An Analysis of the different forms of regulations that are used to control the media in the UK and other western democratic societies
This essay will explain what journalism regulation is, and why it is important. It will draw a map of the most common forms of regulation in the UK, before analysing their strengths and weaknesses as both guardians and servants to a democratic society.
The media is entitled to free speech; to publish stories as and when it likes. On the other hand, the public also has a right, which is the exact opposite: The right to privacy, which can be seen as an individual's right for the media not to publish certain stories. In practice, journalism regulations restrict free speech in an endeavour to protect individuals and groups from the media.
Journalism regulation, then, is the framework which balances conflicting interests between the media and the other involved parties in a system that minimises the infringement on either group's rights.
Some of the regulatory efforts are obvious: it is not acceptable to publish fictional stories as fact, for example. Other regulations might be controversial or difficult to police. Should one publish the name and address of felons? In which circumstances is it acceptable to interview children? Are there any situations where it would be permissible to negate privacy law?
Journalism regulation is a simple, yet complex concept which describes the selection and filtering process and determines what gets published, and what news items – or aspects of these items – never see the light of day. At its most basic level, journalism regulation happens in the head of a journalist who thinks "I cannot possibly put something like that in my story". At the other end of the scale, journalism regulation is an interesting mixture of work ethics, internal or external bodies of regulation, and the law.
Regulation of the Journalism Profession
There is a problem with enforcing journalistic moral values: With few exceptions, journalism "has no standards of admittance and no board of review", unlike other occupational groups such as physicians, nurses, engineers and solicitors. These groups of professionals cannot practice their profession without a license. If they violate the rules of their profession, they may have their license suspended. With their license, they also lose the right to practice their profession. This is not the case for journalism. (Gopnik 1995).
The cases of Blair, Cooke, Glass and Smith have two things in common: The journalists involved practiced in the US, and are unlikely to get jobs in journalism again. What is more interesting in terms of journalism regulation, however, is that they in theory could join forces and found a newspaper of their own. Anyone trying to stop them would be in violation of the US constitution (Schafer 2003). Whether anybody would buy the ensuing publication is a different matter altogether.
(Jayson Blair, Janet Cooke, Stephen Glass and Patricia Smith were caught filing counterfeit or fictitious articles in the New York Times, Washington Post, New Republic and Boston Globe, respectively.)
Not only do such licensing laws not exist, but their implementation would be illegal in many countries. In the US, for example, the First Amendment forbids the enforcement of journalistic standards: "Congress shall make no law abridging the freedom of speech, or of the press" (US constitution, 1st amendment, 15 December 1791). Although some countries lack laws defending freedom of expression, most countries have officially agreed to the Universal Declaration of Human Rights, which states: "Everyone has the right to freedom of opinion and expression through any media". This effectively makes it impossible for countries to introduce licensing on the journalism profession. (O'Malley 2000)
Regulation of media output
If we conclude that it is impossible to restrict who can call themselves journalists, it becomes interesting to see how we make sure editorial output is confined to the realms of acceptability.
Self regulation is essentially the embodiment of a journalist's personal morals and ethics, which act as a more or less cognisant filter between "the real world" and what ends up in newspapers. Unfortunately, this code of morals is offset against the desires of and pressure from the rest of the newsroom (especially in tabloids) to write a story that sells lorry-loads of newspapers.
Another problem with self-regulation is that neither moral nor ethical codes are universal: What is morally disgraceful to one journalist might be acceptable to another. In addition, many media professionals forget about morals altogether in the frenzy of news production.
It is in the field of self-regulation that the most startling differences between the UK and the rest of Europe can be found. In Norway, the Netherlands and Sweden, there is little formalised regulation to control the media. Instead, the journalists tend to display a far stricter form of self-discipline, which lessens the need for legislation. (Frost 2000). Among their European colleagues, British journalists are infamous for iniquitous behaviour in their quest for big stories.
A self-regulatory body is a more organised version of self-regulation. It is governed around the feelings of what type of things should and should not be published, and is often condensed into a written code of conduct. Self-regulation bodies are usually in place (formal or not) in the individual media establishments (newspapers, radio stations etc). Outside of the individual institutions, self-regulatory bodies are present on a grander scale, in the form of the journalist's unions such as the National Union of Journalists (NUJ), trade unions such as the Press Complaints Commission (PCC), or the soon-to-be active industry regulators Office of Communications (Ofcom).
These forms of regulation spring from the media industry's interest to keep the moral levels of the publication on the right side of common decency and – far more importantly – to keep the laws relatively unrestrictive.
Self-regulatory bodies were introduced in the form of the NUJ in 1936. By the mid-40s, the need for a firmer code was recognised, calling for a ban on "The low down kind of journalism which exploits the bawdy and the horrific and cares not how is gets its stories of frailty." (O'Mally 2000 p32)
The strength of this form of regulation comes from the flexibility and agility with which the system functions: If the journalists and editors stick to their own codes of practise, violations of the code of practice will never make it to print. If infringements do occur, the publication "must print the adjudication which follows in full and with due prominence." (PCC Code)
The weakness, ironically enough, is the exact same point: If the code is broken, the means of reprimand are limited, as there is no legal framework in place to force publications to follow the decrees imposed by the regulatory body. Even if the sanctions mandate of the PCC was increased, there is always the danger of a large publication ignoring the rulings altogether, undermining the reputation and influence of the regulatory body. (Feintuck 1999)
Despite these disadvantages, a stronger system is often frowned upon, and government intervention is particularly treacherous: If the government controls the law, and the law controls the press, the government ultimately controls the press. If this were the situation, it could jeopardise the press' role as guardian and protector of the people. Sir Christopher Meyer, chairman of the PCC, puts it like this: "A press free from interference by the state is fundamental to democracy. Self regulation, though imperfect like any human endeavour, is a manifestation of this truth. Without it, no press anywhere in the world can truly claim to be free." (Times Online 2003). Lord McIntosh of Haringey reiterated the same concept in parliament on November 4th of this year, adding: "For that reason, we would not seek to intervene in any way in what a newspaper chooses to publish – or not to publish." (McIntosh 2003)
The quasi-statutory type of regulations is not dissimilar to self-regulatory bodies in that they are often built up around key players in the media industry. The main difference, however, is that these types of regulatory bodies have been founded as the consequence of a legal process, resulting in a legal framework for the body's operations. This also means that these bodies have the power to punish organisations or (in a lesser degree) individuals who break the rules the body is policing.
One example of a quasi-statutory regulator is the Independent Television Commission (ITC), which is in charge of television broadcast licences. With the responsibility of distributing licences, it also carries a significant weapon of reprimand, namely the power to revoke television licenses. This was done in 1999, when Med TV, a UK-based satellite television service for a Kurdish audience, lost their licence of five years after their programming repeatedly made "inflammatory statements encouraging acts of violence in Turkey and elsewhere" (ITC 1999).
The response to the invalidation of Med TV's licence was met with mixed feelings. Unsurprisingly, Med TV is "outraged at the decision by the ITC to revoke its license" and say "the decision is undoubtedly political" (Med TV 1999). The revoke was seen as a victory for the ITC, proving that – if the worse comes to the worst – the organisation can use its strictest punishments. Simultaneously, it was seen as a defeat, as the fact that the ITC had to intervene signifies that self-regulation had failed.
Examples of quasi-statutory regulators include Broadcasting Standard Commission (BSC) and the Independent Television Commission (ITC), both of which are about to disappear altogether.
A recurring subject matter in media regulation debate is the hunger for a more centralised approach to the regulation of sectors of mass media (Feintuck 1999). This has culminated in the Communications Act 2003, which ordered the coordination of Ofcom, the body assimilating the Independent Television Commission (ITC), the Radio Authority, Radio Communications Agency, Broadcasting Standards Council (BSC), and the Office of Telecommunications Regulation (OFTEL).
The new quasi-statutory Ofcom is intended to be "‘lean and mean'; lean because regulation should not impose unnecessary burdens on the sector, and mean because – when regulation is necessary – it must be tough." (ITC n.d, emphasis theirs). These threats notwithstanding, the new Ofcom chairman would prefer the media industry to stick to self-moderation, rather than relying on external regulators for ethical guidelines (Higham 2003).
A statutory regulatory body is one that is founded and based exclusively on the text of the law. This can be seen as an advantage: the law is intrinsically absolute, and the punishments for breaking these laws can be very austere indeed.
In England, there is strong hesitation about the implementation and usage of statutory regulatory bodies. The PCC recently deemed a fully statutory body unworkable, as ordinary people would not be able to take cases to court. Lord McIntosh agrees: Introducing a judicial system "would depend on access to the courts, and with the best will in the world neither this Government nor any other government have achieved free access to the courts for all those who wish to make use of it. That above all is why statutory regulation would be a major problem." (McIntosh 1998).
Journalism regulation is a multifaceted science: While the media is dependent of the government and vice-versa, the indispensable separation of the two makes regulation tricky. Self-regulatory systems are preferable to law-based solutions, but the natural weakness of the former makes it difficult to rely on. However, if self-regulation fails, external regulation will be applied, such as in the case of Med TV in 1999.
In the future, there are two possible developments: Self-regulation becomes more effective, or the media has to accept an external moderator stepping in.
The codes of practice that are in place, via the NUJ and otherwise, are generally strict enough: The problem is that the media knows what is unacceptable, but that the code of practice is being sinned against – especially by the tabloid press. It may be worth looking to the countries that have fewer formal regulatory systems in place, yet have fewer problems with their media. When the UK journalism profession realises that a droplet of common sense and a knife-tip of respect is all it takes to shed its' bad reputation, it will suddenly be a lot easier to withstand the pressure towards stricter centralised regulation.
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