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Market Demand and Public Goods
A further objection to a heavy regulatory burden is the fear that the market-place viability of newspapers and magazines in particular would be put at risk. Again, as a matter of economics, this seems wrong-headed. If there is genuine market demand for accurate unbiased information, there will be the incentive to supply it – in some form, although not necessarily in the form of newspapers that pitch their sales on sensationalism and celebrity gossip. Indeed the poor financial performance of much of the UK traditional media may well stem from the accurate-enough public sense that the latter is all they are now supplying. For genuinely useful information they are going elsewhere, if anywhere.
If it should turn out that there is no such market demand, then there can be no market supply whatever the regulatory regime. This would put the service of a genuinely ‘free press’ in the category of a public good, perhaps requiring supply by a British Press Corporation analogous to the BBC. Although this is hardly an ideal outcome, there may well be worse.
A Contract-based Regulator?
Assuming that market provision of a press free of both political and corporate influence is viable, what form of regulation is appropriate? Lord Judge gives us the extreme view.
Whatever means of regulation are designed to reduce the occasions of unacceptable behaviour by elements of the press they must not simultaneously, even if accidentally, diminish or dilute the ability and power of the press to reveal and highlight true public scandals or misconduct.
Once again, when we realise that ‘unacceptable behaviour’ includes bias toward its own corporate interests, and we apply the economic criteria of marginal benefit matching marginal cost, we come to a rather different view. We are forced to balance the evident harms unaddressed by self-regulation against the potential harms of statutory regulation.
The industry proposal is for a contract-based self-regulation system that would bind in signatories for periods of several years. The basis of the contract would be determined mainly by industry representatives, while its policing would be the responsibility of an industry-independent panel. Entry into such a contract would be voluntary, but there would be incentives and disincentives intended to ensure that no serious media outlet could afford not to do so. In such a system’s favour the current PCC Editor’s Code (as the template for the substantive content of such a contract) is frequently cited. Even prominent media researcher Professor Steven Barnett, otherwise a severe critic of self-regulation, argues that ’the principles themselves represent a benchmark for professionalism and quality’.
Despite the existence of neutral members of the body, as proposed, the existence of strong sectional representation by the corporate press means that any slack in the system can only go one way – towards those interests. There needs to be a clearer distinction between the need of the regulatory body to understand how the press works and how journalists ply their trade, and the need for the press to be represented in its decision-making processes. The former is obvious, but the latter much less so if a free press belongs to us all.
More specifically, the control of the code-setting process by industry representatives means that while the Editors’ Code may currently appear satisfactory, its stipulations and interpretation are always prone to watering down should there be a series of adjudications damaging to press industry interests. And the contractual structure of the proposed system leaves the huge difficulty of striking a balance between willingness to participate and the credibility of adjudication and sanctions. Ultimately, why would any revenue-oriented business enter into a contract which might end up with it losing sales, advertisers and money? And without such jeopardy, where is the incentive to comply when the competitive chips are down?
Statutory but Independent
So the problem is how to design press regulation that is, in Professor Barnett’s words, ‘supported by a backstop, independent body with the democratic legitimacy of Parliament’, while maximising, in Lord Judge’s, ‘the ability and power of the press to reveal and highlight true public scandals or misconduct’, in the corporate world as much as the political world and elsewhere.
For a start, it should be clear that there need not, and should not be licensing of newspapers or the imposition of impartiality rules. There should not, except where privacy issues are at stake, be pre-publication interference. The error and bias of individual journalists, or even individual media outlets as long as they are plentiful, is not in itself our concern. They are of course as prone to human error as the rest of us, which is why plurality is of such importance. Genuine plurality means the intrinsic fallibility and bias of journalists and their output matching that of the population at large. What we must guard against is persistent general skewing of press reporting, whether towards a corporate interest, a political party or toward a broader societal interest such as that of labour versus capital or the converse.
As far as the regulator is concerned, this should be dealt with by the ability to enforce rigorously the Editors’ Code’s stipulation that in the reporting of purported fact any ‘significant inaccuracy, misleading statement or distortion…must be corrected, promptly and with due prominence’ irrespective of whether harm to any specific individual or group can be identified. The onus should always be on the media outlet to demonstrate the accuracy of its reporting, but it may be quite acceptable for any correction to take the form simply of indicating the appropriate degree of uncertainty of some factual claim, or of enumerating evidence that would allow a more balanced assessment. The investigatory and adjudicatory arm responsible for this process must be and must be seen to be independent of all sectional interests. Punitive sanctions with legal force should however be available for non-compliance and subversion of this process by, for example, the providing of false statements or false evidence in support of disputed stories. A Parliamentary oversight committee, elected by the full membership of both Houses, should have responsibility for monitoring the performance of this body and making recommendations for any changes. It would generally be expected that such changes be accepted by the government of the day without amendment.
Tackling Market Dominance – Short and Long Run
There is, though, a wider consideration in regards to plurality. However effectively and efficiently the regulatory body performs its task, it cannot initiate discussion of topics that are avoided by the regulated media. For this, a large variety of viable media outlets must be free to thrive. And this is only possible if market conditions allow – which they cannot if the dual effect of profit-led and promotion-led dominance by a few wealthy proprietors, whether corporate or individual, continues. In part this can be addressed by tougher restrictions on media concentration, with lower thresholds for action and adjudications that are more independent of government.
The combination of more pro-active regulation of media content and more diligent monitoring and intervention of market structure will not be without cost, whether paid for by taxpayers or newspaper readers in higher prices for their news. It is therefore to be hoped that the media industry in particular, with its vital role for the health of ‘the community as a whole’, will go down the road of greater internal plurality of governance. Instead of ownership of media groups in the hands of wealthy individuals and shareholder corporations, it would be better to see many more of them existing as co-operatives, social enterprises and stakeholder corporations – where a commitment to informing accurately and understanding fully is intrinsic rather than a strategic add-on. A media industry run on these lines is also likely to prove much easier and less costly to regulate than the existing variety.