The European Commission should ask for a refund

I was surprised to see discussion of the Mediadem project in the Telegraph this week (picked up elsewhere although without additional information), which some of my Edinburgh colleagues have been involved in.  I should say at the outset (as you can see from the previous post) that I have spoken at two Mediadem events.  I’m not part of the project.  I’ve benefitted to the tune of approximately £50 worth of food, biscuits and coffee from the two events I attended.

It’s always good to see the discussion of academic projects in the media.  Here, though, I don’t think that the article gives a fair reflection of the relevant outputs.  The author (Andrew Gilligan) makes a number of claims, which deserve further investigation.  (This is my own opinion and not that of any of my colleagues, Mediadem or otherwise).

The EU has spent £2.3 million on the previously unpublicised “Mediadem” project to “reclaim a free and independent media”. In a “policy brief” co-authored by its lead British researcher, Rachael Craufurd Smith, Mediadem says it is “simplistic” to “see state influence [over the press] as inherently stifling”.

Dr Craufurd Smith, an Edinburgh University academic, said that it was also “simplistic” to believe that “market-driven media” were now “free and independent”.

Most importantly, it’s not unpublicised.  See this website – stacks of papers, updates, etc. Regular updates over the last three years.  And here’s the Twitter feed.

It is simplistic to see state influence as inherently stifling. The debate on media regulation is a nuanced one.  Very passionate at times – but even those in favour of limiting the role of the state can identify for the purposes of debate a spectrum of state responses (perhaps bad vs very bad in some views), but still worth talking about.

The ‘policy brief’ is one of a whole bunch of very interesting (and wide-ranging) briefs.  Check them out here (there are not far off a hundred).  The quote comes from one of the shorter ones, addressed to a wide audience.  In any event, what the report actually says.

“Understanding free and independent media requires a move away from simplistic categorisations that see, on the one hand, state influence as inherently stifling and, on the other, market driven media to be free and independent.A media service may be independent in the sense of being autonomous from state control, yet still offer partial, biased or inaccurate information. Alternatively, a media service that is under state direction may be established with a clear remit to carry out and offer impartial reporting.”

This is mostly a descriptive statement.  It recognises that an assessment of independence requires more work than just checking the ownership – as well as ownership, one needs to look at remit, autonomy, accuracy, etc.  Remember that this is a Europe-wide project and that the high standards of the British press may not be present in the same way in every jurisdiction. Similarly, there is a wide range of types of state-directed media across Europe. I can’t see why someone interested in the media – even those very sceptical of state regulation – wouldn’t find that an interesting question.

Mediadem recently produced “recommendations for the UK” demanding the “imposition of sanctions beyond an apology or correction” on errant media outlets and the “co-ordination of the journalistic profession at the European level”.
The recommendations call for the press to be controlled by the same body and on the same basis as broadcasters, who are currently tightly regulated with statutory “balance” obligations that do not apply to newspapers.

Mediadem produced recommendations for lots of other jurisdictions too, by the way (see the link above).  The recommendation in question (demand – really? I wish we of the ivory tower had that power) is worth reading.

On the paragraph itself, I think it is an unfair characterisation of the document.  It omits the paragraph immediately before it, which explains that the point on sanction is part of a proposal for self-regulation. I don’t read the point as saying that newspapers should be regulated on the same basis of broadcasters.  If anything, it suggests starting with the press system and folding other sectors into it.  (Not sure I’d agree with it, but it’s a well-argued point and backed up by more thorough analysis of the existing regulatory systems in earlier, much longer papers on the site).   What the report actually says (before making that recommendation) is:

“The first would be to create a self-regulatory framework open to all media sectors and players. As the PCC Code is substantively quite close to the content codes applicable to broadcast television, a framework broadly based on the PCC Code could be extended across all sectors, video, audio and text, to create a more coherent framework. The more detailed provisions in the broadcasting codes could, where relevant, be drawn on to develop the code further.”

The point on the co-ordination of the journalistic profession is taken from a completely different part of the document – an annex summarising recommendations directed at the European institutions.  It appears to be copied across from the more detailed discussion on p. 16 of this document, which is a more general point about the different models of journalistic status across Europe, including its consequences for the protection of journalists.  Again, not everyone’s cup of tea, but far from as scary as it sounds.

I should say that the UK brief contains quite a range of points.  (Again, not endorsing all of them, but they are plausible, relevant assertions).  For example, there’s discussion of using the taxation of ISPs to support journalism, and of clarifying statutory public interest defences for offences that restrict reporting.  Or making the appointment of the BBC Trust more transparent.  As it happens, some of these recommendations were discussed at a workshop I attended earlier in the year.  Also in attendance as an invited keynote speaker was a representative from the Icelandic Modern Media Initiative.  Her presentation was extremely critical of the restrictions on press freedom in the UK.  (Indeed, it sparked an interesting exchange as some of the audience argued in favour of greater protection of privacy – I call it a draw).  It’s a strange sort of stooge project that invites people like that to speak.

Gilligan’s article goes on to discuss various other EU-funded projects.  Erroneously, this is described as ‘coordinated’ and the responsibility of one Commissioner.  However, Mediadem is funded under FP7 (i.e. as an academic project), whereas some of the other projects are work run by or directly commissioned by the European Commission for its current policy work.  There are various suggestions made about the involvement of those supporting changes to media regulation (e.g. the “Hacked Off” campaign group).  It’s hard to see how much of an influence UK campaigners (particularly in relation to Leveson) have had on a 14-country consortium of universities, particularly for a project that was applied for long before and started its public activities in early 2010.

I found it funny to see the point being made that Prof. Steven Barnett attended the final Mediadem conference.  (I received an invite, but couldn’t attend).  I don’t doubt that he did, but the conference report discloses a wide range of presentations, including the participation of representatives of journalists and media organisations, and a particular focus on freedom of expression.  The list of attendees (again, an unusual way to hide a project, publishing such information) includes a lot of journalists, commercial and public service broadcasters, as well as academics from different countries and lots of regulatory bodies.  Not unusual for this sort of event. Not unusual that a Prof of journalism like Barnett would be in the crowd.

All in all, I think those who disagree with the regulation of the media might find a lot to interest them in the Mediadem project.  To suggest that it is part of the EU’s attempt to regulate the media is far off the mark – it’s an academic project with stacks of recommendations (which even contradict each other, so coordination is hardly the key), lots of people involved, various ideas floating around – fairly typical for this sort of project, in my experience.  Looking in from the margins, I thought it a useful exercise and the amount of information that has been made available (for all on a very non-secret website) would, I think, actually assist campaigners on different sides of the argument.  So while the article does raise some interesting questions about the overall EU approach to media regulation, and does highlight the work to a wider audience, I would advise the interested reader to check out the policy briefs, research reports and conference proceedings for themselves.  It’s more balanced and engaging that the Telegraph suggests.

Hot tub time machine

On Thursday (8th December), a group of academics from seven UK institutions gave evidence at the Leveson Inquiry on the culture, practice and ethics of the press. I was one of the seven heard in what was termed a ‘hot tub’ format – this phrase has provoked much comment; I was vaguely familiar with it (for expert witnesses in trials, particularly scientists) and it does lend itself to interesting (if slightly worrying) images. The others were (in the morning) Steven Barnett, George Brock, Brian Cathcart and Angela Phillips, and then (alongside me in the afternoon) Julian Petley and Ian Hargreaves (yes, same Hargreaves as the Hargreaves Review, as a number of people have asked. No, I didn’t say thank you for the report, although I am a big fan of it). Each session opened with a discussion on journalism/media education and segued neatly into a broader discussion on the inquiry’s work, particularly regarding regulation of the press.  We were asked to answer polite (and very well informed) questions from the two counsel (David Barr & Carine Patry Hoskins) and Lord Justice Leveson  himself.

All three of the afternoon witnesses were there for the morning, so we had a good opportunity to see what our colleagues were saying – particularly the useful debate between Barnett and Brock on models of media regulation and the role of statute. It was interesting to watch the Inquiry go about its business – serious but not overly formal, and a technology-infused room (transcribed text appearing on screens, each lawyer with a computer in front of them, iPads and smartphones in circulation, and of course the fixed (and indeed unobtrusive) video cameras dotted around the room, linked to the live stream on the Inquiry’s website. On this occasion, it’s fair to say that neither Court 73 nor (I’m told) the overflow annex) were packed out – perhaps a day of academics does not have the appeal for others that is has for me! (Not even a Guardian live blog – which according to Charlie Brooker’s Black Mirror defines a serious event – but the Telegraph did have one (and a still of me in full hand-waving mode).

The full details of what we all said can be found in the transcripts: morning and afternoon. As a new lecturer I didn’t have a lead role in the discussion of education, although I was pleased to be able to talk about some of the things we are working on at UEA, particularly the interdisciplinary ‘Media & Society‘ module, and to comment (briefly) on the differences between media law for law students and media law for journalism students. (Lord Justice Leveson also appeared amused (or scared) at my observation that the inquiry itself is a useful part of this year’s media law syllabus). I enjoyed the discussion of the different careers of journalism graduates and the ups and downs of NCTJ recognition in the morning and afternoon sessions – a really useful exchange to review.

My next major intervention was regarding the Press Complaints Commission; this was the bit that made into the end of a Guardian report too. I suggested that some aspects of the Press Council of Ireland could form a part of UK reform – e.g. statutory recognition of an independently constituted Council, the involvement of journalists and not just proprietors, links between the responsible journalism defence to defamation law and Council membership. I also observed (and Twitter users took notice!) that UK publishers had joined the Irish council in respect of their Irish editions; others have made this point before but it does bear repeating. I added that investigative powers would only be appropriate if a press body was appropriately accountable for the exercise of those powers.

Of course, most of the questions directed to me were Internet-related, and it’s where I had the opportunity to put across quite a few points drawn from my research. While I wanted to emphasise that the idea of the lawless Internet is inaccurate (and has been for some time), I also discussed the importance of clear laws that individual bloggers etc could understand (and possibly be protected by akin to journalists if standards are met), the dangers of encouraging or requiring online intermediaries to be the key location of regulation (or treating them all, from telecoms providers to search engines, as the same), and also the strong points of some community-driven regulation. (Those who have read things I have written in law journals or even on this blog may recognise many of those points, and what I was trying to do was summarise them for the purposes of the Inquiry, which isn’t specifically about online media but will surely be dealing with it under various headings). I did coin an unintentional soundbyte, that hosts should not be the “new arbiter of what is right or wrong”. I also responded (not in much detail due to time) to Julian Petley’s comprehensive paper on freedom of the press vs freedom of expression, which I recommend as a very interesting reading on this topic. Oh, and I defended media studies as an important contribution made by the academic world, but that again won’t surprise readers. And then it was off to the cleverly squeezed in BBC remote studio for a chat with the fine Radio Norfolk : hear the results here (at 1h45m) and the following morning’s studio interview here (at 1h48m).

The Inquiry has a lot of work to do, and it’s running alongside other processes, such as the draft Defamation Bill. I’ve been watching it with fascination and it has been a privilege to be able to contribute. It continues to invite submissions from the public and will shortly be inviting further submissions on the press and the police (module 2).  Based on what I’ve seen so far, its report should be wide-ranging and fascinating, and I hope to continue blogging about it and sending in my written observations in due source.

Subterfuge!

I’m one of the lecturers on a final year optional module, Media, Entertainment & Sports Law. Fairly early on in the year, I teach a section called ‘journalists and the law’, which is more or less a collection of issues other than defamation and privacy that affect the work of the journalist in general (broadcast-specific issues come later in the course). As the focus shifts to pre-publication work (with D&P doing most of the heavy lifting for post-publication spats), the recent interest in investigative journalism provides a useful way to look at the moral/ethical/practical/legal discussion of how far the journalist should go to get a story. So for the seminar on this topic, as well as reviewing the plethora of reports on ‘phone hacking’ et al, I also ask students to look up and criticise any decision of the Press Complaints Commission under clause 10 of the Editors’ Code (the asterisk means that there may be public interest exceptions to the clause)

10 *Clandestine devices and subterfuge
i) The press must not seek to obtain or publish material acquired by using hidden cameras or clandestine listening devices; or by intercepting private or mobile telephone calls, messages or emails; or by the unauthorised removal of documents or photographs; or by accessing digitally-held private information without consent.
ii) Engaging in misrepresentation or subterfuge, including by agents or intermediaries, can generally be justified only in the public interest and then only when the material cannot be obtained by other means.

I like this clause because it weaves together things that are (reasonably) obviously illegal, things that are dubious, and things that are very likely not. The decisions also bring up the lovely newspaper history of the ‘our reporter made his excuses and left’ type of subterfuge. But it’s not the highest-profile bit of the code and the decisions were often quite inconsequential. However, for next year’s iteration, we finally have a Big Case under clause 10 to talk about…that’s the complaint of the Liberal Democrats against the Daily Telegraph, published on 10 May 2011. Not only was the original story a Big Story (the various admissions made by Vince Cable when, as Jeremy Hunt it it with a nod to the contemporaneous Mosley decision, two young women tied him up in knots), but the finding against the Telegraph is also Big. I do think the finding is well-argued, although it could be confined to its own facts if newspapers were able to make a stronger case of ‘acting on information’ as opposed to fishing. Thinking outside of a formal analysis of the decision, it’s also Big in that it comes at an important time for self-regulation, with the PCC being able to demonstrate its willingness to protect a particular form of privacy, when the law of privacy itself is in flux and the PCC criticised by some for its performance regarding phone hacking.

(I held off on this until after the students referred to sat their exam, which they did on (spooky music Friday the 13th…)

When is an evening not an evening?

One is because the way you demand news has changed with the introduction of the internet and 24-hour news channels on TV and radio. Long gone are the days when the first way to find out about breaking news was when the Evening News rolled off the presses. For the past decade the majority of the newspaper has been written the day before publication anyway, so our website at http://www.eveningnews24.co.uk is the place to go for breaking news, with the newspaper being a more comprehensive roundup of local news not offered anywhere else. Another reason is that the economy is still suffering and we need to save money to ensure our frontline journalism is maintained for readers. Printing earlier helps us do that.

Here are two really interesting pieces from the Norwich Evening News, a local paper here in Norwich: A new era for your Evening News and Times change for your Norwich Evening News. The quote above sets out the paper’s arguments for its just-published move from an 8am printing time to midnight.The paper sells about 18,000 copies each day, which is impressive enough. I’m sure I’m part of the problem in that I don’t buy it regularly (when I do, it’s likely to be the Friday edition with event listings), but do check in on the website from time to time. It had already been reported by the excellent HoldTheFrontPage website that the publisher was changing its printing press to a ‘single shift’, which presumably is part of this wider package of changes.

The UK has a substantial local and regional press – 1300 in total – with under 100 of them being dailies. When I moved here, I was indeed surprised that a small city could support two papers – the morning Eastern Daily Press (amazingly, the 8th best selling regional daily in the UK), and the Norwich Evening News. Obviously, there’s some overlap between the two, but the latter also has a narrower catchment area. The owner is Archant, which is not one of the ‘big five’ but has had downs and ups over the last two years)

As far as I know this paper has a single edition, but does printing at midnight mean that it is, in effect, a ‘morning’ paper – especially as some morning dailies will be printed after midnight. (There’s also the model of the Ipswich Evening Star just down the road, which has some overnight and some on-the-day print runs). How valid is the morning/evening distinction today? Certainly, it could be important for competition law (albeit probably not in this context where both papers are already owned by the same enterprise). In theory, there might someday be an accuracy of description issue. But it also suggests some flexibility and change in the dominant model of newspaper publishing – will it solve the well-acknowledged financial and planning issues of the local press? The Culture, Media and Sport Committee of the House of Commons published an important report on this issue last year, Future for local and regional media, and part 2 dealt with the press. It highlighted problems with advertising in particular but recommended against subsidy. It also dealt with the vexed question of publications by local authorities, which is now the subject of dispute between members of parliament and the new SoS, Eric Pickles.

Injunctions and newspapers (but not the way you think)

Shameful stuff from Associated Newspapers: off they went to the High Court to seek an injunction.  (I’m not sure exactly what the claim was – it appears to have been IP-related, but the Guardian report says it was about ‘trademark copyrights’, which is a new one on me).  The reason?  A spoof newspaper, the METR0 (zero instead of O in the actual METRO), the subject of a website and a small physical distribution effort in London.

There’s a fabulous transcript (PDF) of the late-night hearing, with Smith J expressing some serious scepticism about the whole enterprise and the realistic impact of the spoof on Associated’s interests.  It does remind me of the climax of that excellent film The Yes Men Fix The World (which I saw at Cinema City in Norwich, recently broadcast on TV and now available on DVD).  They produced and circulated a note-perfect spoof New York Times.  No injunctions there.  Perhaps Associated are a little more sensitive about the fine brand that is Metro.

But seriously – how can a newspaper, in good conscience, go for an injunction like this, the type of thing that if it were served on a newspaper would provoke immediate (and fair) criticism of judges stopping the presses at the eleventh hour and suppression of press freedom.  The political campaigners and satirists behind Metr0 may not have the record of Private Eye, but to be the subject of an attack from a newspaper is just bizarre.  The fact that the basis was IP rather than defamation or privacy does not change this.  I feel like Neil Kinnock’s 1985 grotesque chaos quote is hanging over this…

Fit for the bin

Many of those who write about the regulation of media (myself included) get very excited about questions of access, particularly in relation to new media, with things like positioning on an electronic programming guide (EPG) or the ongoing net neutrality debate getting lots of coverage, at least in academic circles to begin with. I’m reminded by a story on the Press Gazette’s website, though, that physical ‘access’ questions are still very important as a matter of the media industries. Indeed, this particular version of the question is a relatively new one, and it’s quite nice that new topics like this continue to pop up.

The article in question is about the Evening Standard, which is in the process of switching from cover price to free distribution, reaching what is referred to as a short-term deal for the use of the ‘bins’ in London railway stations (mainline stations like Waterloo, Euston and Liverpool Street, not Tube). These familiar structures are used for the Metro newspaper in the mornings, and will now contain free Standards (instead of the much-missed London Paper) in the evening. They’re apparently owned by Network Rail (which operates these stations) and have been the subject of a tendering process in the past, according to this 2006 Guardian article (written in the olden times before the now-abandoned thelondonpaper hit the streets). As far as I know, the Evening Standard has an existing separate deal for paper-sellers setting up inside Network Rail-owned stations, but presumably the bins are important as as part of the new model, they can simply stack piles of papers there and allow them to be picked up by customers as they pass through the stations.

There’s a lot of law here, too; one of the most interesting ECJ decisions is about a newspaper distribution network (Bronner v Mediaprint, which I have cited on a number of occasions, though there’s a lot more work that could be done on that topic), and the London bins (which were first the subject of an exclusive agreement with Associated Newspapers, who ran and run the Metro paper in London) have been the subject of an OFT investigation between 2003 and 2006 (see here). Indeed, the resolution of the OFT involvement was to allow others to bid for the ‘afternoon’ slot. I’d rather see a range of newspapers available from the bins, especially as the bins are in many cases provided under the auspices of public bodies (Transport for London) or quasi-public bodies (Network Rail). I appreciate that the distribution deals are useful revenue-generators, but there are plenty of opportunities in railway stations to monetise the eyeballs (or insert your own favourite marketing prhase), and there may well be a way to raise useful revenue while also facilitating a range of newspapers. That is, if the free newspapers survive! The other dimension, of course, is that the Standard is no longer owned by the same company that owns the London version of Metro; if it was, we’d probably be back to square one. Associated Newspapers continue to publish London Lite (without access to the station facilities), so there are interesting times ahead.

Trust

The week in media started off with a bang, or perhaps a harumph, with a Radio 4 discussion (get it here) between the venerable chairs of the Media Standards Trust (David Bell) and the Press Complaints Commission (Christopher Meyer). Two Sirs, if you care about such things. A frank exchange of views, perhaps. The subject was the publication of the MST’s report, A More Accountable Press: Part 1. The Trust is a new charitable organisation: it’s funded by the likes of the Rowntree Trust, the MacArthur Foundation and various others, and has some logistical support from and overlap with Common Purpose (an organisation that is the subject of some amusing conspiracy theories) and this is its first big splash, though it has been involved in other projects since being founded a couple of years ago, like the wonderful Orwell Prize.

Reaction was swift online and in print too – here are some of the interesting comments I noticed, followed by some brief observations of my own (in square brackets after the comments, and also at the end of the post). Links are to the column or post in question.

Peter Wilby says that the report is ‘hard to disagree with’, but concludes:

The PCC is a muddle that needs sorting out. But I suspect it will always have to make it up as it goes along, operating pragmatically rather than following a rigid code. In the end, the only thing worth protecting the public against is a press that lacks diversity of outlook and lacks the courage to push boundaries and take risks.

Roy Greenslade is particularly interested in the PCC’s remit and structure, but wonders what’s going to happen to the report:

My initial reaction is that it will be pooh-poohed by the majority of the journalists – and by the PCC’s members and staff – because it fails to take account of history, whether it be the history of the press or the history of self-regulation. However, it does raise several questions that we should not ignore.

Charlie Beckett (LSE) is interested in the work that the Trust is doing, but critical of some elements of the report:

In the end I profoundly disagree with their general idea that more regulation and government intervention is the answer. ‘Better an imperfect press than a muzzled one’ is my knee-jerk reaction. Newspapers are already losing their grip on public discourse and their power over public life is waning. The Internet offers greater accountability and transparency through market forces and open communication. So why raise the spectre of old-fashioned control, censure and regulation through central government? Are there ANY examples anywhere in the world where that has not led to greater secrecy, corruption and lower standards of journalism? I find the MST stance confusing. Sir David is no advocate of government intervention. I have recently heard him defend the private sector free media as a business model and a way of upholding standards. Unless, of course, he means this to be true only in the case of the Financial Times.

[For what it’s worth, I don’t accept that the Internet’s market forces and open communication necessarily do better than the traditional press – and those two aspects of market and communications can certainly contradict each other. Beckett does make a very helpful suggestion that the next stage of the MST work should look at how ‘new technologies and new production processes can improve journalism as a whole’ rather than getting involved in a bunfight with the PCC (like this morning’s one, I guess!) – assuming the Trust can avoid the trap of technological determinism and the temptation to hug the Internet tight as the answer to all of our problems, this would be particularly interesting to see.]

Steven Glover wonders what’s going on:

So why produce this report now? Might the Media Standards Trust, founded in 2006, be looking around for a justification for its existence? The report cites a YouGov poll that suggests people’s trust in journalists has declined, but so it has, albeit to a lesser extent, in respect of every profession. I don’t get the sense that the man propping up the bar at the Dog and Duck is more vexed by the press than he used to be.

[I’m not entirely sold on the use of the YouGov poll – I’m not sure that it adds all that much to the report but it has dominated much of the reaction.]

Martin Moore, commenting on Charlie Beckett’s blog post, responds to this charge, saying that “we did speak to the PCC. To the Director, and to the Deputy Director. And we made a public call for them to conduct a review last summer – on which we said we were happy to collaborate. The call was ignored.” [While it’s interesting to see the response, I would not put too much emphasis on what contacts actually took place – in this context (analysis and agitation and veering towards the academic), direct engagement with the body under discussion is not required; from my ivory tower, I certainly don’t see such conversations as an essential aspect of any review of a body like the PCC, though sometimes it can add value to take this approach.]

And some parting shots:

  • I see a note towards the end that the Trust will look at other systems, including that of Ireland. That will indeed be interesting – a statutory Press Council was proposed some years ago, greeted with dismay by the industry, and the current solution is a co-regulatory Press Council, or at least will be once the legislation that recognises it, the Defamation Bill, ever gets through the Oireachtas (parliament) (Detailed coverage on the Bill from cearta.ie here)
  • A point on convergence is going to need much more detailed consideration – the PCC is currently dealing with videos on the websites of newspapers, and that area is going to start looking awfully crowded
  • I think the report missed a trick in concentrating, while reviewing transparency, effectiveness, etc. on the National Consumer Council ‘guidelines’ for self-regulation – there are questions that can be asked about the legal status of the Press Complaints Commission that would have added to the analysis under this heading. That would probably be of interest to me and about seven others, but it’s still an important point. I might well make that point in the consultation for Part 2
  • In his piece, Roy Greenslade mentions the impact of the European Convention on Human Rights. It’s interesting to see the comments of Jack Straw last week, suggesting that the whole question of privacy and the media was being kept under review. This was in part a response to the suggestions from Paul Dacre last year (cited on a number of occasions in the report, and contained in his speech here) that the judge-made law (or the Eady-made law) on this matter was undemocratic and illegitimate.

More reports from the Financial Times and Guardian Media.