There’s a consensus across all parts of the debate that the press regulator should be independent. The PCC has been claiming it is independent for years. David Cameron wants it to become independent. But of who? It has to derive its legitimacy from somewhere.

Clearly the PCC is currently insufficiently independent of the press. But a political regulator, directly accountable to the Secretary of State would represent a significant threat to the legitimacy of politics and the media. A regulator could be accountable to parliament (rather than a government minister) but the distinction would be less clear in the public mindset – and the government’s control over parliament makes the distinction subtle in practice.

A press regulator could be semi-independent, through a system of co-regulation. A piece of legislation would set out what a regulator would need to look like (in terms of powers, accountability, transparency) and then an arms-length organisation such as Ofcom or the OFT would consider applications from bodies that sought to do that. In the event of disputes, the oversight regulator would have ultimate authority.

2. Limited funding possibilities

There are only two sources of funding: contributions from the industry (either through a voluntary arrangement as now or a tax) or a subsidy from general taxation either determined by the Treasury or by parliament. Neither guarantees independence nor a funding process that is immune from political priorities.

3. Legitimacy

A regulator without legitimacy will have a short shelf-life, no matter how enforceable its demands. When the press doesn’t like a restriction (such as libel laws) it is usually pretty effective at campaigning against them. Only yesterday Paul Dacre was in parliament arguing for greater press freedom. A regulator’s most effective work is not performed after the event but in beforehand, in changing the culture of the industry. Journalists (or any other profession) give short shrift to training sessions from people who don’t understand the job. The alternative is that on most days of the year a regulator that is liked by government is likely to lack public legitimacy.

4. Transparency

There is a reason why tricky issues of regulation do not capture the public imagination: they aren’t particularly relevant. Self-regulation of banks was deemed a failure so a statutory regulator was established. The banks crashed and the statutory regulation was held at fault. The police are regulated by an independent regulatory body and also face criticism over their role in phone hacking.

The real challenge facing the behaviour of the press is the complete disinterest of the media in reporting on the behaviour of particular newspapers (current events notwithstanding). Key parts of the phonehacking scandal have gone unreported in all but one newspaper – the Guardian. The Press Complaints Commission constantly complains that it has too low a press profile. Apologies for frontpage errors are more likely to be placed on page two rather than the better-read page 3 (or frontpage).

Unless the current scandal results in a complete turnaround in the way that the press reports itself, regulatory reform is likely to have limited impact.

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Mr Dacre doesn’t believe that editors should have a public profile. He has previously made clear to the media select committee that he believes readers do not want to read about their editors. Regardless of whether that’s true, it’s a reasonable position to take.

However, Paul Dacre is not just the editor of the Mail. He is a defender of press freedom, or as he would rather describe it: the public’s right to know. Dacre has devoted hours of his working life, free of charge, to developing, supporting and defending the system of self-regulation in the UK. He sees it as a defence against government intervention. When suggestions have been made in the past of government having a role in press regulation, defenders of the status quo have muttered darkly about totalitarianism or a Mugabe-style press.

Over the last few weeks that system of press self-regulation has come under repeated and sustained attack from politicians and others in the media. The Press Complaints Commission has defended itself but Paul Dacre has not made a public utterance. He has neither renewed his condemnation of phone hacking, reminded people that it is a breach of the editors’ code of practice nor attacked those who are calling for the abolition of self-regulation.

Dacre’s silence is surprising given his track-record. As recently as January he used a foreword to the revised editors’ code to call for “greater vigilance than ever” against “an authoritarian government” and criticised parliamentary select committees’ “seemingly ceaseless inquiries”. One such inquiry on hacking takes evidence again this morning. Yet these threats appear absent from the pages of the Daily Mail and the pen of Paul Dacre.

His silence is unhelpful for those wanting to defend the current system of press self-regulation. Mr Dacre has held more senior roles in the bodies that support self-regulation than anyone else. He chairs the body that writes the code. He tells parliament that editors shudder at the thought of criticism from his peers. Yet his criticism or defence are not forthcoming.

It is out of character for a newspaper as pugnacious as the Daily Mail and an editor with such a profound belief in press self-regulation to not come to its defence at the moment when it is most under threat. The threat-level in January to press freedom may have been moderate at best. But for the odd ‘super-injunction’ there was no mention of a government role in press self-regulation from anyone with a chance of bringing it about. In the last week the prime minister and leader of the opposition have united in their calls for the PCC.

Why won’t Paul Dacre speak out to defend press self-regulation? The public has a right to know.

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He believes that newspapers “have weakened self-regulation by under-resourcing it”. Like the select committee and Nick Davies, Whittam Smith is critical of the lack of involvement of ordinary journalists in the Press Complaints Commission. Mr Whittam Smith also believes that the PCC’s remedy is not used correctly. He takes aim at the prominence of adjudications:

“To make an editor print an apology in exactly the same position and with exactly the same weight as the offending article would, I know from how I used to feel when the subject came up, cause almost unbearable anguish. The humiliation of it!”

But Whittam Smith is misleading on some aspects of reform of press self-regulation. He opposes fines, which is a reasonable position, but marshalls misleading language for his argument. Whittam Smith writes that “with money at risk, newspapers would want to be represented by lawyers at hearings”. This is undoubtedly true but obscures the fact newspaper’s legal teams already deal with the PCC.

Whittam Smith believes that fines would be unfair because some newspapers are wealthy and some are less so. But if you don’t pay for a TV licence the fine is not altered according to your personal wealth. The Media Standards Trust argues for a different principle: that the fine should be different according to the seriousness of the offence, rather than the wealth of the offender.

He also argues that fines would require statutory regulation because some newspapers would refuse to pay. That’s not the case. As the Media Standards Trust’s submission to the PCC’s governance review made clear, there are other bodies which fine their members without statutory backing. The newspaper would be bound by the terms of the contract of membership to pay the fine. If they refuse, they have breached that contract. They would always be free, though, to leave the PCC. But that’s the essence of self-regulation.

Andreas Whittam Smith is wrong on two fundamental issues. Firstly, he sees the principle of self-regulation as analgous to a City private members club, where the incentive is that one is reluctant to be dismissed. That hasn’t worked for the City and that’s not sufficient incentive for the modern newspaper industry that’s competing for readers globally and is facing economic pressures from amateur journalism. Self-regulation must become a badge of honour, a competitive edge; a set of standards which gives readers (the customer) something to know that they can value what they read.

Secondly, he writes of the relationship of a newspaper with its readers as follows:

“Newspaper editors don’t have a lot of time for what lay people may think of their methods”

If he is right, perhaps Mr Whittam Smith has highlighted why newspaper readership has collapsed and newspaper groups aren’t confident that if they charged for their work anyone would pay. Perhaps newspapers need to be run by people who care more about their customers, what their customers think of their product and can make a persuasive case for claiming special privileges for their work.

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However, the PCC now faces a huge challenge to rebuild public confidence in a judgement that is likely to be unpopular and misunderstood. It’s not the PCC’s fault that it received more complaints about that article than it had received over the previous five years. But many of those who complained will be dissatisfied by the process. And this case does pose challenges for the PCC to address, partly through its governance review.

The Editors Code itself needs further thought. That newspapers are free to offend should be beyond doubt. But the code allows discrimination against groups rather than individuals. This is out of step with the law, the definition of racism post-Macpherson, and societal norms. It’s also a bit silly. The code’s distinction is equivalent to allowing me to write ‘all newspaper editors are liars’, or ‘all Daily Mail journalists are homophobic’ as long as I don’t single out individual journalists.

The process by which the code can be amended has been opened up in recent years but still lacks transparency, independence and accountability. By enabling the public in to the process, the code committee recognises the importance of the code in instilling public confidence in the standards of journalism – surely a vital part of any economic recovery for the sector. But no member of the public can sit on the committee, the consultation takes place in secret and the rationale for revisions is not made clear. Until last week, the PCC still distributed the press releases for this apparently independent body.

The PCC’s lack of clarity on who is an eligible complainant meant – in this case – that it required a complaint from the grieving Andrew Cowles – for the investigation to proceed. Otherwise the complaints of 25,000 others may have been rejected. One can only imagine how the Daily Mail would have reacted if complaints by its readers about Celebrity Big Brother had been rejected because they weren’t Shilpa Shetty.

The PCC’s decision-making processes also require reform. It’s odd that we don’t know which members of the commission were present to consider the Jan Moir complaint. We’re told that despite being a member of the commission, the Mail on Sunday editor wasn’t involved in the decision. The PCC said:

“This is in line with the PCC’s normal procedures when a title edited by a Commission member is subject to a PCC complaint.”

For the avoidance of doubt, the editor of the Mail on Sunday is not the editor of the Daily Mail. Should we therefore conclude that the PCC’s normal procedures mean that the editor of the News of the World is not involved in complaints against the Sun? And with no formal minutes published, how could we find out?

With a commission that meets in secret we don’t even know when the decision was made, let alone what case was made in the prosecution or defence. The PCC argues that one of it’s benefits is that it avoids the costs of lawyers. But we may never know if Andrew Cowle’s complaint (made through a team of solicitors) was challenged by the Daily Mail’s lawyers.

We don’t know how much the Daily Mail pays for the PCC (the funding is passed through intermediaries) or whether the PCC has sufficient resource to run a system which attracts this volume of public concern.

Baroness Buscombe was brave – and right – to come out and defend the decision in other media. And hearing her defence may go some way to instilling confidence in the judgement. But I was concerned by her argument that the context of the piece was important, particularly that it had appeared in page 37. It did, of course, but there was also a banner on the frontpage drawing attention to the article. So what if the case had gone the other way? Would a ruling four months after the event have made an impact? Would an apology on page 37 – or in Moir’s column – been enough?

The PCC’s governance review – although tightly defined – is the opportunity to address these issues. Unfortunately, the submissions it has received are still awaiting publication. If this opportunity for reform is missed, confidence in self-regulation of the press will be diminished.

Related posts:

1. Why Jan Moir’s apology shouldn’t be ‘case closed’
2. Why Jan Moir and the Daily Mail will escape disciplinary action
3. Paul Dacre must speak out over phone hacking

The child’s parents, and members of the local community provided evidence undermining some of the claims in the article – particularly that he had been expelled from a number of schools (he had not).

The PCC ruled against the newspaper on for a breach of the code on accuracy (clause one) and children (clause six).

However, the ruling was not straightforward. On the basis of the evidence available, I believe that the Scottish News of the World was unfairly censured and should have the right of appeal. Here’s why.

The PCC’s adjudication is only 127 words long – less than half the average length of recent adjudications. That means it’s difficult to identify all of the different factors in its decision. However, from the information that is available, the PCC’s adjudication appears to be inconsistent with previous cases.

The ruling against the accuracy of the boy’s truancy appears to be justified. The boy’s parents provided clear evidence to refute the claim and the newspaper did not. However, the ruling against the claims of anti social behaviour is less clear cut. Whilst the parents galvanised the support of 100 local people, the newspaper had a diary of his behaviour from local residents, letters from local politicians as well as three interventions from the police that summer. The PCC is not there to determine whether the newspaper was correct – just whether it had made reasonable efforts to ensure the accuracy of the article. On that basis, the Scottish News of the World appears to not have broken the code and its earlier offer of a right to reply would normally have been enough for the PCC – as it was in Peaches Geldof v Daily Star.

The second part of the PCC’s ruling deals with the fact that the case concerns a child. It is on this part of the code where the PCC’s ruling appears to be inconsistent with previous cases. Newspapers are allowed to report issues concerning children if there is a public interest in “exposing crime or serious impropriety”. In the case of Brian Souter and son v Scottish Sun the PCC rejected the complaint because criminal behaviour (the son stealing his father’s car) was not part of the child’s private life.

The Scottish News of the World further justified its coverage on the basis that it “had not named the child and taken care to obscure his identity”. Based on previous cases, this should have been enough to comply with the code. In A man v Northwich Guardian the PCC rejected the complaint on the basis that clause six was not intended to place “a blanket ban on publishing (childrens’) photographs or stories about them without their consent”. In two further cases the PCC rejected complaints because the newspaper did not publish information which was further detrimental to the child’s welfare (Carolyn Cunningham and Paul John Ferris v Daily Record) and because there was already information in the public domain (Ian Cooper v Cambridge News). The identity of the boy was clearly known by the 100 local residents who supported the complaint against the Scottish News of the World, so it is hard to understand how the newspaper revealed additional information (and the article is no longer available online).

That the case also took 15 months for the PCC to determine the outcome demonstrates that it was not straightforward. The PCC say that the average case is adjudicated within 35 days. It does not generally accept complaints that are made more than two months after publication of the article. The Scottish News of the World article appeared on 10 August 2008 and the adjudication appeared on 23 November 2009. So at the very least, this case took 400 days to assess.

This adjudication against the Scottish News of the World appears to be a threat to freedom of expression. If a newspaper cannot report a neighbour’s reports of anti social behaviour of a child (even if they pixellate the child’s face and try to obscure the identity) then many issues will go un-reported until they reach court. And one of the reasons for the introduction of anti social behaviour orders was the difficulty of bringing such issues to court.

The case may be more complicated than the adjudication reveals. It does make a passing reference to “the child’s medical condition”. But from the available information, the ruling is both at odds with the PCC’s previous decisions and a threat to the freedom of expression and the public’s right to know.

Related posts:

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2. Andreas Whittam Smith: right and wrong on press self-regulation reform
3. Why reform of press self-regulation is harder than it looks