Self-Regulation and the Media

I. INTRODUCTION Calls for self-regulation of electronic media have recently been heard in Washington, D.C. In December 1998, a Presidential Advisory Committee recommended that digital television broadcasters adopt a voluntary Code of Conduct highlighting their public interest commitments.(1) The Advisory Committee Report even included a "Model Voluntary Code" drafted by a subcommittee headed by Professor Cass Sunstein.(2) Similarly, President Clinton has called for industry self-regulation to address consumer privacy concerns on the Internet.(3) This theme has been echoed by the Department of Commerce's National Telecommunications and Information Administration (NTIA)(4) and the Federal Trade Commission (FTC).(5) However, the FTC released a report in June 1998, finding that self-regulation had not been successful thus far in protecting consumer privacy.(6) It recommended congressional action specifically to address the issue of children's privacy online, while giving more time to industry to prove it can regulate itself before calling for general privacy legislation.(7) In the last few days of the 1998 session, Congress in fact passed legislation designed to protect the privacy of children online. Yet, the regulatory scheme established by this legislation contains specific incentives for industry to self-regulate.(8) Why are the Advisory Committee, the Clinton Administration, and the FTC all calling for self-regulation? It is most likely that they see self-regulation as superior to (or at least more politically acceptable than) government regulation. Many scholars have also touted the benefits of self-regulation, but self-regulation is not without its critics. Part II of this Article reviews the literature on self-regulation to define what is meant by the term, to identify the purported advantages and disadvantages of self-regulation, and to identify the conditions needed for its success. Part III examines situations involving media where self-regulation has been utilized to determine why it was undertaken and whether is has been successful.(9) Based on these examples, Part IV suggests some tentative conclusions about the circumstances under which self-regulation works. Finally, it applies these findings to recent proposals to utilize self-regulation in connection with digital television and privacy on the Internet. II. SELF-REGULATION A. The Definition of Self-Regulation The term self-regulation means different things to different people. In introducing a collection of papers analyzing the prospects of self-regulation for protecting privacy on the Internet, Assistant Secretary of Commerce Larry Irving observed: Most basically, we need to define what we mean, as the term "self-regulation" itself has a range of definitions. At one end of the spectrum, the term is used quite narrowly, to refer only to those instances where the government has formally delegated the power to regulate, as in the delegation of securities industry oversight to the stock exchanges. At the other end of the spectrum, the term is used when the private sector perceives the need to regulate itself for whatever reason--to respond to consumer demand, to carry out its ethical beliefs, to enhance industry reputation, or to level the market playing field--and does so.(10) To devise a definition for purposes of this Article, it is useful to break apart the term "self-regulation." The word "self' refers to the actor. It could mean a single company. More commonly, however, and for purposes of this Article, it is used to refer to a group of companies acting collectively, for example, through a trade association.(11) The word "regulation" refers to what the actor is doing. Regulation has three components: (1) legislation, that is, defining appropriate rules; (2) enforcement, such as initiating actions against violators; and (3) adjudication, that is, deciding whether a violation has taken place and imposing an appropriate sanction. …