Regulation of media and PR

Both fail to establish themselves as Professions in 19 th - 20 th c Profession: – entry criteria; – self policing; and – ejection if break the rules PR not established Journalists fail apart from brief 20 th c closed shop in Fleet Street

Should the media or PR be regulated? No: – Ordinary law covers their activities in libel, privacy, copyright, phone hacking, confidentiality, trade marks, harassment etc Yes: – They are powerful media and need to have extra rules because of that power – The common laws and the criminal laws are not enough

Regulation of what? Ownership: – Stop concentration eg TV and newspapers in the same area – Undesirable owners Content: – Advertising – Editorial – Both square with ethos of the country: EG UK vs Saudi Arabia

Different nation to nation UK: – PCC: weak and captured – Ofcom: captured? – PRCA: do not need to be a member to be a PR – Common law: Libel USA – First amendment – FCC – S of PJ – ?

How should they be regulated? Self regulation: – Pros: Like a profession Know the sector – Cons: Lack of trust Go easy on their peers

How should they be regulated? Independent: – Pro: No state interference and stronger potentially than self regulation – Con: “Independent” regulator is captured by the media/PRs Who are they independent from? Who accountable to: who guards the guardians?

How should they be regulated? State: – Pro: Democratic accountability – Con: Political influence over media which should be talking truth to power

OfCom: radio, TV, mobiles, landlines, post Regulating the organisation of the media: – What spectrum, who gets it, what they pay, what licence agreements Regulating the content of the media: radio and TV through the Broadcasting Code “Independent “ of political interference £121.4 million budget: payments by media owners and G’ment for research, managing spectrum sales etc

The public wants 1 and 2 in the UK

Broadcasting code: key parts Keep the “watershed” at 9pm: hard with convergent media Offensive language: problems with live radio Crime Sex: too explicit, some say Religion Commercial references Privacy Elections Fairness

Is this a captured organisation? The public does not get what it wants

PCC Self regulation of the press No obligation to me a member: Richard Desmond out To be wound up

Leveson

USA FCC: Regulating the organisation of the media: – What spectrum, who gets it, what they pay, what licence agreements Not regulating fairness: introduced 1949; dropped 1987 – Argument for dropping: so much media available, so much spectrum that not needed

Brandeis 1890: – The common law of jurors grants to each individual the right to determine, ordinarily to what extent his thoughts, sentiments and emotions shall be communicated to others: Does not cover matters of public and general interest; May be a priviledged communication; Oral need special damages; Privacy ends where the subject informs; and No defence if true and no defence if no malice. Privacy: USA

Rights of publicity. AKA personality rights The right of an individual to control commercial use of name, image, likeness or unique aspect of one’s identity: – The right to control publicity (can be inherited); – The right to privacy. Implemented in state law: CA common law and Celebrities Rights Act 1985: 70 years after death; CA Office of Privacy Protection

In common law then HRA 2000: article 8: – “Everyone has the right to respect for his private and family life, his home and his correspondence.” Max Mosley case Hacking an invasion of privacy as it is correspondence

Can be sued for a headline alone in Nevada: In England expected to have read the whole article Can be sued for defaming the beef industry in Texas Do not have to prove damaged in England; have to prove damaged in US if a public person or commenting on public affairs

Libel is a balance The right to freedom of speech, implied or stated: – First Amendment in the US: “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; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”redress – HRA 2000 in UK The right to defend reputation, implied in the US and stated in the HRA Different jurisdictions balance these out differently England historically in favour of the right to defend reputation

Libel is generally civil Criminal law in a few cases Civil law: it’s up the aggrieved party to act; nobody can act for them: Claimant/Plaintill/Pursuer It is a tort 1 st question: will they sue?

Where does it come from? Libel: Latin liber the book: permanent; first books then magazines etc, then radio, TV, Internet (slander is spoken) Formal statement 13 th century Plaintiff’s declaration or plea14th c Published pamphlet 16 th c Damaging or defamatory statement 17 th c Defame: to take away their good name

Plaintiff/Claimant/Pursuer A person or organisation with a reputation in the jurisdiction; questioned in libel tourism UK: does not have to be resident; does not have to be in the country to sue; – Polanksi

E&W Claimant has to prove What was published – How (expanded to other media),where (internet where seen), and what it means (single meaning not determined by writer etc.) They were identified – Directly or indirectly (not the intent of the writer, editor etc) It defames them – Brought into hatred ridicule or contempt 1840s (modern libel about character and then extended to companies) – Lowered in the eyes of right minded people 1930s – Could cause them to be shunned or avoided 1930s – Implies a lack of qualification, capacity or skill to conduct business 1970s

E&W Claimant does not have to... Swear on oath the writ/statement of claim Go into the witness box Prove: – They were damaged – The creator intended to identify them – The creator meant the meaning alleged – The creator was negligent – The creator acted with malice

US Plaintiff has to prove... They are a private person The material is about a private matter NYT v Sullivan 1964

The US public Plaintiff has to prove... They were defamed by the laws of that state: – NY: “the making of a false statement which tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons and to deprive him of their friendly intercourse in society.” (1996) – CA: “a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye which exposes any person to hatred, contempt, ridicule or obloquy, or which causes him to be shunned or avoided or which has a tendency to injure him in his occupation.” (1982)

Libel US 33 states have retraction statutes: the plaintiff must ask the media for a retraction before taking action Plaintiff seeks damages and costs About 12 cases a year

The creator intended to identify them They were damaged The creator acted with negligence or gross negligence without regard for the truth Plaintiff must prove

Comparison USA If P a public person or commenting on public issue must prove: – Defamed – False – Damaged – Disregard for the truth and negligence If P a private person on a private matter: – Published – Defamed – Identified E&W Published Defamed Identified

USA E&W USA Central question Is this a public person or a public issue? E&W Central question How strong are the defences?

The debate Democracy must be involved in the regulation of media because society should have an influence on this potent weapon and means of expression. But how? Democracy must not be involved in the regulation of the media because of freedom of expression would be curtailed. But freedom of expression is not absolute, so how is it to be regulated?