Activities
STANDARD-SETTING
  Steering Committee (CDMSI)
  Bureau of the Committee (CDMSI-BU)
  Former Steering Committee (CDMC)
  Former Bureau of the Committee (CDMC-BU)
  Committee of Experts on Protection of Journalism and Safety of Journalists (MSI-JO)
  Committee of Experts on cross-border flow of Internet traffic and Internet freedom (MSI-INT)  
CONVENTIONS
  Transfrontier Television
  Conditional Access
COOPERATION
  Legal and Human Rights Capacity Building
FORMER GROUPS OF SPECIALISTS
  Rights of Internet Users
  Information Society
  New Media
  Public Service Media Governance
  Cross-border Internet
  Protection Neighbouring Rights of Broadcasting Organisations
  Media Diversity
  Public service Media
 
Events
  Conference Freedom of Expression and Democracy in the Digital Age - Opportunities, Rights, Responsibilities, Belgrade, 7-8/11/2013
  Conference "The Hate factor in political speech - Where do responsibilities lie?", Warsaw18-19 September 2013
  Conference of Ministers, Reykjavik - Iceland, 28-29 May 2009
  European Dialogue on Internet Governance (EuroDIG)
 
Documentation
  Conventions
  Committee of Ministers texts
  Parliamentary Assembly texts
  Ministerial Conferences
  Publications
  Translations
 
Useful links

Strasbourg, 19 March 1999

DH-MM(1999)007

 
 

Proceedings of the Information Seminar on Self-regulation by the Media

______

(Strasbourg, 7-8 October 1998)

______

Directorate of Human Rights

______

TABLE OF CONTENTS

INRODUCTION

THE CONCEPT OF SELF-REGULATION AND ALIKE TERMS: MEDIA ACCOUNTABILITY SYSTEMS (MAS), MEDIA RESPONSIBILITY ETC. Key-note speech by Mr Claude-Jean BERTRAND Institut Français de Presse

THE VALUE OF SELF-REGULATION FOR CERTAIN MATTERS AS OPPOSED TO STATE REGULATION OR LEGISLATION, THE LIMITS OF SELF-REGULATION Key-note speech by Ms Tiziana MONA SSR (Switzerland)

THE ROLE OF A PRESS COUNCIL IN CASES OF DEFAMATION OR INVASION OF PRIVACY BY PRINT MEDIA JOURNALISTS Key-note speech by Mr Pär-Arne JIGENIUS Press Ombudsman (Sweden)

PROTECTING MINORS FROM VIOLENCE ON TELEVISION IN FRANCE: VOLUNTARY RATING SYSTEM ADOPTED BY BROADCASTERS Key-note speech by Mr François HURARD Conseil Supérieur de l’Audiovisuel (France)

HANDLING UNFAIR TREATMENT (DEFAMATION) OR INVASION OF PRIVACY COMPLAINTS WITH SELF-REGULATORY MECHANISMS Key-note speech by Mr Norman McLEAN Broadcasting Standards Commission (United Kingdom)

AN OVERVIEW OF ADVERTISING SELF-REGULATORY SYSTEMS AND CODES OF PRACTICE IN EUROPE Key-note speech by Mr Oliver GRAY European Advertising Standards Alliance (Belgium)

THE NEW SELF-REGULATORY SYSTEM IN LITHUANIA Key-note speech by Mr Gintautas BABRAVICIUS Lithuanian Radio and Television Association

LIST OF PARTICIPANTS

* * *

INRODUCTION 

The information seminar on self-regulation by the media took place in Strasbourg, at the Human Rights Building, on 7-8 October 1998. It was organised by the Media Section of the Council of Europe in the framework of the activities of the intergovernmental group of Specialists on media in a pan-European perspective (MM-S-EP). Ms Carolyn Morrison (United Kingdom) chaired the meeting.

Approximately 100 people attended the seminar, representing governments, broadcasting regulatory authorities, broadcasting and print undertakings, journalists’ unions, professional associations, international organisations, academia and some parliaments (including the European Parliament). The seminar was mainly aimed at facilitating an exchange of information, ideas and experiences among participants on the topic of self-regulation.

The concept of self-regulation

There are often difficulties and misconceptions surrounding the notion of self-regulation. One of the main objectives of the seminar was, therefore, to explore and clarify the meaning of this term. However, despite this goal, quite different examples of self-regulation were presented throughout the meeting and a uniform or unequivocal concept of self-regulation did not emerge from the seminar. On the contrary, from the discussions it became apparent that self-regulation was a subjective notion that was open to a certain degree of interpretation. It was observed that the professional background of participants influenced their perspective on self-regulation.

The traditional concept of self-regulation, understood as “a set of rules and implementation bodies that were voluntarily established by media professionals themselves”, was defended by some participants as the only valid one. They argued that self-regulation should be a free choice of journalists and highlighted that only media professionals could decide whether or not to adopt ethical standards. Any attempt to impose or even encourage the adoption of self-regulatory norms or the setting up of self-regulatory bodies was opposed by them.

Some examples presented during the seminar were described as “concerted” or “enforced” self-regulatory systems under which the media were responsible for adopting standards but their implementation fell under the supervision of a regulatory or State body.

Reference was also made to “legislative” self-regulation, that is, when the law provides for the creation of self-regulatory bodies. This type of practice was not considered as self-regulation by several participants, who claimed that ethics could not be legislated and made part of the law, since by doing this it became a legal requirement.

On the other hand, some participants considered that self-regulation backed by the law was an acceptable solution in certain national contexts. For example, it was mentioned that in Lithuania, a new democracy with little practice in empowering media professionals to regulate their own activities, the establishment of self-regulatory bodies in the law was a middle-way solution that gave such bodies a degree of authority and made the system acceptable in the eyes of public authorities.

Other participants considered that self-regulation enforced by law would not be feasible in their countries and argued that such a practice could not be strictly classified as self-regulation. This discussion illustrated the correlation between specific national contexts and the responses that were put into place. There was agreement that the political, legal and cultural traditions of a country had an influence on the most suitable type of response in this country.

Linked to the above, it was also stressed that self-regulatory systems could not be “exported” from one country to another. Although they could work very well in one place, their immediate transposition to another place might not be effective due to the circumstances in the latter.

Legislation / Regulation

It was generally accepted that self-regulation was an effective and valuable tool to achieve media quality but that, nevertheless, it was not the only way to reach this goal. Self-regulation was not to be seen as a “panacea” since it also had limitations. In this respect, it was mentioned that some problems and transgressions by media professionals were better addressed by legislation. For instance, regulatory interventions were considered justified to protect certain public interests, such as the protection of minors or the protection of the reputation of others. Legislation was therefore considered acceptable and even necessary in certain areas.

Some participants referred to the notion of “framework legislation”, that is, when some general or basic principles were included in the law. They considered that framework laws were useful and could serve as a basis for more detailed norms to be included in the codes of practice adopted by media professionals. This was said to be particularly true for the broadcasting and advertising sectors, unlike the press sector, which in many countries was not subject to any type of specific law or regulatory framework.

In summary, it was seen that self-regulation on its own was not sufficient to address all matters and that it should therefore function in combination with other elements, in particular the law and the market, to ensure high media standards. It was generally considered that there was a complementary relation between regulation and self-regulation (and that many media transgressions could be handled by either). One participant graphically stated that both types of measures were made to “cohabit”.

Different types of self-regulatory mechanisms

The best known self-regulatory mechanisms across Europe are undoubtedly codes of conduct and their corresponding implementation bodies. Most European countries have a code of ethics for journalists adopted by journalists’ organisations or in some cases jointly with the publisher organisations. Similarly, there are many press councils that administer the codes.

It became apparent at the seminar that most people focused on codes of conduct and press councils when speaking of self-regulation by the media. Nevertheless, one participant highlighted that there were many other ways, besides codes of ethics, of ensuring media quality and its accountability to the public. He spoke of “media accountability systems” (some examples were: letters to the editor, citizens sitting on editorial boards, ombudsmen employed by a newspaper or broadcaster to deal with complaints from customers, consumer and reader associations, etc.). It was mentioned that attention should also be given to these other self-regulatory mechanisms.

It was generally considered that ethical guidelines and other media accountability systems were effective tools to encourage committed journalism. In most places where they had been used, such systems gave satisfactory results, or at the worst, they were harmless.

Despite the above, some participants strongly opposed the creation of press councils because they considered it would represent a control on journalists and a constraint on media freedoms. It should be noted, however, that this view was not representative of the meeting as a whole, as most participants believed that it was legitimate as well as valuable to have codes of ethics and press councils to promote responsible journalism.

In view of the fact that journalists were sometimes reluctant to submit themselves to any type of scrutiny, it was considered important that self-regulatory mechanisms made the media as accountable as possible to the public. In fact, it was stressed that one of the great advantages of some self-regulatory practices resided in their “power of embarrassment”, which put the transgressing journalist or media outlet under public scrutiny.

Accountability of self-regulatory systems to impartial judicial bodies was also said to be positive. It was mentioned that, in some countries, domestic courts referred to and sometimes reviewed decisions taken by self-regulatory bodies, which could be seen as a form of “judicial accountability” that gave such systems more authority and effectiveness.

It was indicated that adequate funding was essential for the correct functioning of self-regulatory systems (but it was noted, however, that few were actually financed in satisfactory ways). Furthermore, given that self-regulation could only be effective when it was independent, it was considered that funding should always come from the industry and never from the government or other public bodies, since this latter option could undermine its independence.

It was agreed that training of journalists on ethics was essential to enhance the efficiency of self-regulation. It was considered that all efforts aimed at the education of journalists, in particular during their university studies, should be strongly supported, as this was the best foundation for effective self-regulation based on high personal ethical standards.

Self-regulation in the different media sectors

The two areas that were said to be best suited for self-regulation were the print media and advertising sectors. Several participants were strongly in favour of the idea that both of these sectors should be as largely self-regulated as possible.

It was noted that in many countries regulatory frameworks for the print media did not exist or were very scarce (for example, few European States had a Press Law). Given this situation, it was deemed that self-regulation should be strongly supported in the print media sector.

As regards the advertising sector, it was also considered that rules should be kept as general as possible, for instance within framework laws, and that detailed principles and best practice could be included in voluntary self-regulatory codes adopted by the advertising industry. It was nonetheless considered that certain legislation, for example on tobacco advertising, might from time to time be considered necessary, which illustrated well that the law and self-regulation complemented each other.

It was recalled that the broadcasting sector has been traditionally more regulated than other media sectors partly because of its significant influence and cultural/social role. All European countries had laws regulating both their public and private radio and television sectors. At the European level, there are also legal instruments, namely the European Convention on Transfrontier Television and the “Television without Frontiers” Directive, that aim at ensuring minimum standards in broadcasting.

It was pointed out that broadcasting services were generally under the supervision and control of regulatory bodies, whose task was to ensure that broadcasters complied with the principles laid down in legislation and their licence. The codes of conduct or guidelines defined by broadcasting regulatory authorities could not, however, be considered as an example of self-regulation in the traditional sense, given that these authorities did not emanate from the media industry itself. However, the more consensual the codes were, the more like self-regulation they became.

Although the broadcasting sector was more regulated, it was agreed that there was also space for self-regulatory initiatives, in particular as regards the classification of programmes on television. In this respect, the new voluntary rating system in France was described in depth. It was explained that the system had been established at the time of a heated public debate on how to protect minors from increasing levels of violence on television. Instead of passing legislation on this matter, it had been agreed to set up a system whereby broadcasters themselves would classify their films and other programmes and ensure their transmission at the corresponding time schedules.

The correct functioning of the system was under the overall supervision of the CSA (the French Regulatory Body), in accordance with the conditions included in broadcasting licences. As a result, the broadcasters were under a sort of “contractual obligation” or “pressure” to classify their films. In view of this and also taking into consideration the powers of the CSA to contradict the actual classification by broadcasters, some participants were of the opinion that this was not “pure” self-regulation but rather “concerted” or “enforced” self-regulation. In any event, it was considered an interesting and flexible solution to the problem of violence on television.

Questioning the value of self-regulation

When debating self-regulation, the question of its effectiveness and value is generally put forward. It is sometimes argued that self-regulation is not efficient in deterring the media from, for instance, invading the privacy of persons or defaming them given that self-regulatory sanctions do not have enough strength or sometimes do not even exist.

The worrying trend of media sensationalism and the transgression of codes of ethics by journalists was recalled at the meeting. It was mentioned that a real reflection was necessary on how to deal with the lowering of standards by some sections of the media.

Recent landmark cases of bad behaviour by certain media, for example related to Princess Diana’s death or to President Clinton’s testimony to the grand jury, were said to have triggered off a public debate on the limitations of self-regulation and had questioned more than ever the value of self-regulatory practices.

Following these events, it was mentioned that some European governments were reconsidering existing systems of press freedoms, and discussing whether regulatory measures were necessary in certain areas, such as the protection of people’s privacy from invasive journalism. Most participants were of the opinion that despite such bad examples of media practice, self-regulation should still be the principal solution and that too much emphasis should not be placed on the law: “hard cases make bad law”.

Conclusions

The seminar was a stimulating exchange of views and experiences and participants did not attempt to reach formal conclusions. Nevertheless, some of the main ideas that emerged from the discussion could be summarised as follows:

· there is a clear and necessary compatibility and complementarity between legislation and self-regulation in the media field;

· self-regulation should be maintained and promoted but should also prove its value;

· although self-regulation which is “enforced” or “imposed” may not be considered as best practice, it is acknowledged that it can be useful under certain circumstances;

· the national context of a country is important in determining the most adequate type of measure(s) for that particular country;

· in many new democracies, codes of conduct and self-regulatory bodies are being tested, but time is necessary to consolidate such systems;

· training and education of journalists on ethics is crucial for media quality;

· when discussing self-regulation, the focus should not always be placed on examples of bad journalism; it should be acknowledged that quality media also exists.

Follow-up

Many interesting and useful ideas were presented and discussed during the seminar. It can nevertheless be considered that a number of questions still remain open on the debate on self-regulation. Further exchanges on this topic among journalists/media professionals, government and parliamentary media experts could therefore prove useful. In this respect, the conference on self-regulation to be organised under the forthcoming German Presidency of the European Union (April 1999) is a welcome initiative. It is hoped that it will build on the results of the present seminar and take the discussion further.

* * *

THE CONCEPT OF SELF-REGULATION AND ALIKE TERMS: MEDIA ACCOUNTABILITY SYSTEMS (MAS), MEDIA RESPONSIBILITY ETC.

Key-note speech by Mr Claude-Jean BERTRAND
Institut Français de Presse
 

The Three Factors of Media Quality

It is hardly necessary to emphasise the importance of having quality media. The population of the Soviet Union did not have any, so for 70 years it had to endure one of the most destructive dictatorships that ever existed.

Quality media, in my view, are media that serve citizens first - and advertisers, shareholders, news sources only second. They are media that give all groups in the population the important information they need, in an attractive form. Media that concentrate on public service: call them “ethical” media.

Even in industrialised democracies, media are not as good as they need to be for civilised society to survive. How can they be improved? How does one obtain quality media? Answers differ: some say “freedom” is enough, in other words the “market”, others say we must rely on ethics. Others trust law and regulation.

In the US, they believe that the market (plus a dose of ethics) will do the job - with the result that most dailies are a mix of municipal bulletin board/ at least 60% advertising/ the remainder being syndicated material - not to speak of the recent decadence into tabloidism. Another outcome is network television, which does nothing for the education of children,1 and piles reality shows on talk shows, game shows, sitcoms and brutal series - with commercial interruptions every 9 or 10 minutes. The US media treatment of the Simpson trial and, more recently, of the Starr investigation have terminated the American model of journalism.

In France, many people (not including me) believe that the Law, upheld by the courts, will do the trick. Hence the very detailed 1881 General Law on the Press, which is rarely enforced because it is largely archaic. It has not been updated, revised and energised because politicians are afraid of offending the press. French dailies, I should point out, are (with a few exceptions, as in Strasbourg), very mediocre. As regards electronic media, we have had a succession of Broadcasting Laws, which all turned out to be unsatisfactory - except the one in 1982 which lifted the State monopoly over broadcasting and deregulated it. Also, because the law is supposed to take care of all the problems, almost no “media accountability systems” have ever developed in this country.

It might be useful to recall the advantages and disadvantages of each approach (law, market and ethics), as I have found that advocates of one are often hostile to the two others and ignorant of their virtues.

The Law - and the courts (hence the State)

The law can set the rules for the business of running media. It can limit concentration of ownership and endorse international agreements. More specifically, it can deter a newspaper from committing libel, or a television network from interfering with a trial. It can impose obligations with respect to children. And the police are there to enforce the law, to carry out the orders of the courts and regulatory agencies: they will, for instance, close a radio station that does not stay within its allotted frequency band and designated power.

The law also grants rights to the media and professionals: like the Freedom of Information Act in the US or the “conscience clause” in France2 - not to speak of the extraordinary Swedish press law which is incorporated in that country’s constitution.

The legal system, unfortunately, also has drawbacks. It does not find it easy to adapt to continuous change. It tends to serve the interests of a ruling elite, or even just the government. After all, the laws are passed by politicians - and few are the nations where the judiciary is fully independent. Thus, the press in Britain, in spite of its reputation world-wide, is currently one of the least free in Europe, which is the result of the Official Secrets Act, rules of contempt of court, libel laws, the Criminal Evidence Act, plus various laws on terrorism, privacy, copyright etc. - mostly passed against the popular press to please the middle-classes. Besides, the law as a recourse against abuse by the media is slow, expensive and so complicated that it scares off the common human being. For wealthy crooks, on the contrary, lawsuits can, in some countries, turn into gold mines, allowing them to pocket a million dollars from a libel suit - or to muzzle their opponents.

In the US, supposedly a paradise for lawyers, one finds an extreme of hostility to the law: paradoxically, the media hate it as the great enemy of freedom. They even wish broadcasting (largely deregulated in the 80s) were made as free as the print media was. They claim that the only law needed is the First Amendment to the federal Constitution which says, “Congress shall make no law abridging the freedom of speech or of the press”. And “No law means no law” claim the absolutists. Beginning in the 1920s, a body of interpretation has grown around the amendment (which, taken literally, is extremely limited3): some would now like it to mean that none of the three political powers at local, State and federal levels should interfere with any operation of the media (except maybe the production of pornography).

The Market

Americans trust the market, where Europeans have never trusted it. Up to the 80s, every country in Europe had imposed a State monopoly on broadcasting (except Spain which authorised private radio and Britain which allowed commercial television in 1954). Furthermore, France and Italy subsidise the daily press to save small opinion papers. So do the Scandinavian countries (except Denmark) to avoid the local monopolies that the market would bring about, as happened in Denmark.

A free market can certainly have a positive influence on the media: most striking in France was the improved quality of newscasts after government censorship and manipulation ended in 1982.

Competition keeps professionals on their toes. Media which cannot obtain an audience have to fold, which happened to the television network La Cinq in France, a few years ago, and later to the daily Info-Matin, in spite of their very wealthy shareholders. Creativity is boosted: that was clear from 1955 in Britain when BBC television was rejuvenated by its commercial competitor, ITV. Generally speaking, the market pressures the media into reacting quickly to the changing tastes and needs of the public - and to new technology.

The drawbacks, however, are just as great. The purpose of operators usually is, not to provide public service, but to make money, sometimes quick money. In the print media, they often omit to invest in information4 - and rely on news services and press releases. Many commercial media turn into prostitutes: they pander to the lowest tastes to obtain a maximum audience. They ignore ethical rules to please advertisers. Even public television networks feel the need to program the same lowbrow entertainment as the private networks. The best media become more expensive and thus restricted to well-off people, like premium channels on cable, weekly and monthly magazines, data banks and other services on the Internet.

Also, media concentration increases naturally. In Britain 85% of the national daily press is currently in the hands of four groups. Even worse for the Fourth Estate, several of the larger groups owning the press are foreign. Even before, an ideological monopoly had tended to develop: in Britain as in Sweden, most of the press is conservative, while at least half the votes go to Labour.

Media Ethics and Accountability Systems

The law has always been used, even in the US, where the Congress has passed laws abridging freedom of speech5. After all, there are other human rights to be protected - and even in a highly competitive business, managers request a level playing field. But, the law alone, and too much of it, i.e. an excess of State intervention, can lead to authoritarian rule.

The market, as far as broadcasting is concerned (the major media nowadays), is a new force in many nations - and on the whole (as far as France is concerned anyway) most people agree that it has produced more good results than bad. But the bad effects have caused the intense resentment which led in the early 90s to a burst of interest in ethics.

A new idea is emerging: what if democratic self-control was used? What if professionals and consumers took over in the media world? The praises of ethics are sung most loudly in the US of A - as the answer to market anarchy and to the fear of State regulation. But media ethics is highly appreciated everywhere... so long, however, as it remains the topic of workshops, books, seminars etc. It gives the public a good image of the media. It does not cost anything. It is a panacea. But the tune changes when the focus turns to “media accountability systems” (MAS), when talk gives way to action, when the rules devised by consensus are to be enforced.

A MAS is any kind of non-governmental means used to insure that media are “socially responsible”. MAS use one or several among four methods: criticism, monitoring, access to the media, and training. The concept is global - hence rather hazy. MAS exist in more than thirty different shapes. Among them: individuals (an ombudsman, a media reporter, an ethics coach); structured groups (a free press/fair trial committee, a national press council, the “contents evaluation commission” at a (Japanese) newspaper); single documents (a code of ethics) and small media (journalism reviews); lastly, a process, either short (awareness sessions, an ethical audit) or long (university education).

Wherever they have been tried, all the MAS have given satisfactory results. At worst, they’re harmless. Yet very few of them exist. Even in the country where nearly all have operated, the US, many have not survived and most have not multiplied6. I would like to try and explain by listing the criticisms made of them and the obstacles they meet.

Starting with codes: lawyers say they can be used in court against a newspaper or broadcasting station. But there are ideological opponents to MAS. Ethics, social responsibility, quality control (whatever you choose to call it) is predicated on freedom. At both extremes of the political spectrum, people oppose press freedom. For some, ethics and MAS are ludicrous fantasies. The only way to make the media serve “the nation” or “the people” is to own them or to apply force. Conversely, ultra-liberals present media ethics, codes and MAS as a communist plot against freedom of speech and free enterprise: governments could turn them into law7.

More seriously, realists object to codes for being senseless catalogues of vague prohibitions and noble exhortations, detached from real life: the best illustration would be the later press codes of the Soviet Union, which were great, by the way, but unrelated to communist reality.

Anyway, they say, what’s the use of a code that doesn’t take power relationships into account? Can a reporter afford to lose his job for the sake of ethics? What’s the use of a code when no sanctions can be meted out to violators? Some journalists have a strict conscience - but others need external physical pressure to force them to do the right thing.

Who is going to take care of the enforcement of rules? Media users are ignorant, indifferent and unorganised, while the journalists have other things they prefer to think about. As for the owners, their first task is to look after the bottom line. Quite a few of them consider that the existing law is enough and a MAS would be a violation of their right of property.

Now for the obstacles to the development of MAS. They are under-developed, simply because they have met a lot of resistance. Some objections are unjustified:

1. The threat of government take-over: just as with codes, the State, they say, will use self-control mechanisms to limit freedom of speech. Yet, this has never happened8.

2. Uselessness: ethical media do not need MAS - and unethical media won’t accept them. True enough, but most journalists are neither good nor bad: they need guidelines and the friendly pressure of their peers.

3. The PR stigma: some claim that any ethical effort on the part of media is cosmetic. The media pretend to care about public service but keep their focus on profit or propaganda9.

4. The radical stigma: some complain that ethics is a disguise used by left-wing anti-media militants. Yet even in the US some of the most virulent belong to the Right.

On the other hand, there are also real obstacles to the setting up of MAS. One is ignorance. That obstacle could easily be eliminated. Everybody by now has heard about media ethics (on the occurrence of some scandal or other) - but very few have heard of MAS, mainly because media have kept very quiet about them.

A very real obstacle is the status of the journalist, an employee whose fate is in the hands of his hierarchy. The profession is deeply conservative and (as in any other profession) it seems to accept change only under threat, from the State or the market. It traditionally closes ranks against any external criticism - and avoids internal criticism. Are the priests of information arrogant? Or do they suffer from very fragile egos? Both probably.

And we come to the last two major obstacles to the development of MAS: for one thing, several of them are expensive, if they are to do their job well, i.e. quickly and visibly. MAS are certainly a good investment to improve the quality of media and the image of a firm in the eyes of government, courts and public. But some owners cannot afford it and others do not want to. The other obstacle is time. Quality control uses up time which is always in short supply in the media universe. And many MAS take a long time to bear fruit (like education) or simply to become known (like press councils).

Unfortunately, that is not all. Ethics and MAS generate a very serious misunderstanding. They lead people mistakenly to assume that whatever the media do wrong is the fault of journalists. The latter make convenient scapegoats whereas, in fact, the worst sins of media are committed, for economic reasons, by the decision-makers: owners, publishers and managers.

I would not bother to list drawbacks if ethics and MAS did not have such advantages as to make criticisms and obstacles negligible, in my mind. They are democratic: most of them involve professionals and citizens, quite a few gather the three major groups of actors in social communication. They are not linked to government or to the State bureaucracy. Some might be considered as NGOs. They present no danger for anybody.

They are flexible: they can easily be adapted to circumstances. For instance, a code of ethics can be interpreted or, if needs be, quickly amended. MAS are extremely diverse but can all function together, to form a loose, unstructured network for quality control. They complement each other as they operate in different time frames: some immediately (e.g. a correction box), some over many years (education). They can be efficient, and could become much more so.

Generally, MAS are a soft yet powerful weapon to be wielded together with high journalistic competence (the two being intimately linked anyway) to insure the autonomy of journalists and a better public service.

Conclusion

Now, whether you use Anglo-Saxon common sense or adopt a Cartesian approach, you are bound to conclude that the solution to the problem of media mediocrity is obviously to use all three means of applying pressure on the media: law, market and ethics.

All three are useful. The first two are indispensable but can be very dangerous - yet they are the most commonly accepted and praised. The third is not dangerous but is largely ignored. I believe ethics and MAS can richly contribute to limiting the excesses of the market and to restricting the need of law and regulation.

There are two tasks ahead. One is to achieve a correct balance between the three quality-mongers: the proportion of each is bound to differ from one nation to the next, linked as it is to the ideology, to the national vision of man and society. The other problem is to promote a concern for ethics and, mainly, to put the thirty odd MAS into operation. How many regional and local press councils exist in Sweden - or Spain? How many ombudsmen? Are there any media consumer associations? And how developed is continuing education for working journalists?

Fortunately, over the last generation, and especially the last few years, about half a dozen factors have made big contributions to the process. First, the public’s rising level of sophistication makes it more aware of the media’s role, more demanding and more militant. There are more well educated journalists wanting to do their job well for personal satisfaction and social prestige. Technology has promoted ethics both by its good and bad impact: it democratises the media but it makes it easier to distort the news. Similarly, growing commercialisation makes the media more sensitive to public opinion, but it increases the temptations to distort news and to vulgarise entertainment.

Nearly everywhere, owners (and advertisers) hit by increased competition, are tempted to follow the lead of some non-media businessmen who decide to serve the public better - and then find that such behaviour pays. In the late 80s, the collapse of the Soviet Union, by destroying the myth of a communist alternative to a capitalist press, has revived “media ethics”. Lastly, some spectacular violations of media ethics have drawn public attention to media misbehaviour, starting with the Gulf War, then followed by a series of sexual scandals blown out of proportion.

I truly believe what you have just read - which is why I keep writing and talking about ethics and MAS. I feel like a travelling preacher, one of John Wesley’s assistants in the early days of Methodism (about which I wrote a book many years ago). I try to trigger conversions - but I leave it to others to organise the great ethical awakening in the media world.

* * *

THE VALUE OF SELF-REGULATION FOR CERTAIN MATTERS AS OPPOSED TO STATE REGULATION OR LEGISLATION, THE LIMITS OF SELF-REGULATION

Key-note speech by Ms Tiziana MONA
SSR (Switzerland)
 

There are two comments and one statement that I think it useful to make before I open this discussion on media self-regulation as opposed to state regulation.

The first comment is that in a liberal, pluralist society, based on the rule of law, it is media’s job to upset certain received ideas, question particular interests and stir up controversy.

The second is that in situations of unlimited freedom, there is always a risk of that freedom being abused.

The statement was originally made by Joann Byrd, former ombudswoman at the Washington Post: “the ethics of journalism are invisible”, she said, “but their absence is blindingly obvious”.

Just a few years ago, discussions in seminars like this centred on what I propose to call “technical issues” such as compulsory press accreditation by the authorities. Was such a practice compatible with press freedom – or media freedom generally – or with the right to information and freedom of expression? At a meeting held in 1991 by the Swiss National Press Commission, on behalf of UNESCO, one of the issues was the accreditation of journalists by the highest authorities of the state – the Federal Council (i.e. the government), the Chambers of the Federal Assembly and the Federal Court. In just a few years, the growth of the media and media excesses have made those discussions – and very civilised discussions they were - seem like an obsolete debate between a body of professionals, seeking greater freedom in order to provide better information, and authorities that naively imagined they could channel information by sorting the media sheep from the goats. In none of these discussions was the function of the media really questioned; the debate simply reflected a wish to serve the public better. The media were demanding the right to upset received ideas and question special interests. I think back to the “golden era” of journalism that started 25 years ago, with Watergate. In those days, it seemed, it was the duty of the “fourth estate” to curb the excesses and aberrations of the other three powers: the legislature, the executive and the judiciary.

Since then, we have entered what the editor of Le Monde Diplomatique, Ignacio Ramonet, has called the “era of suspicion”. People have become mistrustful and doubt the media’s ability to distinguish truth from falsehood.

This means that we face a crisis of credibility. I propose to try taking one step back and considering the way the information system works today, using a number of examples of what might be regarded as the cardinal sins of current practice.

The first is sensationalism and the constant need to “scoop” before competitors.

The idea has taken hold that the media’s purpose is not to inform, provide facts or seek the truth, but to deliver news as quickly as possible. It is a race in which television leads the pack: explaining is no longer important, showing is enough. The standard formula here is to use eyewitness testimony of events. The eyewitnesses guarantee the truth of what is reported. But the risks of approximation and error, not to mention manipulation, are huge. Eyewitnesses are trotted out one after another to furnish conflicting versions of events.

I shall give just one, very particular example, among the myriad. A year ago we watched, listened to and read eyewitness accounts of the mourning and grief after the death of the Princess of Wales. The message was simple: the global village was grieving for Diana. A few days ago, a remarkable BBC documentary showed a very different reality: even in the United Kingdom, the population was by no means in general mourning. In order to inform its audience properly, the BBC should, in fact, have broadcast these images last year, but that would have been out of step with the pervading herd instinct. So they postponed showing the images. Even as the tabloid press was being castigated for paparazzi excesses, the media generally were falling into the trap of failing to provide accurate information, and propagating only what was deemed the single possible reading of an event.

This brings us to another aspect of the way in which the media have operated in recent years: the self-fulfilling prophecy.

We are informed that the whole world is mourning Diana; the only images we are shown are of people weeping – so the force of those images makes the information true.

There have been two other recent events of world importance in which the press (for example) has played this type of role, as noted by Antoine Maurice in the Tribune de Genève. They were the fall of the Suharto regime in Indonesia in May 1998, and Pakistan’s acquisition of the nuclear bomb. In each case, the media were not content to provide information. Reporting on Indonesia, they jumped from speculating on whether the country was going to pension off its dictator, to badgering the Indonesian people into mounting a revolution.

In the case of Pakistan they showed the same tendency to predict, rather than analyse, events: the line of argument was that Pakistan either had to respond to India’s nuclear tests or lose face. When the bomb finally went off, it simply confirmed the media prophecy.

To list even the most recent and flagrant instances where the journalistic code of ethics has been bent would take a long time. There was the amazing case of Michael Born who got several German and Swiss TV stations to buy his supposedly sensational and completely phoney reports; and then there was Steven Glass, of the New Republic magazine, making up a whole series of reports that appeared in various prestigious publications in the United States. If Watergate was a glorious chapter in the history of journalism, I am afraid that all the “Gates” we have had since, including the latest “Sexgate”, have served only to sap the credibility of the media – which has never been at a lower ebb.

That brings us to the third cardinal sin – and I shall stop at that, although I am quite sure we would have no trouble finding ten.

The third sin is the ever more frequent and frequently intolerable use of vivid and powerfully violent images.

Shortly before he died, Karl Popper – one of the twentieth century’s great thinkers and, for some, the last true philosopher – made public an idea that he had been working on for a number of years.

He proposed the introduction of a certificate of competence for making television programmes: an idea so simple that it became revolutionary.

It might be regarded as a provocative proposal, had it not come from the champion of the open society, a leading liberal thinker.

As long ago as 1991, Popper had begun to develop the theory that we are teaching violence to our children through television and other mass media, and this led him to urge the use of censorship. He was sounding an alarm, of course, but the proposal was untenable in a democratic system.

However, this was merely one stage in a process of profound reflection on the mechanisms used to reproduce culture and civilisation, affirm and strengthen the rule of law, make democracy work, and educate children to become tomorrow’s citizens – a process which led Popper to formulate what might be termed his spiritual testament.

I shall confine myself here to two observations: one political, the other psychological.

Non-violence is one of the essential elements of the rule of law. If society increasingly neglects its duty to teach non-violence, it will have increasing recourse to measures that curb individual liberty, with repressive laws and restrictions.

In other words, the greater the extent to which such a State governed by the rule of law can draw on a shared culture of non-violence, the less it will need use the apparatus of repression, policing and control.

Yet what sort of culture is it that millions of children absorb on a daily basis, via that playtime companion, that ever-present source of information and stimulus – that “the thief of time“, as the psychologist John Condry called it – that is television?

Fifteen acts of violence are shown on TV screens in the United States every hour; the figure for Europe is five an hour (but we are doing our best to catch up). You will forgive me for repeating those figures by way of introduction to my second observation, on children’s relationship with television.

The purpose of educating children is to teach them how to adapt to their environment. But each child’s mental development depends on his or her environment and the elements that make it up.

Children have always had to face real violence in the society around them: in their families, at school or on the street. But television has introduced an unprecedented level of violence into their environment. People who watch a lot of television – and children do watch a lot of television – perceive their environment as being much more violent than it actually is. Thus children learn to adapt to something that is a distortion of reality.

In this sorry situation, we must ask what sort of measures are necessary or desirable to allow the media to sustain – or in some cases re-acquire – quality and credibility.

One of the most striking aspects of ethics in journalism is the proliferation of codes, charters and other reference texts. Seen positively, this abundance of ethical documentation is evidence of the interest shown by the media, and those who work in it, in questions of standards. Equally, from a negative point of view, it betrays a utilitarian tendency of seeking to reconcile the application of rules with certain practices and accepted ways of working that aim to satisfy supposed public demand and thus maximise profits from activities related to news production. It suggests that the media are trying to make selective use of ethics: by proclaiming standards, portraying a positive image of journalists and the media, building a climate of public confidence and – most importantly – discouraging the authorities from intervening in the regulation of journalism.

The wording of the Declaration of duties and rights adopted in Munich in 1971 is sufficiently general to leave scope for other texts expressing the particular sensitivities of journalistic communities in specific countries or regions of the world. On the other hand, in the absence of any international regulatory or self-regulatory body, it is up to the national or regional journalistic communities to monitor the application of their principles and decide what instruments to use to regulate working practices.

Comparison of the various sets of standards reveals differences in journalistic practice and different areas of sensitivity in the societies in which journalists work, and also reflects the dominant concerns at the time when the standards were promulgated.

In 1995 a survey found that journalists in 29 European countries had written codes (Nordenstreng, 1995). Eight new codes had been produced in the 1970s and early 1980s. More significantly, virtually all the texts (28 out of 31) had been revised in the 1980s and 1990s.

The development of press councils paralleled this trend. A study published in 1995 found 20 press councils in operation in Europe. There is now one more, since Italian journalists established the new Comitato per la Correttezza e la Lealtà dell’Informazione earlier this year. Half of the councils operating in Europe at the time of the study (i.e. 10 institutions) were set up after 1980, a statistic that confirms the increasing interest in journalistic ethics.

Press councils were originally set up to deal with issues involving newspapers and periodicals. It is consequently striking that most of the councils in Europe exercise authority over the media generally. This is true of all the bodies set up after 1965, with the exception of the Greek council.

Generally speaking, press councils have little or no power to impose sanctions. Where sanctions are available, they are not always applied or respected. This is a problematic aspect of journalistic ethics: just how effective is self-regulation? The question was raised in 1994 in a report by the Council of Europe’s Steering Committee on the Mass Media, on journalistic freedom and human rights.

Journalists are very jealous of their independence. This is only right and proper. Controlling information is the first concern of every dictatorship – and, for its part, information depends on freedom, just as life depends on oxygen. So it is hardly surprising that journalists bristle at the very idea of controls. Nonetheless, stubbornly refusing to engage in any sort of debate amounts to burying one’s head in the sand. The fact is that there are already controls on information, those controls are being exercised and becoming more rigorous every day.

In limiting our response to the traditional defensive reflex that rejects any form of official control, we may already be under-estimating other (more subtle but just as real) controls exercised by the forces of capital. However, if we focus exclusively on the outside forces that seek to curb our independence, we run the risk that our self-critical faculties will be blunted as we face, on the one hand, the rigours imposed by technical progress and, on the other, the extreme sophistication that characterises all modern media output.

There is a further and even greater danger: a woolly pessimism about the enduring value of journalism’s key ethical principles (the distinction between fact and comment, for example, or between information and fiction) often leads to a sort of nihilism. Because objectivity is unattainable, there would seem to be no objective criteria for evaluating journalists’ work. Taken to its logical conclusion, this means that factious reporting – providing it is declared as such – can win high praise. But this type of pessimism is no protection from the feeling of powerlessness induced by the recognition that those most guilty of manipulation are also, in many cases, the most manipulated (the Gulf War was a prime example of this phenomenon). The truth of the adage that time and tide wait for no man has never been more evident and, even as the profession chases its tail in pointless debate, it is coming under new constraints.

I suggest that there are two possible responses to these questions: one - strictly under the heading of self-regulation – is to appoint a mediator, as has just been done in France, at France 2, to ensure a practical link between the audience and TV news editors. The other - institutional – response lies in the Recommendation of the Council of Europe’s Committee of Ministers on the portrayal of violence in the electronic media.

Didier Epelbaum, a former correspondent in Jerusalem and editor-in-chief of television news, has taken on the job of mediator for two years. He has already sent two letters to the journalists at France 2: addressing the question of the information hierarchy, including extracts from viewers’ correspondence, commenting on the use of vocabulary and correcting inaccuracies. It is clear that he intends to take viewers’ opinions seriously, for the viewers, like himself, have very definite – highly ethical and moral – demands with regard to the content of TV news. On Saturday 12 September, the one-o’clock news programme included, for the first time, what is to be a weekly slot. The first subject that Epelbaum chose to tackle here, in response to viewers’ questions, concerned certain footage from Kinshasa, shown on France 2 and throughout the world at the end of August, and recording in detail the arrest and execution of a man by soldiers of the Democratic Republic of Congo. It was an example of the basic principle on which the mediator works: stepping in as soon after the event as the conduct of an inquiry allows and, if needs be, denouncing what went wrong.

In this case, we heard from the journalist who shot the footage and the journalist who included it in the broadcast report; each explained what they had done and why, in the presence of two viewers who were asked for their opinions both on the decision to broadcast the footage and on the explanations offered.

It is a useful procedure, provided that it does not systematically result in the mere justification of the news editors’ work, and – above all – that it helps to forge a critical attitude among viewers in relation both to images and to the concerns and deliberations of TV news editors.

The Committee of Ministers’ Recommendation on the portrayal of violence constitutes, in my opinion, the appropriate framework and structure for action at institutional level. It is an important text, which should be not only known but also applied. It sets out the duties and responsibilities incumbent on all those involved in the process of exercising the freedom of expression.

But self-regulation remains the surest means of guaranteeing independent, high quality information. This implies that all those who work in the field of televised information should be able to do so only after they have undergone assessment by their peers.

What is at stake in all this is sustaining (or re-establishing) a sufficient level of credibility, for we must not lose sight of the ultimate danger: if the media were to lose all credibility, then the very existence of our means of information would become irrelevant.

* * *

THE ROLE OF A PRESS COUNCIL IN CASES OF DEFAMATION OR INVASION OF PRIVACY BY PRINT MEDIA JOURNALISTS

Key-note speech by Mr Pär-Arne JIGENIUS
Press Ombudsman (Sweden)
 

The right of every Swedish citizen to publish and to pass on information to newspapers without prior hindrance by any central administrative authority was given constitutional protection in the 1766 Freedom of the Press Act. Over the centuries, this Act has been amended and updated, but has basically remained the same for 231 years. Sweden was the first country in the world to enjoy constitutional protection of free speech.

In the eighteenth century, the primary aim of legislation for the founders of the constitution was to protect the young and weak press from a strong governmental power. For this reason, the press was guaranteed a great degree of freedom. There was at that time no reason to consider the need for protection of the integrity and privacy of private individuals against sensational journalism. This is the reason why Sweden has still got a weak protection in law for the individuals against invasion of privacy. Defamation can constitute a breach of law but invasion of privacy can never be considered criminal. The call for such legislation has not been considered necessary due to the well-developed self-regulation of the press. In other countries with a weak system of self-regulation the citizens’ need for protection against insults from the press has been solved by legislation.

Later on I will explain the self-regulation system of the Swedish Press and the work of the Press Ombudsman, but let me first present some unique elements of the Swedish Freedom of the Press Act.

The most well known element is probably the principle of Public Access to Official Records. Any Swedish citizen may ask to be shown any document at a state or municipal agency. There are some exceptions, listed in the Secrecy Act, concerning, for example, information relating to national security or personal integrity. This means that the government and the public administrations are conducting their work under the scrutiny of the press. In practice, it is the journalists who exercise the principle of public access, but I would like to stress that it is not a right primarily intended for the press but a civil right for every Swedish citizen.

The freedom of the press is a civil right. It is not addressed to a certain industry - the media. The Freedom of the Press Act only refers to civil rights and duties for information sources and responsible publishers. Journalists are not even mentioned in the Act. Out of tradition the Swedish press have always opposed any kind of official licence for journalists.

Single papers and the Union of Journalists issue press cards. Every thought of a public authority that would decide who is allowed to use “journalist” as a title have been dismissed, even if it has been declared that such an ID would give journalists a stronger position in society. The reason for the negative attitude towards such identification is that an authority that decides on who is to be given such an ID has also got the power of withdrawal of the ID. The Swedish press does not accept that an official authority is to decide who is a journalist or not. The effect is that the title “journalist” is a free title, anybody can call himself a journalist. Abuse of this seldom occurs.

When Sweden became a member of the European Union, there was a cultural clash between Swedish openness and the traditional closeness in, for example, France. This has initiated a discussion on whether membership of the Union leads to less transparency in Sweden, or to a higher degree of transparency in the other member States.

Another exceptional feature of the Swedish model is the so-called “messenger-freedom”. This means that a government employee can disclose information to the press and enjoy the legal right of anonymity. No public authority may inquire into the identity of the person who has given the information. There are some exceptions to this rule concerning disclosures that endanger national security. A journalist who reveals his source without consent is subject to criminal liability. Hence, a person who gives information to the press, using his/her legal right to remain anonymous, can count on the safeguarding of his/her identity.

The constitution strictly bans any kind of censorship. The central administrative authorities are not allowed to prevent or stop the printing of any material. Once the material has been published, the responsible publisher can be prosecuted before a court of law.

In most countries, the author of an article that is considered to be criminal is also legally responsible for breaching the law. The Swedish system, however, identify one person as being legally responsible for the content: the responsible publisher. The journalists and other authors of the material cannot be sentenced for what they have produced.

The Swedish point of view is that it is not the writing of an insulting text that does the harm. I am sure that all of us, at some point, have written a text that finally ended up in the waste-paper-basket - and no harm was done. The damage is done when the text becomes public - if it is published and can be read by a great number of people. The conclusion is that the person who takes the decision to print the material is also responsible for the consequences. To avoid discussion about who actually took the decision of publishing the material, the liability lies with the publisher.

It is, of course, impossible for the publisher to read everything before it is printed. He is responsible, though, for recruiting good personnel and for appointing middle management. He should also transmit and encourage respect for press ethics and freedom of the press. The publisher is not to be considered as a scapegoat, but as someone who is very much involved in the daily work at the editorial office.

An interesting consequence of the system is that probe reporting can be conducted in an outspoken way. Journalists can write revealing articles about persons with important political or industrial positions without considering the risk of being prosecuted or having to pay large damages. When the system works at its best the publisher can serve as a shelter under which journalists can work without having to pay attention to irrelevant matters.

At the same time, the system leads to a concentration of power at the editorial office. According to law, nothing can be printed contrary to the wish of the publisher. Naturally, the person who is legally responsible for the publication’s contents also has the power to determine the contents of the paper. Due to this system, the editorial office is highly independent of the owners of the newspaper. Not even the owners are allowed to influence the publisher over whether he should publish or not publish certain material. The power to determine the contents of the paper is valid in this situation too.

The owners of the paper appoint and dismiss the responsible publisher. The publisher can of course be removed from office if he treats the paper in a way that is unacceptable to the owners. But if a competent publisher is dismissed without a good reason it attracts public attention and is often criticised. As a consequence, it will be difficult to recruit a distinguished editor-in-chief and skillful journalists when the owners intervene in such a way. The system therefore leads to a situation where editorial offices can work in an independent way and, to a large extent, owners respect the integrity of editorial offices.

The power of the press is strong. We have a saying that goes: using a newspaper you can crush flies - and people! Considering what I have said so far, it might have given the impression that private individuals face a totally hopeless situation as opposed to the power of the press. The press does have a strong, constitutional degree of freedom and legislation does not offer citizens any protection from invasion of privacy. The government sector plays a crucial part in Swedish society and records are kept concerning information on the private lives of the citizens. The government-held information is free of access and as a consequence the press have unlimited possibilities to publish information concerning private individuals.

This is where the self-regulatory system of the press comes into the picture. It is obvious that the press must handle the immense freedom and the amount of information about citizens in a responsible way. Otherwise there would be a considerable unbalance between the press and the citizens. In the long run, a government in a democracy would then have to consider stricter legislation.

In 1916 the first version of the Code of Ethics for the Press was adopted in Sweden. The same year, the press organisations decided to establish a court of honour: the Press Council. Later on, many countries all over the world followed the Swedish example and created their own versions of a Press Council. The Swedish Press Council was, however, the first of its kind. The founding year, 1916, is not a coincidence. During World War I some newspapers came to serve as a vehicle of propaganda for the powers at war and the reputation of the press was considerably damaged. France, Great Britain and Russia paid enormous amounts to an entente friendly news agency in Stockholm as a counterbalance to the leading news agency, which was by tradition pro-German. Reorganisation as well as professionalisation of the press was called for.

In 1969 the work of the Press Council was reformed. Representatives for the public now took part in the work of the Council. The Council had originally consisted only of members with a journalistic background. At the same time the office of Press Ombudsman for the general public was established.

Three national press organisations are responsible for these reforms:

The Newspaper Publishers Association which is an employer’s organisation. Almost all of the companies issuing daily papers are members of the organisation. The editors-in-chief and managing directors represent the companies.

The Union of Journalists An overwhelming majority of the employed as well as the free-lance journalist are members of this union.

The National Press Club which is an entirely non-political voluntary association. Members of the organisation include journalists, editors-in-chief, authors and intellectual leaders.

These three organisations have founded a Joint Committee for Press Co-operation which is responsible for the charter of the Press Council and the standing instructions for the Press Ombudsman. The Committee also decides on changes of the Code of Ethics. The three organisations all contribute to the financing of the Council and the Ombudsman, the major founder being the Newspaper Publishers Association.

Internationally, it is not common that two counterparts, one being an organisation for the employers and one being a union for the workers, work together as equals in such a delicate matter. In Denmark, the different organisations did not succeed in working together and the government had to take legislative measures and took control of the Press Council.

The concept of self-regulation means that the parties both formulate the ethical and professional guidelines and see that these guidelines are respected. I would like to stress that the government has got no influence whatsoever on the ethical rules of the press. Nor can they influence who is appointed Press Ombudsman (PO). They do not contribute financially to the activities of the Council or the Press Ombudsman.

A committee made up of the Head of the Parliamentary Ombudsmen, the Chairman of the Swedish Bar Association and the Chairman of the Committee of Press Organisations appoints the PO. As a result, the general public, instead of the government and the Parliament, influence the choice of the PO.

The PO has traditionally been chosen among highly qualified lawyers. I am the first PO who has a background as a publisher. For twenty years I have been editor-in-chief and responsible publisher for several large newspapers, both morning and evening papers. The reason for choosing an experienced publisher for the position of PO is that such a person can talk to the responsible persons at the papers in their own terms.

The people who run papers as well as the journalists are confident given the fact that the PO is familiar with the work at an editorial office. They also know that he has the experience of making quick, delicate decisions. This gives the PO a considerable authority when he negotiates with a paper in matters like whether the paper should print an apology, a reply or a correction to meet a rightful complaint.

Recently, the Minister of Justice explained in the Parliament that she considered the self-regulatory system to be highly efficient and for that reason there was no need for legislation concerning press issues. This had been proposed by one of the member’s of Parliament.

The Press Council is divided into two different groups, each consisting of six members. Three members are appointed by the three press organisations. Two members represent the general public. The representatives of the general public must not have any connections to the press. The Chairman of the Board is usually a judge from either the Supreme Court or the Supreme Administrative Court. The Chairman has the deciding vote but the council endeavour, to reach unanimous agreements. It is an interesting fact that the representatives of the general public wish to acquit newspapers more frequently compared to the representatives from press organisations. A couple of times every year the Press Council has plenary meetings to deal with specially interesting or important cases.

Let us now consider how the system works in reality. Anyone who considers him/herself to have been wronged or offended by the publicity in a Swedish paper can file a complaint to the PO. As a consequence even non-Swedish citizens are given this right. A condition for filing a complaint is that the applicant is directly affected by the article or news item. The PO does not consider unspecified complaints about the press in general. What the PO is to consider is whether there is an unwarranted suffering as a result of the publicity or not. The PO is not to act as a judge of what is appropriate from a more general point of view.

The procedure at the PO is free of charge. This is very important from an equality point of view. The alternative to filing a complaint at the PO is to sue the responsible publisher for defamation. There is a considerable risk of losing such a procedure and therefore there is an economic risk. In general, legal aid is not available in these cases.

Juridical persons are entitled to complain to the PO. Government authorities, companies and organisations sometimes file complaints with the PO. The Swedish approach is that juridical persons can not be defamed. However, a juridical person can still be the subject of error of facts. The only remedy for institutional complaints is therefore the right to reply or the right of a correction. A paper can not be censured because of a defaming text about a public authority or a company.

The PO applies short time limits. An application must refer to an article published within the three months prior to the date of filing the application. Since many applications lead to a correction or a supplementary article, it is quite natural that such a publication is made within a short time after the original article was published. Most of the complaints are filed within a month after the article was first published.

Last year 423 complaints were filed with the PO, most of them from private individuals. In some cases the application has no reasonable grounds and the PO dismisses these applications immediately. The applicant then has the opportunity to refer the case to the Council. I would like to mention that the task of the PO is not only to inform the press of its duties. When an application is dismissed the PO also takes the opportunity to give information on the professional ethics of the press. The PO also gives information on the fact that the press has an absolute right to choose not to publish articles. The PO often informs the general public that the freedom of the press includes the right to print matters which can be considered embarrassing, providing that the information is correct and relevant.

If an application is considered to be well founded it is sent to the paper for comments. The paper is obliged to reply rapidly - within a week. The complainant is then given the opportunity to give his/her view on the paper’s reply. Sometimes there can be an extensive exchange of views by letter before the case is decided. There are no oral hearings. Such hearings could be a disadvantage for people living far away from Stockholm. Quite often a case is dismissed after this procedure. It is noteworthy that even though the complainant was not successful, he can still be satisfied with the procedure at the PO. The paper has been forced to take the complaint seriously and explain the reasons for publishing. The complainant also has the right to bring the case to the Council if he/she is not satisfied with the PO decision.

In some cases the complainant and the PO both find that the best solution would be a printed correction, a rejoinder or a complementary article. The PO then negotiates with the editor over the phone. If the matter is settled in this way, the case is dismissed and the complainant is left satisfied. This informal and quick way of handling a case is in a playful way described as “Instant Press Ethics”.

If the PO finds that there has been a clear breach of the Code he refers the case to the Press Council, which then adjudicates the claim. Last year the PO referred 57 cases to the Council. The Council considered there had been breaches in the majority of these cases. If the Council censures a newspaper, the paper is obliged to publish the opinion in a correct way. The national news agency is informed, and interesting cases are thus referred to all of the press. The specialist media press publishes the decisions made by the PO and the Council on a regular basis.

A censured paper has to pay an administrative fee that amounts to approximately 25 000 Swedish krona. The fees are used to finance the operations of the PO and the Council. It is important to stress that neither the Press Ombudsman nor the Council has the power to award damages to a successful complainant. The redress for the applicant lies in the fact that the paper has to publish the decision indicating that the paper has treated the person against the Code of Ethics.

I will now briefly describe the main features of the Code of Ethics. Ethics do not consist primarily in the application of formal rules but rather in the maintenance of a responsible attitude in the exercise of journalistic duties:

Providing accurate news

The media should give accurate and objective news. Facts should be checked carefully and readers should be able to distinguish between statements of facts and comments. Newsbills, headlines and introductory sections should be supported by the text.

Treating replies (rebuttals) generously

Factual errors are to be corrected when called for. Corrections and replies shall be published promptly. Papers are informed that a reply does not always need an editorial comment. The newspaper should not take advantage of the fact that it can always have the last saying in a debate.

Respecting individual privacy

The press is asked to carefully consider giving publicity in cases where it can trespass on an individual’s privacy. Such publicity should not be given unless it is obviously in the public interest and public attention is called for. Though gossip can be of interest for many people it is not considered to be of public interest. There is a public interest when it is crucial that certain information is given to the general public. One of the most common, as well as the most difficult, tasks for the Press Ombudsman is to decide what is to be considered of public interest.

It is not considered to be of public interest when an ordinary citizen has committed suicide or has made an attempt to commit suicide. If on the other hand a leading politician, an artist or an industrial manager commits suicide it can be of public interest.

The press should always show the largest possible consideration for victims of crime and accidents. Names and pictures should carefully be checked, out of consideration for the feelings of relatives and the victim himself. The press should always make sure that the relatives of the victim of a crime or an accident have been notified before publishing any information about the victim. Out of consideration for the relatives, it is extremely rare that a picture of the victim of a fatal accident or a crime is published in the Swedish papers.

A very important part of the Code of Ethics tells the press to not emphasise race, sex, nationality, occupation, political affiliation or religious beliefs if such particulars are not important in the context. Information of this kind can be published if it is considered relevant.
Exercising care in the use of pictures

Where applicable, ethical rules also apply to pictures. It should always be stated, close to the picture, whether it has been altered by “montage” or retouching. A picture that has in any way been altered should never be allowed to mislead the readers of a paper.

Listening to each party

One of the cornerstones of Swedish press ethics is to listen to all parties. People who are criticised in a factual report should be given the opportunity to reply to the criticism at the time when the report is first published.

In the eyes of the law a suspect of an offence is always presumed to be innocent until he/she is proved guilty. The press can write about a person who is suspected of having committed a murder, but the person cannot be called a murderer until proven guilty in a court of law.

Being cautious in publishing names

The press should give careful thought to the possible harmful consequences for individuals when their names are published. The press should refrain from publishing names unless it is necessary in the public interest. I will give an example. If an employee is responsible for a minor theft there is no public interest in publishing his name. But if the head of the local court or a local politician is caught for the same reason, it is in the public interest to publish his name. The reason is that such a person holds a position where he is supposed to respect the law. One might come to a different conclusion regarding the same offence depending on who committed the crime.

Who is the average person addressing the PO and what are the main reasons for disapproval of the press?

Since the press, for obvious reasons, often write about public figures, for example politicians, union leaders, artists and celebrities, some of these choose to file complaints. But as I mentioned before, public figures must put up with extensive scrutiny from the press and most people belonging to this group are aware of this. Most complaints are from ordinary citizens who do not have a powerful position in society.

All social groups file complaints. This can be illustrated by the fact that I have handled complaints from the royal family as well from as a homeless man in Stockholm.

The homeless man didn’t even have the opportunity of writing down his complaint. He simply visited the PO office in person and someone at the office helped him typing his complaint. A weekly paper had taken pictures of the man in the subway and described him as a beggar and an alcoholic. He had not given his consent and the description of him was wrong. The PO and the Council came to the same conclusion. The publicity identified him and the description was defaming. And even if the facts were correct - it was obvious that his conditions in life were poor - there was no legitimate public interest that could justify the defaming publication against his will. The paper was censured.

A proof of the general confidence in the non-governmental PO institution is that earlier this year the royal family filed a complaint, through the Marshal of the Realm, against a weekly magazine. The magazine had published manipulated pictures of the crown princess Victoria wearing swimsuits. The pictures were made from genuine pictures of the face of the crown princess that were put together with a model dressed in fashionable swimsuits. It was stated that the pictures were altered by “montage,” but a lot of readers got the impression from a quick glance that the pictures were authentic and that the crown princess had agreed to have her picture taken in swimsuits.

Public figures must put up with publicity even when it touches their private lives, but this “montage” had nothing to do whatsoever with the role of the crown princess in Sweden. No young woman, whether an ordinary student or a crown princess, has to put up with exploitation in this way. The magazine was censured, and the case attracted international attention.

Most of the complaints are from ordinary citizens all over the country. The papers are today facing tougher competition. In consequence, more and more papers ignore the rule on giving a criticised person the opportunity to reply. It is not acceptable that a person is criticised in a factual report without having the opportunity to reply at the same time. It is not enough to let the criticised person give his opinion several days later. The original article has, in the meantime, been left uncommented. This leads to an unwarranted suffering for the person in question.

A lot of papers have been censured because they have published factual errors. I do not refer to minor details, which easily can be corrected. No, this concerns cases where the news items themselves have proven to be wrong or misleading. This is simply a question of bad journalism.

Letters to the press are of good value for Swedish readers. These are texts written by persons who lack journalistic experience as well as knowledge on press ethics. It is for the editorial office to checkout for defaming information and see that this kind of material is not published. Sometimes private individuals wish to scandalise other people by publishing a letter to the press. The papers have, with remarkable frequency, been censured because the editor responsible for the letters to the press-section has been credulous or neglectful. Sometimes a person writes a letter to the editor in another person’s name. It happens that the paper does not check the source even when the contents are so remarkable that caution would be called for.

Dear audience, the Swedish model of press self-regulation may seem exotic and idyllic. But it should not to be understood as a simply philanthropic and idealistic activity. The Swedish people together with the Japanese and Norwegians are the highest purchasers per capita of daily newspapers in the world. In economic terms, the Swedish market for newspapers is remarkably large. This is partly due to the fact that citizens have a great confidence in what is written in the papers. People believe in the facts that appear in the papers. In countries where the trust in the press is lost, the purchasing of papers per capita is much lower. One example of this is Italy. By upholding the code of ethics the press is contributing to a large interest in the reading of papers.

One of the conditions for an efficient democracy is that the people are well informed on what is going on in society. From that point of view it is of interest to society that the press is reliable and available everywhere.

The local and regional morning papers hold a remarkably strong position in Sweden. A curiosity is that the reading of a newspaper on a daily basis is not linked to belonging to a certain social group. The local morning papers are read by people with low and high levels of education, and by people with high as well as low incomes. There are some alarming trends showing that people that are not well situated may turn to television and thereby give up reading a newspaper. This often leads to a choice of entertainment instead of information on society oriented questions. In Great Britain, for example, the popular sensation press is read by the lower classes, whereas the higher classes turn to the quality press. This leads to tension in the self-regulating system of the British press and several British governments have threatened to institute stricter legislation concerning the press if the so-called down-market papers do not comply with the ethical system.

As a former editor-in-chief, I would like to stress that it is much more complicated to edit a paper that will be of interest to all social groups, compared to editing a paper that appeals only to the elite or a sensational paper. These kind of papers turn to a well-defined and more uniform group of readers.

The press-ethical system is highly respected by the press in general. The system of self-regulation cannot work if, let’s say only 60 percent of the press supports the system, and the remaining 40 percent ignore the ethical rules. Then the government has to institute laws to make the non-observant press respect at least a minimum of ethical rules.

Everything seems to indicate that the press upholds high standards in this area. If the gap between social groups widens, some people fear that the gap in the news business will also widen.

I do not consider this a plausible scenario. The current problems we are facing in Sweden, as in many other countries, is related to publication on the Internet. The Internet is a form of global mass communication that does not follow the Swedish ethical rules for the press or even Swedish legislation. There is no responsible publisher and the person who has disclosed the information can be difficult to trace. Often this person does not live in Sweden. The publications on the Internet are out of reach for the PO, but so far the problem is only a minor one.

Finally I would like to express my opinion that I, as Press Ombudsman for the General Public, look upon the future with great confidence.

* * *

PROTECTING MINORS FROM VIOLENCE ON TELEVISION IN FRANCE:
VOLUNTARY RATING SYSTEM ADOPTED BY BROADCASTERS

Key-note speech by Mr François HURARD
Conseil Supérieur de l’Audiovisuel (France)
 

The question of violence on television is not new and anyone who is really interested in the subject will find plenty of relevant publications, studies and reports, dating back almost as far as television itself - and perhaps even further, since before television became the mass medium that it is today, there were similar concerns about cinema. Regrettably, such concerns were sometimes used to justify deliberate attempts for the purpose of control and censorship.

While the problem may be familiar, it seems that the vast amount of knowledge accumulated on the subject has not pointed the way to any clear or lasting solution.

The fact is that grey areas remain and are still openly debated: first and foremost, how does violence on television influence or affect the public? There is still the original polarisation between those who believe that screen violence (on television or in the cinema) invites imitation - or, at best, desensitises viewers to violent images - and the defenders of the “catharsis” theory, who claim that scenes of violence (particularly fictional violence) have the opposite effect, serving as a healthy means for individuals who watch them and thus reduce the incidence of violence in the real world.

Each side supports its arguments with academic analyses, statistics and sophisticated behavioural studies that render the issue more problematic than ever.

This ongoing (not to say endless) question has obviously weighed heavily in the latest and virulent public debate on the subject in the majority of democratic countries, where television has become the leading mass medium in terms of its impact on the population.

On one side of the debate there are those who see television at the root of all evils such as the rise of urban violence and juvenile crime; they want tougher laws on television programming and urge stricter controls on content. On the other side, there are those who defend freedom of expression, notably broadcasters, keen to preserve their programming discretion, and who argue that the link between television and violence is unproven.

In recent years, however, the debate has shifted onto new ground:

On the one hand, the deregulation of private-sector television and the abolition during the 1980s of public-service monopolies throughout Europe has encouraged the spread of certain types of programmes that are rated as violent - action series (often American in origin), genre films and Japanese mangas, for example, which were previously rare on television. Inevitably, questions then began to be asked about the impact of such programmes on young people and their possible role in the rise of juvenile crime and violence in schools. The debate was also fuelled by trends in Hollywood output, towards cult films such as those of Quentin Tarantino and Oliver Stone, and even more so by the pervasive presence of figures like “Terminator” and “Rambo”, and the tendency in television news towards a realist approach, reflecting true-life violence.

On the other hand, we have seen the parallel development of a new concern to protect minors from the upsurge in this type of programme - and a new set of problems relating not to prohibition or censorship but to the protection of a certain category of viewers, using means strictly proportionate to that objective and compatible with the principle of freedom of communication, in the spirit of Article 10 of the European Convention on Human Rights. Thanks to the experience already amassed in this area, particularly by the bodies responsible for rating cinema films - and the parallel adoption of texts on the protection of minors in the audio-visual media (the EU’s “Television without frontiers” directive, and specifically Article 22 thereof, or the Council of Europe’s European Convention on Transfrontier Television, for example), which have been transposed into national legislation in most of the countries of greater Europe - the debate has been re-launched on more clearly defined grounds, and its focus has sharpened.

Discussions about violence on television have thus taken a new direction. No longer theory-based, they now concern the implementation of principles for protecting minors with regard not just to television but to the media generally (including videotapes, CD-ROMs, and the Internet), and to different forms of content (notably pornography), as well as violent images.

The assumption that it is right to protect minors from some aspects of the media, for the sake of their moral and psychological equilibrium, is no longer questioned. Our societies have finally acknowledged - in the absence of clear proof to the contrary - that not every type of content should be on offer, or freely accessible, to minors; and that recognising the special nature of young audiences means requiring broadcasters to take special precautions with regard to programming. But the debate about the practical consequences of such an assumption – which measures should be used to achieve the aims in the legal texts - is very much alive.

Discussions now mainly focus on the principle of differentiating between types of content, according to the target audience - particularly different age groups among children and young people - and assigning a rating to programmes that are likely to shock minors. At the same time, emphasis has been placed on the different levels of responsibility for protecting minors - namely:

- the responsibility of the authorities, whose job is to outline reasonably detailed systems for the protection of minors with regard to the media and to ensure that these systems work and are respected, but are not misused to curb public freedoms. For the most part, European countries that have regulatory bodies for the audio-visual sector have delegated this task to them - the protection of minors being, as a rule, one of their duties;

- the responsibility of broadcasters’ in their choice of programmes (which no one else can have in a system based on freedom of communication);

- parents’ responsibility for the way their children are allowed to watch television;

- lastly, the responsibility of schools, which can teach children how to read images and understand them better.

These are the four levels of responsibility that today offer the key to effective measures for protecting children from television violence.

Various theoretical approaches have recently been proposed and debated, although not all have been tried.

Broadly speaking, proposals have centred on two options that are quite different in terms of the responsibilities they entail. One is the “anti-violence chip” system, invented in Canada and adopted by law in the United States. Based on the principle that access to programmes can be blocked using a device built into the television set, this option places the responsibility for protecting minors entirely on parents, who decide whether or not to deny their children access to certain programmes. Another aspect of this system is that it can only be implemented gradually, and it will be several years before all television sets are equipped with the electronic blocking mechanism. The second option - which does not preclude the first but has the advantage of being applicable immediately - is based on programme ratings and time restrictions linked to rating. These two principles are the basis of the system for the protection of minors that was introduced in France almost two years ago - and has since been the subject of ongoing evaluation.

It was at the end of 1996, in response to a call from the Conseil Supérieur de l’Audiovisuel (CSA) - the regulatory body for the French public and private-sector audio-visual media – where broadcasters introduced a new system for the protection of minors.

Developed jointly during 1996 by all national broadcasters under the umbrella of the CSA, the system is the result of a mutual undertaking by all the television channels, which was written into the agreements between the CSA and the two private channels, TF1 and M6, when their broadcasting licences were renewed in July 1996. It was also added as a rider to the agreement with Canal Plus and included in the operating conditions of the publicly owned channels, France 2 and France 3. It thus legally exists as a contractual condition between the television companies and the audio-visual regulatory body.

The package of measures which came into force in mid-November 1996 and are seen as an alternative to the anti-violence chip, has already been evaluated by various observers including the CSA itself (which monitors how broadcasters apply the system), viewers’ associations and researchers. At a time when a number of countries are seeking better ways of protecting minors from violence on television, without falling into censorship, the French experience has attracted a good deal of interest abroad. I intend to describe the initial results of the experiment but I shall begin by outlining the main features of the system and the various steps in its conception.

A necessary response to the problem of violence on television

Violence on television first interested French public opinion a number of years ago, at least as far back as 1987 with the advent of private-sector television, and possibly earlier because much had already been written about the effects of screen violence on young viewers’ sensibilities and behaviour.

When the CSA was set up, it was given legal authority to ensure the protection of children and young people with regard to programming by audio-visual communication services, and was entrusted with this sensitive task. It is one which involves maintaining a balance between the legitimate wish to protect young viewers from the violent images to which television can expose them on a regular (or even excessive) basis and the need to respect broadcasters’ editorial independence and refrain from interfering in their choice of programmes - in short, the need to ensure freedom of audiovisual communication.
It may be useful to begin with a few words about the task and powers of the CSA, and its resources. It is an independent authority with nine members, appointed for a term of six years (three by the President of the Republic and three each by the speakers of the upper and lower houses of parliament) and a staff of 250.

It is responsible for all public and private-sector audiovisual communication services, including radio as well as terrestrial, cable and satellite television.
Its main tasks are:

- to allocate frequencies throughout the national territory;

- to issue radio and television broadcasting licences;

- to monitor all licensed services both at a technical level (ensuring that radio stations stay within their authorised signal strength) and with regard to content (ensuring observance of various programming obligations - on plurality of news sources, programme ethics, quotas of French and European-made programmes - and rules on advertising and sponsorship, etc);

- to sanction both private-sector and public-service broadcasters for non-fulfilment of their main obligations;

- to appoint the heads of the public-service radio and television companies.

This is a very wide remit, but it should be noted that the CSA has no power to make regulations: its job is to apply the laws passed by parliament and the regulations adopted by the government, and it is authorised to make recommendations only with regard to the implementation of existing legislation.

How the CSA exercises control over audiovisual media programming

The main way in which the CSA monitors broadcasters’ observance of programming ethics - and thus carries out its task of protecting children and young people - is by scrutinising what is shown.

It is not the role of the CSA to intervene in programming “upstream”, but it can monitor the entire output of radio and television broadcasters. Every year, almost 50,000 hours of national terrestrial television output are recorded and selectively viewed. It is on the basis of this “a posteriori” monitoring that the Council may see fit to intervene with broadcasters. Obviously, viewers’ complaints reinforce the monitoring function.

Power of recommendation

Although it does not have the power to regulate, the CSA can issue recommendations, guidelines or circulars to broadcasters. It can also address comments or warnings to individual radio or television broadcasters in its annual evaluation of their output or when it publishes its annual report – which has a section on programme ethics.

The main reasons for CSA action on programme ethics

With the launch of new private-sector channels in France in 1987, the long-standing debate about violence on television flared up afresh.

In the new programming style imposed by the private-sector channels, keen to build sizeable, regular audiences as quickly as possible, a significant proportion of schedule time was filled by programmes rated as violent or having a high erotic content.

One possible explanation for this strategy is probably the fact that television (unlike the emerging video industry), with its public-service monopoly position, had until then shown almost no programmes of this type.

The emergence of violent or erotic programmes could thus be seen to reflect the deregulation of broadcasting. The target audience was interested in a new genre (in the sense of “genre films” - the heading under which television professionals class violent and erotic material), that had not previously been seen on television. In short, the attraction was that of novelty.

The second reason for such a strategy is the fact that such programmes are generally cheaper than high-quality output - dramatically violent scenes being used, in many cases, to mask a poor script or weak acting.

These were the circumstances that prompted the CSA to act against excessive violence and sex on television by issuing guidelines on the protection of children and young people, in May 1989.

After the initial excesses of the privately owned channels, between 1987 and 1989, when there was an ill-controlled rise in violent programmes in peak viewing hours - severely sanctioned at the time by the CSA (its two forms of sanction were the imposition of fines or the requirement that statements be broadcast by the offending channels) - the broadcasters began making real efforts to correct the situation. The statistics on prime-time feature films serve to illustrate the trend:

- whereas in 1988 broadcasters showed 93 12-plus films and 21 16-plus films at 8.30 pm, in the 1990s, spurred by the CSA, they cut the number of adult-rated films in prime time to an average of 12 a year, out of a total of some 500 films in this slot.

- after the CSA had imposed sanctions in a number of cases (fining broadcasters between FF 2 million and FF 5 million for showing violent films at 8.30 pm, or requiring them to broadcast compulsory statements), the private-sector channels took steps to control their programming better and reschedule certain programmes for screening after 10.30 pm. One channel created a FF 100 million reserve to cover losses due to the fact that the television films it had bought were no longer considered suitable for early-evening screening; another employed three psychologists to view certain cartoons, including Japanese productions, before they were broadcast; and so on.

As a result, the CSA has been able to report a relative improvement in the situation and a decline in screen violence in the 1990s.

The public, however, sees things differently.

Not only have opinion polls consistently shown that the vast majority of viewers think television is too violent, but growing concerns about juvenile crime and violence in schools have been accompanied by a tendency to point the finger consistently at television. Research conducted in 1995, for example, showed that more than 80% of the French viewing public wanted restrictions on small-screen violence and thought television “too violent”.

Clearly, despite genuine efforts by broadcasters, the general public still took the view that programmes contained too much violence.

A study carried out by the CSA in 1994 (the first of its type in France) was useful in helping to analyse and explain - if not justify - the way viewers assessed television programmes.

Based on a sample of non-factual programmes on four French channels over one week, the study did not conclude that French broadcasters were screening extremely violent programmes. On the other hand, it did highlight the frequency of acts of violence in the course of the programmes, and this may partially explain the viewers’ reaction. The findings were as follows:

- there was an average of 9.5 violent acts per hour;

- 35% of the programmes studied contained more than six aggressive or criminal acts;

- 58% of violent fictional programmes were made in the USA (and only 7% in France);

- 70% of the violent sequences were on private-sector channels.

The results of this study and the reaction to it - along with pressure from the public and parliament - spurred the CSA at the end of 1995 to embark, with the broadcasters, on a joint effort to resolve what had become a highly contentious problem.

The aim was to produce a number of simple but clear rules for self-regulation, applicable by all broadcasters and evident to viewers - who, to some extent, were being asked to become involved in the initiative.

The approach was intended to be constructive rather than repressive, and was based on what might be termed “joint regulation”. In other words, the regulatory authority was encouraging the broadcasters to propose a sort of code of conduct, allowing the professionals themselves to determine the ethical ground-rules (often preferable to externally imposed rules). It would then be the regulator’s job - using the legal means at its disposal, including monitoring and sanctions - to see that those rules were observed.

The “joint regulation” option: commitments to protect young viewers

In July 1996, after numerous exchanges and discussions, the joint process undertaken by the CSA and broadcasters in November 1995 produced a text containing a set of provisions. These were formally incorporated into three articles that were included in the new agreements between the CSA and the two private-sector channels TF1 and M6, signed on 31 July 1996, and in a rider to the agreement with Canal Plus. They are also to be appended to the operating conditions of the public-service channels, France 2, France 3, La Cinquième and RFO. Eventually the same provisions will also apply to local stations and cable and satellite broadcasters (with certain variations according to whether or not programmes are coded).

The scheme involves four main commitments on the part of broadcasters:

- that programmes shown between 6 am and 10 pm will be of a family nature;

- that each channel will systematically rate its fictional and documentary programmes.

I. suitable for a general audience;

II. programmes including scenes likely to shock young viewers;

III. films rated 12-plus and programmes - particularly those with storylines that regularly or repeatedly involve physical or mental violence - which are likely to shock young viewers;

IV. films rated 16-plus and erotic or very violent programmes likely to be detrimental to the physical, mental or moral development of young people under 16;

V. programmes of a pornographic or extremely violent nature, likely to be gravely detrimental to the physical, mental or moral development of minors.

It is the task of a viewing committee within each broadcasting company to rate all relevant programmes according to this system. The structure of the committees set up by the various channels differs: whereas those at TF1 and France 3 comprise heads of programming units and members of staff responsible for programme-rating within those units, France 2 has not only set up a similar body but also intends to consult a committee of external experts. M6, on the other hand, has formed a consultative committee of mothers aged 25-45, attached to the office of the director of programmes.

- that a common system of symbols will be introduced, enabling viewers to see how
programmes are rated:

- that programmes with certain ratings will be scheduled only at certain times, as follows:

Two further commitments concern:

- trailers containing scenes of violence, which the broadcasters undertake not to screen before or after children’s programmes and, in the case of certain trailers, not before 8.30 pm;

- violent or distressing images that may be included in news programmes: in such cases, viewers must be warned in advance.

This system has been operating since 18 November 1996 and has been widely publicised among viewers, particularly with regard to its most practical aspect, the use of the rating symbols on screen and in programme listings. Most publications that carry listings (including daily newspapers and TV magazines) now use the symbols.

The thinking behind the system

A single principle: the protection of children and young people

The aim of the system is strictly limited to the protection of minors. This is the principle on which the CSA was authorised to monitor programming (under Article 15 of the amended law of 30 September 1986, which it empowers it to “ensure, in the programming of the audiovisual services, that children and young people are protected”).

Proportionate measures to implement the principle

The measures used to implement the aim must be proportionate: in other words, they must not interfere with freedom of expression, a principle laid down by law, which prevents the CSA from resorting to any measures that might amount to a form of censorship or “upstream” control of programming.

In this respect, the most important element of the system introduced by the broadcasters at CSA’s request is not so much the programme symbols (useful though they are), but the fact that programmes are rated and scheduling is accordingly restricted, with the sole purpose of protecting young viewers.

The need for all concerned to take responsibility

The entire system depends on broadcasters, parents and the regulatory authority taking responsibility for making it work.

- The broadcasters bear the fundamental responsibility because they have full editorial control over their output. The fact that a regulatory body, by itself, could not conceivably rate all the programmes broadcast (in addition, the 50,000 hours broadcast annually on terrestrial television, cable and satellite will soon reach 445,000 hours) only serves to emphasise the broadcasters’ key role in the system for protecting minors.

It is particularly important that programmers exercise their responsibility because only they are in a position to ensure that programmes are shown at suitable times for their intended audiences.

- Parents have an equally crucial responsibility. It is up to them to guide their children in choosing programmes, and they must therefore be aware of programme content: this is the first purpose of the rating symbols. It has been suggested that, in the case of children left to their own devices in front of the TV set, the symbols could work as an attraction to certain programmes rather than a deterrent. This would seem to be a fallacious argument, as it is reasonable to suppose that children who watch a programme in the knowledge that it is unsuitable for them do not watch it in the same way as they would in the absence of such a warning. It is clear, however, that any studies of how children react to rating symbols will be very valuable in assessing the effectiveness of the system.

- Finally, the regulatory authority is responsible for ensuring that broadcasters fulfil all the commitments they have taken on the protection of minors, and for penalising any shortcomings in this regard.

The legal enforceability of the system

As well as being practical, the system introduced by the French channels has the advantage that it is actually enforceable in law: the fact that the commitments given by the broadcasters are included in contractual agreements gives them the nature of obligations that must be fulfilled or else sanction could follow. In order to keep a close watch on the way broadcasters apply the system, the CSA has set up a standing observatory on rating symbols, through which it can monitor the day-to-day rating of programmes by the various channels and discuss certain rating or scheduling choices with them. The work of the observatory has laid the grounds for the first evaluation of the rating system and the broadcasters’ use of rating symbols since November 1996.

An initial evaluation

One of the most positive aspects of the system is the fact that it allows scope for debate about screen violence and the rating of programmes according to content, which is becoming a universal concern.

As it had undertaken to do so, the CSA made its first evaluation on the use of rating symbols in December 1997, a year after the system had been introduced. It presented its findings to a conference of television programming directors, representatives of viewers’ associations, education and legal experts and others. The CSA evaluated the broadcasters’ use of the system in both quantitative and qualitative terms and proposed ways in which it could be improved.

Broadcasters’ use of rating symbols, and rating practices

Among the most interesting points to emerge from the evaluation was the way in which the system of symbols and programme ratings could help to provide a clearer idea of the extent of violence in television programmes. Out of 12,300 fiction programmes shown in one year on the six channels using the symbol system, only 984 (8%) had not been rated in the “general audience” category and therefore had to carry a symbol warning.

However, the proportion was higher in the evening: 25% of fiction programmes shown at 8.30 pm and 60% of those shown after 10 pm carried a symbol warning.

The figures for the national origin of programmes by rating category were also interesting, confirming that American-made programmes still contain the highest proportion of scenes unsuitable for minors. While 221 of the programmes that carried a symbol warning were made in France and 109 in other European countries, the remaining 654 (66.46%) originated elsewhere, that is to say mainly in the United States.

The figures also facilitated comparison between the channels according to the proportion of non-”general audience” programmes they put out in a year.

The public-service channels showed few such programmes and it was on the private-sector channels that they appeared most frequently, especially on those channels whose output includes a high proportion of fiction (feature films in the case of Canal Plus and series and television films on M6). France 2 was the channel with the lowest proportion of programmes carrying a warning (57 in all), followed by France 3 (with 70), while the private-sector channels showed violent programmes much more often: on TF1, 236 programmes carried a warning; on Canal Plus, 351; and M6 headed the list with 621.

Throughout 1997, the CSA monitored the channels’ rating practices exhaustively, viewing all rated programmes (the figures for programme ratings were compiled from the CSA’s own database). In the case of only 10% of rated output did the CSA consider that programmes had been placed in the wrong category (i.e. given too low a rating). The programmes concerned included certain episodes of the American series The X Files, on M6, and of the BBC series Prime Suspect on France 2.

How viewers have reacted to the symbol warning system

As well as statistically assessing how the broadcasters were rating programmes, the CSA evaluated viewer reactions to the rating-symbols system, using not only the findings of the many opinion polls on the subject, but also those of a qualitative study carried out with groups of parents and children in November 1997.

The findings of the various polls conducted in 1997 were very positive, both with regard to viewers’ awareness of the symbols system (80% of respondents knew about it) and in terms of how useful and coherent they considered it as a means of protecting minors (63% found it “very useful” or “quite useful”).

In a specific poll conducted with a group of children aged 8-14, 75% said that they found the symbols system useful and referred to it when deciding what to watch.

A third study showed that the proportion of viewers aged 4-10 in the audience for prime time French television dropped significantly (-35%) in the case of programmes carrying a warning symbol.

The research also revealed that most adults had not properly grasped the meaning of the symbol for programmes in category II - a green circle, indicating that “parental guidance” should be exercised. For most adults, the colour green was associated with traffic lights, where it indicated “permission to proceed” - not quite its intended meaning in the context of the category II symbol.

The CSA’s qualitative research with groups of parents and children confirmed the existence of this misunderstanding. It also showed that parents wanted to see the system improved (not only by changing the green symbol to prevent mistakes, but also by keeping the symbols on screen for longer).

How the symbols system affects family viewing patterns

The second part of the CSA’s evaluation focused on how the symbols system affected family viewing behaviour.

The research revealed the principles and practices on which programme choices, for adults and children, were based.

Many parents said they felt they could trust the programme schedules: the times at which programmes were screened were useful indicators of whether they were suitable for all the family or for adults only. Viewers commented: “You know where you are from day to day, you know that violent programmes won’t be on during the daytime”; and “At any rate, violent films and programmes with sex scenes are on late at night.” The press also plays an important role as the main tool for selecting what to watch.

In the case of children, it was clear that they knew a great deal (more than their parents) about television schedules: many knew the order of programmes on all the channels, and they were clear not only about which programmes were intended for them, but also about what their parents thought that they should or should not watch.

Children also mentioned the important role that schools played in indicating what was suitable viewing (teachers advised them to watch, or not to watch, certain programmes).

Asked what they thought of the symbols system, both parents and children indicated, firstly, that they knew about it. All were aware of its existence, the children more so than the parents - “We’ve had the warning symbols for a year now. It’s extra information in the programme listings,” was a typical comment. The system introduced by the CSA is recognised as being consistent and logical.

The study underscored the ambiguity of the green-circle symbol (recommending parental guidance) for category II programmes. Parents commented: “The green circle is like a green light, so you think ‘that’s OK’”; and “We know that green means it’s for a general audience.”

Both parents and children said, during the study, that they expected the symbols system to be improved.

The parents particularly wanted the on-screen warnings to be reinforced by a sound signal (“a voice alert as well as the symbol”) so that, in the case of programmes where the symbol did not remain on screen throughout, they did not necessarily have to be in front of the set to catch the warning. They also wanted to see the symbols more widely used for non-fiction programmes with problematic content - “They should be used on documentaries so that we realise what sort of thing we’ll be watching”; “War and prostitution can be shocking too”.

Children also suggested the use of sound signals along with the symbols, and proposed that picture icons could indicate programme content: “For instance, for an action programme, you could show a gun.”

CSA proposals: improvements and changes

Following the evaluation, the CSA made various proposals to improve the protection of minors in relation to the media: some addressed the television programme-rating system and the use of warning symbols; others concerned means of access to images (videotapes, video games and Internet services) that are currently used by minors and are subject to little or no regulation. It was felt that it would be pointless to apply strict protection measures to television if children and young people were free to watch videotapes or play computer games with violent content unsupervised. In fact, the number of young television viewers in France has fallen in recent years, as numbers using other media have risen. If the protection of minors is to be effective, it must have a multi-media dimension.

Finally, by including the issues of media education and education about images, the proposals emphasised that action to educate the public and schoolchildren should complement the measures taken by programmers, so that children and young people can develop a critical instinct in relation to the images and programme content to which they have daily access.

Some of the new proposals have already taken effect: instead of the green warning symbol, it is now a blue one that appears, and the various symbols remain on screen for longer.

- Previously, the green symbol appeared for only 10 seconds at the beginning of a programme; the blue symbol that has replaced it is now shown for at least 60 seconds at the start of the programme and for at least 10 seconds after any advertising break, and a text warning that the programme requires parental guidance must also appear, beside the blue circle, for at least 10 seconds at the start.

- In the case of programmes in category III, the orange symbol must now remain on screen throughout the programme and a text warning that parental approval is essential must appear for at least 10 seconds at the start.

- Finally, with regard to trailers, the rating symbol for the programme concerned must remain on screen throughout.

These changes took effect, and the new symbol was introduced, on 31 August 1998.

The French system is therefore an ongoing experiment, which deserves to be monitored, reported on and studied, and it probably constitutes ideal terrain for observers keen to resolve the problem of how to protect minors with regard to television.

The debate about television violence is by no means over. Every week that a crime involving minors occurs in France, television is made the scapegoat. This somewhat simplistic reaction is often a means of side-stepping deeper analysis or questions that might take us further, as regards the causes of juvenile crime, than we can go with the inadequate theory - given current, inconclusive research findings - that the influence of images is the only factor. At the same time, thanks to the measures that have been taken, there is a new context in which to analyse the degree of responsibility borne by television, and programme-rating and scheduling can now enter into the debate in a practical, statistically quantifiable way.

Other European Union countries are currently studying the French model. There is no doubt that, although it may be difficult to harmonise regulations at European level, co-operation and on-going dialogue on the question of protecting minors, and on the impact of the relevant measures taken in various countries, are potentially valuable. A number of countries (including Belgium and Greece) have already said that they intend to adopt all or part of the French symbols system. Given that violence on television is a world problem, international co-operation on the issue clearly has significant potential in terms of research and the quest for effective, lasting solutions that will marry the aim of protecting minors with the principle of creative freedom.

* * *

HANDLING UNFAIR TREATMENT (DEFAMATION) OR INVASION OF PRIVACY COMPLAINTS WITH SELF-REGULATORY MECHANISMS

Key-note speech by Mr Norman McLEAN
Broadcasting Standards Commission (United Kingdom)
 

Introduction

In the United Kingdom, it is necessary to start from the premise that broadcasting, unlike the press, is subject to statutory regulation.

The Case for Regulation

The potential power and influence of broadcasting was recognised by politicians from the outset. They wanted to ensure that news was accurate and impartial.

Spectrum scarcity provided the perfect opportunity to restrict the opportunity to broadcast. It was held by the BBC alone up until 1956. And along with that desire to keep a close eye on factual coverage, went a concern with morality which mirrored society’s approach to other forms of media.

Those two central concerns -political and social - have remained with British broadcasting all along. They were part of the establishment of ITV and Channels 4 and 5. Regulation persists despite the explosion of choice offered by cable and satellite, or the growth of commercial radio. The extent to which it will continue into the digital and converged world of the future is currently the subject of examination and debate not only in the UK but throughout Europe and, indeed, globally.

In relation to the UK, some would argue that statutory regulation will continue. This is partly because broadcasting will remain a very significant player for some time to come, terrestrial television will hold at least 75% of viewers up to 2005; partly because of the anxieties which continue in relation to the influence of broadcasting in confirming trends within society as well as reporting them; partly because people still seek some degree of social cohesion and consensus; and partly because there are genuine concerns about children, and how broadcasting may shape them as citizens.

It is not easy to overturn, nor perhaps is there a desire to do so, a cultural tradition which expects some measure of regulation as a means of ensuring that certain standards are set and that values are safeguarded. The creation of the Broadcasting Standards Commission was to provide statutory guidance to all broadcasters - public and private - across radio, television, cable and satellite, while enabling people to seek redress through a complaints process if they felt they had been wronged by the broadcasters.

But whose values are we seeking to protect? Last year, the Commission published a very detailed look at what people thought of regulation in a world where values were changing.10 It found that the audience divided roughly as follows:

- 63% were those who felt that the purpose of the state and regulation was to develop the good character of its citizens
- 16% were those who felt that the purpose of the state was to protect and promote freedom for its citizens
- the middle 21% were those who moved between the two classic poles.

The Role of Government

The first duty of Government is to create a framework which enables broadcasting to be conducted in a democratic manner without Government interference. Thereafter its role is to consider not only the interest of the broadcasting industry and telecommunications industry but also the interests of the consumer. It needs to consider what its public policy objectives are in relation to these various interests and how they will be achieved. When these matters have been determined, it needs to assess what regulatory approaches are likely to be necessary and to provide a suitable framework to take them forward.

It is not the Government’s role, however, to play a part in any regulatory system governing broadcasting, whether it takes the form of statutory regulation over the content of programmes or whether broadcasters are permitted to broadcast material without any oversight by an independent regulator.

In any statutory regulatory system, independence is the key element. To avoid Government interference in broadcasting, the regulatory body must be independent, and be seen to be independent, of the Government. It must also be independent of the broadcasting industry.

Finally, the Government should ensure that the rights of the citizen are no less important than any rights given to the broadcasters.

The Role of an Independent Body

In the United Kingdom, the Government decided in 1981 that there was a need for an independent body - independent of Government and the broadcasting industry - to consider complaints about unjust or unfair treatment in programmes, or an unwarranted infringement of privacy in them. Previously, it had been left to the broadcasters themselves to investigate such complaints, but there was increasing concern that this procedure lacked the necessary degree of independence.

The body was established as the Broadcasting Complaints Commission, and it subsequently merged with the Broadcasting Standards Council in April 1997 to form the Broadcasting Standards Commission. In the Commission’s direct experience and the lessons learned from other regulated sectors, there is a need for a body with a clearly defined independence in which citizens and consumers can place their trust, especially when it comes to complaint and redress.

In view of the continued influence which broadcasting will have on society, irrespective of the technological means of delivery, the consumer needs a right of access to a body which is independent of any responsibility other than to consumers and the rights of individuals, and:

- which has no editorial duties nor responsibility for any broadcasting operations, nor the close supervision of them

- which covers all broadcasting services, as opposed to merely a part

- is independent of management responsibility, or licensing considerations

- is able to advise on the basis of its research in addition to its own deliberations based on complaints

- can provide an independent means of redress on content across matters of standards, fairness and privacy which in time could take into account different methods of carriage.

The Functions of the Broadcasting Standards Commission

This paper deals only with the functions of the Broadcasting Standards Commission in relation to its work on fairness and privacy matters; it does not comment on its functions concerning the portrayal of violence, sexual conduct and matters of taste and decency.

The Commission consists of thirteen Members, appointed by the Secretary of State for Culture, Media and Sport. They act as an advisory body to broadcasters through the preparation of a Code of Guidance on fairness and privacy matters and through commissioning research into the subject. They also have an executive function through their consideration of complaints about individual cases of unfair treatment or unwarranted infringement of privacy. It is a route which is free to the complainant.

The Code of Guidance

In the Fairness and Privacy Code, the Commission has tried to balance two difficult and sometimes competing interests. On the one hand is the basic right to freedom of information and expression. On the other is the clear responsibility of both journalists and broadcasters to behave fairly and not to infringe a citizen’s right to privacy without good and sufficient reason. Both interests can be found in Articles 8 and 10 of the European Convention on Human Rights.

The Commission has sought to articulate in the Code important principles which it believes are helpful to potential contributors to programmes as to the treatment they can expect. But the Code is aimed primarily at broadcasters and to provide guidance on what can reasonably be expected of them.

First, the basic rules of fair dealing are set out. Programme makers must make clear from the outset the nature of the programme and the contribution someone is expected to make; the areas of questioning, the nature of other potential contributions, whether it is going to be edited and so on.

The importance of accuracy is stressed, especially in matters capable of affecting reputation. Emphasis is also given to the right to be able to respond to allegations of wrong doing or incompetence. The risk of distortion by the unfair selection or juxtaposition of material is also commented on.

The Commission is particularly conscious of the potential danger of trial by television. Consequently, it has set out what it believes are the ground rules for fairness, especially where damaging allegations are to be made.

The Code then addresses the issue of privacy. In this part also, the Commission has attempted to state important principles to underpin an ethical framework, for example:

“Any infringement of privacy has to be justified by an overriding public interest in disclosure of the information. This would include revealing or detecting crime or disreputable behaviour, protecting public health or safety, exposing misleading claims made by individuals or organisations, or disclosing significant incompetence in public office.”

These are, of course, only examples and not an exhaustive list But the need to satisfy an overriding public interest is, we believe, a demanding, but appropriate, test.

In relation to privacy, the Code also emphasises that the means of obtaining the information must be “proportionate to the matter under investigation”. As it considers the cases which come before it, the Commission will certainly be looking very hard at whether or not the behaviour of the programme makers was proportionate to the issue being reported or investigated. This is especially relevant to the use of hidden microphones and cameras.

Advice is also provided on the issue of “doorstepping” - a particular means of obtaining information from those generally unwilling to give it. In some circumstances, it may be a legitimate tactic.

Part of the Code comments on suffering and distress and the desire to ensure that vulnerable and suffering people should not have their distress increased by intrusive journalism.

Similarly, in an item on children, emphasis is given to the vulnerability of children and the belief that children “do not lose their rights to privacy because of the fame or notoriety of their parents or events in their schools”.

The Code does not prevent the Commission from considering each individual complaint on its merits, although the content of the Code needs to be taken into account in the consideration given to any complaint. In the Commission’s view, the Code provides a clear framework for the reasonable expectations of fair treatment held by both parties.

An important feature of the regulatory framework is that the general effect of the Code must be reflected in any guidelines drawn up by the broadcasting regulators themselves.

Research

Although the Commission (and the former Broadcasting Standards Council) has undertaken extensive research projects into broadcasting standards, it is only recently that it has been able to commission research into the areas of fairness and privacy. In the research it conducted into changing values, the issue of privacy was regarded by many people as very important. As might be expected, they were generally more keen on protecting the privacy of ordinary people rather than those more in the public eye, especially - in the case of the latter - if they had brought it on themselves.

The Commission also wants to conduct research into informed consent. That is, whether members of the public understand fully the potential consequences of participating in a programme. It can be easy for broadcasting professionals for whom television is a daily experience to forget that, for many others, contact with the production process and appearance on the screen is a once-in-a-lifetime experience, which some might live to regret. Andy Warhol’s dictum of “famous for 15 minutes” takes no account of the length of time which some may take to recover from the intense experience of that exposure. Do they always understand what they are getting into? Have they given truly informed consent?

As a result, the Commission needs to understand better the experience and the viewpoints of those who make an appearance in programmes. It should help to provide a better insight into the means that are used to involve people in the programme-making process and indicate whether further safeguards are needed.

Handling of Complaints

Complaints about unjust or unfair treatment must be made by a person who has either taken part in the programme and been the subject of the alleged treatment or has had a sufficiently direct interest in the subject matter of that treatment. In the case of unwarranted infringement of privacy, it must be the privacy of the complainant which has been infringed. In other words, a third party cannot complain just because he or she believes that a person has been treated unfairly or has had their privacy unwarrantably infringed. It must be the person affected, which can cover an individual, association or corporate body.

It should be stressed at this stage that unfair or unjust treatment does not encompass allegations of bias or lack of impartiality.

Where the Commission receives a complaint within its remit, the initial procedure is as follows:

- the complaint is copied to the broadcaster for its response
- the complainant is then sent a copy of the broadcaster’s response to enable him or her to submit any further statement
- the complainant’s further statement is copied to the broadcaster who is invited to make a final response, if it wishes.

The Commission then considers the complaint, either at a hearing or, at its discretion, without a hearing. Hearings are held in private. The complainant and a representative of the broadcaster are invited to attend and to make their case. They can be legally represented if they wish. The complainant is able to make an opening statement, followed by the broadcaster. They will then be questioned by the Commission in an attempt to clarify and resolve any facts in dispute. The parties may also question each other. At the end, a closing statement is made by the broadcaster, followed by the complainant.

At the conclusion of each complaint, an adjudication is reached by the Commission, either upholding the complaint, upholding it in part, or not upholding it. A copy is sent to the complainant and to the broadcaster. If the complaint is upheld or partially upheld, the Commission may direct the broadcaster to publish a summary of the adjudication on television or radio and in the press - at the expense of the broadcaster. This is, effectively, redress for the complainant.

There are no other sanctions open to the Commission. It has no power to order any financial compensation, to order an apology or correction, or any other remedy.

In view of the Commission’s policy towards transparency and accountability it publishes all its adjudications and the reasons for them. The body of decisions - the published “case law” of the Commission’s decisions - together with the published results of research will therefore provide broadcasters with an idea of what is or is not likely to be acceptable, first to the citizen and second to the Commission.

The Effect of the Commission

Does the commission inhibit creative freedom or freedom of speech? To some extent every statutory body has a chilling effect - that is presumably what Parliament intended. But the Commission’s powers are limited.
And, of course, broadcasters can ignore its advice. The Commission does not seek any greater power It has no right to preview broadcasts. It is an advisory body, not a censor. It has no power to prevent re-broadcasts of a programme complained about.

From time to time, broadcasters react against a particular judgement. But they understand that the Commission’s role is about establishing a framework as to what is acceptable, and ensuring, amongst other things, that participants in programmes give their consent to appear based on sufficient information. Their informed participation should not then give rise to allegations of unfair treatment.

The Responsibility of Broadcasters

At the heart of public service broadcasting in the United Kingdom lies the mission to inform, educate and entertain. Behind them are fundamental ethical and social considerations. Social responsibility may not be a term which springs readily to the lips of broadcasters, but it is an important issue.

The notion of providing information is underpinned by a commitment to telling the truth about what is happening in the world. The first duty is to ensure that reliable, significant and accurate information is being given in a way which satisfies the public’s need and right to know. Alongside that goes a duty to be fair and as impartial as any human institution can be in presenting the facts and ensuring that a wide range of voices is heard engaging in the national debate. It may be a simple and obvious statement, but without a fundamental commitment to telling the truth and being trusted, broadcasters have no right to impart information.

Broadcasting also has a duty to support people’s aspirations, to raise their sights and to provide challenging material which, hopefully, they will come to appreciate and enjoy. There is an educative and educational point to it all.

People also want to be entertained by broadcasting. The role of public service broadcasting in this context is, arguably, to find, develop and nurture the best whether it is a musician, comedian, writer, actor and so on. It needs to sustain and support the national culture.

Can these canons of broadcasting continue to exist, let alone extend into the digital world? Is it any longer possible or even credible to think of broadcasting as serving a public as opposed to a merely private purpose?

Regulatory frameworks are still in place but the emphasis is much more on financial probity, commercial good practice and technical specification than on quality and diversity, let alone the ethics of programme making.

Despite all of these conflicting messages and a potential explosion of choice, broadcasters need to maintain a continuing sense of responsibility given the importance and influence of their product. To translate this into more pragmatic form, some might argue that broadcasters need to:

- provide accurate and fair programmes
- respect the privacy and dignity of those who are the subject of their programmes
- develop a sense of corporate responsibility towards fairness and decency which runs throughout the organisation
- have in place comprehensive guidelines on acceptable practices to be followed
- introduce checks and balances at various levels within the organisation to ensure those practices are being adopted
- have specialist sources of advice within the organisation on whether programmes meet the relevant practices and criteria within the guidelines
- organise internal - but independent - complaints units to whom complaints can be sent and investigated thoroughly and impartially (although experience suggests this has not commanded the confidence of the public)
- appoint an internal - but independent - Ombudsman to review those cases where complainants are dissatisfied with the outcome
- above all, ensure that all staff are trained to the highest possible standards in their chosen professions to avoid potential problems developing.

There are, of course, many other areas of responsibility for broadcasters, but the above practices are intended to address the need to avoid unfair treatment or unwarranted infringement of privacy in programmes.

The Future/Convergence

There are those who might suggest that in a future world of telecommunications/broadcasting convergence which could lead to a different form of statutory regulation, or very limited regulation, or perhaps no regulation at all, the components set out in paragraph 49 above become even more important to safeguard an ethical approach to broadcasting.

* * *

AN OVERVIEW OF ADVERTISING SELF-REGULATORY SYSTEMS AND CODES OF PRACTICE IN EUROPE

Key-note speech by Mr Oliver GRAY
European Advertising Standards Alliance (Belgium)
 

This presentation will attempt to give you a brief overview of what advertising self-regulation is, how it works, what exists across Europe, the work of the Alliance and the handling of cross-border complaints. I hope to demonstrate that effective self-regulation within a framework of general law is an effective way to regulate advertising and thereby ensure the confidence of consumers and governments alike in the responsible approach that the advertising sector can take. I hope that you may learn from the experience accrued in the advertising sector and in particular from the crucial role that the media takes in ensuring responsible commercial communications;

What is self-regulation?

The effectiveness and hence the value of advertising as an economic tool are directly related to its standing in the eyes of the consumer. In order to fulfil its persuasive and informative task, advertising must enjoy a high level of consumer trust and confidence. If advertising misleads consumers, they will not buy again; if offended, they are unlikely to buy in the first place. It is in the long-term interests of all those in the advertising industry, whether they be advertisers, advertising agencies or the media, to ensure the protection of the freedom of commercial speech by upholding its probity.

The need for consumer protection and high ethical standards is recognised by the advertising industry throughout Western Europe and in many other countries, where the industry actively participates in its own regulation. This process is called self-regulation. Self-regulatory rules and procedures vary widely between European countries, but their underlying principle is always the same: “...that advertising should be legal (i.e. within the law and encouraging respect of the law), decent (avoiding to shock or offend people with relation to issues such as race, religion or sex), honest (with an intention to sell bona-fide goods and services and not to defraud) and truthful (claims that are made are based on fact), prepared with a sense of social responsibility (e.g. a special responsibility for children) to the consumer and society and with proper respect for the rules of fair competition...”. (International Chamber of Commerce (ICC), Code of Advertising Practice, Basic principles). This is achieved by means of rules or principles of best practice, by which the advertising industry voluntarily agrees to be bound. These rules are normally structured in a code of Advertising practice applied by self-regulatory organisations (SROs) set up for the purpose and funded by the advertising industry itself. The aim is to ensure high standards in advertising and thus to maintain consumer trust and confidence, to the benefit of all concerned. In some countries such as Germany they do not have a general code of advertising practice but this does not stop them applying these basic principles in the day to day practice of self-regulation.

These codes and controls are drawn up and enforced by the advertising industry itself, by means of self-regulatory organisations (SROs) set up for the purpose. With the support of the three parts of the advertising industry - advertisers (those who pay for the ads), the agencies (those who create the ads) and the media (those who carry the ad to the final consumer) - the SRO acts on the industry’s behalf to ensure that misleading or offensive advertisements carried on all forms of media - direct mail, TV, radio, cinema, newspapers and journals - are quickly amended or withdrawn. In the handful of extreme cases where an advertiser persistently disregards the rules, the media will refuse to carry his advertising. So self-regulation in advertising is more than voluntary self-restraints, it is, in the very real sense, the advertising industry which is policing itself to bring into line that minority whose activities might otherwise bring advertising into disrepute.

The most public part of self-regulation is the handling of either consumer or competitive complaints. These are usually sent in writing to the SRO. Following an initial investigation into their validity (some consumers deliberately make misleading or frivolous complaints), sometimes involving an independent scientific or technical expert, complaints are sent to a jury committee composed of representatives from the advertising industry, consumers (on occasion) and individual experts (women’s groups, doctors, academics, etc.) for review. The advertiser is always considered to be guilty until proved innocent. He is invited to respond to the complaint and should the complaint be upheld is requested to modify or withdraw the ad. Should the advertiser refrain from complying with the SRO, the media will ensure that the decision of the SRO is implemented. In many countries the decisions are published, thus providing an additional sanction through peer pressure. No one likes to see their name in print.

Issues of taste and decency are probably the most difficult to deal with as they involve the self-regulatory body in assessing advertisements not only in terms of the code but also current debates of the day. The self-regulators have to be in touch with changes in society in terms of taste and morals. It must be able to rapidly respond to unpredictable events.

Advertisements must be assessed according to where they appeared. It is clear that the taste and suitability of an advertisement for Playboy or a clothing ad in a UK magazine targeted at young male professionals will be very different than for Le Monde. Or a poster advertisement that can be seen by a large number of people may need to be more catholic in its taste than an ad in ‘Le Canard Enchainé’. This was well demonstrated with regard to Benetton ads. For TV and radio, it is important to know at what time the ad was broadcast: for example, before or after the ‘watershed’ of 21.00 hrs for children’s viewing. It is important that the self-regulatory body gets it right, otherwise self-regulation is seen as ‘not with it’ or a censor. With the advent of digital and Internet technology allowing the consumer more choice, clearly the issue of targeting of audiences in the media will become more and more significant.

The SROs can also monitor ads in the media to ensure whether they comply with the rules and in many countries the SRO may itself initiate a complaint if it sees the need.

As regards the number of complaints handled in different countries, there are big differences between, for example, the UK, Germany, Belgium and Portugal. These can be attributed to differences in the number of ads circulating, the penetration of advertising in a market, the complaint culture in a country, the degree of knowledge of the self-regulatory system etc. Complaints alone should never be used to judge whether a system is working. How many complaints should there be? Too many? Too little?

Self-regulation does not only consist of controls made ‘a posteriori’. Neither is it just reactive to, but is also a way for advertising professionals to consult and use copy-advice and pre-clearance services in order that potential abuses are avoided or aborted. Copy advice is a non-binding information service to professionals at an early stage about whether their ad is consistent with the rules, but it does not guarantee that the consumer may not find fault with the ad once it is released. Pre-clearance is only used for TV and radio if required by statutory law or in cases where a sector, such as the poster sector in the UK, has requested it as punishment for repeat offenders or for sensitive products such as tobacco and pharmaceuticals. The additional use of information bulletins, advice notes, reports and seminars help the understanding and following of advertising codes, both before and after an ad has been issued.

What is important is not that your self-regulatory system is the same as others in its structure, but that it has the same responsibilities to control advertising content. The systems vary widely but the end result is remarkably similar: the ad can be modified or withdrawn if subject to a justified complaint. The media are obviously crucial in ensuring that the sanctions are applied. The media has a key role in ensuring responsiveness to society. No broadcaster or publisher will wish to lose the majority of its audience or readership as a result of badly placed ads. In the first instance they may refuse an ad which they believe does not follow the code, have specific contractual clauses to allow them to do this, and have developed their own internal code of practice. In the majority of cases, the self-regulatory body will notify the media of its decision that an ad should be modified or withdrawn. Obviously the goodwill of the advertiser is important here but where an advertiser will not comply, the media can apply the sanction. For television, the withdrawal of an ad can be almost immediate and for press and posters can be done within a few days.

The ultimate sanction of course, being the publication of adverse decisions. Here again the media has a crucial public information role to play in ensuring that the profession is under peer pressure. Not all countries publish their decisions and the names of the advertisers and agencies involved. However, we are currently working to ensure this in the Alliance.

Self-regulation is not an easy option and never has been. It involves some sacrifice by the industry in order to maintain overall freedom to advertise. Self-regulation must be seen as an effective alternative to detailed legislation otherwise we would not be able to defend the concept. The rulings must be swift, effective, transparent and enforceable in an independent manner. There are powerful penalties for irresponsible advertising including loss of trade, turnover, loss of accounts, distribution and licensing agreements. All of that without mentioning the consumer who will not shop again in the same place.

Self-regulation and the Law

It is widely accepted that self-regulation works best within a framework of legislation. Self-regulation complements the law rather like the strings on a tennis racket. Neither one can work effectively without the other. Some objectives are better achieved by legislation: the laying down of basic principles, for example, like the prohibition of misleading advertising. There is also a need for legal sanctions to be available to stop the persistent offender when all else has failed. Self-regulation is not an alternative to general advertising law and indeed in many countries of the New Europe, SROs and the Alliance have advised on the development of a general advertising law which recognises the role of self-regulation in regulating detailed advertising issues.

There are 2-3% of cases that elude both self-regulation and the law. In many instances, we think the best policy is to rapidly warn and inform government institutions, and most importantly the consumer, who the cowboys are. Self-regulatory bodies are developing relationships of trust with statutory ones. Indeed, at a recent International Marketing and Supervision Network meeting of representatives from Consumer Affairs department in OECD countries, the French Ministry for the Suppression of Fraud praised the Alliance’s cross-border complaints system for having resolved two cases it had transferred to the Alliance. Many of these are well known to both SROs and officials and by sharing information we can identify them and take appropriate action.

In some instances, self-regulatory bodies have been given a statutory role. This is the case with TV and radio organisations in the UK and with the organisation that deals with issues of misleading advertising in Germany.

1. The advantages

It is generally accepted that self-regulation in advertising has the following advantages:

- In areas of detail, where legislation is often slow and unwieldy, self-regulatory systems are faster, flexible and readily adaptable to individual circumstances. In many European countries the law can take up to three years to respond to a complaint due to legislative overload. In such circumstances, the ad campaign is long gone from the media and peoples’ minds. Self-regulation can thus be more suited to respond faster and more appropriately to consumer complaints than the law.

- Because codes of practice are interpreted in the spirit as well as the letter, they are more difficult to avoid than legislation.

- Market operators, consumers and public bodies enforce it on a daily basis.

- It is culturally sensitive and respects the subsidiarity principle. Self-regulation in Europe has been shown to be a means by which the culture of each country is respected and safeguarded. It ensures, together with the law, that there is due respect for the different ethnic groups, languages, customs and religions that you may find in a country.

- Self-regulation, by being easily adaptable and flexible, can be adapted to take into account new trends or sudden events in society. Examples of this can be found in the decisions by UK advertisers to drop advertisements featuring products or events that could be related to the death of Princess Diana or the Dunblane massacre by a mad gun-toting man in a Scottish school.

- Its principles and mechanisms can also be adapted to technological change much faster than the law, thereby providing companies with a more predictable planning outlook and consumers with greater confidence that their rights are being protected in an ever faster changing society.

- It provides the consumer with a cost-free way to voice a complaint and have it taken up. This means less social cost for the state in supporting small claims and damages in legal cases.

- Self-regulation helps provide certainty for business in the rules of the game.

2. Disadvantages

- The existence of law has never stopped crime occurring. Equally self-regulation cannot stop those who deliberately wish to break the rules or the law. It can identify those who do so and reduce the incidence of cases occurring.

- For a system of self-regulation to work, the majority of the major advertisers, agencies and media must belong to the system and subscribe to the rules.

- Self-regulation is not an end in itself. It works as a complement to general framework legislation that can serve as the last resort.

- Self-regulation is not a panacea for all the cases and issues which the law cannot deal with or hasn’t dealt with.

- Unfortunately there are still marketing directors or creatives that are ready to risk the reputation of the industry in regulating itself in the interest of short-term benefit. This is sometimes compounded by a less than close scrutiny by media representatives of ads, particularly where advertising space has been booked in advance. However the result of such actions can prove to be extremely costly for the rest of the industry in terms of attracting negative media, a decrease in brand strength, hostile consumer reactions and eventually detailed legislative intervention.

The current situation

The status of self-regulation across Europe is better today than it was a few years ago. It is not a new concept, has existed across Europe for some time and has been proven to work well in the majority of countries. The ICC’s general code of advertising practice was first issued in 1937 and has now been revised for the 8th time. It was quickly recognised that to ensure its application, national systems of self-regulation had to be established. Some of these systems have been in existence for many years. France, for example, has over 60 years history of self-regulation, the United Kingdom 35 years in non-broadcast advertising and 40 years in broadcast advertising, Italy 30 years, Slovenia and Turkey four years. It takes many forms as it reflects cultural, economic and social differences between European countries and indeed the very words for describing self-regulation, Selbstdiziplin (self-discipline) or Selbstkontrolle (self-control) in Germany/Austria, Autocontrol in Spain can be problematic. These terms are particularly difficult to assimilate in the post-Communist era in Eastern Europe.

If we look at the situation 5 years ago, self-regulation was not present in all EU member States neither did it exist in the majority of New European countries. Self-regulation now exists from the Scottish highlands to the Urals and from the Finnish fjords to the Straits of Gibraltar. It was almost unthinkable five years ago that the philosophy of self-regulation would come into being in the countries of the New Europe. I am glad to report that this is no longer the case. The Alliance has helped to support and nurture efforts to set up self-regulatory systems in the New Europe. To date, in addition to the countries in the Alliance membership, self-regulatory systems have been created in Poland, Croatia, Russia and Hungary. Work is currently underway in the Ukraine, Romania, Kazakhstan and Estonia. To facilitate the promotion of self-regulation across Europe, the Alliance has produced a guide to self-regulation that provides a general overview of self-regulation and some easy first steps for anyone who is setting up a self-regulatory system.

Recently, self-regulation in Europe has responded to two challenges: the creation of the Single Market and the formation of market economies in the countries in the New Europe. Through the Alliance, self-regulation bodies have sought to promote self-regulation and best practice across Europe. There are currently 24 European self-regulatory bodies in the membership of the Alliance from 20 European countries. That is to say, the whole of the European Union, the Czech, Russian, Slovak and Slovenian Republics, Switzerland and Turkey. Since 1992, a self-regulatory system has been created in Luxembourg and the systems in Spain, Portugal and Greece have been given particular attention in terms of their development. A new Spanish self-regulatory body was established to replace a less effective one and work is currently underway on further developing the Greek self-regulatory system in terms of its transparency and consumer profile. The self-regulatory bodies meet on a regular basis and have used the Alliance network to find out and understand each other’s practices. For example, several Alliance members have been studying the UK and French systems regarding the provision of copy advice. We have also been examining the issue of proof in claims.

The current self-regulatory situation is well documented in the Alliance’s latest publication ‘Advertising self-regulation in Europe’. It contains a 124-page synopsis of the status of self-regulation in 20 European countries. The Blue Book demonstrates well that the ICC’s principles are applied throughout Europe.

EASA

The European Advertising Standards Alliance has existed since1992. It was set up in response to the first of the Commission’s challenges to deal with pan-European advertising and complaints arising from consumers situated in other countries of the EU. The aims of the Alliance are to promote and support self-regulation, co-ordinate the handling of cross-border complaints and to provide research and information on self-regulation.

The Alliance’s members have, to date, dealt with almost 239 cross-border complaints, according to the principle of the country of origin of the media from the TWF directive, which are published on a quarterly basis in the Alliance Update. The majority of these complaints are from consumers in 17 countries across the wider Europe and involve at least two countries in the resolution of a case. Consumer complaints are handled at no cost to the complainant other than the stamp on an envelope.

The vast majority of these complaints, like those at national level, concern Misleadingness. An example of a direct mail from France to Ireland caused concern about whether the necklace featured was gilted i.e. coated with gold or it was in ‘Or Massif’ i.e. solid gold.

The next category concerns taste and decency issues. Here are some examples:

Portrayal of women: an ad for a PC computer game appeared in a German magazine and upset many Austrian consumers. The advertiser was requested to withdraw the ad as it had no relevance to the product and was highly offensive.

Bad Language: a cross-border case featuring another an ad for a computer game magazine that used shocking language.

National issues: UK press ad by a German agency appealing for potential UK employees appeared around the 50th anniversary of the D Day landings. It obviously was offensive for some countries and perhaps not for others. It’s a good example of clever idea, wrong timing and wrong theme.

A last example, the Interail train organisation issued an ad aimed at promoting the way young people can travel freely with the ticket and enjoy other things as well. It features 12 yellow condoms resembling the stars on the European Union and Council of Europe flags. It was subject to complaint by UK, Irish, Belgian consumers and even the Commission and European parliament.

In matters related to direct mail or illegal practices the Alliance tries to identify such practices at an early stage and may issue an Euro-Ad Alert. Here are two examples. The first was a car competition in a direct mailing from Malta to French consumers. The mailing proposed that in exchange for 159 FF the consumer would win a Cabriolet. They did, but only a Matchbox Toy one. This was clearly a case of an unscrupulous operator and following investigation, the Alliance issued an Ad Alert. In France, the director of the self-regulatory body went on TV, radio and the local press to warn consumers of this particular racket. Business operators are not excluded from being targeted by unscrupulous operators as can be seen from the following example which consisted of an offer to insert the registration of a company brand name in a directory disguised as an invoice with a logo strongly reminiscent of the OECD logo. We checked with WIPO and the OECD who both issue warnings about these practices, which are usually perpetrated around the holiday periods. We issued an ad alert and informed the European Association of Directory publishers, which has a database on these types of fraud (competition & business directories). It has so far issued 10 alerts since 1992. These are sent to consumer groups, the EU Commission, the European Parliament, EASA members and industry groups to warn them of sharp practice.

A large number of the cases that the EASA has dealt with are direct mail issues, which on an annual basis represent 50% of the complaints handled. Complaints concerning press advertising on an annual basis remain considerable. We have even received the first Internet complaints.

Language plays an important role in the way consumers understand advertising from one country to another. Examples would be the UK & Ireland; France, Belgium, Luxembourg and Switzerland; Germany, Austria and Switzerland; and the Netherlands and Belgium. The complaint culture is at different levels in the countries around Europe. The reasons for this may be linked to democratic traditions of political participation and expression (in Spain, Portugal and Greece, 15 years ago freedom of expression was limited for ordinary citizens), political history, and the profile and promotion of the self-regulatory system. We find that the UK and Ireland are the biggest complainers across Europe consistent with domestic profiles or complaints. The most featured product sectors are audio-visual items, publications, clairvoyance, photography, slimming, clothing and miracle products.

The cross-border complaints system is well regarded and DG XXIV has, in the last year, been referring cases to the Alliance. Five years ago the Alliance was little known by EU institutions. It has since been recognised for its role in handling cross-border complaints and promoting best practice in the comparative advertising directive, the Commission’s green papers on commercial communication and access to justice, and the European Parliament’s reports on the green paper on commercial communications and discrimination against women in advertising. Recently Sir Leon Brittan said that due to the work of EASA, there was ‘a real reduction in the perceived need within the Commission for legislative intervention in this area’. We are not complacent.

The legislative challenges

The advertising industry is facing possibly the largest set of challenges since the idea of a Single Market was proposed. In some respects the challenge of the 1992 programme is only being felt now. As you know, DG XV drafted the Green Paper on Commercial Communications and the Follow-up Communication, both of which the Alliance was closely associated with, as well as the subsequent EU Experts Group of governmental experts. Their first topic was regulations on sales promotions and price discounts. It is of no surprise to us that the legislative situation is not harmonised in this regard and that where there are differences in self-regulatory rules, these stem from legislative barriers. More pressure needs to be put on the Commission to remove legal barriers generally.

DG XXIV has, since 1992, been “chef de file” for the revision of the misleading advertising directive with regard to comparative advertising and distance selling. It is currently working on reports regarding environmental claims, health claims, miracle products as well as reports required in the comparative advertising directive and distance selling on the cross-border aspects. DG XXIV has thus become not only a major player in the legislative field affecting advertising but also a very knowledgeable one.

We understand that the German presidency is also focussing on self-regulation and will be organising a major conference in Saarbrücken next April on self-regulation and the media to “heighten the discussions at European level on self-regulation” and to give more attention to it when looking at issues of subsidiarity.

What this means is difficult to tell, but what is clear is that with the interest shown by the Commission and the Presidency, 1999 will be the year of scrutiny of self-regulation.

EASA’s role has always been to provide information on the operation of self-regulation on a daily basis. We have provided surveys on self-regulation for TV, advertising to children, the portrayal of women and men and, in the near future, car advertising and road safety. In all of these instances we found that the subject matter was well covered by regulation and that complaints were, on the whole, not significant, thereby questioning the need for further EU measures.

Two specific challenges lie ahead:

Children and advertising: This will be one of the most significant issues that advertising has to deal with as a result of changes in society. There are many fears that children are being exploited commercially and that they are being subject to a mass of marketing information which they are unable to differentiate between. At the same time, technological changes concerning the TV and the PC, have brought other media forms into the home over which parents have less control. Issues of privacy and obscenity have also been generated by the incidents regarding paedophilia. Extra impetus has been given to this dossier by the Swedish and Greek governments. The EU Commission has just completed a study on Commercial activities in Schools, for which EASA provided a submission paper. I understand this will push self-regulation as the route to take, but this will principally be a decision between the schools authorities and parents associations. The EASA’s survey of self-regulatory rules on the subject showed that there were laws and codes in place. The key is enforcement. Very few complaints were registered. However, this does not deny the fact that children are a politically and socially sensitive issue. EASA also ran a general survey on self-regulation related to children and advertising. We found that the area was well covered by regulation, both self-regulation and law. There were few complaints and seemingly no strong evidence to support the call for further regulation. Obviously the issue is sensitive and we constantly remind the industry of its responsibility in this respect.

New media: The Alliance participated within the ICC’s Internet working group to set up guidelines for the Internet and the new media. We believe however, that advertisers on this medium should behave in the same responsible way as they do in other media. The problem is how to ensure the application of rules and how sanctions can be enforced where technically everyone is a publisher and most information on commercial sites can be considered as commercial communications. We have developed our thinking in a working group in order to respond to the ever-increasing calls for industry self-regulation as being the most appropriate way forward. Legislators seem in favour of a light regulatory regime in this regard.

General Challenge

- We are facing some of the biggest challenges with regard to detailed legislative intervention at EU level, and in some sectors outright bans.
- Consumers are becoming more vociferous and organised.
- EU focus in 1999 will be on self-regulation.

Challenges for the advertising industry?

- Make it an effective system of self-regulation and not just a piece of paper.
- Ensure that all the relevant partners involved and that the system is well known in the industry and to consumers.
- Fund the system adequately.
- Ensure no barriers to the Single market from self-regulatory rules. Often, the origin of restrictive national rules is a national law.

Conclusions

Advertising self-regulation demonstrates on a daily basis that the industry can effectively regulate itself within a general framework of law in a complementary relationship.

- Self-regulation can be severely limited by detailed national legislative initiatives

- All the different actors in the advertising process are involved in the rules, application and enforcement procedures

- There are rules/principles in place in each country based on the ICC code, which ensure that advertising is legal, decent, honest and truthful

- Rules/Systems reflect national culture. There is no pan-European consumer as yet

- Self-regulation is not a static concept and the rules evolve with the changes in society and technology

- The media has a crucial role in ensuring the enforcement of self-regulation

- Increasing EU focus on self-regulation especially in the new media

- EASA is committed to ensuring best practice across Europe in advertising

- BEUC said about self-regulation, “we will judge it by its results”. At the end of the day, this is what self-regulation is about. Achieving results in the quickest and most effective way possible. If we don’t get the results and have satisfied consumers, we are drinking in the last chance saloon. My final plea is that before contemplating any further legislative measures, one should review the results of the existing systems. The complaints we handle represent only about 2% of the total ads circulating in a country and we have a lot of satisfied consumers. We would be happy to participate in any initiatives to further promote the day to day activities and rules of self-regulation, which is in the interest of all consumers across Europe.

* * *

THE NEW SELF-REGULATORY SYSTEM IN LITHUANIA

Key-note speech by Mr Gintautas BABRAVICIUS
Lithuanian Radio and Television Association
 

Introduction

In order to gain a clearer understanding of how self-regulation by the media works in Lithuania, it is helpful to think back over recent history, especially to winter 1990, when it was apparent that the socialist regime was about to collapse and independence was just around the corner. In the hope of stemming the growing popularity of the national renaissance movement and its mass demonstrations attended by thousands of government opponents, the Supreme Council of Lithuania (Parliament), still under Communist Party control, decided to throw itself a final lifeline by passing a new Media Bill which gave the press freedom of expression.

Interestingly, it was the Lithuanian Journalists’ Union which was instructed to draft the Bill. This was another of the authorities’ ploys in their desperate desire to win over the media, which were highly popular at that time. To this end, a working group was set up, composed of journalists well known for their progressive, democratic ideas. This group worked without pressure or instructions from any outside source. Its members were completely free to table before the Supreme Council of Lithuania (Parliament) a Bill which conformed with all European standards.

Once drafted, the Bill was passed immediately, just a few weeks before independence was declared. The legislation turned out to be fairly satisfactory and remained in force until 1996, when it was replaced by the new Law on information to the public. The first instrument abolished censorship and its formidable weapon, the “Glavlit”, and gave the press a sufficient level of freedom.

However, the idea of the press, radio and television functioning autonomously, without being monitored by the authorities, had never even occurred to us at that time. That is why, under no pressure from anyone, we ourselves, Lithuanian journalists, included in the Bill an article establishing a mechanism through which the authorities could monitor the media. Accordingly, the rather forbiddingly named “Press Control Board” was set up and attached to the Ministry of the Interior. This Board was given fairly extensive powers; in particular, it alone decided whether or not a media outlet should be licensed. For any breach of the law, the Board could not only fine the newspaper, magazine, radio or television station concerned, but could also suspend it or even close it down without involving the courts if the editorial staff were found guilty of offences more than twice in one year.

At that time, in 1990, journalists had not realised that the media could function, manage their affairs and assume their responsibilities on their own. We had only just come out of the socialist regime in which we had been brought up; we had no experience of democracy, while we all thought a control structure managed by the authorities was a totally normal fact of life.

In truth, the actions of this redoubtable Press Control Board were not really that harmful. It re-licensed all existing media and registered the new media which were sprouting like mushrooms in Lithuania. The Board only banned two newspapers: the first had fascist leanings and the other was purely pornographic. Nevertheless, this monster was a threat to all Lithuanian media for six years, hanging like a real sword of Damocles.

Most newspapers, magazines, radio and television stations had received several warnings. Their fate depended essentially on the good will of the Press Control Board officials.

This explains why journalists were constantly demanding that Parliament pass a new Media Bill which would allow the principles of self-regulation to take over from the Press Control Board, which was the authorities’ instrument of control. These ideas first came to Lithuania from Strasbourg and the Council of Europe, whose experts came to Vilnius on more than one occasion and set out before Parliament the principles of self-regulation by the media and how such a system should work.

In 1994, however, when the working group composed of journalists and MPs brought before Parliament the new Bill on information to the public, it took two years to break down the opposition of a large number of MPs who refused to sanction one of the Bill’s basic principles. The new law deprived the authorities of any possibility of exerting pressure on the media, entrusting this power to the journalists’ self-regulatory bodies. This stumbling block was hard to overcome.

The MPs’ objection was simple: control of the media by the authorities in a country with an autocratic or dictatorial regime was inadmissible because this limited freedom of expression. However, in Lithuania, they said, the Government was democratically elected by the people, so how, therefore, could it be denied the right to exert pressure on a newspaper which was breaking the law or harming the interests of the State?

Nevertheless, the strong concerted action that journalists carried out for two years together with consultations with foreign experts, bore fruit: on 2 July 1996, Parliament finally passed the Bill on information to the public, under which the authorities are no longer permitted to control or place restrictions on the media. The law also prevents public bodies and local authorities from owning newspapers, radio or television stations. Only in exceptional circumstances, set out in the Bill, can the authorities force the media to transmit certain information. The authorities are not allowed to interfere in the affairs of the media, to control them or even to grant them financial aid. At the same time, a fairly effective system for obtaining official information has been set up.

Only the courts have the power to judge whether the media have broken the law.

All other aspects of the media’s activities are governed by a multi-functional system of self-regulation involving five different bodies:

a) the National Radio and Television Council;
b) the Radio and Television Commission;
c) the Inspector of Journalistic Ethics;
d) the Ethics Committee for Journalists and Publishers;
e) the Support Fund for the press, radio and television.

I will try to describe in greater detail how each of these bodies actually works.

The National Radio and Television Council

Parliament chose the fifteen organisations listed below to be represented on the Council: the Architects’ Union, the Artists’ Union, the Association for the Lithuanian Language, the Catholic Academy of Science, the Association of Film-makers, the Composers’ Union, the Association of Publishers of the Periodical Press, the Writers’ Union, the Citizens’ Charter, the Family Centre, the Theatrical Union, the Association of Lawyers, the Association of Journalists and the Journalists’ Union.

Most of these organisations pursue social or cultural aims. Their delegates form the National Radio and Television Council, which has extensive powers. Its main task is to transform the state-controlled national radio and television body into a public radio and television broadcasting service.

Appointing senior executives is one of the Council’s most important responsibilities. The Council, rather than the Parliament, President or Government, is now the only body which, by organising competitions, can select and approve candidates for the position of Director General of national radio and television and his/her deputies. This means that the authorities are no longer able to exert pressure on the activities of these important media.

Financing national radio and television is, however, an even more effective and powerful means of influence. Media which receive state funding are immediately in danger of manipulation. The Lithuanian authorities, whatever their leanings (left or right), have always made it elegantly clear to the media that if, instead of criticising the Government, they were rather more obliging, they could expect to receive the funding promised in the budget, or maybe even more than had been promised! If the media were unable to understand this concept, a perfectly legal and justified way of reducing their funding could always be found. Having worked for 3 years as Director General of national radio and television, I can testify that financial pressure is one of the most formidable means of control. This is why, under the new law, the National Radio and Television Council has undertaken to move steadily towards a system of licence fee and advertising revenue, which will reduce the need for funding via the State budget.

The Council is currently working on this, albeit with some hesitation since Parliament is reluctant to introduce a licence fee. Firstly, any new tax is always unpopular and secondly, its introduction would mean the authorities would no longer have any way of interfering with national radio and television. The Council President, Mr R Gucas, says that he receives letters from MPs suggesting that new television programmes be created or that the programmes they do not like be withdrawn. If their proposals are ignored, these MPs threaten at the next parliamentary session to review or to propose a reduction in the budget allocated to national radio and television (NRTV) for the following year. The Council’s firm commitment to introducing the licence fee will therefore ensure much greater autonomy for national radio and television.

The Council’s third main function is to set out the political and cultural strategy of national radio and television (NRTV), which should meet public service broadcasting standards and include programmes of interest to all social groups.

However, the Council is faced with two serious problems. Since it is mainly composed of members of the intelligentsia, the Council tends to favour elitist programmes which are of interest to certain social groups, whereas the general public, which makes up the majority of the national radio and television audience, would prefer programmes suited to its own tastes. Moreover, NRTV’s audience is shrinking all the time. With only around 19-20% of total audience, it is only the third most popular broadcaster in Lithuania, behind two commercial television stations. And the audience figures keep falling.

The second problem is linked to the fact that the NRTV Council has difficulty in defining the limits of its areas of responsibility, firstly with regard to its role in setting out programming strategies, and secondly when it starts getting involved in purely administrative matters which normally fall within the practical decision-making remit of radio and television administrators.

However, as far as I am aware, problems of this kind also affect radio and television authorities in other European countries, especially in central and eastern Europe, where these councils have large fields of responsibility. In any case, the way the NRTV Council exercises its regulatory functions will find the right balance with time.

The Radio and Television Commission

All matters concerning both private broadcasters and national radio and television were previously dealt with by one Council. This situation was a permanent source of conflict because private stations were convinced that the Council supported and defended the interests of national radio and television, their competitor.

As a result, the 1996 Law on information to the public makes provision for the establishment of a specific radio and television commission. The role of this body is to issue invitations to bid for broadcasting licences, which it awards to private radio and television stations, and to make sure that licensed operators respect the programming schedules they presented as part of their bid.

The Commission comprises 11 members, three of whom are delegated by Parliament. The remaining eight represent the following professional organisations: the Writers’ Union, the Composers’ Union, the Artists’ Union, the Film-makers’ Union, the Theatrical Union, the Journalists’ Union, the Association of Journalists and the Association of Publishers of the Periodical Press (one member per organisation).

The law stipulates that the Commission’s work shall be financed by contributions from radio and television station owners, which should not exceed 1% of the revenue they obtain through commercial activities.

For the first two years, the Commission’s work was hindered by the fact that it shared the right to award licences with the Ministry of Communications and Informatics, which usually based its decision on one simple factor when awarding licences. As far as the Ministry was concerned, whichever operator pledged to pay the highest amount of money for relay transmitters and other broadcasting equipment was awarded the licence. Many licences were awarded on that basis. Given that, in accordance with the law, these licences will expire in the year 2000, when this date passes the Commission will have to issue many invitations to bid.

Moreover, new frequencies are currently being attributed and new broadcasting opportunities are becoming available to television channels relayed over the airwaves as well as by cable, and to radio stations, especially at local and regional levels. At the beginning of 1997, the Commission issued 45 invitations to bid for broadcasting licences and received between 4 and 6 applications for each. The programming schedule presented as part of a bid is first assessed by anonymous experts appointed by the Commission. The Commission then takes the final decision, taking into account the experts’ conclusions and the priorities set out in the law. Preference is given to those bidders who undertake to produce and to broadcast the highest number of original programmes that are creative, cultural, informative and educational, as well as programmes never previously broadcast in the proposed reception area.

So far, invitations to bid for broadcasting licences have gone rather well. None of the 45 decisions taken by the Radio and Television Commission has been contested. There have, nevertheless, been occasions when unsuccessful applicants have tried to muster support from the authorities. For example, one regional radio station, whose bid had failed, approached its local MPs. Together with several other of their colleagues, these MPs sent a letter to the Commission, signed by 9 MPs in total, asking the Commission to review the result of the bid and to give particular attention to the radio station concerned. Rather than comply with the letter, the Commission forwarded it to the press, who described it as an attempt by the authorities to put pressure on the independent media self-regulatory body. Since then, MPs have stopped writing such “love letters” to the Commission.

In the past, Lithuanian radio and television companies would often use the following method in an attempt to prepare a winning bid and thus obtain a broadcasting licence: they would submit a draft programming schedule designed to please the majority of Commission members, but on obtaining their licence, they then tended to broadcast a different type of programme. Since there were no set penalties to prevent this, it was hard to force the owners of these stations to honour their promises. However, the Law on information to the public now provides that, if an operator fails to respect the programming schedule set out under the licence, the Radio and Television Commission can, through a court order, demand that the programming be changed. It can even ask the courts to suspend the station’s activities or to close it down if the operator does not heed the warning.

It should be noted that the Commission has not yet needed to take such radical measures. Checks on whether programming schedules are being adhered to have shown that they do indeed correspond to what appears on the relevant licence.

However, the activities of private radio and television stations which try to operate without a licence are causing more serious problems. These are mainly cable television companies. Through court orders, the Commission can heavily penalise such operators. Recently, for example, in the small town of Moletai, a cable television company was set up illegally. After installing the cable network, it began broadcasting television programmes which it had bought privately. The Radio and Television Commission appealed to the courts and the illegal company’s activities were halted.

Obtaining a broadcasting licence can be a means of making substantial profits, which is why people think the Commission might be open to corruption. Nobody can be absolutely sure, but the complexity of the methods used to award licences helps to prevent any kind of corruption. Firstly, all draft bids are submitted anonymously to a group of experts which itself is anonymous. The Commission’s decision, which is based on the experts’ recommendations, requires a two-thirds majority. It is by no means easy, therefore, to secure the support of the majority of Commission members. The fact that only three of the eleven members are parliamentary representatives negates any suggestion that the authorities can influence the choice of radio and television stations by granting licences to those biased in their favour.

The Inspector of Journalistic Ethics

As soon as they were free of the yoke of the Communist Party and its censorship, the media in Lithuania grew at a fantastic rate: hundreds of new magazines and newspapers as well as private radio and television stations sprang up. However, this rapid expansion of the media also had negative consequences, due in particular to the very low ethical standards of journalists. Under the pressure of competition, some publications began resorting to low-level journalism, printing sensationalist stories and scandals. Furthermore, several thousand people came into journalism with no relevant expertise nor the qualifications needed to be a journalist. They had never even heard of the ethical standards of journalism, which explains the increase in the number of human rights violations and infringements by the Lithuanian media on persons’ respect and dignity.

The professional journalists’ associations were the first to take action to remedy this state of affairs. On 25 March 1996, two hundred delegates, representing all journalists’ and editors’ associations, adopted by an absolute majority of votes a professional code of conduct. In doing so, they showed the authorities that journalists were quite capable of overcoming their professional problems themselves. Moreover, the Bill on information to the public, passed by Parliament that summer, made provision for the setting up of two self-regulatory bodies responsible for ensuring that journalists respected the professional code of conduct. These were the Inspector of Journalistic Ethics and the Ethics Committee for Journalists and Editors.

Some experts from the west are surprised that the self-regulatory bodies responsible for controlling breaches of the professional code of conduct were set up under the provisions of law. They believe that this is not a matter for the law or for the authorities, but solely for journalists themselves. In principle, the experts are right. Clearly, this should be the case in a democratic country. However, in Lithuania, democracy among the media is a recent phenomenon and, as previously mentioned, many amateur journalists have entered the profession. Therefore, there are two reasons why it was necessary to set up these two bodies through the law. Firstly, it was a kind of concession to the authorities, especially to MPs who found it hard to accept the abolition of state control of the press in favour of a self-regulatory system devised by journalists themselves. The fact that it was brought in by law gave it a more positive image which reassured MPs. Secondly, the basic idea is that journalists will have greater respect for their own code and will be more likely to recognise the self-regulatory bodies if they are established by law.

The first link in the chain is the Inspector of Journalistic Ethics, who has the same functions as the press “ombudsman” in Scandinavian countries. For the above-mentioned reasons, the Inspector is to be a civil servant released from his normal duties. His nomination must be proposed by the Ethics Committee for Journalists and Publishers.

Any person in Lithuania who considers his/her rights, honour or dignity to have been breached by a newspaper, magazine, radio or television station can appeal to the Inspector of Journalistic Ethics. Of course, they retain the right to appeal directly to the courts. However, court cases are often lengthy and fairly expensive, whereas the Inspector can solve a dispute within a few days. As soon as a complaint is acknowledged to be just and well founded, the Inspector asks the editorial managers concerned to apologise to the offended party or to offer that person the right of reply.

The Inspector can only act through persuasion. If a newspaper refuses to publish a denial or to apologise, the Inspector can do no more than transmit the person’s complaint to the superior body, the Ethics Committee for Journalists and Publishers. Any person dissatisfied with the Inspector’s decision can also lodge a complaint with the committee.

At the end of 1996, the well-known journalist and writer, Danielius Musinskas, was appointed Inspector of Journalistic Ethics. As soon as he was appointed, he received many letters from individuals with complaints and problems. In less than two years, the Inspector received about 300 complaints, approximately two-thirds of which he concluded were unfounded. These concerned well-reasoned critical publications or information which did not infringe upon the applicant’s honour or dignity, and so the complaints were withdrawn. Mr Musinskas found one third of the complaints to be justified. Most of these concerned unfounded accusations or violations of an individual’s right to privacy. Many complaints resulted from articles about criminal acts, particularly those in which journalists had portrayed people under investigation as criminals or revealed the names of victims of crime, including victims of sexual offences.

On many occasions, the Inspector succeeded in persuading media executives to issue a denial or an official apology, but the most common response has been to offer the applicant the right of reply.

In some cases, however, newspaper publishers and radio or television station managers have disagreed with the Inspector and have taken their cases to the Ethics Committee for Journalists and Publishers.

The Ethics Committee for Journalists and Publishers

This media self-regulatory body consists entirely of representatives of journalists’ associations. Each of the following organisations delegates two people to the committee: the Journalists’ Union, the Association of Journalists, the Association of Publishers of the Periodical Press, the Association of Radio and Television, National Radio and Television and the Journalism Centre.

In accordance with the provisions of the Law on information to the public, the Committee examines complaints made by legal persons concerning breaches of the journalists’ code of conduct. It also considers cases referred to it by the Inspector if he has failed to reach a compromise with the management of a particular publication or broadcasting company, as well as complaints made by any individual who is dissatisfied with the Inspector’s decision in his or her particular case.

The Committee began operating in September 1996. Since being set up, it has dealt with 103 cases. In 55 of these, the committee President managed to convince the applicant that the media had not breached the journalists’ and publishers’ code of conduct. Of the 48 complaints which were officially accepted and examined, the Committee found that 21 cases did not constitute a breach of the code of conduct. These mainly concerned articles critical of state institutions, public bodies and private companies. In cases where the Committee found the complaint to be well-founded, applicants had the opportunity to present their arguments. Some applicants declared as part of their complaint that the facts published in the critical articles were untrue. The Committee suggested that these cases be referred to the courts, which alone have jurisdiction to decide whether the information published was true or not.

In 21 other cases, the Committee found that a newspaper, magazine, radio or television station had breached the code of conduct. The Speaker of the Lithuanian Parliament, Mr V. Landsbergis, has appealed to the Committee at least five times. Three of his complaints were found to be justified. In two cases, the “Diena” and “Klaipeda” newspapers alleged that Mr Landsbergis had “appropriated” the peace prize awarded to Lithuania by the people of Norway. The newspapers had not printed any evidence proving that Mr Landsbergis had gained personally, whereas he had actually given the money to a foundation he had set up bearing his own name, designed to help orphans and disabled persons. The two newspapers published the Committee’s decision, in which these arguments were presented. Another complaint concerned an article in the “Laikinoji sostine” newspaper, describing a meeting during which Mr Landsbergis had been accused of selling a house which contained a pharmacy and that, as a result, the local people had been deprived of an essential service.

The Speaker of Parliament explained to the newspaper editor that he had recovered goods belonging to his parents in accordance with the Law on the return of property and that the pharmacy had long ceased to exist in that building. The editor claimed that his newspaper, according to the law, could not be answerable for comments made at meetings and that, in this case, Mr Landsbergis should take legal action against the protester who had made the quoted allegations.

Unable to accept this argument, the Speaker of Parliament then approached the Ethics Committee for Journalists and Publishers. While recognising the newspaper’s proper legal rights, the Committee stated that the journalists’ code of conduct contains a clause under which anybody “criticised” in the media has the right of reply. Therefore, at the Committee’s request, the newspaper published Mr Landsbergis’ letter.

The Committee often finds that the media have breached the code of conduct by portraying individuals as guilty before proven, by publishing facts about people’s private life or by revealing their sources.

The Committee has also been asked on a number of occasions to resolve disputes between rival newspaper editors who have tried to settle scores in their own publications. The Committee has had to intervene several times to defend the rights of journalists against their editors’ abuse of power. Without the agreement of their authors, editors were shortening articles or even substantially changing their meaning.

How effective has the Ethics Committee’s work been? How has it been able to penalise the media for breaching the code of conduct?

These questions were asked when the Bill on information to the public was initially drawn up. Fearing that newspapers, radio and television would not respect the Committee’s decisions, the working group had unanimously suggested that heavy fines be imposed if a breach took place. However, a more moderate and reasonable situation has prevailed, under which, in conformity with the Lithuanian Constitution, only the courts are responsible for judging these cases and for imposing penalties. Meanwhile, relations between the Ethics Committee and the media have to be determined through conventions and regulated in accordance with a joint agreement.

This reasoning has proved to be correct. The Committee simply informs the media of even slight breaches of the code of conduct, warning them that it will take more severe measures if there are further violations. In cases where the ethical question has concerned all the Lithuanian media, the Committee has sent them all a statement in order to draw the matter to their attention. For example, statements have been disseminated concerning articles which relate to an individual’s private life without his/her consent, articles containing graphic descriptions of violent and brutal crimes and the acceptance by journalists of prizes awarded by political parties or private bodies.

When the Committee finds serious breaches of the code of conduct, it obliges the publication or broadcasting company concerned either to publish the names of those responsible and to apologise to the offended party or to publish the report prepared by the Ethics Committee for Journalists and Publishers with regard to the breach. If the editors fail to fulfil their obligation, the Committee sends its report to all media. In view of the competition between newspapers, this can be a fairly effective threat.

So far, the Committee has not needed to take such action. Between 1996 and 1998, only once has an editor failed to comply with the Committee’s decision. The editor of the “Valstieciu laikrastis” newspaper refused to publish the Committee’s decision, in which it disapproved of the newspaper’s unkind words concerning its fellow publication “Ukininko patarejas”, and subsequently took legal proceedings. The case has been pending for two years. This, I repeat, has been the only such case.

I would not say that the managers and owners of the media have enjoyed acknowledging their mistakes, but it has been hard to argue with the Committee’s decisions. Moreover, the media have quickly realised that, if they fail to respect the committee’s decisions, the authorities can easily change the law and reinstate the Press Control Board which journalists dreaded five or six years ago. For this reason, journalists prefer to remain on good terms with the Ethics Committee and abide by its decisions.

The current level of professional ethics among journalists in Lithuania cannot be said to be satisfactory. However, compared to the period between 1990 and 1995, there have been significant changes which, I would venture to suggest, are largely due to the self-regulatory bodies concerned with journalists’ ethics.

The law also states that the Ethics Committee for Journalists and Publishers is responsible for carrying out expert appraisals of the pornographic, erotic or violent content of films, videos, radio and television programmes and magazines. Considering that pornography is prohibited by law in Lithuania and that the distribution of violent or erotic works is strictly monitored, the Ethics Committee is now the only body capable of carrying out such appraisals.

Between 1996 and 1998, the Committee viewed 701 films, 401 of which were classified as pornographic and 195 as erotic or violent. The remaining 105 films could be distributed without restriction. Of 213 magazines, 156 were found to be pornographic, 28 were erotic or violent and 28 could be freely distributed.

Since these expert assessments have no direct link with journalists’ ethics, the Committee proposed that the Government set up a specialist group of experts. The Government agreed with the proposal and has allocated a budget for the work of this group of experts which, from this autumn, will begin classifying films and radio and television programmes.

The Support Fund for the press, radio and television

Even after national independence was declared, the Lithuanian Government continued to award subsidies not only to cultural and educational periodicals but also to newspapers and magazines which supported the authorities or the party in power. In order to prevent such practices, the Bill on information to the public made provision for financial help to be granted to the media through a specialist Support Fund for the press, radio and television, which was to receive allocations from the annual state budget adopted by Parliament and was to be managed by a Council. The authorities can no longer award any other type of subsidy to the press, radio or television. The Fund Council is composed of representatives of the professional unions (writers’, artists’, composers’ unions, etc), media representatives and members of the lawyers’ and researchers’ associations. Only the Council, aided by the conclusions of anonymous experts, has the right to distribute the budgetary funds. The law stipulates that this money can be used to finance cultural and educational projects proposed by the media and selected following open invitations to bid for funding.

The creation of the Fund means that subsidies are now not only awarded to a higher number of different publications and broadcasting companies, but that the amounts allocated are also more substantial. The figures below show firstly the previous situation, when the government awarded subsidies directly to the media (above the line), and secondly the current situation, in which the Fund distributes the money.

1995

22 publications

0,28 millions de US

1996

17 publications

0,42 millions de US

1997

65 projets

0,86 millions de US

1998

90 projets

1,03 millions de US

The number of projects financed and the overall level of subsidies quadrupled, therefore, between 1995 and 1998. There is absolutely no doubt that subsidies are now allocated with greater impartiality. Previously, public officials decided, with reference to the recommendations of their superiors within the Ministry of Culture, how aid should be distributed. Now, however, subsidies are allocated by the Fund Council, whose membership includes professionals capable of assessing projects and the merit of a particular publication or broadcasting company.

However, complaints have been made after each invitation to bid for funding, particularly from cultural newspapers which have been published for many years. These newspapers, which previously received all the state subsidies, have found themselves in a particularly precarious situation. They now receive fewer subsidies because the Council also grants funding to new publications in the cultural, education and scientific fields, and even to private companies broadcasting information for the general public (including private radio and television channels) if they propose projects of cultural interest.

Conclusions

As we have seen, a coherent, well-developed self-regulatory system has been set up in Lithuania, which takes into account various aspects of the way the media function. It is very rare in central and eastern Europe for a system set up by law to actually work. I would not claim that our system is perfect nor that it is functioning without a hitch in Lithuania. There are still problems, simply because the system has only been in operation for less than two years. However, in such a short time, the media self-regulatory bodies have found a niche in society and have won public confidence.

On the other hand, certain aspects of the system clearly need improvement and some have already been put right. For example, it became obvious that media managers and owners who apply for and receive subsidies should not be part of the Fund Council as they would be faced with a conflict of interests. It also seems unfair for the Ethics Committee to be composed solely of representatives of journalists and publishers. Therefore, amendments to the law currently being considered by Parliament propose that half or one third of the committee members be replaced by representatives of non-media organisations.

Nevertheless, some representatives of the authorities and radical groups in society are expressing dissatisfaction with the media self-regulatory bodies and dispute their powers. Some senior public officials question the right of the Council which manages the Support Fund for the press, radio and television to distribute resources originating from the state budget. Meanwhile, some MPs think that the Inspector of Journalistic Ethics and the Ethics Committee should act as both police and judiciary, penalising harshly any offence by public interest media. Amazingly, there are political movements within Parliament which are sympathetic to the radicals’ belief that penalties and fines are the first step towards improving regulation of the media. These groups are prepared to monitor and punish the media in Lithuania, but so far their proposals have not received any backing. But no one knows what the future holds, especially when a few amendments to the law would be enough to radically change the basic principles of the media self-regulatory system.

We should therefore welcome the Council of Europe’s decision to hold this seminar, which will give us a better understanding of self-regulation by the media and will, I hope, enable us to support the idea so that the principles of freedom of the press can be applied in the most effective way possible.

* * *

LIST OF PARTICIPANTS 

BELARUS

Mr Vladimir GLOD, Belarusian Association of Journalists, MINSK

BELGIUM/BELGIQUE

Mme Valérie DEOM, Chargée de mission, Communauté française, BRUXELLES

Mrs Laurence DJOLAKIAN, Legal Advisor, Federation of European Direct Marketing, BRUXELLES

M. Eric FRANSSEN, Ministère de la Communauté française, BRUXELLES

M. Per HULTENGARD, Legal Advisor, European Newspaper Publisher’s Association (ENPA),

Or, Swedish Newspaper Publishers Association, STOCKHOLM

M. Simon PITTS, Assistant, Roy Perry MEP, European Parliament, BRUXELLES

Mme Florence RANSON, European Advertising Tripartite (EAT), BRUXELLES

Mr Heinz-Uwe RÜBENACH, European Newspaper Publisher’s Association (ENPA), BRUXELLES

M. Jean-Pierre VANDEN DORPE, RTBF, Directeur juridique, BRUXELLES

BULGARIA/BULGARIE

Dr Alexandre ANGUELOV, Président, Union of Bulgarian Journalists, SOFIA

Dr Vessela TABAKOVA, Deputy Dean of the Faculty of Journalism and Mass Communication, SOFIA

CZECH REPUBLIC/REPUBLIQUE TCHEQUE

Mme Monika PAJEROVA, Ministère des affaires étrangères, Département de la presse, PRAHA

CROATIA/CROATIE

M. Ante OBULJEN, Croatian Radio-Television (HRT), ZAGREB

Ms Jagoda VUKUSIC, President of the Croatian Association of Journalists, ZAGREB

CYPRUS

M. Andreas MAVROMMATIS, Chairman, Media Complaints Commission

Ms Loukia PERSIANIS, Cyprus Radiotelevision Authority, NICOSIA

DENMARK/DANEMARK

M. Anders LUND, Member of the Executive Board, Danish Union of Journalists, COPENHAGEN K

Mr Martin MELCHIOR, Legal Adviser, Danish Radio/TV (DR), SØBORG

Mr Robert NEIMANAS, Legal Adviser, Danish Newspaper Publishers’ Association, COPENHAGEN

ESTONIA/ESTONIE

Mr Tarmu TAMMERK, Managing Director, Estonian Newspapers’ Association (EALL), TALLINN

FRANCE

Mme Marie BRASSART GOERLE, Conseillère, Union Syndicale des Journalistes (CFDT), PARIS

M. Michel DIARD, SNJ-CGT, MONTREUIL

Mr Ronald KOVEN, World Press Freedom Committee, PARIS

M. Jean-François TEALDI, SNJ-CGT, MONTREUIL

GERMANY/ALLEMAGNE

Mr Frithjof BERGER, Bundesministerium des Innern, BONN

Mr Wolfgang CLOSS, General Manager, Institute of the European Media Law, SAARBRÜCKEN

Ms Franziska HUNDSEDER, Présidente, Union des Journalistes Allemands (DJU), IG Medien, German Press Council, KARLSRUHE

Mr Wolfgang KÄPPLER, Bundesministerium des Innern, BONN

Ms Kathleen LAMBRECHTS, Prosieben Media AG, UNTERFÖHRING

Dr Andrea PARTIKEL, Axel Springer Verlag AG, HAMBURG

Dr Suzanne STRACKE-NEUMANN, IG Medien, BAYREUTH

GREECE/GRECE

M. Christos FAILADIS, Conseiller de Presse, Délégation permanente de la Grèce, STRASBOURG

M. Georges AYFANTIS, Représentation Permanente de la Grèce auprès du Conseil de l’Europe, STRASBOURG

M. Athanassios KOTSIRIS, Représentation Permanente de la Grèce auprès du Conseil de l’Europe, STRASBOURG

IRELAND/IRLANDE

Ms Anne O’BRIEN, Independent Radio and Television Commission, DUBLIN

LATVIA/LETTONIE

Mr Miervaldis MOZERS, Latvian University of Journaists, RIGA

LITHUANIA/LITUANIE

Mr Jackunas ZIBARTAS JUOZAS, Parliament of the Republic of Lithuania, VILNIUS

MALTA/MALTE

Mr Antoine ELLUL, Chief Executive, Malta Broadcasting Authority, Hamrun

Mr Peter GRECH, Office of the Attorney General, Valletta

Mr Albert MARSHALL, Chief Executive, Public Broadcasting Services Ltd., , GWARDAMANGIA

MOLDOVA

Mr Victor CHIRILA, Secretary-II, Ministry of Foreign Affairs, CHISINAU

POLAND/POLOGNE

Ms Izabella CHRUSLINSKA, National Broadcasting Council, WARSAW

M. Miroslav GRONOWSKI, Telewizja Polska S.A., Training and Programme Analyses Centre,
WARSZAWA

PORTUGAL

Ms Cristina FIGUEIREDO, Director, Instituto da comunicacao social, LISBOA

M. Jose GARIBALDI, Alta Autoridade para a comunicacao social, LISBOA

ROMANIA/ROUMANIE

Mr Filimon VALERIA, Société des Journalistes de Roumanie, BUCAREST

Mr Horea MURGU, Prof. Univ.Theater and Film Arts University, BUCAREST

FEDERATION OF RUSSIA/FEDERATION DE RUSSIE

Mr Alexander BORISOV, Moscow State Institute of International Relations, Moscow

SLOVAQUIE/SLOVAKIA

Dr Samuel BRECKA, Director, National Centre of Media Communication, BRATISLAVA

SLOVENIA/SLOVENIE

Mr Gojko BERVAR, Secretary General, Slovenian Journalistic Society, LJUBLJANA

SPAIN/ESPAGNE

Mme Marie-José ALEMANY IGLESIAS, Audiovisual Council of Catalonia, BARCELONA

M. Jordi CONDE CASTEJON, Audiovisual Council of Catalonia, BARCELONA

SWEDEN/SUEDE

Ms Ann-Katrin AGEBÄCK, Council on media violence, STOCKHOLM

Mr Göran MAGNUSSON, Swedish Parliament, STOCKHOLM

Mr. Gunhild FRYLEN, Head of Legal Department, Sveriges Radio, Swedish Broadcasting Corporation, STOCKHOLM

Mme Maria GASSTE, Desk Officer, Ministry of Culture, Media Division, STOCKHOLM

SWITZERLAND/SUISSE

Mme Catherine SCHALLENBERGER, Office fédéral de la Communication, BIENNE

«THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA » /« L’EX-REPUBLIQUE YOUGOSLAVE DE MACEDOINE » 

Mrs Negoslava GLASNOVIC, Press Officer, Secretariat of Information, SKOPJE

Mrs Ana PANOVSKA, Secretary of the Secretariat of Information, SKOPJE

TURKEY/TURQUIE

Mr Nuri COLAKOGLU, President, NTV, Kanal NTV, ISTANBUL

Mr Oktay EKSI, Chairman, Basin Konseyi (Press Council), OSMANBEY, ISTANBUL

UNITED KINGDOM/ROYAUME-UNI

Mr Ross BIGGAM, Head of European Affairs, ITV (Independent Television Association), European Affairs, LONDON

Mr Andrew BROWN, Director General, The Advertising Association, LONDON

Mr Andrew CARTER, Advertising Association, LONDON

M. Robert PINKER, Professor, Press Complaints Commission, LONDON

Mr Phillip STEVENS, Department of Culture, Media and Sport, LONDON

Mr James TEMPLE-SMITHSON, European Media Forum, LONDON

Mr Lennart WIKLUND, European Publishers Council, OXFORD

RAPPORTEURS

Mr Gintautas BABRAVICIUS, Lithuanian Radio and Television Association, VILNIUS

M. Claude-Jean BERTRAND, LE VESINET

Mr Oliver GRAY, Director General, European Advertising Standards Alliance, BRUXELLES

M. François HURARD, Centre National de la Cinématographie, PARIS

Mr Pär-Arne JIGENIUS, Press Ombudsman, STOCKHOLM

Mr Norman Mc LEAN, Deputy Diretor, Broadcasting Standards Commission, LONDON

Ms Tiziana MONA, Direction Générale de la SSR, BERNE

MEMBERS OF THE MM-S-EP/MEMBRES DU MM-S-EP

Ms Ligita AZOVSKA, President of the Latvian Union of Journalists, RIGA

Mme Katarzyna BADZMIROWSKA-MASLOWSKA, National Broadcasting Council, WARSAW

Ms Sebnem BILGET, Head of International Relations Department, Radio-TV Supreme Council (RTÜK), ANKARA

Mr Alexander BORISOV, Dean and Professor, Department of International Information, Moscow State Institute of International Relations, Ministry of Foreign Affairs of Russia, MOSCOW

Mr Nihat CAYLAK, Expert, Radio-TV Supreme Council (RTÜK), Nevzat Tandogan, Kovaklidera, ANKARA

Mr Christophoros CHRISTOPHOROU, Head of Media Section, Press and Information Office, NICOSIA

Mr Martin DENNANY, Broadcasting Division, Department of Arts Heritage, Gaeltracht and the Islands, DUBLIN

Ms Violeta DIMITROVA, Expert, Département "Relations Internationales", Comité des Postes et Télécommunications, SOFIA

M. Valéry FRELAND, Chargé de mission, Direction générale des relations culturelles, scientifiques et techniques, PARIS

Ms Kristina HAUTALA-KAJOS, Media Policy Adviser, Ministry of Education, Department of Culture, HELSINKI

Mr Erich KÖNIG, Media Expert, Federal Chancellery, Ballhausplatz 2, A-1014 VIENNA

Ms Annette KORNERUP, Head of Section, Ministry of Culture, COPENHAGEN

Ms Carolyn R. MORRISON, Head of International Broadcasting, Department of Culture, Media and Sport, Media Section, 2 LONDON

Ms Delia MUCICA, Secrétaire Général, Ministère de la Culture, BUCAREST

Mr Josef MUSIL, Vice-chairman, Council of RTV Broadcasting, PRAHA

Mr Joze OSTERMAN, Public relations and media office of the Government of the Republic of Slovenia, LJUBLJANA

Ms Renita PALECKIENE, Lithuanian Journalism Centre, VILNIUS

Mme Alessandra PARADISI, Relations internationales, RAI, ROME

Mr Franc PEA, Deputy Editor in Chief at the Croatian Radio, Croatian Radio and Television, ZAGREB

Mr Stoyan RAICHEVSKY, Chairman of the Committee on Culture and Media, National Assembly, SOFIA

Mr Nol REIJNDERS, Deputy Director for Press and Broadcasting, Ministry of Education, Culture and Science, Media Department, ZOETERMEER

M. Pierre SMOLIK, Spécialiste des media, Office fédéral de la Communication, BIENNE

M. Sergiu TEODOR, Head of the Mass Media and Culture Department, Ministry of Foreign Affairs, CHISINAU

Dr Jörg UKROW, Saarländische Staatskanzlei, SAARBRÜCKEN

Mr Jozef ZELENAK, National Centre of Media Communication, BRATISLAVA

OBSERVERS/OBSERVATEURS

M. Jacques BRIQUEMONT, UER, GRAND SACONNEX GE

M. Luc DE HERT, Commission européenne, Direction Générale XV/E/4, BRUXELLES

M. Pedro OSONA, Commission européenne, Chargé de mission, Direction Générale de l'Information, de la Communication, de la culture et de l'audiovisuel, BRUXELLES

Monsieur Richard SCHOONHOVEN, HILVERSUM

Mme Marie-Paule URBAN, Secrétaire Général Adjoint de CIRCOM Régional, France 3 Alsace, STRASBOURG

M. Michael WAGNER, Conseiller juridique, UER, GRAND SACONNEX GE

SECRETARIAT

M. Hanno HARTIG, Head of Division II, Directorate of Human Rights/Chef de la Division II, Direction des Droits de l’Homme

M. Christophe POIREL, Head of Media Section, Directorate of Human Rights/Chef de la Section Media, Direction des Droits de l'Homme

M. Ramon PRIETO SUAREZ, Administrator, Media Section, Directorate of Human Rights/ Administrateur, Section Media, Direction des Droits de l'Homme

M. Eugen CIBOTARU, Administrator, Media Section, Directorate of Human Rights/Administrateur, Section Media, Direction des Droits de l’Homme


1 which the NAB (National Association of Broadcasters, in the US) in its code seemed to consider as a major function of radio and television.

2 Which makes it possible for a journalist to leave a publication if it changes its nature or political orientation - and yet not lose any benefits.

3 In that it does not mention restrictions of freedom of speech by the Executive and Judiciary and at federal level, or by any of the three powers at the State or municipal level.

4 Which is what Lord Rothermere did with his Daily Mail, making it the only British daily in recent years greatly to improve its circulation without slashing its price.

5 Like the 1934 Communications Act.

6 In 1998, there were about 30 ombudsmen in the US for 1 600 dailies, 7 500 weeklies, 12 000 radio stations, 1 500 television stations and 2 000 consumers magazines.

7 Which, admittedly, Denmark has done.

8 Even in India where the Press Council was set up by Parliament.

9 There was a local press council in Peoria (Illinois) that was set up by the PR department of the newspaper. Its 21 Members, all housewives, asked people in their area what they thought of the daily and reported every month with a summary which was published over two pages. That certainly was a commercial undertaking, but strangely it has never been imitated, as far as I know.

10 Regulating for Changing Values, Broadcasting Standards Commission, 1997