Tag Archives: Media Report

Attack by The Australian supports case against ‘enforced self-regulation’ #Finkelstein

By MARK PEARSON

The Australian’s associate editor Cameron Stewart has argued that the immediate endorsement of the proposal for a statutory media regulator by some media academics was indicative of the irrelevance, ineptitude and Leftist bias of journalism educators generally.

Like any piece of attack journalism, it used carefully selected truths and sources to develop a positional and very political assault on the journalism education sector and the former (and current) journalists who teach, research and publish there. It is an old and flawed argument.

While I disagree with this kind of journalism and its use by a leading masthead, I think it presents a unique lesson on why Finkelstein’s core proposal for a News Media Council with statutory powers to order corrections and apologies is so wrong.

Journalism educators have quite rightly taken umbrage at the article in the Weekend Australian and, as I blog, are composing a unified response to the attack.

This is the right course of action – to first seek redress and a right of reply from the publisher of the offending article.

If the identified individuals felt strongly enough about the imputations it contained about them – and if they had the resources available to them – they might take legal advice and perhaps sue for defamation.

For reasons I have outlined previously in Crikey, most principled journalists and editors do not resort to this measure because they value the free exchange of ideas too highly and do not wish to set such an example for others.

If the aggrieved journalism educators are dissatisfied with The Australian’s response, under the current regime they might instead make a complaint to the Australian Press Council over any unfairness, bias or inaccuracies in Stewart’s article they feel breaches that body’s Statement of Principles.

If the Council is unable to mediate a resolution, this would then be adjudicated by its complaints panel of (mainly) non-affiliated citizens and journalists, chaired by legal academic Julian Disney (or its vice-chair).

If the Council found The Australian had indeed been unfair, biased or inaccurate, or had unfairly refused to run a right of reply, the Council might decide to uphold the complaint and demand The Australian run its adjudication in full. As that newspaper’s parent company, News Limited, is an abiding member of the Council, it is likely that adjudication would be published. If not, it would at least appear on the Council’s website and among its regular releases on adjudications.

As outlined in several submissions to the Finkelstein inquiry, and noted at length in its final report, these processes could do with considerable improvement.

But consider the course of events under the proposed statutory body detailed in the report.

The early steps in the process would be fairly similar to the Council’s system, although the proposal would have the whole matter conducted ‘on the papers’, without legal representation, within a few days.

The ‘independent’ panel would be chaired by a retired judge or eminent lawyer appointed by the government of the day, and would have a different constituency with fewer media members.

However, rather than being told to publish the decision, The Australian might well be ordered under statutory powers to publish a correction, apology, retraction or right of reply.

The Australian might feel so strongly about its claims that it refuses to do so. After all, to ‘correct’, ‘apologise’ or ‘retract’ something over which you hold the heartfelt belief is true, however misguided, is itself an affront to those who hold such beliefs so strongly. Indeed, to be forced to apologise when you do not mean it is to be compelled to state a falsity.

The Australian’s refusal would be the disobedience of a statutory body and, under the Finkelstein proposals, would trigger a charge of contempt to be adjudicated by a court of law, with the usual penalties for contempt available to a judge – a fine or a jail term. (The report flags some opportunity to appeal the Council’s decision within that process – with all the accompanying legal costs for both sides.)

Some of my journalism education colleagues might be feeling so angry about the article that they might want Stewart or his editor-in-chief Chris Mitchell fined or jailed over this story. I suspect, however, that most would share my disdain for the possibility of such an outcome in a free democratic society which has no protection for free expression in its Constitution or Bill of Rights.

However, no matter how misleading and misplaced we may feel Cameron Stewart’s piece may be, there is no disputing the fact that some journalism academics immediately supported the proposal for a statutory regulator with such powers and potential consequences.

The ground seems to be shifting somewhat on that front. One of those attacked, Johan Lidberg from Monash University, initially (cautiously) supported the core recommendation but now states “A statutory based media regulator is highly problematic” (email to journalism educators, 10.3.12).

UTS Professor Wendy Bacon, and Swinburne’s Margaret Simons, have each written strong and well documented endorsements of Finkelstein’s criticisms of the mainstream media’s ineffective self-regulation, but have stopped short of endorsing the statutory enforcement option.

And so they should.

Wind the clock back to late 2010, and we had this very editor-in-chief of The Australian, Chris Mitchell, threatening to sue journalism educator Julie Posetti for defamation over her tweets covering comments made by a former staffer from The Australian at a Journalism Education Association conference – the now infamous #twitdef episode.

Allow me a little licence with the scenario because the Finkelstein reforms might not cover tweets and the actual case was contentious partly because of its twitter brevity.

But let’s say a UTS student had reported the comments in that university’s student newspaper, and Mitchell had not sued, but had instead complained to the proposed ‘independent’ News Media Council about the article, on the same grounds of unfairness, inaccuracy and bias.

And what if, like Posetti, the student newspaper had stood by its article and refused to publish a retraction, correction or apology?

Well – assuming the newspaper met the definitional criteria of the new body as ‘news media’ which are far from clear – then we might well be facing the prospect of a journalism student or editor being jailed for what would otherwise may have been a defamation damages payment, and for which a defamation defence might well have applied.

Hypotheticals I know, but you need them to flesh out the potential implications of a new media regulator that would instantly convert ethical codes into punishable laws.

Only by using examples close to home can we understand the intransigence of both complainants and publishers. An analysis of both APC and ACMA complaints over recent years will reveal complaints over political views – a disproportionate number related to the Israel-Palestine dispute – where opinions are held so strongly that some proponents would face jail rather than retract or apologise.

One of the academics informing the Finkelstein inquiry, Denis Muller, has written a defence of the proposal on smh.com.au. It is worth quoting his final two paragraphs in full:

“It is proposed that the new council would have power to order corrections, apologies and rights of reply, and say where they should be published. The question of fairness arises here: if wrongful harm was done in a page one story, why shouldn’t at least the first two or three paragraphs of the remedial material also appear on page one? If a sanction was ignored or refused, the council would have the right to apply to a court for an order of compliance. The media company concerned could argue its case. Only if it lost and still refused to comply would it become legally liable — not to the council but to the court for contempt.

“Ideally, the media would do all this themselves: make a legally binding arrangement to set up an accountability body, properly funded, with transparent processes, credible sanctions and agreement to comply. History tells us it is unlikely, but maybe this report will act like a cattle prod on their collective hide.”

I might be wrong, but I read that final sentence as a hint that the whole statutory regulator proposal might be a trumped up threat to the mainstream media to get their regulatory house in order – not unlike David Calcutt’s 1990 warning to the British tabloids that they were ‘drinking at the last chance saloon’.

That may well be the case, and if so it seems to be already having an effect, with publishers meeting last week to discuss a revamp of the Press Council.

But if it is true, what a shame that Finkelstein should send such a message of endorsement of statutory media regulation to the regimes throughout the world who have already adopted it.

 

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

© Mark Pearson 2012

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

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News Media Council proposal: be careful what you wish for #ausmedia #MediaInquiry #Finkelstein

By MARK PEARSON

The Finkelstein (and Ricketson) Independent Media Inquiry report released yesterday is a substantial and well researched document with a dangerously flawed core recommendation.

An impressive distillation of legal, philosophical and media scholarship (compulsory reading for journalism students) and worthy recommendations for simpler codes and more sensitivity to the needs of the vulnerable are overshadowed by the proposal that an ‘independent’ News Media Council be established, bankrolled by at least $2 million of government funding annually.

This Council would have the ‘power’ to order corrections and apologies – but not to fine or jail journalists. That would be left to a higher court if a media outlet did not comply.

Several academics and small publishers have given it their approval. Even the Greens have applauded it, having demanded such an inquiry in the midst of the News of the World scandal in the UK and continued adverse coverage in News Limited publications locally.

The politicised circumstances of the inquiry’s birth fuelled a cry of ‘something must be done’ about the news media – for once and for all.

Criticism of the recommendations by the larger media groups on free expression grounds have been dismissed as a defence of their vested interests. It should surprise nobody that News Limited chief executive Kim Williams holds such a view, but such pigeon-holing of Finkelstein’s serious critics is a great shame. History is littered with examples of politicians withdrawing citizens’ rights to free expression because they did not like what they had been saying about them at a particular moment in history.

Scratch the surface of this proposal and you will find a harsh new regime which stands to damage Australia’s reputation as a democracy and might well come back to bite the politicians, academics and publishers who are supporting it today.

The key problems are with independence, enforcement and duplication.

The report details a process whereby the Council would be funded by the government, yet kept at arms length from it via an ‘independent’ board headed by an appointed ‘independent’ chair.

Only the chronically naïve would believe true independence could be established and maintained through such an appointment process in a relatively small government-funded instrumentality. It would, after all, be the government selecting the initial appointments committee.

Even the appointment process to the High Court suffers criticism from time to time, and the independence of the Australian Broadcasting Corporation’s chair and board has been questioned in recent history by the same academics and politicians applauding this new ‘independent’ body.

Those very people argue that News Corporation editors do not need explicit directions from Rupert Murdoch  – that their very appointment implies they will toe the line. That may well be the case, so why would it be different here?

Although this statutory body will not have the power to fine or jail journalists, its appeal lies in its ‘regulatory teeth’, powers that the Australian Press Council has lacked and the Australian Communication and Media Authority has been loathe to use.

At face value, the News Media Council would only have the power to “require a news media outlet to publish an apology, correction or retraction, or afford a person a right to reply”.

However, what if a news blogger or publisher should disagree with such a direction so strongly that they refused to comply with such an order?

Well, then they would be cited for contempt and tried in a court which would have the power to fine or jail them. Several Australian journalists have suffered that fate in recent years. Such a court would be charged with the relatively straightforward task of determining whether the publisher has disobeyed an order of the statutory council.

Only then might publishers get the opportunity for an appeal – again by a judge in court:

11.78   In order to preserve the ability of the News Media Council to act swiftly, there should be no internal appeal from, or internal merits review of, a determination. Nor should there be external merits review via the Administrative Appeals Tribunal.

11.79   It would, however, be neither desirable nor possible to preclude all judicial supervision of determinations. In any event, because enforcement may need to be by way of court order, judicial supervision would be built into the process. In the course of enforcement proceedings a collateral challenge to a determination may be available and this would provide a sufficient mechanism for judicial supervision.

And who can guess what such appeals might cost your impoverished blogger or start-up publisher in legal fees – pitted against publicly funded prosecutors and their team of silks? So much for a quick and cheap dispute resolution process.

It’s a slippery slope – all rosy for its supporters who can only see themselves calling to account the multinational News Corporation and its anti-Left line.

But they might consider how this might operate under a change of government, perhaps under a Howard-like government with individuals sitting on the Council like those appointed to the ‘independent’ ABC board during that period?

And what if such a Council orders a leading environmental news site or magazine to publish an apology to a mining magnate for the ethical breach of publishing a ‘biased’ and inaccurate report about the company’s waste disposal practices, based on sensitive material from confidential sources? Where would the power and resources rest in a court appeals process in that situation?

To publish such an apology or retraction would be an affront to the blogger, and in their principled belief it would be a lie to do so.

Yet, they would face a hefty fine or jail – or risk losing their home in an expensive court appeal process – if they chose to stand their ground.

This proposal effectively converts the MEAA Code of Ethics and the scores of in-house and industry codes of practice into laws – enforceable, ultimately, in the courts.

I suggested in my personal submission (PDF) to the inquiry and in my appearance at its Melbourne hearings that Australia already has enough of those laws. Hundreds of them. I suggested alternative mechanisms using existing laws. I argued that we did not need more media laws and more expensive legal actions and that a government-funded statutory regulator would send the wrong message to the international community. It is the approach adopted by the world’s most repressive regimes.

Which brings us to the matter of duplication. I have seen few serious ethical breaches that could not be handled by existing laws like defamation, contempt, consumer law, confidentiality, injurious falsehood, trespass and discrimination. There are existing mechanisms to pursue them properly through established legal processes.

All of the serious examples cited at 11.11 of the report could have been addressed using other laws such as defamation, ACMA remedies or breach of confidence (or the proposed privacy tort). But the new regulator would do away with all the normal trappings of natural justice, dealing speedily with matters on the papers only without legal representation a media defendant would expect in a court of law.

Small publishers and bloggers might well be bullied into corrections or apologies because they would not have the time, energy or resources to counter a contempt charge in the courts.

This proposal (bizarrely titled “enforced self-regulation” at 11.33) risks duplicating the offences via ethical code breaches, with a big stick of a contempt charge hanging over a media offender who might well have been able to defend an action taken through the traditional channels.

The cost of this inquiry and its $2 million proposed annual funding would be much better spent on media literacy campaigns for the community, law and ethics training programs for journalists and bloggers, and the establishment of a one-stop referral service within the ACMA so complainants can get help in making their complaints through existing channels.

The budget would probably even cover a means-tested advocacy service to help poorer complainants pursue the most serious breaches of existing laws through the courts.

Australia is rare among Western democracies in that we do not have free expression or media freedom enshrined in our Constitution or in a Bill of Rights. Other countries like Britain and New Zealand proposing similar regulating mechanisms have free expression as an explicit right informing their jurisprudence.

The High Court demonstrated this week (PDF) that it is in no rush to progress its so-called “freedom to communicate on matters of politics and government”.

While rejecting the notion of licensing news media, the proposal quite rightly points out the problems in deciding the ‘news media’ that will be policed – in itself a defacto system of licensing journalists. It admits it could have no jurisdiction over foreign news outlets, which means the paparazzi and hundreds of offensive bloggers need only operate under an offshore enterprise.

Supporters of this News Media Council proposal should look again at the scenarios that could play out under a tough new regime of media regulation duplicating the court system. They might well heed that lyric from Australian songwriter Paul Kelly: “Be careful what you pray for. You might just get it.”

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

© Mark Pearson 2012

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

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Media regulation: my interview with @RichardAedy on @RNmediareport

By MARK PEARSON

 

I was interviewed for the ABC Radio National Media Report program last week on the upcoming Independent Media Inquiry report.

You can hear the full program here,  where you can also view the complete transcript.

I’ve just copied below the segment of the transcript featuring my own comments:

———–

ABC Radio National Media Report 

Finkelstein Inquiry into Newspapers

Broadcast:Friday 24 February 2012 5:30PM 

…Richard Aedy: …There are other perspectives beyond those of the Press Council and the publishers. Mark Pearson’s Professor of Journalism at Bond University on the Gold Coast. He’s particularly interested in that intersection between journalism and the law and he’s come up with one of the most novel submissions to the inquiry.

 

Mark Pearson: There are already so many laws controlling the behaviour of news organisations and journalists, we don’t really need any more. We need to make those that exist more effective. But if there had to be something more, the consumer law that exists at the moment, and already applies to the media in many ways, could be extended to cover heinous ethical breaches.

 

Richard Aedy: Didn’t the media used to be subject to those laws?

 

Mark Pearson: Yes they were the old Trade Practices Act. It’s now changed its name to the Competition and Consumer Act. It was introduced in 1974 and it has a provision, basically banning misleading and deceptive conduct, which is normally applying to advertising. But for the first few years, some court decisions held that it might also apply to misleading claims made in news stories; the editorial columns of newspapers and their equivalent in broadcast. So because they didn’t want this impingement on free expression and because of lobbying by the major media groups, they had an exemption to that introduced for prescribed news providers which basically, unless it was in advertising or promoting their own products and so on, they would be exempted from these misleading and deceptive conduct provisions.

 

Richard Aedy: Right. So to clarify. You don’t think we need additional laws. You don’t even think we need tougher existing laws. What you think we need is a much better understanding of what the laws are and perhaps getting rid of this exemption the media has had to what is effectively, I think, corporations law?

 

Mark Pearson: Well I certainly wouldn’t propose getting rid of that exemption because otherwise we’d be back to that 1970s position where the media were being prosecuted for their news columns. But I don’t think some tinkering with that would do any great harm which would cover the most drastic ethical breaches, clearly contrary to the public interest, where there’s been real misleading and deceptive conduct involved, of the order of your cash for comment kind of situation.

 

Richard Aedy: Right. I was going to say give me an example. Well all right that’s a good one. And who would be the regulator? Would it be what, the ACCC?

 

Mark Pearson: Well it would be the ACCC. The more the media is moving towards breaking down that firewall between editorial and advertising the more they need to be treated like just another business except where they’re doing genuine public interest journalism.

 

Richard Aedy: So what about the Press Council and Julian Disney asking for greater powers and saying, well look we could do with some government money for this?

 

Mark Pearson: I think it’s always dangerous to start introducing government funding for media self-regulatory bodies. The instant the government starts funding such things, the instant you have genuine government regulation.

 

Richard Aedy: But what’s wrong with that? I know editors and journalists always say this would be terrible, real government regulations. But lots of industries are regulated by the government. Why shouldn’t the media be?

 

Mark Pearson: Well one of our biggest problems in Australia is that we don’t have a Bill of Rights. We don’t have a Constitution with any formal protection of free expression. So it means that these other laws as they’re applied, the courts don’t have something else to look to. The High Court’s made a few decisions introducing freedom to communicate on political matters but all of that’s a little vague. And so there’s really no underpinning of free expression in this country other than a tradition that we’ve had which has been intruded upon time and time again through these hundreds of laws.

 

Richard Aedy: Mark Pearson from Bond University. He too opposes any move by the Press Council to accept money from the government. But the big worry for the industry isn’t really that the Press Council will get some of its funding from Canberra. It’s that Mr. Finkelstein will recommend that Canberra becomes altogether more involved.

 

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

© Mark Pearson 2012

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

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