Contents

Chapter 6
The international perspective

Membership – voluntary or compulsory

6.21One critical question which has received different answers in the various reviews is the extent to which membership of a media standards body should be voluntary or whether the news media should be compelled to become members. The issue is prominent in both Australia and the United Kingdom as there have been high profile departures by newspapers from the respective Press Councils, potentially weakening the status and jeopardising the funding arrangements of the self-regulatory bodies.363  The withdrawal of publishers from the self-regulatory system has also been a major issue in Canada.
6.22Proponents of a free press, however, take issue with compulsion:364

the trouble with compulsory regulation is that, in the wrong hands, it could edge us back towards something that looks like the licensing of the press and of journalists – something that was abolished in the late 17th century and which has no place in a free society.

Australia

6.23Both the Finkelstein Report and Convergence Review recommended an element of compulsion in their proposed regulatory frameworks. The Finkelstein Report concluded that self-regulation without mandatory adherence would not work to address the identified problems:365

Any group that wields, or has the potential to wield, enormous power should be required to observe appropriate standards without provision to ‘opt out’. In this respect the media, like any social institution should be accountable for its performance, as are most other powerful groups in society.

The proposed News Media Council would cover all news media, using the definition of “news media” put forward in our Issues Paper,366  with some changes. For example, for online news publishers, threshold numbers were proposed before the publisher would be subject to regulation.367  While it would be compulsory for all news media that exceed the fairly low threshold to participate, it would also be possible for non-qualifying news media to opt in on a voluntary basis.368
6.24The approach of the Convergence Review to news and commentary was that major media organisations should be required to participate in any scheme, regardless of platform, and they should not be able to “opt out”.369  The threshold at which regulation would be mandated is to be set at a fairly high level. Only “content service enterprises” would be required to become members. Content service enterprises are those entities that have control over the professional content they deliver, have a large number of Australian users of that content (initially 500,000 per month), and have a high level of revenue derived from it (initially AU$50 million per annum). It is estimated that around 15 media operators would currently fall within this threshold. Other content providers that fall outside the threshold for mandatory participation would be able to opt in to membership.

United Kingdom

6.25 Whether membership of a standards body should be mandatory was one of the key themes considered by the Leveson Inquiry. Voluntary membership was an element of the proposal put forward by the Media Regulation Roundtable, and was also the preference of the Co-ordinating Committee for Media Reform.370
6.26The Media Standards Trust favoured mandatory participation for large media organisations (larger than “small companies” as defined in the Companies Act 2006 (UK)) that meet the definition of the news media we proposed in the Issues Paper,371  with voluntary membership being available for smaller and international news publishers:372

Focusing on large news publishers distinguishes between freedom of expression, which we believe should be entirely unconstrained within the bounds of the law, and corporate speech, which due to its power and influence ought to be accountable.

6.27The Joint Parliamentary Committee on Privacy and Injunctions suggested that membership of a reformed media body should include all major newspapers, with significant penalties for those who are not members.373
6.28Lord Justice Leveson concluded that any reformed system, if it is to be effective, should include all major publishers of news, if not all publishers of newspapers and magazines. His report did not recommend mandatory membership however, but rather a voluntary scheme with strong membership incentives such as an arbitration service and litigation costs incentives to encourage universal membership.374  While strongly preferring effective self-regulation, as a back-up option if this fails to work effectively, the report suggested that the Office of Communications (Ofcom) could act as a backstop regulator for those publishers who fail to join a self-regulatory scheme.375

Other jurisdictions

6.29Lara Fielden in her review of Press Council models, notes that membership is consistently voluntary, except in the case of Denmark, where membership is mandatory for all broadcast and print media who publish at least twice per year, and voluntary for the online media.376
363Fielden Regulating for Trust in Journalism, above n 348, at 44 – 47.
364Editorial, “Leveson Inquiry: Prejudging the Judge” (The Guardian, 1 November 2012).
365Finkelstein Report, above n 345, at [11.27].
366Issues Paper, above n 350, Summary and Preliminary Proposals at [29].
367Finkelstein Report, above n 345, at [11.67].
368At [11.68].
369Convergence Review, above n 346, at 50.
370Media Regulation Roundtable, above n 361; Co-ordinating Committee for Media Reform, submission to the Leveson Inquiry (13 July 2012) at 8. Voluntary membership is also an element of the framework developed by Fielden in Regulating for Trust in Journalism, above n 348, with some additional mandatory requirements for public service providers.
371Issues Paper, above n 350, Summary and Preliminary Proposals at [29].
372Media Standards Trust, above n 360, at 74.
373House of Lords and House of Commons Joint Committee on Privacy and Injunctions First Report (2012) ch 5 at [179]–[180].
374Leveson Report, above n 345, at Part K; Executive Summary at recommendations [23]–[26]. Another suggested incentive is establishing a kite-mark for use by members to establish a recognised brand of trusted journalism: Executive Summary at recommendation [35].
375At Part K, chapter 8, 1,793 – 1,794.
376Fielden Regulating the Press, above n 348, at ch 4.