Big enough, ugly enough (Photo credit: Wikipedia)

If we discount the outriders of the press regulation debate – those who believe everything is fine and no regulation is needed; those who want tabloid editors subjected to tortures that would make Torquemada blanch – a polarity emerges. Most people believe the phone hacking scandal and revelations in and around Leveson prove things have gone wrong and that some regulatory remedy is needed. Where they then divide is on whether regulation should be statutory. Those who oppose statutory regulation equate it with state and political control. Those who support it point to the producer capture of voluntary schemes.

These perspectives are misleading. It is possible to devise a statutory regulator that is independent of ministers and minimally invasive towards regulated entities. It is entirely possible to devise a voluntary system so onerous that, notwithstanding incentives for participation, numerous bodies refuse to participate. The debate is a red herring. Far more important is determining what a new body should regulate, how it should regulate, and what powers and sanctions it would deploy.

To address the what question, let’s examine headline concerns about press conduct.

First: hacking, corruption, and excessive power/political access.

None of these should concern any new regulator. Phone hacking is a criminal offence and should be a matter for the criminal justice system, notwithstanding police incompetence hitherto. So are allegations of suborning public officials. And power is a function of market share. This should be addressed by the imposition of cross-media ownership limits, enforced by competition authorities.

Second: journalistic standards and the rights of individuals and organisations to fair coverage.

A regulator self-evidently must regulate against some standard – laws, rules, or a codified set of principles. To be at once consistent with a free society and effective, the standard must not be tyrannous, unreasonable and it must be enforceable.

I don’t like boxing. I hate aggressive dogs. And I don’t like tabloid newspapers. But I am wary of advocating regulation against things because I don’t like them. Some recent well intentioned attempts to delineate journalistic standards smack of regulating for the press their deviser likes and against the one they don’t like. But you can’t regulate for taste.

So let’s be clear. Regulating to commit journalists to uphold the slippery philosophical concept of “truth” is difficult. Partisanship and tendentiousness, however blinkered and unfair, should be entirely off regulatory limits. So, as concepts in their own right, should scurrility, mean spiritedness, vulgarity, saltiness, bad writing, sloppiness, prurience, double standards, inconsistency or stupidity. Without these vital ingredients, today’s tabloid press would be impossible. But some of these are also essential ingredients in humour, parody, satire, and lively political debate. However superficially welcome attacks on shoddy journalism might be, we should be wary of codes that would make it hard for Private Eye to function. Standards of this sort might more properly addressed as a question of culture. Better training for journalists and examination of the strategies media outlets deploy in their use and abuse of language in school English or Citizenship classes would be more effective long-term strategies for tackling these issues of information integrity and quality.

Another issue bound up with culture and education is the appetite for and coverage of celebrity gossip. Early on Leveson was dominated by celebrity evidence. Submissions about harassment, bribes, data theft and so forth were instructive and should be matters for criminal investigation. The concern one or two celebs showed to protect their personal lives and reputations were perhaps less edifying. It would be wrong in my view for Leveson to elaborate a new privacy principle to be enforced by a regulator. For those who can afford to issue proceedings, the balance the courts already have to strike between human rights and public interest seems to me to obviate the need to create a new and potentially dangerous demarcation, which benefits randy old men but possibly hinders Woodwards and Bernsteins. Secondly, as the Ryan Giggs case shows, the privacy horse has bolted. Even if we wished to suppress legally obtained information about an affair, for example, the issue is all over Twitter before you can say “hashtag”. Thirdly, in respect of reputations, the libel laws in this country are already some of the most stringent in the world.

So. Have I ruled everything out of scope for a new regulator?

Far from it.

Consider the following fictitious headlines:

• Eric Pickles is a Fat Bastard Say 62% of Readers
• Labour Party Position on Media Regulation “Cretinous”
• McDonald’s Greed “Bordering on Evil”

Now consider an unflattering tabloid photo spread obtained by doorstepping Katie Price.

My view is that, as the saying goes, these people and organisations are big and ugly enough to look after themselves. The Pickles headline is unfortunate, but the target is robust, amply demonstrated by his standing and power. Political parties must withstand partisan attacks. However it may pain McDonalds, some people do regard it as evil. And Katie Price’s livelihood depends on symbiosis with the media.

Now for each of the four examples substitute in sequence: the name of an obscure private citizen, a small charity, a corner shop, and a single mother on a council estate.

The power dynamics are utterly changed. We are no longer in the rarefied world of celebrity annoyances. Rather we are reminded of Christopher Jeffries and countless private citizens whose reputations have been besmirched on flimsy suppositions, in pursuit of sensational headlines. Perusal of tabloids’ outer pages unveils the lives of the Beckhams. The inner pages are full of private individuals presented in grotesque light, sometimes with justification, sometimes to the pointless destruction of lives.

I advised against regulating scurrility, sloppy writing, bad journalism per se. That is because these things can exist without doing significant injury. But harm and the vulnerability of citizens should in my view concern a regulator. Then the quality of the journalism – its public interest defensibility, accuracy etc – becomes material to assessing whether someone has been needlessly hurt.

Vulnerable citizens harmed in this way, traduced short of libel or unable to afford to go to court, currently lack support and advocacy. The new regulator should be theirs.

To avoid producer capture and the unpredictable dynamics of voluntarism, in my view the body should be statutory. This is absolutely not synonymous with state control. Many statutory regulators are independent of ministers, sometimes frustrating and annoying them. But address the regulatory gap I’ve identified and nothing else, and to guarantee wider press freedom, the new body must be narrowly focused, must not licence, routinely inspect, define business models, or elaborate prohibitive rules, such as a “backdoor” privacy law. Many regulators do not licence, and instead enjoy a sort of “presumed competence” in markets where they oversee certain features but to which they do not control entry. Not all regulators inspect or continually create binding rules. So the model has precedents. Furthermore, the regulator should principally be reactive, investigating complaints.

My theoretical model resembles a body like the quasi-regulators such as various Ombudsmen. Funded by government, they are not subject to political control. Indeed, the Local Government Ombudsman regularly finds against politicians and administrations of all political shades. They do not inspect, but respond to complaints.

A publicly funded Press Ombudsman could develop and promulgate a narrow but important principle: that the press has a responsibility not to destroy the lives of private individuals in the pursuit of profit on the basis of mere supposition, innuendo, and with wanton disregard for a meaningful public interest. It would then receive complaints.

Established by statute, it could be subject to guaranteed long-term funding and non-departmental (ie not overseen by a minister). Senior officials could be Crown appointments, but not selected by the Prime Minister, chosen instead by an independent recruitment panel drawn from a range of stakeholders, including the public. And the Ombudsman could avoid becoming a rich celebrity’s privacy shield by concerning itself with the comparative “vulnerability” of claimants. From time to time this would of course include the dependents or associates of celebrities, who, as the case of Charlotte Church’s mother shows, can be subject to terrible harassment, and even celebrities themselves. But by having regard to a person’s circumstances, means and whether the person’s standing and power are factors in the coverage – Eric Pickles rotundity as a matter of partisan abuse or satire, versus the standing of a DLA claimant with elephantiasis – the Ombudsman would focus principally on the vulnerable.

And the penalties it might impose. Restorative justice might work for some cases. Being required to print full front page apologies to individuals could cause editors to interest themselves in the factuality of their coverage. But the public will want real teeth. So the Ombudsman should be able to impose fines, some very steep, perhaps to be paid in whole or part to the injured parties.

Regulators support cultural change when they are narrowly bounded, but powerful within their range. A Press Ombudsman would be mostly silent. But it would carry a big stick. I think this is a remedy likely to have more lasting impact than either imposing onerous and prescriptive codes, statutory or otherwise, or doing nothing.

One of the inherent paradoxes that must be addressed if future press regulation is to be effective is that any regulator needs to have the ability to impose sanctions. The problem is that any voluntary regulator able to impose strong sanctions will not attract willing members. We’ve already seen how proprietors such as Richard Desmond of Express Newspapers can simply decide not to take part if they don’t like the look of a voluntary body.

We have also already seen how sections of the media have become feral, ignoring not just the PCC’s Code of Conduct but also the law. It goes without saying that journalists and news organisations that break the law should be thoroughly investigated by the police, although public trust in this process has been shattered by revelations from the Leveson Inquiry. Regardless, illegal acts are the purview of the authorities, not a regulator.

Yet that leaves a huge swathes of behaviours that are legal but unethical which must be addressed. Invasions of privacy, whether they target celebrities or members of the public who simply have the misfortune to become objects of press interest. Untruths, lies and misrepresentations. Factual inaccuracies. Obtaining information through deceit. Doorstepping. Intimidation.

These range from the minor to the major, but none should be ignored for even what seems like a minor infraction, such as a factual inaccuracy, can have severe consequences. In the case of vaccination reporting, for example, misrepresentation of the facts has led to parents deciding not to vaccinate their children, which has resulted in outbreaks of measles, a disease that can have very serious consequences.

So when we come to sanctions, it’s clear that we need the full range, from apologies and retractions up to fines. But we also need to make sure that the sanctions have the desired effect, that they change behaviour. Fining a newspaper, for example, may punish that newspaper but it may not have a direct impact on the journalist whose shoddy work crossed the line and who may feel free to transgress again and again. This is especially problematic when news organisations calculate that fines are simply a cost of doing business and that the revenue they get from the results of misbehaviour is worth the censure.

Imposing sanctions directly on journalists, however, comes with its own problems. Accreditation of individual journalists is incompatible with a free and open press, particularly as the definition of ‘journalist’ expands to include citizen journalists, bloggers and experts. The threat of revocation of accreditation as a sanction is unworkable, yet it would be difficult to fine individual journalists without accreditation. However, some sort of sanction needs to be applied to individuals who transgress to prevent them from being shielded from responsibility by their employers.

Sanction design also has to take into account the sorry fact that some journalists are working in a toxic environment where they have a choice of either treading unethical lines, or getting fired. And in the current employment climate for journalists, both in terms of the massive job losses across the industry and the culture of bullying prevalent in so many newsrooms, it is unsurprising that some journalists find themselves feel powerless to protest when they are asked to do unethical things.

With this in mind, there needs to be a significant increase in protection for whistleblowers in the media and complaints from journalists about their employers need to be taken seriously. News organisations that abuse their staff must be brought to book, particularly because it is the most vulnerable who take the blame for failures at a managerial or proprietorial level.

Escalation is another key issue. Cases should not be dealt with individually but as part of a wider view of the news organisation involved. The idea that each infraction is unrelated to previous infractions is naïve and organisations that constantly transgress should find that sanctions increase in severity as the transgressions tot up. Looking at how news organisations behave by tracking cases gives a sense of context and helps to identify those with systemic problems.

One key way to change behaviour would be to make such information public, to create a public database of every complaint, whether is was upheld, what sanctions were applied, e.g. whether an apology was required or fine imposed, and what the outcome of that was. Any such database should list the news organisation and journalist involved, the nature of the allegation, and details of managers involved. It should include everything from error correction on up. And not only should it provide easily digestible statistics showing the public how each publication performs, it should also have an API to allow media ethics campaigners to use the data.

Fines, of course, have an important place in any schedule of sanctions, but for them to be effective they need to be able to be imposed on any organisation that transgresses, regardless of whether they want to be part of a voluntary regulator or not. Obviously, a voluntary organisation that threatened to levy fines big enough to truly punish a news organisation would also find it difficult to recruit members, especially if it was serious about tackling the unethical behaviours endemic in the media. That means some form of statutory regulator with the power to impose sanctions on any news organisation and the ability to take the requisite legal action against those that choose to ignore the regulations.

We have, as a society, tried self-regulation and it has comprehensively failed. If we care about how the public perceives the media then we must look seriously at statutory regulation. Statutory regulation of the press doesn’t mean government interference and censorship by default — we already have statutory regulation of the broadcast industry and yet the BBC is held up as one of the most reputable news sources in the world. Statutory regulation has not damaged its reputation nor resulted in censorship.

It is not only possible, it is desirable to have a regulator capable of going head-to-head with the very worst members of the media. It is abundantly clear that a voluntary organisation simply doesn’t have the capacity to clean up the media. Our only choice is a statutory body with fangs: A regulator with no bite is no regulator at all.

Not available in any pharmacy. Image: Getty

As part of our media regulation project, we’ll be publishing a series of draft articles on media issues over the next couple of weeks, in advance of a discussion event on media regulation and democracy in April. If you want to come along, get in touch.

The first article is by Miles Taylor, the organiser of Lancaster Skeptics, medical technology developer and occasional blogger at pixie359.com.

I am going to write about the representation of healthcare and the science that underpins it in the media, the potentially dangerous effects this can have, and highlight some of the key discussion points around regulation. There are a number of passionate journalists who are very quick to pick up on particular misleading health stories – with amateur and professional ‘skeptics’ leading the way – much better than I could, so I will stick to the systemic issues, borrowing illustrative examples. What I hope to do is demonstrate that there is a case for change to the regulation of health reporting.

As I see it, health reporting suffers from a number of key issues. Stories tend to be simplified and sensationalised, use advertorials unchallenged and are vulnerable to political agenda. At the heart of healthcare reporting there are a set of crucial, perhaps irresolvable, central conflicts which I will try to draw out.

Mainstream media outlets have minimal direct motivation to report healthcare science stories well. The primary motivation for a media organisation is to drive revenue, and healthcare reporting is a tool by which to do that. Whatever the chosen market, this tends toward creating an internal culture that values output over quality and accuracy, often to a particular template. This actively prevents even the best intentioned journalists being more thorough than the minimum required to meet the standard for their organisation.

The reality of the science that informs and underpins healthcare, and the sort of story that best sells papers, drives clicks or otherwise gets the public attention, are wildly different.

On one hand, medical science progresses by small steps, with each new result acting as just another data point in an array that should be considered as a whole. Single facts, experiments or case studies that radically alter the way we view healthcare are rare at best. The key advances in any science are complex, and there is a necessary technical language built around any given area.

On the other hand, magazines write stories weekly, newspapers create new headlines every day, and websites can’t stand still for an hour. This leads to a tendency to inflate the claims of healthcare stories in the search for something new to grab attention, to distinguish the information in this particular story from the general background understanding. Additionaly, the language and concepts must be simplified to fit the audience.

However, we often see the essence of a story damaged in this simplification process. Nuance is lost around the causality of relationships, the confidence in conclusions and the distinction between relative and absolute risks. One example of both oversimplification and sensationalism, explained by Ben Goldacre, is the use of red wine to prevent breast cancer. Red wine contains resveratrol, a chemical that could indirectly reduce damage to DNA, and therefore cancers. But this is an isolated reaction between two chemicals in a lab, ignoring the complexities of the human body and the wine. The other ingredients in red wine, particularly alcohol, cause cancer. The evidence Ben cites suggest that red wine is known to cause cancer, yet because of oversimplification, people are encouraged to drink it as a cancer preventative. It is worth noting that while Ben was writing in 2008, a quick search shows equivalent ‘red wine prevents cancer’ stories still run regularly, and I am not aware of a dramatic change in the evidence base.

Due largely to the sort of output pressures described above, there is also a tendency for journalists and media sources to accept stories at face value. A well written press release by an organisation with an interest in promoting a particular idea will very quickly do the rounds at all the major news outlets, not just unchallenged, but largely unchanged. This process of converting a press release into a story without challenge relieves the pressure on a journalist, as they have effectively outsourced their job. It also means that the public is subjected to advertorial masquerading as editorial, no journalistic investigation applied to the representation the company would like you to see.

Particularly in the special case of publicly funded media, although not exclusively, there is the additional problem of false balance, whereby all views are given equal time and space to be expressed. This is done in the name of fairness, although it presents a false picture, as if the homeopath and the GP view on treatment of particular conditions are of equal value. It feels to me like this is changing, following the recent ‘BBC Trust – Review of impartiality and accuracy of the BBCs coverage of science‘ recommendations, although I would need to see a further study to see how well this has been enacted.

Finally, there is the potential for an agenda to intrude. Here there is a risk that editorial positions can be imposed on ostensibly science reporting in such a way as to mislead. A moral position can lead to particular views on, for example, birth control, and so affect the reporting of sexual health stories. A prior view on the effectiveness and appropriateness of the free market, for example, can lead to misrepresentation of healthcare outcomes under different healthcare delivery systems.

These factors, and more, mean that the healthcare reporting we see in mainstream media is regularly inaccurate. We hope that the inaccuracies are trivial and understandable, in that a process is simplified without loss of meaning. More commonly, there is exaggeration and sensationalism such that the media representation is potentially dangerous. Much has been written on the persistent misleading reporting in the Wakefield and MMR case, largely uncovered by Brian Deer, and there have been outbreaks of measles in recent years, likely as a result. There is also an ongoing controversy around the clinic of Dr. Burzynski in the USA, where unevidenced claims were supported in the national press, prompting charitable donations for children to be sent at great expense to America for treatment that has not been shown to work.

It is important to note that these sorts of reporting problems are found in all mainstream media channels I am acquainted with. There is a tendency to mock the onoing ‘ontological oncological’ project of the Daily Mail, to divide every item into something that causes cancer, cures cancer, or both. The Daily Mail is indeed a regular for poor health science reporting, but is by no means alone – above Ben Goldacre is talking about an article in The Telegraph, and The Observer was involved in the Burzynski controversy. Basically every media outlet was guilty of dangerous misinformation during the MMR crisis. Every mainstream media outlet suffers these problems to a degree.

We have identified some of the main concerns in health reporting, and it is clear that each of these can lead to harm to the public. However, little has been done to rectify these innacurate stories, and those those dangerous reports go largely unchecked. The PCC as it has been is an inappropriate body to take on this role for a number of reasons that become clear when we think of what a regulator should look like.

The key discussion should be around which of these interests we should expect a regulatory system to serve, and how we would expect those to be served. The interests of the public are in having media coverage that is accurate, accessible, complete and relevant. It is through this sort of coverage that people decide to make the best evidence based lifestyle and healthcare decisions.

Given these aims I think a few of the key considerations for the formation of a regulatory body should be:

• Degree of empowerment to impose sanctions that decrease likelihood of inappropriate activity, including financial penalties
• Degree of empowerment to impose sanctions that rectify damage – corrections and clarifications in at least as obvious a manner as the original misguiding information
• Independance from the media sector to reduce conflict of interests
• Transparency in and public accountability for decision making
• Magnitude and impact of misrepresentation required for action
• Simplicity of and mechanism for reporting (perhaps a browser plugin that reports abuses like Fishbarrel does to the ASA)

I don’t pretend to have the answers to the above, but with due consideration, I think a body could be designed that is considerably more effective at protecting the public from harm and promoting quality healthcare science reporting than the current PCC. If this isn’t done, people will continue to be harmed by poor health reporting.