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Media regulation: what´s the minimum necessary?

“Key to avoiding arbitrary control of the press – by governments or private bodies – are clear ethical codes that publications publish and live up to.”

Thomas Kent*/July 2015

English|Portugués

I’ve been asked to talk about media regulation around the world, and whether it’s truly possible for media to regulate themselves. But first I should say that when we talk about media regulation, people often have completely different ideas of what the term means.

To some people, media regulation is a positive process that means limitation of media oligopolies. They see regulation as a path to the democratization of media, access for minority populations and real diversity of political and social views. To them, it’s 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 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 freedom of 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 opportunity to benefit from the popularity of their products, and to build the economic and political strength they may need to defend their reporters against libel suits and the government?

As we look at media regulation, the first question we need to ask is: what exactly is 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 – can’t get traction?

Alternatively, 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?

Sometimes people might say, well, it’s a little bit of all of that. But this can lead to sweeping prescriptions that go far beyond what is truly needed.

Advocates of press laws need to answer two other questions, too:

  • Who’s going to regulate the media? National law? International law? Voluntary associations of newspapers and broadcasters?
  • What exactly is this “media” we’re trying to regulate? Only major newspapers and broadcasters? Tiny radio stations in remote areas? Bloggers with thousands of followers? Anyone who posts and tweets on public issues on social networks?

Most media regulation involves governments, so let’s dwell for a moment on that.

Some governments are clearly dedicated to democracy and freedom of expression. These governments administer press laws with great care, striving to interfere only when essential. Elsewhere, governments are concerned largely with their own power. Looking 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.

Against that background, one question to ask, before creating any new government controls, is whether existing laws, properly enforced, can deal with whatever problems 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? What’s the minimum regulation that can address them?

Suppose the problem is a lack of minority voices. A government could create a separate 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 of nationally produced content. Is the problem a lack of news and cultural coverage in small towns? In the United States, cities and towns can require cable companies to provide channels and equipment for citizens 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 criticized in the press has a right to have their response published or broadcast.

But when government seeks to regulate, we should also ask what the government will do for the press. Will any new rules be administered by an independent board, free of political control? Will pre-publication censorship stop? Will the government promise grant broadcasting licenses quickly and fairly? Will it guarantee the physical safety of journalists? Will it distribute government advertising irrespective of a publication’s politics? 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?

And is government the only possible regulator? Several countries have regulated their press with little or no government involvement.

In the United Kingdom, the Independent Press Standards Organization is a membership organization of thousands of print and online media. Completely separate from government, it can require the publication of corrections, fine publications and interestingly, even act before material is published.

The Netherlands Press Council is also an independent organization that mediates and adjudicates disputes between press and public. However, it can’t impose fines or force an offending publication to publish its decision. The Norwegian Press Complaints Commission, created specifically to forestall government regulation, also can’t levy fines — but member newspapers and broadcasters are required to publish or broadcast its findings. The Ethical Journalism Network has come up with a checklist of concepts for self-regulation bodies.

And then there are countries with almost industry councils or specific laws to govern the content of the press. The U.S. government, and public opinion, generally apply to the press the same approach they do to other sectors of the economy: let it be judged by market forces.

These market forces can be considerable. When scandals have broken out in the U.S. 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 on social networks is also huge and powerful.

Key to avoiding arbitrary control of the press – by governments or private bodies – are clear ethical codes that publications publish and live up to. The Online News Association has been active in helping publications and new journalists create such codes; the Organization of News Ombudsmen advises ombudsmen who help enforce them. There can be little doubt that the more the press takes responsibility for its own behavior, the less governments will be justified in creating their own systems to control the media.

Abridged from remarks at the 10th International Congress on Investigative Journalism in São Paulo, Brazil on July 2, 2015

*Advisor, Ethical Journalism Network. Standards Editor, The Associated Press

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