The international perspective
Form of converged news standards body – extent of statutory backdrop
6.45The form that any converged news standards body should take is difficult to resolve, in part due to the different regulatory traditions of the broadcast and print media. The print media have traditionally resisted any form of statutory regulation as interfering with the freedom of the press, and they have fiercely defended the self-regulatory model as the most appropriate form for any news standards body. That model has been critically reviewed in Australia by the Finkelstein Inquiry and in the United Kingdom by the Leveson Inquiry, where the APC and the Press Complaints Commission (PCC) respectively are regarded as seriously flawed. What is proposed in each case are measures to strengthen adherence to news standards, although proposals vary over the extent of statutory underpinning required for a new standards body.
6.46By contrast, content regulation has historically taken the form of statutory regulation for linear television channels and radio stations. Statutory regulation has been regarded as appropriate in the analogue world, where television and radio represented the main forms of media content delivered to the home. But as new forms of digital media have become more prevalent, co-regulatory and self-regulatory models have emerged as the main means of regulating content delivered via non-linear services.
6.47From the overseas reviews, what emerges is a spectrum of options for oversight of the news media, from self-regulation at one end that does not require any legislative provision or recognition, through to statutory regulation. Intermediate options are now being considered that may resolve some of the problems of the existing regulatory models and achieve regulatory convergence.
6.48One crucial question is what part legislation would play to implement these options. On the one hand, it is argued that any legislative backing raises the spectre of state involvement that could adversely impact on press freedoms. Others argue, however, that it depends on the type of legislative backing as to whether such a risk arises, and that some legislative options would shore up independent regulation rather than create a risk of greater state control. Some object to a legislative option that would require compulsory membership of the standards body.
6.49The options for statutory underpinning emerging from the various inquiries include the following (or a combination of the following):
(a) simply recognising a self-regulatory body in legislation (without imposing any requirements on that body);
(b) recognising various media privileges, defences or alternative dispute resolution processes in legislation (an incentives-based approach);
(c) mandating who must belong to a news standards body;
(d) empowering the news standards body (including in relation to sanctions); or
(e) setting the objects and minimum requirements for the news standards body.
6.50The two key Australian reports diverged on the question of whether a converged news media standards framework should have any statutory backing.
6.51The Finkelstein Report recommended replacing the APC with a statutory entity, although the Report was careful to make clear that the proposed News Media Council would not impose any form of censorship, rather, this form of regulation is centred on improving the accountability of the news media: “[t]he News Media Council should have secure funding from government and its decisions made binding, but beyond that government should have no role.”
6.52The Report rejected the option of licensing the press: “[i]n a democratic society the government should not be involved in controlling who should publish news.” The Report also rejected maintaining the status quo option for the print media:
Ordinarily, the preferred option would be self-regulation. But in the case of newspapers, self-regulation by code of ethics and through the APC has not been effective … Doing nothing, therefore is not a road to success. It would simply perpetuate a self-regulation system that is only marginally effective and has not adequately measured up to community expectation.
6.53The deficiencies with the status quo self-regulatory arrangements were identified as follows:
- lack of awareness of the APC and its role;
- inability to properly investigate a complaint for lack of binding powers;
- lack of resources and funding;
- insufficient powers of enforcement;
- appearance of lack of independence from publisher members;
- insufficient streamlining of complaints procedures; and
- the ability of members to withdraw membership or reduce funding.
6.54The Finkelstein Report also considered the option of strengthening the APC but concluded that a strengthened Press Council would end up as an odd mixture of a private body with some statutory powers that would be partly funded by government. This hybrid option was not the preferred option, although it was considered preferable to the status quo.
6.55The preferred model was one of “enforced self-regulation” that needs to have the backing of the law to be effective:
A sufficient improvement would be an independent system that allows the regulated parties to participate in the setting and enforcement of standards (as is presently the case) but with participation being required, rather than voluntary.
The benefits of this model were said to include:
- No state involvement in appointing members of the regulatory body, in the setting of standards or in decisions regarding breaches of standards, thus minimising the risk of potential attempts for state interference with, or control of, speech.
- It retains almost all the benefits of self-regulation, but ensures a more robust and effective operation of the system.
- Government funding of the statutory body (which is what would ordinarily follow) ensures adequacy of funding, which promotes independence from those it regulates.
6.56The Convergence Review also concluded that the current system for regulating the Australian news media is not effective. However, it reached a different conclusion on the question of whether the replacement body should be reflected in legislation and the news standards body it proposed would not be a statutory authority.
6.57While the Convergence Review agreed with much of the analysis and some of the findings of the Finkelstein Report, it regarded a statutory body as a position of last resort and preferred an industry-led body in the first instance:
The Review has concluded that a media industry scheme with an independent governance structure is the most effective way of promoting standards, adjudicating on complaints, and providing timely remedies. It would also avoid the sensitivities associated with direct regulation of journalism, which plays such a key role in scrutinising the processes and activities of government. The Review proposes that the government first test the effectiveness of a self-regulatory arrangement that operates across all platforms … The news standards body would set clear goals to be achieved within a specific time frame. If, on review, this industry-led body was not effective, the government would have the last resort option of introducing some direct statutory measures.
6.58Nevertheless, the recommendations of the Convergence Review contain statutory elements such as mandating membership for larger media entities. In addition the ABC and SBS would continue to operate under their own updated statutory charters, and therefore would be outside the reach of the news standards body. The Convergence Review model also provides for a review of the news standards body after three years to see if it should continue or be replaced by a statutory body.
6.59 One of the key themes to emerge in the Leveson Inquiry was the extent to which there should be a statutory “backstop” for press regulation, and submissions made to the Leveson Inquiry canvassed a wide variety of models. A number of favourable references to a statutory backdrop were made in evidence to the Inquiry; however, several editors strongly opposed any statutory backdrop, citing the risk of later function creep by politicians: “any Parliamentary involvement would be the ‘thin edge of the wedge’ which could result in fuller statutory control of the press.”
6.60The models put forward ranged from an absence of statutory backing to minimal statutory backing through to substantial statutory backing. Examples include:
(a) Contractual arrangements backing membership to the PCC as an alternative to statutory regulation (Lord Black’s proposal on behalf of the newspaper industry). The Leveson Report concluded that while the proposal would represent a significant improvement, there were flaws including the extent of industry control and a lack of long term stability.
(b) Independent self-regulation subject to review, with the introduction of statutory measures if self-regulation is found to be inadequate or ineffective. Ofcom supported a non-statutory model on the following terms:
Properly constituted, effective, independent self-regulation could be the principal, or conceivably, even the sole basis of a new model of regulation. Such an approach might be supported by a clearly defined and early review of the effectiveness of the arrangements. This, in turn, might be backed by a clear intent to introduce an enabling statute if the self-regulatory arrangements proved to be ineffective or inadequate.
(c) An option raised by the British Prime Minister is one based on the British Advertising Standards Authority:
There are ways of setting up a regulatory system that is effectively independent, that is non-statutory, that does not have the Government’s fingerprints all over it, as it were, and that can do a good and trusted job, as we see in the case of advertising standards.
The source of the powers of the advertising regulator is a legal agreement with the statutory broadcasting regulator (Ofcom), with whom it acts in a “co-regulatory partnership.” Its modus operandi in relation to non-broadcast advertising has been described as follows:
Crudely, when the ASA is policing non-broadcast ads, it is a self-regulator, backed by the industry and relying on industry peer pressure for most of its clout. In a small minority of cases where its rulings are ignored or flouted, it can call on what the ASA calls its “legal backstop”, meaning it can refer miscreants to the Office of Fair Trading for punishment (i.e. fines).
(d) A different approach is based on incentives, where statutory provisions around media privileges are adopted as an alternative to compulsory membership:
On the other hand the idea of compelling newspapers to participate in a regulatory scheme is highly undesirable. Better to have a third way where legislation would guarantee a regulator’s independence and provide legal advantages to participants. These “carrots” will encourage voluntary participation and genuine buy-in.
(e) A contractual approach with statutory recognition of the regulatory body, plus incentives such as enhanced defences and dispute resolution mechanisms. For example, the Media Standards Authority proposed by the Media Regulation Roundtable would be established by statute which would recognise its independence from government and the media and would include a guarantee of media freedom.
(f) The model put forward by the Co-ordinating Committee for Media Reform is also a mix of self-regulation with statutory backing. The model comprises a News Standards Commission (independent but established by statute) to oversee the code of practice, an independent News Ombudsman to deal with complaints at first instance, and a News Adjudication Tribunal (based on the employment tribunal model) to adjudicate cases not resolved by the News Ombudsman.
(g) The Media Standards Trust proposal also contains both statutory and self-regulatory elements. It involves self-regulation (recognised in statute) with oversight by a statutory body. First layer regulation would be carried out by self-regulatory organisations (SROs) who would be responsible for complaints handling and redress, and an annual report detailing performance. Minimum standards for SROs (including codes of conduct) would be set by a backstop independent auditor (BIA) established under statute, who would also provide oversight, including powers to fine SROs or strike off SROs that repeatedly fail to meet their obligations.
(h) Statutory regulation of the print media also received support such as from retired judge Sir Stephen Sedley:
What I would therefore commend for consideration is, in outline, the setting up of a new statutory printed media regulator, governed by rules authorised by Parliament and designed to ensure a fair inquisitorial, rather than adversarial, procedure …
It is designed simply to suggest that there is now a powerful case for independent statutory regulation of the mainstream media; that regulation can solve a number of problems for which neither litigation nor self-regulation is proving adequate; and that it can be done fairly and effectively without either licensing the press or giving the regulator a monopoly of the truth.
6.61In his report, Lord Justice Leveson concluded that none of the options presented to his inquiry met all of the necessary criteria for a regulatory solution. His recommended approach is an independent body with the dual roles of promoting high standards of journalism and protecting the rights of individuals. It would set standards through a code, hear complaints about breaches of standards, order appropriate redress, promote high standards including a power to investigate serious or systemic breaches, and provide a fair, quick and inexpensive arbitration service to deal with civil law claims against member publications.
6.62Lord Justice Leveson suggested this system could provide an incentive in relation to civil litigation costs by requiring courts to take account of a publisher’s failure to use the arbitral system in making costs awards. In addition, membership of the regulatory system is proposed as a relevant factor in damages awards in relation to the media torts such as defamation and breach of privacy.
6.63In order to give effect to these membership incentives, legislation would be necessary to underpin the independent self-regulatory system and facilitate its recognition in legal processes. It is proposed that legislation would identify the requirements to be met by the self-regulatory body (as specified in the report) and provide a process by which Ofcom (or an independent Recognition Commissioner) would ensure that the statutory requirements have been met. Lord Justice Leveson specifically denied that this would amount to statutory regulation of the press. Instead he described it as:
… a statutory verification process to ensure that the required levels of independence and effectiveness are met by the system in order for publishers to take advantage of the benefits arising as a result of membership.
To counter concerns that legislation would create a slippery slope towards government intervention in the press, he recommended that the legislation include an express duty on the government to protect freedom of the press.
Joint Parliamentary Committee on Privacy and Injunctions
6.64Rather than utilising legislation, the report of the Joint Committee on Privacy and Injunctions proposed that a standing commission of both Houses of Parliament should scrutinise the process of industry-led reform in coming years, with powers to call for papers and summon witnesses, reporting annually on the progress of reform and the effectiveness of the new body, with consideration being given to statutory oversight if the industry fails to establish an independent body with public confidence.
6.65The industry Working Group paper contributing to the review of the United Kingdom’s Communications Act recommends a flexible staged approach to regulation, and that statutory regulation for linear television and radio remain for so long as it continues to be effective and proportionate. In particular, any deregulatory measures in relation to television news should proceed with caution and some current standards regulation should continue: accuracy, impartiality (in relation to public service broadcasters) and rules in relation to covering elections and referenda. The paper recommends that self-regulatory or co-regulatory models should be used where possible, but that backstop powers should be available where necessary.
6.66Lara Fielden’s work on standards regulation recommends a combination of statutory and independent voluntary requirements. Under Fielden’s tiered regulatory model, the print media would move to a model of independent, statutorily recognised press regulation, with the potential for this tier to be expanded in future to broadcasters, video on-demand and currently unregulated online providers. Fielden’s proposal is that a new Communications Act would recognise an independent voluntary standards body, arguing that statutory recognition would provide a secure foundation for independence including composition and independence of the board and adjudicating panels, and recognition of procedures and sanctions. This model would not confer statutory powers, rather it would provide statutory links to the significant privileges associated with membership, along the lines of the model of statutory recognition in the Defamation Act (Ireland).
The Irish model
6.67The Irish model is a system of press regulation recognised in Irish law:
The 2009 Irish [D]efamation [A]ct recognises the existence of a Press Council and a Press Ombudsman, sets out minimum requirements for the Press Council, outlines the composition of the Council and its funding, and sets out the broad parameters of the complaints process.
6.68While this statutory recognition does not actually establish the Irish Press Council, the Defamation Act sets out the principal objects of the Council, which include the protection of freedom of expression of the press, the protection of the public interest by ensuring ethical, accurate and truthful reporting, maintaining certain minimum ethical and professional standards, and the protection of privacy and dignity of the individual. The Act also sets out the requirements for independence, the composition of directors, funding, investigations and hearings, and powers to require the publication of a determination in any form and manner directed by the Council.
6.69The Danish Press Council is an independent public tribunal established under the Media Liability Act 1998 (Denmark). The Act sets out the Press Council’s purposes: to deal with complaints about journalistic ethics, to contribute to the development of press ethics and to handle complaints about the legal right of correction. The Act also provides for a right of reply and the sanction of being required to publish the Council’s decision where a complaint is upheld, along with the punishment for failing to comply (a fine or imprisonment of up to four months).