Memorandum of The Newspaper Society
1. The Newspaper Society (NS) represents
the regional newspaper industry. In addition to the 83 per cent
of the adult British population who read a regional newspaper,
newspaper companies are also extending their audience reach across
a range of websites and online services, broadcast channels and
publications. The industry's development of these multi-media
portfolios means that those readers are now able to obtain local
news, information, entertainment and advertising from the regional
press, in the way that suits their changing lifestyle, using their
choice of the traditional and new media services available.
2. In addition to the industry's 1,300 core
regional newspaper titles, the latest NS Annual Industry Survey
has shown that the number of regional press websites increased
from 509 in 2004 to 828 in 2005, the number of stand-alone magazines
and niche publications grew from 400 to nearly 600 and the number
of regional press owned radio stations grew from 20 to 28. Channel
M is broadcast in Manchester. There were 16 launches of new regional
newspaper titles. E-editions, websites, podcasts, mobile phones
and related services allow people to access news and entertainment
on the move, whilst blogging enables readers to get directly involved
with their newspaper. The new media services encourage such interactivity.
Audiovisual material generated by the newspapers' own journalists,
readers, advertisers, news agencies and others are increasingly
part of the media mix offered by newspaper websites and other
new media services. Video streaming is used by an increasing number
of publishers to provide news, sport and local information.
3. It is therefore very important that the
European Commission's Television Without Frontiers/Audio-Visual
Media Services Directive does nothing to discourage such industry
online innovation, investment or revenue. The UK and European
newspaper industries are also very sensitive to the broader dangers
of the directive and have fundamental concerns about the extent
to which the directive could introduce unnecessary and disproportionate
restrictions upon freedom of expression and press freedom, in
effect by extending broadcasting controls to other media. The
NS supported the Government's stance on the Communications Act
2003 and its refusal to introduce special controls of any kind
over Internet content, by co-regulatory or statutory means, or
encourage anything other than voluntary self-regulation. It has
supported the approach adopted to date in the UK Government's
negotiations and submissions on the directive.
4. The Directive is also causing concern
to press organisations across Europe and the European Newspaper
Publishers Association (ENPA) is involved in detailed discussions
with the European institutions.
5. Our answers to the questions most relevant
to the industry are set out below.
In our current rapidly converging and evolving
technological and market environment, is it appropriate to try
to recast the regulatory framework?
What are the advantages and disadvantages of regulating
this area? Are the regulatory costs proportionate to the benefits?
6. The Commission should not be bringing
forward legislation that attempts to regulate a rapidly developing
area. It should certainly not seek to extend restrictive broadcasting
controls to the ever evolving online environment.
7. The NS considers that the scope of the
Directive should be confined to television broadcasting services
and its scope should not be extended to other new media services.
As the UK Government has argued, the inclusion of so-called non-linear
services is potentially costly and erroneous. Unnecessary regulation
of new media services might hinder their growth and development,
reducing investment in the services and the economic growth that
they might yield.
8. EU intervention and harmonisation are
unnecessary. Regional and local newspapers are firmly based in
their local communities. Their print and online content is aimed
at that local audience and readers. Few print newspapers are intended
to circulate across national frontiers, although online services
are obviously globally accessible. Newspaper companies which have
diversified into local radio, local television and new media have
not encountered any of the regulatory problems by which the Commission
seeks to justify its proposals.
9. The regional newspaper industry would
bear all the burdens and costs of any increased regulation required
by implementation of the Directive. Regional newspaper companies
are used to different legal and self-regulatory regimes applying
to different media content. The Directive would not simplify the
regulation of audiovisual content but complicate it. It might
well impose stricter content controls over material generated
and published by regional media companies and increase newspaper
companies' liability. This would not benefit the consumer, who
is already adequately protected by UK law and the company would
not derive any of the suggested benefits—local newspaper
companies are not seeking to export their services overseas or
to expand any overseas audience. They would not be able to re-locate
to non-EU locations.
Defining the nature of the regulated services:
is there agreement on the commission's proposal to distinguish
between linear and non- linear audiovisual media services?
10. The scope of the Commission's proposal
should be confined to broadcasting services alone and therefore
the definitions require amendment to achieve this.
11. The definitions proposed by the Commission
which determine the ambit of the Directive could catch a very
wide range of services, far beyond anything that mirrors traditional
broadcasting services, without sufficient justification for new
restrictions upon the content of such services over and above
existing UK law. The definitions are also uncertain in ambit.
12. The newspaper industry has welcomed
the Commission's assurances of its intention that newspaper websites,
even if they contain some audiovisual material, should be excluded
from the scope of the Directive. The industry would obviously
prefer the restriction of scope of the Directive to broadcasting,
but if this is not possible, there must be an effective exemption.
Inclusion of an effective exemption for newspapers' online publications
including audiovisual material would still be of prime importance,
even if the Directive's scope was ultimately narrowed to television
like services provided over the Internet.
Jurisdiction and Country of Origin—does
the Proposal go far enough in facilitating the free movement of
broadcasting services?
13. This question relates specifically to
broadcasting services. However, for avoidance of doubt, to date
the regional newspaper industry has strongly advocated the adoption
or retention of the country of origin principle in proposed EU
legislation which might affect the newspaper industry, for the
purpose of resolving any questions as to which national law might
govern any cross-border transactions or any content accessible
across borders, insofar as the EU has jurisdiction over such issues.
The newspaper industry therefore has no objection to the retention
of the country of origin principle in the Directive. Conversely,
the regional newspaper industry does not consider the existence
of the country of origin principle any incentive for extension
of the scope of the Directive beyond broadcasting. Competition
is fierce for readers, audience, users and advertisers and certainly
is not limited by any lack of harmonisation.
Regulatory Approach—What role should industry
self-regulation play in the new regulatory framework?
14. The additional regulation proposed by
the Directive is unnecessary, given the e-commerce Directive and
operation of UK national law. The industry is particularly concerned
that no new unnecessary controls are imposed upon freedom of expression
and press freedom. There is no need for statutory or co-regulatory
broadcast content controls to be extended to Internet content
and new media services. Civil and criminal law of the UK already
govern online content. If any industry voluntarily chooses to
adopt stricter rules, then that should be a voluntary matter for
the industry concerned without EU or member state intervention.
15. The draft text does not recognise the
UK system of voluntary self regulation by the industry, completely
independent of any statutory regulation or statutory co-regulatory
framework. It is therefore very important that amendments are
made to the draft proposal, so that if there really is justification
for any control over content, genuine industry self regulation,
without state or statutory involvement, would be sufficient.
Protection of Minors and Protection of Human Dignity—what
controls should be imposed on non-linear services in respect of
illegal and harmful material, such as the granting of a "right
to reply"?
16. The UK's existing criminal and civil
law, derived from EU legislation, UK statute or the common law
developed by the courts, supplemented where appropriate by self-regulation,
already provide adequate protection.
17. Introduction of new legislative controls,
simply because material might be accessible to the young, would
unduly and unnecessarily restrict the publication and dissemination
of news and other content primarily intended to be read or viewed
by an older, predominantly adult audience.
18. In the UK, criminal and civil law already
tightly controls internet content. This legal regime is supplemented
by voluntary controls over non-broadcast advertising content and
voluntary self-regulatory editorial controls over print and online
versions of newspaper titles, in addition to newspapers' individual
readership protection policies and editorial controls.
19. The directive would require the extension
of UK law in certain areas with detriment to freedom of expression.
UK law already outlaws incitement to racial hatred, incitement
to religious hatred, incitement to violence and discrimination
on a number of grounds. However, any further extension of incitement
to hatred offences could produce a chilling effect upon the media,
even though the media's objective is not the provocation of hatred.
Interest groups might well seek to exploit such controls to prevent
unwelcome media investigation, media reporting and the publication
of news, information, comment, opinion and entertainment. This
can restrict the media's legitimate role, including its prompting
of public examination and public debate. The intense debate on
the new UK offences of incitement to religious hatred highlighted
such problems. The adequacy of the defences in that legislation,
intended to address some of the freedom of expression problems—including
media concerns about factual documentaries and investigations—are
as yet untested.
20. Anti-discrimination controls could also
result in huge interference with a wide range of editorial content,
including news, current affairs, documentary, drama, opinion,
comment, reviews and entertainment. The industry opposes any interference
with editorial discretion and any attempt to introduce taste and
decency or other controls over editorial content, over and above
the current requirements of UK law.
21. The EU Directive could require new,
wider and very uncertain restrictions on freedom of expression,
over both editorial and advertising content, without any demonstration
of the necessity for such controls or explanation of any specific
problems that it is attempting to address. If any new controls
over content were actually necessary in any of the areas specified
by the directive, these would be better addressed by voluntary
industry self-regulation which can quickly and flexibly deal with
any particular problem if it really does merit additional measures.
The Directive and suggested amendments do not yet allow any possibility
of true voluntary self-regulation, as opposed to co-regulation
or statutory controls.
Right of Reply
22. There is neither need nor justification
for any extension of a right of reply to online or other services
beyond the requirements of the current UK broadcasting regime.
23. The regional newspaper industry would
oppose any proposal for extension of right of reply to online
audiovisual media or any other online or new media and printed
media services, because of the threat to freedom of expression
and the intense practical difficulties that this presents for
newspaper and new media content.
24. The introduction of a general statutory
right of reply for audiovisual or other material could create
acute editorial, legal and administrative problems in practice:
particularly where a right of reply could be claimed for fact,
opinion or comment, irrespective of whether any offending statement
is actually inaccurate and defamatory of any individual complainant;
if the right could be claimed by anyone, whether an individual
or group, irrespective of whether they were the actual subject
of the words complained about or not; if ever proliferating right
of reply claims and chains of claims could develop, with replies
to replies being demanded; as legal problems proliferated due
to problems in distinguishing whether the right applied, compliance
difficulties and increased exposure to legal liability, not least
for third party content.
25. The media could be discouraged from
reporting controversial issues or even from publishing fair and
accurate reports of courts, tribunals, inquiries, councils, findings
of disciplinary bodies and other bodies, and the wide range of
matters that would otherwise benefit from common law and statutory
privilege under the defamation laws.
26. Press coverage and stimulation of debate,
discussion, comment and opinion on issues of local, national and
international interest could diminish and become very restricted
if statutory right of reply were accorded to expressions of opinion.
27. If right of reply were only accorded
to factual matters, then the media would still face burdensome
legal challenge on the categorisation of the material in order
to assert the right or claim remedies for its denial.
28. Editorial control becomes impossible
if a right of reply is open to a wide range of complainants. Individuals,
political parties, organisations, pressure groups and other groups
might all try to claim right of reply in respect of just one item,
or one report of a meeting or court hearing, let alone a whole
website or other publication or other service which will have
carried a wide range of facts, views, opinions, comments on an
equally vast and diverse range of issues in its various sections
of news, sport, entertainment, comment. The nature of new media
services exacerbates these problems if right of reply applied
to any news publications, groups, chat rooms, internet community
notice boards and discussion forums, SMS services and other mobile
messaging services that included text and audiovisual material.
These provide a vast forum for individuals, virtually independent
of editorial control, to express a vast range of facts and opinions
using a vast range of services. All this could then be complicated
still further by ever lengthening chains of complaints from an
ever increasing number of complainants whether individuals, third
parties or representative organisations.
29. A right of reply regime applicable to
such services would create intense difficulties for those responsible
for compliance and enforcement.
30. At the extremes, there is a real danger
that any right of reply regime can lead to a judge or regulatory
authority dictating the home pages and content pages of online
services. This would be a wholly unacceptable encroachment upon
press freedom.
31. The industry also considers that there
is no need for the imposition of such controls.
32. The online environment already enables
an aggrieved individual to produce an effective, immediate, independent
and wide publication of any response to any publication that might
fall within the Directive.
33. In addition, under UK law, (statute
and common law) the defamation law already requires the publication
of requested statements in contradiction or explanation for the
purposes of certain statutory defences and other defences effectively
require inquiries to be made, allegations put and the replies
taken into account. Self-regulation can also provide effective
mechanisms. For example, the newspaper industry's self-regulatory
code upheld by the Press Complaints Commission which binds both
printed and online versions of publications already requires the
correction of inaccuracy, mis-leading statement or distortion
and a fair opportunity for reply to inaccuracies must be given
if reasonably called for. In any event, editors have always been
prepared to publish corrections, a follow up story, letter or
comment piece or other article as appropriate.
29 September 2006
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