There are a number of assessments of the role the media play in society. Most acknowledge their importance in shaping the way people think and their influence on personal choices. Generally, it is agreed that the media play multiples roles in society which include but are not limited to the collection and dissemination of information; transmission of social and cultural values; education and entertainment. Most importantly, the media provides the public with an informed basis upon which views can be expressed and decisions made about political and social issues.
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This essay attempts to look at the role and relevance of communications media regulation. It will discuss the ways in which media have been regulated in the past and the historical rationale for dividing communications industries into print, broadcast and telecommunication. The issue of technology and its role in dividing the media, its relevance in the approaches taken to regulate media industries and the challenges that it presents to regulatory arrangements will also be considered. Finally, this essay will draw on the historical evolutions of the communications industries and discuss the approaches taken to regulate each media, the issues surrounding regulations as well as the usefulness and relevance of such regulation.
According to classical traditional liberal theory, the principal democratic role of the media is to act as a check on the state while at the same time serve as an agency of information and debate that facilitates the functioning of democracy. Curran (2005), states that ‘this watch dog role’ should override all other roles of the media. An advocate for total media freedom, Curran (2005) argues that media can perform these functions if there are no government controls and if they are left to ‘do their responsibility and be the guardians of public interest’, in a free market. He also supports the views of Kelley and Donoway (1990) that any reform of the media, however desirable, is unacceptable if it is ‘at the cost of the watch dog function’ (p. 122).
McQuail (2005) defines regulation as ‘the whole process of control or guidance, by established rules and procedures, applied by governments and other political and administrative authorities to all kinds of media’ (p. 5). He notes that even though regulation limits freedom and basically goes against the basic principle of democratic societies, it is an important aspect in protecting public interest and serving the needs of the market. Defining public interest can be a challenging task because the term alters over time to reflect the changes in society and involves some degree of subjectivity, but it manifests itself when an issue(s) has an impact on the longer term welfare of society and its members. ‘Media regulation of some form is therefore unavoidable because public communications media fulfill a wide range of essential functions in modern society’ (McQuail, 2005, p.37). These functions can be broadly categorized in three areas: political, social culture and economic.
The electorate in any society needs an adequate and continual flow of information to and amongst its citizens and constituent bodies in order to have active participation in political life. The media is therefore needed to be the neutral channel and purveyor of information for the political education of its citizenry. Also, a well developed, specialist sector, enabling different social groups to debate within their terms of reference issues of social identity, group interest, political strategy and social moral values is essential in any democratic society. The media according to McQuail (2005) now play an essential part in the expression and continuity of national and cultural identity; the reflection of regional, ethnic and other forms of diversity and the ‘binding together by interconnection, of society as a whole and or particular communities and constituent elements’. Extensive internal and external communications requirements are needed in all aspects of social and cultural life.
Finally, the economic function of communications media is a growing debate. One view of the media is that it simply delivers what interests the public and is no different from other commodities in producing and delivering goods. According to this view, news and entertainment that have broad, mainstream appeal, which attracts and retain advertisers and sells products is valuable. This view highlights the fact that many privately owned media entities’ main interest is in attracting an audience to sell to advertisers, which usually means that what may be in the public interest may not necessarily be in the corporate interest. Bottom line pressures usually steers media content away from serious substance that challenges people, to entertainment that is familiar and comforting. Although such programming may be profitable, it usually makes little contribution to the more vibrant civic culture and content that usually contributes to an active ‘public sphere’ (the ‘space’ within which ideas, opinions and views freely circulate) which is essential to the operation of a healthy democracy (McKenna, 1995). Here, public interest serves as the yardstick against which media performance is measured- not money, but because the media is often so engaged in pursuing their own interest against those of the public, they sometimes sacrifice their own freedom for profit and gain and often fall short of their responsibilities in providing a platform for discussions and feedback.
The Hutchins Commission of 1947 which inquired into the proper function of the media in modern democracies, after deliberating for four years found that:
‘Too much of the regular output of the press consists of a miscellaneous succession of stories and images which have no relation to the typical lives of real people anywhere. The result is a meaningless, flatness, distortion, and the perpetuation of misunderstanding. The press emphasizes the sensational rather than the significant. The press is preoccupied with these incidents to such an extent that the citizen is not supplied the information and discussion he needs to discharge his responsibilities to the community’.
The Commission concluded that the press plays an important role in the development and stability of modern society, and as such, it is imperative that a commitment of social responsibility be imposed on mass media. According to this social responsibility theory, the press has a moral obligation to consider the needs of society when making journalistic decisions that will produce the greatest good. William Hocking, one of the commissioners on the Hutchins Commission highlighted that it was in the public interest to have a responsible press.
Inseparable from the right of the press to be free, has been the right of the people to have a free press; but the public interest has advanced beyond that point. It is now the right of the people to have an adequate press….and it is the right of the public that now takes precedence (Hocking, 1947).
Even Curran (2005), conceded that while media entertainment influences the political process by creating understandings of the world and moral and social values which affect political life ‘there needs to be intelligent and informative journalism that sustains the workings of democracy. If entertainment crowds out prime-time coverage of public affairs, democracy becomes starved and anorexic’ (p. 136).
The media’s role in democracy and its unique capability to provide the public with the information, education and quality entertainment they need to participate in political and social life and act effectively as citizens serves as justification for regulation in a democratic context.
Approaches to media regulation usually take two forms either through self regulation where responsibilities are assigned to media operators to implement by themselves or formal intervention where states apply legal administrative rules. Both forms seek to secure the public interest and ‘normally takes place within a broader framework of principle and policy’ (McQuail, 2005, p. 9). The former involves the media being monitored from within the organization or by a body that represents public and industry interests. This takes the form of journalistic codes of practice and reporting guidelines and is also concerned with privacy issues, the protection of journalistic sources and the standards for advertising. Formal media regulation is guided by legal requirements that include prohibitions against libel and defamation; laws protecting privacy and intellectual property rights among others and which manifest themselves in form of specific laws to regulate the media to avoid direct intervention by the state and government. Supervisory and advisory boards for the media such as the Office of Communications (Ofcom) in the United Kingdom (UK) or the Federal Communications Commission (FCC) in the United States (US) usually are mandated to monitor the media and ensure that they comply with such regulations.
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Both forms of regulation are usually designed to make the media accountable ‘to their society for the quality and/or consequences of publication’ (McQuail, 2005, p.207) and addresses issues of media structure; infrastructure and technology; distribution; access; conduct; and, content based on political, administrative, commercial, industrial, cultural and technical logics. McQuail (2005) notes that even though ‘media regulations have tendered to reflect quite readily the historical and cultural contexts of the societies in which they are implemented’ (p. 18) each medium is characterised by its own form of regulation which reflects its technology; form of organisation and the particular functions and applications involved. It is for this reason that communications industries have been characterised broadly into three main regulatory models – print, broadcasting and telecommunications. From a regulatory point of view it has been convenient to distinguish each medium in this regard since they all utilise different technologies and possess their own unique challenges and issues and a ‘one size fits all’ approach to regulation cannot be applied.
The modern free press which emerged in the nineteenth century in Europe and North America was defined by significant advances in technology which saw newspapers evolve from limited subscriptions delivered through the rail system and postal services to a communications network that could reach larger numbers of people. It had advanced from the authoritarian controls of the seventeenth century where officials viewed the printing press as a device to be used in support of the state and was required to print material that was politically neutral and did not question the establishment. Systems of censorship and press licensing were set up in an attempt to control the increasing flood of new books, broadsides and pamphlets since Gutenberg’s printing press in the mid-1500s. In the UK, such controls included the licensing of books and papers; restrictions on presses and printers especially on ownership and submission of papers to censor prior to publication. There were harsh penalties for illegal or offending publications and saw the seizure and smashing of presses; the revoking of licenses; jail for seditious or criminal libel and physical attacks on editors. However, the end of the licensing law in the UK in 1694 led to an explosion of new papers and saw the withering of pre-publication controls. Thereafter, a more relaxed public sphere emerged serviced by a new unlicensed press which claimed to represent the public interest. In the US, freedom of the press was preserved through the First Amendment (1971) of the US constitution where ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof: or abridging the freedom of speech, or of the press; of the right of the people peacefully to assemble, and to petition the government for a redress of grievances.’
Ward (1989) lamented that while it was believed that the increase in the number of newspapers in the nineteenth century could create a free market in ideas, it actually led to a contraction of opinion with newspapers becoming commodities and acting on behalf of advertisers. Additionally, the advent of the telegraph in 1844 transformed print media and now information could be transferred with a matter of minutes allowing for more timely, relevant reporting. The telegraph changed the way in which media collected and transmitted information while the content of papers became more varied to capture larger groups of potential readers. This meant that less space was now available for issues of public affairs. Ward (2006) notes that while new technologies opened opportunities for new titles, it was also being exploited by owners to maximize their own profits which led to further concentration of ownership in the industry. Media barons such as William Hearst and Joseph Pultizer built huge publishing empires which had enormous influence in the industry and gained notoriety for the ways in which they wielded their power. While some media owners came from publishing backgrounds such as Rupert Murdoch and Robert Maxwell, others acquired newspapers to complement property or industrial portfolios and saw ownership as an opportunity to mobilize opinion in favour of their own interest. As such most regulatory responses to the press are aimed at restricting concentration and ownership. The other aspect of press regulation is positive and enabling and seeks to ensure a variety of views in society. It usually takes the form of press subsidies to assist local and national media enterprises as well as new entrants onto the market and encourage media pluralism. In other markets, like France, restrictions include forbidding foreigners to own newspapers or in Europe where owners of a newspaper that have exceeded a certain circulation may not own another form of media. Press conduct and content are also the subject of regulation in some countries where issues of security and integrity; moral and decency; and, privacy are protected.
Newspapers were forced to re-evaluate their role as society’s primary information provider when broadcast radio exploded on to the media scene in 1920. It provided an avenue for immediate access to information and even though the telegraph system afforded newspapers the opportunity to transfer information in an almost instantaneous manner, it was difficult to distribute papers speedily and economically to other urban centres. Early radio stations served as basic communications systems, transmitters of messages that were meant to inform society. However, the problem with radio was reliability as listeners had to rely on what was being said as there were no visuals. To counter this low cost, alternative media source, newspaper content and formats were revamped to broaden their appeal, however, no sooner had newspapers adapted to radio, they were forced to re-evaluate themselves in light of a new and more powerful medium – television.
Radio and television broadcasting, from the beginning has been the subject of high levels of restriction in order to promote a high quality of content among other things and covers two types of systems which include the public service variant and the privately owned and financed systems (McQuail, 2005). Differentiation between the two is often vague as some commercial broadcasters may have public service responsibilities due to licensing conditions. Supported by policy and regulation public service broadcasting has five main features which include the provision of a universal service; a system that is financed by all citizens; public control of access to ensure ‘fairness’, political neutrality and independence; accountability to society and non-commercialism. Some media professionals have viewed public service broadcasting as a government imposed form of regulation to ensure diversity and balance in programming. However, it has also been argued that because public service broadcasting is also subjected to regulations from the state, it may be more of an intervention to fill the gaps that commercial broadcasting has not/refused to fill. Additionally, while public service broadcasting is said to act in the public interest, it is not the pubic that makes the decisions regarding content, programming, structure etc. These decisions are made by directors who are chosen by government to oversee the daily operations of public service broadcasting thereby still having some form of government control.
Commercial broadcasters are free to choose their own objectives and decide who their audience will be and the advertising market they want to serve. They are accountable only to owners, investors and clients and as such ‘regulation is restrictive and proscriptive and is designed to establish the ground rules and set limits within which the systems operate and addresses issues of advertising, financing, content, procedures of complaints and the rights of reply’ (McQuail, 2005, p. 27). In the US, the free market argument was deployed with great effect to justify broadcast de-regulation. Television channels were ‘freed’ from the fairness doctrine which required them to present alternative views on controversial issues of importance (Baker, 1998). In Britain, a similar move was made and while it encountered more opposition than in the US, it resulted in regulation of commercial broadcasting content being reduced and the relaxation of anti-monopoly restraints in the 1990s and early 2000s (Curran and Seaton, 2003). Despite this, commercial broadcasting systems are still required to meet ‘certain minimum standards as a condition of receiving a license or operating concession and often include matters such as the provision for education, news and information, local language or culture, political or other access opportunities, minority needs’ (McQuail, 2005). Even though forms of regulation vary, certain standard patterns relating to structure, finance, accountability to government and society are applicable and more detailed terms and conditions may be available in license and franchise agreements which are reviewed and sometimes revoked. Ward (2006) however, argues that no regulatory body can take account of all interests in a modern industrialised society and the only ‘natural’ form of regulation is the ‘market’ itself, but the British governments concerned about influence of media upon the lives of its citizenry and seeking a reasonable form of regulation without producing a legislative framework set up the Broadcasting Standards Council and a Press Complaints Commission to monitor both television and press impacts on society.
The advances in technology have defined the third model of regulation and came about in the last 25 years in the form of telecommunications. It has been the basis for the formation of new and emerging media such as internet and cable. Described as the ‘common carrier’ model, these ‘point-to-point’ media are not open for distribution and have created new challenges to regulatory arrangements which now have to deal with cross border and international issues. These new services, especially the internet have been described as extensions of the public sphere since they provide a ‘space’ to engage in discussions through blogs and chat rooms. In the context of rapid technological and structural change within media industries, the existing regulatory arrangements and their legitimacy comes under severe scrutiny and strain.
McQuail (2006) points out that telecommunications regulation is very ‘uneven’ with emphasis on structure and infrastructure and no rules for content. The reasoning for this is that traditionally telecommunications in many countries were operated as state monopolies and as such policy and regulation was carried out by the industry itself to an ‘administrative’ or technical logic. It was not considered to be in the public sphere and only for experts and administrators. However, with the evolution and constant changes of technology worldwide and the privatization of telecommunications, it now forces states to take a more critical look at this area especially as it relates to universal service obligations, supervision, open competition, confidentiality and security (especially with the internet) and international agreements on protocols. Forms of telecommunications regulation, according to McQuail (2006) are likely to include four aspects namely law as it pertains to structure and control; government supervision with reference to technical aspects; conditions attached to operating licenses and concessions to ensure protection of public interest and a regulatory body which integrates national telecommunications systems into global requirements. The internet, still presents the most challenges when it comes to regulating telecommunications. It is not owned by anyone in particular and has many users of the same basic technology and infrastructure so accountability and self regulation is difficult to pursue. With the internet being an international medium, its operation does not fall under any single jurisdiction or sovereignty and regulations cannot be dictated or implemented through nationalised efforts but through global discussions and consensus.
It is no doubt that technology is changing the face of the media and the issue of technological convergence is now predominant. All three forms of media can now be delivered and distributed through cable, satellites and telecommunications because of the digitalization of all forms of content. The internet is an example of this, however the problem with technological convergence is that it makes regulatory separation of the three forms of media more artificial and arbitrary because convergence of regulation has not yet occurred in any striking form (McQuail, 2005).
Changes in regulatory policy have spurred an increase in ownership concentration within the media business. As the large media companies continue to grow, some aspects of the media industry are becoming uncompetitive, undermining the potential benefits of the markets. However others point to burgeoning technological developments as evidence that the media business is becoming more competitive than ever, rejecting the need for more regulation. Technological capabilities offer unprecedented opportunities for the creation and wide distribution of more information. However, it is the social values, political decisions, and citizen demands that ultimately determine how this burgeoning technology will be used and its impact (Ward, 2006).
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