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Estonia: collapse of media self-regulation
Report on conference "The media in a democratic society: reconciling freedom of expression with the protection of human rights" 30 September - 1 October 2002 in Luxembourg, organised by the Council of Europe
By Urmas Loit, chairman of Estonian Press Council

Estonia represents a case of media self-regulation, wherein the system seemingly functioned well almost 10 years and then suddenly faced severe substantial crisis. I personally support the opinion of my academic colleagues according to what the crisis of self-regulation of mass media reflects wider problems within media situation. The concept of media self-regulation now needs innovated public convention to be achieved.

History of self-regulation

In Estonia, the media self-regulation was established in 1991, soon after the independence was regained. The idea and the initial implementation were "imported" from Finland. Afterwards the concept has developed mainly according to the pattern of Nordic and British experience.

When founded, the press council was run by the Newspaper Association. Although there were also the representatives of other institutions, the members were not appointed on any clear basis. That press council earned some criticism for being not enough known and belonging to the publishers' organisation, i.e. to the organisation of one party involved.

Five years later the organisation went through an organisational reform. Several media and non-media organisations made up an independent NGO, which ran the operations. The press council consisted of the delegates of the member organisations. «Click here for more»

This organisation gained publicity and the number of complaints almost tripled. Even this year -2002 -, when we faced the accusations from the newspaper industry and underwent forced standstill for half a year and the newspapers totally blocked us, we have had many complaints «Click here for more»

The majority of complaints concern defamation, offence or damage of reputation. Comparatively highest rate of upholding occurs in cases concerning unjustified identification of minors (almost 100%). About 50% of cases are upheld concerning biased approach. It is the late two-three years tendency that media presents one source story - the accused party is not represented proportionally. Also, pre-court convictions by media have become "popular". «Click here for statistics»

Factors causing the crisis

Then suddenly - crisis occurred. What have been the factors of the sudden collapse of the self-regulation system? Several changes in media environment have taken place during 8 last years - due to small and changing market and abortion of local publishers' enthusiasm.

First of all, variety of newspapers shrank due to economic reasons - mainly because of economic losses.

The publishing houses were bought by foreign (mainly Scandinavian) companies.

Symptoms of media concentration can be observed - for example most of local papers belong to one company, which also owns the biggest national daily, national TV and a local radio. The only current daily tabloid is the result of merging two former rivals, now owned by both competing companies.
And what has happened?

The new owners put the profit on the first place. So they cut costs in every possible way.

Economizing the editorial costs very often results in poor professional quality of the newspaper - as the good journalistic work tends to be expensive, especially investigative journalism. Instead, the journalists operate with leaks, shady opinions of oral sources and parties involved.

The dimension of social responsibility of press has been important within Estonian culture. Throughout the history, newspaper publishing has been part of national identity and culture rather than plain business. Today, the degree of social responsibility among editors is diminishing, although declared otherwise. Foreign owners do not care, local managers are not motivated. The state does not enforce it either. Nordic media researchers discussed these issues in Reykjavik last year (2001). On the basis of academic research we may claim that: in their motherland the foreign companies do not act in the way they do in the overseas region.

Chief editors face a permanent dilemma - whether to prefer cheap product that sells well, or to carry out social responsibility, which probably increases publication costs. In most cases, the editors choose in favour of sales argument.

As a result media is balancing on the edge between good and bad practice, with bigger incline towards bad practice. It is cheap to do so, as in general there is no fear of penalties. And the readers do not have much to choose.

In that respect the trust in media has been decreasing remarkably. From 63% in 1995 - to 44% in 2002. 51% does not trust. It is a problem within Estonian culture. Publishers try to say that it is a general figure, which hardly applies to their outlet. Most probably the publishers cannot perceive the actual state of mind of the general public. In that situation the editors responsible for reliability of media started to seek for the scapegoat for the "damages". And they found the press council guilty.

Legal background

There is a set of laws in Estonia, which along with the code of ethics affects media. First of all - the access to information is regulated. Also the personal rights - for example reputation and privacy are protected. Although scattered in different laws and it is complex to converge all the provisions.

In addition there are some special laws. The Broadcasting Act gives quite strict prescriptions for broadcasters. This law guarantees freedom of operation, protection of information sources, the right to reply, etc. The same fields in the print media are legally unregulated in Estonia.

The advertising act gives also detailed prescriptions, but it is poorly enforced.

But: There is no special media law in Estonia. The attempt to enforce it in 1991 failed. In case of normal self-adjustment of the relations between society and media the special law may even not be needed. If self-regulation functions superficially, more precise regulation would be necessary. But of course not over-regulation, which is also easy to come from the legislator.

Our legal system was changed largely this summer. Old criminal and civil codes lost their validity. New Law of Obligations Act and the Penal Code were enforced. So the approaches have changed. No criminal or civil penalties are foreseen for libel. But one can sue the damages and demand corrections. Only in cases of defamation of persons enjoying international immunity, representatives of the state authority, the court, or the judge, the new Penal Code stipulates certain penalties.

Personality and privacy are protected by the Constitution. But there is no sufficient court practice to make the rulings predictable. The Estonian law courts abstain from judging moral damages, intimating that determination of the value of moral damage in financial terms is rather complex. Besides, Estonians are not very frequent legal suitors, as the proceedings are complicated and expensive. Thus, in Estonia it is quite difficult to re-establish one's rights in case of harm caused by media.

A chief editor of a national daily even wrote openly - when promoting the new press council of the Newspaper Association - that people had no sense to apply to law court, because the complainants would face the forceful teams of lawyers of huge media corporations - no chance to win. The balance between press freedom and personal rights stands heavily in favour of press.

Generally, the Estonian society is liberal. The government has considered unsuitable to intervene into independent media (especially keeping in mind the former communist regime). Government has also feared to take steps against the Fourth Estate - they are afraid of being blamed in violating media freedom. The freedom of expression is very much understood as an absolute right of press - that means the admissibility of publishing any kind of information regardless of its actual consequences. Media promotes the idea and nobody objects.

Now some people have started discreet discussions on the need for the media law again - covering any kind of mass media, but probably the newspapers will not buy the idea easily.

Strong professional ideology of active journalists could perform as an argument against special media law and act in favour of self-regulation. But the Estonian Journalists' Union is weak and cannot protect the journalist from the employer. From one side the organisation has not revitalized since Estonia became independent - the unions used to be something like affiliates of the communist party in the Soviet Union. On the other hand the publishers impede the journalists belonging to the union. The journalists do not stand against the employers, because the union has no power or means to sufficiently protect them.

Under these circumstances the press council was not a relieving alternative to financial penalties given by law court but became almost the only institutional critic of the media. Hence, media actually has no motivation for obeying good conduct, as the corporations know that in most cases publication of "lucrative" libel does not cause any damage to the publisher.

What kind of press council?

Here we can put up the question: what kind of press council do we need? In many countries the press council is media oriented. It is expected that the profession and the industry is motivated to solve its own problems. The system is based on professional pride and ideology of social responsibility.

But media more and more becomes "public business" with traditional audience actively participating in the communication process and evaluating it. It is inevitable for the general public to participate in laying down the norms and rules designating the relations between media and the society. The communication freedom is the freedom of the society, not only the business of the legislator and the media guild or clique. This makes the difference between the press freedom [which is the privilege of one institution or a group of people] and the communication freedom [that is a democratic value]. Freedom of press does not always guarantee the freedom of speech for the general public or its sectors.

Public should be equally involved in the process of talking over media conventions and good journalistic practice. It does not only mean that the representatives of non-media organisations participate in the work of PC - but this also means that self-regulation encourages people to make complaints in cases they feel that media has mistreated them or abused the power. That promotion has been successful in Estonia. Often people publicly claimed in case of their rights violated that they would 'make a complaint to the press council', instead of saying that they would 'go to the court'.
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The editors' approach

So the chief editors figured out that the reliability of media has been damaged by the criticism by the press council. Concurrently, they also claimed that the press council had too little authority in the society, which actually contradicts the accusations concerning caused damages - low profile institution cannot cause major injury.

It is important to say that up to the very last moment the editors did not make any public criticism towards the press council - they even expressed their satisfaction with the council. There was some hidden neglect present all the time, of course. We could feel it from some letters from the editors, and especially from action they did not take. Not printing the adjudications used to be the routine of some editors. But no strategic agenda was set by the editors. Likewise, no professional discussions occurred about the adjudications, although we encouraged it. Editors showed indifference towards debating the conceptual issues of self-regulation. Newspaper Association could not delegate new members to the press council, as the chief editors did not volunteer to join the council.

Instead, the chairman of the press council was attacked personally and blamed for matters, which found no support by other member organisations of the press council. Thereby the newspaper association provided no positive future vision. The representative of the newspapers emphasized that the newspapers' organisation is the most important within the self-regulative process. After not accepting any compromises from other member organisations, the newspaper association established a new press council, which now is in the stage of build-up. Organisationally, we are back in year 1991. And now we need to re-build the confidence in media self-regulation, as during that public crisis the reliability of media and in particular - self-regulation bore damage, which is even difficult to measure.

Lessons

Newspaper Association learnt a lesson that media should not mess with the civic organisations and avoid their participation in self-regulation. They still think that only the industry has the right to set the agenda.
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We made some other conclusions:

  • Concentrated media generally does not care about the people they depict, and the audience;
  • Newspapers would prefer the self-regulation, which patronizes media, disregarding the public's position;
  • For sufficient operation self-regulation necessitates public pressure by threat of legal penalties, fines, and allowances for damage;
  • Self-regulation can supplement the legal system, not replace it.

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