Regulation of media and PR

Both fail to establish themselves as Professions in 19th - 20th c

• Profession: – entry criteria; – self policing; and– ejection if break the rules

• PR not established• Journalists fail apart from brief 20th 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

A breachResolvedNot under codes

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.”

– 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• 1st 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 13th century• Plaintiff’s declaration or plea14th c• Published pamphlet 16th c• Damaging or defamatory statement 17th 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?