Leveson’s lessons

Print edition : August 23, 2013

Lord Justice Brian Leveson unveils his report following an inquiry into media practices at the QE2 Centre in central London on November 29, 2012. Photo: DAN KITWOOD/POOL/REUTERS

WE have been treated to the whys and wherefores of regulation in the Indian news media for some time now and there is already quite a rhetorical heap of opinion, prescription and objection before us to negotiate. But if we imagined that all that accreted discourse was so much ground covered at least in terms of an understanding of the situation, we imagined wrong. The refreshing thing about the bureaucracy waking up to a situation like this is that it really wakes up to it, starts on a clean slate, sets aside, rather than cuts through, the clutter of ideas before us and begins by stating the obvious, as if it just became obvious. Or, maybe it is a bureaucratic principle as well that understanding should not only be gleaned, but seen, step by step, to be gleaned.

So we have just had the Telecom Regulatory Authority of India (TRAI) telling us that the problem is perhaps, one, the nefarious link between corporate ownership and editorial management, and, two, cross-media holdings (where print, television and radio businesses have the same ownership). It is just a bit infuriating to hear this because we know, have known for long, that this is, of course, the problem; and it need not have come to this if the bureaucrats or their political masters had done something about it in time. We are now so far down that road that undoing the news media mess in the country will take some doing, even if the political will is up to it.

Simultaneously, we have the Ministry of Information and Broadcasting, somewhat more circumspectly, asking a Parliamentary panel to look at whether and how the report of the inquiry into the culture, practices and ethics of the press in the United Kingdom, and the regulatory recommendations thereof, by Lord Justice Brian Leveson may have a bearing on our condition.

Interestingly, the language of the two arms of the government looking into regulation of the news media varies and seems to speak to different target constituencies. TRAI seems to be addressing the media market and the need to protect consumers from monopolies controlling that market. The I&B Ministry sees it more in terms of ensuring the democratic right and choice of the citizenry and the community at large. The difference may be unwitting, but is a throwback to the sharp distinction sought to be drawn between the “consumer” and the “citizen” in the debate in the British Parliament on the draft bill of the Communication Act of 2003, which enabled and empowered the media regulator, Ofcom (Office of Communication), whose remit covered telecommunications, broadcasting and post.

Consumer & citizen

In their study “Representing Citizens and Consumers in Media and Communication Regulation” (published in the May 2007 issue of Annals of the American Academy of Political and Social Science) Sonia Livingstone and Peter Lunt categorise the interests of the consumer and the citizen as separate from each another. The consumer focus is on the “economic”, that of the citizen on the “cultural”; the consumer is concerned about the “networking” and allied “services”, the citizen’s concern is programming “content”. The consumer evokes the “individual”, the citizen the “community”.

They elaborate this division in a further psycho-sociological checklist, which describes inter alia (i) the interest of the consumer in terms of “wants”, that of the citizen in terms of “needs”; (ii) the consumer as representing “private benefit” and the citizen, “public benefit”; (iii) the consumer’s as being a “language of choice”, the citizen’s a “language of rights”; (iv) the focus of or for the consumer tending to be “short term”, that of or for the citizen, “long term”; (v) regulation on behalf of the consumer becoming an action “against a detriment” and that on behalf of the citizen, one in the “public interest”; (vi) the consumer’s interest, in the market model of the media, as likely to “rollback regulation”, whereas “continued regulation to correct market failure” may be what is in the citizen’s interest.

These differences—some explicit, some nuanced—in the perception and the construct of the two terms informed the debate on the Bill, and Clause 3(1) of the ensuing Communication Act 2003 reflected them when it stipulated, “It shall be the principal duty of Ofcom, in carrying out their function; (a) to further the interests of citizens in relation to communications matters; and (b) to further the interests of consumers in relevant markets, where appropriate by promoting competition” (emphasis added).

The regulatory body’s mission statement, however, sought to integrate the two when it set out that “Ofcom exists to further the interests of citizen-consumers through a regulatory regime which, where appropriate, encourages competition” (emphasis added ). In actual practice, as Livingstone and Lunt point out, consumer and citizen were at times interchangeable, at times not. In short, Ofcom was born out of this confusion about whether and where a citizen or a consumer was at the receiving end.

We already see the beginnings of such a conceptual divergence in the approaches of TRAI and the I&B Ministry to media regulation in our context. TRAI’s stated objective of insulating the editorial charge of the news media from the vested interests of their corporate owners is, no doubt, the crying need of the hour. But what is overlooked in this approach is the equivalent of the publisher’s rights which, though it is peculiar to print and may not apply to the broadcast media, were historically constitutive of the encompassing freedom of the press we speak about today.

In the advertisement driven model of the press that came to stay even in the 19th century, that freedom was already being defined and defended in market terms and the consumer-citizen divide was already apparent. Joseph Pulitzer’s formulation that “circulation means advertising, and advertising means money, and money means independence” was setting the tone for a democratic agency of the press via the market. Arguably, though, when push comes to shove, as it did in India during the Emergency of the mid-1970s, it is the publisher who bears the brunt of a concerted state action against the press and either capitulates or, like Ramnath Goenka, resists.

The decline of the Publisher, even more precipitous than that of the Editor, and the reduction of that position to a token nominee named in the print line, on the one hand, and the conflation of the roles of the Editor and the Corporate CEO (Chief Executive Officer), making the idea of editorial independence ridiculous and redundant, on the other, are a double whammy for the credibility of the Indian press.

When the Leveson report now enters the picture as a possible inspiration for a regulatory framework relevant to India, it is crucial to get the essence of it right and not to, like the Chairman of the Press Council of India Justice Markandey Katju tends to, over-read it to create a case for a statutory body with rather summary powers including the leverage of licensing, or to oversee social engineering of the nature and course of news media content. The Leveson inquiry itself was a response to the expose by The Guardian in 2011 that the Murdoch-owned News of the World had hacked the mobile phone of the 11-year-old British girl Milly Dowler when she was abducted (and murdered) nine years earlier.

This immediate provocation provided the impetus for a wider inquiry into the “Culture, Practices and Ethics of the Press” including, as Lord Leveson put it in his report, “recklessness in prioritising sensational stories”, “covert surveillance, blagging and deception”, and “lack of respect for individual privacy and dignity”. In this task, Lord Leveson sets himself clearly apart from and against the News of the World features Editor Paul McMullan’s ultra libertarian view presented at the inquiry commission that “privacy is for paedos”.

What marks the Leveson report is that it balances the pathetic aspects of the performance of the British press, particularly the News of the World variety, with its gains and achievements and its putative role as a free agent of democracy, and provisions regulation with a light touch. While noting that “large parts of the press had been engaged in a widespread trade in private and confidential information, apparently with little regard to public interest,” and that these remain largely unknown because of the thick-as-thieves bonding in the profession, Lord Leveson is clear that “this is not to suggest that the British press is somehow so devoid of merit that press freedom, hard won over 300 years ago, should be jeopardised or that the press should be delivered into the arms of the State”. He is against the Government or Parliament regulating the press, although the growth of monopoly new media calls for a fresh look at cross-media ownership and “the necessary regulatory regime that will support plurality in the media…”

He accepts that it is in the nature of the press “to be irreverent, unruly, opinionated”, that it has nevertheless done good work. “But that does not mean”, he cautions, “that it is beyond challenge. Neither does it mean that the price of press freedom should be paid by those who suffer, unfairly and egregiously, at the hands of the press and have no sufficient mechanism for obtaining redress. There is no original profession, trade or industry in which the serious failings of the few are overlooked because of the good done by the many”.

The moribund Press Complaints Commission (PCC), currently in the process of being replaced, which was effete and useless as a mechanism to address grievances against the press, adds a note of urgency to the Leveson mandate. Lord Leveson finds himself in agreement with the Prime Minister that the PCC is “ineffective and lacking in rigour” and with the Leader of the Opposition, that it is a “toothless poodle” (they may as well have been talking about the Press Council of India).

The broad methodology adopted by Lord Leveson, as evidenced in the report, is instructive. To begin with, he announced a set of criteria to arrive at a regulatory framework and sought opinion on it from a cross section of the public. The criteria were meant to ensure that the proposed regulation is effective, credible and durable; that it will adhere to norms of fairness and objectivity; is independent and enforced with transparency and that there is compliance; has remedial or curative powers, and has funding to sustain it.

He was clear from the outset that it has to be self-regulation and reiterates this many times in the report: “I should make it clear at the very outset that I consider that what is needed is a genuinely independent and effective system of self-regulation”. To this end “I have encouraged the industry to work together to find a mechanism for independent self-regulation that would work for them and would work for the public”. Again, he seeks a via media model “for independent self-regulation that…would protect both the freedom of the press and freedom of speech along with the rights and interests of individuals; it should…command public confidence”, and to do so it needs to be independent of both the State and the market.

It is not only the people who need protection against excesses of the press, journalists themselves are susceptible to pressure and need what he calls a “whistle blowing hotline” to function with integrity and true to their conscience.

He is at his gingerly best when it comes to the substantive aspect of how this prescription of self-regulation should be ensured and safeguarded. “It is,” he says, “essential that there should be legislation to underpin the independent self-regulatory system and facilitate its recognition in legal processes”, but hastens to add that such legislation will not establish any body to regulate the press, nor give parliament or government any right to prevent newspapers publishing any material.

Lord Leveson knows that this is likely to be seen as “the most controversial part of my recommendations” and is at pains to qualify it and to emphasise what it is not. It “is not, and cannot be characterised as, statutory regulation of the press”. It is, on the other hand, “independent regulation of the press organised by the press, with a statutory verification process to ensure that the required levels of independence and effectiveness are met by the system.”

The danger, though, is that a partial reading or heavy-handed interpretation of the Leveson prescription, which is really a nuanced take on regulation fine-tuned to the sensitivities of British society and which goes to greater lengths to warn against what regulation should not be than to say what it should be, could become a convenient tool in the hands of the government to clip the wings of the news media here in India.

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