Department of Media & Communication Attenborough Building University of Leicester University Road Leicester, LE1 7RH
09 Feb 2010
1. Introduction 1.1 What is media regulation? The `media' whose regulation I am discussing are the public means of mass communication, especially the press, radio and television, but also including film and recorded music as well as a number of newer means of distribution by way of cable, satellite, discs, tapes, etc. Of increasing importance is the internet, which can now be regarded as a `mass medium' in its own right on the grounds of its gradual diffusion to majorities in many countries and its use for a number of public communication functions in the sphere of both entertainment and information. The boundary between public and private communication is an important one from the point of view of regulation, but it is much less easy to identify than in the past, especially in relation to the internet which serves as means of personal communication as well as a means of dissemination and form of publication. To some extent, the same applies to mobile phones.
Regulation refers to the whole process of control or guidance, by established rules and procedures, applied by governments and other political and administrative authorities to all kinds of media activities. Thus regulation is always a potential intervention in ongoing activities, usually for some stated “public interest” goal, but also to serve the needs of the market (for instance, by supporting competition) or for reasons of technical efficiency (for instance, setting technical standards). Regulation takes many forms, ranging from clauses in national constitutions and laws to administrative procedures and technical specifications. Regulation can be internal as well as external. In the former case, we are usually speaking of `self-regulation', where internal controls are applied, sometimes in response to public pressure or criticism from outside.
1.2 The historical background to media regulation The history of media regulation begins with the application of the printing press to book production from the mid-15th century onwards in Western Europe. Initially, printing was simply a more productive alternative to the copying of manuscript texts by hand, which had not been formally regulated, although in practice it took place mainly under the oversight of authorities of church or state. As the printing trade and industry expanded, especially after 1500, both church and state took an increasing interest in the content of what was being printed and published, especially with a view to combating heresy or dissent. This led very widely to the licensing of all printers by the state and/or the requirement for advance approval by church authorities for texts to be published. The export and import of books was also controlled or forbidden. Authors and printers could also be severely punished for publications deemed heretical or treasonable. In more autocratic states, such as the Ottoman Empire and Russia, printing was simply banned for two hundred or more years.
Between the 16th and 19th centuries in Western Europe and North America, the history of media regulation was one of struggle against restrictions on publication waged in the name of political freedom and human rights, but also on behalf of the printing trades and industries, including the rights of authors. The freedom to publish was achieved by gradual change in Britain and by revolution in France at the end of the eighteenth century and gradually in territories of the Austrian and Prussian Empires during the nineteenth century. Similar freedoms were never really attained in Russia, even after the Revolution of 1917, nor in the British colonies and Japan until much later in the twentieth century. For most of the world during the modern era, repressive and punitive media regulation in the interest of state power has been the norm.
A new dimension to regulation was added by the invention of new media during the nineteenth century, especially the electric telegraph, then the telephone and wireless, which led to public radio broadcasting from 1920 onwards. All these media were closely regulated by national laws that were more or less required by international agreements relating to technical requirements (e.g. radio frequency allocation). They also served other interests of state, including military and economic considerations. Often regulation took the form of control by state bodies or public monopolies. In other cases, such as the United States, supervision was exercised by a powerful governmental body (the Federal Communications Commission). During the early 20th century, the cinema film was also established, typically regulated locally for reasons of safety (fire) and/or content (moral standards).
Broadcast media (radio and television) were the most closely regulated of all media nearly everywhere during the twentieth century and they have never achieved the degree of freedom enjoyed by print media. Since about 1980, new forms of distribution by cable and satellite have led to a great expansion of media output and to more relaxed regulatory regimes, especially in relation to content. Although there has been deregulation of media, it is often remarked that, in response to the advent of new media and changed conditions, we are really in a period of re-regulation where regulatory frameworks are amended to reflect new economic and/or political priorities rather than simply removed.
1.3 Why are media regulated? There is a contradiction intrinsic to the notion of regulating what are supposed to be the free means of expression and information in a modern society. Regulation by its very nature sets limits to freedom, which is the most basic principle of democratic societies. At the very least, this means that there have to be clear and convincing reasons for regulation, and although we can give general justifications for regulation that help to reconcile it with principles of freedom and democracy, we cannot escape from this underlying tension.
There is no single or simple answer to the question `why regulate?' and often the surface reasons given conceal other purposes (especially the interests of the state). Even so, six general reasons for media regulation can be proposed, as follows:
The management of what is arguably the key economic resource in the emerging `information society', with a very high dependence on all forms of communication.
The protection of public order and support for instruments of government and justice.
The protection of individual and sectional rights and interests that might be harmed by unrestricted use of public means of communication.
The promotion of the efficiency and development of the communication system, by way of technical standardization, innovation, connectivity and universal provision.
The promotion of access, freedom to communicate, diversity and universal provision as well as securing communicative and cultural ends chosen by the people for themselves.
Maintaining conditions for effective operation of free markets in media services, especially competition and access, protection of consumers, stimulating innovation and expansion.
1.4 The `public interest' in communication: political, cultural and economic aspects Although the precise meaning of the term can be disputed, we can speak of there being a `public interest' when something at issue is widely considered to be essential to the longer term welfare of society and its members. Societies differ in how they interpret the specific content of the public interest in respect of communication. Nevertheless there are many cross-national similarities in the arrangements made to protect, control or encourage communication and in the main reasons for doing so. From early times, physical communications such as roads, bridges, canals and harbours were built and maintained at public expense for the general good.
Modern mass media have added a new layer to the communication services, raising new and more complex issues about what is in the public interest. These issues can be considered in terms of three main functions: political; social cultural; and economic. These can be located in a broader framework of policy and regulation as shown in Van Cuilenburg and McQuail model (Van Cuilenburg and McQuail, 2003, p.184).
Let us now briefly consider the three main components of the public interest as indicated in their model.
1.4.1 Political functions of communications media The machinery of politics, especially competition between parties for support via democratic elections, simply cannot operate without a large and continual flow of information in the public arena. Active participation in political life by the majority is an essential component of democracy, but it too depends on an adequate flow of communication to and amongst citizens and constituent bodies. Possibilities for expressing and disseminating views critical of government have to exist, along with proposals for policy and new ideas. Regulation may be needed to secure all these conditions.
1.4.2 Social-cultural functions of communications media The social and cultural functions of communication relate to the whole range of news, entertainment and arts, amusement, sports coverage and public education. The media now play an essential part in: the expression and continuity of national and cultural identity; the reflection of regional, ethnic and other forms of diversity; and the `binding together', by intercommunication, of society as a whole and of particular communities and constituent elements. Each separate institutional field of social and cultural life (e.g. education, the arts, leisure and sport, religion, science) has extensive internal and external communication requirements.
1.4.3 Economic functions of communications media The economic value of communication to society is unmistakable and is increasing all the time. The mass media and many related communication activities are often industries in themselves, producing informational products. A large and growing sector of industrial production is devoted to electronics and information technology hardware and software of all kinds, from radio sets to mainframe computers or telephone systems. It is thus not surprising that communications businesses are regulated just like other businesses. Special policies are often formulated to stimulate the application of communication technology in the economy and the growth of the information technology sector. They may also be intended to protect national economic interests - see, for instance, complaints about piracy and arguments about cultural protectionism between the USA and Europe in the context of the World Trade Organisation (WTO). Media market regulation also aims at reducing monopoly and stimulating competition for reasons of efficiency.
Activity One (Allow 20 minutes) Briefly summarise the main reasons for the regulation of mass media. Think of an additional example of a political, economic or social/cultural need fulfilled by the media, and consider in your answer why that need might not be fulfilled by the market left to itself. Do you yourself think there should be more or less regulation?
2. Media Theory, Policy, Regulation and Accountability Regulation of the media normally takes place within a broader framework of principle and policy. We can think in terms of a hierarchy, with three main levels consisting of theory, policy and regulation, in increasing degree of specificity, followed by means of implementation. As shown in Figure 2, an overarching idea such as that of freedom of expression or human rights is expressed in broad policies for communications media. Such ideas provide direction and legitimation for proposals and actions to secure the public interest. These policies have then to be implemented in regulations that are applied either formally as legal or administrative rules or informally as voluntary industry and professional self-regulation. The matters regulated or self-regulated are: media structure, conduct and content, plus various technical and organizational matters.
THEORY, PRINCIPLES, IDEAS
POLICIES FOR MEDIA
LAW AND ADMINISTRATION
Structure, conduct or content
Technical and organizational matters plus conduct and content
Figure 2: Levels and types of media regulation
2.1 Normative media theory Media theory refers to the complex of social-political-philosophical principles which organize ideas about the relationship between media and society. Within this is a type of theory called `normative theory', which is concerned with what the media ought to be doing in society rather than what they actually do. In general, the dominant ideas about the obligations of mass media will be consistent with other values and arrangements in a given society. According to Siebert et al (1956) in their book Four Theories of the Press, “the press takes on the form and coloration of the social and political structures within which it operates” (pp.1-2). The press and other media, in their view, will reflect the “basic beliefs and assumptions that the society holds”. In the western liberal tradition, this refers to matters such as freedom, equality before the law, social solidarity and cohesion, cultural diversity, active participation, and social responsibility. Different cultures may have different principles and priorities.
Although normative theory of the press is now in a considerable state of uncertainty (see Nerone, 1995), not least because of changes in the media and the rise of new media forms, we can still identify certain broad traditions of thought about the rights and responsibilities of media in society and the degree to which `society' may legitimately intervene to protect the public interest. The main relevant variants can be described as follows:
Authoritarian theory (which applies to early pre-democratic forms of society and also to present- day undemocratic or autocratic social systems). In this view, all media and public communication are subject to the supervision of the ruling authority and expression or opinion which might undermine the established social and political order can be forbidden. Although this `theory' contravenes rights of freedom of expression, it can be invoked under extreme conditions.
Free press theory (most fully developed in the United States of America, but applying elsewhere) proclaims complete freedom of public expression and of economic operation of the media and rejects any interference by government in any aspect of the press. A well- functioning market should resolve all issues of media obligation and social need.
Social responsibility theory (found more in Europe and countries under European influence) is a modified version of free press theory placing greater emphasis upon the accountability of the media (especially broadcasting) to society. Media are free but they should accept obligations to serve the public good. The means of ensuring compliance with these obligations can either be through professional self-regulation or public intervention (or both).
Development media theory (applying in countries at lower levels of economic development and with limited resources) takes various forms but essentially proposes that media freedom, while desirable, should be subordinated (of necessity) to the requirements of economic, social and political development.
Alternative media theory. From a social critical perspective the dominant media of the established society are likely to be inadequate by definition in respect of many groups in society and too much under the control of the state and other authorities or elites. This type of theory favours media that are close to the grass-roots of society, small-scale, participative, active and non-commercial. Their role is to speak for and to the social out-groups and also to keep radical criticism alive.
Often, the media system of a given country will have a mixture of theoretical elements and media types, displaying neither absolute freedom nor absolute subordination to the state or ruling power. Hallin and Mancini (2004) have argued that we should forget about normative theories and look more closely at actual arrangements connecting media with society. They propose a typology of relations between the media system and the political system, based on a comparative examination of contemporary national societies. In this view there are three types or variants, each with different implications for the role and obligations of the media in society:
a Liberal model in which the media operate according to the principles of the free market; without formal connections between media and politics and with minimal state intervention;
a Democratic Corporatist model in which commercial media coexist with media tied to organized social and political groups and the state has a small but active role;
a Polarized Pluralist model, with media integrated into party politics, weaker commercial media and a strong role for the state.
As with the theories outlined previously, these models are also `ideal types' and in practice societies have a mixture of the elements outlined. Public service broadcasting is found in two forms in the second and third models as, respectively, either a neutralized and politically impartial organization or as politicized in some way, usually with division in terms of the political spectrum. In the fully Liberal model, there may be little or no place for public service broadcasting.
Activity Two (Allow 2-3 hours) Before going any further, you should now read chapters 7 and 8 of McQuail's Mass Communication Theory (McQuail, 2005).
2.2 General principles of media theory in the western model Leaving aside such differences, we can still find a good deal of agreement about the principles that should be advanced or respected by mainstream media in countries that seek to follow the liberal/democratic model of a media system. Disagreement is found mainly over the means by which the principles can be achieved (e.g. by regulation, self-regulation, or market forces). The main principles can be stated as follows:
Independence: The media should be free to follow their chosen cultural and informational objectives, without undue pressure or limitation from interests other than those of their chosen audiences (especially not pressure from government, business, pressure groups and propagandists). Independence is a necessary condition for playing a critical and creative role in society.
Diversity or pluralism: There should be a wide variety of media in terms of culture, information and ideas. People should be able to choose from a wide range of alternatives according to their different needs, points of view, beliefs and tastes. For this to be achieved there needs to be diversity of ownership and also real opportunities for access to all main voices and interests in society.
Information quality: The news and information made available to the public by the media should be of a high standard of quality, in the sense that it aims at the truth and is extensive, trustworthy, professional, accurate, relevant and balanced (diversity again).
Social and cultural order: There are expectations that the media will not deliberately offend the basic norms of their society (by encouraging crime, for instance, or subverting a legitimate political system) and that they will make a positive contribution to the maintenance of national and minority languages and cultures.
Some of these principles are potentially in conflict with each other (for instance, freedom versus order, majority cultural values versus those of minorities). One of the aims of media regulation is to manage such tensions and mediate conflicts.
2.3 Media policy and policy making Between such general statements of principles and actual regulation we expect to find policies, which are projects of government formulated in particular countries for application to their own media systems. Communication policies are usually formulated as a result of pressures from public opinion or from self-interested groups (e.g. a branch of the media industry).
Media policies organize goals and means of action in relation to the media in general, to one media sector or some problematic issue (e.g. media concentration or transnational media flow) and the policy-making process normally involves the expression of conflicting interests. The main struggles over communication policy involve the following oppositions:
public versus private interests;
economic versus social or cultural interests;
international versus national or local interests.
The main different levels at which communication policies are formed are the transnational, the national, and the local or regional. Examples of policy actors at the first level would be: UNESCO, the International Telecommunications Union (ITU), and the European Commission (EC). At the national level there is probably the widest range of actors and interests, including many political bodies, labour unions and media industry interests. At the local or regional level, decisions about access (e.g. to a city cable system) may be in the hands of local government. Political and cultural bodies may also sponsor media provision for special needs. The level at which an issue is formulated largely determines the particular decision forum in which related discussions and decisions take place.
Communication policy-making can follow or appeal to a variety of different logics according to which an actor engages in the policy process. A logic in this sense refers to the “perception of the situation and the structure of goals and means...in a given situation” (McQuail and Siune, 1986, p.16). A logic (of policy) can also be considered as a consistent rationale of thinking and action related to particular goals. The most relevant kinds of logic for media policy and regulation are as follows: