I am not against the idea of making the media’s rights and privileges under law contingent on effective self-regulation. This is a reasonable approach to the very difficult problem of allowing the news media vital freedom and autonomy under the law, yet also holding it to account for breaches of accepted standards.
There is no perfect solution to this difficult balancing act, but the thrust of the proposed approach, which has been suggested by various independent inquiries over the years, would not necessarily be an attack on freedom of speech, but rather would enhance accountability and the public’s right to information.
However, I think the bills as presently drafted are seriously flawed. If they were passed in their current form, the balance would be struck in the wrong place, with too much discretion given to a government-appointed statutory officer, the proposed Public Interest Media Advocate.
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1. Standards for self-regulation bodies
The PIMA is given dangerously wide discretion in deciding whether a news media self-regulation body meets standards. The long list of eligibility requirements to which the PIMA must have regard include amorphous criteria such as “community standards” and “other matters relating to the professional conduct of journalism”.
In particular, reliance on “community standards” is misguided. Journalists, in the course of their work, do many things in the public interest that violate community norms of behaviour. The public interest would be severely harmed, and the role of the media dangerously inhibited, if they were to be prevented from acting in ways that might violate community standards.The set of standards that should be applied are the professional standards of journalism, the norms of which are well known, specified in the professional literature, and well tested in practice. They deal with the concepts of privacy, fairness and accuracy and plenty more besides.
The test should be the extent to which the body’s standards meet the norms of professional standards. At a minimum, these should be those set out in the existing principles of the Australian Press Council and the code of ethics of the Media Entertainment and Arts Alliance, but with scope to broaden and deepen these standards. This broadening and deepening would be one of the functions of an authorised media self-regulation body.
Given that the PIMA has the power to withdraw authorisation from self-regulation bodies, which would make its member news media organisations unable to operate in more than a sporadic fashion, this is far too wide a discretion.
What is needed is a list of minimum standards, as objective as it is possible to make them, that must be met in order for a news media self-regulation body to be authorised. This would make the PIMA’s processes and decision making as transparent as possible, and provide clarity to the industry and the public. A starting point for the development of such a list was provided in the report of the Convergence Review. This stated an authorised news media self-regulation body should:
- Have a board of directors, the majority of whom should be independent from the media
- Have adequate funding and resources
- Establish and publish standards for news and commentary, including requirements for fairness and accuracy
- Maintain an efficient and effective complaints-based system
- Have a flexible range of remedies and credible sanctions, including the power to order the publication of its findings.
I would add to this list a requirement that the body have the power and capacity to launch own-motion investigations, without the need for a complaint.
2. The PIMA should be appointed through an arms’ length process
The Public Interest Media Advocate Bill states that the PIMA is to be appointed by the Minister. Given the importance of this appointment to issues of freedom of speech, his is an inadequate process and at odds with the requirement for the PIMA to act independently of executive government. Better alternatives could be:
- Appointment through an arms’ length process, similar to that presently in place for the ABC and SBS boards
- Appointment by Parliament.
3. There should only be one news media self-regulation body
One of the principal reasons the present system of news media self-regulation is less effective than it should be is because it lacks profile, and members of the public either do not know it is possible to lodge a complaint, or are confused about which body to complain to. This was a common thread in submissions to the Independent Media Inquiry and the Convergence Review from former Press Council chairs, the Media Entertainment and Arts Alliance and other industry bodies.
The whole point of the Convergence Review was to create a converged system. To allow multiple complaints bodies, as under the present bill, would add to confusion, and run counter to the need for convergence in media regulation.
The main alternative body to the Australian Press Council is the system set up by Seven West Media following its decision to withdraw from the APC. Even on the vague wording of the standards the PIMA must apply, it would seem that the Seven West Media scheme would not currently receive authorisation. However, it could presumably be reformed, and other media organisations are also likely to set up “in-house” schemes and seek authorisation. This would make the PIMA’s job in policing standards extremely difficult, add to public confusion and thus undermine effective self-regulation.
The PIMA should be tasked with authorising a single news media self-regulation body.
4. There should be a converged system, or a road map towards one
The Convergence Review was given its name for a reason, but the urgent need to move to a converged system of media regulation has been ignored in the present Bills. The public statements of the Minister suggest that convergence of regulation remains a medium-term aim, but this is not reflected in the Bills.
Media convergence means that a regulation system that is determined by platforms is destined fast to become irrelevant or ineffective. The Bills should either allow for a move to a converged system of media regulation, or lay out a time period and process of review under which this will be achieved.
5. Why a PIMA, rather than an agency? And why part time?
If the 75% reach rule is removed, it is likely the PIMA will have a number of amalgamation, takeover and merger applications to deal with in very short order. More work will result from the likely break-up of some of Australia’s large media organisations in the next few months. The PIMA’s job will be impossible for a single person, particularly if they are part time.
6. Is now the right time to make the privacy exemption contingent?
The proposal to make the Privacy Act exemption for print and online media contingent on approved self-regulation is very similar in its effect to the present system of broadcast news media regulation, but the current system of broadcast regulation is more onerous, because licences can be withdrawn or have conditions imposed.
Both the Finkelstein report and that of the Convergence Review anticipated a unified system of news media regulation, encompassing broadcast, print and online. The recommendations of both suggested that ACMA should give up its role regarding news media regulation, and that print, online and broadcast media should be brought under the same self-regulation scheme. This would have represented a considerable liberalisation of the regulation of broadcast news media. While the need for codes to be approved by a statutory agency would remain, the threat of licence withdrawal or limitation would be removed.
As a matter of principle, news and current affairs coverage should not be subject to government licensing, no matter what the platform of dissemination. At the same time, it should be subject to effective accountability. Such a liberalisation would have perhaps helped to redress concerns that making rights and privileges contingent on self-regulation was an unacceptable attack on freedom of speech. It would have helped to bring the reforms into perspective.
It may be that either the converged system should be brought forward to coincide with making the exemption in the Privacy Act contingent, or alternatively that the attempt to involve the Privacy Act exemption be put off until media regulation systems are converged — an outcome all sides seem to agree is inevitable and necessary.
However, given the current political climate and the public statements of the opposition on these matters, it seems likely that if the current bills are not passed, the opportunity to improve media self-regulation will be lost for the foreseeable future.
*This is an edited extract from Margaret Simons’ submission to the Senate Standing Committee on the media reform package