Article published in the British Journalism Review, Volume 21, Number 1, March 2010

Freedom of speech is non-negotiable

Peta Buscombe

Answering critics of the PCC, its chairman insists press standards will be upheld, and calls for greater responsibility from the media

There is no doubt - as parliamentary select committee inquiries have concluded - that standards of reporting have risen markedly since the PCC and the Code of Practice for the newspaper and periodical industry were established in 1991. Let me be quite clear about this. I am quite happy to talk about standards, as there are often grumblings - and this has happened, I imagine, ever since the advent of the printing press - about a decline in the quality of journalism produced in the UK press.

These cries of angst can be no more than thinly-disguised snobbery, or an adverse reaction to what is seen to be the modern obsession with celebrity or the trivialisation of politics. Such complaints may even be legitimate (if a fraction po-faced), but they must be distinguished from the sort of complaints the PCC is here to deal with. The standards we are interested in are to do with what the Code requires of editors, not what individuals may regard to be acceptable topics for coverage by the press.

Perhaps I should reiterate exactly what the Press Complaints Commission is actually meant to do, given that some misunderstanding was evident in Jonathan Coad's article in the previous issue of the BJR (20/4). During the 1980s, a small number of publications failed, in the view of many, to observe the basic ethics of journalism. The PCC was set up to show that non-statutory self-regulation can be made to work effectively. There were already numerous laws which applied to the press, such as libel, contempt of court, copyright and so on. These have since been joined by countless others.

A free press is a central component of a healthy democracy, and the undesirability of a statutory press regulator is therefore very clear. It was for good reason, therefore, that it was left to the press to create its own independent body to balance the public's right to know against respect for individuals' privacy. There was, and is, an understandable reluctance on the part of politicians to empower a State agency to decide what sort of information should be published or discussed in a democracy. Despite widespread discussion in the 1990s of the merits of a privacy law, similar objections of principle applied, as well as those relating to the practical difficulty of drafting legislation. Furthermore the Government reassured the PCC and the press in 1998 that press freedom and self-regulation would not be undermined by the Human Rights Act.

The PCC was not set up as a general regulator of all press behaviour; to police laws as well as take complaints under the Code of Practice. Rather, it was primarily meant to deal with issues, both ethical and practical, that the law cannot capture. It therefore complements the law rather than competes with it. The PCC is at heart a complaints resolution and adjudication process which meets the needs of the overwhelming majority of people who have a grievance against a newspaper or magazine.

We command public support

We are free; we are fast; and there is none of the adversarial, and sometimes intimidating, argument of public hearings in court. Our flexible, non-statutory basis guarantees common-sense decisions that take account of external developments. We involve the public in our work, for instance by having 10 lay members on the board of the PCC; by commissioning research into public opinion; and by regularly meeting members of the public all round the UK who are affected by our work. This is something that commands public support, as illustrated by polling conducted by the PCC which showed that, when asked who should consider complaints about editorial standards, 45 per cent of the public favoured a committee which included members of the public as well as senior journalists, while just 12 per cent said it should be for judges to decide.

The PCC develops and raises press standards by ruling on strict criteria of inaccuracy, intrusion, harassment and so on and by establishing case law and the acceptable boundaries of practice. The precedents that have been laid down over the years act as a practical guide to editors in newsrooms across the country. We also raise standards by offering genuine redress to complainants: the fact that a process exists to hold editors accountable for their actions, the fact that breaches of the Code can lead to public criticism, means that editors have to consider the key ethical issues before publishing.We see this happening every day when calls for advice come in from editors to complaints staff at the PCC. We regularly hear about stories that are not published, intrusions that do not take place, thanks to the terms of the Code and the decisions of the PCC. And we go out and spell out the key principles to those in the industry: from students at the beginning of their careers, at whose courses we lecture, to the working journalists who come to our regular seminars.

Self-regulation demands a degree of trust and integrity from all those who buy into it, and it works on the basis of good old-fashioned common sense. It allows freedom but demands active engagement and a degree of responsibility. The Press Complaints Commission applies a system which is genuinely flexible, discreet, free and fair. We have our critics - and yes there are some with their own agenda and some who don't understand what we do - but I genuinely welcome constructive criticism from any person or organisation who wants to help us improve the self-regulatory process. We are ready and need to listen to ideas to build on what has already been achieved.

That is why I have initiated a review of our governance structures, to which anyone and everyone can contribute. This will be a thorough, fundamental look at how the PCC matches up to the challenges posed by the media in the 21st Century, with any thoughts on remit or sanction being considered with great care and in strong engagement with the industry. It will leave no stone unturned and will, I hope, place the Commission in the best place to consider and develop its role in the future. Because the PCC must remain responsive and light on its feet. I must say that, as a lawyer, I have been impressed with the speed and flexibility with which the system of self-regulation can adapt to changing needs. This is true not only in terms of technology, but also in terms of cultural expectations. So what was culturally acceptable, say, five years ago may not be now - and vice versa. And when it comes to adjudicating complaints, I genuinely believe that it is fairer and therefore preferable to have 17 people with a variety of backgrounds considering a case, rather than a single judge.

There has been a lot of talk about privacy and about the increasing numbers of people resorting to the law rather than taking their concerns to the PCC. This is not borne out by the facts. The PCC now helps more people with privacy concerns than ever before - but the profile of the courts' activity in this area has increased, along with media concern about the power of individual judges to decide what can and cannot be published. I

n 2009, we dealt with the privacy concerns of more than a thousand people, either formally or informally. We made 226 distinct rulings in connection with more than 670 complaints; we resolved (that is, successfully mediated) 127 cases; we issued 69 private advisory notes to the UK press on behalf of individuals; and we helped hundreds of people with prepublication advice - so circumventing the need for a formal complaint. These included high-profile people such as members of the Royal Family and television presenters, but were mostly ordinary members of the public caught in the media spotlight.

We want to become transparent

Inevitably, a lot of this work is conducted away from the public gaze - which is the PCC's central appeal to people genuinely trying to protect their privacy. Privacy trials in court will by definition attract far more attention, in the process giving further publicity to the very information which in the plaintiff 's view should never have been published in the first place. Cases such as Max Mosley's are high-profile but are relatively few and far between and they should not be allowed to obscure the rapidly growing recourse of the public to the PCC in this area. While there is a strong element of confidentiality to the work we perform as an organisation, we want to become as transparent and accountable as we can - and we will. It would be inappropriate for the PCC to release personal information and be subject to the Freedom of Information Act, because we deal with cases relating to individual privacy. However, we can adopt the sprit behind the provisions of the Act and provide information wherever and whenever we can.

We await the Report of the House of Commons Culture Media and Sport Select Committee inquiry into press standards, privacy and libel with interest, and will of course study its findings closely and respond in due course. Where there are clear and obvious improvements we can make, of course we will implement them.

I was heartened to see the Government minister and journalist Sion Simon's recent comments in the House of Commons. He stated: "The overarching principle that the media should not cause harm, and defending the freedom of the press on a case by case basis are not the Government's job. It is not for ministers to determine what should be in the newspapers or on television in this country." He went on to state that "content is the responsibility of individual publications regulated by the Press Complaints Commission. The freedom of the press is important in this country". Furthermore, in January this year the new Supreme Court made a landmark ruling lifting a ban on naming suspected terrorists. Lord Rodger said suspected terrorists should not be allowed to exploit the legal system to try to "hide behind a cloak of anonymity", adding that the Press Complaints Commission was the appropriate body, not the courts, to deal with "any lapses of behaviour by the press".

As we head into the future it is clear that globalisation and digitalisation of media are powerful forces favouring self-regulation, but I am not in any way complacent. So my priority is to do all I can to reassure politicians, opinion-formers and - most importantly of all - the public that we are robust enough and responsible enough to be left alone. However, I will not allow change to be at the expense of freedom of speech and expression. Freedom of speech is non-negotiable. It is too precious. Freedom of expression, freedom of action and a lack of government and bureaucratic interference are all vital to preserving a healthy population, a healthy economy and a healthy society.

It's important to realise, too, that media impartiality is neither possible nor desirable. Newspapers enjoy the freedom to be partial - a freedom publishers valiantly fought for down the years - to escape censorship and establish their right to report their view of the world. No-one today would seriously argue that government should oblige newspapers to be impartial. We leave it to the market, not to media regulators, to decide which set of opinions will flourish and which will wither.

We shouldn't be afraid of commercial or technological change and we should react to it creatively, imaginatively and flexibly. Not by enacting more laws, clamping down on diversity and freedom and tying down successful ventures in red tape. We don't need top-down regulation enforcing conformity, restrictions and ensuring that all media look the same. Freedom of expression will ensure diversity and representation of all opinion. Surely it's a healthier society that encourages positive action and innovation rather than one that seeks to ban, restrict and control?

I very much hope that what we are presently witnessing is an historical and permanent shift in favour of free expression over the forces of censorship and restraint. But I also appreciate that this greater freedom will demand greater responsibility from the commercial media. As it becomes obvious that the State cannot and should not regulate media content, there will be a greater public and political expectation that the industry can police itself. So industry, government and regulators will need to be flexible and quick to reassure public confidence and trust in the media they consume. I will expect the industry to give the PCC the freedom to develop rapidly, to exploit the opportunities presented by media convergence. We now have the opportunity to show how our model can be trusted in future.

Baroness Buscombe is chairman of the Press Complaints Commission.