Whither media reform under Abbott?

By MARK PEARSON Follow @Journlaw

Where will the new Liberal-National Coalition government led by Prime Minister Tony Abbott head with the reform of media regulation? Communications Minister Malcolm Turnbull and Attorney-General George Brandis were vocal opponents of the former Gillard Government’s proposals to merge press self-regulation with broadcast co-regulation into a new framework.

Communications Minister Malcolm Turnbull … can he concoct the magic media self-regulation formula? [Image: commons.wikimedia.org]

Recent inquiries into media regulation in the UK (Leveson, 2012), Australia (Finkelstein, 2012) and New Zealand (Law Commission, 2013) have recommended major changes to the regulation of media corporations and the ethical practices of journalists. Their motivation for doing so stemmed from public angst – and subsequent political pressure – over a litany of unethical breaches of citizens’ privacy over several years culminating in the News of the World scandal in the UK and the subsequent revelations at the Leveson Inquiry (2012) with an undoubted ripple effect in the former colonies.

Many contextual factors have informed the move for reform, including some less serious ethical breaches by the media in both Australia and New Zealand, evidence of mainstream media owners using their powerful interests for political and commercial expediency, and the important public policy challenge facing regulators in an era of multi-platform convergence and citizen-generated content. Minister Turnbull is an expert on the latter element and it is hard to imagine him not proposing some new, perhaps ‘light-touch’, unified regulatory system during this term in office.

By way of background, two major inquiries into the Australian news media in 2011 and 2012 prompted a necessary debate over the extent to which rapidly converging and globalised news businesses and platforms require statutory regulation at a national level. Four regulatory models emerged – a News Media Council backed by recourse to the contempt powers of courts; a super self-regulatory body with legislative incentives to join; a strengthened Australian Press Council policing both print and online media; and a government-appointed ‘Public Interest Media Advocate’.

The $2.7 million Convergence Review, announced in late 2010, was meant to map out the future of media regulation in the digital era (Conroy, 2010). However, revelations of the UK phone hacking scandal and Labor and Green disaffection with Rupert Murdoch’s News Limited in Australia, prompted the announcement in September 2011 of a subsidiary inquiry – 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 assisted by University of Canberra journalism professor Matthew Ricketson – argued they could not decouple print news self-regulation from broadcast ‘co-regulation’ in the digital era, so devised a statutory model including both in their report of February 28, 2012, two months prior to the release of the report of its parent Convergence Review (Finkelstein, 2012).

The Independent Media Inquiry (Finkelstein) report was an impressive distillation of legal, philosophical and media scholarship. Among many sensible proposals, it called for simpler codes of practice and more sensitivity to the needs of the vulnerable. But its core recommendation for the ‘enforced self-regulation’ of ethical standards prompted fierce debate. It proposed a News Media Council to take over from the existing self-regulatory Australian Press Council and co-regulatory Australian Communications and Media Authority to set journalistic standards with a streamlined complaints system with teeth (Finkelstein, 2012, pp. 8-9) The body would cover print, online, radio and television standards and complaints. It would have a full-time independent chair (a retired judge or ‘eminent lawyer’) and 20 part-time members evenly representing the media and the general citizenry, appointed by an independent committee (Finkelstein, 2012, pp. 290-291). The government’s role would be limited to securing the body’s funding and ensuring its decisions were enforced, but “the establishment of a council is not about increasing the power of government or about imposing some form of censorship” (Finkelstein, 2012, p. 9).

The report stressed the model would be ‘enforced self-regulation’ rather than ‘full government regulation’;

…an independent system of regulation that allows the regulated parties to participate in the setting and enforcement of standards (as is presently the case), but with participation being required, rather than voluntary (Finkelstein, 2012, p. 287).

Nevertheless, refusal to obey an order to correct or apologise would see a media outlet referred to a court which could issue an order to comply with further refusal – triggering a contempt charge and fines or jail terms for recalcitrant publishers. (Finkelstein, 2012, p. 298). Such a court would be charged with the relatively straightforward task of determining whether the publisher had disobeyed an order of the statutory News Media Council. Only then might publishers get the opportunity for an appeal – again by a judge in court.

The ‘Finkelstein inquiry’ was only ever meant to be an advisory to its parent Convergence Review, chaired by former IBM Australia managing director Glen Boreham, which released its final report in April, 2012 (Convergence Review, 2012). News media regulation represented a much smaller element of the Convergence Review’s overall brief, particularly after this topic had been hived off to the Finkelstein inquiry, so this matter constituted a relatively small part of its report. While the Convergence Review 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 (Convergence Review, 2012, p. 53). Its mechanism centred upon the establishment of a ‘news standards body’ operating across all media platforms – reinforcing the overall review’s preference for ‘platform neutrality’ (Convergence Review, 2012, p.51). The news standards body ‘would administer a self-regulatory media code aimed at promoting standards, adjudicating complaints, and providing timely remedies’ (Convergence Review, 2012, p. 153).

Unlike Finkelstein, 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 (Convergence Review, 2012, p. xiv). It would 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. (Convergence Review, 2012, 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 (Convergence Review, 2012).

Both inquiries acknowledged – and rejected – the notion of a revamped Australian Press Council proposed in various submissions and appearances by its chair, Professor Julian Disney. (The Press Council was established in 1976 as a newspaper industry ‘self-regulatory’ body – a purely voluntary entity with no powers under law.) Nevertheless, during and after the reports, and with new support from most of its members, the Press Council moved quickly to ramp up its purview and powers to address many of its documented shortcomings such as the refusal of some member newspapers to publish its findings and the threat of withdrawal of funding from others (Simpson, 2012). It locked its members into four year commitments and established an independent panel to advise on its review of its content standards. Those standards are due to be announced soon.

In 2013 the Gillard Labor Government introduced a ‘News Media (Self-regulation) Bill’ to establish a new role of ‘Public Interest Media Advocate’ with the power to deregister bodies, like the Australian Press Council, if they failed to police effectively the ethical standards of their newspaper and online members. Ultimately, the proposal might leave media outlets without their current exemptions from compliance with the Privacy Act in their newsgathering operations. The Labor government later withdrew the proposal when it could not garner enough support in the Parliament – in the face of strong opposition from the mainstream media and the Coalition (now government) with Turnbull and Brandis as the lead naysayers.

The big question now centres upon not if, but when, they choose to propose some new regulatory system where serious media ethical breaches across all media platforms are channelled through a single – self-regulatory? – body. And the further – and crucial issue – will be whether they can do this without ultimate recourse to criminal sanctions for recalcitrant journalists and media groups. It is vital that they do so, given that Australia is rare among Western democracies in that free expression is not enshrined in our Constitution.

Australia’s global free press standing depends upon them devising the magic formula the earlier inquiries failed to concoct.

References

Conroy, S. (2010, December 14). Convergence Review. Terms of Reference (media release). Available: http://www.minister.dbcde.gov.au/media/media_releases/2010/115

Convergence Review (2012). Convergence Review. Final Report. Department of Broadband, Communications and the Digital Economy: Canberra. Available: http://www.dbcde.gov.au/__data/assets/pdf_file/0007/147733/Convergence_Review_Final_Report.pdf

Day, M. (2012, April 9.) A shame Seven West should quit Press Council. The Australian. Available: http://www.theaustralian.com.au/business/opinion/a-shame-seven-west-should-quit-press-council/story-e6frg9tf-1226321637864

Finkelstein, R. (2012). Report of the Independent Inquiry Into the Media and Media Regulation. Department of Broadband, Communications and the Digital Economy: Canberra Available: http://www.dbcde.gov.au/__data/assets/pdf_file/0006/146994/Report-of-the-Independent-Inquiry-into-the-Media-and-Media-Regulation-web.pdf

Law Commission (NZ) (2013). The news media meets ‘new media’: rights, responsibilities and  regulation in the digital age.  (Law Commission report 128). Law Commission: Wellington.

Leveson, B. (2012). Report of An Inquiry into the Culture, Practice and Ethics of the Press (The Stationery Office, 2012) [Leveson Report].

Simpson, K. (2012, July 20). Journalism standards set for an updating. smh.com.au Available: http://www.smh.com.au/business/journalism-standards-set-for-an-updating-20120719-22czm.html

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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.