Tag Archives: convergence

My Media Inquiry appearance: the transcript


I appeared at the Independent Media Inquiry on Thursday, December 8, 2011 to address my two submissions – one a personal submission addressing issues of media regulation and the other on behalf of our ARC Vulnerability Linkage Grant group. I have summarised the content of each in earlier blogs, hyperlinked in the last sentence.

For the gratification of those of you wanting an insight into a single witness’s testimony to such an inquiry, I reproduce the transcript of the session below:

                    Independent Inquiry into

                   Media and Media Regulation

                    Public Hearings


                         Held at the Monash University Law Chambers

                                   Ground Floor Auditorium

                       Marsh Building, 555 Lonsdale Street, Melbourne


                              Thursday, 8 December 2011 at 9.35am

                                           (Day 3)


                               Before:  Mr Ray Finkelstein QC and

                                        Dr Matthew Ricketson


            .08/12/11  (3)              254

                             Transcript produced by Merrill Corporation





         3       MR FINKELSTEIN:   Thanks, Professor, for coming down.


         5       PROFESSOR PEARSON:   Thank you.


         7       MR FINKELSTEIN:   We did hear you had some problems with

         8       your flight.


        10       PROFESSOR PEARSON:   Yes, the Gold Coast airport was closed

        11       temporarily, bad weather.  It is much better down here

        12       today.


        14       DR RICKETSON:   But you got here okay.


        16       PROFESSOR PEARSON:   Yes, in the end.


        18       MR FINKELSTEIN:   Our normal practice is to allow people

        19       who have come to give evidence to also speak to their

        20       submission and most do, some don’t.  It is purely

        21       voluntary, Professor.  So, we will proceed in whichever way

        22       you feel most comfortable with.  Would you like to say a

        23       few words first?


        25       PROFESSOR PEARSON:   I think I do need to say something

        26       because I have in fact made two submissions.  One was in my

        27       capacity as part of a research group, which I understand

        28       was the main reason you asked me here today, and that is

        29       our ARC linkage grant looking at vulnerability and the news

        30       media.  So all I would say by way of introduction is that

        31       when I do make comments I would need to distinguish between

        32       my role in that capacity where I put together the

        33       submission on behalf of the group, but I’m only one of five

        34       or six researchers from different institutions.  The

        35       project is led by Professor Kerry Green from the University

        36       of South Australia.  As with most linkage grants, we have

        37       industry partners.  In fact, one of the sponsors of the

        38       research is the Australian Press Council, which also needs

        39       to be stated by way of disclosure for that submission.


        41            I did submit a private submission in which in turn

        42       I had to distinguish between my various roles because of

        43       course with a private submission I do not speak on behalf

        44       of my institution, Bond University, and I also happen to be

        45       Australian correspondent for the international press

        46       freedom organisation, Reporters Without Borders, and I had

        47       to make it clear in that submission that I was not speaking


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                             Transcript produced by Merrill Corporation



         1       in any way on behalf of Reporters Without Borders.  In

         2       fact, they insist upon their correspondents not speaking on

         3       their behalf, just as any news organisation insists on its

         4       own reporters not speaking on its behalf.


         6            So I just wanted to make those comments by way of

         7       clarification.  Is my understanding correct that you mainly

         8       wanted me because of the submission to do with the

         9       vulnerability project?


        11       MR FINKELSTEIN:   Yes, we did.  But I do have some

        12       questions in any event about your own submission.


        14       PROFESSOR PEARSON:   Sure.


        16       MR FINKELSTEIN, it might be easiest to get that out of the

        17       road first, and I will ask you questions and bearing in

        18       mind what you have said I will be asking after your

        19       personal views, not the view of any organisation that you

        20       might represent in other respects.


        22       PROFESSOR PEARSON:   Indeed.


        24       MR FINKELSTEIN:   It is to do with the topic of standards.

        25       I think both standards and access really are the two issues

        26       that I wanted to take up with you.


        28       PROFESSOR PEARSON:   With my personal submission?


        30       MR FINKELSTEIN:   Yes, from your personal submission.

        31       Could I start with standards first.  You make the point,

        32       which I think is a point made elsewhere by other people

        33       making submissions, that there should be a single code of

        34       ethics which applies across the field of journalists and we

        35       have had a few submissions, one from the Media Alliance

        36       itself, but others as well, saying the plethora of

        37       standards and ethics is apt to cause confusion rather than

        38       have necessarily beneficial results.  But what I’m

        39       interested to know, because you don’t say very much about

        40       it in your personal submission, is what your views are

        41       about the methods by which either the multiple codes that

        42       exist or a single uniform code which is to be preferred

        43       comes into existence, how either the multiple or the single

        44       can or should be enforced.


        46       PROFESSOR PEARSON:   The word “enforced” is one that raises

        47       concern, I think, in a context of press as a fourth estate


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                             Transcript produced by Merrill Corporation


         1       in a democratic western society.  My colleagues at

         2       Reporters Without Borders are always alarmed when

         3       government inquiries ask about enforcement of such

         4       standards.  Nevertheless, your first point is to do with

         5       the complexity of all of the different codes.  As an

         6       educator, I make the point in both submissions that in

         7       basic education it is very hard to get students or

         8       practitioners to understand fundamental concepts and work

         9       within them, and with the codes of practice and the code of

        10       ethics and all of these various principles.  A single

        11       journalist may well be working under four, five or six of

        12       these codes of practice quite separate from other

        13       principles issued by the Press Council on particular topic

        14       areas and quite separate from the law of these areas, which

        15       are the main regulatory regime.


        17            So how do I think they would be enforced?  I think the

        18       thrust of this personal submission is basically that there

        19       are already so many laws applying to the news media, actual

        20       laws, that almost all serious complaints to the

        21       self-regulatory or co-regulatory bodies would actually come

        22       within the ambit of one of the existing laws.


        24       MR FINKELSTEIN:   You mean the laws of the land that apply

        25       to all and sundry?


        27       PROFESSOR PEARSON:   Yes, although, as you would well know,

        28       there are certain areas of media law – almost all areas

        29       apply to all and sundry, but certain areas apply much more

        30       to the media because they are coming in contact with them

        31       in their daily practice, and I’m talking about defamation,

        32       contempt of court, confidentiality, trespass, the

        33       developing law of privacy for which there is a separate

        34       inquiry at the moment, nuisance, stalking, police powers,

        35       move along powers.  All of these sorts of laws already

        36       exist.  The problem is more community or ordinary citizens’

        37       access to many of these laws.


        39       MR FINKELSTEIN:   And for the most part access to law is

        40       access in theory only but not in practice, so that for most

        41       members of the community the fact that there’s the law of

        42       the land in a practical sense means nothing to them at all


        44       PROFESSOR PEARSON:   No, but what it does, and it is coming

        45       back to your question to do with enforcement.  To my mind,

        46       to set up a whole new regulatory enforcement mechanism in

        47       addition to the existing laws is unnecessary —


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         2       MR FINKELSTEIN:   Because?


         4       PROFESSOR PEARSON:   Because one mechanism would be to give

         5       the existing community better access to the existing laws,

         6       and this might be idealistic, but via Legal Aid or

         7       whatever —


         9       MR FINKELSTEIN:   There is no practical way that will

        10       happen in my lifetime.


        12       PROFESSOR PEARSON:   Okay.


        14       MR FINKELSTEIN:   Which means in a practical sense it is

        15       easier for me just to put that to one side.  I think the

        16       last witness said he liked practical outcomes and, unless

        17       it has some practical content, it doesn’t really help any

        18       member of the community to proceed on the basis that what

        19       exists in theory but is not real for them is a panacea for

        20       anything.


        22       PROFESSOR PEARSON:   And I take that point.  What I think

        23       is a practical outcome or would be a practical outcome

        24       would be to beef up the alternative dispute resolution

        25       functions without enforcement, without a big stick, and

        26       also to beef up the community education and awareness about

        27       where they can make complaints and really to develop,

        28       I suppose, a single reference point for a single code where

        29       people can go to file complaints.


        31       MR FINKELSTEIN:   When you speak about a single code

        32       applying to journalists and presumably media outlets as

        33       well, would you include radio and TV amongst the people,

        34       organisations – I mean the journalists who work on radio

        35       and TV – and the proprietors of radio and TV outlets?

        36       Would you include them in the single code formula?


        38       PROFESSOR PEARSON:   I see nothing wrong with some sort of

        39       extension document explaining how a basic common code would

        40       apply across all journalism.  Certainly radio,

        41       photojournalism, web-based media, print, each has their own

        42       idiosyncrasies where practitioners would need extension or

        43       support material.


        45            But when you look at any code internationally and, as

        46       you were saying in the last session, it comes down to just

        47       some basic principles: accuracy, verification, fairness,


            .08/12/11  (3)              365         M PEARSON

                             Transcript produced by Merrill Corporation



         1       equity, right of reply, respect, respect for other people’s

         2       rights and underscored by fundamentally truth-telling,

         3       responsible truth-telling.  You could sum up a code in two

         4       words, responsible truth-telling, and that is what

         5       journalism is or should be about.


         7       MR FINKELSTEIN:   What happens if the current means or

         8       methods of self-regulation will not be beefed-up by the

         9       participants?  Is that then the point at which some

        10       government action is required or, if a government acts

        11       responsibly, is it at that point that it should intervene

        12       and do something?


        14       PROFESSOR PEARSON:   Like I said earlier, people have

        15       recourse through various laws and often this is funded by

        16       various groups, anyway; it is not individual funding.  So

        17       it is not to say that only wealthy people in society can

        18       take legal action.  That is not the case.  It is quite

        19       often a union or perhaps a support group of some sort —


        21       MR FINKELSTEIN:   That’s usually true for those who come

        22       into contact with the criminal law, but it is barely true

        23       for those who come into contact with the civil law.  You

        24       are right to say that, if a worker is injured, his or her

        25       union might come to the aid of the worker because of the

        26       collective responsibility that some unions see they should

        27       owe to the membership, but that’s not really the kind of

        28       situation that a person who is in a dispute with the press

        29       finds himself or herself in.


        31            In other words, I don’t know of any support group or

        32       any kind of access for average income earners or less than

        33       average income earners if they are in a dispute with the

        34       press, and sometimes the dispute isn’t a dispute that can

        35       be dealt with through the courts because there might be

        36       false statements or something said but not of a defamatory

        37       kind, so that the law, even for the rich, is unavailable

        38       because the complaint is not about an event which

        39       constitutes a transgression of a law, a civil law.


        41       PROFESSOR PEARSON:   So your question is should there be a

        42       government mechanism for recourse.  I think the system as

        43       it has been operating does not have fatal flaws and it is

        44       very important in a western democracy, without a bill of

        45       rights enshrining freedom of expression, certainly some

        46       High Court movements in that direction but nothing

        47       constitutionally beyond that implied political


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         1       communication defence.  It would be sending all of the

         2       wrong messages for a government body to have a brief of

         3       enforcing a journalism code of ethics.


         5       MR FINKELSTEIN:   Why?


         7       Lots of people say that, but I’m not

         8       sure often why they say that.  The code of ethics here

         9       would be – we have, say, the Press Council’s code of ethics

        10       developed by the Press Council in consultation with the

        11       press, so it is not a government code of ethics.  As we

        12       have discussed very briefly, there are common themes

        13       running through all the codes in any event.  So you have a

        14       code which is obviously acceptable to the press, or at

        15       least objectively ought be acceptable, but we know that it

        16       is in fact acceptable.  What is wrong in a democratic

        17       society where the rule is you have to abide by your code?


        19       PROFESSOR PEARSON:   Because basically if you are saying

        20       the existing legal mechanisms are inaccessible, you would

        21       be introducing yet another legal mechanism through such a

        22       formal system of regulation.


        24       MR FINKELSTEIN:   Correct.  One would be effective in the

        25       circumstances where the others are ineffective.  In other

        26       words, introducing something that works in a situation

        27       where the existing methods don’t work.  Why is that

        28       anti-democratic?


        30       PROFESSOR PEARSON:   We already have mechanisms like that

        31       and, as I explain in the submission, we have a media that

        32       is moving more and more towards a consumer model.  The

        33       existing media are under threat.  We already have the ACCC

        34       and consumer law that applies there.


        36       MR FINKELSTEIN:   By and large the kinds of laws that the

        37       ACCC administer, at least the anti-trust provisions of the

        38       relevant legislation, don’t touch any issue that we are

        39       concerned with, and the false and misleading conduct

        40       provisions, the press being the press, have got express

        41       exemption from them.


        43       PROFESSOR PEARSON:   That’s what my submission addresses.

        44       It talks about the fact that that exemption when introduced

        45       was a blanket exemption for prescribed news providers.  In

        46       the new environment prescribed news providers are

        47       effectively your traditional media and my suggestion in the


            .08/12/11  (3)              367         M PEARSON

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         1       submission is that responsible journalism basically be a

         2       rebuttal presumption for anyone practising journalism, fourth

         3       estate style of journalism, and that that be modified so

         4       that you then have a misleading and deceptive conduct

         5       provision applying, which is already being applied in some

         6       circumstances.  In a commercial situation it is being

         7       applied —


         9       MR FINKELSTEIN:   Part of the problem with that is, from my

        10       perspective, that the first is that if you lift the

        11       exemption or have circumstances where it doesn’t apply, it

        12       only affects statements made in trade or commerce because

        13       that’s the constitutional reach of section 52 or whatever

        14       new number it has got in the redrafted legislation, so it

        15       is of limited application; and the second problem is it

        16       says “Go to the court,” and you walk into a solicitor’s

        17       office and you will say to your solicitor, “I would like to

        18       sue this news outlet for false and misleading conduct,” and

        19       the solicitor will say, “Fine, we’ll take a $50,000 deposit

        20       and then we’ll see how we go as the case progresses.”


        22            In other words, what worries me is that’s another

        23       exercise in unreality in a practical sense, not in a legal

        24       sense.  You can make it work in a legal sense and look

        25       fantastic, but it’s not going to actually help people.


        27       PROFESSOR PEARSON:   My concern about an alternative model,

        28       where you are giving tough powers to enforce an ethical

        29       code through an existing body or a modified body, is that

        30       you would have exactly the same problem.


        32       MR FINKELSTEIN:   You make assumptions, though.  You use

        33       the words “tough powers”.  You might have a particular

        34       meaning for those words which may differ from mine.  What

        35       happens if the “tough powers” were print a retraction,

        36       print a correction?


        38       PROFESSOR PEARSON:   I think we come back to the debate

        39       your previous – remember I’m still speaking personally, not

        40       on behalf of the research group.


        42       MR FINKELSTEIN:   Yes


        44       PROFESSOR PEARSON:   I was listening to your earlier

        45       discussion with Mark Hollands.  I think one of the points

        46       that informs that attitude amongst editors is this notion

        47       of fourth estate which is still a residual ideal and it is


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         1       much more than just a commercial ethic on the part of

         2       editors.  It is a fierce independence from government, from

         3       government funded regulatory bodies —


         5       MR FINKELSTEIN:   Perfectly happy to make it a levy and

         6       make the media organisations pay it.


         8       PROFESSOR PEARSON:   It is still a government —


        10       MR FINKELSTEIN:   It is not government funded.


        12       PROFESSOR PEARSON:   It is still a government initiative.


        14       MR FINKELSTEIN:   Correct.


        16       PROFESSOR PEARSON:   It would be an initiative of the

        17       Australian government on an independent inquiry’s advice to

        18       force, with newspapers, a publication of certain material

        19       into a certain page of a newspaper.


        21       MR FINKELSTEIN:   To force them to do what they say they

        22       should do.  Do you see the dilemma?  It is not creating a

        23       new rule.  It is not creating a new standard.  It is just

        24       saying, “This is what you say should happen.  Good.  Make

        25       it happen.”


        27       PROFESSOR PEARSON:   All I’m saying is that without free

        28       expression entrenched in any constitution or bill of rights

        29       in this country, unlike most other western democracies, it

        30       would certainly send the message to the international

        31       community that the Australian government wants to force a

        32       will, whether it is its will in the circumstance, upon

        33       mainstream media organisations.


        35       MR FINKELSTEIN:   It would be doing no more than at least

        36       the law of the land applies to broadcasters because it is

        37       very difficult even for those with an entrenched

        38       constitutional right, at least at the moment, to say you

        39       can’t have a rule like that in the case of broadcasters.

        40       In the United States the Supreme Court has said this kind

        41       of regulation about which I’m speaking or more stringent

        42       regulation, right of reply, is perfectly constitutional,

        43       consistent with the first amendment.  So that if you had a

        44       public outcry saying it is an imposition on free speech, it

        45       would be a relatively uninformed outcry.  I’m not sure that

        46       governments or people like me should worry about uninformed

        47       outcries.


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         2       PROFESSOR PEARSON:   The other thing that would happen with

         3       this would be you would be establishing basically a

         4       two-speed regulatory process in a period of rapid media

         5       change.  We already have that, without entering into it and

         6       not knowing a lot about it, but with the purchase of

         7       consumer goods on-line you already have that sort of

         8       two-speed double standard applying.  Now, I might be an

         9       exception as an academic, but I now get all of my material,

        10       my news material, on-line and I’m just as likely to be

        11       reading the New York Times or Slate or Arstechnica as I am

        12       the Sydney Morning Herald or The Australian.


        14       MR FINKELSTEIN:   True, but you will get news about quite

        15       different things.


        17       PROFESSOR PEARSON:   Not necessarily.


        19       MR FINKELSTEIN:   Overwhelmingly.


        21       PROFESSOR PEARSON:   Perhaps overwhelmingly, but

        22       international news in Australia would have a double

        23       standard applying.  If you were applying Australian ethical

        24       code through a regulator in this country for a major event

        25       happening in Australia, you would be getting or you may

        26       well get quite different standards applying, one where

        27       there would be the reach of your proposed new regulator and

        28       one where there would not be the reach.


        30            While it may not happen all that often, it will happen

        31       on the really big stories.  It will happen on the miners

        32       trapped or the collapse of government or the major protests

        33       in the streets, because you are not going to be able to

        34       enforce your new rules upon these international providers,

        35       just as you can’t enforce them at the moment and the states

        36       are having all sorts of trouble enforcing their various

        37       publication restrictions on suppression orders and contempt

        38       of court and all the rest of it on Facebook or Twitter.  So

        39       traditional media groups —


        41       MR FINKELSTEIN:   I understand that.  That’s pointing out a

        42       consequence, but it is not really pointing to a reason.

        43       What you say is true of almost every current restriction

        44       which is imposed on not just media but on speech.  In other

        45       words, we have rules about obscenity, we have rules about

        46       pornography, we have rules about paedophilia, we have rules

        47       about what you can and what you can’t publish about court


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         1       proceedings and so on and so on and so on, and if the

         2       answer was if somebody in the United States could broadcast

         3       the material here with impunity and if that was relevant,

         4       then you would just get rid of all of those rules.  That is

         5       not a rational approach, in my mind.


         7       PROFESSOR PEARSON:   My view is that why would you have a

         8       whole new regulatory regime and a whole new mechanism when

         9       you don’t need that.  I think the existing ones work

        10       reasonably well, but people don’t know about them, people

        11       are illiterate about the media, people, as the main

        12       submission I’m talking about today talks about, they have

        13       various levels of vulnerability to the media and aren’t

        14       able to – don’t want to go through the process and the

        15       grueling complaints system.


        17            So, I think if you wanted to introduce such a system

        18       I would suggest you only did that after at least a trial of

        19       a better reference or a referral agency where something

        20       like the existing Press Council or the ACMA is actually

        21       funded to properly educate the community about the referral

        22       and complaint systems, where they can be proactive in

        23       launching complaints on matters that they have noticed

        24       themselves that have been identified to them, rather than

        25       this business where the person themselves have to issue a

        26       complaint, and effectively a one-stop complaints shop.


        28       MR FINKELSTEIN:   What happens if that funding is not

        29       forthcoming voluntarily?


        31       PROFESSOR PEARSON:   I think it would be very much in the

        32       interests, just as it was in the interests of the

        33       mainstream media organisations to establish the Press

        34       Council in the first place, because of these sorts of

        35       concerns about regulation.  I think if the major media

        36       groups were to recognise that what distinguishes them from

        37       new and amateur players is the fact that they can practice

        38       responsible journalism, then we wouldn’t have any problem

        39       with such a complaints body being funded.


        41       MR FINKELSTEIN:   Correct, and two of the three major news

        42       agencies have said in the last fortnight to me that the

        43       Press Council is adequately funded.  So my starting off

        44       premise has to be – and they are two of the three that

        45       provide almost all of the money and, according to Professor

        46       Disney, if one major sponsor – I don’t want to put it that

        47       way.  Two of the three who provide the bulk of the funds


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         1       have indicated that they will not provide more funds, no

         2       matter what the logic of your position is.  So I proceed on

         3       the basis that more money is not forthcoming, because

         4       that’s what I’m told.


         6            So my world, the world with which I have to deal, if

         7       I decide that the Press Council is inadequately funded to

         8       perform its functions, including the additional functions

         9       which you say they ought to be able to carry out, then

        10       I know that’s not going to happen.  So the question is, for

        11       me, do I just leave it as is, and even you agree that

        12       that’s deficient, or do I do something about it, or do

        13       I suggest that something be done about it?


        15       PROFESSOR PEARSON:   I don’t know what this inquiry is

        16       costing, but it would be something in excess of a million

        17       dollars.


        19       MR FINKELSTEIN:   So what?


        21       PROFESSOR PEARSON:   My point is that such funding would

        22       fund a very effective one-stop shop for complaints for at

        23       least the near future.


        25       MR FINKELSTEIN:   A couple of years, but it is government

        26       money.  My funding comes from the government.  So do I take

        27       it that you do not object to government funding?


        29       PROFESSOR PEARSON:   I don’t object to government funding

        30       of better education of the community in such a referral

        31       service.  There are tourism boards, there are all sorts of

        32       funding like that.  What I do object to, personally, what

        33       I do object to is a new regulatory regime —


        35       MR FINKELSTEIN:   Forget about a new one.  Just giving the

        36       money to the Press Council.  That’s not new.  That’s old.

        37       It has been there for 40 years.  Do you have an objection

        38       to that?


        40       PROFESSOR PEARSON:   I don’t have any objection to money

        41       being given to the Press Council.


        43       MR FINKELSTEIN:   From the government.


        45       PROFESSOR PEARSON:   I wouldn’t have an objection to that,

        46       as long as it wasn’t accompanied by new powers of

        47       enforcement.  So a government funded referral service or


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         1       beefing-up what the Press Council already does I would see

         2       as perfectly acceptable.


         4       MR FINKELSTEIN:  Okay.  Can I shift on to the other paper.


         6       PROFESSOR PEARSON:   Sure.


         8       MR FINKELSTEIN:   I’m very conscious of the fact that you

         9       have to get back to the airport, otherwise you will be

        10       stranded here.


        12       PROFESSOR PEARSON:   There are worse places to be stranded

        13       in.


        15       MR FINKELSTEIN:   I agree with that.  We nearly got

        16       stranded in Perth.  I did want to ask you a preliminary

        17       question, which is how far down the track is the project?

        18       The reason why I want to ask that is how far away are we

        19       from getting the data?


        21       PROFESSOR PEARSON:   Given the end of academic years at

        22       most of the institutions and so on, I would suggest that

        23       April to mid-year we would be getting the findings.  We

        24       already have the data.  We already have the data, all the

        25       data is collected and most of us have – you see, obviously

        26       with these things you carve up the tasks and so certain

        27       people have done the focus groups and all of the focus

        28       groups have been transcribed and they have been put into

        29       the appropriate software and research assistants have been

        30       working with that.  Then we have the various newspaper

        31       content analyses.  I have done the one for The Australian

        32       newspaper for 2009 with the help of research assistants.

        33       The other newspapers, the Sydney Morning Herald, the Quest

        34       Community Newspapers, two or three others that have been

        35       done, have been done by other researchers.


        37            All of that has been completed.  The coding has been

        38       completed on that.  Now is the stage of the actual analysis

        39       and write-up into the various sections.  The main output

        40       that will be coming from it, beyond the report that needs

        41       to go to the ARC at the end of all such projects, which is

        42       not necessarily a large document, but the main thing is a

        43       book with chapters by us and various collaborators taking

        44       up the various aspects of vulnerability in all of the

        45       different sorts of interactions with the media, including

        46       the regulatory aspect.



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         1       MR FINKELSTEIN:   Does that mean that, if I was to ask for

         2       it, they are not in existence yet, preliminary work by way

         3       of analysis that show, at least at an early stage, what the

         4       final result might look like?


         6       PROFESSOR PEARSON:   We have talked about this as a group

         7       and we couldn’t really release the material that we have to

         8       date.  It would be a matter of, if your own brief was

         9       extended, if it started to get into that period, but our

        10       intensive period of analysis is going to be over the next

        11       two to three months.


        13       DR RICKETSON:   What did you present at the journalism

        14       educators conference?


        16       PROFESSOR PEARSON:  I didn’t present anything.  I was still

        17       teaching then.


        19       DR RICKETSON:   I mean in the group.


        21       PROFESSOR PEARSON:  Two or three of the colleagues

        22       presented basically papers explaining the project and just

        23       a few of the focus group findings and things.  Angela

        24       Romano presented a paper on the focus group findings to a

        25       diversity conference in North Queensland earlier in the

        26       year, mid-year.  I presented a paper in Athens last year

        27       just on the methodology and the background to the whole

        28       thing.  So, there have been bits and pieces so far.  I’m

        29       sorry, but we can’t – the media inquiry wasn’t envisaged

        30       when we were starting it and you can’t sort of rush these

        31       things when you want to do them properly.


        33       MR FINKELSTEIN:   When the organisation’s paper speaks

        34       about vulnerable people, I understand it to include people

        35       with disabilities, maybe people at a young age, people who

        36       have suffered some bereavement in the family, something

        37       like that, but do you have sort of a definition or a proper

        38       list of the people who fall within the class that you are

        39       looking at?


        41       PROFESSOR PEARSON:   One of the things, I suppose it was an

        42       early eureka moment or a finding, was that our original

        43       submission seeking the funding did do that.  We talked

        44       about indigenous sources, people with a disability, people

        45       experiencing mental illness, people who had been affected

        46       by or their families had been affected by suicide in some

        47       way, children, the elderly and so on.  Then, as we were


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         1       looking at examples and basically doing what you would call

         2       a trial content analysis, we started to see, “Hold on,

         3       there are others who are vulnerable in certain

         4       circumstances.”  One of our partners for the project is the

         5       DART Centre for Trauma and some of the complaints to the

         6       co-regulatory and self-regulatory bodies are about people

         7       who have been in trauma of some sort or are in such a

         8       traumatised condition after a news event that they are

         9       unable to speak to the media or perhaps after an injury or

        10       something like that, or under the influence of alcohol.


        12            So we decided that vulnerability would have a broader

        13       definition, firstly because we didn’t want to stereotype

        14       particular groups and basically enhance, I suppose, the

        15       stereotyping of such groups by saying that these are

        16       vulnerable sources, because clearly it is unfair to say

        17       that about any of those groups that we just mentioned.

        18       Individuals within them are highly competent and able to

        19       deal with the media and quite resilient and able and quite

        20       media literate quite often.  So we thought we would look

        21       instead at the moments of vulnerability.  In other words,

        22       the situation, the news situation where such people, where

        23       all people might find themselves basically vulnerable to

        24       journalistic unethical behaviour.


        26       MR FINKELSTEIN:   So that is not really putting anybody

        27       into a particular group to start off with; it’s just

        28       looking at the particular circumstances at times.  So it

        29       could be anybody from any background.


        31       PROFESSOR PEARSON:   Yes.  But, that said, in our analysis

        32       we certainly issued the amber light for a closer

        33       examination of the article if the individual or the source

        34       was from one of these so-called potentially vulnerable

        35       groups.  So, a story involving a child, for instance, a

        36       child in difficult circumstances and perhaps a teenager

        37       talking about her sex life and that being published or

        38       something like that, where perhaps there was a Press

        39       Council complaint emanating from it, then they became the

        40       subject of closer scrutiny.


        42       MR FINKELSTEIN:   Was the focus of the inquiry things like

        43       did the person give consent to the story and could that

        44       consent be regarded as proper consent, one instance, and

        45       things like were photographs taken of people in distress or

        46       were stories written about people who were in difficult

        47       circumstances that might find themselves in either


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         1       embarrassing or hurtful positions, that kind of thing?


         3       PROFESSOR PEARSON:   All of those things.  It was both

         4       photographic material, it was – but being a content

         5       analysis we were working from the material as presented in

         6       the newspaper.  There may be many more moments of

         7       vulnerability, perhaps, that did not result in a

         8       publication.  It doesn’t mean that there wasn’t harm caused

         9       back then at the point of inquiry or interview or whatever.

        10       It just might not have made it.  A person could still be

        11       traumatised by the experience of interaction with the media

        12       or something.  But all of that was underscored also by the

        13       fact that we recognise as researchers that sometimes there

        14       is a price that has to be paid in an interaction with

        15       someone who may be vulnerable for a matter of legitimate

        16       public concern which may well take precedence over what

        17       might be some level of harm happening to an individual for

        18       that truth to be told.


        20       MR FINKELSTEIN:   Did you confine what you were doing to

        21       looking at what was published in the media or did you

        22       relate that also to the effect it may have had on the

        23       individual concerned?


        25       PROFESSOR PEARSON:   We were unable to project what that

        26       effect might have been.  The project, in the scheme of ARC

        27       projects, had relatively low funding.  It was of the order

        28       of $90,000 over a couple of years, and there were six of us

        29       working on it.  So it didn’t really go all that far.  Much

        30       of that was taken up with the focus groups.  It was at that

        31       level where we spoke to people who had representation from

        32       some of these vulnerable groups and also other citizens

        33       within the community.  Some of them were selected

        34       specifically because they represented people from those

        35       sorts of groups, and others were more of a broader

        36       community representation.


        38       MR FINKELSTEIN:   I see.


        40       PROFESSOR PEARSON:   Those people volunteered through a

        41       focus group situation their experiences with the media in

        42       stories concerning them.  So that was one way of getting

        43       beyond the content itself.  In the content itself, we could

        44       only work with what was there on the page.  But I have

        45       several examples from the Australian here today, just the

        46       coding sheets.  I have reviewed them again quite recently

        47       because I’m doing the analysis at the moment.  So I could


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         1       easily give you some examples of those sorts of situations.


         3       MR FINKELSTEIN:   That would be very helpful.  Can I just

         4       go back to the focus groups, though.  Were the focus groups

         5       comprised exclusively of people who had had some

         6       unfortunate or what they thought was an unfortunate

         7       experience with the press or were the focus groups people

         8       who had and had not had contact with the press?


        10       PROFESSOR PEARSON:   Yes, it was that mixture.  To be

        11       frank, I was not involved myself with the focus groups.

        12       There were experts within our collaborative group who were

        13       experts in focus group management.  But, from memory, there

        14       was one that had people who had experienced mental illness.

        15       There was one with a mixture of Indigenous and people who

        16       were at least second generation from other countries,

        17       migrant groups, and others were a mixture of ordinary

        18       citizens.


        20       MR FINKELSTEIN:   I’m going to ask an impertinent question.

        21       I will ask you to let us have a look at the data that you

        22       have.  Is it permissible for you to do that?


        24       PROFESSOR PEARSON:   I would need to just check with my

        25       group.  I wouldn’t have any objections myself.  At this

        26       stage it’s conditional upon the inquiry itself using the

        27       material and not launching it to any website or anything

        28       like that.  Is everything that we make available to you

        29       publicly available?


        31       MR FINKELSTEIN:   No, the only things we have made publicly

        32       available are the submissions that parties or individuals

        33       have filed, provided we thought that they were appropriate

        34       to be published.


        36       PROFESSOR PEARSON:   I would just check with the other

        37       members of the group first.  The researchers get precious

        38       about their data, of course.  What I will say about the

        39       items from The Australian – and remember it is only a

        40       qualitative content analysis, because we had randomly

        41       selected days throughout 2009 that we were collecting from,

        42       so it is not like we have done a comprehensive count of

        43       every story in The Australian over that period; it was a

        44       story that appeared in the news sections of the selected

        45       days, which happened to be 12 days per year, over the year,

        46       one day per month for each of the newspapers we were

        47       looking at.  So it was not a huge dataset and it was


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         1       certainly not counted in that way.


         3            But what I would say is that we were also on the

         4       alert, particularly when the amber light had gone on for

         5       the vulnerable groups, for positive handling of such

         6       situations and not just the negative handling.  Of the ones

         7       we looked at for The Australian newspaper there would have

         8       only been half a dozen or so out of it would have been

         9       several hundred articles where we could see a very, very

        10       clear moment of vulnerability which seemed not to have been

        11       handled that well and did not seem to have counterbalancing

        12       broader public interest concerns.  There were several that

        13       were handled quite well.


        15       MR FINKELSTEIN:   Have you got similar data to hand where

        16       you could make observations of the kind you have just made

        17       but concerning other news outlets?


        19       PROFESSOR PEARSON:   No, because my colleagues have that,

        20       our research assistant based out of Wollongong and the

        21       other colleagues that have been leading the project for the

        22       different publications.


        24       MR FINKELSTEIN:   Are you able to say from the discussions

        25       you have had to date amongst your group whether you think

        26       that there are areas of concern where the press have in a

        27       sufficiently large number of cases, bearing in mind the

        28       limitations on the data collection process, that you would

        29       think that something like a body like a Press Council ought

        30       be having a look at it to see whether or not standards are

        31       being complied with or ought be firmed up?


        33            I know, for example, that the Press Council have

        34       specific guidelines on suicide and are working on other

        35       areas as well; whether you know enough yet to say that

        36       there are some areas where the Press Council ought publish

        37       specific guidelines about how these kinds of situations

        38       should be dealt with, and then I will ask you what those

        39       situations are.


        41       PROFESSOR PEARSON:   The answer is, yes, there are areas

        42       that journalists could improve their application of the

        43       various codes of practice that they operate under which has

        44       become apparent through a few of the cases that we have

        45       looked at.  One of them is the issue of dealing with

        46       children and whether children should be mentioned or —



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         1       MR FINKELSTEIN:   You mean by name mentioned?


         3       PROFESSOR PEARSON:   Perhaps by name, but also perhaps not

         4       named but their circumstances may well accentuate their

         5       emotional harm or whatever because they are part of a

         6       story, even though not identified.


         8            A second is clearly to do with suicide.  Even in The

         9       Australian newspaper there were two or three examples where

        10       the actual method of suicide was detailed.  In a couple of

        11       those cases it was to do with celebrities.  In other cases

        12       it was to do not so much with the method being detailed but

        13       basically speculating that the individual involved might

        14       well or it could be expected that they would be having

        15       suicidal feelings in those circumstances which were part of

        16       the story.  So, in other words, they were comment pieces

        17       going to the soul of the individual.  These were sporting

        18       individuals who were seen to be at their lowest career and

        19       life points, and it was raising suicide as a prospect.

        20       That was of concern.


        22            One was a particular moment of vulnerability with

        23       children.  It was quite a high-profile case.  I think I can

        24       actually mention it.  You might recall it was the mother

        25       who had fled overseas with her child.  It was a custody

        26       issue and the father was back here.


        28       DR RICKETSON:   In Victoria


        30       PROFESSOR PEARSON:   I think it was in Victoria, yes.

        31       I could dig it up here if you wanted me to.  But,

        32       basically, the point was that there were all sorts of

        33       comments made in the article quoting an expert about what

        34       the consequences, and the very negative consequences, would

        35       be for the mother and child if she gave up and surrendered

        36       herself.  We thought that was an unnecessary extension to

        37       take with the story because it was seen to be

        38       counterproductive to the outcome, which was clearly that

        39       the woman did surrender herself and the child.  So they are

        40       just some little skerricks of some insights of the sorts of

        41       things we were looking at.


        43            Others were clearly outweighed by the public interest

        44       involved, but are interesting because of both the cultural

        45       and I suppose the globalised nature of news communication

        46       today; for example, an injured civilian in the Gaza Strip

        47       during a military conflict, clearly a bomb victim covered


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         1       in blood in terrible distress.  It just raises the question

         2       – and obviously from our earlier discussion it is something

         3       you need to consider in the reverse, I suppose, for

         4       international coverage of Australian stories, for

         5       Australian coverage of international stories – if this

         6       material is also posted to the website, what’s the

         7       implication back home for this citizen of another country

         8       who clearly has the same scope for embarrassment,

         9       humiliation with their depiction in a traumatic news event.


        11       MR FINKELSTEIN:  Have you got any comments you could make

        12       about Indigenous people that you have personally looked at

        13       or that your group has discussed?


        15       PROFESSOR PEARSON:   As an extension to the study I was

        16       funded through my allocation, being a media law researcher,

        17       to look for examples where both the ACMA and the Australian

        18       Press Council had dealt with complaints that we could

        19       identify as coming within our domain of these moments of

        20       vulnerability.  Surprisingly – and I explain in the

        21       submission – there were relatively few, it was only really

        22       20 or so between the two bodies, where we could see these

        23       moments of vulnerability finding their way all the way

        24       through to a complaint and a finding in various ways.

        25       Obviously the co-regulator deals with it differently from

        26       the Press Council.


        28            In answer to your Indigenous question, amongst those

        29       there were three or four examples where the regulators had

        30       dealt in different ways with people who were clearly

        31       vulnerable individuals but their race seemed to be

        32       mentioned in either an unnecessary sense or in a derogatory

        33       sense.  So the fact that they were Indigenous may not have

        34       even needed to have been mentioned.  It didn’t seem to be

        35       relevant to it in one case I can think of.  In another it

        36       was the showing of footage to do with – it was basically a

        37       file footage issue where it was to do with an Indigenous

        38       story but it was showing very negative file footage

        39       attached to that.


        41       MR FINKELSTEIN:   One of the points you do make in the

        42       organisation’s paper is it is a bit hard to draw a lot of

        43       conclusions from that from the numbers that you see, either

        44       the Press Council or through ACMA, because these kinds of

        45       people, the vulnerable, are less likely to make complaints.


        47       PROFESSOR PEARSON:   Yes.


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         2       MR FINKELSTEIN:   That doesn’t tell you where there isn’t

         3       much.


         5       PROFESSOR PEARSON:   We don’t know that they are less

         6       likely.  We can’t draw that conclusion.  But we have focus

         7       group participants saying that they were becoming

         8       frustrated with the processes; they didn’t have the energy;

         9       they were already traumatised; they didn’t want to have to

        10       deal with the media; all of those kinds of comments.  You

        11       must remember with focus groups – and we feel ours were

        12       managed particularly well – once you start homing in on the

        13       topic area people start sort of getting on their high horse

        14       and saying all sorts of things.  It is all grist to the

        15       mill, but it is only one element of the methodology.


        17       MR FINKELSTEIN:   I think we are pretty much finished, but

        18       what I was going to ask was if in a month’s time —


        20       PROFESSOR PEARSON:   Unfortunately a month cuts straight

        21       across that Christmas break.  I will put it to my

        22       colleagues, but I don’t expect them to be working

        23       diligently on this over their family holiday period.  I’m

        24       sure if the inquiry was to offer an extension grant or

        25       something for the linkage project – no, that was all in

        26       jest.


        28            The other big thing of course was the issue of consent

        29       in particularly traumatic situations.  Particularly my

        30       colleague Angela Romano from QUT has had a much closer look

        31       at this.  But, nevertheless, the issue seems to be in some

        32       of the codes of practice they talk about consent having

        33       been given and that being acceptable.  Consent was a

        34       recurring issue in the Press Council and ACMA

        35       deliberations, particularly with things like children or

        36       relatives giving consent for a vulnerable person’s medical

        37       details and then being identified in association with that,

        38       and the media accepting that level of consent when clearly

        39       the individual hadn’t agreed to it.


        41            Dr Romano also raises the issue of the ability to

        42       withdraw consent and whether or not an editor might sort of

        43       give only one chance to give consent and not allow the

        44       opportunity for that to be withdrawn if the person is

        45       having second thoughts and the story is particularly

        46       newsworthy.  So we think consent needs to take into account

        47       the situation of trauma or vulnerability that the


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         1       individual is involved in, and that’s not necessarily

         2       written that well into the various codes of practice.


         4            What we would like to see is the very issue of

         5       vulnerability being expanded so that, if there was a new

         6       code, it would make allowance for the fact that individuals

         7       in serious news events might be traumatised and may be

         8       unwilling to give consent at all, but should have the right

         9       to withdraw that consent at some stage.


        11       MR FINKELSTEIN:   That is an interesting concept.  It is

        12       also interesting, the consent issue, because the kind of

        13       consent that was extracted from I think it was a footballer

        14       in London who had suffered quite serious injuries gave his

        15       consent to two reporters who had dressed up as doctors to

        16       get into his hospital room led – I can’t remember whether

        17       it was the third royal commission or the second royal

        18       commission, I think the third royal commission into the

        19       press.  It got everybody pretty excited, and quite

        20       legitimately.


        22       PROFESSOR PEARSON:   Two of the examples we look at to do

        23       with the Press Council actually have situations where that

        24       allegation was made in Australia on two of the complaints.

        25       The Press Council decided not to inquire further into the

        26       veracity because it was denied by the newspaper

        27       organisation but put by those who were the supposed

        28       victims.  It decided on other grounds rather than pursuing

        29       the inquiry into the circumstances in which the journalists

        30       got access to them in the first place.


        32       MR FINKELSTEIN:   I think in the English case there wasn’t

        33       a dispute about it.  They said, “Sure, we got dressed up

        34       like doctors to get into” —


        36       PROFESSOR PEARSON:   That was the Sunday Sport case

        37       involving the actor Gordon Kaye.


        39       MR FINKELSTEIN:   No, a footballer.  I think it must have

        40       been in the 1970s.


        42       PROFESSOR PEARSON:   That may well have been the case.  But

        43       the one that I mention is what prompted the Calcutt Inquiry

        44       originally, which was basically the first real exploration

        45       of these things.  It was the actor Gordon Kaye, who was in

        46       his hospital bed and semiconscious after head injuries in a

        47       storm in a motor vehicle.


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                             Transcript produced by Merrill Corporation








         2       DR RICKETSON:   Also the code of ethics currently here, in

         3       the review of it in the mid-1990s, from memory, there were

         4       explicit clauses recommended for both dealing with children

         5       and dealing with people in if not vulnerability then grief.

         6       They were more expansive than the 12 clause code that was

         7       eventually voted in in 1999 or whenever.  In a sense,

         8       either you could go back and have a look at that or that

         9       ground has been at least explored in the past.


        11       PROFESSOR PEARSON:   Or if a new single code was pared back

        12       to those very basic principles we spoke about early in this

        13       session, then an extension document on dealing with the

        14       vulnerable, in other words the educational side of it,

        15       could take up that issue as part of the basic respect

        16       element when dealing with sources.


        18       MR FINKELSTEIN:   If you had a pared back single code it

        19       wouldn’t be a bad idea to have a sort of explanatory

        20       memorandum going with it giving examples or an expansion by

        21       way of example or of common facts that a journalist might

        22       encounter in a professional life.


        24       PROFESSOR PEARSON:   We make the point in our submission

        25       that something the Press Council has done very well has

        26       been the whole educational side of things and the funding

        27       of research and so on.  Part of that I think has been

        28       looking at case studies with journalism students at the

        29       various institutions where a Press Council member visits

        30       the institution and they do exactly what you are saying.

        31       They look at the actual principle that is involved and then

        32       they look at how that has been applied.  They get the

        33       students to engage with a particular news scenario which

        34       really did happen and then they look at the outcome and why

        35       the Press Council reached that decision.  So accompanying

        36       materials like that would certainly be of benefit.


        38            But the problem at the moment is just the basic

        39       wording of all of the different codes of practice and code

        40       of ethics.  The standard one is the journalist code of

        41       ethics, the MEAA.  But, as you are fully aware, it has been

        42       very badly enforced.  That’s the issue.  But the document

        43       itself is probably the best working document, I would

        44       think.


        46       DR RICKETSON:   It is also the oldest in its original

        47       incarnation.


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                             Transcript produced by Merrill Corporation








         2       MR FINKELSTEIN:   That is it from us.


         4       PROFESSOR PEARSON:   Thank you for the opportunity.


         6       DR RICKETSON:   Thank you very much, Professor Pearson.


         8       MR FINKELSTEIN:   Very good.  But if you do do some

         9       research between now and mid-January —


        11       PROFESSOR PEARSON:   I will certainly put that to my

        12       colleagues.  We will link-up for a teleconference in the

        13       next week and I will correspond with your officers.



        16       2011 AT 2.30PM

































            .08/12/11  (3)              384         M PEARSON

                             Transcript produced by Merrill Corporation


© Mark Pearson 2011

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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Consumer law holds solution to grossly irresponsible journalism


Australia does not need a media tribunal with regulatory powers to punish ethical transgressions.

It already has one – in the form of the Australian Competition and Consumer Commission.

My personal submission to the Independent Media Inquiry filed last week suggests that in the era of increasingly commercialised and converged media, the best protection for responsible journalism is to punish unethical, misleading and deceptive conduct by any corporation against media consumers.

A legislative solution already exists – and just requires an amendment to the existing news organisation immunity from prosecution under the ‘misleading and deceptive conduct’ provisions  at Section 18 of the Competition and Consumer Act 2010.

My submission argues that the Federal Government could give teeth to the existing protections under Section 19 of that Act by recognising that the news media in the new era is ‘just another business’ while offering strong protection for responsible, ethical journalism inquiring into serious matters of legitimate public concern.

The most serious cases of ‘misleading and deceptive conduct’ under Section 18 of Schedule 2 of the Competition and Consumer Act 2010 – in blatant disregard of the a new ethical code detailed below and with inadequate public interest grounds – should be actionable by both the ACCC and private citizens like any other consumer complaint, with the force of the regulatory powers it already holds.

The key to this would be an amendment of the ‘prescribed information provider’ exception (Section 19) so that news organisations would no longer have the blanket, almost unchallengeable protection for misleading and deceptive conduct which was introduced after their lobbying in the late 1970s and early 1980s. (I traced the background to the provision’s predecessor under the Trade Practices Act 1974 in the Australian Journalism Review in 2001.)

Instead, it would be a rebuttable presumption that such corporations publish responsible news and current affairs material of legitimate public interest in accordance with a journalism code of practice.

In other words, they would not have to defend trivial complaints on these grounds – only those where a court has ruled there had been a clear breach of their ethical code in circumstances clearly contrary to the public interest – blatantly irresponsible ‘journalism’ committed in their content creation or publication which is clearly their stock in trade.

The reform would expose media organisations from all platforms to ACCC prosecution for heinous ethical breaches along the lines of the News of the World scandal in the UK.

Anything less than the most extreme and offensive ethical transgressions impacting detrimentally on the rights of other citizens would be handled via existing laws or self-regulatory processes because they would not meet the still high threshold to overcome the s.19 exception. In fact, frivolous proceedings on lesser transgressions could result in an award of costs against the complainant in finding that they should have followed the alternative dispute resolution avenues of the existing self-regulatory or co-regulatory bodies. (Interestingly, the ACCC already has powers to pursue corporations for ‘unconscionable conduct’ under section 20, to which the media exemption does not apply.)

The High Court recently found against a media organisation under the former Trade Practices Act in ACCC v. Channel Seven Brisbane Pty Ltd [2009] HCA 19.  That decision related to false claims on ‘Today Tonight’ about goods and services. The reform would extend this to other ethical breaches.

It is essential that media outlets and journalists conform to ethical codes. It is in their interests that they do so, because it is these very ethical standards that distinguish them from the many new voices seeking audiences in the new media environment. However, my last blog demonstrated the confusing array of self-regulatory and co-regulatory documents guiding ethical standards of journalists and their outlets in this country.

No single journalist could possibly be expected to understand and operate effectively within deadline, paying heed to all that might apply to him or her, including the MEAA Code of Ethics, an in-house code, an industry code and the related laws and formal regulations that might apply. This moots strongly for a single code of ethics applying to journalists and their employers across all media, similar to the existing MEAA Code of Ethics, addressing 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.

Of course, this could 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, along the lines of the Australian Press Council’s guidance releases.

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’ or media relations policies that carefully control the flow of information to the public via the media. It would be counter-productive at a number of levels to apply new gags on the traditional media in the Web 2.0 environment. Firstly, it would send the wrong message to the international community about Australia’s level of free expression. Secondly, it would place Australian traditional media at a competitive disadvantage to new media providers who might be based overseas but reporting on Australian news and current affairs.

That said, the regulatory systems should recognise that 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. Historic sources of revenue such as classified advertising (the ‘rivers of gold’) have migrated to online providers, new media platforms have earned a share of the display advertising budgets and smart phone, tablet and web-based advertising and marketing have morphed with news content, breaking down the traditional ‘firewall’ between advertising and editorial material. News corporations should now be seen for what they really are – ‘just another business’ –  seeking the eyeballs, hits and downloads of consumers in the competitive new media environment.

Thus, the regulatory oversight of those selling news content should come under the auspices of the Australian Competition and Consumer Commission, with strong protections in place for those pursuing legitimate responsible journalism on matters of public importance. A division within the ACCC could be established to act as a ‘one-stop shop’ for the referral of citizens’ complaints about media outlets to the self-regulatory and co-regulatory bodies which would continue their complaints procedures and research functions.

The purpose of this submission is not to go into the mechanics of such legislation or its drafting. There have been legislative precedents on the use of regulatory codes as a backdrop to such a provision. For example, in the UK s12(4)(b) of the Human Rights Act directs a court to take into account ‘any relevant privacy code’ when considering whether free expression rights should outweigh privacy rights in a given situation. The ‘Journalism’ exemption to the Privacy Act 1988 at s. 7B(4) references privacy standards issued by the Australian Press Council as news organisations’ ticket to a waiver. However, the proposed reform would require more of them than simply being ‘publicly committed to observe standards’ and to have published them.

We do not need a Press Council with powers to fine or some new over-arching media tribunal you might find in small repressive regimes. If such a reform is managed properly, Australia can preserve its reputation as a nation with a relatively free media, while demonstrating it will not tolerate heinously irresponsible actions like those used by News of the World.

© Mark Pearson 2011

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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Update: FIVE Australian media inquiries at once: your guide to the mayhem


N.B.: ACMA privacy inquiry added as #5 below.

There are five major federal inquiries into Australian media regulation under way, with considerable duplication of their terms of reference.

The technological challenges of convergence and international concern over journalists’ privacy intrusion are informing the debate about the issues and will likely shape their outcomes.

The five simultaneous reviews have caused a duplication of time, effort and resources for those facing the consequences of their outcomes. Interested parties might need to file up to nine submissions covering the issues papers already released and also appear at the various hearings.

I am summarising the key elements of each of the five here for the benefit of journalists, lawyers and researchers who, like me, are confused by this national inquiry-fest on a multiple fronts.

The inquiries (with hyperlinked URL), their terms of reference, issues papers, and submission deadlines are as follows:


1. Convergence Review

The Australian Government’s Convergence Review of the regulation of media and communications was announced in December 2010.

  • Its terms of referencerequire it to review the current policy framework for the production and delivery of media content and communications services in the light of convergence and:
    • develop advice for the government on the appropriate policy framework for a converged environment;
    • advise on ways of achieving it, including implementation options and timeframes where appropriate; and
    • advise on the potential impact of reform options on industry, consumers and the community.

It also has to inquire into and advise on:

  • whether the existing regulatory objectives remain appropriate in a converging environment; and
  • if so, whether the regulatory approach embodied in the current policy framework remains the most effective and efficient, and
  • its preferred alternative regulatory or non-regulatory measures to form a new framework and the principles that will underpin it.

It is required to ensure that media and communications services are provided within an environment that fosters competition, is technology-neutral, encourages a diversity of voices, and protects Australian culture, community values and citizens’ rights.

On September 19, the review released five issues papers addressing:

Submissions close on October 28. The Convergence Review’s report is due by the end of March 2012.


2. Independent Media Inquiry

The Independent Media Inquiry was announced on September 14 (supplementary to the Convergence Review) to provide a “separate and distinct examination of the pressures facing newspapers, online publications and their newsrooms, as well as the operation of the Australian Press Council”. It is due to report by February 28, 2012. Its terms of reference require it to examine:

  • the effectiveness of the current media codes of practice in Australia, particularly in light of technological change that is leading to the migration of print media to digital and online platforms;
  • the impact of this technological change on the business model that has supported the investment by traditional media organisations in quality journalism and the production of news, and how such activities can be supported, and diversity enhanced, in the changed media environment;
  • ways of substantially strengthening the independence and effectiveness of the Australian Press Council, including in relation to online publications, and with particular reference to the handling of complaints;
  • any related issues pertaining to the ability of the media to operate according to regulations and codes of practice, and in the public interest.

On September 28, the inquiry released an issues paper detailing its priorities. Submissions are due by October 31.


3. National Classification Scheme review

The Attorney-General asked the Australian Law Reform Commission on March 24 to investigate the National Classification Scheme and review:

  • existing Commonwealth, State and Territory classification laws;
  • the current classification categories contained in the Classification Act, Code and Guidelines;
  • the rapid pace of technological change;
  • the need to improve classification information available to the community;
  • the effect of media on children; and
  • the desirability of a strong content and distribution industry in Australia.

It released a Discussion Paper on September 30, and has called for online submissions by November 18. The discussion paper notes that news and current affairs are likely to be exempt from any classification regime. The ALRC’s report is due by January 30, 2012.


4. Commonwealth Government’s Privacy Issues Paper

The Australian government finally released a Privacy Issues Paper on September 22 addressing recommendations for a new statutory tort of privacy proposed by the Australian Law Reform Commission in its 2008 report Report 108: For Your Information: Australian Privacy Law and Practice (2008).

The paper asks:

  • whether new technologies create a need for new laws to protect privacy;
  • whether there should be a statutory cause of action for serious privacy invasion;
  • what standards should apply;
  • how other interests should be balanced (particularly free expression);
  • what defences should apply; and
  • several other questions related to any implementation of a new tort.

Submissions are due by Friday, November 4.


**UPDATE: 5. The Australian Communications and Media Authority (ACMA) Review of privacy guidelines for broadcasters IFC28/2011

The ACMA is reviewing the privacy and intrusion provisions of its various broadcasting industry codes of practice. Its original guidelines were introduced in 2005, and this is their first review.

It has released reviewed guidelines for comment in Word (286 kb) and PDF (230 kb) formats, suggesting new provisions relating to privacy intrusion and stories involving vulnerable people and children.

Its recommendations are based upon its commissioned research reports Community research into broadcasting and media privacy (2011) and Australians’ views on privacy in broadcast news and current affairs (2011).

It states it has considered:

  • the relevant provisions of the broadcasting codes of practice
  • the ACMA’s broadcasting investigations concerning privacy since August 2005
  • qualitative and quantitative research into attitudes to privacy, commissioned by the ACMA between May and September 2010
  • the Australian Law Reform Commission’s report 108 For Your Information: Australian Privacy Law and Practice
  • developments in the law.

Submissions are due by October 7, so act fast if you have a comment!

Clear as mud now? I’m looking forward to reading your submissions. 😉

© Mark Pearson 2011

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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