Another slap on the wrist from a toothless tiger, is the consensus about the response of the broadcasting regulator the Australian Communications and Media Authority to the Nine Network running pro-poker machine propaganda during its rugby league coverage, under the guise of in-match commentary. Yesterday industry veteran David Salter gave ACMA both barrels in Crikey and suggested the regulator had a responsibility to be more aggressive.

Everyone thinks ACMA should be more aggressive, except the television and radio networks. But in this case it’s hard to see what alternatives the regulator had, short of deliberately arriving at a legally flawed determination that wouldn’t survive five minutes in a court.

The two impediments to a breach finding about the Nine broadcast were that it was a sports program, and no one asked or paid Nine to run the attack on pokies legislation. Because it was a sports program, it fell outside the commercial television industry code of practice for disclosure of commercial arrangements and the code requirements for balance and accuracy in relation to current affairs programs. And because it wasn’t broadcast at the request of another party, it fell outside the licence conditions (that is, the legislative requirements of licensees, not the industry’s own self-regulation) relating to political matter.

The only breach finding related to the fact that Nine blatantly lied to people who complained about the propaganda, insisting it was the commentators’ own views, when they’d been given a script to read.

ACMA has implied it wants the TV code of practice requirements about disclosure and and balance extended to sporting programs, which is sensible. But are we seriously concerned about sports programs becoming vehicles for political commentary? The last time the issue cropped up was when Richie Benaud insisted on using Nine’s cricket coverage to attack the Hawke government for banning tobacco sport sponsorship.

More broadly, what exactly was Nine’s offence? First of all the network pretended that the views expressed were the commentator’s own. The email and text trail unearthed by ACMA between Nine and Clubs Australia — while carrying the characteristic stench of Dencorub and 1970s boofheadery that still pervades rugby league — demonstrates the lengths to which senior Nine management went to prepare a script. Then it failed to disclose the network’s own interest in the issue.

But how much was disclosure going to change the impact of the message? Why would someone watching a rugby league broadcast be surprised that the broadcasting network opposed regulation of the poker machines on which the code depends, to the extent that they gave any thought to it?

However, the episode serves to illustrate exactly the rationale adopted by the Convergence Review about the future of media regulation. ACMA’s inability to ping Nine reflects the problem of black-letter regulation. It’s a sports program and the industry code doesn’t mention sports programs. It’s political matter but the Broadcasting Services Act demands disclosure about political matter requested by another party.

The Convergence Review proposed a shift away from black letter law in which licensees’ obligations are cast like Holy Writ in legislation, to a set of principles which a regulator would be able to enforce with much greater flexibility. Under such an approach, the basic requirements of disclosure and balance may well have been enforceable regardless of what an industry code specifically said.

In effect, that’s the sort of approach Salter seems to favour, only within the current legal framework — the one where licensees get to see ACMA in court if it steps an inch outside the rules.

The other gap in ACMA’s current powers is that it can only deal with licensees, rather than individual employees of licensees. It’s a peculiar gap — as if ASIC couldn’t go after an individual insider trader, but had to pursue his or her firm. That, too, is an example of another aspect of the current regulatory system that the Convergence Review proposed to move away from, our current obsession with licensing as the be-all and end-all of regulation.

Rugby league commentators pretending to be expressing spontaneous views when they’re reading scripts provided by management isn’t the worst offence a broadcaster will ever commence, but it misleads viewers. Regardless of the legal niceties.