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Press Regulation: lessons from other media

Well, Lord Leveson has reported after weighing the evidence and the report is a weighty tome indeed. He concluded that the press or more accurately "press like services" (more later on this) should be regulated by a self-regulatory body whose independence and fitness for purpose is regularly reviewed by a statute based recognitions body (such as Ofcom).

February 2013

Since the report was published, there seems that there is little consensus about anything to do with press regulation. The doors of the last chance saloon remain open to the press and the Prime Minister, as its landlord, has given them a final opportunity to come up with an effective system of self regulation and come up with it fast. For someone who has spent a career working and advising in the television and radio industry, it is bemusing to say the least that, the current regulatory regime for the newspaper industry was so "light touch" that one significant proprietor opted out completely (akin to Sky opting out of regulation by Ofcom – now there's an idea!).

The problem with devising any regulatory structure is that there is no perfect system of regulation, whether it be a statutory regulation, co-regulation or a self regulatory model. All have strengths and weaknesses. The policy aim for press regulation is easily stated: to create an effective regulatory system that will enjoy public confidence but not overly impinge upon the proper role of the press in the democratic process to safeguard public interest. Of course, what is in the public interest is not always easy to define as the dividing line between the public interest and what is of interest to the public is sometimes not easy to draw or at least draw consistently. In my view, the danger with the continuing debate over press regulation is that it risks falling into a form over substance argument with too much focus on the "who" and "how" and too little on the "what" and "why".

illustrate the point

To illustrate the point, the performance of the BBC Trust's recent oversight of the BBC over Saville shows that even a Royal Charter may not be sufficient to stop apparent regulatory failure. Even Ofcom, held up as a model statutory regulator for the communications industry, is not immune from criticism. Whilst it is portrayed as a shining beacon of independence and a regulator that would no doubt drive fear into the heart of any newspaper editor, it has been accused of being overly interventionist and process driven. It is not even immune from criticism of "perceived" bias as the Competition Appeal Tribunal's decision in the dispute over the pricing of the Sky sports channels shows. As Mr Justice Barling concluded "The tribunal is of the view that Ofcom has, to a significant extent, misinterpreted the evidence of these negotiations, which does not support Ofcom's conclusion".

No perfect solution

What does this all show? As I have said: that no regulatory model is perfect and nor is any regulator. Perceived to be too weak and an allegation of regulatory capture is made against the "regulator" as in the case of the BBC Trust or Press Complaints Commission. On the other hand, if the regulator is too powerful, it can lead to accusations of "bias", as leveled at Ofcom as a result of its rulings in the long running saga over the wholesale supply of the Sky movies and film channels. This resulted in a total vindication of the Sky position, much to the chagrin of other content distributors and the bewilderment of many industry commentators.

What is a "Press Like Service"?

Therefore, what to do about press regulation? The major proprietors and editors seeing the writing on the wall may well have a conversion of Paulian dimensions and cause them to embrace a self regulatory structure that is independent, transparent, robust and effective. writing on the wallHowever, this may not be sufficient. As online sources of news reporting become increasingly important, getting other online news outlets to adhere voluntarily to the "new rule book" must be problematic. If the experience of the Authority of Television On Demand ("ATVOD" - the regulator of video on demand) is anything to go by, it is not always easy to define what is a "television like service" in the online world and several of ATVOD's decisions (particularly those involving newspaper websites) have been successfully appealed to Ofcom. As Lord Leveson's proposal that the remit of the press regulator to cover "press like services" is a direct translation from the Audiovisual Media Services Directive which provides that the video on demand services that fall to be regulated are those that are "television like" in nature, definitional problems are likely to arise, no matter who does the drafting.

It is true that Lord Leveson noted that you can alleviate the financial or compliance cost of regulation by excluding certain types of "press like services" from either some or all of the regulatory burden. However, as the ATVOD experience shows, this inevitably creates winners and losers and the losers may be even more disgruntled if others appear to be getting a free pass or at least a more favourable regulatory outcome.

I am also sceptical about the suggestion that inventives such a kite marking may be helpful. I fear that they may be seen as having little real value to many operators of press like services who are not part of the mainstream newspaper industry.

Therefore, I believe that a "pure" self regulatory model for the press may not get sufficient buy in from the whole of the "news" industry in order to make it work. A level of compulsion is likely to be required to force all participants to opt in in the first place and once in, to stick to the rule book. Both the Advertising Standards Authority and ATVOD as the regulators, which have responsibility respectively for regulating advertising and programming content on VOD services, are back stopped by Ofcom which can, if required, fine miscreants.

With increasing convergence of media, it will become harder to justify a self regulatory model for one part of the media and a regulatory system backstopped by Ofcom for others.

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Press Regulation
Tony Ghee

Tony Ghee

Tony Ghee looks at the future of press regulation and the problem of defining "press" in an increasingly converged media environment.

"With increasing convergence of media, it will become harder to justify a self regulatory model for one part of the media and a regulatory system backstopped by Ofcom for others."