The Issue of Media Regulation - Coursework Example

Regulation of Online Media 1.0 Introduction The issue of media regulation elicits mixed reactions. There are those for free media under the framework of freedom of speech, free press and the right to information. There are those who advocate for a balance approach between right and responsibility (Arino, 2007, p.120 & 121). Pearson (2007); Pearson (2006, p.17) observes that Australia’ Journalist Union, and the Australian Press Council have voiced concern over increased restriction by all levels of government in Australia. Online media such as You Tube comments as a new media fronts new challenge in terms of regulation as compared to mainstream traditional media because of the ability of untrained journalist being able to post whatever they want such as defamatory statements coupled with its universality and real-time basis. The contention therefore is to regulate or not to regulate? The aim of this paper is to establish whether online media such as You Tube comments should be regulated. This paper argues in the favour of regulating on line media within the context of ‘light touch policy’ where the government through a statutory authority funded by it, but with no direct control is established to regulate the new media platform. To frame the argument, the paper relies on social responsibility theory whereby press has a responsibility to the society, but at the same time have a obligation of doing it responsibly. In interrogating and outlining the above discourse, the paper examines historical background of press and media freedom in Australia. Secondly, by framing the pro regulation belief using social responsibility theory, the paper discusses perspectives in relation to online regulation especially the unique challenges brought by the new/ social media. The later discourse leads to analysis of having a balance in freedom of speech/ press and responsible behaviour. 2.0 Background of Press and Media Freedom In elucidating and ventilating on press and media freedom, one critical realisation comes into limelight; this is the role of media in a society or a country. In this regard it is integral to comprehend and appreciate the position media occupies and thus, the need for it to be free beyond interference from any quarter especially government. Hence, in regard to the topic, the subsequent discussion under this section will outline the role of media and happenings that converged so as to usher the need for free press and media. In a nutshell, the section outlines significance of media in society and clamour for free media within Australian context as a result of the significance identified earlier. The Universal Declaration of Human Rights Article 19 of 1948 promises right to freedom of expression and opinion (Harmon, 2013). It implies that one has the undeniable privileges to express his thoughts and express the same feeling through various available channels and platforms such as media. The same is entrenched in Australia where freedom of speech/ expression is guaranteed despite of not being expressly stated in the constitution (Harmon, 2013). Free media which has a critical role in delivering information, fits within the larger context of development as they allow people to interrogate happening within the public sphere so that they can respond appropriately thereby being able to shape their destiny. Free press guarantee participatory democracy and thus integral in ensuring transparency (UN, 2013). Indeed, there is realisation that freedom of speech, media and press does not come that easily. According to Balding (2007, p.10), ‘freedom of press is not merely offered over by governments; it is virtually at all times the fruit of incredible resistance, of a enormous fight between the yearning for truth and justice, free expression and debate, and the forces of suppression and obscurrantism’. There are two landmark rulings that set the precedent on freedom of speech and free press. The first is Australian Capital Television Pty Ltd v Commonwealth in 1992. High Court judges implied that there was freedom of political communication and this could not be limited as was intended in 1991 in the Broadcasting Act 1942 that aimed at limiting political speech to given percentage of allotted ‘free time’ as dictated by the government. The second is Nationwide News Pty Ltd v Wills where wills was prosecuted for ridiculing Industrial Relations Commission under the same Act of 1988 yet the high court ruled in his favour and thus entrenching right of free speech. The other ruling that have contributed to the discourse of free press and right of speech is the case of Theophanous v. Herald & Weekly Times Ltd in 1994. This emerged during political campaign and the petitioner sued for the publisher for bring out documents that are critical to his campaign. Nevertheless, in a tight ruling of 4 against 3, the court ruled in favour of defendant stating that political communication was entrenched in implied freedom. Nevertheless, the court equally pointed out that defamatory speech was not protected by the implied freedom and thus, it would be the onus of defendants to prove falsity in regard to the truth. Closely related to the later is the case of Stephens & Ors v. West Australian Newspapers Ltd. Person (2007, p.2 & 4) corroborates this observation by noting that Australia global position in freedom of press is comparatively high as compared to Asia-Pacific neighbours with the exception being New Zealand. Currently, Australia has adopted a ‘light touch policy’ in regulating media(Australian Broadcasting Authority, 1997, P.39). Within this approach, the government allow industry bodies like Internet Industry Association and Australian Press Council to formulate codes of practice and minimum standards that each member has an obligation of meeting. The members to this group are drawn from Internet Service Providers and other industries with Australian connection. The overall statutory body mandated to follow and implement these standards is the Australian Communication and Media Authority (ACMA). The premise for this kind of self regulation is that Industry Association is obliged to pursue complaints levelled by the public, and if they are incapable, then ACMA is forced to intervene. Nevertheless, there are legislations such as cybercrime Act of 2001, information disclosure Act of 1999, contempt of court, contempt of parliament and defamation orders that are used to regulate media contents (Herman & Pearson, 2006). 3.0 Discussions and View Points 3.1 On Line Media and its Challenges Before indulging on online media regulation, it would be prudent to outline the emerging gaps that necessitates the need for regulation. Punie et al. (2009, p. 136) conceptualises online media as ‘a composition of open, web-based and user-friendly applications that allows online community to network, share data, collaborate and co-produce content’ . Online media has spurred the growth of what Goode (2009, p.1288) conceptualises as ‘citizen journalism’. Markham (2011, p.2) indicates that ‘citizen journalism’ is a new media where unprofessional journalists engage in dissemination of information outside the regulated media institutions. One of the reasons that have been pointed as the source of its exponential growth is the ability of individuals to post videos showing happenings in various locations outside the mainstream regulated media (Hermida, 2010, p.300). For instance, following the London bombing, BBC allowed its listeners to post photographs of the happenings so as to enhance quicker dissermination of information. The end was result within six hours was a total of 20 ametaur videos and 1,000 stand still photos (Sambrook, 2005, p.13 & 15). You tube is an example of social media or new media (Marsico, 2010, p.967). Such platform allows mainstream media houses and individuals to upload and share happenings such as videos on real-time basis. This later observation where anyone can post any content coupled with the real time aspect and ubiquity is where the challenge lies (Pepper et al, 2009, p.37). Fong (2003, p.147) observes certain elements within the society negatively exploit this loophole. In this regard, they take advantage of the borderless reach of internet and lack of licensing before publishing unlike in mainstream media to publish materials that are offensive and unethical. This grave situation is worsened by the fact that contents posted in You Tube have chances of going viral. This is based on the concept of ‘embeddable content’. You Tube clips can be embedded in blogs, other social networking sites and other popular web pages (Boyd & Ellison, 2008, p.210). The opposite is true for institutionalised media where there is code of ethics and standards of practice (Koester, Glodstein & Wood, 2002, p.68). 3.2 Need for Regulation: Social Responsibility Theory After establishing the challenges associated with the new media, let us now examine the need for regulating it so as to address these challenges which at the same time are its shortcomings. To frame the proposition for regulation the paper adopts social responsibility theory as one one of the press theories. The principal argument in the corporate social responsibility theory is that any business entity including instututionalised media and online media is a two faced organisation (Iamandi, 2007, p.7). In regard to this, just as they have a responsibility of making profits by disbursing information, they have a critical role of operating responsibly for the benefit of public. Hence, a need for a balance between material and moral existence. Macro environment of classical liberalism has brough a laissez-faire media system. The shortcoming of such system is summerised by the 1947 Hutchins Commission cited in (Nerone, 2002, p.184) who notes that “there are tendencies toward monopolisation in the media, that the people or the public are inattentive and not concernedwith the rights or interestsof those unlike themselves and that commercialisation produces a debased culture and dangerously selfish politics”. Nerone (2002, p.184) observes that this inability to practice social responsibility is what enrages the public hence giving the government audacity to regulate the media. Thus, with such negative tendencies which at a time might not augur well with national cohesion, integration and security the government as regulator and as a guarantor of rights is supposed to intervene and hence, the discourse for the need of regulating online media for the sake of public welfare that is diverse and not private mileage. Equally, social responsibility can be taken within the context of social legitimacy. Under the frame, is for individuals/ online community to act in good faith by adhering to honesty and openness (Zeller, 2003, p.4).The existence of media is justifiable to its accountability to the public. Since the public is diverse, the ultimate respresentative of public welfare is the government. Society through government has the obligation of holding media responsible. The binding argument for this empowerment is best exemplified by Max Webber argument that individual rationality can be substituted with collective rationality (Benabou & Tirole, 2010, p.1). This oblige the government to put in measures that would curtail issues such as hate speech which might be propagated by individuals yet they are nopt of value to the public. It is not contestable that media plays a greater role in building democracy and transparent nation. However, this should equally operate within the law since freedom of speech and media freedom is just but a part of the larger human rights. Based on the above observations, the reason why media should be regulated relates to the need of creating balance between free media/ freedom of expression and individual rights. The reality is that claim to a right is valid to the extent that it does not interfere with others peoples’ rights. Media house have a tortuous duty and responsibility of informed and responsible reporting that do not infringe on an individual’s right or a community’s dignity. Since, under the low of tort one can sue for libel and damages caused as a result wrong reporting by media that can cause injury to a person’s character or assassinate one’s character, cause damage, racial/ tribal tension or wide spread unrest (Rosenfeld & Sajo, 2012, p.899). The argument anchoring need for regulating speech and press is within the frame that free speech is not absolute it is accompanied by various responsibilities despite of its role in democratic process, self fulfilment and search for truth. At a given level, need for restriction becomes necessary. Further, instead of government being reactive in such situations, it is prudent to be proactive and place surveillance and censorship strategies that is able to identify individuals and organisation who are not operating within the context of rights and responsibility which might end up causing injurious situation in relation to national cohesion and security. Under social responsibility, the ultimate goal of media as a fourth estate should be to avail the truth and play their integral role in democracy discourse and ensure transparency(van der Maesen and Walker, 2002, p. 24). The question hat emerges is that, have they been able to attain the said goal so as not to warrant government intervention? The answer is yes and no. I certail circumstances online media fraternity have failed in their responsibility by posting wanting information. In a bid to curtail such possibilities, Australia is labelled as one with restrictive internet policies in terms of blocked internet (Green, 2010, p.50). This phenomenon was heightened in 2007 when Labour Party wanted to implement universal ISP level filtering of contents (Green, 2010, p.49). For instance, Bolt was found to have breached the Racial Discrimination Act in 2011 having posted material condemning people from aboriginal descent for enjoying privileges they were not entitled to (Harmon, 2013). Such happenings coaxed minister responsible to order a review on what Australian Press Council should handle such scenarios in future (Harmon, 2013). The same shortcoming and failure by media to self regulate as envisioned within the theory of social responsibility has come to the attention of other governments. For instance, American congress while formulating legislation directed that courts should not provide protection under the context of freedom of speech and press if the reporting constitutes libel, slander, speech that is harmful to children, and if the government proves that restriction serves public good (Cohen, 2007, p.2). This is not exceptional of online media platforms such as You Tube which is unique in terms of ownership since anyone can post any document as compared to traditional media with the only option of regulating it being through internet service providers. To avoid confusion, in this discourse, regulating the online media does not imply that the government would control the online media, but create framework that allows for monitoring/ surveillance of what are posted online and offer recourse for those who are offended. For instance, under ‘light touch policy’ the government allows and empowers industry players such as Internet Industry Association Internet Industry Association to formulate codes of practice and minimum standards that each member has an obligation of meeting. Nevertheless, these at a time are not enough and there is need for active government involvement especially in the wake of terrorism. 3.3 Stand Point The emerging realisation out of discourses is that online media should be regulated. Regulation of media does not mean limiting or muzzling freedom of press and that of speech, but an avenue that entails creating a balance between freedom of media and press and curtailing the possibility of infringing on individuals rights through responsible journalism/ reporting/ citizen journalism. This is because new media/ online media is different from traditional institutionalised media where practicing of internal regulation is easy. For instance, in the case of You Tube which fall in the category of ‘citizen journalism’ where anybody can post unverified information that can create huge discomfort coupled with the fact that it is ubiquitous and real time, the government should place check and balances where authors and transmitters of wrongful information can be blocked quickly and traced through effective IP monitoring/ filtering mechanisms (Laboy, Landry, Shtern, 2010, p.233). As such, while the voluntary Australian Press Council has done the best to their capability, there is need for a statutory body funded by government, but not controlled by it to monitor comments on online media such You Tube as means of responding to the new challenges brought by the new media platform which is out of control of the mainstream traditional media which is easy to regulate. Nevertheless in ensuring a balance between rights and responsibilities, the same should not be an excuse of creating highly monitored media by security agencies and media regulatory authority so as to preserve those in power and their propaganda (Chen, 2007, p.63). 4.0 Conclusion The ultimate goal of the paper was to establish that the online media such as You Tube comments should be regulated. It has been argued that they should be regulated because of the grave damage it can cause especially if they go viral.This argument has been supported by social responsibility: a theory of the press as argued and analyzed in the paper. The paper advocates for the fact that online media should be regulated. Nevertheless, this should not see active involvement of the state, but through a statutory authority supplemented by self regulations. The rationale is anchored on the fact that rights come with responsibilities and thus, there should be a balance between the two. The call for regulation especial the new media is further heightened by the fact that it has possibility of going viral and thus, causing wide spread damage as compared to the traditional institutionalised media. References Australian Broadcasting Authority (1997) The Internet and some international regulatory issues relating to content, A pilot comparative study commissioned by the United Nations Educational, Scientific and Cultural Organisation (UNESCO), Sydney: ABA, October 1997. Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 1; (1992) 104 ALR 389; (1992) 66 ALJR 214 (15 January 1992). Arino, M. (2007). Content regulation and new media: A case study of online video portals. Communications and Strategies, 66, 115. Balding, T. Press freedom: every citizen’s right in UNESCO (2007). New media: the press freedom dimension, challenges and opportunities of new media for press freedom. Paris: UNESCO. Benabou, R. & Tirole, J. (2010). Individual and corporate social responsibility. Economica Vol. 77, pp. 1-19. Boyd, D.M & Ellison, N.B. (2008). Social Network Sites: Definition, History, and Scholarship, Journal of Computer-Mediated Communication, 13(1): 210-230. Chen, X. (2007). The dynamics of Chinese media practices and regulation: explanations and interpretations. Dissertation submitted to the faculty of the Virginia Polytechnic Institute and State University in partial fulfilment of the requirements for the degree of Doctor of Philosophy in Planning, Governance and Globalization, available at: http://scholar.lib.vt.edu/theses/available/etd-12102007- 115829/unrestricted/XiChen1228.pdf. Cohen, H. (2007, April). Freedom of speech and press: exceptions to the First Amendment. LIBRARY OF CONGRESS WASHINGTON DC CONGRESSIONAL RESEARCH SERVICE. Fong, M. W. L. In the virtual world in Khosrow-pour, M. ed. (2003). Information technology and organization: trends, issues, challenges and solutions. Hershey, PA: Idea Group Publishing . Green, L. (2010).The internet: an introduction to new media. Oxford, UK: Berg. Goode, L. (2009). Social news, citizen journalism and democracy. New Media & Society, 11(8), 1287-1305. Harmon, J. (2013). Free speech and free press around the world: Australia. Retrieved on 9 November, 2013 from: http://freespeechfreepress.wordpress.com/australia-2/. Herman, J. & Pearson, M. (2006). Chapter 9: Press Law and Practice. In Australian Press Council. State of the News Print Media in Australia. Sydney: APC. Available: www.presscouncil.org.au/snpma/snpma_index.html. Hermida, A. (2010. Twittering the News. Journalism Practice, 4:3, pp. 297-308. Holzgrefe, J. L. ‘The humanitarian intervention debate’ in Holzgrefe, J. L. & Keohane, R. O. (2003). Humanitarian Intervention: Ethical, Legal and Political Dilemmas. Cambridge, UK: Cambridge Press. Iamandi, I. (2007). Corporate social responsibility and social responsiveness in a global business environment: a comparative theoretical approach. Romanian Economic Journal, 23, pp.1-16. Koester, J. V., Glodstein, H. D. K. & Wood, L. L. P. (2002). Legal briefing: advertising to children in the USA. World Advertising Research, Laboy, M., Landry, N. and Shtern, J. (2010). Digital solidarities, communication policy and multi-stakeholder governance: the legacy of the world summit on the information society. New York: Peter Lang Publishers. Markham, T. (2011). Hunched over their laptops: phenomenological perspectives on citizen journalism. Review of Contemporary Philosophy 10, pp. 150-164. Marsico, E. M. (2010). Social Networking Websites: are MySpace and Facebook the Fingerprints of the Twenty-First Century? Widener Law Journal 19 (1): 967-976. Mckee, A. (2005). The Public Sphere: An Introduction. Cambridge: Cambridge University Press. Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1 (30 September 1992). Nerone, J. C. (2002). Social responsibility theory. McQuail’s reader in mass communication theory, 183-193. Pearson, M. (2007). Media freedom in Australia: rhetoric versus reality. Humanities & Social Sciences papers, 239. Pearson, M. (2006). The truth is out there but maybe not for long. The Australian, Media section. Pearson, M. (2007). The Journalist’s Guide to Media Law: Dealing with Legal and Ethical Issues. 3rd edition. Sydney: Allen & Unwin. Pepper, R., Rueda-Sabater, E. J., Boeggeman, B. C. & Garrity, J. (2009). From mobility to ubiquity: ensuring the power and promise of internet connectivity… for anyone anywhere, anytime in the Global Technology Report 2008-2009. World Economic Forum. Punie, Y., Lusoli, W., Centeno, C., Misuraca, G. and Broster, D. (2009). The Impact of Social Computing on the EU Information Society and Economy, IPTS European Commission – Joint Research Centre, Seville. Rosenfeld, M. & Sajo, A. eds (2012). The oxford handbook of comparative constitutional law. Oxford: Oxford University Press. Sambrook, R. (2005). Citizen Journalism and the BBC. Nieman Reports, 59(4), 13-16. Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104; (1994) 124 ALR 1 (1994) Aust Torts Reports 81-297 (12 October 1994). UN (2013). Press freedom: freedom of expression, a human right. Retrieved on November 9, 2013 from: http://www.un.org/en/events/pressfreedomday/background.shtml. van der Maesen, L.J.G. andWalker, A.C. (2002). Social Quality: The Theoretical State of Affair, European Foundation on Social Quality, Amsterdam. Weiss, T. R. (November 11, 2012). Obama post-victory tweet record, show power of social media. Retrieved on November 9, 2013 from: http://www.eweek.com/it- management/obama-post-victory-tweet-breaks-record-shows-power-of-social-media/. Zeller, B. (2003). Good Faith - Is it a Contractual Obligation? Bond Law Review Vol. 15, No. 2, pp. 1-16. Read More

Society through government has the obligation of holding media responsible. The binding argument for this empowerment is best exemplified by Max Webber argument that individual rationality can be substituted with collective rationality (Benabou & Tirole, 2010, p.1). This oblige the government to put in measures that would curtail issues such as hate speech which might be propagated by individuals yet they are nopt of value to the public. It is not contestable that media plays a greater role in building democracy and transparent nation.

However, this should equally operate within the law since freedom of speech and media freedom is just but a part of the larger human rights. Based on the above observations, the reason why media should be regulated relates to the need of creating balance between free media/ freedom of expression and individual rights. The reality is that claim to a right is valid to the extent that it does not interfere with others peoples’ rights. Media house have a tortuous duty and responsibility of informed and responsible reporting that do not infringe on an individual’s right or a community’s dignity.

Since, under the low of tort one can sue for libel and damages caused as a result wrong reporting by media that can cause injury to a person’s character or assassinate one’s character, cause damage, racial/ tribal tension or wide spread unrest (Rosenfeld & Sajo, 2012, p.899). The argument anchoring need for regulating speech and press is within the frame that free speech is not absolute it is accompanied by various responsibilities despite of its role in democratic process, self fulfilment and search for truth.

At a given level, need for restriction becomes necessary. Further, instead of government being reactive in such situations, it is prudent to be proactive and place surveillance and censorship strategies that is able to identify individuals and organisation who are not operating within the context of rights and responsibility which might end up causing injurious situation in relation to national cohesion and security. Under social responsibility, the ultimate goal of media as a fourth estate should be to avail the truth and play their integral role in democracy discourse and ensure transparency(van der Maesen and Walker, 2002, p. 24). The question hat emerges is that, have they been able to attain the said goal so as not to warrant government intervention?

The answer is yes and no. I certail circumstances online media fraternity have failed in their responsibility by posting wanting information. In a bid to curtail such possibilities, Australia is labelled as one with restrictive internet policies in terms of blocked internet (Green, 2010, p.50). This phenomenon was heightened in 2007 when Labour Party wanted to implement universal ISP level filtering of contents (Green, 2010, p.49). For instance, Bolt was found to have breached the Racial Discrimination Act in 2011 having posted material condemning people from aboriginal descent for enjoying privileges they were not entitled to (Harmon, 2013).

Such happenings coaxed minister responsible to order a review on what Australian Press Council should handle such scenarios in future (Harmon, 2013). The same shortcoming and failure by media to self regulate as envisioned within the theory of social responsibility has come to the attention of other governments. For instance, American congress while formulating legislation directed that courts should not provide protection under the context of freedom of speech and press if the reporting constitutes libel, slander, speech that is harmful to children, and if the government proves that restriction serves public good (Cohen, 2007, p.2). This is not exceptional of online media platforms such as You Tube which is unique in terms of ownership since anyone can post any document as compared to traditional media with the only option of regulating it being through internet service providers.

To avoid confusion, in this discourse, regulating the online media does not imply that the government would control the online media, but create framework that allows for monitoring/ surveillance of what are posted online and offer recourse for those who are offended.

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