The Welsh Media X: Regulating the Welsh Media

(Title Image: The Independent)

These final three parts (made up of five separate articles) start to look in more detail at how a Welsh media could (not necessarily would) function after independence.

In some respects, this is the most important article of the lot as issues around censorship and media regulation are fundamentally tied to constitutional rights as well as individual and collective freedoms.

How is the media currently regulated in Wales?

This is an issue that was pretty much ignored until the 2011-12 Leveson Inquiry into the culture and ethics of the UK (primarily English) print press. The system of media self-regulation was deemed to have failed after a phone-hacking scandal which led to the closure of the News of the World, numerous celebrity lawsuits and calls for statutory regulation of the print press (which I touch on later).

Post-Leveson there have been two regulatory bodies for the print press:

  • Impress – This is the officially-recognised independent press regulator established via the terms of a post-Leveson Royal Charter in 2013. It was supported by some of the high-profile victims of the phone-hacking scandal, though it’s been rejected by pretty much all major print titles and its membership primarily consists of hyperlocal and other independent online publications. It’s funded via a levy on members and provides arbitration services for complaints.
  • The Independent Press Standards Organisation (IPSO) – This is the successor to the Press Complaints Commission, which was wound-up following the Leveson Inquiry – though it’s not officially recognised under the Royal Charter. It’s essentially a print press self-regulator and is the larger of the two bodies with most print publications being IPSO members. Again, it’s funded via member levies.

Some print publications, notably The Guardian and Financial Times, are members of neither and have their own separate complaints-handling systems.

As for the rest of the media, there are several different regulatory bodies including:

  • The Office of Communications (Ofcom) – The official regulatory for television, radio and on-demand/streaming services – in addition to the broadcasting system/electromagnetic spectrum itself, postal services, telephone services and internet service providers (ISPs). Ofcom is based in London but has a Welsh advisory committee. It’s funded by a mix of government grants, broadcast and spectrum licence income and fines. In a normal year, Ofcom’s operating expenses are around £200million, though it’s currently involved in a lengthy legal action with mobile operators over licence fees, which led to it post a £230million deficit in 2018-19 (pdf).
  • The Advertising Standards Authority (ASA) – A self-regulatory body for the advertising industry in the UK, covering all forms of advertising including print, broadcast and online. A Committee of Advertising Practice (CAP) is responsible for drafting advertising codes determining what is or isn’t acceptable. It’s funded by a levy on ad spaces amounting to 0.1% for advertising space and 0.2% for direct mail. Its revenues in 2018 were £9.2million (pdf – p33).
  • The British Board of Film Classification (BBFC) – The BBFC is responsible for issuing content rating certificates to films, DVDs, online music videos, streaming services and certain adverts. It’ll also be responsible for age verification for pornographic websites in the future.
  • Video Standards Council Rating Board (VSC) – The BBFC equivalent for video games and mobile apps, applying ratings based on the Pan-European Game Information (PEGI) system. The VSC can ask the BBFC to rate a game on request and some games rated 18+ receive a BBFC rating certificate.

How free should the Welsh media be?

 

The UK has a surprisingly poor track record when it comes to freedom of the press (Pic: The Guardian)

Freedom of the press is considered a basic right, linked to a general human right to freedom of expression. Without a strong, impartial and free media, those in power aren’t held to account, which ultimately creates the necessary conditions for widespread corruption, human rights abuses and totalitarianism.

The gold standard measure of press freedom is the Reporters Without Borders Press Freedom Index. Data is gathered using a questionnaire, which records abuse of journalists, pluralism (expression of different opinions and perspectives), media independence (from government interference), operating environment & self-censorship, legislation governing news gathering, transparency and the quality of infrastructure to support newsgathering.

The scores in each category are used to calculate an overall score out of 100; the higher the score, the less free the press is. Nations are then placed into five broad categories: good, satisfactory, problematic, difficult and serious.

In 2019, the UK (score: 22.23) ranked 33rd out of 180 nations and was deemed “satisfactory” but only a few points off “problematic”. The UK one of the worst-ranked major western nations for press freedom. This is mainly blamed on investigatory powers relating to terrorism and limited legal protections for whistleblowers – though there’ve been increasing physical attacks on, and intimidation of, journalists and some concerns over plurality of ownership of the UK media.

The best-performing nations are, generally, the smaller and mid-sized Western countries (particularly the Nordic countries), with a few surprises such as Jamaica and Costa Rica. New Zealand was in 7th place and the Republic of Ireland was in 15th place (Part IX).

The only large western liberal democracies which appear in the top 20 are Germany and Canada, with Australia just outside. The United States – a supposed bastion of freedom – ranked a lowly 48th.

If an independent Wales is going to set a benchmark for press freedom then it’s probably best to aim to emulate whatever it is the top 10 are doing instead of continuing in whatever slippery slope we’re on in the UK. Despite that lofty goal, I wouldn’t be surprised if, in isolation, Wales scores worse than the UK, down mainly to a lack of plurality as well as the poor working environment for journalists due to the weak position of the Welsh print press (Part IV, Part V) and dominance of the BBC (Part III).

The hallmarks for good press freedom, based on best practice globally, seem to be:

  • Written constitutional protections for freedom of speech and freedom of the press (the UK doesn’t have a codified constitution, but the Human Rights Act 1998 does provide protections).
  • Strong emphasis (and funding for) independent and impartial public service journalism and public service broadcasting whilst upholding plurality and choice via commercial broadcasters.
  • No direct political involvement in the regulation of the press and a presumption against statutory press regulation.
  • Light touch censorship, little self-censorship and strong legal protections for journalists and their sources.
  • Weak defamation laws.
  • Strong freedom of information laws/open government.
  • Competition laws which prevent a concentration of shares in media companies in too few hands.
  • Low levels of violence and abuse against journalists (including citizen journalists/bloggers).

Censorship: Is it needed and under what circumstances?

 

(Pic: The Guardian)

Censorship (as opposed to media regulation) is a touchy issue in itself as altering or banning a work – sometimes for our benefit, sometimes not – pushes against the boundaries of freedom of speech. So it’s important to get the right balance between respecting collective and individual rights to say what we want and protecting people, the economy – even the state itself – from harm.

There may be pragmatic and perfectly justifiable reasons to restrict access to certain materials or even ban their publication completely. The UK operates a Defence Advisory (DA) Notice system, also knows as D-Notice. It’s a voluntary, non-compulsory agreement between media and government not to publish information relating to five standing notices covering military & intelligence operations, nuclear capabilities and secure communications.

Post-independence there would be a need for a similar system, though with a few guiding principles based on what censorship shouldn’t be:

  • No political censorship – Content shouldn’t be censored for political reasons and politicians and political parties/groups should have complete freedom of expression, as long as they don’t cross the boundaries into another part of the law (like personal abuse, defamation or inciting hatred). People who do make contentious political statements – but falling short breaching anyone else’s rights/the law – should expect scrutiny in response, while that counter-scrutiny shouldn’t be subject to censorship either. No more wailing about “human rights” if you come under verbal attack for your deliberately inflammatory views.
  • No religious censorship – Wales already is a secular nation, meaning no religion or denomination is considered above another. Content shouldn’t be censored to favour one group over another, protect religious sensitivities or force religious doctrines on people. Again, this should apply to the extend that it doesn’t cross the boundaries into another part of the law (i.e. inciting religious/sectarian hatred).
  • No educational censorship – Educational material (i.e. textbooks) should be judged on whether it meets the standards of the curriculum and its robustness under peer-review, not content.
  • No creative/artistic censorship – Anything considered “creative” or a “work of art” shouldn’t be subject to censorship. Deciding if an artistic work is obscene is often very hard to determine – bordering on impossible – in written form (I come back to this shortly), but easier for visual and sound. This comes down more to age suitability (like films and games), questions of taste and whether a criminal offence has been committed rather than censorship.
  • No right to incite hatred, abuse or discrimination, but a “right” to express opinions without interference, to offend or to shock – This is probably best dealt with via constitutional clauses, but based on all of the above, offending individuals or groups of people shouldn’t in itself justify censorship however unpleasant it might be. The boundary would be incitement – holding and expressing a personal view, being a complete arsehole or telling a joke is one thing, encouraging others (or seeking a position of influence to encourage others) to actively hate, harass, discriminate, persecute or curtail the rights and freedoms of people different from themselves crosses the line. In essence, protecting freedom of speech by placing carefully defined limits in order to address Karl Popper’s paradox of tolerance: that allowing destructive intolerance threatens all tolerance (See also: Keeping the Faith III: Cults & Extremism and Equal Wales: Why Equal Rights?).

At present, the UK has five classification levels for sensitive government and official material. Wales could streamline this into three levels (which could all be subject to legal challenge under improved Freedom of Information laws after independence):

  • Top Secret – Release would likely cause a threat to or significant loss of life, damage critical national infrastructure, cause serious diplomatic incidents or harm active intelligence/police operations.
  • Classified – Release would likely disrupt public order, damage diplomatic relations, lead to a significant financial loss, significantly harm Welsh industry or prejudice criminal investigations.
  • Restricted – Information that could cause distress to individuals, harm business relations/negotiations between business and government or incur smaller financial losses.

“Top secret” and “classified” could be subject to a media blackout and punishable under the law if released – presumably a continuation of the Official Secrets Act.

Revealing/releasing “restricted” information could be defended if it’s deemed to be in the public interest (on a case-by-case basis). Classified documents in the lower two categories could be released to the public after a certain amount of time, such as under the current Thirty Year Rule.

If we break with UK legislation on this issue, it would be an opportunity to revisit and decide what counts as an “obscenity.”

Obscene Publications

The definition of “obscenity” has changed over the past century because it’s based mostly on what society as a whole considers morally unacceptable at a particular time. Nudity and bad language, for example, are now much more tolerated than they might’ve been 50-60 years ago.

The first thing though is deciding what would – in 21st Century Wales – count as an “obscenity”. You’ll probably all have your own ideas, but it probably boils down to a universal or instinctive moral repugnance/disgust and acts (usually but not always sexual) that only a very small minority would tolerate in either private or public:

  • Non-consensual sexual acts (including simulation of rape and so-called “deep fakes”).
  • Paraphilias which involve an element of non-consent including posting nude images without consent, child pornography, zoophilia/bestiality and voyeurism.
  • Child abuse and role-playing as someone under the age of consent.
  • Animal abuse and animal cruelty.
  • Desecration of graves and the dead.
  • Incest.
  • Cannibalism.
  • Harry Kane and Dele Alli’s diving.
  • Any sex acts that could leave a lasting injury/mutilation, are potentially life-threatening and/or causes excessive bleeding.

One key legal test in determining whether a work is obscene or not would be “artistic merit” and context. A horror film (or death metal bands from Newport) can, or should, get away with a depiction of cannibalism for example, or a drama might use rape as part of a plot – but nobody can get away with real child pornography as it’s evidence of sexual abuse.

James Joyce’s novel Ulysses contains some pretty graphic depictions of bodily functions and was banned as obscene for several years. Now it’s considered one of the great literary works of the 20th Century – yet if you tried to replicate it on film word-for-word, even today, it would likely fail to get a certificate even though it’s not intended to be sexual. Is there a distinction between the written and the visual when it comes to obscenity – as in, do you actually have to see something for it to be obscene, not just think it?

All consensual sexual acts between non-related adults, unless it falls into a specific and legally-defined category of obscenity or another part of criminal law, should perhaps no longer be considered an obscene publication as long as the those accessing it are restricted to over-18s – in line with a key finding from the R v Peacock trial from 2012 (pdf). See also: Vice Nation – Pornography.

There can also be important exemptions. News/current affairs, political groups, public information campaigns and charities could be exempt depending on the circumstances. For example, children’s charities might want to realistically depict child abuse in campaigns, similarly environmental and animal welfare groups concerning animal abuse.

How might a media/content rating system work in an independent Wales?

Media content regulation is carried out to “pass judgement on the appropriateness of material for audiences” usually relating to age suitability.

As mentioned earlier, the British Board of Film Classification (BBFC) is the body responsible for applying classifications to films, film trailers and recordings (DVD’s etc.) – funded by the film industry itself. The VSC does something similar for games.

Despite being a censor, the BBFC is fairly liberal. It doesn’t “ban” media as such. Instead, it decides whether content would leave producers liable to prosecution under UK laws, such as the Video Recording Acts 2010. The BBFC can pass content cuts – usually of only a few seconds to avoid destroying a plot – to help meet set criteria for rating certificates.

Material is usually, but not always, exempt from classification if it’s educational/informative in nature.

Material can be refused classification if it breaches censorship/obscenity laws – and the BBFC have been tasked with enforcing an R18 certificate on pornographic websites, known as “The Great Porn Block” which hasn’t been fully implemented by the UK Government as of September 2019.

If a work doesn’t receive a rating (unless it’s exempt), then it can’t be shown in UK cinemas or sold anywhere. Refusal to grant a certificate is, therefore, a de facto ban on public performance or sale rather than a ban on the material itself which is an important distinction.

Wales would, broadly, face two options:

  • Continue to use BBFC (and PEGI) recommendations and certificates – To be honest, the BBFC are good at what they do, with clear guidelines and standards. It’s a simple case of: “If it ain’t broke….” The only problem comes when laws relating to obscenity, censorship or freedom of speech diverge between Wales and (the then) England-based BBFC which could end up tied up in the courts.
  • A distinctive Welsh system of media classification – The Republic of Ireland has its own Irish Film Classification Office. Its rating certificates are often included on the outside packages of media for sale in the UK. It’s largely self-sustaining, bringing in €1.54million in fees during 2017 (pdf – p10).

Setting up a Welsh version of this shouldn’t be too difficult, but it would need to be backed up with new Welsh legislation on obscenity and media classification. Maintaining BBFC classifications immediately upon independence then replacing them with a Welsh system through legislation within a parliamentary term or two is probably the best way forward.

If we were to adopt a new system, given the growth of digital media it might be worth aligning TV and film ratings with the PEGI gaming rating system, meaning a PEGI-style rating would be given to all forms of media and displayed on-screen before TV and on-demand programming. PEGI is perhaps clearer in getting across age suitability and any potentially offensive or adult-only themes via its content advistories (the graphics of which could themselves be colour-coded on packaging based on the “strength” of that content).

As I mentioned in the Vice Nation series, the R18 rating could be scrapped altogether with hardcore pornography being given a standard 18 certificate – though there would be discretion to block certain films being broadcast on television (except encrypted channels). A 10 pm watershed for 18-rated content could remain in place.

Who should regulate the Welsh media after independence?

Even if broadcasting were devolved, let alone Wales became independent, some aspect of media regulation would have to be devolved alongside it.

  • Do nothing – Retain Ofcom, ASA, BBFC and IPSO etc. without any change to their remit, with the Welsh Language Commissioner taking on some role with regard the Welsh language media. This wouldn’t cause any problems, but it would mean broadcasting would become the responsibility of Wales without any “teeth”.
  • Middle option – Ofcom Wales takes on most of the responsibility for media regulation in Wales, along with a greater role for the Senedd and the Welsh Language Commissioner in terms of accountability. Industry-led and funded bodies such as the ASA and BBFC would remain unchanged.
  • Do maximum – A new Welsh media regulator/regulatory bodies established either by statute or as a continuation of existing bodies, answerable to the Senedd.

The do-nothing option would certainly work if broadcasting were devolved, but independence would be a different matter – so it can be ruled out.

The middle option would cause less disruption and might be the most fitting model for devolution of broadcasting. Ofcom Wales would get a beefed-up role and would effectively become an independently-run subsidiary of Ofcom UK, with Ofcom UK retaining regulatory control of non-broadcasting related matters which would presumably remain under the control of the UK Government (electromagnetic spectrum, postal services, telephone services etc.).

Independence would almost certainly require the do maximum option. Wales would take control of pretty much all areas that are currently the responsibility of Ofcom. Leaving issues like postal service regulation and the electromagnetic spectrum in the hands of a perfectly capable, but ultimately foreign, organisation would be a security and economic risk.

A Welsh Media Commissioner

 

(Pic: ibc.org)

One way to approach this is the establishment of an independent Media & Communications Commissioner, appointed by and answerable to the relevant Senedd committee.

Based on precedents set by the Welsh Language, Future Generations, Children’s and Older Person’s Commissioners, a Media Commissioner could be a full-time position lasting for a non-renewable term of 7 years.

In some ways, folding Ofcom, BBFC, ASA responsibilities into a single office would be more efficient than the current model as, with a population of 3.1million, there’s no need for so many separate regulatory bodies largely covering the same ground.

So the Media Commissioner would be responsible for (the existing responsible body in brackets):

  • Control of the electromagnetic spectrum, including issuing radio and broadcasting licences, broadband and setting conditions of service (Ofcom).
  • Drafting, enforcing and reviewing a Broadcasting Code (Ofcom).
  • Drafting, enforcing and reviewing an Advertising Code (ASA) and setting rules for adverts (Ofcom).
  • Regulation of postal services (Ofcom).
  • Monitoring/analysis of issues facing broadcasters, advertisers and the media in Wales and taking the views of audiences into account – possible including the publication of accurate Wales-only audience data (Ofcom, plus ABC, Rajar and BARB for newspaper circulations, radio ratings and TV ratings respectively).
  • Issuing media classification certificates and drawing up classification guidelines for films (cinema and home release), film trailers, television, streaming/on-demand services and video games (BBFC, VSC).
  • Investigating and logging complaints about advertising on television, radio and in print (ASA), content on television and radio (Ofcom).
  • Drafting and reviewing and Editorial Code and overseeing the investigation of complaints about the print press and journalism (IPSO).

The role of Media Commissioner (as I outline it) would be incredibly powerful – probably one of the most powerful non-elected public positions outside of government and the courts.

Decisions, of course, wouldn’t be left to the Commissioner themselves. Several standing advisory committees could be set up with independently-appointed members alongside lay members/members of the public to inform decision-making based on their experiences, professional and personal judgement and any other presented evidence; for example, it shouldn’t be left to a Commissioner alone to draft a Broadcasting Code or content rating system.

The Commissioner could have the power to issue fines where appropriate and deemed to be within their power to do so.

When it comes to the press, the journalism profession itself and journalism experts (academics etc.) should lead the drafting of an Editorial Code with the Commissioner, independent of government and political influence – so there wouldn’t be statutory regulation of the press. Regulation should only kick in where something “goes wrong” by most people’s definitions (i.e. incitement, invasions of privacy) or when someone wants to personally challenge something printed in the press or online.

In the first instance, the complainant and the respective media outlet should attempt to resolve the dispute themselves. Only if they’re unable to do so should the complaint be referred to the Media Commissioner and the relevant advisory committee/complaints panel. The panel would decide – if a complaint is upheld under the Editorial Code – what would be an appropriate redress, whether it’s a formal apology, formal retraction, right to reply, limitations on broadcast or compensation etc.

This could extend to citizen journalists and social media sites, who in turn could agree to uphold the Editorial Code as an unofficial “kitemark”, receiving some additional legal protections that would otherwise only be available to Press Card holders.

 

Do we need a “Carmarthenshire clause” in a Welsh Constitution to protect freedom of speech? (Pic: 38Degrees)

Claims of defamation/libel could be dealt with through the civil courts as currently, though defamation laws could be tightened to set a very high bar with regard the burden of proof (shifting it to the claimant rather than the defendant – like other civil law cases), setting a requirement for a jury and to formally outlaw (via the Constitution, perhaps) public bodies and politicians bringing forward defamation claims with public funds. The goal would be to prevent the rich and powerful from silencing critics and stifling debate.

Then there’s the question as to how to regulate the internet? The internet operates almost like a society within a society. Societies need rules, but they also need freedoms. You can’t filter out the bad stuff that happens on the streets, and it’s society’s job to react to it, punishing people when they break the rules. So policing the internet should in turn be “reactive”, not “proactive”.

What applies in real life should apply online. So, for example, if someone went to a funeral or memorial service to mock a dead child, it would likely be a breach of the peace or “intentional harassment, alarm or distress” – all liable to prosecution, including a large fine or imprisonment for up to 6 months. So the same offence committed online would be treated in the same way. Prosecution would still comply with any constitutional right to freedom of speech as the state won’t have prevented the person from saying something; freedom of speech doesn’t protect you from the consequences of what you’ve said and doesn’t guarantee you a platform to say something either.

Where possible, existing criminal/common laws should be modified to include the internet – an updated Malicious Communications Act, for example – instead of creating a raft of new internet-specific laws. Online abuse could be formally monitored and reported upon by the Media Commissioner. Also, with the global debate on the impact of fake news, online extremism and cyberbullying, it’s worth considering whether a Code of Practice for Social Media Operators should be drafted and enforced.

If the office of the Media Commissioner had 100 full-time equivalent staff (a little over twice the size of the Welsh Language Commissioner’s Office), then based on the Welsh Language Commissioner’s annual report for 2018-19 (pdf), you would expect running costs of a Media Commissioner to be around £7million a year – though based on the proportional size of Ofcom’s budget, it would probably be closer to £10million, which is in line with Ireland’s Broadcasting Authority.

As the Commissioner would be issuing electromagnetic spectrum licences and collecting various fees, it’s possible it could be partly self-financing with any annual operating surplus (in years where there’s a surplus, such as a sell-off of spectrum licences) turned over to the Welsh Government, retained in reserves or ring-fenced for other broadcasting and media-related regulatory projects.

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