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Why’s the media regulated?

Freedom of expression is a right of all individuals, as enshrined in Article 11 of the Charter of Fundamental Rights of the European Union (CFREU) and Article 10 of the Human Rights Act 1998. These articles provide the “freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. While Article 11(2) CFREU protects the “freedom and pluralism of the media”, expression is limited to a much greater extent in the media than it is for individuals. This is an attempt to protect the truth and reflects the greater influence generally held by the media.

While ‘media freedom’ is concerned with avoiding excessive regulation, ‘media plurality’ focuses on retaining independence from third-party control, and mitigating disproportionate influence of economic, social or political forces on the media.  

Somewhat counterintuitively, greater regulation can lead to greater freedoms, as a competitively regulated ‘marketplace of ideas’ prevents (in theory) the biggest players from controlling and monopolising what we see.

How’s the media regulated?

Much of the media in the UK operates on a self-regulating basis, with industry-specific standards. The Broadcasting Act 1990, for instance, aimed to increase competition by deregulating the broadcasting industry. There’s also significant oversight from public authorities, namely Ofcom and its Broadcasting Code. Most of Ofcom’s powers are conferred by the Communications Act 2003. 

Regulation is obviously not foolproof:

• ‘Type 1’, or false positive errors, occur where no action is taken against harmful content, such as hate speech; and
• ‘Type 2’, or false negative errors, occur where freedom of expression is disproportionately, excessively, and unnecessarily restricted. 

The Digital Services Act offers a balanced approach – that is:

• Article 6 exempts liability from platforms who unknowingly host illegal content; and
• Article 7 creates a liability exemption for platforms making good faith attempts to remove illegal content. 

These provisions help to incentivise better self-regulation. 

How regulation of the media has changed

This self-regulation might still stifle media diversity and competition. Vague, self-regulatory rules may potentiate inconsistent and unfair enforcement.

The digitisation of media and the ever-increasing prevalence of online communication methods have changed how media expression and diversity are regulated, with people increasingly accessing news exclusively through social media and search engines. Through social media, search engines, or news aggregators, the content that users see online could be filtered. Whether manually or algorithmically, in good faith or otherwise, this can dilute or distort the sources that consumers are exposed to, impacting on truth, information freedom and media diversity. An Ofcom analysis in 2022 found that accessing news through social media can lead to a decrease in the quality of information consumed. 

There are benefits to this processing: consumers receive tailored results and processors receive advertising revenue. However, with processors often holding superior bargaining power, they can maintain unfair market positions, thus reducing competition and restricting media diversity. Following the introduction of new EU copyright laws in 2019, Google refused to compensate publishers and excluded them from search results.

The ever-growing presence of online advertising correlates with decreasing newspaper circulation, which leads to the demise of publications. In turn, this reduction in media diversity and stifling of competition correlates with increases in corporate misconduct, and a reduction in transparent coverage on courts and local government. It’s been pointed out that early in the days of digitisation, many new internet corporations considered themselves still mere software companies, paying no mind to the potentially long-term effects of their services and the content they hosted. With platforms being the ‘new governors’ of online speech, they can’t be allowed to operate unchecked.

Digital remedies?

Generally, even the staunchest proponents of the marketplace of ideas believe some form of regulation to be necessary. The value of competition has been mentioned throughout this article. Certain remedies may exist in the form of competition law – as with the case of Google abusing a dominant position in favouring its own services. As part of the Competition and Markets Authority (CMA), the Digital Markets Unit was established to handle digital competition. Ofcom has made digital adaptations for media plurality: in light of social media’s effect on media diversity, The Cairncross Review suggests online specific codes of conduct, a ‘news quality obligation’, and media literacy training. Ofcom has since adopted many of these. Further, print media is increasingly deregulated, with tax-reliefs intended to support the industry. The Cairncross Review recommended making e-subscriptions zero-rated, which was subsequently implemented. The Digital Markets, Competition and Consumers Act 2024 (DMCCA) will also play a significant role in regulating competition in the digital market generally, including media diversity, by granting the CMA greater controls relating to online services with ‘strategic market status”’ 

The UK regulatory system has partly adapted to digitisation – although some issues remain, in particular elements of industry self-regulation, and the piecemeal application of non-specific regulations. Regulation has, until now, been largely insufficient to fully address problems in digital media. Hopefully the newly enacted DMCCA should help to rectify these.