Guest blog: Media regulation is being overtaken by technology

We’ve come a long way in the few short months since the full Hackgate scandal exploded, writes Press Gazette guest blogger Lara Fielden.

The immediate aftermath saw seismic criticism of self-regulation under the Press Complaints Commission, the departure of its chairman and demands for statutory press regulation. Punitive fines and effective licensing, akin to the model for broadcasting regulation, were the order of the day.

The next wave of proposals were tempered by ideas on ‘co-regulation’, with ‘back-stop powers’ for a statutory regulator, similar to the model that links advertising regulation to arm’s-length powers for Ofcom. Now we’re being asked if we really need the Leveson inquiry into press regulation at all, when self-regulation under a reformed PCC is surely the answer.

Yet each of these responses misses the extraordinary challenge and opportunity presented by current debate on regulation and on the freedom to impart and receive ideas and information. Current discussions over the future of press regulation cannot sensibly be isolated from a wider settlement for all regulated media content.

Let’s come at this through the eyes of younger, ‘converged’ consumers accessing and engaging with media content via PCs, smart phones, tablet devices and, shortly, internet-connected televisions.

If content is scheduled (or, in old-fashioned parlance, ‘broadcast’) it’s subject to comprehensive, statutory regulation. If it’s selected from a catalogue (or ‘on-demand’) as is increasingly popular with younger consumers, only a couple of basic rules apply. There are no rules on impartiality, for example, or on offence. If content is provided on a newspaper website – perhaps user-generated, journalist-generated or even broadcaster-generated – it may fall under the PCC’s Code, or may be subject to no regulation at all. Regulated and unregulated content, licensed and unlicensed services are increasingly sitting side by side, accompanied by a baffling array of regulators, by rules that lack coherence and by opaque complaints systems.

Outstripped by technology, regulation is failing to reconcile this blending of media content and it’s failing to enable citizens to make informed, democratic choices across media platforms.

For a system of press regulation to be relevant and durable, it must recognise that newspapers are now competing against the backdrop of a dynamic, largely unregulated, online world. It must grapple with the question of how any form of regulation can be required of publications that no longer roll off presses but are accessed electronically. It must acknowledge the ways in which new media encourages professional and amateur journalism to meet in debate on websites, in blogs, through twitter, and in a myriad of ways to come.

Meanwhile the current framework for regulating broadcasting is running aground. Its traditional basis is a compact under which access to a scarce resource (spectrum) is linked to regulation (passed by Parliament). Yet the explosion of digital channels challenges this basis for regulatory leverage, indeed the multichannel market may be reaching saturation point. What’s more a system that started life supporting public service programming in the 1950’s, has been stretched to encompass the smallest commercial broadcaster with no public service obligations or inclinations.

So here’s an alternative approach. It proposes a gradual transition towards a new regulatory settlement for the media across platforms. It proposes a regulatory framework that differentiates providers not by an accident of broadcast, print or online delivery, but by their values.

At the heart of this approach lies a distinction between ‘public service’ and ‘private’ media, regardless of the platform on which they are provided. If there’s public investment in it, or public privileges attached to it (for example access to a public service multiplex), content would be required to comply with comprehensive, statutory, regulation.

For private media, however, incentives are the key to regulatory compliance. Instead of approaching press regulation with thoughts of sanctions, fines and suspending services, let’s first think about the benefits and privileges the press currently enjoy. Court reporting, for example, access to confidential briefings, special treatment in relation to freedom of speech, the public interest defence journalists invoke in privacy or defamation proceedings.

Let’s ask whether the press should be expected to demonstrate an association with ethical, accountable journalism in order to enjoy these and other benefits. My report for the Reuters Institute and City University London proposes an incentivised framework for independent press regulation linking voluntary adherence to regulatory standards with recognised benefits.

Industry would fund it and draw up its rules, but its independence – of the interests of both industry and the state – would be established in statute, as would legal and other associated privileges. It’s a voluntary framework that could be developed, over time, for non-public service broadcasters and other emerging providers.

The second core principle under this approach is that regulation should be tasked with enabling citizens. It should support public confidence in the very sources of information and analysis on which citizens depend in order to make informed, democratic choices. Regulation, whether required of some providers or voluntarily opted for by others, must therefore be readily recognisable.

The proposal is for three tiers, each associated with a readily identifiable standards mark, to support consumers whether navigating newspapers, channels or individual pieces of online content.

The eventual framework that could be developed under a future Communications Act would differentiate between distinct tiers of content.

· Tier 1 would require comprehensive regulation of all ‘public’ media – i.e. media that benefits directly or indirectly from public investment and provides public service content. Consistent rules would govern public content whether broadcast, ‘on-demand’ or online and would include requirements for impartiality. Other media providers could choose to opt-in to its regulation as a mark of quality and excellence.

· Tier 2 would incentivise voluntary, ethical standards as a selling point for ‘private’ media – i.e. content offered by newspapers, both in print and online, by non public service broadcasters, by video and audio on-demand providers, independent bloggers and other emerging content providers. A slimmer code of rules to Tier 1 would require accuracy in news, but would not require impartiality. Recognised in statute, independent of industry and the state, it would incentivise transparently-signalled standards through associated privileges, backed up by robust enforcement. The most significant sanction would be expulsion from the regulatory club and sacrifice of associated recognition and benefits.

· Tier 3 would enforce the minimum European requirements placed on television and video on demand services in relation to child protection and hate speech. It would also offer unregulated providers the opportunity to ‘opt-in’ to baseline standards.

And beyond the three tiers there’s unregulated content – perhaps in print, perhaps online, governed by the law, with redress through the courts. Providers will have made their choices about where to position their content. And citizens will be enabled to make informed choices, from the whole range of media content, for themselves.

* Lara Fielden began her career as a graduate trainee at London Weekend Television. She spent over a decade with BBC television, producing and directing current affairs investigations and documentaries, overseas and in the UK. Between 2005 and 2010 she was with Ofcom where she managed fairness and privacy complaints and reviews of the Broadcasting Code.

* Details about her book Regulating for Trust in Journalism: Standards regulation in the age of blended media and how to obtain it are available here.

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