THE spat reported in The National between the SNP and the BBC over an infographic used in the corporation’s online reporting has posed important questions about the scope of media regulation.
The SNP contends that the figure used in online coverage of the 2019 European Parliament election vote in Scotland was “misleading”. It complained to the BBC. Hannah Bardell, SNP culture and media spokeswoman, expressed surprise that the BBC’s and other broadcasters’ online output “is unregulated and ultimately unaccountable”. That was her conclusion after the BBC referred the SNP’s complaint to Ofcom, whose answer, she said, was “we don’t regulate this”.
Actually, the position is more complicated and worth spelling out. Since 2017, under the current Royal Charter, Ofcom has fully regulated the BBC’s broadcasting. But online content is in a different position. You have to read the Ofcom/BBC “Agreement on Online material” to really grasp present regulatory ambivalence on this question.
(https://www.ofcom.org.uk/__data/assets/pdf_file/0021/101892/bbc-online-arrangement.pdf)
The rules state that the BBC is first port of call for a complaint about the editorial standards of online material. Ofcom then has to decide whether it will accept an unresolved complaint once the BBC’s processes have been exhausted. It must consider whether there is still an editorial standards case against the BBC and, if so, publish an opinion and appropriate recommendation. The BBC has to take note and then act appropriately. The present rules state that Ofcom can’t enforce any action. But it is, nonetheless, in a formal position of regulatory suasion, which is not quite the same as “not regulating”.
Bardell’s public statement does not clarify whether all current procedures were followed in the case she brought. Crucially, though, she has drawn attention to the present limits of online broadcasting regulation and its carefully circumscribed role.
To declare an interest, I was Scottish member of Ofcom’s Content Board when the BBC Charter was being reviewed and the online rules were devised by Ofcom’s executive staff, in line with what the UK government then wanted. Ministers were plainly chary of how far the internet should be regulated. I then thought the present solution could be nothing more than a temporary fix. How long it will be sustainable is an open question, as the regulation of digital content generally not just that of public service broadcasters has become such a big issue. While the climate is changing, we don’t yet know what the new rules of the game are; hence, Bardell’s perplexity.
Whatever the merits or demerits of the SNP’s particular complaint, their regulatory ask is part of a broad emerging agenda powered by states that are increasingly responding to the digital dominance of Facebook, Apple, Amazon, Netflix and Google, as well as political and social issues now manifest in the workings of the digital economy. The taxation of global internet players, mitigating harm to young people, challenges faced by “legacy” media business models, and a range of risks to democracy are all under discussion.
The EU, for instance, has identified international corporate tax rules as failing to capture profits made from digital services owned overseas that have created value inside the single market. Jumping the gun on a stalled EU directive, France has introduced a 3% levy on the total annual revenues of the largest tech firms offering services in its jurisdiction, as a result facing US threats of legal action on competition grounds. Arguments are increasingly in play for using such taxation to support news media, whose business model has been threatened by aggregators and social media.
Last year, the EU enacted GDPR to protect users’ online data.
Since 2018, Germany’s Network Enforcement Law has addressed a range of infringing content including hate speech, humiliation, and defamation on platforms such as Facebook, YouTube, Google+ and Twitter, troubling uses debated internationally.
In the UK, Brexit has crowded out decisive action but certainly not discussion of much of this new agenda. In February, the House of Commons’ Digital, Culture, Media and Sport Select Committee’s inquiry into “disinformation and fake news”, which mobilised international parliamentary expertise, called for the “enforcement of greater transparency in the digital sphere”, with Facebook and Russian interference in elections particularly in its sights.
(https://publications.parliament.uk/pa/cm201719/cmselect/cmcumeds/1791/1791.pdf)
That month the Cairncross Review, focused on the sustainability of the UK’s news industry faced by digital search engines, given the major shift from print to digital. Cairncross recommended a new balance between press publishers and internet platforms. The review’s support for “public interest” journalism by tax relief, the revival of local and regional reporting and widespread media literacy all reflect justified concern about the present state of British democracy.
(https://www.gov.uk/government/publications/the-cairncross-review-a-sustainable-future-for-journalism)
Earlier this year, question of online harm to young people also came into major focus when the suicide of teenager Molly Russell was attributed to her social media use. The UK Government published its Online Harms White Paper in April and consultations have just ended. Child safety is high on that agenda as are national security and disinformation. The focus is on the conduct of online companies of significant scale and a regulator with extensive powers is being proposed.
How that will affect the current set-up is unclear, as Ofcom has stressed that the Broadcasting Code, which regulates all radio and TV content, does not easily apply to the internet. Can the present piecemeal approach, driven by different interests, result in a common regulatory framework?
Last week’s stushie, then, has thrown light on the limits of UK media regulation. To date, regulators have focused on the press, radio and TV. Print and broadcasting have been conceived as distinct ways of delivering cultural content and the regulatory apparatus was devised for a previous generation of media organisations.
The last big attempt to address press regulation came with Lord Justice Leveson’s inquiry, following revelations of extensive newspaper malpractice, notably the illegal interception of individuals’ private phone messages.
Leveson reported late in 2012 and did not secure the intended framework for reforming press regulation. Pertinently, the government’s terms of reference did not even address the internet, a deliberate exclusion. That this could no longer be the starting point is a telling measure of the distance travelled in the past decade.
As “radio” becomes “sounds” and podcasts rapidly grow in popularity, and while audiovisual content is ever more diversely and fragmentarily consumed online across the generations, traditional broadcasting faces the massive challenge of losing audiences to major providers of streamed content.
Last week, the BBC and ITV disclosed their plans for BritBox, a joint streaming service, intended to compete with Netflix, Amazon and NowTV, as well as impending newcomers Disney+ and Apple TV+. A decade ago, the idea of such a platform was rejected on competition grounds. Now it is touted as a national champion because the creative economy is seen by policy makers as a keystone of international trade.
Can this latecomer initiative now significantly affect the prospects of a public service system that is increasingly in question because of its comparative lack of financial fire-power in the global market-place? The disruptive effects of the long transition engendered by the digital revolution are far from over, with regulation often struggling to keep up.
Philip Schlesinger is Professor in Cultural Theory at the University of Glasgow
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