IN THE UK COMMUNICATIONS INDUSTRY
Notes of comments by Roger Darlington,
Chair of Internet Watch Foundation,
at seminar of Westminster Media Forum [click here]
held on 17 June 2003
All the Governmental and Parliamentary discussions around the Communications Bill and the creation of Ofcom support a greater reliance on forms of self-regulation and co-regulation. This begs some interesting questions. First, how does one decide when statutory regulation can be replaced by self-regulation? The Joint Scrutiny Committee on the draft Communications Bill proposed a system of accreditation for self-regulatory bodies which would depend on a range of factors, including independence, funding and transparency. Second, does this mean that Ofcom role will gradually diminish with presumably a diminution in activity and resources? If so, this would be a regulatory first.
If a self-regulatory model is to command wide acceptance and respect, it needs to be seen to have a real measure of independence from the sector being regulated. There are at least three elements to such independence. First, the Chair should be independent - meaning he or she should have knowledge of industry players without being beholden to any of them and understand the various stakeholders without being seen as 'owned' by any of them. Second, the governing board should have a sizable element of non-industry representatives. In the case of IWF, two-thirds of the Board are non-industry, but ICSTIS has a Committee made up entirely on non-industry members. Third, the organisation should have a steady and adequate source of funding to carry out its responsibilities effectively. The ASA operates a levy on display advertising; ICSTIS has a levy on all network operators; but so far IWF has managed on the basis a voluntary system of membership subscriptions.
This means at least two things. First, there should be wide and early circulation of clear and comprehensive consultation papers whenever a major new policy initiative is contemplated. It is not always easy to engage with all those who might be effected and to obtain a representative sample of informed comment, so sometimes more proactive measures such as workshops and even visits might be required. Second, the decision-making process itself should be transparent, preferably by the publication of all the papers and minutes of the governing body. In the case of IWF, we aim to have papers and minutes on our web site within two weeks of a Board meeting.
Those users or members of the public with a problem need to be able to contact the organisation easily and obtain a response quickly and cheaply. A web site with a clean design and clear navigation is an essential starting point. Since the IWF is concerned about illegal content on the Internet, we endeavour to take all reports on-line. Depending on the volume and complexity of issues, a free telephone help line is likely to be essential - last year, ICSTIS handled over 100,000 calls on its help line.
We should be developing a flexible range of options such as conciliation, arbitration, adjudication and other forms of alternative dispute resolution procedures, choosing for any particular problem the process which is the most practical and effective, with a bias towards speed and cheapness. Here in the UK, we currently have no self-regulatory mechanisms for handling consumer complaints of defamatory libel or copyright infringement on the Internet, but these are precisely the kind of issues that could best be resolved through conciliation and arbitration rather than expensive and time-consuming legal actions.
The remedy needs to be adequate both to satisfy the reasonable expectations of the complainant and to deter the offender from a repeat occurrence. For instance, in the case of a press story which is shown to be untrue, it seems reasonable to expect the correction or apology to have similar prominence to the original story. The Select Committee report on self-regulation of the press has suggested that the Press Complaints Commission should introduce a modest system of fines. Last year, ICSTIS had to close 120 services and fined 174 a total of just over £1 million.
Consumer organisations, such as the National Consumer Council and the Consumer Association, seem to inter-face regularly with Government and statutory regulators, but to have less involvement with self-regulatory bodies. Obviously all consumer bodies have limited resources and massive agendas, but their lack of involvement in Internet issues has been disappointing. There are specific consumer groups prepared to pronounce about radio, television and the press, but nobody speaks for Internet users. Ultimately, of course, we want consumers themselves - and not just consumer activists - to be involved and this is one of the reasons why it is so important that Ofcom develops the media literacy role which has been accorded to it.
It is not enough to have self-regulatory remedies for user and consumer problems; these remedies need to be much better known and understood. There is already an alphabet soup of organisations in the communications field and, while the merging of five existing regulators into a unitary Ofcom will help, there is still widespread consumer bewilderment. Nowhere is this more the case than with problems of Internet content - where does a consumer go with a problem of spam, scam or viruses? There is an argument for having some kind of 'one stop shop' for all issues of media content. This might only be a web site but, with a well-designed system of FAQs, it could point people in the direction of the most appropriate statutory or self-regulatory body or - where no such body existed - give some basic information and advice with some relevant hyperlinks. It would be a virtual MediaWatch
Of course, an important reason why Ofcom is being created is because of the growing convergence of telecommunications and broadcasting and between carriage and content. But the full impact of convergence is still not fully appreciated. ICSTIS has long passed the time when premium rate services could only be accessed via a fixed telephone line; now such services can as easily be accessed through mobile phones, fax machines, computers or interactive television sets. These days most newspapers and television channels have a web site and popular programmes are developing other outlets such as SMS up-dates. Regulators and self-regulators need to liase and work closely together.
Virtually all regulation is focused on national bodies, but increasingly the industries and the media concerned are becoming international, even global. Newspapers and television channels may well be owned by companies headquartered outside the UK and we need to be aware of such owners ignoring or being insensitive to our cultural norms. Nowhere is globalisation more evident that in the case of the Internet: a newsgroup or web site can be hosted anywhere in the world and the person accessing such material could be located anywhere in the world. The 24/7 nature of the Net means that regulatory conventions developed for broadcast media - such as the 9 pm watershed - are irrelevant to the Internet.
Arguably self-regulation is most effective when it is underpinned by some sort of statutory or legal back-stop. In the case of the IWF, if a UK Internet service provider is found to be hosting potentially illegal material but refuses to abide by a take-down notice issued by the IWF, the ISP could be the subject of a criminal prosecution and would have no defence in law. ICSTIS ultimately derives its authority from statute. An interesting recent debate has been around whether the Press Complaints Commission could still be effective if there was a specific law of privacy (as contrasted with the general law of privacy provided by the European Convention on Human Rights). As a citizen, I would like to see a law of privacy.
Who regulates the regulators? Arguably independent statutory regulation in the UK has become too independent. A classic example has been Postcomm which has acted in ways not expected and not supported by Government or Parliament. There is a case for Government once each Parliament to issue, in respect of each statutory regulator, a strategic statement as to what is expected of that regulator of the next few years and there is certainly a strong case for strengthening the Parliamentary scrutiny of our statutory regulators. That leaves monitoring of the self-regulators. Maybe there is a role for Ofcom here. In the meantime, self-regulatory bodies need periodically to reassess their own remit and governance, as the IWF has recently done.
Advertising Standards Authority ASA) click here
Independent Committee for the Supervision of Standards of telephone Information Services (ICSTIS) click here
Internet Watch Foundation (IWF) click here
Office of Communications (Ofcom) click here
Press Complaints Commission (PCC) click here