Maravi

The media: statutory or self-regulation? ]Part II]

The media: statutory or self-regulation? ]Part II]
By Prof Fackson Banda
Wednesday August 13, 2008 [04:00]

last week I reviewed the media-regulatory cultures in America, Britain and South Africa. I concluded that there is a constant struggle between the State and the media for control of media services. In outlining this struggle, I explained the three key approaches to regulation, namely (i) public (statutory) regulation, (ii) co-regulation, and (iii) self-regulation.

I emphasised that most democracies have generally regulated media along the principle of self-regulation. Public regulation of media is least talked about in such democracies. In their article entitled Self-Regulation, Co-Regulation, Public Regulation, Carmen Palzer and Alexander Scheuer give the example of how the Council of Europe and the European Union are increasingly talking about the possibility of co-regulation and self-regulation.
Indeed, there are several instances of co-regulation between State authorities and civil society in Europe, but such co-regulatory arrangements are usually an outcome of protracted processes of negotiation between the State and civil society. They can only work with the cooperation of both parties – State authorities and civil society actors.
As you will have noticed, public regulation is generally predicated on statutory regulation. Why is statutory regulation invoked? It is argued that self-regulation creates the possibility that industry may subvert regulatory goals to its own business goals. In a word, self-regulation can so easily mutate into self-service. It is also argued that self-regulation may not sufficiently address the needs of the public or the views of those affected by the media industry.
The third argument questions the adequacy of enforcement in self-regulatory regimes. What type of enforcement is likely to induce ethical compliance among members? Is it expulsion from membership? Is it professional ostracism or isolation? In the absence of legal sanctions, it is contended, how can self-regulation succeed?
And that last point seems to be the main bone of contention in the current debate about media regulation. The emphasis seems to be on the narrower issue of enforcing ethical compliance, and not the broader issue of regulating the media. There is no attempt to ask such critical questions as: Who is calling for such compliance, and what ethics must the media comply with? Whose perspective of ethics is being articulated? Is ethical compliance necessarily a function of a particular legislative regime? What are the political and professional implications? Will democracy be enhanced by such a legislated media regime?
In any case, aren’t media already regulated in Zambia? Yes! Last week, I observed that all media activity is regulated. The media are subject to the rule of common, equity, statutory, constitutional and administrative laws of Zambia. I shall not bother to explain what this legal jargon means; I simply want to underscore the fact that media regulation is broadly encapsulated in any law that touches upon freedom of expression. For what is media freedom without freedom of expression, and vice versa? In order to express oneself publicly, one must have unfettered access to free media.
As you will have guessed, I am signaling the difference between the occupation of journalism and other professions, such as law, medicine, accountancy, and the like. While some professions rely on professional secrecy, journalism relies on professional openness. Even when it protects some of its sources of news by keeping their identity confidential, journalism seeks to open itself up to those who might be victimised for divulging important information that is in the public interest.
Public, statutory regulation seems to deliberately emphasise ‘the bad and the ugly’ about journalism. It disregards the ‘good’ about journalism that often dwarfs ‘the bad and the ugly’. I demonstrated last week that developed democracies often protect the right of journalists to self-regulation in the interest of safeguarding the democratic credentials of their societies.
There is often a thin line between statutory media regulation and the criminalisation of democratic expression. Let me dwell, then, on some of the reasons why statutory regulation may work against democratic expression. Here, I rely on Angela J. Campbell’s article entitled Self-Regulation and the Media
First, self-regulation is more flexible than statutory regulation. It is easier for a media association to modify rules in response to changing circumstances than for a government agency to amend its rules. Once media regulation has been handed over to law-makers, it becomes difficult to obtain the political support and consensus needed to act as and when the association so desires. The ever changing political fortunes of any party in power are such that there is no knowing how a statutory media agency will metamorphose from one based on self-regulation to one based on the dominant political ideology of the day.
Second, statutory regulation is not likely to provide greater incentives for compliance. Scholarly opinion and research, as cited by Angela J. Campbell, shows that if rules are developed by the industry, industry participants are more likely to perceive them as reasonable and therefore compliable.
Third, statutory regulation is likely to be more costly to the government because it shifts the cost of developing and enforcing rules to government agencies. Another point to be noted here is that self-regulation does not necessarily mean the absence of government supervision in the public interest, but supervision requires fewer resources than direct regulation.
Fourth, statutory regulation will have to contend with defining the changing nature of journalistic expression and thus risk infringing constitutional provisions by criminalising some forms of expression. A related issue here is regulating the different forms of journalism that are constantly emerging as a consequence of new media technologies. The very emancipatory nature of new media is likely to render direct governmental control democratically questionable, not to say technologically challenging.
Technological enforcement of media must contend with the Internet, where jurisdictional and sovereignty issues make it difficult for nations to enforce their laws. Traditional media now have Internet presence, and this will prove unsettling for any statutory media regulation.
Fifth, statutory regulation generally proceeds from an antagonistic stance towards media activity, regardless of the regulatory goals. This antagonism is likely to fester into an open wound that can forever mar relationships between the media and the government of the day. There is no knowing who can get hurt all the most. But it is clear that citizens will be the proverbial grass that suffers when two elephants fight.
So is there justification for statutory media regulation in Zambia? Firstly, who complains the most and against whom? When I served on the Media Council of Zambia (MECOZ) board as secretary, it was The Post newspaper against which we had the most complaints, mainly from politicians and public figures. As far as I can remember, we had few or no complaints against the broadcast media, whether private or state-owned.
It is clear that The Post stands out as the most influential newspaper in Zambia. It is also evident that efforts at statutory regulation are aimed at ‘taming’ The Post. So there is a degree of insincerity in these agitations for public, statutory regulation of the media. But, as a student of media histories, I can predict that no such regulation will work. It will only hurt our democracy.
I do not believe that the levels of ethical misconduct in Zambian media have reached such proportions as to warrant State intervention. I believe that our media are coming of age and require continual interaction with the public. They need to become more reflexive of their practices. They must not take their audiences for granted. If The Post is a pain in the neck, we must continue to pressure it into ethical self-reflexivity and not call for Statist intervention. We must engage the newspaper on the basis of its democratic mandate, which includes a more responsive and participatory attitude to its news reporting. It is our democratic duty to so criticise The Post, but it is cowardice to turn to the State authorities to muzzle its freedom and independence.
One thing I know is this: The State has not given us enough reason to believe its commitment to media-friendly regulation. Take the selective implementation of the ZNBC (amendment) Act 2002 and the non-implementation of the IBA Act 2002. It is clear that the State seeks to control the media. Do we want to be complicit in this State agenda? Can we entrust media regulation to the State? You would have to be politically naïve to vote for legislated media regulation.
But, at the same time, I would concede that we need some kind of State involvement in discussions about the desirability of self-regulation. There are issues of public interest, such as child pornography, fanning ethnic hatred, and the like, which the State might be genuinely concerned about. That kind of solicited State involvement would amount to a co-regulatory process of dialogue, in which the State can be invited to list its concerns. The media themselves, not necessarily the media associations, can take up such concerns and elaborate them as part of their self-regulatory regime.
The State and the media need not be enemies. Both could strive for quality democratic expression! It is possible.

Labels: MECOZ, MEDIA, REGULATION

posted by MrK @ 5:29 PM