A presentation to “Media Regulation – New Ideas: A City University London and Reuters Institute for the Study of Journalism Event 1 November 2011”

It’s 2011. I’m a consumer. I know a bit about the media and its regulation. I know that Ofcom regulates television and radio. I’ve read that the PCC has been through some rough times recently but I know that, for the time being at least, it regulates newspapers.

So, I’ve watched a report from a journalist and I want to make a complaint about it. So far, so simple. I contact Ofcom. No I don’t. It was a BBC report and my complaint is about impartiality. I should contact the BBC Trust. Or should I? I watched the report on YouTube and turns out BBC Worldwide own the rights to it. I discover a body called the Authority for Television on Demand or ‘ATVOD’ regulates that material. I will complain to them. Only problem is, under ATVOD’s rules, there’s no requirement for impartiality.

But not to worry. I’ve now lost interest in that complaint. I’m worried about a piece I saw on Press TV. I complain to Ofcom. I’m ahead of the game this time. I’ve read the Ofcom Bulletin on programme complaints. I know Press TV is an Iranian-funded television channel, recently threatened with sanctions by Ofcom for breaching the Broadcasting Code.

While my complaint goes through I see the same piece available on its video on demand service. Also called Press TV. I complain to ATVOD – I know there’s no ATVOD requirement for impartiality, but there is a rule on incitement to hatred. I can complain under that rule. No I can’t. Turns out Press TV’s on-demand service is run from Tehran so it’s outside ATVOD’s jurisdiction. It’s the same piece that I saw broadcast by an Ofcom-regulated licensee but on-demand it’s completely unregulated.

I give up on broadcasting and video on demand. I pick up a newspaper. I’ve just read an article that I think is misleading. I’m complaining to the PCC. No I’m not, although the newspaper is a household name and looks like all the other newspapers on the news stand, it’s no longer a PCC member. It’s unregulated.

I turn to another newspaper, this time online, this time PCC regulated. It’s the Daily Mail. Here’s the thing. I’ve just seen a package, embedded into a Daily Mail online offering, and at the end it informs me it was an ITN production. I want to complain about it. Do I turn to Ofcom? ITN broadcast material is governed by Ofcom rules. Do I complain to ATVOD? After all the material wasn’t on a scheduled service, as far as I can see, I ‘demanded’ it. Do I complain to the PCC – it is on a newspaper website?

And which rules apply? Was the piece required to be impartial, like I expect broadcast ITN content to be? Or can it be partial like I expect the Mail to be? I’ve no idea.

I’m going to listen to the radio instead. I want to complain about something I’ve just heard. I would try Ofcom but I heard it on a catch-up service so they can’t help. I go to ATVOD. Oops – ATVOD regulates audiovisual content but not audio content. So who regulates that on-demand radio service? No one.

I’m online, I stumble across the British National Party’s BNPtv and watch an interview with the mother of a murder victim. Is this TV? Is it broadcast? Is it ‘on demand’? Is it unregulated online content? Is it journalism? Don’t know – nor does anyone else it seems. Its regulation is currently subject to appeal.

Maybe I’ll complain another day.

No wonder the House of Lords Select Committee on Communications, reviewing media complaints systems earlier this year, professed itself confused, if not baffled, by who regulates what and by which set of rules.

And why does this matter? Who cares about a serial complainant anyway?

Well let’s take a step back. It’s those questions about where our expectations should lie. We are justly proud of a tradition of impartial public service broadcasting, but what of public service content delivered as video on demand and more widely online? Why are the rules different?

We celebrate a plurality of partial perspectives in the press, why not on television and radio now that monopoly of provision has been overtaken by an array of channels and choice? We gold plate the standards required of TV and radio, yet consumers profess to a growing sense of powerlessness across media platforms.

We talk about television as our ‘most missed’ device and yet there is a growing generational divide as younger, converged consumers engage with media in wholly different ways to their parents and grandparents. (It’s their mobiles they say they would most miss, not their TV’s.) We celebrate new media but fail to support a range of voluntary regulatory standards for emerging content providers.

My report for the Reuters Institute and City University London looks beneath the multitude of investigations, consultations, scandals, and inquiries into issues of journalistic standards from this year alone. Underlying them it finds a deepening conflict between converging media content on the one hand, and static standards regulation on the other.

A range of case studies from Ofcom, ATVOD, the PCC and overseas demonstrate the challenges to our current system that divides the worlds of broadcasting, the press, video on demand and emerging online providers.

I argue that incoherence in journalistic standards risks undermining public trust as consumers engage with content across media platforms. It risks damaging public confidence in the very sources of information and analysis on which citizens depend in order to make informed, democratic choices.

I argue that the appropriate response to the issue of press regulation is to place it in the context of a coherent, connected regulatory framework that works across media platforms. A framework that recognises that newspapers aren’t just in print, they’re online and providing audio visual material, sometimes within articles, sometimes as standalone services.

For broadcasting I argue that the ‘public protection’ starting point of the current Communications Act is increasingly meaningless. Protection of children – absolutely, and across media platforms. But adult citizens should be enabled through regulation.

I propose a new regulatory settlement that narrows comprehensive regulation to public service providers. For private media providers, whether these are broadcasters, newspapers, on-demand providers, bloggers, it’s a framework that incentivises voluntary, transparently-signalled standards as a selling point, for both existing and emerging content.

It places informed citizens at its heart; and differentiates providers not by how they distribute content but by their values. It’s a framework that recognises the traditions and audience expectations of different elements of the media, and allows for a measured transition towards a settlement that will embrace future developments.

So, I offer you an alternative scenario.

It’s 2016. I’m a consumer. At home I have a television. It’s internet connected. I have a lap top, a smart phone and a tablet device. I enjoy accessing a fantastically diverse range of content, including journalism, some regulated, some not. I know which is which and my choices are informed by that knowledge. I have three, broad, readily recognisable standards marks to guide me, corresponding to three tiers of regulation.

The top tier is required for public service content – whether broadcast, on-demand or online. If there’s public investment in it, or public privileges attached to it (for example access to a public service multiplex), this content is required to comply with comprehensive, statutory, regulation.

News and current affairs output must be impartial as well as accurate, there are detailed rules on elections, the protection of children, on crime and commercial messaging. Not dissimilar to the scope of the current Ofcom Broadcasting Code rules. I know what to expect from this material and access it accordingly. Whether it’s on a channel flagged as Tier 1, or whether it’s an individual piece of content provided on say YouTube and tagged as Tier 1.

And other providers who aren’t obliged to conform to its rules, can voluntarily opt in to this top tier. A news agency say, that ‘strives for freedom from bias’, or a television news channel, or a newspaper. I know what to expect of them. And they can appeal to me as a citizen and a consumer using their Tier 1 standards as a selling point, a mark of excellence.

Or I may turn to Tier 2 content – again flagged for me with a standards mark. I know that providers who have opted in to this tier have drawn up a code of ethical standards. They include private, non-public service broadcasters, but also newspapers in print and online, and video on demand providers, and bloggers.

They provide content that upholds requirements of accuracy, though not impartiality, and separates fact from opinion. They recognise the balance between freedom of speech and fair treatment and privacy. There are requirements that protect children. Their rule book is slimmer than for Tier 1, perhaps owing something to the current PCC Code.

And if it’s not a statutory requirement, why would a newspaper or a broadcaster be a member of this tier? Perhaps it’s because their ethical values run through them like a stick of rock. Or perhaps it’s because membership is incentivised, transparent to the public and commercially valuable.

Membership of Tier 2 provides accreditation for court reporting; confers privileged access to confidential briefings; demonstrates an affiliation with responsible, accountable journalism when justifying a journalist’s actions in privacy or defamation proceedings. It enhances advertising deals and demonstrates credibility for consumers.

This regulatory tier is recognised in statute, as is the process for selecting its independent board and the sanctions that can be applied for rule breaches. Industry funds it and draws up the rules, but its administration and enforcement is entirely independent. Most importantly while it has statutory recognition, membership is voluntary. If a member is expelled, or withdraws, from this tier they sacrifice the associated privileges and cannot display the standards mark.

Or I can access Tier 3 content. Only basic rules from Tiers 1 and 2 apply – for example restricting access to hardcore porn, preventing incitement to religious and racial hatred, ensuring a right of reply where a reputation has been damaged through inaccuracy.

Membership is required of some providers – consistent with minimum European requirements placed on TV and video on demand material. And membership is voluntarily chosen by others – seeking to differentiate themselves from the mass of unregulated content, by signing up to this baseline standards mark.

And beyond the three tiers there’s unregulated content – perhaps in print, perhaps online, governed by the law, with redress through the courts. I can recognise it because it doesn’t carry a standards mark. The courts can recognise it when distinguishing between regulated and unregulated journalists. I may celebrate it as part of the anarchic, vibrant, diversity of the unregulated media world, or I may steer clear – the choice is mine.

Providers have made their choices about where to position their content. And I, as a citizen and a consumer, can expect protection for my kids and to be able to make informed choices, from the whole range of media content, for myself.

Lara Fielden began her career as a graduate trainee at London Weekend Television. She spent over a decade with BBC television, producing and directing current affairs investigations and documentaries, overseas and in the UK. Between 2005 and 2010 she was with Ofcom where she managed fairness and privacy complaints and reviews of the Broadcasting Code.

The full report is available on the Reuters Institute of Journalism website. There is a news release about the book.