Media self-regulation is the setting of rules for the media and oversight of compliance with those rules by media organizations or by users. Self-regulation should be distinguished from state or statutory regulation (i.e., regulation by law or by a statutory regulatory authority). Means of self-regulation include dispute resolution procedures, rating boards, codes of conduct, and at the level of the user, technical measures such as filtering, encryption, and pin numbers that regulate children’s and others’ behavior.
Self-regulation is often seen as more attractive than state regulation because it has legitimacy with the industry, is more flexible in responding to change, and can offer an alternative to state and political interference with media content. On the other hand, self-regulation is often criticized for the same reasons: because it is overly flexible and too close to the industry to offer genuine protection of the public interest. The sanctions of self-regulation are generally seen as weaker than those available to statutory bodies or through legal process. Usually, exclusion from the trade association or self-regulatory scheme is the ultimate sanction. In the case of press and broadcasting, there may be an obligation to publish a retraction or apology.
Forms of self-regulation are in some cases linked to statutory schemes. For example, the self-regulatory ratings provided by the Motion Picture Association of America and the British Board of Film Classification are adopted in the statutory framework for video rental or film exhibition. Such hybrids between state and self-regulation are referred to as co-regulation or regulated self-regulation.
The aims and justifications of self-regulation of the media vary sector by sector. For example, a study of the emerging self-regulatory codes for Internet service providers (ISPs) found that codes had articles relating to illegal content, privacy, hate speech, provision of e-commerce services, spam (unsolicited email), and protection of minors. By contrast, press codes focus on the practice of ethical journalism, in matters such as intrusion into privacy and accuracy of information provided. Codes for the electronic gaming sector focus narrowly on protection of minors and content standards. In the context of convergence these sectoral differences will be increasingly significant as codes and self-regulatory schemes overlap and potentially conflict.
Origins and Motivations of Media Self-Regulation
Self-regulation can be spontaneous, motivated by a genuine sense of responsibility to media users, or it may emerge in response to the threat of government or statutory regulation. Governments and public policymakers sometimes call for or support the development of self-regulatory schemes. For example, the European Commission offered financial and technical support to the development of self-regulatory schemes as part of the Internet Action Plan between 2001 and 2004, and again from 2005 onward. The Italian minister of communications in 1997 called for a working group of ISPs to work on the development of a code of conduct for Internet content, and the code was agreed in 2004. In some cases (for example, codes adopted by providers of advertising) there may be a clear self-interest for advertisers in promoting content standards, as the industry shares an interest in promoting the view that advertisements are accurate. In many cases, self-regulatory activity is funded as a means to prevent costly statutory regulation.
Self-Regulation by Media Sectors
Newspapers generally feature one or more of three forms of self-regulation. Press councils are industry-wide bodies that operate a code of conduct that applies to newspapers. One example of this is the Press Complaints Commission (PCC) in the UK. Typically, the code of conduct consists of rules of ethical journalistic behavior, including rules on intrusion into privacy, harassment, reporting of crime, reporting of court cases, reporting on children, and accuracy. Some codes also set out the relevant legal standards in relation to the press. A second form of self-regulation, more commonly practiced in the USA, is the news ombudsman or readers’ editor, which provides a semiautonomous complaints and disputes resolution mechanism within a single media organization. For example, the Asahi Shimbun in Japan established a committee to resolve complaints as early as 1922. For these internal self-regulatory mechanisms to be effective, it is generally accepted that ombudsmen or complaints committees should enjoy independence of action within the organization and have a protected employment status. In addition, journalists may be subject to the code of conduct of a professional organization such as a trade union. In some cases, professional associations demand compliance with a code of professional ethics.
Broadcasting is a sector featuring a complex range of statutory regulatory interventions, traditionally deriving from the limited market entry and the need for a body that allocates frequencies. The sector also typically features a range of self-regulatory interventions, through individual broadcasters setting out producers’ guidelines to insure fair and accurate reporting. Like the codes applied by individual newspapers, these are generally voluntary, but may be linked to a formal regulatory schema.
Internet content is covered by a variety of self-regulatory codes. ISP codes set out the procedures for dealing with illegal content (a notice and takedown procedure in the US and the EU, whereby ISPs have no liability for monitoring content, but should take illegal content down when notified that it is present on their servers). There may also be unilateral codes of conduct administered by the content providers themselves, such as privacy codes. And in the case of major cross-platform content providers, codes applied to other media may also be applied to Internet content. The PCC, for example, will hear complaints about web content, including video, if that content is posted by newspapers that subscribe to the PCC code. Some Internet industry codes of conduct, for example in China, have been seen as a way of enlisting industry support for state censorship.
Conditions of Success of Media Self-Regulation
Self-regulation works best where there is a degree of coincidence between the self-interest of the industry and the wider public interest; i.e., industry self-regulation is more likely in those situations where self-policing can increase the overall demand for the industry’s product or prevent a burden of statutory regulation. The existence of an industry-wide decision-making system (e.g., and industry association) increases the probability of effective industry self-regulation.
There have been numerous attempts in the literature on self-regulation to isolate the conditions for success of self-regulatory schemes. The UK’s National Consumer Council has offered a succinct yet comprehensive set of “ingredients” for a successful self-regulatory scheme: objectives must be clear and intelligible and set out clear standards; the code of conduct must clearly set out rules, monitoring, enforcement, sanctions, consultation on codes and a redress mechanism; and the structure for implementing these should be legitimate and sustainable.
A code administered by a trade organization may face legitimacy deficit, and impartiality or independence of adjudication must be defended against the accusation that it has been “captured” by industry, rather than public interests. Therefore, a dedicated structure is needed, including independent representation, external monitoring of compliance, public accountability, and adequate publicity functions. Resources must be sufficient to support these structures. Finally, performance indicators for redress (including time taken to deal with complaints and surveys of complainants) should be identified, enabling regular review of self-regulatory bodies.
Relationship to Government and Other Rights
The generation of self-regulation often has its foundation in the possibility or fear of government regulation, so where industry representatives are able to point to a credible threat, they are most likely to sustain self-regulatory institutions. It is a commonplace to assert that there is therefore in practice no clear division between state and private self-regulation, though there has been little research on the legal consequences of this in communications. Huyse and Parmentier (1990) distinguish between the following state and self-regulatory relationships: subcontracting, where the state limits its involvement to setting formal conditions for rule making, but leaves it up to parties to shape the content; concerted action, where the state sets not only the formal but also the substantive conditions for rule making by one or more parties; and incorporation, where existing but unofficial norms become part of the legislative order by insertion into statutes.
Media content is an established field of self-regulation in which controversial issues of free speech regularly come into play along with other fundamental rights such as privacy. As a result, high standards with regard to transparency, accountability, and clarity and proportionality of objectives, for example, need to be maintained by the self-regulatory institutions.
Regulated Self-Regulation and European Concepts of Self-Regulation and Co-Regulation
Schulz and Held have investigated co-regulation in the German context, specifically in the case of protection of minors. In their view, self-regulation in Anglo-American debate is concerned with “reconciliation of private interests” whereas their formulation – regulated self-regulation – is indirect state regulation based on constitutional principles. The German concept of regulated self-regulation gives the state a role when basic constitutional rights need to be upheld (Schutz & Held 2004, 22). The French term “co-regulation” also gives a sense of the joint responsibilities of market actors and state, short of outright command and control, in the activity under investigation. The term “co-regulation” has been used by the UK’s telecom regulator to suggest that the state should have a role in setting objectives that companies then organize to achieve – with the threat of statutory sanction if self-regulation fails. The relationships between law and voluntary codes have thus been the site of a great deal of regulatory innovation in the current period in Europe (see Tambini et al. forthcoming).
Convergence and Future Trends in Self-Regulation
Significant economies of scale are likely to be realized through functional integration of certain key aspects of the content regulation value chain horizontally across sectors and across EU member states and elsewhere. Computer games rating has illustrated the potential for developing a common pan-European ratings structure. Germany and the Netherlands operate a cross-media rating and labeling scheme for age-appropriate content. In a situation of increasing cross border trade within the EU, these trends are set to continue.
One interesting recent development has related to journalistic ethics and their regulation online. Increasingly, existing codes, applied to the press over decades, have been applied to the written word online. At the same time, news provision by new entrants such as bloggers, and by broadcasters who have their own codes, have illustrated the complexity and overlap that result in the new environment.
Adequate resourcing is the key to successful self-regulation. Policy on self-regulation must take into account a broader view of the sustainability, effectiveness, and impact on free speech of self-regulatory codes and institutions.
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