Andrew Cave considers the current debate about the potential regulation of Britain's press in the wake of Hackgate
Andrew Cave is a freelance journalist, who writes the weekly business profile in The Sunday Telegraph as well as several other regular features for the Daily Telegraph. He has recently published his first book, The Secrets of CEOs
It was the Duke of Wellington who famously declared Publish and be damned in 1824 when his former mistress Harriette Wilson threatened to divulge details of their affair in her memoirs. To cut a long story short, she did publish and he wasn't much affected. His reputation didn't suffer, despite the field marshal being depicted as 'most unentertaining' and looking 'very much like a ratcatcher.' He went on to become prime minister.
Maybe that benign outcome is why, nearly 200 years later, Wellington's outburst still sums up for some observers the modus operandi of Britain's Press Complaints Commission (PCC).
After all, the watchdog most often gets involved in a complaint against a newspaper after the offending information has been published.
Run by the newspaper industry with no consumer rights representatives on its panel, it is viewed by many as partisan and weak.
It was described as 'toothless' by the House of Commons' Culture, Media and Sport select committee, and 'well-meaning but a joke' and 'as much use as a chocolate teapot' in a Commons debate into the News of the World phone hacking affair last month.
Prime Minister David Cameron, who has promised two enquiries into 'hackgate' - one looking at phone hacking and the other at newspaper ethics - has said the PCC should be scrapped and replaced by a new body independent of both the Government and the media industry.
But what will its successor look like and what will it mean for corporate communicators as they seek to protect the reputations of their companies?
Such questions may have been momentarily put to one side as the furore over the behaviour of the Murdoch Empire, journalists, the Metropolitan Police and senior politicians dominates the headlines, but many in the public relations industry feel that they are long overdue.
'The present system of regulation has worked well over many years for the media but not necessarily for complainants,' says Jonathan Hawker, managing director of financial public relations group FD. 'I'm sure that Fleet Street would love the PCC to potter on but for the PR industry, the PCC has always been regarded as a waste of time.'
Hawker argues that the PCC is ineffective in assisting communicators to suppress information that may be harmful to their clients, leaving them with the expensive route of taking out injunctions in the courts to prevent publication - something he has only been successful in achieving once.
'People think that because you're a FTSE100 company, you can afford to spend hundreds of thousands of pounds on protecting your reputation,' he adds. 'But that's not the judgment of most shareholders. Injunctions are really just for celebrities and, unless you are royalty, the PCC is no good because it is reactive, rather than proactive. So the News of the World case is not just about voicemail interception; it's about the media being able to answer for the way it operates.
'If, in the media frenzy of dealing with this dreadful situation, we miss out looking at the whole regulatory process and do not replace it with something that works we are missing a massive opportunity.'
That is a view shared by many other communications professionals, including those who started their careers on the other side of the proverbial fence.
'I've always been against press regulation,' admits Jonathan Clare, the former Investors Chronicle, Birmingham Post, The Times and Daily Mail journalist who is now deputy chairman of public relations group Citigate Holdings. 'But from the perspective of what we now know has been going on, I think something has to be done, not least for the future of the press itself. The press should be a force for good but there has been a loss of public confidence in the press, which needs to be restored.'
Jonathan Chandler, a former reporter for The Daily Mirror and Sunday Mirror who is now a partner at reputation management public relations firm Reputation-Inc, agrees, saying a 'fresh regulatory framework is needed to restore trust'. Predictably, the battle lines over the major issues of contention in this debate are already being drawn by newspapers and their star columnists.
'Isn't the press regulating itself quite well right now,' tweeted the Daily Telegraph's Bryony Gordon in relation to the News of the World affair. 'Journalists exposed this. Plus, it was a journalist who raised the alarm.'
Writing in The Sun, Jeremy Clarkson said that if statutory press regulation were to be introduced, newspapers would be 'full of nothing but the results of your children's sports days and the odd pic of a nice-looking dog.'
And The Sunday Times reserved the cover page of its News Review section for Secrets and Lies: Why Investigative Journalism is a Force for Good, an impassioned defence of press freedom by editor John Witherow.
Citing press-exposed scandals from Thalidomide to MPs' expenses, he wrote that the role of investigative journalism is 'to hold officialdom to account at whatever risk'.
'Yes, we bend the rules, engage in subterfuge, impersonate people and show the rat-like cunning... essential in every successful journalist,' he continued. 'Without these techniques, the powerful would be protected.'
Clarkson even argued that hacking into peoples' phones, though normally reprehensible, was justifiable in certain instances, citing reporters Bob Woodward and Carl Bernstein's exposé of the 1974 Watergate scandal in the Washington Post.
'Did they hack into Nixon's phones?' he asked. 'No. Would they have done so if it had been possible, You betcha. And would that have been justified? I think so.'
There's a sense, however, that such arguments are swimming against the tide and that, as with what happened after the MPs' expenses scandal, the public sense of distrust in one of the estates of the realm is too great for the former system of regulation to be allowed to continue.
'I see this as the latest phenomenon of what has been a longterm and continuing accountability process for the institutions of the establishment,' David Aaronovitch, columnist at The Times, told Is it Time To Get Tough on the Press? a debate organised last month by the Media Society and London School of Economics journalism and society think-tank Polis.
'Ethics are now under question, which raises the question of greater regulation. The last great scandal was expenses and there is a lot of schadenfreude going on in the House of Commons right now. There's an awful lot of revenge being taken.'
So what will a new system of press regulation look like and what principles will underpin it? A key area of debate is whether it needs to be freed from the control of the news organisations that it regulates.
Hawker believes 'Hackgate' shows that self-regulation is not working and a truly independent regulator is needed to restore trust and fairness.
He also argues that such a principle should extend further than newspapers, calling for an end to the BBC's 'absurd and shambolic' system of self-regulation whereby it, rather than media regulator Ofcom, has the final say over complaints about the impartiality and accuracy of its programmes - something recommended by a House of Lords committee in June.
What's needed, believes Hawker, is a truly independent regulator, with experience of the media - he suggests Mr Justice Eady, described by columnist Quentin Letts as 'the High Court's favourite libel judge' - to make non-partisan judgments about what newspaper actions are acceptable and whether something a newspaper wants to publish is really in the public interest.
That wouldn't go down well with the press, with Eady criticised by The Times in 2009 for delivering a series of rulings that have 'bolstered privacy laws and encouraged libel tourism'.
Clare suggests a less confrontational approach, with the establishment of a body that, while independent of both the media industry and of the Government, enjoys the respect of both the public and the industry it governs.
He suggests The Advertising Standards Authority as an example of such a watchdog, noting that its advertising codes, feted by the ASA as 'amongst the strictest in the world,' are published publicly and are mandatory to all UK advertisers.
Chandler disagrees, however, arguing that sufficient safeguards can be built into a new selfregulated system to prevent future abuses.
'I don't think an independent regulator is necessary,' he says. 'The public needs a free media. You cannot put reins on it. It has to be self-regulating but there are different levels of self-regulation.' That option would reinforce the need for other principles, with Chandler suggesting that a new regulator would need greater powers than the PCC, from which it should also be distinguished by making its rulings binding on all regulated media.
'It would need the power to find, stop and punish abuse,' he adds. 'It has to have clout and it has to be binding.'
A fourth principle, suggested by Clare, is that a new regulatory system must have universality - in other words, it must apply to all media, with no exceptions.
That would prevent moves such as publisher Richard Desmond's decision in January to withdraw his newspapers and magazines, including The Daily Express, The Daily Star and OK! magazine, from the PCC and to withhold payments to the Press Standards Board of Finance, which pays the PCC's £2 million annual costs. It could also be extended to the BBC. A crucial principle, says Hawker, is that a new media regulator must be able to respond rapidly to the fast-moving news agenda.
The existing office of the Information Commissioner would be totally inappropriate to govern the press, he argues, because it would simply not be able to deal with key decisions quickly enough. Neither does he believe that Ofcom or a similar body would be up to the job, saying that it can take six to nine months to come up with a ruling. Finally, there's the issue of transparency, which is tricky in a situation, where, for example, a new press regulator might rule against a story before its publication.
If such a decision is given in open session, news outlets face dealing with a situation similar to the superinjunctions controversy earlier this year when users of microblogging platform Twitter took it upon themselves to spread news of the identities of footballers and other celebrities seeking to cover up affairs.
That looks like continuing, despite threats from celebrities to sue offending Twitter members, but elsewhere social media is gradually coming under the control of conventional media regulators, with the PCC already planning to bring social media messages under its remit.
Of course, we've been here before. Back in the late 1980s, the Home Office set up a departmental committee headed by the eminent barrister Sir David Calcutt to investigate whether a body with formal legal powers should be created to regulate the industry after several newspapers breached the standards of the Press Council, which had been founded in 1953 with the aim of maintaining high ethical levels in journalism.
Its report, published in June 1990, recommended that a voluntary body with a full and published code of conduct should be given 18 months to prove that it could be effective; otherwise it would be replaced by an independent body with legal powers. The newspaper industry responded by creating the PCC and its code of practice.
So, is it time again to get tough on the press? 'We already have,' says Charlotte Harris, a partner at law firm Mishcon de Reya Private, who has been representing clients against the News of the World for the past three years.
She says the investigation has grown from the initial claim that there was one 'rogue journalist' to the notion of the News of the World being a single 'rogue newspaper'.
Now the focus will be on other newspapers' conduct as well as measures to prevent the latest abuses from reoccurring. As for increased regulation, the proof of any new regime will be in its clean-up rate, she predicts. 'We don't know whether any regulator will be totally effective,' she says, 'until they charge one or two journalists and we see how they practise.'