The basic justification for State involvement in media regulation is the public interest.
The argument follows this path. Media – especially mainstream media – are not just a business. They perform a democratic function as the Fourth Estate. Thus society has a stake in how media behaves.
There are a number of linked or associated arguments.
First – democratic self-government depends on accurate information. Citizens must be well-informed if they are to hold power to account and ensure the proper performance of government. Media regulation supports this function by ensuring accuracy, balance and error correction.
Secondly – it is well understood that large media organisations hold significant social and political power. The public interest argument says any concentration of power should be answerable to someone. Without regulation, the press checks everyone except itself.
Thirdly – the prevention of harm or damage. The media can seriously damage people through inaccuracy, intrusion into privacy, harassment, or reporting that prejudices a fair trial. Although there are individual remedies such as actions for defamation or breaches of privacy these are expensive and not available to all. The Leveson Enquiry into media phone hacking in England demonstrated a failure of self-regulation
Fourthly – there is a problem with the profit orientation of MSM. Commercial incentives reward sensationalism, clickbait and the cheapest content, not the most socially valuable journalism. Regulation, and public service broadcasting obligations, can correct this.
Fifthly – the growth of mega-media organisations can narrow the range of voices. Ownership rules and merger controls aim to keep diverse viewpoints available. The “marketplace of ideas” only works if the market is competitive.
Sixthly and finally - broadcasting historically used scarce public spectrum, which justified licensing conditions. The rationale is weaker now, but it explains why broadcasters (in New Zealand, under the Broadcasting Standards Authority) face tighter rules than print.
It is also argued that there are benefits for media regulation.
It provides ordinary citizens with accessible remedies. The complaints processes and rights of reply are far cheaper and faster than legal remedies such as defamation.
The implementation of a standards regime ensures accuracy and fairness as well as standardising media ethics. This in turn enhances the element of public trust in the Fourth Estate and a proper complaints system can help the audience distinguish fact from “misinformation”.
Media regulation also indirectly provides the vulnerable such as children, victims of crime and those who are grieving from intrusive coverage.
Finally, a well-designed regulatory system can support press freedom. For example, recognised journalists may qualify for protections such as source privilege or exemptions under privacy law.
But media regulation poses certain difficulties and there are arguments against it.
The first is that regulatory systems introduce a chilling effect. Fear of sanctions leads to self-censorship, especially on controversial or powerful subjects. The journalism most likely to be suppressed is often the most important.
Secondly there is a concern about the role of the state. As Juvenal once said quis custodiet ipsos custodes. If the state regulates the press, the body the press is meant to scrutinise gains leverage over it.
Even well-intentioned regimes can be captured or abused by later governments. This is the classic liberal argument from John Stuart Mill and US First Amendment thinking.
There is a difference between public interest and what the public is interested in and the line between public interest and prurience is a fine one. Giving a regulator power to decide the difference is itself a form of editorial control.
A strong argument against regulation is that it is not necessary. Defamation, privacy torts, contempt of court, harassment and criminal law already constrain the media. Critics argue that further regulation duplicates these and adds a speech-specific layer of control.
There is also the issue of obsolescence of regulatory regimes in the Digital Paradigm. In a digital environment where anyone can publish, regulating “the press” is hard to define. Regulating only established outlets may burden responsible journalists while bloggers, influencers and platforms escape.
Then there is the cost of regulation – not so much to the State but upon media players. Compliance costs fall hardest on small and independent outlets, which can reduce pluralism rather than increase it.
Finally there is the issue of “nanny state” and State paternalism. Audiences are capable of judging sources for themselves. Counter-speech, not regulation, is the proper answer to bad speech.
There is no absolute answer to the question of whether or not the public interest justifies media regulation. The better question suggests the type or regulation and how much intrusion can be justified and tolerated in a free and democratic society.
In some circles there is an argument that regulation benefits and enhances press freedom.
Freedom of the press is not an end in itself. It is valued largely because it serves the public. The press has a role in informing citizens, exposing wrongdoing, and enabling democratic debate.
On that view, the public interest is the source of press freedom’s value.
Regulation that genuinely serves those same ends, such as correcting falsehoods or preventing gross privacy intrusions, is consistent with the purpose of press freedom rather than opposed to it.
Most human rights frameworks accept this. Article 10 of the European Convention on Human Rights, and section 5 of the New Zealand Bill of Rights Act 1990, both allow limits on expression that are prescribed by law and demonstrably justified in a free and democratic society.
However, the same argument works in the opposite way.
Because a free press serves the public by scrutinising power, any mechanism that gives power leverage over the press threatens the very interest regulation claims to protect.
History offers many examples of “public interest” rules being used to silence critics.
The accepted position is that the public interest is important enough to justify some accountability mechanism.
But – and this is a big but - it is rarely if ever important enough to justify state control over content.
Most people who have examined the question accept regulation that protects individuals and supports quality journalism. The real disagreement is over how close to government that regulation may sit.
Thus the public interest justification is a reasonable one if a certain model is proposed.
The fist thing is that the regulatory has to be independent of Government. There must be insulation from political or ideological control. Examples include independent self-regulation (such as the NZ Media Council), or “independent self-regulation with statutory recognition”, as Leveson proposed.
What sort of remedial power should the regulator possess. The consensus seems to favour corrections, rights of reply and published adjudications over fines, licensing or prior restraint. Prior restraint is almost universally regarded as the most dangerous form.
Rules should be specific rather than general and should address specific harms such as inaccuracy, privacy intrusion and harassment, rather than vague standards like “taste” or “balance” that invite editorial second-guessing.
There should be a public interest defence built in. This is present in certain circumstances as a defence in defamation actions. Journalism that intrudes on privacy or embarrasses the powerful should be protected when it serves a genuine public interest.
Finally regulation should be directed at structural issues rather than to content. Ownership and pluralism rules, and funding for public interest journalism, can advance the public interest with less intrusion on what is said. However, the unfortunate experience with the Public Interest Journalism Fund demonstrates the care with which funding should be approached.
The conclusion to all this can be shortly stated. As far as media regulation ,is concerned the model that provides the least restrictive intrusion into media freedom and the freedom of expression is to be preferred to any other. And finally, the Government must not be involved.
David Harvey is a former District Court Judge and Mastermind champion, as well as an award winning writer who blogs at the substack site A Halflings View - Where this article was sourced
Secondly – it is well understood that large media organisations hold significant social and political power. The public interest argument says any concentration of power should be answerable to someone. Without regulation, the press checks everyone except itself.
Thirdly – the prevention of harm or damage. The media can seriously damage people through inaccuracy, intrusion into privacy, harassment, or reporting that prejudices a fair trial. Although there are individual remedies such as actions for defamation or breaches of privacy these are expensive and not available to all. The Leveson Enquiry into media phone hacking in England demonstrated a failure of self-regulation
Fourthly – there is a problem with the profit orientation of MSM. Commercial incentives reward sensationalism, clickbait and the cheapest content, not the most socially valuable journalism. Regulation, and public service broadcasting obligations, can correct this.
Fifthly – the growth of mega-media organisations can narrow the range of voices. Ownership rules and merger controls aim to keep diverse viewpoints available. The “marketplace of ideas” only works if the market is competitive.
Sixthly and finally - broadcasting historically used scarce public spectrum, which justified licensing conditions. The rationale is weaker now, but it explains why broadcasters (in New Zealand, under the Broadcasting Standards Authority) face tighter rules than print.
It is also argued that there are benefits for media regulation.
It provides ordinary citizens with accessible remedies. The complaints processes and rights of reply are far cheaper and faster than legal remedies such as defamation.
The implementation of a standards regime ensures accuracy and fairness as well as standardising media ethics. This in turn enhances the element of public trust in the Fourth Estate and a proper complaints system can help the audience distinguish fact from “misinformation”.
Media regulation also indirectly provides the vulnerable such as children, victims of crime and those who are grieving from intrusive coverage.
Finally, a well-designed regulatory system can support press freedom. For example, recognised journalists may qualify for protections such as source privilege or exemptions under privacy law.
But media regulation poses certain difficulties and there are arguments against it.
The first is that regulatory systems introduce a chilling effect. Fear of sanctions leads to self-censorship, especially on controversial or powerful subjects. The journalism most likely to be suppressed is often the most important.
Secondly there is a concern about the role of the state. As Juvenal once said quis custodiet ipsos custodes. If the state regulates the press, the body the press is meant to scrutinise gains leverage over it.
Even well-intentioned regimes can be captured or abused by later governments. This is the classic liberal argument from John Stuart Mill and US First Amendment thinking.
There is a difference between public interest and what the public is interested in and the line between public interest and prurience is a fine one. Giving a regulator power to decide the difference is itself a form of editorial control.
A strong argument against regulation is that it is not necessary. Defamation, privacy torts, contempt of court, harassment and criminal law already constrain the media. Critics argue that further regulation duplicates these and adds a speech-specific layer of control.
There is also the issue of obsolescence of regulatory regimes in the Digital Paradigm. In a digital environment where anyone can publish, regulating “the press” is hard to define. Regulating only established outlets may burden responsible journalists while bloggers, influencers and platforms escape.
Then there is the cost of regulation – not so much to the State but upon media players. Compliance costs fall hardest on small and independent outlets, which can reduce pluralism rather than increase it.
Finally there is the issue of “nanny state” and State paternalism. Audiences are capable of judging sources for themselves. Counter-speech, not regulation, is the proper answer to bad speech.
There is no absolute answer to the question of whether or not the public interest justifies media regulation. The better question suggests the type or regulation and how much intrusion can be justified and tolerated in a free and democratic society.
In some circles there is an argument that regulation benefits and enhances press freedom.
Freedom of the press is not an end in itself. It is valued largely because it serves the public. The press has a role in informing citizens, exposing wrongdoing, and enabling democratic debate.
On that view, the public interest is the source of press freedom’s value.
Regulation that genuinely serves those same ends, such as correcting falsehoods or preventing gross privacy intrusions, is consistent with the purpose of press freedom rather than opposed to it.
Most human rights frameworks accept this. Article 10 of the European Convention on Human Rights, and section 5 of the New Zealand Bill of Rights Act 1990, both allow limits on expression that are prescribed by law and demonstrably justified in a free and democratic society.
However, the same argument works in the opposite way.
Because a free press serves the public by scrutinising power, any mechanism that gives power leverage over the press threatens the very interest regulation claims to protect.
History offers many examples of “public interest” rules being used to silence critics.
The accepted position is that the public interest is important enough to justify some accountability mechanism.
But – and this is a big but - it is rarely if ever important enough to justify state control over content.
Most people who have examined the question accept regulation that protects individuals and supports quality journalism. The real disagreement is over how close to government that regulation may sit.
Thus the public interest justification is a reasonable one if a certain model is proposed.
The fist thing is that the regulatory has to be independent of Government. There must be insulation from political or ideological control. Examples include independent self-regulation (such as the NZ Media Council), or “independent self-regulation with statutory recognition”, as Leveson proposed.
What sort of remedial power should the regulator possess. The consensus seems to favour corrections, rights of reply and published adjudications over fines, licensing or prior restraint. Prior restraint is almost universally regarded as the most dangerous form.
Rules should be specific rather than general and should address specific harms such as inaccuracy, privacy intrusion and harassment, rather than vague standards like “taste” or “balance” that invite editorial second-guessing.
There should be a public interest defence built in. This is present in certain circumstances as a defence in defamation actions. Journalism that intrudes on privacy or embarrasses the powerful should be protected when it serves a genuine public interest.
Finally regulation should be directed at structural issues rather than to content. Ownership and pluralism rules, and funding for public interest journalism, can advance the public interest with less intrusion on what is said. However, the unfortunate experience with the Public Interest Journalism Fund demonstrates the care with which funding should be approached.
The conclusion to all this can be shortly stated. As far as media regulation ,is concerned the model that provides the least restrictive intrusion into media freedom and the freedom of expression is to be preferred to any other. And finally, the Government must not be involved.
David Harvey is a former District Court Judge and Mastermind champion, as well as an award winning writer who blogs at the substack site A Halflings View - Where this article was sourced
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