Author: Dr Peter Coe
On the 16th of February Impress, the Press Recognition Panel approved regulator of the UK press, launched its new Standards Code and Guidance (the new Code and Guidance will come into force on the 1st of April 2023). As a member of the Impress Code Committee I was involved in the review process and in drafting the revised Code. In this post I explain some of the reasons behind the new Code, and some of the key changes.
Journalism has changed. One of the great things about the internet is that it has opened-up journalism to new non-traditional and non-institutional journalists, who use the internet to circumvent the traditional/institutional journalistic/media structure, and who are, as a result, able to make valuable contributions as journalists to public discourse. It has also enabled established journalists to liberate themselves from the constraints of institutional journalism, and to operate as independent publishers. But this paradigm-shift in journalism, and how journalism is defined and practised, brings challenges to the publishers themselves, the regulators, the law, and the public.
Consequently, the Impress’s new Code and its Guidance lays down ethical principles that we hope will be applicable to the diverse range of publishers, using a variety of online and offline mediums, that Impress already regulates, and may potentially regulate in the future. This begs the immediate question (and indeed this was a question I was asked as a panellist during the Code’s launch) why is there a need for ethical standards, isn’t following the law enough?
Impress: New ethical principles for journalism
Not breaking laws relating to misusing a person’s private information, or defaming an individual, or breaching data protection, or criminal activity, is the very minimum that we should expect from our publishers. Abiding by the law is not a benchmark – rather it is a floor, in respect of certain activities, that you cannot fall through. Ethical standards are different.
Firstly, they apply to a much wider range of activities, issues and, I think, importantly, behaviours, than the law proscribes. Secondly, unlike the law, they are not simply proscriptive. Their purpose is not to tell publishers what they cannot do. Rather, and importantly, their purpose is to empower members of the regulatory scheme, by being a tool and best practice resource to help publishers to do the very best job they can. Thirdly, and following on from the previous point, ethical standards help to professionalise publishers. By this I do not mean professional in the institutional sense – indeed this is something, in my work, I have argued against, as I think modern journalism should subscribe to a functional definition of who is journalist – what I mean is that ethical standards help publishers to meet, and hopefully exceed, the standards and behaviours they aspire to. Fourthly, because they set a higher standard than the law, they help to protect publishers from falling through the ‘legal floor’ – in other words, they help to prevent publishers from engaging in activity or behaviour that may stray into illegality.
These points, I think, are illustrated brilliantly by Suyin Haynes’s explanation in the Hacked-Off Ten Years of Press Freedom Report of why gal-dem, an online and print publication, chose to be regulated by Impress. In explaining that one of the main motivations for joining Impress was to ‘professionalise gal-dem’s journalism’, Haynes says that being part of the regulator ‘gives us [gal-dem] a level of accountability and validation that what we publish has a grounding in truth’ and that it helps gal-dem to ‘demonstrate the standards which we expect or want upheld in this industry.’ And that ‘joining Impress is about being part of a democratised media landscape.’
Key changes in the new Code
During the review process, one of our main concerns was drafting a Code that is not just applicable and attractive to publishers now but also forward looking and will remain applicable in years to come. To do this we had to think very carefully about how to predict, as best we can, how journalism may change over the next few years, and the ethical issues and challenges this could create. This ‘future proofing’ is reflected in key changes to the Code, a selection of which I set out here.
One of the biggest challenges for journalism relates to the sheer amount of information available to publishers – and how they distinguish true information from misinformation and disinformation (including that generated by AI) – whilst not inadvertently, either spreading false news and falling into other informational traps set by trolls, or shutting down legitimate speech because they mistakenly thought it was false. And how they ensure that the material they publish is supported by verifiable and legitimate sources. To help with this, the Guidance to the Code’s Accuracy clause (clause 1) provides advice on fact checking and source verification, particularly within an online context. Specifically, it requires publishers to ensure human editorial oversight and clear labelling of AI generated content and to take steps to limit the potential spread of false information, deliberately or accidentally, by verifying the story with other sources and checking the information against other reliable sources (paragraph 1.1.6 of the Guidance).
The safety of children was another key concern during the review process and is reflected in changes the Children clause (clause 3). Firstly, to align the Code with UK law, a child is now defined as anyone under the age of 18. Secondly, it includes a mandatory requirement that publishers must reasonably consider a child’s request to remain anonymous (clause 3.3), and that they consider requests from those under 18 when the article was published, to anonymise that content in the present day (clause 3.4). Further, an appropriate adult cannot veto a child’s refusal to give consent to a journalist (paragraph 3.1.2 of the Guidance). These provisions recognise children’s autonomy, and their ability and right to choose. They also reflect their media literacy, whilst recognising that the world has changed because of social media and the internet: children should not be impacted detrimentally in later life because of stories that remain widely available on the internet that related to them as children.
Again, because of the internet and social media, jig-saw identification is an issue that publishers need to be alive to when working with children in particular (but of course it can apply to adults in some circumstances as well). Clause 3.2 helps publishers to deal with this issue, and to comply with minimum use requirements under data protection law. Specifically, it requires publishers to consider using techniques or practices that remove identifying data, such as the school a child attends, the area of a city in which they live, and their parents’ occupations.
Discrimination is dealt with at clause 4 of the Code. Under the old version of the Code, pursuant to clause 4.3, publishers would breach the Code publisher if they incited hatred ‘against any group…[on any] characteristic that makes that group vulnerable to discrimination.’ This reflects the legal standard under UK law, albeit this is not a well enforced standard, particularly online. Consequently, the revised version of clause 4.3 says that ‘Publishers must not encourage hatred or abuse against any group’ based on those characteristics. According to Impress’ current Deputy Chief Executive (and from April its Chief Executive), Lexie Kirkconnell-Kawana, this change ‘accounts for prejudice that could be more insidious and be more cumulative or more thematic, and not a direct call to action or violence against a group of people – because that’s an incredibly high threshold, and it’s not often how news is carried. You don’t see headlines saying, you know, ‘Take up arms against x group’.’
The Privacy clause (clause 7) requires that, except when justified by the public interest, publishers must give due consideration to online privacy settings when determining the privacy status of the information. This reflects the fact that just because information is posted online does not automatically make it public. However, the Guidance also makes it clear that although a reasonable expectation of privacy may be weaker where no privacy settings are in place, posting an image on an account without such settings does not mean that the individual is consenting to the publication of the images by journalists or publishers, which may reach a wider or entirely different audience than those usually viewing the content on the individual’s account (paragraphs 7.1.4 and 7.2.6 of the Guidance).
Playing a part in reviewing and drafting the new Code has been one of the most rewarding things I have done in my career. But because of what was at stake, it was also one of the most challenging things I have done. I am incredibly proud of the work that has gone into the review and drafting process, and the revised Code that we have as a result of that work.
My hope for the Code, and the standards it sets, is that it empowers publishers, both now and long into the future, and that in doing so it helps to protect publishers and the public. And that it does this by enabling those who are part of Impress to send out a message that they are holding themselves out to a higher standard; that they care about their work; their profession; their audience; and society; and that they are responsible and strive to be the best publishers that they can be, and by doing so they encourage others to raise their standards too.
Dr Peter Coe, Associate Professor, Birmingham Law School, University of Birmingham; Senior Visiting Research Fellow, School of Law, University of Reading; Associate Research Fellow, Institute of Advanced Legal Studies and Information Law and Policy Centre, University of London; Editor-in-chief of Communications Law.
A version of this post will appear as the Editorial in the June 2023 issue of Communications Law and is published here with kind permission.