The Finkelstein report’s recommendation about complaints handling touches on one of the most vexed issues in the media here and elsewhere, but also reflects one of the underlying ideas of the report that needs much greater scrutiny.

It was announced overnight in the UK that the Press Complaints Commission, wrecked by its appalling non-response to the phone-hacking affair, is to be dissolved and replaced with a new body, the structure and name of which have yet to be agreed by the British press.

Finkelstein recommended that his proposed News Media Council have “a strict timetable for handling complaints … For example, there could be a requirement that the media outlet concerned has two days to respond to a complaint and the panel then has a further two days to resolve the complaint and make a decision.”

As Jonathan Holmes noted on Media Watch on Monday, “it’s frankly fanciful to imagine that a statutory body with powers of compulsion could, or should, work as fast as that — especially one imposed on a recalcitrant media”.

No one is happy with broadcasting complaints handling, which is a co-regulatory process under which ACMA approves and enforces commercial broadcasting industry codes of practices, as well as a small set of licence conditions. The national broadcasters are also subject to ACMA. But in both cases, complaints have to be handled internally first. The ABC, in particular, has an elaborate internal complaints-handling system, with a dedicated area that liaises with producers and editors; it also has an “independent complaints review panel” to which complainants can refer complaints, rather than ACMA.

The commercial broadcasters would prefer to slough off all complaints handling to ACMA, but have been under considerable pressure from the regulator to improve their own processes for several years.

The biggest complaint relates to the time taken to finalise complaints. ACMA has long been the subject of persistent criticism about how long it takes to make findings against broadcasters. But most of the problem is beyond ACMA’s control — it is subject to natural justice requirements, and broadcaster foot-dragging. ACMA and, increasingly, broadcasters themselves need to also be careful about affording natural justice themselves to employees who may be the subject of adverse findings.

The ABC’s process takes several weeks at least and often much longer. Nearly a decade ago, it was also the subject of an extended stoush between Richard Alston and the ABC in relation to his complaints about the ABC’s Iraq War coverage, one that wasn’t resolved before Alston left politics. Alston wanted a more independent complaints process; the ABC was happy to agree, provided the government paid for it. The stand-off was never resolved.

People want independence in complaints-handling, but also timeliness. But the two are often mutually exclusive.

Gerard Henderson, a frequent complainant to the ABC, told Crikey he regards the ABC’s process as a waste of time and doesn’t use it, preferring to write directly to the journalist concerned and the ABC MD. In his view, Mark Scott as the broadcaster’s editor-in-chief ought to be able to resolve complaints quickly. He points out that newspaper editors can address complaints very quickly, either by putting a correction online or running a letter.

What Finkelstein proposes is to import an even more heavy-duty version of the broadcasting complaints system into newspapers and online media.

The News Media Council will be a quasi-judicial body, with legal powers to order corrections and deal with recalcitrants, as well as all the legal implications of making findings against media outlets, editors and producers and individual journalists. Like ACMA, it will have to take care to observe natural justice requirements for all parties.

This will be a boon for lawyers: a body of law will develop; a new area of law will emerge to earn a living from now that a lot of corporate defamation work has disappeared. And if this legal system evolves, where will it sit in the Australian legal system? Will it operate via the Federal Magistrates Courts (if it continues), the Federal Court, the Administrative Appeals Tribunals? To whom will complainants, media outlets and journalists appeal?

And how to stop the whole process being captured by lawyers, whatever the new body’s remit might say about expeditious complaints-handling?

The body will require significant resourcing — not just the 20 panellists, but a legal team and a huge numbers of bureaucrats to handle the likely volume of complaints and turn them around in anything like the timing suggested in the report (say, 40 days rather than four days).

Henderson notes that neither Finkelstein nor the team that assisted him know what it’s like to work within a bureaucratic system. “If you understand how the Public Service works, you can see why this can’t be done bureaucratically,” Henderson says.

This is exactly right: the process proposed in the report would be even more cumbersome than the current ACMA process that has drawn so much criticism.

Henderson is also correct to identify the strengths of newspaper complaints handling when editors accept their responsibilities — it can done quickly by senior editors, who have the power to make a judgment call and act on it. If anything, the newspaper system might offer some lessons for more expeditious broadcasting complaints handling, if complaints were initially handled by broadcasters at a senior level, and managing directors could make a rapid call on them.

The more fundamental issue, however, is the strength of the argument for a unitary system of media complaints.

Different sections of the media serve different purposes and audiences, and operate via different distribution mechanisms. Most are commercial; some are not. Most are broadcast media, in the sense of being one-to-many, but some are user-generated and focused on communities (online media). Most operate freely; some operate via radiocommunications spectrum that is publicly owned and licensed.

Proponents of a unitary media regulatory system can’t simply rely on “convergence” to argue for a single regulator and regulatory framework, not when there remain significant differences across media. “Regulatory parity” is a slogan, not an argument.

The question should be how to make the newspapers’ specific “regulator”, the Australian Press Council, into a body with some clout and teeth along the lines of ACMA, not take over ACMA, or hope to subsume it into a new, increasingly legalistic body.

A final point: how about suggesting to the various insurance companies providing defamation insurance to newspapers and media companies, that they include in all their policies, the requirement that the media groups have to go through the conciliation, apology process with aggrieved people before any payment will be made in a defamation case award?

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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