The Convergence Review Report has effectively concluded that Ray Finkelstein got the diagnosis right but the prescription wrong when he recommended statutory regulation for news media.
Instead, the review recommends that the industry be given another chance to get serious about its self regulation — while the Fink’s Big Stick remains hovering in the background. A statutory authority such as that recommended by Finkelstein “should be an option of last resort available to government … an industry-led approach … is more likely to produce immediate results and a better long-term solution”.
However, the report also makes clear that if the industry doesn’t step up to the mark, the government could and should still consider a statutory regulator.
The approach adopted by the Convergence Review is substantially the same as that recommended in the Australian Press Council submission, which was authored long before the Finkelstein exercise was even dreamt of.
David Salter was incorrect in Crikey yesterday when he suggested Press Council chairman Julian Disney would be unhappy. Disney has been one of the main people lobbying for the approach the Convergence Review has adopted, the Press Council’s submission, and several other documents on the public record, clearly show.
The Convergence Review recommendation is for an industry self regulation scheme eventually covering all media, with guaranteed funding — mostly from industry and some from government — and the power to impose meaningful penalties and sanctions, including forcing the publication of its adjudications.
The big players of news media — those who have significant reach and earn significant revenue — would be forced to join. The smaller players — such as Crikey — would be strongly encouraged, including by big carrots and big sticks, such as having exemptions from privacy legislation and the misleading practices parts of competition law depend on membership.
This would represent an increase in regulation for print and online news media, but a theoretical liberalisation for broadcasters, which are now subject to statutory regulation by the Australian Communications and Media Authority.
But in reality, the new self regulation scheme would probably cause broadcasters more grief than the present system. Thanks to the trammels of administrative law, and the lack of meaningful mid-range sanctions short of removing a broadcasting licence, ACMA has been slower and less effective than we need it to be when it comes to breaches of journalistic standards.
A nimble and serious self regulation scheme might offer the broadcasters fewer places to hide, and less scope to slow everything down to the point where nobody can remember what the original complaint was all about.
The Convergence Review report recommends the composition and governance of the news media self regulation organisation would be left for it to decide.
The Australian is wrong in its front-page story today when it claims that “Canberra could issue directions to the industry’s complaints tribunal”. Rather, the review report says that the statutory regulator could request that the “industry-led” self regulator look at something. But whether the investigation proceeded, and its outcome, would be up to the self regulatory body. The statutory regulator would get a role only if the self regulatory body refers repeat offenders to it.
In other words, this regime is likely to be far more acceptable to the industry and to journalists than that recommended by the Finkelstein inquiry. The Big Fink stick hovering in the background means that it has at least a chance of working in the long term.
But there are many questions unanswered in the Convergence Review report, and the detail really matters. Some questions for starters:
If the self regulatory body is to have meaningful powers, how will these be imposed and enforced? What is to stop its members from starving it of funding, if there are to be no statutory guidelines on this? How will the compulsory membership be implemented if there is no statute? And, perhaps most pressing of all, how on earth are we to move from what we have now — an under-resourced Australian Press Council only just beginning to show signs of vigor — to a big, effective cross-media self regulator with real teeth?
The “look mum, no statute” approach is complicated, although the agreements recently put in place between the publishers and the APC provide some guidance. Publishers have signed up to long-term funding agreements and commitments to publish adjudications that will be enshrined in legally-binding contracts.
This approach could work for funding issues and powers, but it is hard to see how Seven West Media, for example, which has opted out of the Press Council, could be made to rejoin without some sort of statutory requirement.
This morning Disney was calling for the government to move quickly — not to set up the new arrangements, but to put in place a clear timeline. He suggests that at least three years are needed for the APC to continue on its current path of strengthening standards and agreements with industry players, in preparation for the expanded role of industry self regulation.
He proclaims himself “neutral” on the issue of whether the new self regulatory body would emerge from the APC, or replace it, but regardless he says the issues the APC is now tackling must be resolved if the new body is to have firm foundations, and not to be swamped by the mixture of governance and technical issues that would hit it when it is called upon to cover all media.
And all that, of course, is to assume that Communications Minister Stephen Conroy adopts the Convergence Review approach, rather than the Fink, or nothing. And that the industry steps up.
There is still a long way to go before we will get a clear view of what news media regulation will look like in the decades to come.