or: can the fox run the henhouse? - cgcs media...

Self- and Co-Regulation in the MediaOr: Can the fox run the henhouse?

The Annenberg / Oxford Summer Institute – Global Media Policy

Dr. Wolfgang Schulz

Hans-Bredow-Institut

Founded by the former Northwest German Broadcaster and the University of HamburgFocused on public communicationBasic research as well as service for “stakeholders”

IndependentMultidisciplinary

Law and PolicyCommunication science, psychology, economy…

Staff: app. 20 (at Christmas parties up to 40)Funding

2/3 donations (city of Hamburg, public broadcasters, regulators…)1/3 income from projectsIn future: teaching, cooperation with legal consultants

Overview

Understanding Regulation Self-RegulationCo-RegulationRecent Study “Co-Regulation Measures in the Media Sector”Outlook

What is Regulation?

Various understandings:Regulation in its broadest definition equated with governingRegulation as a particular and separate policy instrument, where it is distinguished from other instruments such as exhortation, spending, taxation Regulation as delegated legislation, or rules that are made pursuant to powers granted in a parent statute OECD: „Full range of legal instruments, by which governing institutions, at all levels of government, impose obligations or constraints on private sector behavior.“

What is Regulation?

Structural weaknesses of the traditional understanding:State centered Regulation as a stimulus-response-chain rather than a process

Model: Command-and-control-regulationSpeed limits on highways with monitoring and sanctions

To a de-centralized understandingGovernment Governance

Weaknesses of Command-and-Control-Regulation

Traditional regulation ignores the interests of the objects (companies) it regulates, and this may generate resistance rather than cooperation.The regulating state displays a knowledge gap and this gap is growing. In contrast to the resource ”power“, information is not at the privileged disposal of the state.Gaps of understanding that cannot be overcome (”theory of autonomous social systems“).Regulation does not seem to stimulate creative activities effectively. Initiatives, innovation and commitment cannot be imposed by law. Traditional regulation tends to operate on a case-by-case basis only, and not in a process-orientated manner.Globalisation enhances the potential for international ”forum shopping“ to evade whatever national regulations.

Modes of Regulation

co-regulationpure state regulation self-regulation

Command and control; in practice negotiation and selective enforcement

Self-regulation; in practice surrounded by law

Self-Regulation

Definition Self-Regulation: The state refrains from interfering with a process assuming that social processes will lead to a result which will achieve the objectives of regulation on its own. It is controversial which processes can be seen as self-regulation. In our wide-ranging concept the market is regarded as a form of self-regulation. Different forms of self-regulation can be distinguished:

To be distinguished Intentional self-regulation: different players agree to rules regulating their activities and they define and enact codes of conduct.Spontaneous or implicit self-regulation describes a process in which the outcome is not the result of the reflection of the actors; the market can serve as an example for such a process.

Social, extra-organisational proceduresOrganisational procedures

Self-Regulation

Extra-Organisational Organisational

Implicit

Explic it

Market Corpora te Culture

Codes o f Conduct Quality Management

Fields for (pure) Self-Regulation in the Media

Media PressInternet

Policy Objectives Professional EthicsAdvertising Content Technical Standards

Example: Press Council

Co-Regulation

Various terms to describe forms of combination of state and non-state regulation“Regulated self-regulation""Co-regulation""Audited self-regulation”"Self-regulation""Enforced self-regulation""Enforced voluntary regulation"

Co-Regulation

The starting point mattersCommand-and-control-regulation co-regulationSelf-regulation co-regulation

The initiative mattersBottom to topTop to bottom

Co-Regulation

QuestionsDefinition Models Effectiveness Conditions to work properlyLegitimacy Process objectives and rule of law

Study on Co-Regulation

Study “Co-Regulation Measures in the Media Sector”Commissioned by the EC, GD Media and Information SocietyFinished July 2006 Background: Revision of the “Television without Frontiers Directive” (TWF)

Audiovisual Media Services Directive. Art. 3 (2)-(3) of the Commission’s proposal:

2. Member States shall, by appropriate means, ensure, within the framework of theirlegislation, that media service providers under their jurisdiction effectively comply with theprovisions of this Directive.3. Member States shall encourage co-regulatory regimes in the fields coordinated by thisDirective. These regimes shall be such that they are broadly accepted by the mainstakeholders and provide for effective enforcement.

ScopeTypes of media covered:

PressBroadcastingOnline and Mobile ServicesFilm and interactive games

The following regulatory objectives are included for examination: Protection of Minors and Human DignityAdvertising Quality, Ethics, Diversity of Private MediaAnnex: Access, Standard Setting

Definitions in existing studies

Non-state componentState component

I. Non-state component:1. Creation of specific organisations, rules or processes

2. To influence decisions

3. Performed by the addressees themselves.

II. Link between non-state and state regulation: 1. Achievement of public policy goals

2. Legal connection

3. Discretionary power of the non-state regulatory system

4. State uses regulatory resources

Working definition: criteria for determining which types of regulation are covered by the study

Working definition

Measures by third parties (e.g. NGOs)

3. As long as this is performed by or within the organisations or parts of society that are addressees of the regulation

Pure consultation 2. To influence decisions by persons or, in the case of organisations, decisions by or within such entities

Informal agreements, case-by-case decisions

1. The creation of organisations, rules or processes

Cases excluded by this criterion

Criteria I. Non-state-regulatory system

Working definition



Pure consultation2. To influence decisions by persons or, in the case of organisations, decisions by or within such entities





II. 3.: What is Co-Regulation?

Working definition





1. The creation of organisations, rules orprocesses



Non-state regulation

Non-state regulation as part of the regulatory process:non-state rule-making and/ornon-state implementation and/ornon-state enforcement

Working definition








Working definition

The state leaves it completely to the non-state regulatory system to fulfill the regulatory goals

4. The state uses regulatory resources to influence the non-state regulatory system

Traditional regulation3. The state/EU leaves discretionary power to a non-state regulatory system

Informal agreements2. There is a legal connection between non-state and state regulation

Measures to meet individual interests

1. The system is established to achieve public policy goals

Cases excluded by this criterionCriteria

II. Link between the non-state-regulatory system and state regulation

Legal connection


Non-state regulatory process

legal basis

Non-state regulation State regulationlegal connection

e.g. state acts, guidelines, contracts

Working definition










Discretionary powerII. 3.: What is Co-Regulation?

Non-state code State actincorporation

Revised non-state code

incorporation

(+)

Discretionary power

Revised State Act

Non-state code State actincorporation

(-)

Working definition









State influence on the regulatory process

State uses regulatory resources to influenceRule-making and/orImplementation and/orEnforcement

Regulatory resources

Kinds of resources:“Strong" resources like power and money; not sufficient: publicity

Intention of usage of resources:State uses the resources to influence the outcome of the regulatory process; not sufficient: giving money or resources without regulatory intention

Conditions for Co-Regulation (1/2)Regulatory culture

Especially important for models of co-regulation that depend on industry associations, for example to draft codes or enforce rules. Regulatory theory pointing to those weak factors is backed by our empirical findings.

Incentives for co-operation and enforcement Since co-regulation depends on industry commitments the incentives for the industry to co-operate have to be adequately high. In most cases the incentive lies in the avoidance of state regulation.

The State must reduce its regulatory power significantly and It must be likely that the state implements its own regulation in case non-state regulation fails.

Sufficient means to enforce the regulation; adequate and proportional sanctions seem to be necessary for a co-regulatory system to be workable.

Conditions for Co-Regulation (2/2)

Process objectivesSeveral co-regulatory systems lack sufficient safeguards for process objectives.Most of the assessed systems lack transparency. Even internal experts who to some extent live on the system often indicate this weakness. However, the systems „Germany: Protection of minors in movies”, „Netherlands: Advertising regulation in broadcasting”, „Netherlands: Protection of minors” and „United Kingdom: Advertising regulation” are regarded as sufficiently transparent by the majority of the experts.

Another finding true for a significant number of systems is the lack of openness. The state part of the regulatory setting has to set respective requirements.

Regulatory objectives suitable for Co-Regulation

Protection of minorsAdvertising content regulation

Examples for Co-Regulation South Africa - Broadcasting

ICASA BMCC

NAB

BCCSA

broadcasters that have not

signed the code

broadcasters that have

signed the code

Code

adjudicates on complaints

made

sign

established

enforcement

Examples for Co-RegulationAustralia Broadcasting

members of the publicbroadcastersinternet providers

non-state bodyACMA

StandardCode

joins working group

registers

may make compliance with the code a licence condition

sets standardif code fails

take-downnotice

can complain

draw up

Examples for Co-Regulation

DE - FSK: Freiwillige Selbstkontrolle Filmwirtschaft (FSK) pre-assesses movies and DVDs; State authorities concluded agreement on ‘incorporating’ decisions, representatives are present in classification boards; Sanctions mainly a matter for state

Findings: Pace of decision-making high enoughIncentives for industry participation sufficientInfringements: seldom (or less often)State participation not regarded as negativeProcedural safeguards highlighted

Protection of minors - no access to harmful content

OverviewCo-Regulation under the ECHRCo-Regulation within the European Union Law

PrinciplesLimitationFreedom to provide services, art. 49 ECDistortion or restriction of competition, art. 81, 82 EC

Co-Regulation under National Law

Co-Regulation under the ECHRECHR does constitute binding law for state parties, but is by virtue of Art. 6 para. 2 EUC part of EC-Law, as well.

Civil Liberties granted in Arts. 1-18 ECHR, in regard to media: Right of respect for private and family life (Art. 8 ECHR)

Right to a fair trial (Art. 6 ECHR)

Right to an effective remedy (Art. 13 ECHR) Obliges convention states to provide an “adequate remedy”.Of major relevance to co-regulatory systems.Restricted to rights protected by the ECHR.

Systems evaluated do not fall under the scope of ECHR, but not impossible that there might be obligation based on Art. 8 ECHR to protect minors

Co-Regulation within European Law - Principles

Principle: Directive is binding as to the result to be achieved, but leaves Member State the freedom to choose forms, methods and national authorities, Art. 249 par. 3 EC.

Freedom to chooseform

method

national authorities

Co-Regulation within European Law – LimitationLimitation: Implementation of directives has to fulfill certain criteria:

Specific provisions of a directive

Full application in a clear and precise manner

Effectiveness

Binding character

Sufficient safeguards to ensure the compliance with these rules

Effective legal protection

Co-Regulation under Art. 49 EC (1/2)Meaning of Art. 49 ECScope of Art. 49 EC

Illegal restrictionsOpen and hidden discriminationE.g.: Rules regulating the entry to a profession (licensing requirements)

Justification of restrictionsArt. 45, 46 EC in connection with Art. 55 ECGeneral interest: e.g. consumer protection, professional ethics, cultural diversity. Applied to co-regulatory systems of the study: protection of minors and consumer protection can be regarded as general interests.

Addressees: Applicable to state regulation regardless of form of action: public or private law; even collective rules of associations (e.g. chambers of commerce)

Co-Regulation under Art. 49 EC (2/2)Consequences for the implementation of Co-Regulation

Rules set within co-regulatory framework have to observe Art. 49 EC.If directive is transformed, ECJ will consider private actors as addressees.Systems have to be designed without constituting restrictions for service providers situated in another Member State. Co-regulatory settings have to avoid the creation of closed shops.Hampering of market may be justified if actions undertaken are necessary on grounds of public policy and applied in proportionate way.Origin Principle: No mandatory participation to co-regulation body in the receiving state.If a company opts for voluntary joining another Member State’s co-regulatory system, country of origin remains responsible as far as the subjects harmonised by the directive are concerned.

Co-Regulation under Art. 81 EC (1/2)Non-state-regulatory part of co-regulation might distort or restrict competition.

Distinction between state law and private rules Status of professional associations, ECJ has regarded such rules as state law not as private rules under the following conditions:

Deciding body consists of a majority of representatives of public organisations.Or representatives do act as independent experts who are bound only to observe the public interest.Or the deciding body acts in accordance with public policy objectives and the state remains finally responsible for the regulation.also applicable to co-regulatory systems (esp. when industry associations play a vital role)

Co-Regulation under Art. 81 EC (2/2)Actions of undertakings under Art. 81 EC

Scope of discretion for undertakingsUndertakings do not infringe Art. 81 EC if they implement state regulation which forces them to restrict or distort competition. Co-regulation systems that leave discretionary power to the non-state regulation have to be singled out.Other co-regulatory systems are bound by Art. 81 EC.

Restriction or distortion of competition as object or effect of agreementsDecisions or rules of non-state-regulatory body might be regarded as horizontal agreements under Art. 81 EC. ECJ: Anti-competitive agreements do not infringe Art. 81 EC if they are part of broader framework which aims at improving, securing or enabling competition in the respective branch of the industry.

OutlookActual Proposal for a Directive of the European Parliament and of the Council Amending Council Directive 89/552/EEC with reference to co-regulation. Still Lobby activity to put self-regulation on a par with co-regulation regarding art. 3 (3) of the proposed Audiovisual Media Services DirectiveAdequate?

or: can the fox run the henhouse? - cgcs media...

Documents