The great and the good of UK broadcast media have just returned from the annual love-in that is the Edinburgh TV festival. James Murdoch ruffled a few feathers with his not unbiased critique of the BBC and regulatory regime - but fair play, we need to have the debate.
While we obsess over regulation and the law courts decide to create the back-door privacy law many have feared the real question we need to be asking - as media, as journalists and as commercial entities is what do the public, the democratic electorate, our customers and consumers actually want from their media. We've spent recent years debating the impact of convergence, the need for more content and the calls for stricter regulation and legal sanctions but we have failed to rewind and ask the fundamental question of what a changed society and media ownership world wants and expects from its media.
So (as the Beak returns from several months of too much work to post online) here is a summary to set the scene and hopefully - for those reading this - get some debate started:
We hear the phrase ‘the media’ being used by both the public and commentators in a wide variety of situations. These range from members of the public commenting on or complaining about what they’ve read in their newspaper or ‘the press’, through to discussion about whether there should be strict media ownership rules that prevent the likes of a Rupert Murdoch or Silvio Berlusconi from taking over other media organisations.
The UK broadcast regulator Ofcom refers to its remit over the media as “regulator for the UK communications industries, with responsibilities across television, radio, telecommunications and wireless communications service”. This recognises the variety of ‘media’ over which it has regulatory authority. Whether viewed from a micro perspective of a local newsletter or newspaper or from a macro perspective of an international news organization or channel such as Reuters, CNN or Al Jazeera, the one unifying feature behind the term ‘media’ is a reference to communication – what’s being delivered, how it’s being delivered and who’s delivering it.
So when we refer to the media we are talking about communication of one sort or another. Whether that is in the form of a newspaper, television broadcast, podcast or an advert, PR campaign or stockmarket sector to invest in. Comment and analysis in relation to the media normally focuses on mass media i.e media with broad-based national or international coverage aimed at the mainstream – newspapers such as The Sun, Bild Zeitung, Le Figaro, 24 Horas, The Times or broadcasters such as RTL, Europe1, ARD, BBC, Sky or CNN.
When it comes to legal action relating to the media it is invariably the larger cases involving celebrities and the popular press or politicians and broadcasters that get highlighted. This can be misleading as both the law and self-regulatory guidelines apply to all media whether large or small. An individual blogger is no less exempt from penalties for defamation or copyright infringement than a national paper. Similarly, local newspapers are often behind influential court decisions and often it may be individual litigants themselves who will bring about change to the laws that affect the media.
Rapid advances in technology and the proliferation of web-based content have led to convergence both in terms of the content being delivered over any given platform and the suppliers of such content. To this extent, traditional mass media is engaging with local audiences while localised media is widening its reach through the global availability of its online content such as webcasts.
So we now have mass communication being delivered via local means and local communication being delivered across mass mediums. This has completely changed the shape of media delivery as content and audiences blend across varying formats.
Interactivity has become a key component in programme formats and in attracting readers from print-based media into the online environment.
While the media constantly seeks out wider audiences, the audiences are starting to seek out the media. At a news level we have seen the emergence of ‘citizen journalism’ as witnessed in the wake of the terrorist attacks in Majorca in August 2009 and the July 7 bombings in London in 2005 – record numbers of people sent picture messages to broadcasters such as the BBC, Sky and CNN and many of these were subsequently used in broadcasts. Meanwhile numerous websites have sprung up that trade in such content.
To the extent that all these changes to content and delivery offer great potential, they also present great challenges. There is a fine dividing line between profit and pitfall not just in a commercial sense but in terms of the legal implications and regulation of such a varied and expansive media marketplace.
The challenge for the law and those seeking to comply with and apply it is to keep up with all this change. The media not only reports on change but also creates it. Whether this is in the form of news, investigative programmes into health, the environment, social welfare and the like or campaigns to bring about changes to the political process or indeed the law.
For legal systems such as the English common law model that traditionally rely on legislation being initiated and passed through the parliamentary system and complement and supplement this through a body of case law, this poses significant difficulty. Such a system is more used to being responsive – to new legislation, cases brought by litigants, appeals in relation to cases – and it is faced with the task of ‘responding’ retroactively to the proactive activities of the media. In doing so it is being asked to apply old laws to new situations. The 1959 Obscene Publications Act didn’t have internet pornography in its contemplation. Similarly, legislation such as the 1981 Contempt of Court Act or 1996 Defamation Act aren’t set up or equipped to deal with transjurisdictional offenders using the internet. The same is true of codified legal systems such as those in Germany, France, Spain or Italy.
So when it comes to media law we have a unique situation whereby the subject of regulation and legal control is at the same time part of the democratic and social process that exists to scrutinise those who would seek to impose and apply such controls
At a general level, the buzz word and growth area identified at recent Media conferences is User Generated Content. Broadcasters are trying to work out how best to use this new strand of content ‘by the people for the people’ in an enduring and profitable way. While YouTube set the scene for this type of content, its seemingly big bucks deal with google was transacted on cautious terms (it being bought for shares rather than cash) and soon highlighted the risks such content poses in relation to copyright infringement. If one gets the business model right and finds a way of cost-effectively managing the rights issues then UGC still holds much potential for new entrants to the market.
In its quest for content the media has been pushing boundaries and its various organisations – both broadcast and print – are no strangers in Europe’s courtrooms. There has to be and thankfully is judicial acceptance of some degree of editorial latitude when it comes to how the media should be allowed to put together and present their stories. If the media was confined to reporting news verbatim or per press release this would be both dull and lack the inquisitorial approach society demands from a proactive media. It would also not provide headlines about Hamsters, Hookers, or ‘Sex scandal’ that sell papers, provide profits for shareholders and don’t unduly harm individuals or put society at risk.
Whether motivated by the quest for today’s top story or the prospect of a big bonus for having charted a risk averse path (facilitated through giving away stickers, cd’s, holidays or the sale of some dull yet dependable format right) to provide shareholders with a handsome return on investment (as one editor who shall remain nameless put it – “the bigger the tit or tits in my paper the better the circulation”) the media are increasingly overstepping the mark of what’s acceptable.
Where the media are not targeting an individual they can and do get away with more as the competing rights – and laws that protect such rights – of individuals are not engaged. So with no one threatening or likely to threaten to sue over a story, the laws that could restrict or punish the press lie dormant and the media can ply their trade. The problem is that stories that do not defame, expose or otherwise excite the public are unlikely to do much for viewing figures or circulation. With the exception of certain political issues or large scale disasters, the stronger stories are invariably personality driven. Both media and public want to know as much about the people in the headlines as their reason for being there. Sadly, their reason for being there is often synonymous with the headline they are creating.
When it comes to filling front pages, editors enjoy an unparalleled celebrity-infused feeding frenzy. It is perhaps a sad indictment of society that children grow up aspiring to be ‘celebrities’ and older, misguided individuals devoid of tangible talent describe their ‘profession’ as ‘celebrity.’ Andy Warhol’s 15 minutes of fame concept has been grossly oversold. Whereas a person may previously have been profiled in the media for their positive contribution to their profession, sport or society at large, today’s front pages are more likely to be filled with people whose ‘contribution’ to society is neutral or negative and invariably lies in selling their sordid story to the highest bidder or whose crimes are so repulsive that they provide headline-grabbing attention.
Recent judgments do however seem to be assessing whether the fact someone is a public figure of itself justifies media coverage. Even though the model Naomi Campbell had lied about taking drugs and the British newspaper The Mirror exposed her for this, the top UK court, the House of Lords still held (by majority) that she was still entitled to some privacy. The fact the paper was exposing her lies did not allow it ‘access all areas’ to her life and treatment for drug addiction.
This is especially the case when it comes to unofficial, non-contentious or private business. The European Court of Human Rights has also placed constraints on what can be published about public figures when engaged in private activities:
“The Court considers that a fundamental distinction needs to be made between reporting facts – even controversial ones – capable of contributing to a debate in a democratic society relating to politicians in the exercise of their functions, for example, and reporting details of the private life of an individual who, moreover, as in this case, does not exercise official functions. While in the former case the press exercises its vital role of “watchdog” in a democracy by contributing to “impart[ing] information and ideas on matters of public interest… it does not do so in the latter case. Similarly, although the public has a right to be informed, which is an essential right in a democratic society that, in certain special circumstances, can even extend to aspects of the private life of public figures, particularly where politicians are concerned this is not the case here…. because the published photos and accompanying commentaries relate exclusively to details of the applicant's private life.”*
*Hannover v Germany [2004] ECHR 294 at para. 63-64
It is however important to note that such cases are brought by and concern public figures or wealthier ‘A’ List celebrities who have a reputation and status worth litigating over. So ‘big ticket’ subjects are becoming harder and riskier to target. This has led to the media being forced to go down-market in search of headline or programme fodder whose excitement at being headlined is likely to exceed their desire and ability to litigate over any adverse coverage they receive.
The result is that the media is serving up a menu of junk food to a ‘dumbed down’ less discerning and less critical public. The proliferation of media content and mechanism for its delivery has turned it into a fast food commodity. People don’t have to rely on any one source for their information or entertainment. Quantity comes ahead of quality. Quality journalism and news programmes cost more than gossip columns or reality TV shows. A quick glance at the front pages or tv schedules on any given day sees the trials and tibulations of ‘no hopers’ grappling in some jungle or on some dancefloor trump the less surreal and more real actuality of political, social or economic analysis.
Commercial pressure on the media to deliver profit-yielding front pages is shifting the emphasis from (ethically pure) substantiated stories to the less neutral and, in its disregard for the consequences to a person’s privacy or reputation, less responsible journalism.
“What has developed is a culture that puts a price on all forms of information. It encourages citizens to believe that any knowledge they may have about anyone could be worth some money. It does not have even the dubious virtue of an ideological framework. Popular tabloids regularly indicate that they are willing to pay for information. ‘Reality’ TV shows seek to convince potential participants that it is ‘worth their while’ to take part because they might become minor celebrities and so can earn temporary wealth by jumping on the bandwagon and allowing their most intimate secrets to enter the public arena”.*
*Stop the Rot! – Submission from the UK PressWise Trust to the UK Government’s Culture, media & Sport Select Committee inquiry into Privacy and Media Intrusion February 2003 at paragraph 2.18
So is the media responsible for the moral degradation of society – the ‘Rot’ referred to in the above citation or is it merely reflecting the rotten, degraded state of society as it is? While many do and would criticise the media for engaging in sensational journalism, failing to follow any ethical code and only reporting on crime, sensation, scandal or smut, I don’t think it is fair to blame the media for the objectionable content or evil it exposes or reports.
To the extent the media may be absolved from responsibility for eroding the fabric of society, it is nevertheless guilty of peddling pernicious headlines and pointless programmes. In this sense it is fair to say that much of the content the public is presented with yet seemingly still pays for is as unacceptable as it often is illegal. Speaking from experience, former UK newspaper editor and commentator Roy Greenslade states that:
“What is contentious, what is unacceptable, is the routine publication of willfully distorted and misleading stories, usually based on wildly inaccurate information, stories which papers either seek to justify or, in extremis, stories for which they offer only the most cursory of apologies. These tell tales, many of which are intertwined with a news agenda dominated by the cult of celebrity, have undoubtedly resulted in the debasement of British journalism”
The question is – how low can journalism go in its debasement?
I would argue that the economic and technological drivers behind current convergence in the industry is going to result in what I’ll term ‘content burnout’ – the public will tire of recycled and reformatted content of little consequence.
While convergence is normally associated with the broadcast and online sectors of the media, it is having equal impact on the print sector. The meeting place for both broadcast and print is the online environment. While the print press is reformatting itself and merging print and online operations, broadcasters are exploring the market for online and tv on demand as well as UGC.
Convergence is bringing about consolidation at a corporate level and consequently at the point and mode of delivery. The next step will be a consolidation of content. At present we have a vast and fragmented market. Take a close look at the core businesses in that market and one can see that newspaper circulation is in decline (ref stats) and ratings figures are being diluted and yielding to online viewing. The consumers who have seemingly ‘dumbed down’ and who are paying premium prices for repackaged content or sporting events they used to see for free will eventually wise up.
As with other industries where markets have become oversaturated with supply, there will be a flight to quality. Consumers will tire of junk food and go in search of the fresh and organic option. But with the market so full how will they determine where to shop? This is the question media organisations should be asking themselves now. As with other consumable goods, the public will look for content and brands they can trust. Such trust will be born out of brand strength – which will favour larger public sector broadcasters such as the BBC or popular commercial organisations such as Sky, RTL, SAT1 etc. It will also grow from trust in the actual content any given outlet delivers – at this level the marketplace is open for large and small organisations alike as niche blogs share their global platform with the biggest media players.
So for those who may seek and enjoy a short-term gain from the debasement of their trade there is a clear warning – the public might be taken in by the headlines but the enduring message will reside in the manner and method of their delivery
The above discussion has centred around content but insofar as the objection to media activity or a given report relates to the packaging, the law also has to assess when it is appropriate or proper for it to intervene. While the media may accept that it should subject itself to the jurisdiction and scrutiny of the legal process in relation to content, it may be less willing to do so in relation to how it chooses to package such content.
Surely a news editor is better placed to decide how to package up and present a story than a judge? The fact that “judges are not newspaper editors” was recognised by the English judge Lord Hoffman in his dissenting judgment in model Naomi Campbell’s legal action against the UK Mirror newspaper. In that case the story itself had been true but Naomi Campbell complained about the inclusion of a photograph and other additional material. Lord Hoffman concluded that:
“We value the freedom of the press, but the press is a commercial enterprise and can flourish only by selling newspapers. From a journalistic point of view, photographs are an essential part of the story. The picture carried the message, more strongly than anything in the text alone, that the Mirror's story was true. So the decision to publish the pictures was, in my opinion, within the margin of editorial judgment and something for which appropriate latitude should be allowed.”
The issue of distinguishing between form and content when it comes to the media was also examined in the European Court of Human Rights which held (inter alia) that:
“It is not for this Court, nor for the national courts for that matter, to substitute their own views for those of the press as to what technique of reporting should be adopted by journalists.”*
* Jersild v Denmark (1995) 19 EHRR 1 at 215 et seq.
The media should therefore be free from judicial interference when it comes to deciding how to present their stories and other material. But this is not always the case.
In seeking to identify and rationalise the appropriate legal provisions and responses to the business and activities of the media we need to take a step back from the adversarial context of cases or complaint. If the media is being judged against the backdrop of its democratic remit as the ‘mouthpiece of society’ and the benchmark of ‘responsible journalism’ we need to explore what society wants from the media. In doing so we need to acknowledge both the democratic function of the media to inform as well as its commercial function of providing demand-led entertainment.
So the above discussion hopefully provides some pointers and a backdrop against which the Beak will be posting and analysing the ongoing debate around the media's actions and how these should be regulated or indeed protected.
