Comment | Media reform: the NUJ is calling for a statutory backstop not regulation

Donnacha DeLong, president of the National Union of Journalists, argues that those over-reacting to the NUJ's proposals to the Leveson Inquiry have got it wrong.

Arts & Culture, New in Ceasefire - Posted on Wednesday, July 11, 2012 15:07 - 9 Comments

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Lord Justice Leveson

Put the dummy back in, the NUJ is not calling for statutory regulation of the media. At least, not if you’re immediately imagining Robert Mugabe-style control and censorship. As Michelle Stanistreet made very clear at the Leveson Inquiry on Tuesday, there’s more to regulation than the ethics-free mess that was the failed regulation of the bosses by the bosses, the PCC, and despotic control of the media as in Zimbabwe.

What the NUJ is calling for is a statutory backstop – a mechanism that would make regulation mandatory for publications beyond a certain size. The reason for this is simple; as Richard Desmond and his papers proved last year when they stopped paying their fees to the PCC and were allowed to leave the system of “self-regulation”. Any voluntary system, even the contract version proposed by Lord Hunt, runs the risk of rogue proprietors deciding it’s not for them and simply opting out.

Any system of real punishment for breaking the rules needs statutory back-up – whether it’s fines or penalisation in the tax system (for example, losing tax exemption). Virtually everyone agrees that the lack of ethics displayed in much of the mainstream media shows that a robust system of punishment is necessary, but, to little surprise, the proprietors of those same ethics-free newspapers don’t want to go so far as to commit to a system that would truly cement that robustness.

Don’t forget, ethics do not begin and end with phone hacking. In fact, phone hacking isn’t even an ethical issue – it’s a legal matter. No, ethics goes deeper than simply law breaking – it’s about the media as a source of accurate information that’s fair and balanced. Any group that’s been the target of nasty tirades in the Mail or Express – asylum seekers, travellers, benefit claimants or the disabled to name but a few – will know full well how accuracy, fairness and balance hardly typifies the treatment they received.

A statutory backstop enabling truly independent regulation is what they NUJ is calling for – a body made up of the proprietors and editors, like the PCC, but also comprising working journalists and civil society.

In fact, the NUJ is arguing that civil society representatives should have the majority on any new regulatory body to prevent proprietors and editors sticking together as they did in the PCC. It’s not exactly a new idea, in fact, it’s the system currently in place in Ireland with the Irish Press Council and the NUJ plays an active part. The interesting thing about the Irish system is that it covers British-owned newspapers like the Irish Daily Mail and the Irish Sun and their editors play their part in it.

Furthermore, if people had bothered to listen to the whole of Michelle Stanistreet and Chris Frost’s contribution to the Leveson Inquiry, this is not all the NUJ wants. We want to see the insertion of a conscience clause into journalists’ contracts to allow them to refuse unethical editorial instructions –  a suggestion even Rupert Murdoch accepts.

Probably most essential to make sure the whole system can work in the future is the return of collective bargaining rights in the media. As we’ve been arguing since before the Leveson Inquiry started, the lack of trade union rights in News International, where we’ve been locked out for more than 25 years, was a major contributor to the decline in ethical standards in the company’s newspapers.

The unfortunate reality is that, in the modern world, we face a choice between levels of state intervention through regulation and rapacious profiteering by multinational corporations. Everyone now sees what a lack of robust regulation did with the banks – no-one can credibly argue (if they ever could) that we could trust the people in charge of our money to regulate themselves.

Yet we have people with their heads in the sand pretending that it’s possible to have workable self-regulation when dealing with the likes of Murdoch and Desmond. History has proven time and time again that it doesn’t work – when given the choice, they’ll keep it under their control and use it in their own interest. And, if they can’t, they’ll walk away.

Equally important is to guard against undue state interference – like that represented by the recent Dale Farm production orders case. The reality is that, if we don’t get things right this time, there’ll be no credible argument against increased statutory regulation if things go badly wrong again in the future.

The idea of a statutory backstop proposed by the NUJ is one that keeps state intervention at a bare minimum and presents the opportunity to create truly independent regulation of the media – independent of the state and the proprietors. This balance between statute and press freedom is one that should make the mainstream media more responsible and, hopefully, more ethical.

Sometimes regulation can conversely make things more free – when Thatcher began deregulating the media in the 1980s, a process continued under Major and Blair – we didn’t see an explosion of diversity and pluralism in the media. On the contrary, we’ve seen nearly 30 years of contraction of pluralism with a handful of media companies controlling more and more of the media in the UK and Ireland.

The regulations that restricted ownership protected diversity, deregulation allowed the Murdochs of the world to buy up more and more of the media landscape. This needs to be reversed and the NUJ’s proposals to Leveson are our recommendations to start the process.

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Donnacha DeLong

Donnacha DeLong is an online journalist, Twitter reporter, online consultant and argumentative anarchist. He is a former President of the National Union of Journalists. All views expressed are his own unless otherwise stated.

9 Comments

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Chris Wheal
Jul 11, 2012 16:49

It’s a funny old world when anarchists start calling for statutes, fines, punishments and punitive taxation. I thought anarchists opposed all those things.

The NUJ leadership has got this policy so wrong it defies belief. I say the NUJ leadership because, as far as I can tell, this is not NUJ policy – not a policy decided by the union’s sovereign policy-making body, its Delegate Meeting.

Donnacha would have us believe that it is policy because the NEC can decide policy if none exist, which is true. But the NEC cannot overturn years of repeated policy decisions when a clear policy does exist.

Looking at motions passed at delegate meetings on the NUJ website I can find that ADM in 2005 did vote to allow the NUJ in Ireland to take part on the new process there (referred to by Donnacha) but that was because the law was already coming in. The NUJ did not call for the legislation. The motion also said: “On the basis of experience gained from NUJ involvement in the Irish Press Council, ADM further instructs the NEC to review the NUJ’s approach to press regulation in Britain and to present next year’s ADM with the results of this review.”

As far as I can see there was no further change to the NUJ’s policy in the UK. In 2006, ADM passed a motion reiterating our preference for self-regulation: “To support calls from the European Federation of Journalists for EU dialogue with journalists and the media industry on promotion of effective forms of self-regulation.”

We have subsequently repeated demands for self-regulation for journalists in various foreign countries in international motions too.

The NUJ’s submission to Leveson states: “Self regulation has been given every possible chance to work in many different forms over the past 40 years and has failed the test every time. It is for this reason that for the past two years it has been the NUJ’s policy position – as set down by its democratic delegate meeting which forges and evolves policy on behalf of the 38,000 journalists in the union – that the PCC has shown itself to be incapable of genuine reform and that it must be dismantled and a new organisation created that cuts all links with the way business has been done in the past”

Up to a point, Lord Copper. In 2011 the NUJ DM passed this: “DM therefore instructs the NEC to start a debate within the union about the future of press regulation and to that end open up discussions with the CPBF and other media reform organisations and interested parties that support calls for the abolition of the PCC and its replacement with a more independent, effective regulatory body.”

So the DM did call for a replacement to the PCC. But that is not the same as saying self-regulation has failed and we were abandoning it. Self-regulation by media workers and the news-consuming public – specifically excluding editors and proprietors – has not be tried and has been a long-cherished ambition.

The NUJ leadership has parted company with the membership and with its own activists when it says in its submission: “Regulation is a way of controlling the balance that must exist between freedom of expression and other universal human rights such as reputation, privacy, fair trial. Freedom of expression is vital to a fair, democratic society and is a right often best manifested by the media on behalf of the individual when subjecting the powerful to scrutiny. To suggest that only self-regulation is capable of doing this balancing act is to fly in the face of clear evidence that self-regulation has failed and that other systems can work extremely well for other industries or in other jurisdiction.”

The CPBF, who the 2011 motion said we were supposed to work with (I was was once an NUJ rep on the CPBF) said in its media manifesto in 2010: “The PCC should be wound up and replaced with an effective self-regulatory body which earns the respect of newspaper and magazine readers, the general public and journalists alike. It should have clear powers to order meaningful recompense to complainants, including fines for blatant breaches of the editors’ Code of Practice.

“The new body would also ensure that the right of reply, a measure for which the CPBF has campaigned since its inception, is established in the case of complaints concerning factual inaccuracy.”

The key in all of this is self-regulation. The NUJ has long opposed any form of statutory regulation (or regulation by statute, even as a backstop). I once went on the People versus Jerry Sadowitz to defend the press from demands it be regulated in that way.

The printed and online press does not want the same regulation of journalism that has already come in through OfCom (though some aspects of it are good), so I, and many others, do not agree with the NUJ’s statement: “All our experience in broadcasting, including the last eight years with Ofcom, shows that regulation supported by statute is not of itself damaging.”

Our code of conduct begins: A Journalist at all times upholds and defends the principle of media freedom. Those submitting this to Leveson have fallen at the first hurdle.

If statutory legislation comes into force in the UK, of course the NUJ would have to work with it to make the best of it, but that is very different from the NUJ calling for it. The NUJ has not called for this. An out-of-touch minority within the NUJ has called for it. They are wrong.

Lewisham NUJ | If it smells like regulation,… | Lewisham NUJ
Jul 12, 2012 13:25

[…] Union of Journalists president Donnacha DeLong has in Ceasefire Magazine defended in strong and in part intemperate tones defended the NUJ executive’s submission on Tuesday of […]

Francis Sedgemore
Jul 12, 2012 13:26

I have little sympathy with the proposals being put forward for a “statutory backstop”, and am unconvinced by the argument being spun for a system of control that looks very much like active state regulation, or could soon develop into such. More cynically, I understand the political need to be seen to be reacting constructively to the current hyperbolic criticism of the media, regurgitated as it is with such enthusiasm by the, er, media.

The NUJ submission to Leveson contains an assertion without caveat that “self-regulation has failed”. This could cause us considerable difficulty at the NUJ conference in October, when we come to discuss media business models, community goods and public subsidies. I can see where this debate is headed, and it gives me the willies. State capitalism appears to be becoming less and less capitalistic, and far more statist, and we are in danger of blurring beyond recognition the distinction between state and civil society. Allow this situation to continue, and the consequences for the open society are grave.

The following mantra should be burned indelibly into the synapses of every junior hack…

“Journalism is not a profession. It is a trade.”

This distinction is critical to the debate around media regulation and control, but as a trade body we are failing to recognise the difference between “profession” and “professional”. In journalism there are no gatekeepers, chartered institutes or state-sanctioned entrance criteria. If journalism were to become a regulated profession, journalists could never be trusted as independent information brokers. There is a fundamental difference between journalism and, say, medicine or law.

I agree with much of what Donnacha says in the video interview accompanying this article, but find it difficult to comprehend how, in supporting the NUJ submission to Leveson, an anarchist can call for the control of one class of rogue corporatists – the media barons – through the empowering of another – the state. Pragmatic libertarians do not choose between State and Capital. They deal with them as they are, and work creatively to overcome them both.

If Donnacha and his NEC colleagues are not calling for state regulation of the media, it is beholden on them to explain how a “statutory backstop” differs from “statutory regulation”. So far they have not done so, preferring instead to conduct the debate largely in the form of Twitter wordbites.

Francis Sedgemore - If it smells like regulation,…
Jul 12, 2012 13:33

[…] Union of Journalists president Donnacha DeLong has in Ceasefire Magazine defended in strong and in part intemperate tones defended the NUJ executive’s submission on Tuesday of […]

Martin Cloake
Jul 20, 2012 14:36

I agree with Francis about journalism being a trade, not a profession. It’s something I’ve argued for years, and been hammered for saying it on a number of occasions. But it is, as Francis says, a key distinction, and one that is important in this particular debate.

I’m not as gut suspicious of the state as Francis. One of the problems in western economies in the last 20 years has been the undermining of the state’s role as a force for good. State power always needs to have careful checks and balances, but it can enable and achieve much too, as Richard Murphy argues in his excellent book The Courageous State (see courageous state.com) So it may be that there’s something in the position the NUJ has put forward, and that President Donnacha DeLong argues for. But…

Any kind of state regulation of the media has to be a concern. Donnacha can argue as long as he likes that there is “a world of difference” between “a statutory backstop” and “statutory regulation”, but I suspect most people will see little more than a semantic difference. I don’t think anyone could claim the argument has been won. And that’s the issue.

The NUJ has clear policy on state regulation. We’re against it. It may be that that policy needs changing because circumstances have changed. But that’s for the membership to decide. Of course, no organisation can consult its entire membership before every move, and the nature of democracy means elected leaders are entrusted with taking day to day decisions. But on an issue as big and fundamental as this, a wise leadership would realise that it should consult the membership. Doing so strengthens any position taken.

Unfortunately, this is another instance of the NUJ’s leadership being unwise. There is significant division and disagreement over the stance the leadership has decided to put forward as our union’s public policy – and let’s remember existing policy is the opposite of what the leadership has put forward – and that means there is less chance of the position being taken any notice of.

I also notice that the President has again displayed his irritation at any questioning of the union leadership’s position. Irritation at a questioning stance that asks for more facts and definitions seems an odd trait in the journalism trade.

Leveson and the national narrative | Big Chief Tablets
Sep 12, 2012 12:15

[…] own union, the NUJ, has got itself into hot water for recommending a new regulatory regime – ironic, say some, given the NUJ president’s anarchist leanings. Is […]

Donnacha DeLong
Sep 12, 2012 20:37

I have no issue with people questioning the NUJ’s policies based on an accurate and reasonable reading of the policies. However, the misrepresentations and blatant inaccuracies of so much of the shit being thrown my way recently makes me question whether some of these people are journalists at all.

Martin Cloake
Oct 7, 2012 11:19

Donnacha is welcome to check my 23-year record in journalism to see if I qualify as a journalist. He can check the records of the other individuals who have contributed to this attempt to have a discussion too. And when he has done that, he might care to try to address the points that are made in our contributions, points he has so far failed to address.

Barry Keevins
Nov 6, 2012 11:59

As a member, I don’t want a Statutory backstop. Obviously, I don’t want regulation, but equally I don’t want this stepping stone to it either.

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