My piece in The Drum: Media regulation made simple by ‘responsible truth-telling’


Some of you might have missed my opinion piece at ABC’s The Drum Opinion published on December 22.

I reproduce it here for your interest and you might like to add your comments to the other 100+ featured on The Drum .


Media regulation made simple


The solution to the news media regulation problem lies in two or three simple words, depending on whether you choose to hyphenate: ‘responsible truth-telling’.

Those words should replace the myriad of codes of ethics, codes of practice, and statements of principles that Australian journalists are expected to follow in their daily reportage.

It might sound idealistic and over-simplified but that’s what it comes down to. It is a phrase that can be read to incorporate truth-seeking, across all platforms of new, social and legacy media, by those practising the pursuit many of us still call ‘journalism’ and by those blogging, tweeting or standing on soap boxes in public parks claiming to be speaking in the public interest.

As the Supreme Court of Canada recently decided, ‘responsible communication on a matter of public interest’ is worth protecting and irresponsible communication should be discouraged.

Regulation in the form of laws has worked reasonably well to deal with irresponsible investigations and publications and harmful falsities and continues to do so.

Just because ‘co-regulation’ via the Australian Communication and Media Authority and ‘self-regulation’ via industry groups, the Australian Press Council and the journalists’ union have floundered, does not make straight-out government control of the media any more acceptable in a Western democracy.

There is already an oversupply of regulation of the media and free expression generally in this country – across all levels of government and via quasi-governmental and self-regulatory and co-regulatory bodies. Added to this there is considerable censorship of free expression in government and the corporate sector in the form of ‘spin’.

Australia’s free expression is particularly fragile because it lacks any formal expression in our Constitution, especially when this is combined with at least five inquiries into the news media this year (2011) and proposals for a press regulator with government teeth, against a backdrop of Senator Conroy’s attempts at imposing an internet filtering scheme.

The Convergence Review quite rightly takes a 21st century broad-brush view of media regulation, but the Media Inquiry chair Ray Finkelstein QC appears focussed on a mechanism to prop up the very 20th century complaints system of the Press Council, proposing some government sanctions on the publication of findings and some taxpayer funding to supplement the reluctant sponsorship of the major newspaper groups.

My own submission to the Media Inquiry proposed there should be no more laws controlling the media in this country – just better access for media consumers to the laws that already exist and a one-stop shop for the handling of complaints. It also suggested a reworking of consumer laws so that ‘prescribed news providers’ do not get an automatic exemption from the ‘misleading and deceptive conduct’ actions over their news material.

No journalists can be expected to operate effectively within deadline paying heed to all the five or six codes that might apply to them.

A single code of ethics applying to journalists and their employers across all news media, under the banner of ‘responsible truth-telling’ would address fundamental principles of truth, accuracy, verification, attribution, transparency, honesty, respect, equity, fairness, independence, originality and integrity, with exceptions only for matters of substantial legitimate public concern.

It would be supplemented by industry or workplace ‘information and guidance’ documents to help explain to journalists and editors the fact scenarios and precedents applying to a particular medium or specialty.

Any government funding could establish and maintain a one-stop media complaints shop for referring consumers’ concerns to the appropriate self-regulatory or co-regulatory body and an accompanying media literacy campaign for the broader community. The several million dollars spent on these inquiries would have been better spent on this.

Broader citizen access to broadband and the sands of time will solve most of the media regulation problems we have today, but applying existing consumer law to the news media would help. That’s the way it was for a few years after the Trade Practices Act was introduced in 1975 until intensive lobbying by media groups won them a news provider exemption from its operations.

Why revisit consumer law? Because these days most news provision is ‘just another business’ and the only news media candidates for any regulation with teeth are usually operating across state borders in ‘trade or commerce’ and are therefore subject to the provisions of what has been rebadged the Competition and Consumer Act.

The Web 2.0 environment has motivated the traditional media to focus more strongly on commercial interests than it has ever had to do previously, breaking down the traditional ‘firewall’ between advertising and editorial material. Traditional revenue streams have reduced to a trickle. That’s why they have staff freezes and can’t increase their funding of the Press Council.

Such an adjustment to consumer law would mean a scandal on a scale of ‘Cash for Comment’ or the News of the World episode could be handled for what it is: irresponsible deception of media consumers by powerful, cynical, corporate players.

It’s not a radical suggestion. The ACCC entered the Cash for Comment fray early on, but backed off when the then Australian Broadcasting Authority started investigating. Perhaps it should have persisted. Just two years ago the High Court found against Seven under the former Trade Practices Act in a case false claims about goods and services. The reform would extend this to other ethical breaches.

‘Responsible truth-telling’ would remain protected, as it should be in a Western democracy. The onus would be on the ACCC to prove the irresponsibility or falsity of the misleading material or actions and that it was contrary to the public interest.

Media Inquiry chair Ray Finkelstein dismissed my suggestions as ‘impractical’ when I appeared in the Melbourne hearings last Thursday. He seemed intent on his Bandaid-like solution for the Australian Press Council.

He might be willing to take another look at it now that the Convergence Review has flagged its own big-picture approach and its intention to return to the drawing board of media regulation.

Mark Pearson is professor of journalism at Bond University and Australian correspondent for Reporters Without Borders. His views here do not purport to represent those of either of those organisations.

© 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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