Regulation and Media Literacy

Peter LuntUniversity of Leicester

Peter Lunt and Sonia Livingstone (in press, 2012) Media Regulation: Governance and the interests of citizens and consumers. London: Sage.

Regulatory Agencies the UK Case

• A co-regulatory arrangement– The Advertising Standards Authority

• Previously a self-regulatory body

– Ofcom• Statutory Regulator

– Retains specific competencies (timing and placement of advertising, content regulation)

• With other primary stakeholders– The Committee of Advertising Practice– Trades Association

• The Advertising Association

• And a wider range of stakeholder interests

The Advertising Standards Authority• Provides advice to marketing industry• Publicises its work

– Advertising, seminars, speeches, leaflets, briefing notes, papers• The CODES (produced by independent bodies BCAP, CAP)

require interpretation – which the ASA gives help and guidance on

• The ASA adjudicates if there is a COMPLAINT that an advert breaches the CODES

• Handles c12,000 complaints a year

• Council meets monthly to adjudicate– Failure to comply handled by regulatory agencies

• Ofcom, OFT

• Conducts research• Compliance, identifies trends, areas for action and guidance

ASA Complaint Handling

• Receives complaint– Decide whether there is a case to answer

• Consider the Complaint– Response by advertiser

• Decision– Complaint uphold

• Take Action (withdraw or amend advert)

– Advising Caution– Complaint not upheld

• Publication of case• Final check on compliance

Sanctions

• No legal powers to enforce the code• Soft powers– Refuse advertising– Adverse publicity– Trade sanctions– Removal of trade incentives– Refer case to Office of Fair Trading– Mandatory poster pre-vetting

ASA on Literacy

• http://www.asa.org.uk/Resource-Centre/Be-Ad-Smart.aspx

• http://www.mediasmart.org.uk/index.php• http://stakeholders.ofcom.org.uk/market-data

-research/media-literacy/

• http://www.asa.org.uk/Resource-Centre/Useful-links.aspx

The Plethora of Literacies

• The expectation that ordinary people can and will become informed decision makers, competent in maximising their opportunities and minimising their risks– Consumer literacy– Health literacy– Financial literacy– Environmental literacy– Media literacy ……..

Increased interest in literacy reflects broader trends

• The changing role of the state– From determining the public good and protecting

consumers– To consumer education and enabling transparency

in markets– From protective democracy and the welfare state

to neoliberalism and reformist social democracy

Proliferation but narrowing of definition

• The focus is on consumer literacy• Traditionally a broader approach– The Educational Agenda– The Creativity Agenda– Empowerment• Means of expression and modes of participation

– Critical scholars/civil society groups• citizenship

1990s The Great Literacy Debate

• The protectionist agenda continued– But

• Concerns about perceived failures of adult literacy campaigns and the haphazard take up of government public information campaigns

• The rediscovery of the traditions of literacy involving empowerment, cultural and political expression and participation – enabled by interpreting the codes and realising the potential of media

• Mediation

A Puzzling Task for the New Media Regulator Ofcom

• Section 11 of the Communications Act 2003– Ofcom has a duty to ‘promote media literacy’ among the

general public• Part of a broader strategy of the New Labour Government

– The Digital Britain Agenda– A Minister for Digital Inclusion– A Champion for Digital Inclusion– Review of School Media Education Curriculum– Increased Requirements placed on broadcasters and content

providers to educate the public in the emerging conventions of digital representation and creation.

Nevertheless Ofcom’s remit unclear

• In our interview (2005) with Ofcom’s Communications Director– “It’s a very diffuse concept. It’s really hard to nail

down”– Possibly Ofcom had an unachievable task– Especially given EC restrictions on funding for non-

regulatory activities – grant in aid from DCMS (500k)

Communications Act 2003• … bring about or encourage others to bring about …

(1) a better public understanding of the nature and characteristics of material published by means of the electronic media;

(2) a better public awareness and understanding of the processes by which such material is selected, or made available, for publication by such means;

(3) the development of a better public awareness of the available systems by which access to material published by means of the electronic media is or can be regulated;

(4) the development of a better public awareness of the available systems by which persons to whom such material is made available may control what is received and of the uses to which such systems may be put; and

(5) the development and use of technologies and systems for regulating access to such material, and for facilitating control over what material is received, that are both effective and easy to use

Ofcom Consults

• The act focuses on understanding the nature of media contents, of production and access to contents– Contrasts with the broader agendas for literacy

considered above• On the definition of ‘media literacy’– 94 Responses from

• Industry• Public bodies• Academics• Diverse individuals

The Definition in the Consultation Document

• “So media literacy is a range of skills including the ability to access, analyse, evaluate and produce communications in a variety of forms. Or put simply, the ability to operate the technology to find what you are looking for, to understand that material, to have an opinion about it and where necessary to respond to it. With these skills people will be able to exercise greater choice and be able better to protect themselves and their families from harmful or offensive materials”. (Ofcom, 2004b: 4)

• First sentence is a translation of definition emerging from the National Leadership Conference on Media Literacy 1993 – The ability ‘to access, analyse, evaluate and communicate messages in a variety of forms’

• Ofcom’s discursive shifts– Ability skills– Access operate technology– Communicating responding (when ‘necessary’

• The purposes of media literacy is radically scaled back to centre on consumer choice and protection from harm

Ofcom Commissions Research: knowledge production and evidence based policy

• Academic Literature reviews– Adults Livingstone– Children Buckingham

• National surveys (literacy audits)

• Ofcom’s work brought a welcome prominence to the media literacy agenda and moved away from the early protectionist agenda (inherent in the act) to support an empowerment approach– Ofcom claims its work on literacy is intended

• to give people the opportunity and motivation to develop competence and confidence to participate in digital society; and

• to inform and empower people to manage their own media activity (both consumption and creation).

Contrast with DCMS Definition of Media Literacy

• Media literacy is the ability to use a range of media and be able to understand the information received. At a higher level, it includes the ability to question, analyse and evaluate that information. (DCMS, n.d.)

• “At a time when commercial influences over content are increasing (via product placement, advertising, sponsorship, advergames, marketing to children, etc.), political influences over content are diversifying, and public input into content is threatened, such low expectations for public levels of media literacy stand out” Livingstone and Lunt, in press, 123).

Media Literacy an International Concern

• USA– FCC recognises digital literacy + economic disadvantage as barriers

to adoptio of new technologies• UNESCO

– Media Education Kit– Development of Information Literacy Indicators

• Internet Governance Forum– Internet literacy emerging as an agenda– Dynamic Forum on Information Literacy (2009)

• Europe– Digital Agenda (2010)

• However, there were considerable debates in the European context

Definitional Diversity in Europe• Media, especially new digital technologies, involve more Europeans in a world of

sharing, interaction and creation. … However, people who cannot use new media like social networks or digital TV will find it hard to interact with and take part in the world around them. We must make sure everyone is media literate so nobody is left out. Citizens are being talked to all the time, but can they talk back? If they can use the media in a competent and creative way we would take a step towards a new generation of democratic participation. (Viviane Reding, European Commission Information Society and Media Commissioner, European Commission, 2009)

• Discussions over the Lisbon Agenda (2000, 2005)– European Strategy for a globally competitive Information Society

• Media Literacy appeared to become a point of consensus between market liberals and those promoting a reformist political agenda– But

• Critics concerned with vagueness of ‘empowerment’• For its advocates, media literacy is the only sensible way forward for a converged media

environment in which a skilled workforce, a competitive market and an empowered citizenry are all crucial.

Consultation• A narrow definition – similar to Ofcom’s

– In response to consultation an item was added• ‘the ability to create and communicate messages as it is considered essential in enabling

people to make effective use of media in the exercise of their democratic rights and civic responsibilities’ (European Commission, 2007)

• In contrast, the TVWF Directive– Focuses on consumer protection

• Harm and offence, consumer rights– Cultural, social, citizenship issues – subsidiarity

• Critics might observe that, notwithstanding the mention of ‘citizens’, media literacy here seems individualised, prioritising consumers and consumer choice over citizens and citizens’ rights, and prioritising protection over participation.

• Recent attempts by UNESCO to broaden statements is influencing Europe

Emergent Themes in attempts to regulate for media literacy

• The tendency for the issue to be marginalised and narrowed in focus

• The focus on children• The inability to transcend the broader debate

between protectionist and empowerment agendas

Problematising ‘Self-Regulation’

• Moran (2003), Black (2001)– The dichotomy of command and control and self-regulation problematic

• Command and control – problems• Self-regulation – in a legal context

• Scott et al, Baldwin and Cave– Mapping a range of regulatory agencies and strategies– And a range of regulatory agencies

• “… self-regulation is much better seen not as a pervading regulatory approach, but as part of a shifting set of regulatory techniques, the mix depending on external political, economic and social factors” (Prosser, 2008: 100)

• Lunt and Livingstone (in press)– Ofcom as a regulatory agency

• Adopts a range of regulatory strategies• In collaboration with a variety of agencies (including self-regulatory bodies, government departments,

civil society representatives and the public)• In a legal context – statutory regulator• Range of Practices and actions

Explaining Regulation• Systems theory

– Autopoietic systems – governing as a steering mechanism• Governmentality

– Collaborative strategies – dispersed powers and institions• Critical Theory

– Normative theories of regulation• Sociology of law + protection of rights

– effectiveness (facts) plus legitimacy (norms)– Participation and accountability

• Legitimacy and effectiveness as empirical questions• The New Institutionalism• A range of regulatory practices

– Consultation– Selective enforcement– Creating conditions for competitive but fair markets– Encouraging cultures in which public policy goals are internalised– Public engagement

Normative Criteria for Regulationfrom Habermas Between Facts and Norms• (i) recognises when it is dealing with issues of public concern, within a reflexive awareness of the

problems of society as a whole, in such a way as to acknowledge and enable deliberation among the different, and often unequally resourced viewpoints and interests at stake while effectively resolving the issue at hand;

• (ii) recognises through its principles and practices that it represents one institution among many (state, corporate, public, civil society, etc.), each with its own logic and demands, while also dealing fairly with the public sphere (which operates within the ‘lifeworld’ rather than the ‘system world’, as Habermas terms it), balancing these often conflicting requirements without sacrificing one to the other;

• (iii) gives equal recognition to effectiveness (ensuring that markets are competitive and that consumers are protected) and legitimation (ensuring the engagement and assent of that public in whose interest regulation operates) , for promoting one may or may not promote the other, and neglecting either risks a vicious circle of negativity and distrust;

• (iv) respect rather than undermine the right to self-determination of citizens, judging the nature and consequences of its institutional processes and decisions reflexively as these unfold in practice (rather than presuming about them in the abstract). By system world, Habermas refers to the dominant logic of strategic and instrumental rationality as it operates in institutions and other formalised structures, by contrast with the lifeworld, characterised by informal ways of life and modes of everyday communication, whether in the public sphere or the intimate realm of the family (Outhwaite, 1996).