Charters of editorial independence don't work and nor will parliamentary attempts to enforce them. That's the grim reality for Fairfax journalists demanding Gina Rinehart sign Fairfax's charter of editorial independence and those, such as the Greens, who harbour ambitions of seeing such charters enshrined in media regulation. For evidence of why charters of editorial independence don't work, look no further than Rupert Murdoch, who undertook a range of commitments to protect the editorial integrity of The Times and The Sunday Times when he wanted to purchase them without interference by UK competition authorities, in the early 1980s. After a secret but well-documented deal with Margaret Thatcher to avoid scrutiny of the acquisition, Murdoch promised independent directors, no editorial interference or instruction and independent approval of staffing changes. Then-Times editor Harold Evans (repeatedly) and Sunday Times editor Frank Giles and later Times editor Andrew Neil have all described in detail how Murdoch ignored the commitments and in some cases was explicit that he would ignore them. As a UK Commons committee said recently:
"In his autobiography [Evans] wrote that none of the guarantees that Rupert Murdoch gave to safeguard editorial independence 'are worth the paper they are written on -- unless the proprietor shares the spirit of them. If he does, they are merely ornamental; if he does not, they are unworkable … Internal freedom cannot be acquired by external rules'. Andrew Neil, editor of The Sunday Times from 1983 to 1994, agreed: 'It was a conceit invented ... to allow Mr Murdoch to take over these papers in the first place, and it was put in place for that reason. It was not really put in place to protect the independence of the editors'."
Murdoch so liked this model of promising independence before purchases and then ignoring it afterward that he's applied it regularly since then, right up to the acquisition of the Dow Jones group. And no one would ever accuse Murdoch, whose 175 newspapers famously unanimously endorsed the attack on Iraq (which Murdoch predicted would lead to oil being $US20 a barrel), of not being a hands-on proprietor. The lesson of Murdoch is instructive: he uses such commitments as a tool to overcome concerns about acquisitions before they are completed. Once they are completed, he knows there is nothing anyone can do to enforce any promises he has made. He has a free hand, and uses it. There's no more reason a Gina Rinehart or anyone else purchasing a controlling stake in Fairfax would be bound by commitments. In fact, it's to Rinehart's credit, in a way, that she's so far refused to indulge in such theatre. Enter the problem, then, of how to enforce such commitments. Merely declaring that such commitments should be "legislated" doesn't solve the problem. The most obvious reason is that commitments can be evaded without being breached, if a proprietor is of a mind not to publicly breach them. The saying "you don't need to muzzle sheep" sums it up nicely: the well-chosen editor and journalists don't need proprietorial instruction. Rare are the big media companies, such as Canwest, that need to publicly issue editorial directives to outlets. News Ltd's editors know exactly what line is required of them, and shape their newspapers accordingly; journalists who don't fit the corporate culture are pushed or encouraged out. And independent directors, unless they are a majority and of a like mind, have no power (consider the ineffectual role played by News Corporation's independent directors such as Sir Rod Eddington). Any legislation that could possibly be effective, therefore, would need to be micro-managerial in approach. It would need to provide a mechanism whereby the entire editorial operation of a newspaper could be permanently scrutinised for interference -- in effect putting an independent regulator in charge of a newspaper, not the owner. As Evans wrote, "internal freedom cannot be acquired by external rules". Then there are more finicky problems. The Commonwealth can't regulate newspapers. It doesn't have the constitutional power, except indirectly via the corporations power. Defining a newspaper now is more difficult than it used to, particularly if they're going to move fully online in coming years -- you have to define media groups in a way that captures newspapers but excludes everyone else -- unless you want to have charters of editorial independence for everyone. And who gets breached and what are the sanctions? There's no "newspaper licence" you can revoke as a last resort. Not that there haven't been proposals, at various times in various jurisdictions, to enforce editorial independence. Richard Alston tried to preserve diversity (rather than independence) as part of his failed media ownership reforms in 2002 with a bizarre proposal that would have required the maintenance of separate newsrooms if a media acquisition saw one media company buy another (this had a distant echo in 2006 when the Howard government's media ownership laws had provisions that froze in amber resourcing levels for regional radio stations after transactions). Other countries have toyed with the idea of somehow legislating the protection of editors. Korean journalists once proposed senior media appointments be overseen by parliament. Most of all, there's this simple problem: why shouldn't a proprietor be able to interfere? If they have stumped up the money to buy a media outlet, it's theirs to do with as they please within the law, particularly when it comes to covering their own business interests. If people want a certain type of Age or Sydney Morning Herald, they should buy the company's shares, not try to dictate how someone else who has bought the shares uses them. For much of the 20th century, there were sufficient outlets of sufficient diversity that it didn't matter which mogul owned which or what they did with them. That diversity has now vanished. More to the point, it can't be regained, because there's not enough revenue in the industry to fund it, even if we legislated for mass divestiture that broke the stranglehold a small number of families and companies have on the Australian media. And as News Ltd further strengthens that stranglehold with its ConsMedia play (and Business Spectator), the current challenge is to retain what little diversity we have left, not expand it. The only answer for policymakers at the moment is more funding for non-commercial media outlets -- the national broadcasters and community broadcasters -- to ensure they remain strong sources of independent news and diverse voices.