Jonathan Heawood

Regulating ethics: A way forward for charitable journalism

In this paper, I review the decision of the English Charity Tribunal to grant charitable status to the Independent Press Regulation Trust and argue that, by recognising the existence of a distinct body of journalism ethics, the tribunal has opened a way forward for charitable journalism

Keywords: regulation, ethics, charitable journalism, Charity Tribunal, Independent Press Regulation Trust

Introduction

There have been sustained calls in recent years for journalism to be recognised as a charitable activity in England and Wales, as it is in the United States (Smith et al. 2011; Levy and Picard 2011; Heawood et al. 2012; House of Lords 2012; Moore 2014; Radcliffe 2015). Charitable status would allow non-profit news organisations to raise funds through charitable donations, which would in turn help to diversify the range of voices represented in an otherwise highly concentrated news media sector.

In its capacity as the ‘fourth estate’, journalism undoubtedly plays an important public function. Journalists hold powerful groups and individuals accountable for their actions, expose wrongdoing and disseminate information of social value. Journalism does good, therefore news organisations do good, runs the argument. Charitable status is appropriate for organisations that do good, therefore news organisations should be charities. In practice, the legal reality does not permit this simple conclusion.

The requirements of charitable status do not coincide neatly with the practice of journalism. Under English law, charities must exist to pursue exclusively charitable objects, such as the advancement of education, citizenship or community development; they must provide demonstrable benefit to the public and they must not exist to achieve a political purpose (Maclennan 2007). Traditional news publishers tend not to meet any of these criteria. They are highly politically partisan – a fact which was recognised and welcomed in the Leveson Report: ‘It is the prerogative of a free and partisan press in a democracy to campaign, lobby and seek to influence both public opinion and public policy’ (Leveson 2012: Part I, Chapter 1, 1.12).

As commercial entities, news publishers do not exist to pursue objects such as community development but to generate financial rewards for their owners and shareholders. The vast majority of traditional news publishers could not possibly become charities under the current legal framework, and it is not the purpose of this article to argue that they should. The nature of the public good which is provided by journalism in general is quite different from the nature of the public good which may be provided by certain forms of journalism in particular. When I refer to this latter form of journalism as ‘charitable journalism’, I mean journalism which has the potential to demonstrate its charitable nature in the legal sense upheld by the Charity Commission for England and Wales (‘the commission’). This is not possible for all journalism, by any stretch of the imagination. But it is possible for some forms of journalism.

The commission has accepted that, in principle, some journalism may well be charitable in the narrow legal sense (letter from Alice Holt to Andrew Phillips, 3 December 2010, cited in Heawood et al. 2012: 11). However, the commission has suggested that, before registering a news organisation as a charity, it would need to see concrete evidence that its journalistic activities are directed towards and reflect a charitable purpose; that this purpose will, in fact, be achieved; and that this purpose will benefit the entire public, or a sufficient section of the public (ibid). In effect, the commission wants to understand the ethical standards under which charitable journalism is produced. This concern was echoed by participants at a seminar about charitable initiatives in journalism, at which the Charity Commission was represented, when it was suggested that any charitable news organisation would require ‘robust operating guidelines and a system of enforcing them’ and that there could be ‘a need for formalising standards of conduct and decision making process … through an independent body’ (Westminster 2014: 7). Thus, in order to be capable of demonstrating a charitable purpose and public benefit, charitable journalism must be able to demonstrate that it is produced according to high ethical standards, formalised and upheld by an independent body.

Whilst the United States Inland Revenue Service (IRS) has granted numerous non-profit news organisations the equivalent of charitable status (see Hermes 2012: passim), the comparatively cautious Charity Commission has so far recognised very few, of which perhaps only one, the Maidenhead Advertiser, has all the characteristics of a traditional newspaper (see Townend 2016: 63-64). There is, therefore, little case law in this area, and consequently almost no guidance on the ethical standards under which charitable journalism might be produced. For this reason, the case of the Independent Press Regulation Trust (IPRT) is of considerable interest.

The Independent Press Regulation Trust

The IPRT was established by a Declaration of Trust dated 8 November 2013 to promote ‘high standards of ethical conduct and best practice in journalism and the editing and publication of news in the print and other media, having regard to the need to act within the law and to protect both the privacy of individuals and freedom of expression’ (cited in Vernor-Miles, Flackett and Rees-Pulley v Charity Commission for England & Wales 2015: 2). The Declaration of Trust expects that the IPRT will advance this object by activities including ‘the provision of financial assistance towards the establishment and support of an independent press regulator or independent press regulators to be established and conducted for the whole or any part of the United Kingdom in accordance with the recommendations and principles set out in the Leveson Report’ (ibid).

The Leveson Report, published in 2012, recommended a new regulatory regime for the press, to be independent of control by either the newspaper industry or government (Leveson 2012). A regulator designed in accordance with the Leveson recommendations would, to paraphrase the comments cited above, formalise and uphold ethical standards of journalism. This would not only help to regulate major national and regional news publishers; it would also satisfy the need of charitable news organisations for ‘robust operating guidelines and a system of enforcing them’ (Westminster 2014: 7), thereby demonstrating to the Charity Commission that such organisations were likely to be of benefit to the public.

The IMPRESS Project was launched in November 2013 to develop plans for such a regulator.[1] That regulator was launched, as IMPRESS: The Independent Monitor for the Press (‘IMPRESS’), in 2015 and will commence operations in 2016. IMPRESS is constitutionally separate from the IPRT, although the two entities have similar purposes. In 2014, the IPRT proposed to provide financial assistance to IMPRESS. This proposal was concluded in 2015 in the form of a four-year funding agreement.

The IPRT’s application for charitable status was twice rejected by the Charity Commission, first on 7 May 2014, and again, after an internal review, on 16 October 2014. At this point, the trustees of the IPRT took their case to the first-tier tribunal (charity) (‘the tribunal’), where the case was eventually heard on 12 May 2015. Whilst the tribunal did not consider arguments relating directly to the charitable nature or otherwise of journalism, their decision indicates a possible way forward for news organisations which aspire to charitable status.

The tribunal’s decision

For the purposes of the IPRT appeal, I was commissioned by the trustees of the IPRT to prepare a report on the public benefit in independent press regulation. My report was unchallenged by the commission and was relied upon as evidence by the tribunal.

In the report, I set out the core ethical standards of journalism, as represented in the UK by the Editors’ code of practice and the National Union of Journalists’ Code of conduct (IPSO 2016; National Union of Journalists 2011). These codes share some underlying principles with other journalism codes around the world, which, together, constitute a recognisable body of journalism ethics. The Council of Europe has recently distilled the principles which are common to the ethical standards of journalism codes across Europe into the following list (Council of Europe 2011), which I cited in my report:

• respect for dignity and privacy;
• respect for the presumption of innocence and fair trial;
• respect for the right of intellectual property;
• remedies for third parties, in the form of a right of reply;
• avoidance of hate speech;
• respect for the rights of children;
• respect for the rights of women;
• respect for the rights of minorities;
• avoidance of covert advertising.

I concluded by describing the public benefit to be derived from independent press regulation in the form recommended by Lord Justice Leveson:

A body such as IMPRESS, which complies with the public interest principles of the Leveson Report, would be of considerable benefit to the public. It would promote ethical journalism, free expression, privacy, alternative dispute resolution and the education of journalists and the public. It would encourage the publication of journalism that provides the public with accurate and reliable information and which avoids harm. It would help the courts to distinguish between journalism produced according to ethical standards and other forms of expression, thereby upholding the constitutional protections for free expression, within permissible limitations. It would protect the human right to privacy, not only by offering redress for the victims of privacy breaches, but also by mitigating the risk of such breaches in future. It would promote alternative dispute resolution through its complaints-handling and arbitration schemes. It would educate journalists and the public through its standards code and the publication of guidance on the code, and by allowing publishers to display a kitemark to help the public distinguish ethically regulated journalism from other forms of expression. Any private benefit to regulated news publishers under such a system would be minimal and incidental to the public benefit (Vernor-Miles, Flackett and Rees-Pulley v Charity Commission for England & Wales 2015: 5).

The tribunal found this evidence regarding the public benefit in ethical journalism ‘persuasive’ (ibid: 9), and concluded that, by formalising and upholding a clear code of journalism standards independent press regulation was capable of advancing the ethical and moral improvement of the community – a recognised charitable purpose. The tribunal, therefore, upheld the IPRT’s appeal and directed the commission to enter the IPRT on the register of charities. This decision was underpinned by the tribunal’s acceptance that there is a recognised body of journalism ethics, and the implicit acknowledgement that journalism produced according to such ethical standards is likely to be of benefit to the public.

Conclusion

If charitable news organisations are to demonstrate that their journalistic activities are directed towards a charitable purpose; that this purpose will, in fact, be achieved; and that this purpose will benefit the entire public, or a sufficient section of the public, then they must – among other things – be able to show that their work is produced according to ethical standards. This is not sufficient to achieve charitable status, but it is a necessary precondition.

By registering the IPRT as a charity, the tribunal has created a precedent in charity law for the existence of such ethical standards of journalism. The tribunal did not see any need to define ethical journalism, but relied as evidence upon the existence of a set of recognised principles, as distilled by the Council of Europe (Council of Europe 2011). This precedent should help news organisations show the Charity Commission that they will fulfil their charitable purposes by researching and publishing stories with full regard for the rights and interests of any individuals concerned, and of society as a whole, according to a recognised code of ethics.

Moreover, by enabling IMPRESS to operate as an independent press regulator, with financial assistance from the IPRT, the tribunal has helped to create a framework within which the ethical standards of news organisations may indeed be formalised and upheld. News organisations which are independently regulated by a body such as IMPRESS can demonstrate to the commission that they follow high ethical standards of journalism. This should provide the commission with the necessary reassurance that, whilst not all journalism is charitable, certain forms of journalism are charitable, and that charitable journalism may be recognised by its regulation against clear ethical standards. And this, in turn, should lead to more scope for news organisations to be granted charitable status.

Note

[1] The author was founding director of the IMPRESS Project and is Chief Executive Officer of IMPRESS

Note on the contributor

Jonathan Heawood is Chief Executive Officer of IMPRESS and a Visiting Fellow at the Centre for Writing and Rights, University of East Anglia. He co-chaired the Advisory Group on Journalism and Charitable Status and gave evidence to the Leveson Inquiry in his capacity as Director of English PEN. Recent publications include Censorship, The encyclopedia of twentieth-century fiction, Oxford, Blackwell, 2011; Taking offence: Free speech, blasphemy and the media, Mitchell, Jolyon and Gower, Owen (eds) Religion and the news, Farnham, Ashgate, 2012; Writerly rights: Free speech, privacy and H. G. Wells, Critical Quarterly, Vol. 56, No. 4, 2014; and Independent and effective? The post-Leveson framework for press regulation, Journal of Media Law, Vol. 7, No. 2, 2015.