Should media self-regulation be voluntary or mandatory?

Each time when there is a public outcry against the way some sections of the media behave or the governments are displeased with the way media scrutinise its activities, the need to regulate media resurface with vengeance and without having any meaningful public discussion to understand the issues around such alleged behaviours.  But without being emotional and confrontational we need to look at how other democracies have dealt with the issue of media regulation.  I think the colleagues from abroad who are with us today will help us understand how they have dealt with such issues. The purpose of my intervention now is to look at the two main models of media self-regulation and the lessons we might be able to learn from them.

We accept that there will be no democracy without a free press. In fact, free press is the most visible guarantee of a functioning democracy. The press freedoms are not an end in themselves but serve a democratic function in the public interest, so any form of undue restrictions in the name of regulation will affect the democratic function attributed to the media. There are ways of regulating media in the public interest, rather than in the interest of those who want to manage the public scrutiny by the press or to get press to shape the public opinion to suit their private interests.  So, any mechanism to regulate the press should work only in the public interest. At the outset I wish to make an important distinction between legal regulation and ethics-based regulation.

The legal regulation applicable to the press is usually done through the legal actions administered through the courts using legal instruments such as the laws related to defamation, privacy, harassments and contempt of courts. It is in the courts that fines are levied and damages are awarded. Sometimes, it is not only courts which administer legal regulation, some types of the Press Councils too emulate the legal regulation with implicit threats and explicit penalties, including imprisonments. The case in point is the Press Council we have here in Sri Lanka.

In contrast to legal regulation the ethics-based regulation, first and foremost is about promoting good journalistic practices, which is not the purpose of the courts.  Secondly, ethics-based regulation provides an alternative to litigation, providing redress that is not based on penalties or awards of damages as in the case with the courts.

The purpose of the ethics-based regulation differs entirely from the purpose of the punishment based legal regulation, usually done through courts or the pseudo Press Councils.

In the first place, ethics-based regulation is implemented through self-regulatary mechanisms, which expects media professionals to adhere to a set of professional ethics and standards agreed upon by the media itself, and enforced by a body comprising eminent members nominated or consented by the media.

As for adopting a set of professional standards by the media, there are sufficient number of international best practices to draw from. For instance, the existing Editors’ Guild’s code of practice is largely drawn from the editors’ code adopted by the newly established Independent Press Standards Organisation (IPSO) of the UK.

These self-regulation mechanisms have evolved over the time and have become more effective after having being able to address a number of deficiencies they previously had. These deficiencies are usually identified whenever the Press had to face public criticism of the behaviour of some news media outlets.

A more recent example of this evolution is the transformation of the Press Complaint Commission of UK into an Independent Press Standards Organisation (IPSO) in 2014. This happened mostly as a result of the public criticism against the behaviour of one particular newspaper ‘News of the World’ owned by the media baron Rupert Murdoch. The News of the World was accused of hacking other people’s phones illegally to listen to private conversations. Though it was more of a criminal act than a violation of the press standards, the public criticised the ineffectiveness of the UK Press Complaint Commission in preventing such misconducts. UKs Press Complaint Commission was a voluntary self-regulation mechanism largely focused on resolving disputes against the newspapers based on complaints made by an aggrieved party.

Being a voluntary organisation the Press Complaint Commission had no powers over any newspaper which did not want to submit to its complaint mechanism. Having heard the public outcry concerning phone hacking, the Commissions’ Chairman Lord Hunt, lamented that “The Press Complaints Commission has never been a regulator: it has never had any powers of investigation or enforcement and it has never been able to bind participants into long-term membership”. He proposed to establish ‘a new credible regulator’ with ‘two arms: one that deals with complaints and mediation and one that audits and, where necessary, enforces standards and compliance with the Editors’ Code’.

Eventually, the new Independent Press Standards Organisation (IPSO)was established in the UK on the basis of a written agreement entered into with a substantial number of individual newspapers. The agreement compels the constituent newspapers to submit to the decisions of the Independent Press Standards Organisations. It is chaired by a retired appellate court judge, perhaps as a measure to gain public confidence.  According to the agreement it can impose a fine up to one million sterling pounds, if a constituent member repeatedly violates the editors code.

But here again, some major newspapers such as The Guardian, The Independent and the Financial Times opted out and said they will have their own independent complaint systems instead of subscribing to a single oversight body.

Similarly, there are a number of voluntary self-regulation mechanisms established in advance democracies. However, few important conditions are necessary for them to be successful. First and foremost, is the high level of public awareness of the role attributed to the press in a democracy,

Secondly is the explicit public criticisms preventing newspapers to deviate largely from their democratic role and the ethical standards. Some of these criticisms are reflected in the academic journals on journalism education and in journalism courses.

Thirdly, the high level of professionalism among journalists.  Most journalists though may have been trained on the job, do have a journalism education which sharpen their analytical skills, the ability to comprehend unfamiliar facts and issues, and the commitment to professional standards.

The fourth condition is the ability of the press to fund the self-regulatory oversight body. For example, in Australia, which has a similar population to ours, the Australian Press Council, which is a voluntary oversight mechanism with four fulltime staff, is funded to the tune of One Million Australian dollars (Equivalent to 112 million Sri Lankan Rupees), annually by its constituent members.

However, the voluntary self-regulatory mechanisms are proved to be less effective when most of the newspapers are competing with each other and have different political agendas, allegiances, and are more concerned of the market competition rather than of the professional standards and public service orientation they are expected to maintain. Moreover, if the mechanism cannot be funded by its constituent members it will have to beg funds elsewhere.  This may affect the public perception of the mechanism, if not the independence. There is always the challenge in binding participants to a long-term membership, particularly if a newspaper is displeased with the decisions of the self-regulatory body.

One of the draw backs of voluntary self-regulation is the tendency of the self-regulatory body to appease constituent members to prevent them withdrawing from the mechanism. Normally this is done by settling the disputes informally between the complainant and the newspaper instead of having an open inquiry which could contribute to foster ethical standards equitably across all the constituents. Such open inquiries debating various aspects of the Codes of Practices and challenges in implementing them would be an educational exercise for all the stakeholders.

But there is an another type of self-regulatory model, which could overcome the deficiencies of the voluntary self-regulation. It is known as mandatory self-regulation. India and Indonesia, both of which have a vibrant press, have different versions of mandatory self-regulation mechanisms. As the name indicates, it is mandatory, under such self-regulatory model, for all news media outlets to submit to a single oversight body established with statutory basis. In the mandatory model, the oversight body would consist of credible members nominated by the publishers, editors and the journalists’ associations and unions. The composition could be two third representing media sector one third representing the civil society chosen in agreement with the media community.  

The task of the mandatory self -regulatory body is to enforce the compliance with the Codes of Practices. These codes of practices are adopted by the oversight body in consultation with the media community.  The oversight body has the statutory powers to enforce compliance with such codes of practices and to hold inquiries into their violations, based either on complaints or the observations of the oversight body, and issue decisions.

Such an oversight mechanism to foster professional self-regulation as a mandatory requirement of news media outlets, would require a backing of a law adopted by the parliament, including the provision of public funding. In that sense, mandatory self-regulation combines a statutory basis for compliance and funds with self-regulatory elements. 

Such a law should primarily set the criteria which make the oversight mechanism function without any political or other binds or interferences, wholly independent and separate from the government and its administration, or any political party, or any media owner or an advertiser.  

Besides spelling out the obligations towards mandatory self-regulation, such a law could incentivise the media to perform their democratic functions. The law could enable to penalising anyone who wilfully obstruct the legitimate collection of news and information by a journalist or forcing the disclosure of the sources. The law could have provisions prohibiting to subject anyone to any legal or employment related sanction for providing information concerning public affairs or on matters of public interest to journalists working for a news media outlet. It could act as a mediation board in costly civil defamation procedures against a media outlet. It could also provide statutory protection for editors and journalists who refuse to violate codes of practices under various pressures.

The recognition by both the government and the media that press entitlements are contingent on public entitlements, and press freedoms are not an end in themselves but serve a democratic function in the public interest are very important for this discussion.

If freedom of the press is seen, as a ‘means to an end’ – namely, the freedom of the public, I think this debate on the form of media self-regulation should opened up to the public and become more engaging instead of being confrontational.

Wijayananda Jayaweera

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