page 94. On our page it's 000673.

    What you do here is, tentatively at least, draw out some of the experiences from your six or nine countries and see how they might be applied to the United Kingdom.

    So may I invite you, please, to talk us through the key points which you're making in this section.

  • Yes. Thank you.

    I don't know whether you want me to set them out in a particular order or just --

  • No, follow your own course.

  • -- more generally.

    I think, and probably from what I said earlier on, my conclusions from looking at this go back to, I suppose: what is it we're trying to achieve here? And I think a commitment to ethical standards, as I mentioned, built into the DNA, I think, is what we're trying to achieve. It seems to me those areas where thought is being given to regulation being something that you want to be on the inside of are successful and are worth looking at, whether it's the online providers wanting in, in the Danish model, or the recognition that is given in the Irish statute.

    So that active compliance, I think, comes along with a recognition that regulation, you know, makes good business sense and it makes ethical sense, and potentially, with statutory recognition, it makes legal sense.

    But secondly, not looking at it from the point of view of the businesses and the providers here, looking at it from the public's point of view, I think there is something -- and your Lordship talked about what is going on here, what are these sort of fundamental changes that are affecting us all. I think there's something about, as a citizen, we're flooded with information but can we distinguish the credible from the not credible, or the providers who are committed to ethical standards from those that are not?

    So, again, it seems to me that through a system where regulation has a value, that goes hand in hand with a commitment to the citizen, and the citizen can then use that choice.

    They may choose to access information and publications within the regulatory fold, or they may choose to go outside. That's their choice. But they need to know what's there. And I would defy anybody currently to be able to go to a newsstand, or go online, and identify who is inside and outside the regulatory fold. Who subscribes to standards and who doesn't.

    That doesn't mean that everybody outside the regulatory fold in the future wouldn't subscribe to standards. Clearly, bloggers may do, and they may have a whole separate constituency that they are trying to attract.

    But I think as well as embedding ethical standards, as well as serving the public interest, you have to serve the public, and enable the public to make informed choices.

    So to come back to the conclusions here, I have drawn distinctions between -- on that spectrum that I started with -- and my thinking is that there is something around that statutory recognition or a recognition of ethical commitments which is interesting. I don't believe that Ireland provides us with a straightforward blueprint, but I think there's something quite interesting, quite subtle actually, going on in that Act, that would be well worth exploring here.

    I know I said this earlier on, but the other thing that really came across to me very forcibly was the Press Council saying, all of them saying: the law is distinct from ethical regulation. And what ethical regulation provides is both less and more than the law.

    It provides more than the law in that the ethical standards you're obliged to commit to -- I think as you heard before from Hugh Tomlinson -- go further. You know, accuracy, dealing with bereaved families. They go beyond the law. But they're less than the law in terms of financial remedy. They offer a different sort of remedy, and it kept being brought home to me, this distinction between the two.

  • And these considerations are leading you away, I think, from a system of mandatory regulation, at least as a tentative recommendation, but closer to a system of voluntary regulation, independent, but incentivised in some way, either by industry acceptance of ethical principles, which they would wish to adhere to, or it could be more crudely, I suppose, by a series of legal and commercial sticks and carrots, which might nudge or impel people in the right direction; is that a fair summary?

  • Yes and no. I wouldn't agree in the sense that incentives and compulsion both imply that you've got a reluctant media here that you're trying to draw in.

    I would rather say, if we can establish a framework that you want to be in, and that the most significant sanction could be to be either temporarily or even permanently suspended from, that's changing the rules of the game in terms of what regulation is about.

    And that's where, I thinks, there's a difference in terms of incentives. Because you're not cajoling. You are offering this in a platform-neutral way, as it were, to anybody would wants to sit within the regulatory fold.

  • But isn't that rather semantic in the context of the world we are living in in this country?

  • Potentially, but I think every time we invoke Richard Desmond we have a fear of who will sit outside, and it just seems to me already, it's not just him who sits outside; there's a whole multitude of online providers, who only grow in significance, that sit outside. And the public should be enabled to make informed choices about where they go. So I just think built into the concept of incentives is this sort of enticement.

  • Yes, but you need to achieve a critical mass. Once you lose the critical mass as they have in Canada, or so it appears, the whole thing just frazzles out, and somebody then has to do something that is more draconian. And the history of attempts to regulate, in whatever form it is so described in this country, has been: disaster, attempt, "We will try better;" disaster, attempt, "We will try better".

  • And in all of these countries exactly the same.

    But I suppose I just think there's something different about accepting that perhaps at the end of the day somebody will leave the regulatory field, but if there are real and material consequences to that -- for example for a larger provider, if the public interest test in terms of their wider media ownership were to take into account whether other aspects of their media delivery were part of the regulatory fold, that's a huge incentive, value -- whatever you want to call it -- to regulation.

    So yes, you're right. Of course it's sort of semantic in that, I think, as Hugh Tomlinson put it, you would be crazy not to be a member. That's the idea. But I think ultimately, if you're pushed to the extreme, you have to accept somebody might sit outside. And then it's for the public to make choices, and advertisers to make choices, about whether to engage with them, and different consequences to come into play in terms of ownership and plurality, and those fears that we have in terms of power and influence.

  • That's extremely helpful.

    Those are all the questions I had for you. It's an extremely detailed report of course that you provided. I sought only to draw out the key points. Obviously we've read it very carefully, and we would need four or five hours to do justice to the full text.

  • Is there anything that you would like to add? You're not advocating that we need a judge involved in press regulatory regime in this country?

  • No. No. I simply pointed it up to say that that does exist elsewhere.

  • But independent majorities throughout the Press Council, I think, are very useful examples, in terms of the funding body you heard this morning being chaired by an independent member; the Code Committee potentially having independent members. You know, weaving in independence right throughout the organisation. I think there are some useful lessons overseas.

  • One of the most interesting features that I pick up, which actually was brought out particularly by what Ofcom said the other day --

  • -- was the difference between somewhere like Germany, where it's entirely the industry, as indeed it was at one stage here --

  • -- but still called "regulation" -- and what Mr Richards said when he said that to have a regulator that was entirely or indeed at all staffed by those that are being regulated would be, I think his word was, "unimaginable" for Ofcom.

  • That's just an entirely different mindset.

  • It is, it is. I think that also followed in terms of your discussions about a code of conduct. You know, when Ofcom -- and I know this because I have been part of the process. When Ofcom is changing the Broadcasting Code, it publicly consults. The public is part of that process. Of course clearly industry is a very significant part of that process, but the idea that the code would be formulated in a closed room, by a small group of people, is unimaginable to Ofcom.

    So I think you could imagine a Code Committee that, say, had an independent majority which could tweak the code, because you want something that is flexible. But if you were going to change the code in any fundamental way, you widen the conversation.

  • That's why I rather raised with Mr Tomlinson this idea, coping with Mr Richards' concern that even the Code Committee should have no serving editors on it, I ask to have an advisory board, or alternatively the idea that whatever they do, if they are the industry, then it has to be subject to the approval of the governing body, which is not a trade organisation.

  • Does that work? Do either of those work?

  • Does it work if you make it either advisory or you say it has to be the subject of approval by the main board?

  • Well, I think -- I think it's -- it's more a question of do you see -- is this an independent body with independence enshrined throughout, but drawing on industry experience? So you have industry voices there, and clearly you need that. But whether, for example, on a Code Committee you actually draw more widely on the industry. So when Ofcom consults, anybody within the industry can come back.

  • I quite see the point about consulting widely.

  • I understand that. Indeed, for the purposes of the Inquiry, I have invited the public to contribute views, and they have done to an enormous extent.

  • But as a matter of structure, in preserving the relevant independence, I wouldn't want to lose the experience --

  • -- which comes from those who are doing the job, without giving them a veto.

  • Absolutely. There was something else that Ed Richards and Colette Bowe said to you, I think, yesterday, which was basically, in terms of broadcasting, "If it ain't broke, don't fix it".

    They also, I noted, left the way open in terms of the future, that there may be developments in terms of broadcasting regulation and for how long that comprehensive statutory regulation of broadcasting right through the electronic programme guide, as it were, is sustainable.

    I just thought that was interesting in terms of just feeding into what you were asking or saying about convergence, that the outcome of this Inquiry might produce a structure which is aimed now at the press and online, but in future might be open to providers more broadly or some other providers.

  • I think it's critical if you can do it. I have referred several times during the course of the last few months to the elephant in the room. Actually there are a fair number of different elephants, but this particular elephant is the Internet, and the access to the proliferation of views in a way which even ten years ago was inconceivable.

  • So what it's going to be like in ten years' time is equally inconceivable.

    I have enough problems about today though. Thank you very much indeed.

  • Yes, until 10.00 am on Monday.

  • I've got to congratulate those who have stayed the course. I'm pleased there are some people with stamina.

  • We have quite a heavy day on Monday.

  • You mean we haven't today?

    Thank you very much indeed, Mr Jay. Thank you. Monday morning.

  • (The hearing adjourned until Monday, 16 July 2012 at 10.00 am)