Maravi

The media: statutory or self-regulation? (Part I)

The media: statutory or self-regulation? (Part I)
By Prof Fackson Banda
Wednesday August 06, 2008 [04:00]

The debate about how to regulate the media has flared up again! My objective is two-fold: first, I hope to give examples of media regulation as they obtain in other countries; and second, I seek to clear up some conceptual muddle that is apparent in the debate.

Regulation, according to Angela J. Campbell, in her article entitled ‘Self-Regulation and the Media,’ has three components: (i) legislation, that is, defining appropriate rules; (ii) enforcement, such as initiating actions against violators; and (iii) adjudication, that is, deciding whether a violation has taken place and imposing an appropriate sanction.

Clearly, Campbell’s definition is legalistic, but regulation encapsulates much more than the legal. Any of the three components identified by Campbell – rules definition, enforcement and adjudication – can be non-legal. While the legality of regulation is desirable under some circumstances, it may not be so under other conditions.

However we view regulation, we can make one point patently clear: all media are regulated in some form or other. For example, media operate in a legally regulative environment. There are already constitutional and legal regimes that control media operations. The constitutional and legal order encapsulates protection against defamation and against breaches of national security.

A better way of looking at regulation, then, is establishing the extent to which it enables or disables media activity. Now, there are some laws in Zambia which could impose a chilling effect on media operations. At the same time, there are laws which could possibly be described as enabling.

For example, the Independent Broadcasting Authority (IBA) Act 2002 might yet turn out to be an enabling piece of legislation, guaranteeing a statutory self-regulatory broadcast media system in the country.

Mark my words: I have deliberately set out the IBA as constituting a form of statutory form of media self-regulation. This is an important point to make because it describes the nature of broadcast media regulation in most parts of the world. For a number of reasons, broadcasting has generally attracted much closer State scrutiny than print media. As such, it has been subject to much stronger regulation, spelt out in statutes. Here, statutory regulation empowers the State to exercise greater regulatory scrutiny, some of it desirable and most of it repugnant.

However, I must qualify what I have described above. In established democratic societies, statutory broadcast media regulation provides for a general regulatory framework in which the broadcast industry can regulate itself. In a word, the State delegates regulatory authority to industry players who must organise themselves into some self-regulatory structure.

It is for this reason that I suggested that the IBA might well guarantee a ‘statutory self-regulatory’ broadcast media system. Here, the State, for reasons largely bordering on protecting the public interest, statutorily mandates industry actors to regulate themselves. There are many reasons for doing this, not least the fact that self-regulation is less costly to the government and more flexible. In addition, it is more likely to avoid constitutional issues.

To exemplify: In the US, the First Amendment expressly states: “Congress shall make no law…abridging the freedom… of the press”. As such, the state can often do nothing else but let the press regulate itself. In this case, it can only pass administrative law. One such administrative law created the Federal Communications Commission (FCC) which licenses broadcasters “in the public interest, convenience, and necessity”.

As Peter J. Alexander and Keith Brown observe in their article entitled ‘Policy Making and Policy Tradeoffs: Media Regulation in the United States,’ the FCC has a statutory obligation to pursue the “public interest” through its regulation of broadcast media. The FCC’s interpretation of the public interest has led it to pursue three policy objectives: competition, localism, and diversity.

This policy triad reflects both efficiency and anti-trust considerations and concerns about the social, political and cultural effects of media.

To the extent that the FCC is subject to judicial review, it can be said to be insulated from the political process – hence the term independent agency, according to Kenneth Creech in his book Electronic Media Law and Regulation.

The FCC provides general direction to the broadcast media industry and does not enforce anything, leaving this to the National Association of Broadcasters (NAB). But a closer scrutiny will demonstrate that even NAB does not really enforce anything, leaving this to the media institutions themselves. It does, however, respond to FCC rulings by developing general guidelines for industry implementation.

This becomes a co-regulatory system of checks and balances which is nevertheless not statutorily policed, but depends on the self-interest of the industry. This “self-interest” includes inducing public confidence in media services and staving State intervention. It does not always work perfectly, but it works.

As for print media, the US has a very unsuccessful system of self-regulatory press councils, reflecting very much the situation in Zambia. Because the First Amendment seems to provide for press freedom in near absolute terms, it is argued that the press has generally seen no need for press councils. The system of media self-regulation is thus much more intra-institutional than extra-institutional.

In the UK, statutory regulation of broadcasters has never been extended to the print media. The Communications Act 2003 created the UK Office for Communications (OFCOM). OFCOM is mandated to fine all broadcasters and is empowered to direct them to broadcast decisions. It can also direct that there be no further broadcast of the offending material, but OFCOM has no power to intervene before broadcast but can investigate un-broadcast material after transmission. Commercial broadcasters can have their licences withdrawn and all broadcasters, including the BBC, can be fined substantial sums.

OFCOM’s operational mandate is based on a three-tier system of public regulation, co-regulation and self-regulation. ‘Public regulation’ revolves principally around the State; ‘co-regulation’ involves regulatory collaboration between the State and civil society; and ‘self-regulation’ is centred around civil-society forms of self-control and monitoring. It is clear that public regulation is likely to be legislative, with co-regulation embracing only some aspects of legislation. On the other hand, self-regulation need not be legislative. You can see why I dismissed Campbell’s definition of regulation as overly legalistic.

Two points must be made clear. First, OFCOM, a statutory body accountable to parliamentary committees, is independent of the State and the Government of the day. Second, it only intervenes in media operations after transmission, thereby ensuring the principle of self-determination in matters of content generation and distribution.

In terms of print media, the UK boasts a comparatively successful self-regulatory system of press complaints commissions. In reviewing the failed efforts of the old Press Council and recommending the setting up of a new Press Complaints Commission (PCC), Sir David Calcutt’s 1993 overly critical review of self-regulation enjoined upon the PCC to demonstrate within eighteen months “that non-statutory self-regulation can be made to work effectively.

If it fails we recommend that a statutory system of handing complaints be introduced”. Clearly, the PCC has demonstrated enough success to stave statutory regulation for the press. In any case, the Conservative Government’s 1995 White Paper on Privacy and Media Intrusion rejected Sir Calcutt’s recommendation for statutory regulation.

In South Africa, the Independent Communications Authority of South Africa (ICASA) statutorily regulates broadcasting and telecommunications. But it delegates this regulatory authority to industry players who impose non-legislative sanctions. For example, the industry-based Broadcasting Complaints Commission of South Africa (BCCSA) adjudicates over complaints from the public.

The BCCSA is supported by the National Association of Broadcasters (NAB). This is a co-regulatory system of broadcasting in which a statutory body delegates specific regulatory authority to an industry body for non-legislative enforcement. A system of co-regulatory checks and balances thus emerges.

As for print media, the system of self-regulation more directly revolves around the media themselves. The South African National Editors Forum (SANEF) provides the overall self-regulatory framework for print media. SANEF members constitute a Press Council with its Press Ombudsman and Appeals Panel to deal with public complaints.

For fear of a statutory media tribunal (something being contemplated by the African National Congress), SANEF “members re-committed themselves to improving standards of journalism and enforcing the Press Council's Press Code of Conduct”.

What the above review of different media cultures underscores is that there is a constant struggle between the State and the media for control of media services. This is true of both developed and developing countries. What is also true is that most democracies have generally regulated media along the principle of self-regulation. Lighter regulation is generally preferable to heavy State or public regulation.

In next week’s article, I will reflect on the specific problems associated with the kind of statutory public regulation envisaged in Zambia, mindful of the particular media context that has given rise to the debate.

Labels: MECOZ, MEDIA, REGULATION

posted by MrK @ 5:27 PM