Media Laws in the US and the UK

1 Media in the U.S. and the UK Introduction Media has been known throughout the world as having very significant influence on the society as a whole. Indeed societies and democracies have thrived in part mostly due to the vibrant nature of their media. As evidenced in the developed world, media that is free from government control and censorship promotes good governance and makes the powers become more accountable to the masses as everything they do is under tight scrutiny. This important role of the media keeping the government and by extension large corporations on check has gone a long way in ensuring that the law and rights of the citizenry are not violated, hence the reason why media is sometimes referred to as the “4th estate”. In this paper a closer look on the various categories of media is done, then the differences in the media laws and governance of USA and that of the UK is observed before finally looking at some of the major scandals known to have hit both nations in recent times and some of the trends in the sector.

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Categories of media The grouping of the various types of media into different categories is at best a tricky affair due to the different definitions of the term ‘mass media’. The categories can however be reduced into the following, solely based on the transmission platform that is used in the transmission of the reporting1: Broadcast media include the television broadcast and radio broadcast. The advent of the broadcast age was of importance as it eased the rate at which information was spread. It was also the advantages of broadcast media being a mass media tool that made them particularly popular in their day. They dislodged the print media to become the number one form of communication in the 20th century.

Print media involves pamphlets, magazines, newspapers, journals, books among various other sources2. This category was the earliest form of media; however, it was not until the invention of the Gutenberg Printing Press in the 15th century that print media truly became a hit.

Newspapers are the most popular category of print media. This is mainly due to their relative ease of publication which is done mostly on a daily basis, but is also popular as weekly publications. Magazines are also a popular press issue especially when it comes to special interest topics such as art, fitness and health. Books, though popular, take a lot of time before they reach their audience and therefore used to cover special topics in greater detail such as reviewing a law Electronic media contains online and internet sources such as podcasts, blogs and generally websites. The uniqueness of this category is that it virtually involves all the other 1

Scribd. "Trace the origin of media." 21st February 2010, http://www.scribd.com/doc/27215823/Trace-the-origin-of-media

2

Scribd. "Trace the origin of media." 21st February 2010, http://www.scribd.com/doc/27215823/Trace-the-origin-of-media

3 categories. It is now possible to access the online versions of newspapers, magazines and even books. In the same breath, a person can still stream live television and radio via the net. What the internet has done is to make itself the de facto choice when it comes to getting the fastest information from all over the world since with a good connection you can access all the other categories of media with ease, albeit electronically.

This category of media has by far been the most vibrant form of media communication in the 21st century. Its great penetration can be attributed to recent advancements in the Information and Communication Technology (ICT) sector which has virtually connected the entire world3.

Social media sites such as twitter, Facebook and Myspace have completely eliminated the need to rely on only reliable and third party sources such as news bulletins and journalists for information. Now any one who is connected to the social media site can upload their observations and get real-time response or clarification.

Media Laws in the US One of the major laws in the United States of America that governs media freedom was drafted by the nation’s revolutionaries after the Independence war (1775-1783). This law guarantees the freedom of the press from government control and was indeed the First Amendment to the American constitution. However, there are other situations that even the Supreme Court deemed that the press does not enjoy freedom over; for example, reporting on troops movement during war time.

In America there are no written laws that seek to control the activities of the media; instead, the press has put in place ethical guidelines of their own. To the most part these codes of ethics are aimed at eliminating biased reporting, be it actual or perceived. This is achieved by completely eliminating conflict of interest that may arise during the coverage of a news report.

3

Ibid

4 For instance the guidelines prohibit reporters or editors from receiving financial gifts from organizations or corporations that they regularly report on, as this will greatly impact on exactly the amount of ‘truth’ that the media house may report about these organizations or corporations.

The “Freedom of Information Act” (FOIA) that was signed into law on the 4th of July 1966 by President Lyndon Johnson has been the major influence on all laws to do with information freedom in America. There has always been a misconception about the FOIA that it gave a right to access information to the public. However, the reality is that it gave presumptive rights to access existing records, either in digital or print from the executive, government departments, regulatory commissions and corporations under government control4. There are no complicated procedures involved in obtaining FOIA information. The information is accessible to both citizens and journalists after just writing a letter to an official of FOIA. Alternatively, the information can be accessed electronically via E-FOIA. The downside to the FOIA is that it does not cover the Judicial and Legislative arms of the American government.

Privacy is another issue that the press in America is struggling to deal with. In so far as the law goes, there are certain situations that the press has no alternative but to reveal the names and other private information about an individual in order for the story to be authentic. Herein lays the dilemma of legality versus morality. In some situations it may be legal to breach individual privacy, but be completely morally wrong to do so. A case in point is when reporting on a sexual offence crime such as rape. Whereas it is completely within the law to report in detail about the event, it becomes morally repulsive to mention the names of the victims during the reporting as this will result to stigmatization of the victims and in the end causing them more harm than good.

4

United States Department of Law. “Media law handbook. A handbook series edition.” Bureau of International Information Programs, 2010, http://www.america.gov/publications/books/

5 Fierce debates still run in America whether the government is in order to stop the publication of state secrets by the media. The government claims that if the press is left to run with whatever story they get a hold of, then the media could end up jeopardizing national security by leaking out classified information to terrorists and other enemies of the state. The media on the other hand claims that most of the state secrets that the government wants them not to broadcast are in most cases negligent acts by government officials in carrying out their duties that they report on. Here the press argues that by revealing such activities, they help ensure that they keep the government in check by ensuring that officials do their work as expected of them by the public5. It is no wonder that as a result, there are proponents who want the Espionage Act to be used in trying journalists with respect to reporting on state secrets. The Supreme Court has however never ruled in support of the government when it comes to stopping the media on publishing these so called state secrets, but the rulings have instead usually gone the media’s way.

The principle of transparency in the code of ethics is increasingly becoming harder to implement. Although recent developments in technology such as computers and internet connectivity services have helped put more information out there, the danger that has continually been faced by organizations and government has been at what point exactly this transparency returns to bite them in the back6. Also, by exposing all their information to the public, corporations fear that this makes them very susceptible to sabotage to competitors from other nations who may not be subject to the same policies on transparency7. It is for some of these

5

United States Department of Law. “Media law handbook. A handbook series edition.” Bureau of International Information Programs, 2010, http://www.america.gov/publications/books/ 6

United States Department of Law. “Media law handbook. A handbook series edition.” Bureau of International Information Programs, 2010, http://www.america.gov/publications/books/ 7

Ibid

6 reasons that the press and corporations are normally at loggerheads when it comes to disclosure of information.

Media Laws in the UK The development of media in Britain is deeply linked to the development of the democratic government and of market economics and private capital. In British politics it has long been a major principle that a media that is competitive and free from government restrictions is the pillar of a working democracy8. Unlike many countries that have written constitutions, the British Isles do not in effect have any written constitution but rather a set of customs and common law that have been followed throughout the years. Though there is no legal anchor in the British constitution, the country has enacted laws that keep it in tandem with international conventions of which it is party to. One such convention is the “European Convention of Human Rights” which has express provisions about media and its relation to the government and the citizenry.

Among the laws that have been adopted wholly or partly modified to fit the British has been Article 10 “Freedom of expression.” Based on this article individuals by right can freely express themselves be it on an individual level or via mass media without any interference by any authorities. However, the same articles give states the right to demand broadcasting licenses from broadcasting establishments. This is based on the principle that for such freedoms to have the intended benefits to the individuals, then they should be responsibilities which the parties must be knowledgeable to9. In case of any breach of the conditions that may result to

8

Perry, Keller. "Media law in Britain." Kings College London, 2003. www.britishcouncil.org/china-society-publications-media.pdf

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Perry, Keller. "Media law in Britain." Kings College London, 2003. www.britishcouncil.org/china-society-publications-media.pdf

7 endangering of national security or encroaching on the moral fabric of the society, then the state can impose the necessary penalties as per the laws.

Other important laws are those that relate to court room proceedings that aim to make court room activities accessible to the public, commonly known as “Open justice principle.” This principle is also in accordance to Article 6(1) of the European Convention of Human Rights which states that “everyone is entitled to a fair and public hearing.” This open justice however does not include the usage of cameras and recordings in the court room but rather just public attendance. Other important laws governing media are those relating to individual reputations and privacy. In as much as it is an open season when it comes to reporting, any news stories put forward to the public must be true and fair. This ensures that inaccurate news reports do not damage reputations via unfair reporting and unjust attacks. It has proven to be a juggling act by the courts in implementing this law because in as far as the courts have to protect individuals; they also have to give investigative journalism the necessary leeway to expose unjust, illicit, and scandalous conduct.

When it comes to privacy, there are very conflicting sides to this right where as many believe that personal lives should not be a subject for news reports. The media on the other hand strongly believes that they should be allowed to cover private lives10. The media’s argument is that many, who claim privacy, usually use this law to cover up for immoral and illegal conduct that they may be party to. Still there is the prohibition of exposing a person’s life just for the mere fact that the public may have a specific interest in the life of that person because of their social status. Another important aspect is relating to ethical conduct of journalism. The government and the sector have been in a tag of war on the issue of the press reporting on state

10

Perry, Keller. "Media law in Britain." Kings College London, 2003. www.britishcouncil.org/china-society-publications-media.pdf

8 secrets. There have been efforts by the administration to allow for greater access to its operations to the media by cutting down on the previous bureaucracy excesses. The “Freedom of information act” of 2000 was passed and meant to ease access by individuals to information from government authorities. The lingering issue still is the fact that government officials see that the law as a hindrance to efficiency by exposing too much, which makes their officers skeptical about every aspect of their operations coming under heavy observation. Editors on the other hand feel that the government can still do more in giving much more broad access to the information held by authorities.

The government has been reluctant in imposing direct controls on the media especially print media. To counter the need for interference, the government has pushed the industry to come up with strict guidelines in self regulation. The government in 1991 pushed for the creation of the Press Complaints Commission (PCC) which has a written code of practice by newspaper editors. What the code does is to basically give guidelines to journalists and editors via a set of principles, chief among them the obligation to be as accurate as possible so as not to mislead readers. The code also seeks to observe privacy by not harassing news targets for pictures or information; however, if and when harassment occurs the media can be left off the hook if they can show that it was necessary in order to come up with a report which is in the public’s interest.

Individuals have the right to lodge complaints to the PCC in case of any violations.

Censorship and restrictions In Britain the authorities see broadcasting media as the form of media that has direct influence on public perception. It was for this reason that their government during the inception of radio and television broadcasting effectively had a monopoly of the sector through the British Broadcasting Corporation (BBC)11. To this day the UK still has strict control over the sector 11

Perry, Keller. "Media law in Britain." Kings College London, 2003. www.britishcouncil.org/china-society-publications-media.pdf

9 through the regulatory authorities, the Independent Television Commission (ITC) and the Radio Authority. The main mandate of these bodies is to eliminate content by the broadcasters that may be seen as offensive by the public and curb on any form of unjustifiable infringement on personal privacy. Incase of individual complaints, the government through the creation of a “code of fairness and privacy” by the Broadcasting Standards Commission (BSC) has an obligation to look into the complaints. The cornerstone of the BSC is that only in the case of an overriding interest by the public, and then there should be no interference on the personal lives of individuals by broadcasters.

Media scandals The Murdoch wire tapping scandal is the most recent scandal to hit the British media system. The scandal brought into question the ethical debate on exactly how far the media can go in search of headline news12. An inquiry led by Lord Justice Levenson was formed to look into the ethics, culture and practices of the media. The inquiry closely observed phone hacking allegations and press relationship to politicians, police and the public. After concluding the inquiry, recommendations that would completely get rid of these illegal practices were to be made that took into account freedom and integrity of the press via high ethical standards.

Wikileaks Wikileaks is a self-labeled whistleblower website that publishes secret reports and submissions from throughout the world. It was founded on October 4th 2006 when the domain of wikileaks.org was registered, with Mr. Julian Assange widely regarded as the founder. It receives reports on corruption, cover-ups and other forms of classified information through its

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The Leveson Inquiry. “Leveson Inquiry: Culture, practice and ethics of the press.” November 15, 2011, http://www.levesoninquiry.org.uk/about/

10 various servers located in different countries before then leaking the information to mainstream media establishment’s worldwide13. The website relies for it is mostly from volunteers content whom the founders describe as being a mix of mathematicians, dissidents from China, journalists and technologists from start-up companies in America. The organization has released a lot of scandalous information about the US starting from the wars in Iraq and Afghanistan, to prisoner detention conditions in Guantanamo bay, with probably the most damaging of these leaks being about the diplomatic cables’ leaks of the State Department of the United States.

The redacted format of the cable leaks was broadcasted by a host of global media houses.

The Justice Department in the US in an effort to deal with the potential severe fall outs went ahead to open a probe on the founder of the organization. However due to the First Amendment Act, Mr. Eric Holder, the Attorney General could not charge Mr. Julian Assange with charges relating to press issues. Therefore the A.G. preferred charges based on Espionage Act. This was still seen as being a difficult charge to confirm. The other alternative was to charge the organization and its founder with trafficking in government property of a stolen nature. This also faced similar difficulties of proving since it is difficult to prove in the case of intellectual property. The A.G. could however not proceed to any of the legal strategies as under American law they all required the extradition of Mr. Assange to the United States to face the charges in person.

Conclusion The USA and the UK generally have more or less the same principles when it comes to their media. Both countries being developed countries enjoy near similar penetration of the different types of media among them television, newspaper, web based sources and lastly social

13

Wikipedia. "WikiLeaks.” 28th April 2012, http://en.wikipedia.org/wiki/WikiLeaks

11 media. The UK and America put a strong emphasis on press freedoms by guaranteeing the freedom of information. The major difference is when it comes to press regulations and restrictions, with the UK having more stringent controls on the broadcast media.

12 Bibliography Keller, Perry "Media law in Britain." Kings College London, 2003. www.britishcouncil.org/chinasociety-publications-media.pdf Scribd. "Trace the origin of media." 21st February 2010, http://www.scribd.com/doc/27215823/Trace-the-origin-of-media The Leveson Inquiry. “Leveson Inquiry: Culture, practice and ethics of the press.” November 15, 2011, http://www.levesoninquiry.org.uk/about/ United States Department of Law. “Media law handbook. A handbook series edition.” Bureau of International Information Programs, 2010, http://www.america.gov/publications/books/

Wikipedia. "WikiLeaks.” 28th April 2012, http://en.wikipedia.org/wiki/WikiLeaks