Chapter 6 - Regulation of the media – a new regulator
Regulatory strategies are often described in terms of a pyramid,164 or a continuum, with government intervention and sanctions increasing along the continuum, or with each layer of the pyramid.
The spectrum of options is usually seen as having self-regulation at one end and government regulation at the other, and we will adopt that approach in the discussion of the range of models below. However, the lines between regulatory models are not always hard and fast. For example, some press councils that are essentially self-regulatory are backed up or underpinned by legislation. Others are described as self-regulatory by one commentator, and co-regulatory by another.
The media freedom group Article 19 suggests that self-regulation may be a misnomer in some situations, and that the term “independent regulation”, avoiding undue influence from any quarter, so as to preserve press freedom, might be more appropriate.165 We agree with this view, and will use this terminology in our discussion of the options for regulation in New Zealand later in this chapter. In the following paragraphs, we use the traditional regulatory terms, but note that some of the examples provided may be described by others as being at a slightly different place on the regulatory spectrum.
At the top of the regulatory pyramid is government regulation, or “command and control” regulation, which occurs when the State sets the legislative or regulatory rules, monitors compliance with them and enforces them by imposing sanctions. Government regulation has the advantages of universal coverage, compulsion, legal enforceability and democratic accountability. It may provide effective overarching controls on market behaviour, and minimum standards of quality, fitness and service performance. The statutory nature of the framework makes the imposition and enforcement of monetary penalties and stringent sanctions less problematic than in a self-regulatory context.
However government regulation is also criticised as being expensive, inefficient, stifling innovation, and inviting enforcement difficulties. Because it is statutory in nature, it is less flexible and responsive to change than a self-regulatory or co-regulatory model. It may also result in greater restrictions being imposed on freedom of expression, and have lower levels of cooperation from the industry.
In the United Kingdom, broadcasting and telecommunications are regulated by the United Kingdom Office of Communications (OFCOM), a statutory body established under the Communications Act 2003. OFCOM is required under the Communications Act 2003 and the Broadcasting Act 1996 to draw up a code for television and radio, covering standards in programmes, sponsorship, and product placement in television programmes, fairness and privacy.166 The Code must secure standards objectives set out in the Communications Act, and also gives effect to a number of requirements relating to television laid down in European Union directives. The Code is a set of principles and rules, and includes practices to be followed in relation to matters of fairness and privacy.
In cases of a breach of the Code, OFCOM will normally publish a finding on its website. When a broadcaster breaches the Code deliberately, seriously or repeatedly, OFCOM may impose statutory sanctions against the broadcaster. By way of contrast with the limited range of sanctions available to the self-regulatory UK Press Complaints Commission, the sanctions available to OFCOM include a decision to:167
- issue a direction not to repeat a programme or advertisement;168
- issue a direction to broadcast a correction or a statement of OFCOM’s findings which may be required to be in such form, and to be included in programmes at such times, as OFCOM may determine;169
- impose a financial penalty;170
- shorten or suspend a licence (only applicable in certain cases);171 and/or
- revoke a licence (not applicable to the BBC, S4C or Channel 4).172
In most cases the maximum financial penalty for commercial television or radio licensees is £250,000 or 5% of the broadcaster’s ‘Qualifying Revenue’, whichever is the greater.
At the other end of the spectrum is self-regulation. A self-regulatory scheme is one in which the rules that govern market behaviour are developed, administered and enforced by the people whose behaviour is to be governed, rather than being imposed by the state.173 Self-regulation usually has no or little government involvement, other than the general underlying legal framework of consumer protection and laws relating to business, contracts and competition. Industry takes the lead in setting regulatory standards and enforcing compliance. A code of practice is the most common form of self-regulation.174
A large number of press councils are self-regulatory, and operate without any state support or involvement. Examples include press councils in Australia, Canada (Alberta, the Atlantic Provinces, British Columbia, Manitoba and Ontario – Quebec operates with some state funding, as we will discuss below), the Netherlands, Norway, Sweden, Switzerland, the United Kingdom and New Zealand. These self-regulatory models do not necessarily apply only to the regulation of print media: the press councils in Norway, Switzerland and the Netherlands regulate broadcasting as well as print.
In Norway, the government abolished the statutory Broadcasting Complaints Commission in 1997, in favour of the entirely self-regulatory Norwegian Press Council. One of the reasons given for this withdrawal of public regulation was that the Press Council was a better known entity, highly respected by the media and the public. It was already taking cases even if they were simultaneously brought before the Broadcasting Complaints Commission, and the abolition of the Commission avoided a duplication of work.175
In Ireland, the Press Council was established in 2007. The Irish Press Council is industry funded, but section 44 of the Irish Defamation Act 2009 provides for its formal recognition, and Schedule 2 of the Act sets out the minimum requirements of the body recognised as the Press Council. These include a requirement for the Press Council to adopt a code of standards that includes ethical standards; rules relating to accuracy where reputation is likely to be affected; to prevent intimidation and harassment; and to ensure respect for privacy, integrity and dignity of the person. The Code of Practice itself was drawn up by representatives of the industry. The Irish model provides a good example of the difficulties of categorising regulatory structures in black and white terms – some describe the system as self-regulatory, while others call it co-regulatory, because of its statutory underpinning.
Self-regulation has the potential to be more flexible and responsive to change than government regulation. This is a considerable advantage in an area in which change is a constant – for example, self-regulatory bodies can extend their remit without the need for legislative change. Thus, like a number of overseas press councils, the New Zealand Press Council has decided itself that it will consider complaints about online material, while the Broadcasting Standards Authority is unable to do so because of the constraints of its legislation.
Self-regulation is also often cheaper than government regulation, being funded predominantly or entirely by industry. Its proponents argue it encourages a culture of engagement, goodwill and responsibility on the part of the industry. The very desire to avoid greater regulation can be a strong incentive to the industry to maintain standards – a survey of the history of press councils suggests that their creation, or in the case of existing bodies, their reform, usually occurs as a response to a crisis of some kind, resulting in a threat of government regulation.176
On the other hand, critics of self-regulation might ask how the arguments that self-regulation generates a culture of engagement and responsibility stack up in the face of allegations of phone hacking by members of the news media in the United Kingdom. Self-regulation may be open to abuse, and is marked by a lack of democratic accountability. When standards are set by industry groups, with an economic interest in the regulated industry, there may be a risk of bias towards weak standards that favour business. Where broader public interests are involved there may be a risk that industry-based groups do not take a sufficiently broad view of the world.
Self-regulation also relies on industry-wide commitment to be effective. The key element of a self-regulatory system is the voluntary participation of those who are regulated by the system. Where that support is not present, the credibility of the whole system can be undermined – and its financial viability threatened.
Sanctions imposed by self-regulatory bodies
One of the characteristics of self-regulation is that generally rules and codes of conduct are formulated by the relevant industry, and the industry is solely responsible for enforcement. A feature of self-regulatory press councils in almost all jurisdictions we considered is that they have limited sanctions which they can impose where a complaint is upheld. The most common sanction is the publication of a decision critical of the media body in question. Criticism of self-regulation of the press often focusses on this issue, with self-regulatory bodies being described as “toothless” because of their inability to impose fines.
However, others insist that sector-wide self-regulatory bodies should only have the power to impose moral sanctions, such as the publication of a correction or an apology, and argue that the concept of voluntary compliance is fundamental to self-regulation:177
Law courts play no role in adjudicating or enforcing the standards set and those who commit to them do so not under threat of legal sanction, but for positive reasons, such as the desire to further the development and credibility of their profession. Self-regulation relies first and foremost on a common understanding by members of the values and ethics at the heart of their professional conduct.
Editors and journalists maintain that publication of an adverse decision is an effective sanction because no editor wants to have to admit to his or her readers that a publication or broadcast was inaccurate, unbalanced, or otherwise breached the standards they had agreed to follow. Yet there continues to be a degree of public scepticism over whether publication alone is a meaningful sanction. The question also arises as to how a press council can ensure that adverse decisions are published with due prominence – or in some circumstances, are published at all.
In the Netherlands, the Press Council Foundation (the industry organisation that established the press council) has entered into a voluntary agreement with several chief editors, whereby the medium gives an undertaking that it will publish decisions of the council. Not all chief editors have signed the agreement.178
Very few press councils have the ability to impose fines. The Swedish Press Council can charge a publication an “administrative fee”, which is used to fund its activities. Newspapers with a circulation of 10,000 copies will pay up to 12,000 SEK. Newspapers with larger circulation pay up to SEK 30,000.179
In 2009, a study considering press councils in Western Europe commented in relation to the Swedish Press Council that the general impression was that the administrative fines imposed had barely any effect, and that the media, particularly the tabloids, were simply resigned to them. The study noted the risk that if the fines were set too high, papers might be tempted to offer payments to complainants for the withdrawal of a complaint.180
The concerns raised about press councils having the power to impose sanctions often refer to the effect any such power would have on the underlying nature of a press council as an inexpensive forum for resolving complaints without unnecessary legal formality. On this view, the ability to impose significant sanctions would raise the stakes in press council complaints, raising issues of legal representation, onus and standard of proof, and rights of review and appeal. If substantial fines were available, there may also be issues of a potential chilling effect on the freedom of the press.
In the United Kingdom, to date the Press Complaints Commission has resisted calls for it to have the power to levy fines or award compensation. However, in a 2009/10 review, the United Kingdom Culture, Media and Sport Select Committee made a number of recommendations aimed at making regulation of the press in the UK more effective, describing it as “toothless” compared with other regulators.181 It recommended that the Press Complaints Commission should have the power to fine its members where it believed that the departure from the Press Complaints Commission’s Code of Practice was serious enough to warrant a financial penalty, including, in the most serious of cases, suspending the printing of the offending publication for one issue:182
The industry may see giving the PCC the power to fine as an attack on the self-regulatory system. The reverse is true. We believe that this power would enhance the PCC’s credibility and public support. We do not accept the argument that this would require statutory backing, if the industry is sincere about effective self-regulation it can establish the necessary regime independently.
The Leveson inquiry will no doubt revisit the question of the adequacy of the PCC’s current sanctions.
Self-regulatory bodies with state funding
Self-regulation does not necessarily exclude the possibility of state funding. There are examples of self-regulatory media bodies that receive some funding from the State, including Finland (where half the costs of the council are funded by the state); Quebec, (part state-funded) and Germany (where the Council is part funded by the state with funding underpinned by statute).183 The stated purpose of the German statute is to guarantee the independence of the complaints committee of the German Press Council. The state is barred from interfering in any way with the work of the German Press Council. The total of each year’s grant is decided in the federal budget debate.184
In Belgium the Flemish press council, the Raad voor de Journalistiek, is indirectly financed in part by the government, which subsidises the journalists’ union that provides half the funding for the council.185
Co-regulation lies on the spectrum between self-regulation and state regulation. It usually involves industry association self-regulation with some oversight or ratification by government.186 Co-regulation has been described as having the advantage of allowing a higher level of control by government, while still allowing industry-led regulation.187
There are many different forms of co-regulatory model. One is where a co-regulatory system is initiated by the state – the state lays down a legal basis for the co-regulation system, so that it could begin to function.188 One of the key distinctions between self- and co-regulatory schemes has been described as being the voluntary nature of the participation in the scheme:189
In a co-regulatory-system, non-compliance with the given rules is directly or at least indirectly (e.g., in the form of possible revocation of a licence) sanctioned by the state (public authority). Thus, the market players concerned are not actually free in their decision to participate in the system.
In Australia the regulation of television and radio content is subject to co-regulatory arrangements. Most aspects of broadcast programme content are governed by codes of practice developed by industry groups and registered by or notified to the Australian Communications and Media Authority (ACMA), a statutory body.190 Once the codes are implemented, ACMA monitors compliance with them and deals with complaints made under the codes that are not resolved by complaint to the broadcaster.
The ACMA also administers a co-regulatory scheme for online content through codes of practice, and enforces Australia’s anti-spam law. The co-regulatory scheme aims to address community concerns about offensive and illegal material online and to protect children from exposure to unsuitable material.191
A co-regulatory model established by statute can be found in Denmark. The Danish Press Council regulates both print and broadcast media. It was established by the government after a self-regulatory body collapsed in 1992 because of economic disputes between journalists and media owners, and a lack of support from most media outlets.192 Created under the Media Liability Act 1991, the Danish Press Council is an independent body. Its members are appointed by the Minister of Justice, but on the recommendation of various bodies.193 Section 50 of the Act provides that decisions of the Press Council cannot be brought before another administrative authority. Despite being established by statute, the Danish Press Council is entirely industry-funded.
Co-regulation provides a halfway house between state regulation and industry self-regulation. It allows the industry to partially regulate itself, but provides a statutory “back-stop”. It can allow for a wider range of sanctions than a purely self-regulatory model, depending on the degree of government oversight or involvement. In Australia, where a person has breached a provision of a code, the ACMA may direct compliance with the code. In that case a failure to comply is an offence, which is punishable by criminal, civil and administrative penalties. The ACMA has a reserve power to make an industry standard if there are no, or no adequate, industry codes.194
Co-regulation shares many of the advantages and disadvantages of self-regulation and government regulation. It may not be as flexible or speedy in its response to changing circumstances as a purely self-regulatory system, but it may be seen to provide greater protection where important public policy goals are at stake.
There is another option, outside the standard regulatory pyramid, and that is not having a regulator at all, leaving regulation to the framework of the ordinary law, such as the law of defamation, privacy and harassment.
In discussing a range of options for the reform of the regulation of the press in the United Kingdom, Martin Moore of the Media Standards Trust noted that one possibility was to abolish the Press Complaints Commission without setting up a replacement body. He described the benefit of this approach as being its recognition of the difficulties of creating a new system that cuts across very different content and an increasing range of media and platforms.
This would not preclude news organisations setting up their own internal systems for monitoring standards and considering complaints, as many do now. In the United States, for example, there is now only one state press council that considers complaints.195 Many newspapers (including the Washington Post and the New York Times) use news ombudsmen to receive and investigate complaints from readers about accuracy, fairness, balance and good taste in news coverage. The ombudsman recommends appropriate remedies or responses to correct or clarify news reports. In the most serious cases, he or she may discuss the error in his or her ombudsman’s column.
This model is also consistent with a view that suggests that the internet presents new opportunities for people to hold the media to account in a timely fashion, so that there is no longer any need for a regulatory body. If one of the media makes a mistake, that will be corrected by a flood of messages on Twitter or comments on blog sites.196 The media as a whole, in other words, will self-correct. Honesty and integrity are maintained by sheer weight of numbers, and it happens very quickly. There is no need for an independent regulator.
In February 2011, the Board of Directors of the Minnesota News Council announced the closure of that organisation. Funding issues were one reason for the closure. The other was the internet:197
The growth and expansion of the Internet had a profound impact on our efforts. The proliferation of blogs, which allowed news consumers their own distinct voices, email and comment sections to online news stories, provided an instantaneous outlet for complaints, concerns and commentary on the news. Our hearing process, which was both thorough and, as a result, time-consuming, couldn’t measure up to the instant access allowed by electronic media.
However, we are not convinced by this rationale for abandoning an independent regulator. “Censorship” by other media can only take matters so far. For one thing, this self-correcting mechanism deals principally with accuracy issues: it is much less well adapted to deal with, say, issues of privacy, fair treatment, and good taste. Nor does it always ensure a good outcome on accuracy issues. Some serious inaccuracies may not attract the attention of bloggers on the social media. Nor does a volume of responses necessarily mean that a single “right” answer will be arrived at.
Critically too, it disregards the very real power imbalances which persist in the web publishing environment. An aggrieved individual may not feel inclined to join public battle with a well-known and influential website. Nor, if an error or other breach of standards appears in on a mainstream media news site, can it be guaranteed that all readers will see a stream of corrective comment in the social media. Furthermore, just as editors have famously always had the power that comes with “having the last word”, so too can the blogger or web publisher dictate the terms of the debate.
There is, we believe, no substitute for the systematic investigation of a complaint by an independent body. We agree with the views recently expressed by the Executive Director of the Organisation of News Ombudsmen:198
Often the reason given for abandoning the position [of news ombudsman] is credited to (or blamed on) the Internet. Some editors think that blogs and media critics can do as good a job of holding a news organisation accountable. In some cases, this may be true. But in my experience, accountability requires a systematic approach to complaints, combined with an ability to know the newsroom culture, and then have the capacity to make an independent judgment about a legitimate complaint.
Many of the privileges and exemptions currently accorded the news media depend on the assumption that the media will behave in a responsible and trustworthy manner. We believe that we are still a long way from a state where the public no longer wants or needs a mainstream “news media” which it can rely on for a reasonably dependable account of necessary news and information. We think the required public trust is best ensured by the presence of an objective and independent regulatory body. In the next part of this chapter we consider the form such a regulator should take.
The specific provision which empowers OFCOM to impose sanctions for a breach of licence conditions will depend upon the type of licence held. OFCOM’s powers to impose sanctions for breach of a relevant enforceable requirement on the BBC are contained in section 198 of the Communications Act 2003 and the BBC Agreement, and its powers in respect of S4C are contained in section 341 of, and Schedule 12 to, the 2003 Act.
Under, for example, sections 40(1) and 109(3) of the Broadcasting Act 1990 (UK), section 236(2) of the Communications Act 2003 (UK), clauses 93(1) and (2) of the BBC Agreement and paragraph 15 of Schedule 12 to the Communications Act 2003 (UK) in S4C’s case.
House of Commons Culture, Media and Sport Committee Press standards, privacy and libel Second Report of Session 2009–10 HC 362-I < www.publications.parliament.uk/pa/cm200910/cmselect/
Law for Guaranteeing the Independence of the Complaints Committee of the Press Council 1976. The Council’s structures and duties are governed in its statutes of 25 February 1985 - www.presserat.info/service/english/keyfacts-in-english.html
See Palzer and Scheur “Self-regulation, co-regulation, public regulation” www.emr-sb.de/news/Palzer_Scheuer_Unseco-Clearinghouse_Yearbook2004.pdf Following this approach, some commentators describe the Irish Press Council as a co-regulatory model, while others call it self-regulatory, or simply refer to it as an independent regulator.
The chair and vice-chairman must be members of the legal profession, appointed on the recommendation of the President of the Danish Supreme Court; and of the six remaining members, two must be appointed on the recommendation of the Danish Journalists’ Union; two on the recommendation of the print and broadcast media; and two public representatives must be appointed on the recommendation of the Danish Council for Adult Education.
In the course of preliminary consultation with editors of a New Zealand news website we were given examples of how rapidly and efficiently this system of reader feedback operates through platforms such as Twitter and Facebook.