Voluntary media self-regulation is said to reside at one
end of a spectrum of interventions marked at the other coordinate by official
regulation and, somewhere in the middle, by a grey band of co-regulatory
arrangements. The Law Commission of New Zealand in its 2011 study entitled The
News Media Meets ‘New Media’ describes such options as a “pyramid” or
“continuum with government intervention and sanctions increasing along the
continuum, or with each layer of the pyramid.”
In few instances, in the modern era, is the option of “no
regulation” contemplated except via a variety of arguments related to a presumed
requirement to keep the Internet “free” both by means of more pervasive access
and through a regime of official controls governing content that does not
exceed accepted principles related to conventional media.
Much support for the notion of more freedom, as opposed
to more official regulation, is derived from an understanding of the potential developmental
impact of liberalised mass communication arrangements and recognition of the
value of free expression as an asset in the strengthening of the democratic
process. It is deemed axiomatic that when freedom of expression prevails greater
balance is achieved between the powerful and the powerless. For example, in
introducing UNESCO’s 2014 publication on World Trends in Freedom of Expression
and Media Development, Director-General, Irina Bokova noted that “a new global
sustainable development agenda … must be underpinned and driven by human
rights, with particular attention to freedom of expression.”
Free expression is both a vital pillar and by-product of
a liberal democracy. It serves as a self-propagating instrument of social
change and its protection can contribute to the building of platforms for good
governance, democracy and the consequential benefits of human and social
development. The media, as one formal manifestation of this freedom, can serve
as interlocutors between the powerful and the powerless, with a role as independent
watchdogs on the exercise of both state and private power.
Voluntary media self-regulation in this context serves as
an effective shield not only against the excesses of dominant state and private
holders of power but against the indulgences of errant media themselves. Sir
Brian Leveson, in summing up his report on the 2012 public inquiry into issues
of British press culture (the “Leveson Inquiry:”) concludes that “for many
years, there have been complaints that certain parts of the press ride
roughshod over others, both individuals and the public at large, without any
justifiable public interest.”
Leveson went so far as to propose a form of
“whistle-blowing” protection for journalists “who felt that they might be put
under pressure to do things that were unethical or against the code.”
There is also the long-held view, as noted by the New
Zealand study, that the law has a role to play in holding the news media
accountable to the public for the exercise of their powers.
Correspondingly, there is a public interest concern when
the state is accorded a disproportionate hand in addressing media
transgressions. Brenton Priestly’s 2004 essay on The Australian Media:
Regulation, Self-Regulation, the Public Interest and Free Speech says the argument
against government regulation of the media “places the public interest at its
forefront; the emphasis is on the principle that an independent media will
foster free speech which will be jeopardised by concentrating too much power
over it in the hands of the government.”
The Justice Hugh Small Committee which deliberated on
Jamaica’s defamation law in 2007-2008 appeared to endorse such a principle. “It
(Committee) considers that the State should not be involved in regulation of
the media as this would be contrary to the constitutional principles of freedom
of expression. The press and journalists in several Common Law countries have
established their own organisations for monitoring press freedom and enforcing
appropriate ethical standards for the practice of journalism.”
The development of a conceptual framework for media
self-regulation in the Caribbean would benefit from a clinical examination of
the performance of both existing and proposed statutorily determined content
restrictions and self-imposed standards both in the case of individual
institutions and at the level of the media industry as a whole. But it would
also be important to ensure that whatever the prognosis, freedom of expression considerations
remain integral to the charting of a way forward.
The international free expression advocacy group, Article
19, noted in its response to the Final Draft Royal Charter on Self-Regulation
of the Press in the UK in 2013 that press regulation is not necessarily
prohibited under international human rights standards though a specific model
is nowhere prescribed.
However, the group advised that such regulation would
only be acceptable if it met three basic requirements:
1. Such regulation be prescribed by law. For example,
supporters of Trinidad and Tobago’s “Broadcast Code” have cited its existence
as a mandatory requirement of the country’s Telecommunications Act;
2. Regulation is required in pursuit of a legitimate aim,
including, inter alia, the rights of others. The European Court of Human Rights
has elaborated that states have a positive obligation to regulate the exercise
of freedom of expression in order to ensure the adequate protection of other
rights by the law;
3. Regulation is necessary in a democratic society.
On the latter point, Article 19 was careful to note that
a regulatory response to any “pressing social need” must be proportionate to
the interests sought. Additionally, “if a less intrusive measure is capable of
achieving the same purpose as a more restrictive one, the least restrictive
measure must be applied.”
Trinidad and Tobago’s Broadcast Code appears to meet the
standard set by the first requirement. However, there must be corresponding
concern that there exist stark anomalies in the regulatory frameworks of the
print media when compared with far greater official intrusions in the broadcast
sector. The lack of parity in the regulatory frameworks governing the print and
broadcast media is now also being met by overlapping concern over online
content delivered on converged media platforms.
In the New Zealand study, which was commissioned to
review the adequacy of the regulatory environment in news media in the “digital
era”, that country’s Law Commission pointed to “significant gaps and
contradictions … emerging in these parallel systems of state and
self-regulation for print media and broadcasters as the channels for delivering
news converge in the multi-media digital environment … There is currently a
lack of regulatory parity between traditional news media and unregulated web
publishers on the one hand, and broadcasters and print publishers on the
other.”
A 2014 UNESCO report also speaks of “extensive unevenness
within the whole (media)” both within and without media disciplines and national
borders and the New Zealand Law Commission report points to “the collapse of
the boundaries which have traditionally separated the print and broadcast
segments of the news media. Increasingly these once discrete entities are
transforming themselves into multi-media companies, capable of producing news
in a rich mixture of text and audio-visual formats, disseminated on an ever
expanding array of platforms and devices, and promulgated via social media.”
The Caribbean is similarly challenged to clinically
examine the emerging trends that are increasingly being met by unenlightened
regulatory responses. In like manner, the regional media industry needs to reflect
on its own transformation in the face of convergence-dominated technological
and organisational mutations.
UNESCO’s 2014 report on World Trends in Freedom of
Expression and Media Development points to technological trends that have
“impacted traditional economic and organisational structures in the news media,
legal and regulatory frameworks, journalism practices, and media consumption
and production habits.”
Technological convergence, the Report says, has expanded
the number of and access to media platforms as well as “the potential for
expression.” Such advances have “enabled
the emergence of citizen journalism and spaces for independent media, while at
the same time fundamentally reconfiguring journalistic practices and the
business of news.”
Caribbean media would ignore this dynamic at its peril. Uneven
state regulation across media sectors and a failure by the industry to come to
terms with its own transformation can leave dangerous gaps in a regulatory
landscape that is subject to considerable authoritarian whim not only by
politicians but by populations that often perceive themselves to be under siege.
It should also be recognised that there are several
existing models of media self-regulation, most of which are the subject of
constant review. In France, Italy and Spain, media regulation is almost
exclusively by statute. In Italy the Open Media Coalition has been lobbying heavily
for a more transparent process in the selection of nominees to bodies such as
the Communications Regulatory Authority.
Jamaica’s Broadcasting Commission was established by
statute under the Broadcasting and Radio Re-Diffusion Amendment Act of 1986 and
the appointment of commissioners is made by the Governor-General after
consultation with the Prime Minister and the Leader of the Opposition.
Likewise, members of the Telecommunications Authority of
Trinidad and Tobago (TATT) are appointed by the President. Its principal
mandate is “the orderly development of a telecommunications system that serves
to safeguard, enrich and strengthen the national, social, cultural and economic
well-being of the society” by “promoting and protecting the interests of the
public” and “regulation of broadcasting services consistently with the
constitution.”
It has been rather disingenuously argued that voluntary
media self-regulation mechanisms, within the context of the existence of these state
regulatory agencies, would constitute a position of media “co-regulation”. What
would more closely resemble a situation of co-regulation would be the
delegating of key mandates under the current enabling legislation to a
self-regulatory mechanism operated by the industry under conditions similar to
what obtains in Denmark and have been established under the UK’s Royal Charter
on Self-Regulation of the Press which goes into effect in 2015.
While it would appear oxymoronic to describe a voluntary
act as being grounded in statute, this is actually the case in Denmark and, to
a lesser extent, Ireland. In Ireland, a Press Council, which oversees
newspapers and not the broadcast media, is recognised in law as an institution
for redress in the event of media wrongdoing but does not carry the force of law.
In Denmark, on the other hand, membership of the Press Council, which is
independently constituted, is mandatory with penalties prescribed at law.
The Royal Charter does not call for mandatory membership
by the press but has been heavily criticised as a method of imposing state
regulation through employment of an industry façade. On September 8, 2014 an
Independent Press Standards Organisation (IPSO) was launched in response.
It has however been noted that while the term
"self-regulation" means that the industry or profession rather than
the government is doing the regulation, it is not necessarily the case that
government involvement is entirely lacking. This observation by Angela J.
Campbell of the Georgetown University Law Centre, writing in the Federal
Communications Law Journal in 1999, was in support of the view that a state
role might not necessarily be in contradiction with the best intentions of
self-regulation in application of its three main components – legislation,
enforcement and adjudication.
“Instead of taking over all three components of regulation,
industry may be involved in only one or two. For example, an industry may be
involved at the legislation stage by developing a code of practice, while
leaving enforcement to the government, or the government may establish
regulations, but delegate enforcement to the private sector,” the Campbell
paper says.
“Sometimes government will mandate that an industry adopt
and enforce a code of self-regulation. Often times, an industry will engage in
self-regulation in an attempt to stave off government regulation.
Alternatively, self-regulation may be undertaken to implement or supplement
legislation.”
The solution facilitated by the Royal Charter appears to
support a hybrid model based on such a formulation.
Article 19 advises that while self-regulation relies
first and foremost on members’ common understanding of the values and ethics
that underpin their professional conduct, there is actually no uniform
definition of “self-regulation”. It points to the even more problematic model
of “regulated self-regulation” as obtains in Denmark and Ireland and, from
2015, in Britain.
The conundrum arises in the broadcast sector in the
Caribbean which is subject to heavier direct state regulation. Trinidad and
Tobago’s proposed Broadcast Code, for example, is meant to be a state
administered mechanism to monitor, adjudicate and punish broadcasters who, by
virtue of the Telecommunications Act and their individual broadcasting
licenses, are obligated to adhere to the Code. There is nothing voluntary about
the Code and industry engagement of the process arises solely out of
consultations on the standards set by it.
Opposition to the Code in all its manifestations
beginning with a first draft in 2005 included an argument that its provisions
were likely to exceed the existing legal framework for redress in the stated
areas of concern:
(1) the protection of national security;
(2) the prevention of crime and disorder;
(3) territorial integrity;
(4) public safety;
(5) the protection of health or morals; or
(6) the reputation or rights of others
Recognition of this is actually expressed in the document
which states: “The design of the Code recognises that in Trinidad and Tobago,
there currently exists legislation in force which provides some level of
protection and remedies in all of the aforementioned areas.” Opponents of the
Code, including this writer, argued that the real intention of the Code was to
create space for more regulation than existed in the past by generating an
entirely new range of potential transgressions not already interpreted as such
by the legal system.
The Association of Caribbean MediaWorkers (ACM) opposed
model Organisation of Eastern Caribbean States (OECS) broadcasting legislation
on similar grounds, based on the view that even as the precedent of content
restrictions was well established in the Caribbean, the legislation to be adopted
by the member states of the regional sub-grouping had failed to meet several
key standards linked to independent operations and adjudication, fairness and
proportionality regarding penalties.
Two attempts at a pan-Caribbean industry-led
self-regulatory system were launched in 1976 by the now-defunct Caribbean
Publishers and Broadcasters Association (CPBA) and in 2002 by the Eastern
Caribbean Press Council (ECPC). The 1976 Caribbean Press Council (CPC) was
established with 17 members comprising four CPBA nominees, four journalists and
nine non-industry members including a chairman who was explicitly not a member
of the media industry.
National councils were designed to follow the same
practice of appointing non-media chairpersons. Operating with a cadre of
voluntary Council members and entertaining complaints from the public with no
mechanism to ensure compliance, both the CPC and its national councils
eventually collapsed. Mark D. Alleyne notes in Mass Media and the Caribbean that the Barbados Press Council went
defunct after 1985 after its chief user, the late Prime Minister Tom Adams,
died.
The project was met with deep scepticism in Jamaica where
it was thought that a press council was one way of the government getting back
at what it considered to be recalcitrant journalists. There was also opposition
to the supra-national jurisdiction of the CPC.
The ECPC never full got off the ground following its
hopeful launch in 2002. The fledgling ACM was never invited to be a part of the
discussions over its establishment and its founders focused mainly on involvement
of editors and publishers to the exclusion of media workers. A lack of funding
and uneven levels of interest by publishers eventually led to the demise of the
ECPC.
By that time, the Trinidad and Tobago Publishers and
Broadcasters Association (TTPBA) had launched a Media Complaints Council (MCC)
under the chairmanship of former Senate President, Michael Williams. According
to TTPBA records, the MCC came into being in 1997 after the then Government
tried to have passed in Parliament the infamous Green Paper on Media. In May
1997, the government published a report entitled "Toward a Free and
Responsible Media," which proposed the adoption of statutes requiring
journalists to report with "due accuracy and impartiality." The
so-called "green paper" also called for the creation of a code of
ethics mandating that journalists promote national unity, and economic and
social progress. The government plan was shelved in response to public outcry
led in large measure by a number of media proprietors and MATT.
The owners and CEOs of media companies that then
comprised the TTPBA saw the need to establish an independent body charged with
enforcing a Code of Practice that was adopted by the media. Since that time the
MCC has been funded and supported by the TTPBA.
Despite the existence of a widely-circulated Code of
Practice, successive attempts at imposing new restrictions on the media have
cited a lack of professional guidelines for journalists. The Media Association
of Trinidad and Tobago (MATT) has long resisted adopting its own Code, thought
it once endorsed guidelines formulated by the now-defunct Caribbean Association
of Media Workers (CAMWORK) and is a member of the ACM which has its own Code.
The MCC Code was designed by the industry and
acknowledges that adherence to it “involves a substantial element of
self-restraint by the journalist” but was designed “to be acceptable in the
context of the system of self-regulation.
The Code applies in the spirit as well as in the letter.”
Trinidad and Tobago continues to be the only
English-speaking Caribbean country with a functioning media council. A review
of its operations is currently being conducted. The Council comprises five
members nominated by the TTPBA. Only one industry person sits on the Council
and its chair typically comes from outside the media. A majority of media
houses subscribe to the work of the Council and it is funded entirely by TTPBA
member companies.
Media industry leaders in the Caribbean rarely actively
engage the question of sector-wide voluntary self-regulation. The Media
Association of Jamaica (MAJ), which represents the media industry, has
described efforts by the Press Association of Jamaica (PAJ) to establish a
Media Complaints Council as “irrelevant” saying “self-regulation would be
sufficient and even more binding if media houses integrated their respective
Codes of Conduct into journalists’ employment contracts.”
In the view of the MAJ, “the best regulation for press
freedom is self-regulation. The proposed revised laws, added to existing
broadcasting regulations and the existence of individual media codes of conduct
and ethics provide a mix of legal, regulatory and self-regulatory oversight of
the media which is crucial for an independent media and for a healthy
democracy.”
This position suggests that a system of voluntary
self-regulation can suffice on state regulation and individual company codes
tied to the work contracts of journalists. The absence of industry engagement
in the formulation of an industry-wide initiative would render the PAJ
initiative futile.
With Leveson’s “whistle-blowing” capabilities for
journalists in mind, perhaps MAJ member companies would be inclined to consider
what the Inquiry suggested would be a “conscience clause” in the work contracts
of journalists to protect them in the event they are instructed to commit an
unethical or illegal act in the researching of stories.
The only other recently functional industry association
is the Guyana Media Proprietors Association (GMPA) which had been active on the
contentious issue of the award of broadcast licenses. Its members were
signatories to the 2011 Code of Conduct for Reporting and Coverage of Guyana
Elections which was supported by the Guyana Press Association (GPA) and the
vast majority of Guyanese media houses.
Guyana’s elections Code, first tested during the
elections of 2001 and, more successfully in 2006, provided the region with a unique
model of media self-regulation in which an official agency, in this case the
Guyana Elections Commission (GECOM) provided or oversaw monitoring, reporting
and adjudicating functions while a wide cross-section of the media industry
developed and formally adopted a Code of Conduct.
Certainly, extending the concept to broader full-scale
application would have required considerably more financial and human
resources, greater operational autonomy from official agencies and a much more
rigorous process of adjudicating apparent breaches of a more extensive Code.
There would also need to be a nuanced discussion on where official regulation
ends and where self-administered standards take over and how the two poles
relate to each other.
These two country-specific cases draw attention to the
need for national discourses on the essential value of a free press. It is true
that state regulation of the press and other forms of public expression are well-entrenched
features of Caribbean culture. In media practice, there are acceptable
statutory restrictions related to the protection of minors, privacy and
defamation. In recent years, issues of state security and the conduct of
international criminal activity have been firmly planted as part of the media’s
regulatory landscape.
In few instances, however, has there been a reciprocal drive
to legislate greater access to official information, to cite one example. Only
five of the Caribbean Community’s 15 member countries have access to
information laws. There has also been recurring reference to state regulatory
capabilities when it comes to online content. Both the OECS broadcast
legislation and the Broadcast Code of Trinidad and Tobago at some stage proposed
regulatory incursions into the production of online content.
The prevailing environment nevertheless requires
formulation of a self-regulatory agenda which promotes the concept of high
journalistic standards and protection of the rights of citizens. Leveson’s
often misunderstood prescription speaks of a body to set standards, both
through application of a Code and in relation to governance and compliance.
Such a body, he argues, “should hear individual
complaints against its members about breach of its standards and order
appropriate redress while encouraging individual newspapers to embrace a more
rigorous process for dealing with complaints internally; take an active role in
promoting high standards, including having the power to investigate serious or
systemic breaches and impose appropriate sanctions; and provide a fair, quick
and inexpensive arbitration service to deal with any civil law claims based
upon its members’ publications.”
Chairman of the UK Press Standards Board of Finance, Lord
Black of Brentwood, in his special submission to the Leveson Inquiry, proposed
a new self-regulatory body to replace the beleaguered Press Complaints Council
(PCC) under an independent Trust Board with subscriber media houses engaged in
contractual relationships with the regulator.
It would involve a complaints handling role for the
regulator while placing it alongside the creation of a separate arm of the
regulator with powers to investigate serious or systemic failures and levy
proportionate fines where appropriate. The system would also require the
establishment of a new industry funding body to set and collect membership
fees, which would have a role in the appointment process for the Chair of the
body, discretion over who can join the body and responsibility for the Editors’
Code.
In the Caribbean, the arms-length relationship between
the industry and state regulators may vary. Lord Black’s proposal for a
contractual arrangement between the independent industry regulator and member
media houses might be something to consider. There is also merit in empowering
a separate arm of the regulatory body to impose financial penalties based on
contracts and not necessarily on statute.
It is not however likely to be acceptable to Caribbean
media enterprises that, as suggested in the Leveson report and reflected in the
Royal Charter, industry representatives should comprise a minority in the
adjudicating arms of self-regulatory councils, notwithstanding the fact that
the CPC, ECPC and more recently the MCC in Trinidad and Tobago employed such a
model if only to foster greater confidence in the independent deliberations of
a press or media council.
It would also make sense for a system of appeals to
reside, much like the Caribbean Court of Justice, in a supra-national regional
body along lines proposed under the CPC with the exception that the appeals
mechanism comprise a majority of industry experts.
National press councils, as originally proposed by Lord
Black, should also operate on terms of reference in excess of a complaints
mechanism but be actively engaged in address what can be systemic shortcomings
in media practice.
The question of who pays the bills would necessarily
arise. This would depend on where the particular model resides along the
spectrum of state and industry regulatory conditions. It might be that partial
state funding can accompany a notion of media co-regulation in instances where
the media industry is invited to determine the parameters of new rules and
guidelines for enforcement by a state regulatory body, such as was proposed by
the telecommunications body in Trinidad and Tobago.
The 2014 UNESCO report on World Trends in Freedom of
Expression and Media Development also recognises the intractable challenge of
self-censorship and the growing trend toward what it describes as “private
sector censorship.” Such a scenario would appear to assist in the prescribing
of state-managed regulation to override what is also described by the report as
“the privatisation of censorship.”
An appropriate Caribbean Framework for Media
Self-Regulation should include a deliberate and discrete method for addressing
such a concern. This is particularly so in the face of the increasing
importance of technology companies and “other intermediaries in the media
ecosystem.”
Additionally, growing concern about social and economic
decline in the Caribbean is likely to stimulate more, rather than fewer,
coercive responses. Already the tide of public opinion has turned in favour of
more draconian laws and punishments in the context of rising violent crime,
corruption and political malpractice.
The Caribbean media industry can lead the way in finding
a solution to its shortcomings in a manner that respects the value of free
expression and the ability of citizens to benefit from the free flow of
information, news, opinions of all shades, analyses and entertainment.
Andrew Puddephatt’s 2011 treatise on The Importance of
Self-Regulation of the Media in upholding freedom of expression suggests that
there are two overarching principles if it is to be accepted that
self-regulation is the necessary alternative to state control of the media.
“Firstly all media actors, professional or business have
obligations to uphold in exchange for the freedom of state interference that
they rightly claim. These obligations should be centred on the need to protect
and promote freedom of expression. Secondly, all such obligations should be
made explicit and transparent and be the subject of regular reporting in the
public sphere. Both conditions are essential if self-regulation is to protect
freedom of expression and not just the interests of companies themselves.”
The Caribbean context to all of this is a state of
intense flux. Established mainstream
media have contended over recent years with a rapid rise in non-traditional
news-gatherers entitled to enjoyment of freedom of expression without prejudice
but are often operated by people who do not necessarily feel compelled to
honour professional journalistic and other media standards.
An exercise similar to the New Zealand study would
hopefully provide clues into the precise nature of this sub-sector’s engagement
of the notion of voluntary self-regulation. The growing importance of social
media and pervasive nature of other virtual, multimedia platforms is measured
in terms of drop-offs in newspaper purchases, declining broadcast audiences in
some instances and a growing reliance on the immediacy of digitally delivered
news and information at the expense of traditional media.
The setting, monitoring and evaluation of standards
related to such content may well remain elusive for some time to come. It might
well be that, for now, the focus will continue to remain on ensuring that the
operations of and content produced by mainstream, traditional media with
digital overflows adhere to high professional standards and strengthen the case
for the retreat of the state regulator.
Wesley Gibbings
Association of Caribbean MediaWorkers
October 8, 2014
REFERENCES/ADDITIONAL READING
The News Media Meets ‘New Media’: Rights,
Responsibilities and Regulation in the Digital Age, Law Commission of New
Zealand, 2010
World Trends in Freedom of Expression and Media, UNESCO,
2014
Report into the culture, practices and ethics of the
press, The Leveson Inquiry, UK 2012
The Australian Media: Regulation, Self-Regulation, the
Public Interest and Free Speech, Brenton Priestly, 2004
Review of Jamaica’s Defamation Laws, Justice Hugh Small
Committee, February 2008
Royal Charter on Self-Regulation of the Press, UK, 2013
Draft Broadcast Code, Telecommunications Authority of
Trinidad and Tobago, 2013
Broadcasting and Radio Re-Diffusion Amendment Act of 1986,
Jamaica
Self-Regulation and the Media, Angela J. Campbell,
Georgetown University Law Center, 1999
The Importance of Self-Regulation of the Media in
upholding freedom of expression
Andrew Puddephatt, UNESCO, 2011
News Media (Self‑regulation) Bill, Australia, 2013
IPSO Editors' Code of Practice, UK, 2014
Media Complains Council of Trinidad and Tobago, Code of Practice,
Trinidad and Tobago Publishers and Broadcasters Association, 1997
A More Accountable Press Part 1: The Need for Reform. Is
self-regulation failing the press and the public? UK, Media Standards Trust,
2009
Mass Media and the Caribbean edited by Stuart H. Surlin,
Walter C. Soderlund, Routledge, 1991
Third World Mass Media and Their Search for Modernity:
The Case of Commonwealth Caribbean, 1717-1976, John A. Lent, Bucknell
University Press, 1977
Why Media Self-Regulation in Guyana, Georgetown, Guyana –
September 11, 2009, Wesley Gibbings
