The proposal, drafted by Hugh Tomlinson QC, is the product of the work of an independent group of academics, journalists, lawyers and others brought together by the Reuters Institute for the Study of Journalism and the Media Standards Trust to discuss issues of Future Media Regulation.
The key elements of the proposed Media Standards Authority (“MSA”) are as follows:
- The MSA would be entirely independent of both government and the media but its governing council would include a minority of former editors and some working journalists;
- Participation in the MSA system of regulation would be voluntary but there would be substantial incentives for those who become participants, these would include an adjudication scheme for complaints which anyone wishing to bring proceedings against a participant would have to use before going to Court and enhanced defences in legal proceedings for participants. These incentives would have legal force.
- The MSA would be established by statute and several of the incentives for participation would likewise be statutory. However the MSA would not have the power to impose statutory sanctions on the media. Sanctions would be imposed under the terms of the “membership contract” between the MSA and the participants.
- The MSA would regulate participants – it would draw up a Code of Media Ethics and Responsibility (“the Code”) and carry out regular audits to ensure that participants were complying with it. The Code would be designed to provide a set of clear principles for ethical journalism and media practices, with specific examples and clear guidance adapted to the developing needs of the modern media.
- The MSA would have investigatory powers (deriving from the contract of participation). Participants who were found to have failed to comply with the Code would be subject to directions and sanctions, including increased subscriptions where there were repeat breaches of the Code or fines in the most serious cases.
- When approached by a member of the public, the MSA would be able to issue “desist notices” on an advisory basis to participants and other publishers where representatives of the media and/or the paparazzi were harassing an individual or threatening to infringing their Article 8 rights.
- The MSA would provide pre-publication advice and assistance in privacy cases – both to participants and to claimants. If a complaint was made about a publication which it was claimed would constitute an invasion of privacy, the MSA would require a participant to state whether it was going to rely on a public interest defence. If there was publication and no such defence was in fact relied on, the participant could be sanctioned by the MSA.
- The MSA would provide mediation and adjudication in disputes between the public and the media and would have the power to award compensation or order the publication of fair and accurate summaries of its rulings. It would also publish recommendations in order to encourage continued adherence to the Code.
- The medium term aim could be for the MSA to form part of a comprehensive system for regulation of all types of media – a “second tier” in between the “first tier” of strict regulation of those who use public resources (along the lines of the present Ofcom system) and a “third tier” subject only to “regulation” by the criminal laws against offensive speech, incitement of violence and so on. A worked through version of such a scheme can be found in Lara Fielden’s recent publication Regulating for Trust in Journalism: Standards Regulation in the age of blended media (Reuters Institute, 2011).
The full proposal for a Media Standards Authority can be found here.
Comments and suggestions are invited and should be submitted by email to regulationroundtable@gmail.com by 12 March 2012.