Media regulation: time to turn the mirror of transparency?

Written by Anna Donovan, PhD student at UCL Laws.

We should fret less about state versus self regulation and think much more carefully about how best to protect speech. This was the lesson of the Centre for Ethics and Law’s annual lecture on 28 November, which considered the question of media freedoms and media standards.

The lecture was presented by Baroness Onora O’Neill, chaired by UCL’s Professor Richard Moorhead and had contributions from Gill Philips and Professor Ian Hargreaves CBE.

The packed lecture, serendipitous in its timing (being held the day before the Leveson Report was issued) was a huge success, tackling the highly topical issue of media regulation.

Baroness O’Neill offered a framework of regulation based on the governance of media processes, not content.  In doing so, Baroness O’Neill argued that hitherto the focus has been on the right of the media to ‘freedom of expression’ (such arguments relying heavily on the postwar human rights Declarations) rather than the needs of their audience.

However, if we change our focus from the producer to the audience, and view media content as communication, we find normative justification for regulating the process by which such communications are produced, while maintaining the fundamental principle of press independence.

Against this framework, Baroness O’Neill discussed three classic propositions offered in support of media freedom, and argued that only the last withstood scrutiny.

The first relies on John Stuart Mill’s assertion that freedom of expression should only be curtailed when there is a risk of harm to others. Yet, Baroness O’Neill argued, media corporations have no ‘self’ to express.

Moreover, while this model of self-expression arguably provides helpful guidance when considering harm in individual situations, it offers little assistance when looking at formulating public policy.

The second argument turns to Milton’s suggestion that the protection of speech (even falsehoods) is needed for the sake of discovering truth; that truth can be revealed by allowing false claims to contend with true ones.

Yet, this truth-seeking argument can be simplistic in the context of the media – the content of which is often not aimed at truth seeking (crossword puzzles, cartoons and horoscopes to name but a few).

However, this second argument is not entirely without application to the media, as it does highlight that other truth-seeking institutions (such as universities and courts) are subject to speech regulation.

In this regard, we can draw on the disciplines that these institutions are subject to (for example, the testing and checking of evidence), to provide guidance when looking at the regulation of investigative journalism, an aspect of the media that does have truth seeking at its core.

Thus, we turn to the third argument, which Baroness O’Neill argued does provide support and guidance for the future regulation of the media.

That is, by focusing on media as a form of communication (not self-expression or pure truth seeking), we find justification to address the needs of the audience to that communication (as well as the needs of the media as producers of that information).

Importantly, communication must be capable of being accessible, intelligible and assessable. It is this last test of assessability that provides the framework for regulating, not the content of media (which carries with it familiar concerns), but its processes.

Baroness O’Neill proposed five ways in which the media process could be regulated; namely the requirement for media to be open about:

(i) payments to others

(ii) payments from others

(iii) personal interests

(iv) mistake and errors

(v) most sources.

In presenting these recommendations, Baroness O’Neill made the salient point that in suggesting these process requirements, “are we not simply turning the mirror of transparency that the media has so often demanded of others on themselves”?

Media regulation is, understandably, an emotive issue that has implications for a wide range of stakeholders and the lecture generated lively debate.

In response, Gill Philips acknowledged that with the power of the media comes responsibility and outlined how certain news groups were already responding to most, if not all, of Baroness O’Neill’s suggestions.

Professor Ian Hargreaves emphasised the difficulty of applying the fifth proposal (that relating to sources) to the highly rapid and often necessarily informal pursuit of truth involved in the work of investigative journalism.

In particular, he explained that journalism is a “rough and ready” business and warned against the risk of the debate becoming “too highfalutin’ for its own good”.

Thus, we see the difficulty of the task before Lord Justice Leveson, how do we balance the need to maintain the independence of the media and the difficulty of genuine investigative journalism with the rights of its audience to be able to properly assess its content?

There also remains the question raised by the floor – what of the responsibility of those who buy the newspapers that are now the subject of the Leveson Enquiry?