Introductory remarks by Baroness Onora O’Neill at the Media Power and Plurality conference at City University London on Friday 2 May, jointly hosted by University of Westminster’s Media Power and Plurality AHRC project and the Centre for Law, Justice and Journalism at City.

The Post Leveson Context

It is nearly three years since the Leveson Inquiry was established, with its dual remit

a) to investigate the culture, practices and ethics of the press, including contacts between the press and politicians and the press and the police;

b) to consider the extent to which the current regulatory regime has failed and whether there has been a failure to act upon any previous warnings about media misconduct.

In practice, as we all know, ongoing criminal investigations and prosecutions limited what could be investigated or considered by the Inquiry. Nevertheless the Leveson Report emerged and recommended a two tier structure—self regulation by the media, the standards achieved to be audited by a body that is independent of the press. The political parties have come together on this. So has Parliament. And the public support it.

Self Regulation with Standards?

As I think everyone here will also know, the seemingly archaic structure of a Royal Charter has been used to set up an audit body that any future government or parliament would find it hard to alter. What nobody knows is whether this will work: at present the only self regulatory body in existence is IPSO (Independent Press Standards Organisation), aka ‘son of PCC’, which has indicated that it will not seek recognition or audit by the Royal Charter body. This is thought by some to indicate that their preferred form of self-regulation remains self-interested regulation. We don’t know yet whether there will be other self regulators that will seek recognition by the Royal Charter body —IMPRESS (Independent Monitor of the Press) may do so. But it is not clear what the upshot will be: about a month ago at question time I asked “Does the Minister consider that the Leveson recommendations will be adequately implemented if the only self-regulatory body declines to seek audit by the royal charter body?” The Minister tried two answers and the house spluttered (which by Hansard’s convention has to be rendered as ‘Oh! Oh!’). So, as everyone here knows, these matters are not done or dusted. But today other matters are central.

Regulating Content, Act and Structure

Regulation of the media can focus on several matters, including speech content, speech acts and media structures. For example, the regulation of speech content may require or prohibit the publication of some sorts of material, so is of limited use if there is to be a free press; it but can be used by exception, for example by prohibiting sexualised content in children’s programmes. Regulation of speech acts can take many forms, running from prohibitions on defamation, fraud or perjury to requirements for truth in advertising, disclosure of relevant matters in legal disputes, and requirements for accuracy in filing income tax returns. Regulation of media structures can aim to secure plurality without directly requiring or prohibiting specific types of speech content or speech acts. (However, somewhat confusingly, regulating media structures by requiring specified amounts of certain types of content, as in the regulation of public service broadcasting is often called ‘content regulation’ (e.g. by Ofcom) although it does not however mandate or prohibit specific speech content.

Discussion of media plurality

Discussion of media plurality was to some extent set aside during the period of the Leveson Inquiry, but has now assumed greater importance as shown by the DCMS consultation, by Ofcom advice to DCMS, by the recent HoL Committee on Communication report on Media Plurality published in February, and by several other analyses, including Steve Barnett’s instructive paper on the subject. But I think that it nevertheless remains somewhat unclear what media plurality is and is not, so I shall make a few comments on the point or purpose of plurality, and leave it to others to say more about some possible forms that it might take. What I shall try to say is intended only as a stimulus, or if you will a target, for discussion today.

Diversity First

It is quite widely agreed that plurality is not a goal in itself, but a means to an end, such as a well functioning democratic society, or a vibrant culture, or limiting the concentration of media power. Plurality may help to ensure that there is a diversity of viewpoints is available, and perhaps accessed. Plurality may prevent any single owner or controller gaining too much power or influence.

Why, one might ask, if the real aim is either diversity or limiting media power, should we focus on plurality? I think there is a very basic reason why diversity is not the immediate target of regulation. It is that any attempt to impose or demand diversity of content might require a degree of dirigisme and control of the media that was incompatible with rights to freedom of expression, and specifically with media freedom. Diversity has, so to speak, to be secured by oblique methods. It may (as noted) be possible to ensure some diversity of types of content by controlling structures and prescribing limits to the quantity or proportion of content of certain types (e.g. News coverage, religious broadcasting, sport, contemporary music), but go too far in regulating content and you end up without press freedom.

By contrast, some sorts of plurality requirement are no threat to media or individual freedom of expression. In particular, classical anti monopoly provisions do not work by controlling content. Even if a powerful media organisation is required to divest itself of an asset, there need be no threat to freedom of expression, or to diversity. (I note, however, that there was considerable resistance to the thought that plurality mattered at the time of the passage of the Communications Act 2003, and that Ministers insisted that size would matter in the digital world.)

Which Sorts of Plurality?

Plurality is therefore an attractive surrogate for diversity because it does not dictate content, yet seems likely to secure some or quite a lot of diversity. But which sorts of plurality actually matter, and which are likely to contribute to which sorts of diversity? There are a lot of possibilities: a plurality of organisations (publishers, broadcasters); a plurality of owners or controllers; a plurality of political orientations; a plurality of platforms; a plurality of content providers, a plurality of media products. However, I suspect that the awkward reality is that none of these forms of plurality will guarantee diversity, although lack of plurality may jeopardise diversity, as notably in societies where the media are wholly state controlled.

Plurality without Diversity?

Plurality does not guarantee diversity because a plurality of publishers, or owners, or content providers, may produce remarkably similar content, hence little diversity. This may happen if they are chasing the same demographic, or if a particular type of content is cheap, or popular or profitable.

I remember years ago, at a conference on media and democracy in Washington DC, a delightfully cynical old hack asked his audience to say was the best sort of radio programme. We were non-plussed, but he pointed out that it was obviously a programme about water safety for boy scouts. Those programmes were ideal because they could count towards the educational and the public service quotas, and because they were so thoroughly worthy and uncontroversial that they could not lead to litigation. Blandness did not matter, but being controversial or failing to meet one’s quotas did. Here one can see an example of plurality requirements reducing diversity. Or consider the Hollywood studios in their heyday: plurality, but limited diversity. Plurality of various sorts is compatible with convergence of content, lack of diversity, indeed dreary repetitiveness. So what matters is to work out which sorts of plurality are likely to have which sorts of effects in actual circumstances.

Plurality and Ownership

Questions about plurality of ownership will no doubt be a central theme for discussion today, but I want to mention one other aspect of plurality that seems to me rather often overlooked, and that is less plurality of owners, than plurality of their interests. One of the interesting features of UK newspapers today is that while there is a plurality of owners, they share certain interests. Many are not UK citizens (e.g. they include citizens of the US or Russia); others who are citizens, are not UK residents or (presumably) tax payers. In these respects they do not share their readers’ interests or fate, yet their newspapers comment extensively and influentially on matters such as UK taxation and membership of the EU. This is fairly unusual, and in many other jurisdictions foreign ownership of the news media would be prohibited or restricted. Opinions will differ on whether a lack of plurality of interests among newspaper proprietors is likely to have material effects. But consider this scenario: If at some future time Mr James Murdoch decides that British newspapers are not profitable enough and sells off some titles, would it matter the new owners increased the proportion of the UK media in foreign ownership, by adding added (say) a Qatari or a Chinese owner of a major title to our current list of expat owners? There is nothing to prevent that.

Onora O’Neill combines writing on political philosophy and ethics with a range of public activities. She comes from Northern Ireland and has worked mainly in Britain and the US. She was Principal of Newnham College, Cambridge from 1992-2006, President of the British Academy from 2005-9, chaired the Nuffield Foundation from 1998-2010, has been a crossbench member of the House of Lords since 2000 (Baroness O’Neill of Bengarve). She currently chairs the UK’s Equality and Human Rights Commission and is on the board of the Medical Research Council. She lectures and writes on justice and ethics, accountability and trust, justice and borders, as well as on the future of universities, the quality of legislation and the ethics of communication, including media ethics.