By MARK PEARSON Follow @Journlaw
The Finkelstein (and Ricketson) Independent Media Inquiry report released yesterday is a substantial and well researched document with a dangerously flawed core recommendation.
An impressive distillation of legal, philosophical and media scholarship (compulsory reading for journalism students) and worthy recommendations for simpler codes and more sensitivity to the needs of the vulnerable are overshadowed by the proposal that an ‘independent’ News Media Council be established, bankrolled by at least $2 million of government funding annually.
This Council would have the ‘power’ to order corrections and apologies – but not to fine or jail journalists. That would be left to a higher court if a media outlet did not comply.
Several academics and small publishers have given it their approval. Even the Greens have applauded it, having demanded such an inquiry in the midst of the News of the World scandal in the UK and continued adverse coverage in News Limited publications locally.
The politicised circumstances of the inquiry’s birth fuelled a cry of ‘something must be done’ about the news media – for once and for all.
Criticism of the recommendations by the larger media groups on free expression grounds have been dismissed as a defence of their vested interests. It should surprise nobody that News Limited chief executive Kim Williams holds such a view, but such pigeon-holing of Finkelstein’s serious critics is a great shame. History is littered with examples of politicians withdrawing citizens’ rights to free expression because they did not like what they had been saying about them at a particular moment in history.
Scratch the surface of this proposal and you will find a harsh new regime which stands to damage Australia’s reputation as a democracy and might well come back to bite the politicians, academics and publishers who are supporting it today.
The key problems are with independence, enforcement and duplication.
The report details a process whereby the Council would be funded by the government, yet kept at arms length from it via an ‘independent’ board headed by an appointed ‘independent’ chair.
Only the chronically naïve would believe true independence could be established and maintained through such an appointment process in a relatively small government-funded instrumentality. It would, after all, be the government selecting the initial appointments committee.
Even the appointment process to the High Court suffers criticism from time to time, and the independence of the Australian Broadcasting Corporation’s chair and board has been questioned in recent history by the same academics and politicians applauding this new ‘independent’ body.
Those very people argue that News Corporation editors do not need explicit directions from Rupert Murdoch – that their very appointment implies they will toe the line. That may well be the case, so why would it be different here?
Although this statutory body will not have the power to fine or jail journalists, its appeal lies in its ‘regulatory teeth’, powers that the Australian Press Council has lacked and the Australian Communication and Media Authority has been loathe to use.
At face value, the News Media Council would only have the power to “require a news media outlet to publish an apology, correction or retraction, or afford a person a right to reply”.
However, what if a news blogger or publisher should disagree with such a direction so strongly that they refused to comply with such an order?
Well, then they would be cited for contempt and tried in a court which would have the power to fine or jail them. Several Australian journalists have suffered that fate in recent years. Such a court would be charged with the relatively straightforward task of determining whether the publisher has disobeyed an order of the statutory council.
Only then might publishers get the opportunity for an appeal – again by a judge in court:
11.78 In order to preserve the ability of the News Media Council to act swiftly, there should be no internal appeal from, or internal merits review of, a determination. Nor should there be external merits review via the Administrative Appeals Tribunal.
11.79 It would, however, be neither desirable nor possible to preclude all judicial supervision of determinations. In any event, because enforcement may need to be by way of court order, judicial supervision would be built into the process. In the course of enforcement proceedings a collateral challenge to a determination may be available and this would provide a sufficient mechanism for judicial supervision.
And who can guess what such appeals might cost your impoverished blogger or start-up publisher in legal fees – pitted against publicly funded prosecutors and their team of silks? So much for a quick and cheap dispute resolution process.
It’s a slippery slope – all rosy for its supporters who can only see themselves calling to account the multinational News Corporation and its anti-Left line.
But they might consider how this might operate under a change of government, perhaps under a Howard-like government with individuals sitting on the Council like those appointed to the ‘independent’ ABC board during that period?
And what if such a Council orders a leading environmental news site or magazine to publish an apology to a mining magnate for the ethical breach of publishing a ‘biased’ and inaccurate report about the company’s waste disposal practices, based on sensitive material from confidential sources? Where would the power and resources rest in a court appeals process in that situation?
To publish such an apology or retraction would be an affront to the blogger, and in their principled belief it would be a lie to do so.
Yet, they would face a hefty fine or jail – or risk losing their home in an expensive court appeal process – if they chose to stand their ground.
This proposal effectively converts the MEAA Code of Ethics and the scores of in-house and industry codes of practice into laws – enforceable, ultimately, in the courts.
I suggested in my personal submission (PDF) to the inquiry and in my appearance at its Melbourne hearings that Australia already has enough of those laws. Hundreds of them. I suggested alternative mechanisms using existing laws. I argued that we did not need more media laws and more expensive legal actions and that a government-funded statutory regulator would send the wrong message to the international community. It is the approach adopted by the world’s most repressive regimes.
Which brings us to the matter of duplication. I have seen few serious ethical breaches that could not be handled by existing laws like defamation, contempt, consumer law, confidentiality, injurious falsehood, trespass and discrimination. There are existing mechanisms to pursue them properly through established legal processes.
All of the serious examples cited at 11.11 of the report could have been addressed using other laws such as defamation, ACMA remedies or breach of confidence (or the proposed privacy tort). But the new regulator would do away with all the normal trappings of natural justice, dealing speedily with matters on the papers only without legal representation a media defendant would expect in a court of law.
Small publishers and bloggers might well be bullied into corrections or apologies because they would not have the time, energy or resources to counter a contempt charge in the courts.
This proposal (bizarrely titled “enforced self-regulation” at 11.33) risks duplicating the offences via ethical code breaches, with a big stick of a contempt charge hanging over a media offender who might well have been able to defend an action taken through the traditional channels.
The cost of this inquiry and its $2 million proposed annual funding would be much better spent on media literacy campaigns for the community, law and ethics training programs for journalists and bloggers, and the establishment of a one-stop referral service within the ACMA so complainants can get help in making their complaints through existing channels.
The budget would probably even cover a means-tested advocacy service to help poorer complainants pursue the most serious breaches of existing laws through the courts.
Australia is rare among Western democracies in that we do not have free expression or media freedom enshrined in our Constitution or in a Bill of Rights. Other countries like Britain and New Zealand proposing similar regulating mechanisms have free expression as an explicit right informing their jurisprudence.
The High Court demonstrated this week (PDF) that it is in no rush to progress its so-called “freedom to communicate on matters of politics and government”.
While rejecting the notion of licensing news media, the proposal quite rightly points out the problems in deciding the ‘news media’ that will be policed – in itself a defacto system of licensing journalists. It admits it could have no jurisdiction over foreign news outlets, which means the paparazzi and hundreds of offensive bloggers need only operate under an offshore enterprise.
Supporters of this News Media Council proposal should look again at the scenarios that could play out under a tough new regime of media regulation duplicating the court system. They might well heed that lyric from Australian songwriter Paul Kelly: “Be careful what you pray for. You might just get it.”
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.
14 responses to “News Media Council proposal: be careful what you wish for #ausmedia #MediaInquiry #Finkelstein”
Hi Mark, Im trying to open your individual submission which appears to be linked in the text, but the link opens a completely different thing. Where can i get access to your submission? I am currently doing an assignment for UTS and I would like to read it. Please let me know
I’ve now uploaded that independently because the link was no longer functional at the Department of Communications.
Thanks for alerting me to it.
I’ll also email the file to you.
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I agree that the proposed solution may not be the ideal solution, but neither is what we currently have. The important question is whether we can improve on what we currently have and if so how.
Many of the opponents of media regulation will blindly hold aloft the sacred cow of the freedom of the press, as if it is an indisputable truth that can not be surpassed by anything else.
Well I dispute its importance.
Freedom of the press is not the essential ingredient that ensures a well functioning democracy – its truth in media that is most important.
Freedom of the press may or may not lead to a diversity of opinion, and a diversity of opinion may or may not lead to the truth being made public.
What is important for society and democracy is that the truth is made public; and if we could get to the truth via another path other than through freedom of media and diversity then we should be prepared to take that path, rather than to keep holding aloft the sacred cow of freedom of the press.
Freedom of the press is a means of getting to the desired goal – it is not the desired goal – but some people have made it so. Truth is the goal. If we make this paradigm shift then the debate will become very different.
Sometimes freedom will lead to truth but sometimes it won’t… its not the freedom we seek … its the truth!
I’ve written a couple of blog posts related to this subject on my blog http://www.amimakingsense.com.au and I’d appreciate hearing your opinion of the arguments I put forward there.
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I disagree, Glen. This represents an impost and a raising of the barriers to entry for small publishers. The key points made by Mark here, which I agree with, is that (i) this constitutes a de facto licensing scheme for news media, which operates by determining who and who isn’t subject to this regulation (ii) because any disputed outcomes will end up in the courts, small publishers may either be ruined or intimidated into compliance because of their lack of resources. The solution to the problems the report raises is, generally, more media, more voices. This is another piece of regulation that makes it more difficult for independent voices to emerge.
Commenting from my phone, apologies for any layout issues.
If we agree that small publishers will be subject to the same laws as they are now, then I argue the opposite will occur.
The worst that could possibly happen with a report that draws on source is that the report has to be withdrawn. The journalist/publisher has to weigh up the decision to publish knowing that the document be withdrawn or the source given up.
What do you will happen if the scenario that Mark describes actually happens?
The journalistic article will be published. Mining company or whatever will lodge complaint. In three or four days a decision will be handed down that in a worst case scenario (beyond existing laws) means the journalistic article is withdrawn.
I suspect, and without it actually happening I can’t really frame it more strongly, that this will be a classic case of the Streisand Effect. The mining company or whatever will draw attention to something it does not want attention drawn to.
I am making a number of assumptions of course.
The first is that rather than defining journalistic practice as establishing the truth and therefore it matters whether or not a journalistic report is withdrawn, I am instead assuming journalistic practice in the current media ecology operates as an economy of attention. There is a surplus of media messages and catalysing audience attention around an issue or event is precisely what the sort of advocacy journalism example Mark provides is attempting to do.
There are other assumptions regarding the details of the implementation of such a regulatory body (ie lodging a complaint is public). Also that involvement from such a News Media regulator will commence only after the lodging of a complaint, which I think is a sensible assumption.
I therefore think the recommendation of such a News Media regulator is a very good idea.
I can foresee the release/publication of such advocacy journalism reports via email (so it exists forever on mail servers, regardless of the News Media regulator’s findings) late on a Thursday or Friday so it remains ‘live’ for at least a number of days. This way such reports will still catalyse critical attention in an audience around specific issues.
I don’t understand your example:
“the ethical breach of publishing a ‘biased’ and inaccurate report about the company’s waste disposal practices”
Are you suggesting that if an environmental report is inaccurate (to use the wording of the MI report not ‘fair and accurate’), then journalists should not withdraw the report and apologise?
You write: “Small publishers and bloggers might well be bullied into corrections or apologies because they would not have the time, energy or resources to counter a contempt charge in the courts.”
Point 11.70 of the report (page 296): “There should be a filtering process carried out by a senior officer of the News Media Council. The process is to determine whether or not a complaint is frivolous or vexatious. If it is, it need not be pursued. It may be appropriate to allow for an appeal to the chair by a complainant whose complaint is not to be pursued.”
As I have argued elsewhere, this is a form of protection for small news media outlets. Unlike the legal environment we currently have.