Media Regulation and Law - Essay Example

Glasgow School for Business and Society Wendy Brown Matriculation Number: S1037215 Programme: P/T Business Management Degree Level: 3rd Year Seminar Tutor: Gavin Brown Module: Business Regulation Module Leader: Dr M-A Houston Submission Date: On or before 12pm Friday 14th March 2014. Submissions to: W116/117 Please complete ALL bold rows above. "This piece of coursework is my own original work and has not been submitted elsewhere in fulfilment of the requirement of this or any other award." Signed by student: Please remember to submit: 1 copy of the essay and 1 full Turnitin report. Contents Submission Date: On or before 12pm Friday 14th March 2014. 1 Submissions to: W116/117 1 1.0 Introduction 3 2.0 Discussion 4 3.0 How Media Self-Regulation Works 5 4.0 The issue of Newsgathering 6 5.0 Should the Industry Retain The Concept of Self-Regulation? 8 6.0 Future Considerations in the Code of Practice 9 7.0 Baldwin’s Criteria of Regulation 11 8.0 Conclusion 12 9.0 Reference List 13 1.0 Introduction There is never a definite answer to the question of whether the current system and method of self-regulation in the UK press allows news outlets to intrude on people’s private and personal lives. This paper will help us look at the present system of press regulation in the United Kingdom. In current UK law there is no legislation that forbids publications from printing articles that can be considered as intrusive and invasion of an individual’s privacy. This however does not mean that there is no regulation governing publications. There is a strict code of practice that all the media outlets both print and broadcast have come to an agreement to adhere to. This code was set up by the Press Compliant Commission in order to regulate the industry. This commission is an independent entity that was set up in the early 1990s following the recommendations of a commission on press regulation that was chaired by Sir. David Calcutt. The commission’s core responsibility is to ensure that the press adheres to the agreed code of practice on sensitive topics such minors and privacy (Fourie 2002: 46). In case of any breach of the code of conduct, the commission will conduct an investigation and either uphold the complaint or dismiss it in its entirety. With the exception of incidents regarding inaccuracies (these are dealt with by the editor responsible) all other cases have to be adjudicated and published by the commission. This commission came to being ultimately because government wanted to come up with measures to ensure protection of individual’s privacy rights against the activities of various media houses. The commission that was set up to give recommendations on how to replace the Press council which was the regulatory body before. This new regulatory body, the PCC had a maximum of one and a half years to have its impact felt or be replaced by a system that was to be statutory based. The defunct Press Council had been set up in the year 1947. This was after the recommendations of the Royal commission into regulation of the press. It was introduced to mainly deal with the ongoing claims of deteriorating standards in the press. It was however not successful and this was evident in the 1980s when the National Union of Journalists withdrew its membership. Many publications were ignoring it due to the fact that it did not any formal code of practice that the press could adhere to. It also did not have any legal means to enforce its resolutions and sanctions.(McNair, 2009) 2.0 Discussion Over the years since the year 2000, events have taken place that have caused the general public as well as political leaders to query the integrity of the ways employed by media outlets in collecting the information that is eventually published in their newspapers. There was a landmark case in which a reporter of the news outlet News of the World, Mr. Clive Goodman was found guilty of a conspiracy to tap into confidential information without following the due process as outlined in the law. These and many other incidents have led many to raise their doubts as to whether the media is using grossly unethical means in obtaining confidential information that is later published in the media outlets as ‘exclusive’. There was the incident to do with the hacking of Milly Dowler’s voicemail whilst she was still missing which caused a public outcry. This has inevitably led to questions on whether the practice of self-regulation is indeed the best practice to ensure the privacy of individuals is protected from unwarranted invasions from news outlets. There have also been calls from sections of society for the amendments of the Press Complaints Commission Code of Practice as well as strengthening of current laws that touch on unauthorised disclosure of personal information. The Leveson Inquiry This was a public inquiry into the practices of the British media necessitated by the News International phone hacking scandal and was headed by Lord Justice Leveson. It conducted public hearings from 2011 up to 2012. It later on made recommendations for an independent, new body in place of the Press Complaints commission that would be recognized by the State through the legislation of new laws. Its recommendations were: A formation of a new and independent regulatory body that will have to comply with requirements prescribed by statute. Members of this new body should be picked from a pool of all publishers under fair and reasonable terms that are not discriminatory to any media houses. A statutory regulator like Ofcom will have direct regulatory authority on any media house that refuses to subscribe to this new regulatory body. It will also face prohibitive costs in the event of a civil litigation. This new body should have a form of arbitration service when dealing with civil legal claims lodged against its subscribers. Ofcom would operate as a default regulator in the event that a majority of the industry players do not subscribe to the new body. 3.0 How Media Self-Regulation Works Self-regulation is a practice that is widely embraced in many countries that value press freedom. This kind of regulation in essence implies that the government does not meddle in affairs of the media and it is the prerogative of the industry players to come up with agreed codes of ethics that will govern them as they go ahead in news gathering and reporting. In the U.K, the media industry has also set up a code of practice that is constantly updated to keep up with the dynamic and constantly changing industry. If there are any breaches by the industry players of the codes, there is a Public Complaints Commission or PCC that is tasked with resolving complaints and imposition of appropriate sanctions on the offending party if deemed necessary. This commission was originally set up in 1991. This commission constitutes of a 17 member board that is assisted by a thirteen member secretariat that are fulltime employees. Editors of regional and national newspapers that make up seven members of the 17 member board. The rest of the board members are made up of individuals that are not associated in any ways with the media industry and form the lay majority. After the Calcutt inquiry, it was resolved that this commission will be funded by the Press Standards Board of Finance. The commission applies a Code of Practice that is drawn up by the editors and maintained by the Editors’ Code Committee. The application and terms of the Code are backed up by the preamble that indicates that “it is essential that an agreed code be honored not only to the letter but in the full spirit” and also that “It should not be interpreted so narrowly as to compromise its commitment to respect the rights of the individual”. This requirement also tends to exclude as an option, wriggling through loopholes. This code also covers eye-witness reporters, photographers and freelancers as well. This Commission has to be informed of any complaints that are submitted even though it is mostly a very small number that is discussed during its monthly board meeting. It has been observed that about 50% of the complaints received by the commission that meet the threshold to form a view fall outside the scope of the code. When this happens, the normal practice is to simply send a letter to the complainant and the issue is merely recorded in a specific list that is then presented to the board. In recent years though, the amount of complaints that have been resolved by means of conciliation has been steadily going up. In the year 2000, the number of resolved complaint stood at 163 which steadily rose reaching 418 complaints by the year 2009, an approximately four fold increase. Below is an illustration of the number of complaints brought against the various major newspapers in the UK in the 2008/2009 period. 4.0 The issue of Newsgathering Successful journalists need to possess good and effective newsgathering skills in order to get news that is of public interest. The editors’ code of practice recognizes certain circumstances whereby it is in the interest of the public to use newsgathering procedures that are normally beyond acceptable. The code of practice indicates that obtaining of information by intercepting communications and use of clandestine devices is a breach of allowed practices except if the information to be obtained is of great public interest. However, these methods need to be carried out with the backing of lawful authority otherwise it will be considered a breach of the Regulation and Inventory Powers Act of the year 2000. The penalty imposed in the event of a breach of section 55 of the Data Protection Act of 1998 is a fine of £5,000. This act was rightly made use of when convicting Mr. Clive Goodman the former editor of the News of The World. Editors of major newspapers, in the aftermath of this case, will have to contact Commission in case they find themselves in a grey area on the methods used in gathering news in order to seek guidance on how best to proceed to avoid breaking the law and subsequent penalties and sanctions. Several recommendations have also been developed;- In the event that magazines, newspapers and other external news contributors come into agreements, the contracts must explicitly outline the need to follow the codes of practice that have been set out by the PCC. A clause must also be inserted that refers to the need to obey the Data Protection Act by all employees of the media outlet and its partners in news gathering and distribution. News outlets must also ensure there is internal practice and mechanisms that clearly outline the entity’s subterfuge protocol for its journalists. There should also be a guideline on the people to be consulted before a decision is made on whether the public interest is adequate to justify the subterfuge. The news outlets must also develop a regular and effective internal briefing and training of its staff members on the developments in ongoing privacy cases. Lastly, these media companies need to develop foolproof audit controls on their cash payment systems, where unavoidable. 5.0 Should the Industry Retain The Concept of Self-Regulation? The principle of self-regulation has two basic elements. Individual editors have a personal responsibility to regulate their subordinate staff conduct and the standards and ethics that are applied when obtaining stories that are news worthy while on the other side of self-regulation, we have the PCC which is the media watchdog that has been enforcing standards in the industry and imposing sanctions whenever there are breaches of the codes by industry players. With the current system, the PCC is the backstop of regulation since the system ultimately depends on the standards that are enforced by editors in the various media houses. As it has been proved before, these editor enforced standards will not always be of high standards across the industry. This was evident when newspapers went ahead and published Kate Middleton’s pictures that had been obtained in shameful means that caused her distress and made her feel harassed and her privacy invaded. Some editors will take a lax attitude at enforcing these guidelines and not follow the lead offered by the Information Commissioner. Even in the presence of these breaches, it would not be right to assume or conclude that the standards have gone down significantly. Overall, the industry is doing a much better job and measuring its own conduct than was the case about twenty years ago. (Hinton) It can also be observed that the tragic death of Princess Diana led to an implementation of far reaching changes in the journalistic code of conduct. Mr. Clive Goodman’s conviction may have damaged the press’ standing in the public eye but it on the other hand has served as a lesson to several other editors in enforcing of higher standards in their newsrooms. In other words, the case against News of the World will most likely have a positive effect on press behavior in future. There are other alternatives available to self-regulation. The media industry can decide to wholly rely on the laws of the land in a bid to maintain standards among photographers and journalists. The legal system can be used to discourage against intrusive behavior and punish any members of the media fraternity who seem to overstep the mark or boundaries set. Having said this however, in some instances, the regulation offered by the law as it currently is far less than what is being offered by an enforced Code of Practice. This can be in cases such as identification of minors that are involved in sexual offenses cases. However in areas such as communication interception, data protection and harassment, the law is quite well developed and crisp clear. This however cannot be said on the law on personal privacy even though this is enshrined in the 8th Article of the European Convention on Human Rights and incorporated into the legislation in the UK under the Human Rights Act(Czepek, Hellwig, & Nowak 2009: 72). This has not yet been developed in the UK law into a right to privacy. There have been recommendations to the government to develop legislation that clarifies the kind of protection that is to be expected by individuals in regards to privacy. This was however rejected by the government that instead opted to leave it to the courts to determine the matter on a case by case basis. There has also been opposition at attempts to have legislation on privacy that specifically targets the media. The Media Wise Trust views these attempts as attempts to stifle media freedom. Another school of thought is that development of such a law will ensure that redress in case of an offence can only be obtained through the courts of law. this will slow down the current pace of dispute resolution. All this opposition cannot however prevent the establishment of case law which in the long run will seem like a back door introduction of the privacy law. 6.0 Future Considerations in the Code of Practice This code is very central to self-regulation. These are the main instruments in which editors ought to rely in decision making regarding the acceptability of certain practices or not. This code is also the main reference point of the PCC when assessing complaints and coming up with decisions. The exiting code of practice is largely accepted and embraced around the industry mainly because it covers the core elements of journalistic ethics. It is also neither too lengthy hence making it easy for the average journalist to remember it nor too short hence leaving out key areas that need to be addressed and regulated. For the code to command majority support amongst industry players, it has to be drafted by industry editors as this ensures universal compliance. The fact that all industry editors have some of their input taken into consideration ensures that there is no real pressure upon them to break it. (Esser)However, the National Union of Journalists has proposed that a conscience clause be included into the current Code of Practice. This is to establish a right for junior journalists to decline to obey instructions from senior editors if they personally believe that it would not be ethical to implement them. This has been brought up due to the NUJ claiming that it had several complaints from its members that had been pressurized by editors leading them to go against the code of practice while in the process of pursuing a juicy story. This was mainly driven by competitive pressures as acknowledged by the MediaWise Trust. Even though the PCC commands a lot of respect in the industry, the general public does not have absolute confidence that it is fair in its dispute resolution mechanism. There is also growing debate on whether the commission should readily accept complaints through third parties. There was also a major complaint about the commission having very little repertoire of sanctions. It is observed that the number of adjudicated has fallen from an average of 70 per year in the first decade of the commission’s existence to an average of 30 over the last half a dozen years (Tambini & Heyward 2002: 13). On the back of these statistics, it can be observed that number of cases resolved through conciliation has been on the upward trend. This may be viewed as a positive trend but not in entirety. Newspaper editors would rather have their cases resolved through conciliation than adjudication in order to avoid the negative publicity that accompanies the latter. This is because there is no express requirement to have cases resolved through conciliation to be published anywhere else other than the commission’s website. This can be seen as a slap on the wrist for the offending editors and not commensurate to the pain and suffering that a particular story may have caused the complainant. There is also a common view that the published apologies do not always march the prominence that had been given to the offending story in the first place. This sort of punishment ought to be reviewed to convince the public of the commission’s fairness. There is also the issue of financial penalties imposed by the commission being very minimal in relation to the financial might of the media houses who post millions of pounds in annual turnover. These feeble financial penalties fail in their purpose to act as deterrents to the media houses since they can at times fail to compare with the sales that the said newspaper recorded on the back of the fabricated story or story obtained through unethical means (Leveson, 2012: 14-30). There have been suggestions, especially by MediaWise Trust that a system of financial compensation should be developed where offending editors pay significant amounts of money to the complainant in recognition of the stress and emotional pain that the victim endured as a result. 7.0 Baldwin’s Criteria of Regulation The first Baldwin’s criterion on good regulation is Consistency. The body charged with regulating any industry must ensure that they make use of a predictable set of rules when they come to making decisions affecting the industry players. The changes in these should be kept at a bare minimum to ensure quick and effortless compliance from the industry players. The second criterion is proportionality. The regulatory body should ensure that other alternatives to regulation have been put into consideration. The regulatory body should be aware of the impact of its activities to the industry players identified and understood. This will enable them to get the correct balance cost and risk and keep at a minimum demands on the regulated industry. This will ensure that the industry is not choked making it unfavorable to investors. The third principle is that the body should ensure that it has a clear legislative mandate. The regulator should only commit itself to make decisions and actions where it has a clear mandate. They should not stray beyond this so as to ensure their decisions are binding and enforceable under law. This will help it maintain its relevance The forth Baldwin criteria is based around expertise. One of the main drivers of self-regulation is that of expertise/knowledge in the area concerned, whether it is financial services, energy companies or the British press, the experts within have more active knowledge than an external regulator could ever bring to the table(Freedman 2008: 82-89). This has been applied with great compliance within the British media regulatory framework. As discussed earlier, the PCC is composed of a 17 member board that is composed of 7 members who are senior editors in the major media companies in the country both national and regional as well. This commission is tasked with enforcing codes of conduct that have been drafted and approved by the Country’s editors. This is a classic example of the Baldwin’s criteria of self-regulation in play. The employment of these criteria has achieved the desired result of having large scale compliance in the industry since the industry players can identify with the regulators and the rules which they themselves formulated and appended their signatures. The final Baldwin criteria is efficiency, a positive trait of the PCC is that its independence from statute mans it can act quickly this results in it intervening to alleviate complaints prior to them being escalated to the courts. There have been attempts to make it work with the statute but the overall consensus has been that this will impact negatively on the commission’s efficiency which is one of its key strengths. Of the 3336 cases raised to the PCC during 2013 2956 were ruled in favor of the complainant, including 1496 involving action by the newspaper responsible. This turnover of cases is impressive and cannot be compared to what the same could have been if it was not independent of the statute. 8.0 Conclusion Self-Regulation of the media still remains the best means through which to ensure that media houses operate in an ethical manner when collecting, and publishing information to the general public. Even though it experiences some shortcomings, these can be addressed through better consultations among the stake holders to come up with a method that satisfies all the players. 9.0 Reference List ALDRIDGE, M. (2007). Understanding the local media. Maidenhead, Berkshire [u.a.], Open University Press/McGraw-Hill. Pg 28 CALVERT, C. (2009). Voyeur Nation Media, Privacy, and Peering in Modern Culture. Boulder, CO, Basic Books. http://public.eblib.com/EBLPublic/PublicView.do?ptiID=978642. COLOMINA, B. (2000). Privacy and publicity: modern architecture as mass media. Cambridge, Mass [u.a.], MIT Press. Pg 39-41 CZEPEK, A., HELLWIG, M., & NOWAK, E. (2009). Press freedom and pluralism in Europe: concepts and conditions. Bristol, UK, Intellect. Pg. 72 ESS, C. (2009). Digital media ethics. Cambridge, Polity. http://search.ebscohost.com/login.aspx?direct=true&scope=site&db=nlebk&db=nlabk&AN=575128 FOURIE, P. J. (2002). Media studies. Lansdowne, Juta. Pg. 46 FREEDMAN, D. (2008). The politics of media policy. Cambridge, UK, Polity. Pg.82-89 FEINTUCK, M., & VARNEY, M. (2006). Media regulation, public interest and the law. Edinburgh, Edinburgh Univ. Press.pg.1-10 GREAT BRITAIN. (2007). Self-regulation of the press. London, The Stationery Office. Pg 15 LEVESON, B. H. (2012). An inquiry into the culture, practices and ethics of the press: executive summary and recommendations. London, Stationery Office. Pg14 - 30 Leadership Discourse, culture and corporate ethics: CEO speak at News Corporation by Russell Craig published 19th December 2012 pg.10-12 Media in the UK by the UK research team published October 2013 Plurality of Political Opinion and the concentration of the Media, Allen P Grunes and Maurice E Stucke 2012. Pg. 56-65 SOLOVE, D. J., & SCHWARTZ, P. M. (2008). Privacy and the media. New York, Aspen Publishers. Pg. 40 STOKES, J. C. (1999). The media in Britain: current debates and developments. Basingstoke [u.a.], Macmillan [u.a.]. Pg. 45-47 TAMBINI, D., & HEYWARD, C. (2002). Ruled by recluses: privacy, journalism and the media after the Human Rights Act. London, IPPR. Pg 13 McNair, B. (2009). News and Journalism in the UK. Routledge .Pg 97 Read More