Abstract
Press regulation in the United Kingdom, and debate over its future, cannot be isolated from a wider settlement for regulated media content, if regulatory coherence across platforms is to be achieved. Consumers are accessing and engaging with a range of broadcast, print, on-demand and wider digital content. Yet the standards (if any) applied to these services are marked by inconsistency and fail to enable citizens to make informed, democratic choices across media platforms. This short article proposes a managed transition towards a new settlement for legacy and digital media regulation. Clear, tiered standards marks would denote three categories of cross-platform provision, ranging from comprehensive statutory requirements for public service providers; voluntary incentivized standards for non-public service providers and base line minimum standards consistent with those currently required for audiovisual content. This article argues that together, media providers, regulators, consumers and legislators have the opportunity to shape a democratic agenda that recognizes the contribution made by journalism (and wider content), values the public space it inhabits and renews the regulation that sustains it.
Lord Justice Leveson’s inquiry report into press standards (Leveson Inquiry, 2012) may have been intended to settle the future of newspaper regulation in the United Kingdom, but impassioned debate has continued. The inquiry was followed by a Royal Charter on Self-Regulation of the Press (United Kingdom, 2013b), which set Lord Justice Leveson’s recommendations within a framework that secured cross-party support in parliament but generated heated opposition from the press. The Crime and Courts Act (United Kingdom, 2013c: Ch. 22) set out related provisions on potential costs and damages in libel and privacy proceedings, subject to a publisher’s membership of a regulator recognized under the Charter. The Independent Press Standards Organisation came into existence in September 2014 with contract-based membership extending to most of the UK newspaper and magazine industry, but its members were opposed to Charter recognition. Meanwhile, the establishing of a second regulator IMPRESS, which has declared its intention of seeking recognition, is under way at the time of writing. House of Lords and House of Commons Select Committees have monitored progress since Lord Justice Leveson reported, and the Culture Secretary maintains a watching brief over press regulation, Charter recognition and whether fully to implement the provisions of the Crime and Courts Act.
The golden thread of journalistic standards ran through the Leveson inquiry and each development that has resulted from it; but pull that thread and the whole fabric of wider media regulation is in danger of unravelling. Consumers, particularly younger consumers, are accessing and engaging with a range of broadcast, print, self-scheduled and wider digital content. Yet the standards applied to these services are opaque, outstripped by technology and fail to enable citizens to make informed, democratic choices across media platforms.
Broadcasting is subject to a statutory framework of mandatory regulation and comprehensive rules (Ofcom, 2015a) rooted in a historic concern over information and spectrum scarcity and the potential for the medium to exert a harmful influence. Television and radio have traditionally been cast as ‘guests in the living room’ pushing content out to audiences. Regulation for broadcasters includes rules on impartiality and offence with extended regulation on impartiality applied to the British Broadcasting Corporation (BBC) and administered by the BBC Trust.
Print journalism on the other hand, and its digital offshoots, does not attract the same protections. Its slimmer code of rules (Editors’ Code of Practice Committee, 2014), and voluntary regulatory framework, has been justified through a different narrative. Buying a newspaper is seen as a more active expression of choice, one which does not expose the purchaser to the same degree of influence as the broadcast media and calls for statutory regulation bring with them the spectre of licensing the press.
Meanwhile, video on demand content, selected from a catalogue rather than a scheduled service, is subject to basic editorial rules on particularly harmful content (Ofcom 2016: 9–12). Digital content not covered by these regulatory frameworks may nonetheless adhere to its own set of standards: YouTube, for example, is subject to a form of crowdsourced regulatory reporting. Outside of these different, sometimes rival, sometimes overlapping systems, is a sea of unregulated content subject only to the law.
This article argues that press regulation, and continued debate over its future, cannot be isolated from wider reform of media regulation, if regulatory coherence is to be achieved. It sets out proposals for a regulatory settlement flexible enough to support both existing and emerging media consumers and providers across platforms.
Converging media content versus static standards regulation and the democratic deficit
As technologies advance apace, media content and delivery are characterized by mutation and convergence, while the standards regulating them are essentially static and divided. Newspapers are not just printed but have reinvented themselves as online and mobile offerings carrying video packages with the look and feel of traditional television; broadcasters publish websites including text-based articles similar to online print offerings; scheduled programmes are broadcast but also available on-demand, on digital channels and a variety of websites; user-generated material vies for online audiences alongside professionally produced content and professional and amateur bloggers share the same debates.
Accessed via a myriad of static or mobile devices, regulated and unregulated content, licensed and unlicensed services, are becoming impossible to differentiate, fuelling the potential for consumer confusion over whether the content with which they engage is regulated and, if so, to what extent and by whom.
Impartiality, for example, has been at the core of broadcasting requirements, partiality at the heart of newspaper freedom. As the two media converge this distinction begins to appear arbitrary and opaque. Meanwhile, consumer expectation that video on demand content is regulated to the same standards as broadcast content is not met by the very limited editorial content, regulation that actually applies (Ofcom, 2015b: 31–32). Added to this, younger converged consumers do not have the same reference points, such as brand associations, that to some extent assist older consumers in forming expectations around established content, and so differing regulation appears increasingly illogical and ineffectual.
In addition, regulatory leverage is shifting. Democratic imperatives, but also pragmatic approaches, have always underpinned regulation, that is, regulation is imposed where there is leverage over a provider. For broadcasting, leverage traditionally provided by the allocation of analogue spectrum has given way to the more limited leverage of digital spectrum. The Crime and Courts Act (United Kingdom, 2013c) sets out a new attempt at leverage over print publishers and associated digital offerings by making a potential link between membership of an approved regulator (and therefore a low cost arbitration service) and exemptions from punitive costs and exemplary damages arising from defamation and privacy proceedings. However, one potential criticism of this approach is that it targets one set of publishers – namely print – and ignores others such as broadcasters and bloggers.
Overall, current regulation fails to address the democratic value in enabling citizens to navigate and evaluate a range of journalism and other content – be it partial or impartial; regulated or unregulated; with public service commitments or purely commercial ambitions and whether derived from a broadcasting, print, video on demand or online heritage. Without a coherent regulatory approach, citizens are denied a meaningful framework on which to base their expectations of content and its credibility.
A proposed new regulatory settlement: Attaching regulation not to the mode of delivery but to the distinction between ‘public service’ and ‘non-public service’ content
This article, updating and summarizing a more detailed study (Fielden, 2011), argues that the current regulatory framework, attaching regulation to an accident of delivery (broadcast, print, video on demand), has run its course and therefore proposes gradual transition towards a framework that instead differentiates between public service, non-public service and ‘baseline’ providers. Clear, tiered standards marks would denote three categories of provision across media platforms, each open to emerging providers on an ‘opt-in’ basis and readily distinguishable from unregulated content:
Tier 1: Comprehensive, statutory requirements for public service providers across media platforms
Under this tier, the current comprehensive statutory requirements for all broadcasting would over time be redistributed and instead apply to public service content across media platforms, that is, to content in which there is a public interest through, for example, public ownership, funding and/or subject to public service obligations. These requirements would apply to public service providers (the BBC, Channel 4, S4C and currently ITV, including STV, UTV and Channel Television and Channel 5) across all media platforms including related websites and video on demand provision.
Comprehensive rules, potentially not dissimilar to the current Ofcom Code (which covers such issues as protecting the under-18 s, harm and offence, crime, religion, impartiality and accuracy, fairness and privacy) would apply based on a principle of enabling citizens and protecting the vulnerable. In particular, impartiality requirements would provide access to a range of viewpoints on issues of particular public significance and debate.
Under the approach proposed, commercial public service providers would be incentivized to continue to maintain their commitment to public service provision through such benefits as electronic programme guide prominence and enhanced access to audiences via the public service multiplexes. Over time, it would be open to any providers to affiliate themselves with this tier.
Tier 2: Voluntary, ethical standards for non-public service content across media platforms
It is proposed that non-public service broadcasters are, over time, released from their current standards obligations and moved to a system that shares common principles with current standards set out for the press in the Editors’ Code of Practice, which has rules on accuracy, privacy, subterfuge and discrimination but not on impartiality and offence. These would be enforced by an independent self-regulator under a voluntary contract-based system. It would be open to providers irrespective of delivery platform and in the future might attract on-demand providers who wish to differentiate their content from the very basic minimum standards that currently apply.
This is in tune with the 2013 recommendations of the House of Lords Communications Select Committee on Media Convergence, whose report suggested removing detailed content standards requirements from non-public service broadcasters (United Kingdom, 2013a: 28, 32–33).
Membership of tier 2 would be incentivized. Demonstrable compliance with a relevant code of standards could assist a publication in mounting a public interest defence and be taken into account by the courts. The Data Protection Act (United Kingdom, 1998: Ch. 29) provides an exemption from restrictions on processing personal data for journalistic purpose and the Information Commissioner’s Office recognizes adherence to the Editors’ Code of Practice for this purpose (ICO, 2014: 35–36). Similarly, in relation to investment advice, the 2005 Investment Recommendation (Media) Regulations provide exemptions for media subject to a self-regulatory system such as the Editors’ Code, which prohibits journalists from writing about shares in which they have a significant financial interest (United Kingdom, 2005: Part1). Tier 2 would offer providers across platforms the choice of electing standards as a selling point and enjoying associated benefits including attractive advertising associations.
Tier 3: Baseline mandatory regulation for broadcast and video on demand services agreed at a European level
Baseline regulation for all non-public service broadcast and video on demand providers would be maintained, consistent with the current demands of European agreed standards. Requirements in force at the time of writing include protection of the under-18 s from hard core pornography, a prohibition on incitement to hatred and obscene content, and commercial obligations. These requirements are compulsory for broadcast and video on demand services; however, other digital providers could elect to opt in to this level of regulation as a mark of basic standards.
Conclusion
The UK government has signalled that it does not intend to overhaul the 2003 Communications Act, instead the Department for Culture, Media and Sport’s July 2013 communications policy document Connectivity, Content and Consumers (United Kingdom Department for Culture Media and Sport 2013: 7, 10) explains: ‘In preparation for a more converged future, we want industry and regulators to work together on a voluntary basis to develop a more common framework for media standards, so that a more consistent approach applies across different media’.
The proposals set out here attempt to answer that call for a common framework. The three tiers of standards regulation, each denoted by an associated standards mark, would target requirements and thereby enable citizens and consumers to access a varied, but coherent, public space across all platforms. It incentivizes providers to see regulation as a selling point rather than a burdensome constraint and places informed enabled citizens at its heart.
Footnotes
Authors Note
This article updates the author’s book on cross platform content standards regulation (Fielden, 2011).