Regulation? What’s the minimum needed?

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Tom Kent

The following is an extract from an EJN presentation to the conference of ABRAJI – the Brazilian Association of Investigative Journalism on July 2 in Sao Paulo.

When we talk about media regulation, people often have completely different ideas of what the term means.

To some people, it means limitation of media oligopolies. They see regulation as a path to the democratisation of media; a guarantee of real diversity of political and social views; a voice for minority populations; and an essential instrument in the development of national language and culture.

To others, media regulation is quite different. For them, the term is simply a code word for limitations on freedom of expression. They fear that any regulation of the media, especially by the government, can lead to the imposition of government political control. Whenever politicians start to talk about a press law, these people fear their ultimate goal is less democracy, not more.

So we’re on delicate territory. On one hand, we want to extend free expression to more and more people, to flatten the media landscape, to give access to everyone. But does that raise the prospect of limiting the freedom of those who are on that landscape now? Does it deprive them of the freedom to benefit from the popularity of their products, to build the economic and political strength they may need to defend their reporters in courts and against government officials?

As we look at media regulation, the first question we need to ask is, what exactly the problem we’re trying to solve?

Is the problem fundamentally economic? Are media companies so dominant that competitors can’t get enter the market? Are media conglomerates so powerful that alternative media – bloggers and social networks – are unable to get traction?

Is the problem basically one of democracy, that alternative and minority voices are not heard?

Or is the problem one of journalistic ethics? Are media distorting political and social realities? Has the press become a vehicle for hate speech? Are news media offering coverage in return for money? Are newspapers and broadcasters trampling on the rights and privacy of citizens?

It’s tempting to say, well, it’s a little bit of all of that. But that can lead to sweeping prescriptions that try to control every aspect of the news media. And that can evoke the worst fears of everyone.

Related to this, of course, is the question of who’s going to regulate the media. Will it involve legal controls at national or international levels? Can it be left to voluntary associations of newspapers and broadcasters or is there scope for a combination of private and public review?

And when we talk about regulating the media, we also have to ask whom exactly we’re trying to regulate. Is it only major newspapers and broadcasters that reach millions of people or is it also one-hundred watt radio stations in remote areas and bloggers with thousands of followers? Anyone who posts and tweets on public issues on social networks? The question “who’s a journalist” is an ever-broader one these days.

Let’s talk first about government regulation.

Some governments that are dedicated to democracy use press laws to guarantee freedom of expression. Governments administer them with great care.

Elsewhere, governments are concerned largely with their own power. Around the world, there’s no shortage of governments that regulate the press with the same tools they use to enforce their will in other spheres: the power to fine, the power to confiscate, the power to ban, the power to imprison. These may not be the first measure governments take against news media. But they can still loom in the background: the prospect of shutting down newspapers and broadcasters and putting journalists and publishers on trial.

That’s the worst-case scenario, of course. But one question to ask, before creating any new legislation to be overseen by government, is whether existing laws, properly enforced, can deal with the problems that currently exist.

Most countries already have laws against libel and slander, incitement to violence, invasion of privacy, fraud and restraint of trade. What problems exist that current legislation doesn’t cover? And what’s the minimum regulation that can address them?

Suppose the problem is a lack of minority voices. A government could create a special broadcasting service, as in Australia, that opens new channels of communication without imposing on existing media. Perhaps the perceived need is to advance national culture. Governments might create very limited laws, as in Canada, requiring that broadcasters carry a certain amount programs produced in their own country.

Is the problem a lack of news and cultural coverage from small towns? Some governments, as in the United States, require cable companies, to provide channels and equipment for towns they serve to produce their own programs.

One form of regulation that’s popular in some countries is “right of reply” laws, which say a person or group criticised in the press has a right to have their response published or broadcast. Sometimes the response must be on the same page, or broadcast in the same time slot, as the original allegation.

In my opinion, news media should grant a right of reply whether the law demands it or not; if news companies are recalcitrant about this, you can see why people want it mandated in legislation.

It also seems to me what when we talk about the government regulating the press we also need to ask what the government will do for the press. Will there be a board, independent of politicians, to administer the rules? Will there be a ban on censorship before publication? Will the government promise to grant broadcasting licenses in a fair and speedy fashion? Will it guarantee the physical safety of journalists — not only in big cities, but in and rural areas? Will it distribute government advertising in a fair manner, irrespective of a publication’s political tone? Will it make government documents available to investigative reporters? Will it protect publications from arbitrary, politically motivated interference by politicians and judges, who want to prevent publication of stories or have others removed from websites?

Some have pondered creating international journalism laws to guide and justify regulation at the national level. At the United Nations and similar forums, there’s been no shortage of such proposals. Some have been launched under the banner of press freedom and human rights; others have sought to regulate hate speech. Still others have tried to manage the so-called North-South news flow; that is, to increase news coverage of developing countries and make stories about them more positive.

Most of these efforts have foundered on enormous differences among UN member nations. One country’s human rights advocate is another’s subversive. For some, hate speech is primarily about Nazi symbols and racism; for others, it’s speech that fans religious and tribal conflicts among their own people.

And, inevitably, press issues have become tangled up with broader political and economic conflicts. As a result, most of these efforts have collapsed of their own weight, and even led to walkouts, boycotts and withdrawals of funding. International press regulation seems to be a far-off thing, offering little that countries can use as a basis for their own laws.

In this situation what beside national and international laws can appropriately regulate the press? What non-governmental approaches can countries consider? Let me just cite the experiences of some European countries that have regulated their press with little or no government involvement.

In the United Kingdom, the Independent Press Standards Organization was formed in the wake of the News of the World scandal. The intent was to create something more powerful than what had existed before. The press standards organisation is a membership organisation of thousands of print and online British media. It is not limited to major, elite publishing groups. It’s completely separate from the government. Seven of the 12 board members also have no connection with the newspaper and magazine industry. The organisation does its own press monitoring and receives complaints as well. It can require the publication of corrections and can fine publications. It can also act before material is published if it believes it violates journalistic ethics.

In The Netherlands, newspapers have formed their own, private Netherlands Press Council. The government isn’t involved. The feeling is the press is a market sector that should be independent. The Council board consists 50 percent of working journalists; the rest are journalism professors or newspapers or broadcast executives. When it receives a complaint about a journalist or publication, it can mediate between the complainant and the press, or convene a formal hearing. The council then publishes its decision. But it can’t force the publication involved to publish the decision. Nor can it impose fines, reprimands or suspensions. It operates mainly through moral authority and as a result some accuse it of having too little power.

In Norway, the Norwegian Press Complaints Commission works in a different atmosphere. The government there has threatened to regulate the media if it doesn’t regulate itself; the press set up the commission in the shadow of that threat. The commission consists of two editors, two journalists and three representatives of the public. Some of its sessions are streamed live. Most publications recognise the commission’s authority. The commission can’t levy fines, but member newspapers and broadcasters are required to publish or broadcast its findings.

These councils and organisations serve the public by resolving many complaints on ethical issues. They help news media, too, by solving problems that might otherwise lead to expensive lawsuits. And the councils’ work has staved off more government regulation.

And then there are countries with almost no laws or industry councils to govern the press. These include the United States. Certainly, some general laws, like libel and invasion of privacy, apply to news media, but they are not part of a specific media law. In general, the US government, and public opinion, apply to the press the same approach they do to other sectors of the economy: let it be judged by market forces.

It’s true that the United States has no shortage of large media conglomerates. But the market forces on these conglomerates can be considerable. When scandals have broken out in the US media, companies have reacted quickly to avoid boycotts by advertisers and news consumers. Government regulators are needed less when citizens can combine to create significant economic power.

The press criticism industry in the United States is huge and powerful. It ranges from thoughtful bloggers on media ethics to aggressive political and social partisans who attack everything that doesn’t align with their point of view. These partisans can drive campaigns on Twitter and YouTube that can reach hundreds of thousands of people within hours.

Market forces have also brought US media a host of new competitors, like the Huffington Post, Vice, Vox, Buzzfeed, Oxy and Quartz. Each of these seeks to reinvent journalism, especially for younger audiences. They attract millions to their sites and mobile apps. All this combines to make US media focused more and more on readership, diversity and public reaction to their work. They encourage reporters to engage with readers directly on social networks; they make a point of responding to complaints and posting corrections quickly. It’s what regulators might well have wanted, but it’s happening organically.

The United States also recognises no preconditions to becoming a journalist. No journalism degree is required, no previous writing experience. In fact, worldwide, the lines are growing ever less distinct among professional journalists, bloggers and just anyone who posts news-like content on Facebook or Twitter. Those of us who have long experience in journalism may not like it, but it’s the fact.

In the United States, as elsewhere, this question of who is a journalist presents problems. Police departments have trouble deciding who gets a press pass; judges have trouble determining who’s covered by laws protecting journalists’ confidential sources. The general belief is that the definition of a journalist should be fairly broad.

Forms of press regulation vary substantially from country to country, but in all of them the press can, if it chooses, limit the need for regulation of its content through the professionalism and responsibility of its own behavior. This includes a true dedication to public service and presenting diverse voices.

The Ethical Journalism Network has come up with a checklist of measures which are designed to demonstrate to government and the public that the media is taking responsibility for regulating themselves, in the interests of honesty and transparency.

The Ethical Journalism Network recommends that news media:

  • First, have well-established, publicly displayed ethics codes that journalists are required to observe – complete with a whistle-blowing system in case someone disregards the rules. (The Online News Association is about to release a “Build Your Own Ethics Code” project to help organizations that don’t yet have their own codes.)
  • The EJN recommends a clear, easily accessible system for readers to submit complaints. The system may include ombudsmen and readers’ editors to take up complaints publicly. (Those interested in ombudsmen training programs might look to the Organisation of News Ombudsmen, which is doing useful work in this area.)
  • Third, the EJN asks, are there strong policies against conflicts of interest – at the editorial level, but also in the boardroom?

The questions we need to ask are clear — if there’s a system of self-regulation across news media, is there a common ethics code? Is there a well-publicised, common procedure to make complaints, and means to resolve them quickly? And finally, are representatives of the public included in the regulatory body? Is it free of political and industry interests? And are media contractually bound to respect its decisions?

Positive answers to these questions can build public trust in the notion that media and journalists are capable of regulating themselves. When that happens, it weakens arguments in favour of government or legal intervention.


Tom Kent is Standards Editor of the Associated Press and a member of the EJN Editorial Advisory Board. Follow him on Twitter at @tjrkent.

Photo: Flickr CC Ahmad Hammoud

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