Lost cause? The Convergence Review model for news media self-regulation

By MARK PEARSON

Australia’s news media regulatory framework has been the subject of two recommendations for major overhauls in recent months.

It was the $2.7 million Convergence Review, announced in late 2010, that was meant to develop the definitive regulatory model in its final report released in April, 2012.

But along the way political pressures (or opportunism, depending on who you want to believe) prompted the announcement last September of an offshoot – the $1.2 million Independent Media Inquiry – specifically briefed to deal with the self-regulation of print media ethics.

Its architects – former Federal Court judge Ray Finkelstein and journalism professor Matthew Ricketson – argued they could not decouple print news self-regulation from broadcast ‘co-regulation’ in the digital era, so came up with a statutory model including both.

Their News Media Council, proposed in their report of February 28, 2012, would take over from the existing Australian Press Council and Australian Communications and Media Authority with a streamlined news media ethics complaints system with teeth. Refusal to obey an order to correct or apologise could see a media outlet dealt with for contempt of court and ultimately face a hefty fine or a jail term.

I have written previously on my concerns about the implications of these recommendations on Australia’s international standing as a democratic nation with a free media, particularly in light of our lack of any written constitutional protection of free expression.

The ‘Finkelstein report’ – as it became known – was only ever meant to be an advisory to its parent Convergence Review, which ultimately acknowledged but rejected its simplistic model in favour of its own innovative and less draconian one.

But the Convergence Review left it to others to put flesh on its more complex reform proposals, leaving the Finkelstein statutory regulation model to fill the void for Labor and Green politicians riding the wave of concern about media ethics in the wake of the UK’s News of the World inquiry and arguing that ‘something must be done’ in Australia.

According to news reports, the parliamentary winter recess will be used by Prime Minister Julia Gillard, Communications Minister Stephen Conroy and the Greens to rally support for the enactment of a version of the Finkelstein model.

Experts argue they will lack the numbers to drive it home, and it is unlikely a 2013 conservative government would take up the cause, given the antipathy of leading Opposition figures Malcolm Turnbull and George Brandis.

Meanwhile, the Convergence Review’s innovative ‘carrot and stick’ model of self-regulation has all but disappeared from public commentary, overshadowed by the stark divide over Finkelstein’s statutory regulation proposal between the Opposition (and major media players) and the Government, Greens and anti-Murdoch intellectuals.

It is a shame the debate has been reduced to this black and white (red versus blue) battle.

I am working on a longer academic article examining the Convergence Review’s novel but sparsely articulated attempt at dealing with the evolving regulatory demands of Web 2.0 (and 3.0 and 4.0…), but I will share some preliminary thoughts here.

First, to review the Convergence Review’s proposed model. While its final report shared Finkelstein’s concerns about shortcomings with existing regulatory systems, it proposed that ‘direct statutory mechanisms … be considered only after the industry has been given the full opportunity to develop and enforce an effective, cross-platform self-regulatory scheme’. In other words, it was offering the media industry ‘drinks at the last chance saloon’ for a three year period under its model (p. 53).

Its mechanism centres upon the establishment of a new ‘news standards body’ operating across all media platforms – reinforcing the overall review’s preference for ‘platform neutrality’ (p.51).

The news standards body ‘would administer a self-regulatory media code aimed at promoting standards, adjudicating complaints, and providing timely remedies’ (p. 153).

The Convergence Review decided not to be prescriptive about the constitution or operational requirements for such a body, beyond some broad requirements.

The largest news media providers – those it deemed ‘content service providers’ – would be required by legislation to become members of a standards body. Most funding for the new body should come from industry, while taxpayer funds might be drawn upon to meet shortfalls or special projects. (p. xiv). It should feature:

-       a board of directors, with a majority independent from the members;

-       establishment of standards for news and commentary, with specific requirements for fairness and accuracy;

-       implementation and maintenance of an ‘efficient and effective’ complaints handling system;

-       a range of remedies and sanctions, including the requirement that findings be published on the respective platform. (p. 51)

The review’s definition of ‘content service enterprises’ (control over their content, a large number of Australian users, and a high level of revenue drawn from Australia) would catch about 15 media operators in its net.

Others might be encouraged to join the body with a threat to remove their current news media exemptions to privacy laws and consumer law ‘misleading and deceptive conduct’ provisions.

To my mind, this is the most innovative element of the Convergence Review’s proposal, and is something I proposed in my personal submission to the Independent Media Inquiry and blogged about at the time.

The review only deals with this aspect as a hypothetical, and refers readers in a footnote to pages 127-136 of the Independent Media Inquiry report for extended explanation of the exemptions. The review offers just a single sentence by way of explanation:

“In particular, it seems reasonable that only those organisations that have committed to an industry self-regulatory scheme for upholding journalistic standards of fairness and accuracy should be entitled to the exemptions from the provisions of the Competition and Consumer Act 2010 concerning misleading and deceptive statements and from the obligations of the Privacy Act 1988 that would otherwise apply to those organisations.” (p. 51).

My article will explore these further, going into the history of the exemptions and important case law covering on their application.

Take these away, and the review’s recommendations are relatively meek, and unlikely to appease those wanting stricter controls over news content.

The Australian Press Council has been moving quickly to ramp up its purview and powers over its members, and can meet most of the requirements except these. It has already locked its members into four year commitments and has established an independent panel to advise on its review of its content standards.

It is poised to apply this across all media if broadcasters and online providers decide it offers the simplest mechanism to meet the Convergence Review’s recommendations. Either way, it can quite rightly argue that newspaper and online news readers are being serviced by a superior complaints handling system than that which existed before the inquiries.

In my view, the Convergence Review report needed to position its privacy and consumer law exemptions as much more than hypotheticals and to detail its plans for the implementation of these proposals.

But I suspect its members were caught short on time and resources when the Independent Media Inquiry went too far for its liking with its statutory regulation solution.

It’s a shame that a multi-million dollar inquiry like this one has left it to academics like me to dot its i’s and cross its t’s on detail.

It’s a greater shame that politicians wish to capitalise on a moment of public antipathy to the media to introduce a draconian, simplistic solution in a democratic nation with no documented right to free expression.

© Mark Pearson 2012

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

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