McCluskey Brothers


We’ve seen what light touch regulation gets you in food (donkey burgers). We’ve seen what light touch regulation gets you in banking (Stephen Hester). We’ve seen decades of abuse by the gutter press owned by and protecting the rich and powerful. Now, that same press is wailing about ‘freedom of the press’.  Bella doesn’t buy it. There’s virtual blanket condemnation with bloggers tripping over themselves to act all tough and get in with the big boys. Robin McAlpine is one of the rare exceptions when he says: “The media’s reporting of the politic of press regulation shames it. It demonstrates a hypocrisy and abuse of power it would not tolerate in others. With each new editorial it’s credibility and reputation slip further.More here.

Maybe it’s because I have spent most of my working life working in a regulated sector, in regulated bodies working within regulated activities and on regulated issues. But I am struggling to get as worked up about the McCluskey proposals as well, everyone else.

Indeed, I was one who encouraged and then helped the state regulate the sector I have worked in for 13 years. Because all of us on the side of regulation wanted there to be rules which protected the public but also separated the good from the bad – and gave a regulator powers with which to find the bad and weed it out. Bad practice, including illegal acts, tarnished us all.

Maybe I just don’t understand the implications of what is being proposed – or maybe what I don’t get is that the proposed regulated industry gets to call the shots here. Maybe if it – the good bits – had called to account the very rotten apples operating in the press this last decade and more and taken responsibility for cleaning up their own industry, I’d be happier to leave it to them. But they didn’t. Every decent journalist and press publication worth its salt knew, or at least, heard the rumours and stayed schtum. They proved – even though they are good people who do a sterling job – that they cannot be trusted to clean up their industry’s act.

Maybe I should be concerned that my hobby – blogging and commenting on a wide range of current affairs and topical issues – will be caught by the McCluskey proposals too. But I am not. Indeed, I rather think that given the rise of the blogger and the occasional impact a good blogpost can have on the news agenda and the views and thoughts of professional journalists, it would be a folly not to apply a statutory scheme of regulation to this burgeoning industry. And while McCluskey did not totally work out the details of how to apply boundaries to a virtual world which by its very nature, operates without and across boundaries, at least it tried. When Leveson didn’t.

It would be utterly inappropriate for any press regulatory scheme to apply controls to printed material without also applying the same rules to what “significant news publishers” produce online. That would mean the same companies operating under different criteria across different platforms. It is as ridiculous as it seems.

There are many flaws in the proposed draft bill which appears at Appendix 3 of the McCluskey report. It might be these which are causing the Scottish Government to cast aside a piece of work which it commissioned with no little fanfare with almost indecent haste. I hope not and that rather, the dampening down of expectation of implementation is linked to more prosaic and pragmatic reasons. Such as that Westminster might deliver more than Cameron wants by voting for a statutorily underpinned regulator which comes close to the kind of body the SNP envisaged for Scotland. A UK wide body would after all, remove at least one criticism levelled at the SNP’s ambitions, that of creating unnecessary different regulatory regimes for UK wide press operators.

But the draft bill shouldn’t be discarded just because the press doesn’t like it. Some of a contrary nature might suggest that that in itself provides a very good reason to proceed.

Nor should we never try to apply some rules to how people – professionals and amateurs alike – behave in the virtual world. Where criminal offences occur, they are rightly pursued and prosecuted. But surely there is a role for civil law in conduct and content published on online and more traditional platforms? A statutorily defined regulatory scheme can be and ought to be about raising standards and ensuring that everyone plays to society’s rules rather than their own.

Other laws creating such regimes have been passed which managed fine to balance a range of interests, not least the need to not only comply with, but further human rights. Indeed, the irony is not lost on me that the very people squealing like stuck pigs at the thought of any form of control being applied to their own workings and doings have regularly made shrill calls on politicians and institutions to act to tighten the operating environment of others who have failed to meet basic standards in how they go about their business. The idea that the only part of society allowed to operate unfettered by any rules or standards no longer stacks up.

McCluskey’s draft bill needs a lot of work – one clear flaw which could be readily addressed is the concentration of power over appointment of Commissioner and regulator in the hands of government. That could be fixed by giving that role to the Scottish Parliament, ensuring political balance and an investment of responsibility to our democratic institution. As happens for a range of commissions and commissioners.

The compulsory element is necessary, for anything else would be unworkable. And any regulatory regime – whether created by Westminster or Holyrood – must encompass the blogosphere. If we want to be taken seriously, then we have to agree to apply the same rigorous standards to what we do as are expected of traditional press outlets and individuals. And just as a whole host of other regulated entities have to do, significant news publishers must contribute to the costs of regulation, though start up costs should be provided by government and those outlets which do not charge or otherwise solicit funds to help produce their content, be waived from fees. That might require an ongoing, modest injection of cash from public funds

Some rights are absolute – the right to freedom of expression is not one of them. Restrictions apply and the press’s right to express its views, opinions and reportage freely does not over-ride other and others’ rights. Indeed, far from providing a threat to the right to freedom of expression, a statutorily underpinned regulatory regime might in fact result in such a right being more cherished, upheld and applied. With other human rights similarly treated.

Nope, for this individual who spends much of their working and daily life being regulated in a whole host of ways, I’m struggling to see what the fuss is about. A free and healthy press operates neither above nor outwith the rest of society. In recent times, it has proven itself incapable and unwilling to regulate itself. And while the nefarious, criminal practices laid bare by Leveson appear to have ended, there is not a lot of evidence of the rotten apples having cleaned up their act in terms of how and what they report. Day in, day out, people’s human rights are being breached in the pursuit of a story. The very, very good in the industry are still having their reputations trashed by the very, very bad. Far from being a disaster, statutorily underpinned regulation – whichever legislature takes it forward – might actually be the best thing that could happen to an industry currently on its knees.

Comments (15)

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  1. ‘Maybe’ you should ask a friend to proof this material before hitting the ‘submit’ button?
    ‘Maybe’, then, it’ll deserve to be taken seriously.

    1. Donald MacDonald says:

      So are you rigorously subbing the flawed output of the dead tree press with the same pen of perfection. If only the grammatically flawless and perfectly spelled are to be taken seriously, no printed publication on Earth would survive.

      Get a life.

    2. bellacaledonia says:

      It would be good to hear your comments about the substance of the arguments Ian?

    3. burdzeyeview says:

      You’re right – it could have done with an edit and a tidy here and there. But that doesn’t diminish from the argument which you’ve rather chosen to ignore in order to have a wee dig. Shame.

      1. .If it came across as a ‘dig’, I apologise.
        I’m not beefing about grammar, about ‘an edit and a tidy here and there’. I’m on about statements like this:
        ‘The idea that the only part of society allowed to operate unfettered by any rules or standards no longer stacks up.’
        I’m sorry, but that is just nonsensical.
        You complain that I’ve chosen to ignore your argument. I’m not ignoring it – I honestly don’t know what it is.
        I’m sure you’ll also appreciate that this:
        ‘Some rights are absolute – the right to freedom of expression is not one of them.’
        is provocative, offensive, and effectively nullifies whatever argument you’re trying to make.
        Which brings us full-circle – what is your ‘argument’?

    4. Braco says:

      Is it ‘This or that’? Maybe ‘That or this’?
      Who to please eh?

  2. felibrilu says:

    The last thing we need in the the UK or Scotland is the government or parliament having a say in regulating the media, whether hard copy or online. We already have laws of defamation, and laws against harassment and phone hacking. And it was journalistic investigation by one newspaper that exposed the phone hacking practice in other newspapers. Media is not like other industries, where non-professionals employ another person to provide a professional service on their behalf. It’s about poking about in the bowels of society and exposing what’s going on. Yes, it’s also about companies selling a product but that exposure is often the USP of the product. So it’s vital that media is constrained only by laws that apply to everyone, and indeed that, the media has some license to ignore some of those laws, in cases when it can be shown that the aim of the investigation was in ‘the public interest’. Yes, what happened to the people who suffered phone hacking is horrible, but what they suffered was unlawful. And now the people responsible for it are being pursued by the law. There’s no need for additional regulation. It’s particularly disappointing that Scotland hasn’t opted to take a different approach from the rest of the UK in this area and actually defend freedom of expression rather than clamp down on it.

  3. Doug says:

    felibrilu> so you have no concerns that the various unethical practices of the newspaper industry were ignored or treated as normal for many years until another newspaper took an interest? Even now, the investigations are timid and circumscribed for example regarding the very cosy relationship between senior politicians, the police and newspapers. And there is no remedy to simple defamation unless you have extremely deep pockets, even then, there will be virtually no report years later of you winning the court case, a tiny apology in column three on page 42, and in the meantime your reputation has been publically trashed with no means of recovering it. Newspapers and journalists hold immense and virtually unaccountable power. What’s wrong with proposals to ensure they actually can be held accountable when they tell lies?

  4. Douglas McLellan says:

    On the whole I agree with the article. I would point out though the the UK does in fact have a very regulated food market.

    1. bellacaledonia says:

      Do you know what Equidae is?

  5. Indy says:

    Well said. The most striking thing for me in this debate is the way right wing conservative types are aggressively arguing for the thing they usually criticise – freedom without responsibility. It is quite a fascinating phenomenon to watch.

  6. pmcrek says:

    Yeah well said, the thing I’ve found most interesting in this is that “freedom of the press” apparently does not extend to covering the positive side of the argument for the proposals.

    .. nor did it seemingly extend to covering the negative aspects in the run up to the Iraq war… there are many more examples which show for the most part, freedom of speech has nothing at all to do with freedom of the press.

  7. Braco says:

    Is this discussion a joke? At the moment we have a ‘free’ Press bought and owned by multi millionaires from outwith our Country. Not a sniff of balance, or the necessity for it if a ‘Free’ press is to be considered even possible.

    Not so unusual when your own Government has the same characteristics.

    This shit is OK for ‘oh, oh, we’re doing something’ Government, but it’s bullshit for an article on Bella . At least in the terms that it’s been couched.

    How much of this is relevant to ‘our’ own FREE press. Let it all die and a new, modern, financially viable entity will grow in it’s dead shell. It is already happening, although painfully.

    P.S. Kate, could you give that other well respected political pundit/blogger Ian Smart a slapp from me please. I would prefer it on screen, but I will happily except Sunday Night, outside in the rain, at the Taxi rank. Many thanks

  8. felibrilu says:

    Re Doug, Yes I am absolutely in favour of reforming legal aid and defamation laws so that restitution is more available to all, and more speedily.

    I don’t agree that the relationship between the political establishment and the media and the police is ‘cosy’; it’s more of a ‘love-hate’ relationship, as each need and yet are repelled by the other. One of the crucial issues in this regard is that people are sacred of the media because it’s monolithic – there are only a few huge players who can bring all their resources to bear on excluding, attacking, maligning or rubbishing a person or organisation with whom they have an issue. I’m very much in favour of regulation to enforce diversity of ownership of media – something that, curiously enough, has been completely neglected in all the hoo-haa over phone hacking….

    The McCluskey Report involves the government in the regulation of the media; it’s not an independent system. Under McCluskey the Scottish Government must appoint the Recognition Commissioner, who will then approve a regulatory body. Indy, Plenty of people, not just right-wingers, see this as problematic: including possibly the SNP as well:

    Furthermore the McCluskey Report states “The principal difference between what we advise and what others have proposed is that the jurisdiction of the Regulatory Body must extend by law to all publishers of news-related material. No publisher of news-related material should be able to opt out of that jurisdiction.”

    Publishers of “news-related materials” include publishing by print and electronic means. So the publishers of Bella Caledonia would therefore have to apply to be recognised and would then have to submit to the requirements of the regulatory body; they would be held responsible for the comments made by their readers. What’s unclear is what would happen if someone attached a link to one of their articles to an inaccurate tweet, email, blog post or Facebook status update. Presumably most Facebookers, tweeters and casual bloggers will not be ‘recognised’ as publishers however they will still be able to engage in re-publishing “news-related materials”. Is the Scottish Government really going to track them all down and force them to submit to regulation? It’s a ludicrous notion! And a backward step from the position we currently enjoy where publishing activity has been democratized and is available to everyone.

    The media is far from perfect, it always has been , as the resurrection of the 1931 Baldwin quote by Indy reminds us. But I’m worried we shall live to regret binding our media into a new and unnecessary structure – determined by politicians – when our failure is actually to utilise or reform the laws and powers we already have to protect people from unfair media treatment.

  9. Turnbull says:

    “Publishers of “news-related materials” include publishing by print and electronic means”

    News-related material must include the government’s own online press releases. It would be invidious for the politicians to pick the regulator who will oversee them – isn’t that where the Press Complaints Commission went so wrong?

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