Media Regulation

Governance and the Interests of Citizens and Consumers

Peter Lunt, Sonia Livingstone

• Publisher: SAGE Publications Ltd
• Year: 2011
• Print ISBN: 9780857025708, 9780857025692
• eBook ISBN: 9781446292006
• Edition: 1
• Topic: Social Sciences
• Subtopic: Media Studies
• Index: Social Sciences

"An exemplary study of how media regulation works (and, by implication, how it could work better) set within a wider discussion of democratic theory and political values. It will be of interest not only to students and scholars but to people around the world grappling with the same problem: the need to regulate markets, and the difficulty of doing this well."
- James Curran, Goldsmiths, University of London

In Media Regulation, two leading scholars of the media examine the challenges of regulation in the global mediated sphere. This book explores the way that regulation affects the relations between government, the media and communications market, civil society, citizens and consumers. Drawing on theories of governance and the public sphere, the book critically analyzes issues at the heart of today?s media, from the saturation of advertising to burdens on individuals to control their own media literacy.

Peter Lunt and Sonia Livingstone incisively lay bare shifts in governance and the new role of the public sphere which implicate self-regulation, the public interest, the role of civil society and the changing risks and opportunities for citizens and consumers. It is essential reading to understand the forces that are reshaping the media landscape.

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1

MEDIA AND COMMUNICATIONS REGULATION AND THE PUBLIC INTEREST

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Introduction

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We are witnessing the increasing globalisation of the media and communications technologies which connect peoples across the world, crosscut the boundaries of nation states, enable a dynamic global marketplace and contribute to the emergence of a complex transnational culture. Indeed, fundamental changes in modernity itself have been stimulated by the rapid development of a global market in media and communications, extensive movements of peoples and the increasing viability of real-time connections between individuals, businesses, social institutions and states on an unparalleled scale. The importance of media, information and communications technologies to modernity has a long history; from print through telegraphy, radio, film, television and now digital and networked media, communication technologies have both shaped and been shaped by the diverse processes of social, economic and political life (Appadurai, 1996; Curran, 2002; Held and McGrew, 2003; Rantanen, 2005; Thompson, 1995). But today, globalisation, capitalism and the mediated network society (Castells, 2003) have all become inextricably linked: hence Tomlinson (1999: 1–2) defines globalisation as ‘an empirical condition of the modern world, which I call complex connectivity. By this I mean that globalisation refers to the rapidly developing … network of interconnections and interdependencies that characterises modern social life’.

Some commentators argue that modernity has not merely speeded up but also entered a distinctive new phase of late capitalism (Giddens, 1998), altered not least by the contemporaneous political transformations by which state socialist regimes and developing countries become absorbed into the dynamics of global capitalism. Global markets are qualitatively different from previous international flows of trade because they exploit the new level of coordination and integration of financial markets, real-time production processes, complex dynamics of distribution, and significant flows of people across national boundaries (Castells, 2003). Government control over markets, social life and culture is challenged by the perceived imperative to deregulate in order to open up markets and so maximise the benefits of globalisation. Global media markets in particular play a critical role in shaping these transformations by facilitating global connectivity and undermining state control while, at the same time, being themselves shaped by those same processes of globalisation.

From the middle of the twentieth century until the 1980s, governments were accustomed to media systems organised on a national scale, amenable to top-down regulatory control by the state and recognised for their central role in underpinning social cohesion and national identity. A broad consensus supported the institutional management of this strong regulatory approach, typically based on a mix, differently constituted in different countries, of economic policies focused on delivering accessible and diverse media content from a range of suppliers (more significant in the USA) and of state or public ownership of large portions of a national media system through public ownership of telecommunications and public broadcasters (more significant in Europe). In liberal democracies, regulatory legitimacy rested on the claim that these policies and institutions served the public interest. And this, in turn, was defined either descriptively – put simply, as what the public wants – or, alternatively, according to the important but more complex normative ideal of what would or should serve the public interest (Freedman, 2008). As will become evident as this book unfolds, the persistent tension between these contrasting images of the public interest – mapping on to the discursive figures of ‘the consumer’ and ‘the citizen’ respectively – has driven much regulatory and critical debate in the media and communications sector and also more widely (Clarke et al., 2007). Two key features of the emerging global media system have more recently put both of these approaches to regulation at risk: transformations in the production, distribution and marketing of digital media (Tambini et al., 2008); and the increasing power of global media corporations operating across national borders and pressing for open markets (McChesney, 1999). Not only is the development of multimedia and convergent devices and platforms revolutionising the character of media systems and markets and, therefore, the everyday experience of the public, but it also makes it increasingly difficult for governments to implement media and communications policies based on shared national values and aimed at delivering social and cultural policies. At the same time, the expectations of a well-functioning, secure and efficient communication system have grown hugely, as society places ever more reliance on media and communications for the conduct of its fundamental processes of commerce, political participation, education, community, health and more.

The UK’s New Labour government of 1997–2010 responded to these challenges in the media and communications sector by creating a new regulatory regime instituted by the Communications Act 2003 and including the establishment of a newly converged regulatory agency for a converging technological environment: the Office of Communications (Ofcom). This has been controversial in its consequences for the media and communications sector in particular and in what it reveals of the workings of the New Labour approach more generally. Since Ofcom has acted on behalf of government while remaining relatively independent, it has suffered from the controversy that attaches itself to all ‘quangos’ (‘quasi-autonomous nongovernmental organisations’). Specifically, those from the neoliberal¹ perspective have feared that such bodies too easily become an insidious and unaccountable extension of the state; meanwhile, those taking a social democratic² approach to governance have hoped – albeit with critical doubts along the way – that such bodies can achieve beneficial outcomes precisely because of their political independence, their concentration of expertise and their flexibility in working with industry, civil society and the public. The present book tracks how actors from these two perspectives have viewed, and indeed become involved in, the day-to-day operation of Ofcom across a range of policy domains. But such activities, and the associated controversies, were all abruptly interrupted by the change of government in the UK in mid-2010, with a threat to the very existence of Ofcom being one of the incoming Coalition government’s first acts, later modified but not entirely rescinded. The next steps in the history of media and communications regulation are, at the time of writing, still uncertain.

In this book, we position changes in media and communications regulation in the wider context of globalisation, market harmonisation (i.e. supposedly deregulation to reduce constraints on trade within states and across borders) and technological convergence (the much-hyped ability to deliver media content on a range of platforms and devices). Our focus is distinctive in that, rather than seeking to review any and all policy deliberations over the past decade or two, we ask more specifically about the particular implications of these developments for the public interest. From the early debates in Parliament during the passage of the Act in 2003, through to designing the institutional features of the new regulator, Ofcom and, then, the subsequent processes employed in reaching crucial policy decisions, the public interest has been framed in terms of the interests of citizens and those of consumers. Whether conceived of as mutually compatible or conflictual, these twin dimensions of the public interest provide a critical lens by which to explore the regulatory regime Ofcom had developed and how this compares with alternative approaches beyond the UK or within it (including Ofcom’s legacy regulators). Thus rather than offering a more conventional analysis of how Ofcom has managed competition, issued licences, determined spectrum allocation, and so forth, we examine its consequences for a series of public interest objectives. In particular, we argue that the Communications Act 2003 and its primary offspring, Ofcom, have enabled new ways of governing, indeed a new model of governance emblematic of the ways in which liberal democracies are responding to the challenges of globalisation. In this new model, power is partly dispersed to new regulatory bodies which operate as public-facing institutions in the public sphere. As we shall see, such an argument requires, first, a theoretical and empirical argument about the role of institutions in the public sphere and, then, an analysis of whether and to what extent the operation of Ofcom as an institution in the public sphere has resulted in significant benefits for the public – i.e. the consumer and, especially, the citizen – interest. To be sure, many questions arise. Has this meant the (partial) withdrawal of the state from media regulation in order to embrace neoliberalism, allowing the market to dominate? Or has it facilitated a new form of state intervention, instituted through the many strictures of the Communications Act, to ensure that Ofcom regulates media so as to support social and cultural purposes? Before we can address such questions directly, we need to backtrack and argue the case more carefully for the ways in which globalisation is reshaping regulation, with complex consequences for society and the public sphere.

Regulation and the role of the state

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From the beginnings of modern political theory there has been a debate about whether the state is best when this is small in scope, focused on creating the conditions in which people can live without constraint and allowing commerce to innovate and develop according to its own logic, or whether a strong state is necessary to counter the extreme effects of modernisation and capitalism so as to enable citizens themselves to further their interests and realise their potential. There are considerable intellectual, political and social challenges to be faced as the state seeks to balance the protection of public interests in the face of powerful global economic interests exerting long-term pressures towards deregulation. In Britain since 2010, the pendulum has swung back to emphasise the small state (or the ‘big society’ of Cameron’s Coalition government), countering New Labour’s reformist social democracy agenda of the 1990s as supported by a strong yet decentralised state. But in an international context, the politics of particular states takes them in divergent, indeed sometimes conflicting directions in this regard.

One vision of globalisation is that it creates the conditions under which transnational processes of governance, along with some rejuvenation of local and community-based organisations, can take over some of the functions previously managed by national governments (Held and McGrew, 2003). Consequently, the power of national governments diminishes, being dispersed both upwards and downwards. As Jessop (2000: 75) puts it, in the trend towards the ‘de-nationalisation of the state’, there is a:

‘hollowing out’ of the national state apparatus with old and new state capacities being reorganised territorially and functionally on subnational, national, supra-national, and trans-local levels. State power moves upwards, downwards, and sideways as state managers on different territorial scales try to enhance their respective operational autonomies and strategic capacities.

However, although nation states have undoubtedly lost some autonomy and power in the face of global markets and culture, they remain important. Thus, however radically one conceives the challenge to the nation state, it is worth asking how the state adjusts to these changing conditions. One answer is that the state spawns new regulatory agencies that permit it to act in a more dispersed and flexible manner. Such regulatory reform enables the dispersal of power downwards, as functions of the state are performed through regulation rather than through legislation and the work of central government departments. This trades central control for the flexibility of quasi-governmental bodies working with industry, civil society and the public but accountable to Parliament, resulting in a form of governance and administration that involves strategic interventions at a variety of levels rather than prioritising executive, top-down control at the national government level.

Given such shifts, we use the term ‘regulation’ to refer to the relations between power and the ordering of social behaviour at all levels of society from the nation state up to the transnational organisation and down to the subnational organisation or community and, even, the individual. In late modernity, the hitherto predominant focus on the nation state is changing, and regulation takes on a new meaning and significance, part of a broader shift which allows for a more strategic, flexible relationship between the state and a variety of agencies, firms and publics. Jessop regards these changes in the role of the state as necessary if it is to stimulate a competitive, ‘globalising, knowledge-driven economy’; hence the increased focus of states on the administration of everyday life and the conduct of business at the micro level as well as on the coordination of economic policy at the super-national level (Mulgan, 1997).

In addition to the ‘de-nationalisation of the state’, Jessop (2000) also identifies the ‘de-statisation of the political system,’ as reflected in a crucial ‘shift from government to governance’. As Donges (2007: 326) observes, ‘governance refers to the dynamic structure of rules between actors that are linked in different networks and permanently forced to negotiate, without a center that has the power to command and control’. The changes brought about by the knowledge-based economy are central here as the complex and dynamic nature of the economic system demands more flexible and responsive modes of coordination:

Accordingly there is a movement from the central role of the official state apparatus in securing state-sponsored economic and social projects and political hegemony towards an emphasis on partnerships between government, para-governmental, and non-governmental organisations in which the state apparatus is often only first among equals. (Jessop, 2000: 75)

In terms of regulation, again this implies a greater range of activities by regulatory agencies beyond their role as economic regulators. As we shall see, in the case of Ofcom this is evident in the efforts devoted to fostering partnerships and networks of connection among stakeholders in the media and communications sector, encompassing government, industry, civil society and the public, all in the interests of increasing flexibility and responsiveness, the development of expertise and the collection of knowledge about products, the market and audiences.

Finally, Jessop (2000) discusses the trend towards an ‘internationalisation of policy regimes’. In the knowledge-based global economy there are increasing transactions and communications across national borders and the consequent need for coordination beyond the boundaries of the nation state. This trend intersects with the previous two because this coordination is not likely to be satisfied by traditional connections between national governments but rather demands interconnections among a diverse range of institutions and actors, at local, national and international levels. Jessop’s three themes – the dispersal of power or denationalisation of the state, the shift from government to governance or the destatisation of the political system, and the internationalisation of policy regimes – together capture the changing obligations of governance and the state, resulting in the rationale for regulatory reform adopted by the New Labour government of 1997–2010 (and as discussed further in Chapter 2).

Regulation, civil society and the public sphere

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A self-regulating media system must maintain its independence vis-à-vis its environments while linking political communication in the public sphere with both civil society and the political center; second, an inclusive civil society must empower citizens to participate in and respond to a public discourse that, in turn, must not degenerate into a colonizing mode of communication. (Habermas, 2006: 420)

What are the implications of such complex changes in the state for its relations with its public? Responding to widespread hopes and concerns over the potential for and the fragility of citizenship in complex, plural, fragmented societies, Habermas’s (1962/1989) theory of the public sphere critically examined the changing relations between commerce, state, civil society and the public. We turn to his work, and the theoretical developments that followed, to provide the analytic criteria by which changing regimes of regulation (the institution of Ofcom, its relations with the state, stakeholders and the public) can be evaluated in terms of its advancement, or otherwise, of the interests of citizens and/or consumers. We also draw on Habermas’s work to frame our focus not only on the practice of regulation, but also on the discourses surrounding regulation, for discourses and practices cannot easily be disentangled. Moreover, while practices are situated, the discourses that surround and shape them draw flexibly on a more extensive landscape of ideas, including provision for the actions of citizens of the public sphere. Since the concept of the public sphere is an idealisation of the contexts of social life in which citizens can, through the free exchange of ideas, form a collective representation of the public interest that may challenge and bring established power to account, a range of civil society organisations are also expected to support the public sphere. As Alexander and Jacobs argue, civil society works not only through its relations with, or autonomy from, the state and economy, but also ‘as a communicative space for the imaginative construction and reconstruction of more diffuse, but equally important, collective identities and solidarities’ (1998: 1). Hence discursive constructions of the citizen – and, in relation to media and communications, explicit or more often implicit constructions of the audience (Livingstone, 1998) – play a role in the design and practice of regulation.

In his early work on the public sphere, Habermas argued against the liberal welfare state in so far as this protects the economic and social well-being of the public while limiting citizen involvement to the actions of consumers in relation to welfare services and to the actions of voters in the political sphere. For Habermas, the decline of public engagement in modern society resulted from the tendency of public institutions to rationalise and manage – rather than stimulate and enable – public life. However, as a social democrat, Habermas is optimistic that it is possible, even in the large-scale, complex societies that we now live in, to create the conditions in which the public engage more thoroughly, and more consequentially, in social and political life. In his early work, he proposed that this could best be achieved by protecting the public from the influence of both the state and the market by supporting an independent public sphere which sustains rational critical discussion that, in turn, generates a freely developed consensus which any legitimate government would be bound to take account of. One key threat to this public sphere, Habermas further argued, comes from the media which have gradually become ever more professionalised and market-oriented, intervening in and compromising the public sphere by reshaping public discussion, especially in complex modern societies, according to their own commercial rather than public objectives.

Although Habermas’s (1962/1989) theory...

Table of contents

• Cover Page
• Title
• Copyright
• Contents
• About the Authors
• Preface
• Acknowledgements
• 1 Media and Communications Regulation and the Public Interest
• 2 Regulation and the Public Interest
• 3 Ofcom’s Core Purposes: A Discursive Struggle
• 4 Ofcom as a Regulatory Agency
• 5 Ofcom’s Review of Public Service Television
• 6 Media Literacy
• 7 Advertising Regulation and Childhood Obesity
• 8 Community Radio
• 9 Conclusions
• Afterword
• References
• Index