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Federal

Apr 5, 2017

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Holding a Senate inquiry into fake news, as floated by Labor’s Sam Dastyari, would be a waste of time, money and good intentions.

It smacks of the me-too-ism of the Finkelstein review into media regulation five years ago. That was inspired by criminal behaviour by tabloid Murdoch hacks in London — with a very different media culture — and the then-Labor government’s need to keep then-Greens leader Bob Brown happy.

It achieved little.

Here is a field guide as to why a Senate inquiry into fake news would be equally so:

  1. Fake news is not new: lies, distortions and propaganda — the most logical descriptors of fake news before Donald Trump’s election — have been around for centuries. What’s changed? We now have a rapid, efficient and seemingly uncontrollable means of spreading it. It’s called social media or disaggregated publishing.
  1. OK, let’s get after Facebook, Google and Twitter — they’re to blame, so let’s make them fix it. Well, Facebook and Google are working on ways to flag fake news. They might even be able to put in place workable disincentives for users to spread it. But let’s just be real clear what we are talking about: fake news has mutated to become a slur against journalism by powerful elites. In fact, it’s a symptom of a far bigger malaise: the lack of trust in institutions. This trust deficit is what Trump exploited to win office and Brexiteers to take Britain out of Europe.
  1. Now, that would be a heck of a Senate inquiry: let’s establish a Standing Committee for Trust and Truth in Public Institutions. Any takers?
  1. OK, let’s stick with the media. So Trump is using fake news as a catchall slur against the role journalism plays in democratic debate — in particular, in questioning his own presidency. Calling out “FAKE NEWS!” is his way of closing off debate. That’s very different from some bad-arse Moldovian geek exploiting Facebook’s algorithm and making dough from “selling” yarns to people who hate Hilary Clinton. Whoever is denigrating the media just for doing their job here ought to be stopped. Who’s that again? Right, an inquiry into fake news in Australia would really be about politicians. That’s going to end well, then.
  1. Yet, we live in strange times. Let’s take a leap of faith: if all sides of politics are at it, perhaps they can all agree to stop. We did some investigating. Is everyone at it? Here’s a list of ALP members who have used the term on Twitter in recent months: Julie Owens, Wayne Swan, Dave Feeney, Pat Conroy, Joanne Ryan and Michael Danby. Here’s the alt (right) version: Craig Laundy, George Christensen, Steve Ciobo, Matt Canavan. To that side, add David Leyonhjelm. To the left, add Sarah Hanson-Young. Great, everyone is kinda at it, all the more reason to have an inquiry.
  1. Trouble is, they’re not really at anything much. Labor pollies are using the term for three reasons: in support of journalism, in attacks on opponents, or in jest. And while the handful of Coalition fake news-users are closer to Trump’s appropriation of the phrase, very few are really going after the media en masse in their tweets. Resources Minister Matthew Canavan, an early adopter of the term, might be appear to be the exception here. But he’s only been nasty about the ABC.
  1. If there were to be an inquiry into fake news, it would really be all about Pauline Hanson and her sidekick Malcolm Roberts, who has been on an anti-BuzzFeed Twitter rant since the site questioned whether he had actually been invited to attend Trump’s inauguration. There would, of course, be cameo roles for Cory Bernardi and Christensen. Not much of a cast, really; plenty of comedic potential, for sure, but it’s not as if an inquiry would bring down the leader of the free world — or even free Queensland.
  1. Of course, there’s no denying that everyone is talking about fake news — or the “misinformation ecosystem” as Claire Wardle, from journalism innovators First Draft News, prefers to call it. And that yes, if you look wider than Trump’s preferred means of thought release, there are signs that politicians who should know better are falling into lazy habits. Julie Bishop, for instance, recently used fake news in a TV interview to dismiss a story about Defence Minister Marise Payne moving to New York as consul-general. But we don’t need an inquiry to expose that; the Prime Minister, a former journalist who once called on journos to do more to fact-check MPs, just needs to tell his ministers to engage brain before spraying around such a term.
  1. Let’s face it, Trump is actually good for journalism. He’s got everyone talking about it; there is a real sense that something many, if not most, people value is under threat. The response? Several leading US publications are reporting increased subscriptions. There is also renewed debate on what needs to happen to bring journalists closer to their audiences, to repair that trust gap. Instead of talking about fake news, we should be looking at ways of making journalism more effective, more transparent and more valued. First up, the media union, backed up by several senior journalists, editors and publishers, is entirely right when it says the federal Parliament should be doing more to protect the rights of journalists to do their job. Greater protections for whistleblowers and ending journalism information warrants would do more for press freedom in this country than faffing on about fake news.
  1. Finally, and this is my take-out, we need to see fake news in a far broader arch of time and in a much wider debate. There is nothing new about lies and propaganda; there is nothing terribly new about a politician hating and undermining the media. The roles of Google and Facebook are interesting and worthy of debate. But Dastyari stood a far better chance of belittling or critiquing them with his attacks on multinational corporate tax avoidance a couple of years ago than he does using fake news now.

The fact is fake news is part of a far bigger discussion. Blogger and tech researcher Danah Boyd recently called out fake news as a sideshow in the culture and information wars shaping and reshaping Western societies, starting in the United States.

It is hard not to agree — and it is hard to see how a Senate inquiry into fake news would be the right vehicle to talk about trust, truth and why a property developer who once courted the media managed to get elected by seemingly rational voters by denigrating it and its practitioners.

*Peter Fray is professor of journalism practice at University of Technology Sydney, the former editor-in-chief of The Sydney Morning Herald and the founder of fact-checking website PolitiFact Australia.

*Additional research by Samantha Jonscher

Companies

Aug 26, 2014

5 comments

Australia’s loss-making national broadsheet has declared war on the media watchdog, with this morning’s edition containing the latest salvo. But will the fallout be restricted to The Australian itself, or could the whole media industry be under threat?

In recent weeks, The Australian has accused the Press Council of being, to quote a recent editorial, “erratic in its rulings, unmoored from its foundations, ponderous and serpentine in its procedures, sidetracked by its chairman’s peculiar tastes and political predilections and ineffective as a body that promotes good practice”. Press Council chairman Julian Disney has been called a social campaigner, and today, he’s accused (in a headline) of breaching the council’s confidentiality principles (even though the article states it was Press Council executive director John Pender who was directly responsible). Disney has also been accused of conflicts of interest and asked to step down from two adjudications as a result (he chose to wash his hands of all News Corp complaints instead).

The major print media companies have always had a vexed relationship with the Press Council, a body they fund to adjudicate complaints from members of the public and to promote high standards within the industry. But Mark Pearson, a long-time chronicler of journalism regulation and journalism professor at Griffith University, says he’s never seen a campaign like this against the Press Council before. He fears it will lead to an unravelling of support for self-regulation of the print media industry.

Both News Corp and Fairfax have at times refused to publish the council’s adjudications, or left the council altogether. The nation’s third-largest print media publisher, Seven West Media, hasn’t been part of the council since 2012, when it disagreed with the council’s (ultimately successful) attempts to beef up its funding and funding security in the wake of the Finkelstein Review.

Many of the Oz’s criticisms of the Press Council today are best understood in context of the attempts by the Rudd/Gillard governments to regulate the press.

Press Council heads past and present, and the publishers that fund them, gave statements to the Finkelstein Review in 2012 about how the Press Council worked, or, as it eventually transpired, how it didn’t. All former Press Council heads bar one (David Flint) agreed the Press Council was overly vulnerable to being swayed by its funders. Its lack of resources was another concern.

Fixing these things would require the support of the council’s three major funders at the time: News Corp, Fairfax and Seven West Media. But they were reluctant. As Fairfax chief Greg Hywood told the inquiry, the Press Council had enough money to fulfil its task. “We are having a media inquiry here. There has not been to this point, until this media inquiry, within the industry a high level of concern that the Press Council does not have sufficient funding,” Hywood said.

“No doubt Disney’s been a more robust and independent chair of the council than many in the media would have liked.”

This left Ray Finkelstein, to quote his final report, with the “clear impression that the media will not tolerate, let alone finance, an effective industry regulator”. So he proposed something else — a government-funded New Media Council, independent from both government and the media, with the power to adjudicate over both print media and broadcast complaints.

This was rejected by publishers and most in the journalism fraternity. But in the uproar, Disney secured a coup. He got the publishers to agree to double the Press Council’s funding and to enter into agreements to not withdraw without four years’ notice. Similarly, media organisations couldn’t pull funding without this notice period.

Seven West Media baulked and formed its own Independent Media Council, which it funds all on its own and which deals with complaints from The West Australian, as well as Seven West Media’s magazine empire.

But for News Corp, Fairfax, and the council’s other members (including Crikey publisher Private Media, which joined in 2012), the four years’ notice requirement still applies. In a recent editorial, The Australian’s editors wrote that it “may be time to consider” joining something like Seven West’s Independent Media Council. It’s possible News Corp could stop co-operating with the council and in effect withdraw — but it would have to continue funding the council for another four years.

After securing greater funding and greater security from publishers in 2012, the Press Council got busy. It announced new standards and codified codes of practice around access to patients in hospitals and the reporting of suicides.

Pearson says the Press Council had to change, “to respond to criticisms that it was a publisher’s poodle and the like. And it negotiated those changes with publishers.”

“Disney has been responsive — he’s been a reformist. And he has reshaped the Press Council.”

Matthew Ricketson, who helped Finkelstein in his media inquiry, told Crikey the Council’s adjudications of late had been more rigorous, and more likely to side with the complainant.

This appears to have angered News Corp, which pays up to 61% of the Press Council’s $1.8 million budget. Fairfax pays another 30% approximately, but Fairfax representatives didn’t respond to requests asking them whether they shared News’ concerns.

The Media, Entertainment and Arts Alliance (the journalists’ union), however, did give qualified support to the Press Council. Speaking on allegations of conflict of interest raised by News Corp, MEAA federal secretary Chris Warren told Crikey he didn’t share the Oz’s concerns on that issue.

“Philosophically, I don’t agree with the approach that it should be state-based or company-based. Complaints need to be handled nationally. That’s the way it works globally, and it’s a better approach for Australia”.

Most of those Crikey spoke to believe the environment in which publishers were beefing up the Press Council has gone. Unlike its predecessor, the Abbott government shows no inclination to regulating the media — in fact, any such plans it has tend to go the other way. And so the gloves are off.

Even if News Corp cannot formally leave in a hurry, it can make things very difficult for the Press Council. Arguably, it already has. By repeatedly breaching the confidentiality of ongoing adjudications, it undermines and detracts from any eventual ruling the Press Council makes.

News Corp sources told Crikey they are only concerned with the public and media companies having “an effectively functioning Press Council”. So far, Crikey understands, News Corp has made no formal moves to leave the Council.

But there are other possible motives.

Disney will step down in January (one year before his six-year term expires, he announced in February), and the Press Council recently advertised for his replacement. “My guess is this is about finding a more compliant chair,” one media insider (not from News Corp) mused. “No doubt Disney’s been a more robust and independent chair of the council than many in the media would have liked.”

Media ethicist Denis Muller, from the University of Melbourne’s Centre for Advancing Journalism, says Disney has been the most independent-minded Press Council chair he’s come across. “And some of the past ones have been very distinguished,” he added.

But even if the war between the APC and News ends when a new chair is announced, Pearson fears its fallout. “This erodes the principle of self-regulation — it erodes public confidence in self-regulation,” he says. “Governments change, and if you give governments a reason to regulate the media, they’ll take it. In the end, it stands to damage the longer-term goal of freedom of expression and a free media.”

Corrections: An earlier version of this article said the ability of third parties to make complaints to the Press Council was brought in after 2012. It actually existed well before that. Also, Disney’s term does not expire in January — he announced in February this year that he would be stepping down one year early. His term expires January 2016. The article above has been amended.

Journalism

Aug 18, 2014

5 comments

As the phone-hacking scandal broke in the United Kingdom in 2011, pressure was brought to bear on local publishers. The Australian government took to regularly criticising the media and reserved particular ire for News Limited, as it was then known. An inquiry was set up to look into how the Australian media was regulated, and it proposed a new media council — a government-funded, central arbiter of ethics and morality in the press.

In the midst of this came a stirring defence from publishers about the adequacy and importance of the self-regulation regime headed, in print, by the Australian Press Council.

Publishers have never had an easy relationship with the APC. The Australian, in particular, could never really be described as a fan. But it has, in the past, been far more complimentary. Here’s some of what was said then in its pages, and here’s some of what’s said now.

On Seven West Media’s decision to leave the Press Council to form its own complaints body. Opinion piece by  columnist Mark Day, April 9, 2012:

“Seven West Media’s decision to quit the Australian Press Council is a disservice to the rest of the publishing industry. Unity is a valuable commodity at a time when regulatory reform is on everybody’s mind and the decision destroys that value…

“SWM says it plans to set up its own internal complaints resolution processes to ensure that its publications are accountable to the public. It says this will be an independent process, but that’s an oxymoron. It can’t be and the mind boggles at how it might deal effectively with some past examples of ethically challenged behaviour by New Idea.”

On the same topic. Australian editorial, August 9, 2014:

“It may now be time to consider a new body along the lines of Western Australia’s Independent Media Council, whose rulings are fair, clear, swift and sensitive to readers’ interests and community standards. The nation does not need a censor-in-chief or emperor of taste.”

On the Press Council’s chairman Julian Disney. Opinion piece by then national affairs editor Mike Steketee, July 16, 2011:

“Disney, a professor and director of the social justice project at the University of NSW, is nobody’s puppet; something he demonstrated in previous positions, including as president of the Australian Council of Social Service. Paul Keating once excluded him from a meeting because of his criticism of government policies.”

On the same man. Opinion piece by deputy editor Peter Fray, August 16, 2014:

“Someday I’d like to meet the journalist who once misquoted Jul­ian Disney (or ran over his cat) because, futile as it now is to note, he or she didn’t say sorry nearly enough. Or maybe it wouldn’t have mattered: perhaps Disney, with his distinguished record of social activism, always hoped to make a name for himself by taming the press … Under Disney’s avuncular, academic looks lives an old-school social engineer.”

On the desirability of a robust Press Council. Opinion piece by then-media editor Stephen Brook, May 1, 2012:

“The fact is we can do better than ACMA, which recently thrashed radio bad boy Kyle Sandilands with a wet lettuce, and the anaemic Australian Press Council, which is fast muscling up after a funding injection.”

On the same topic. Australian editorial, August 14 2014:

“Under activist chairman Julian Disney, a community agitator and interferer from way back, the APC has tried to extend its brief to justify its existence. In doing so, it has become a laughing stock in the industry, unwilling to pursue its original mission and hopelessly skewed in its deliberations and judgments.”

Federal

Mar 13, 2013

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Within hours of Communications Minister Stephen Conroy’s announcement of a minimalist approach to the Finkelstein and Convergence reviews, sections of the news media were sadly proving themselves incapable of fair coverage — with The Daily Telegraph at the pinnacle. We should not be surprised.

We have seen this kind of bollocks at every stage of the long-running debate about media regulation. The irony is both rich and well worn. Large sections of the media are incapable of fairly reporting matters touching their self-interest.

So it is best to start with what Conroy actually said. First, journalism standards. Amid all the claims of restrictions on freedom of speech, the fact is Conroy has done about as little as he could do, without being accused of doing nothing at all. His program amounts to a bit of extra pressure for industry self-regulation schemes to do what they claim to do, or to quote Lord Justice Leveson: to do what they say they do on the packet.

The saddest thing about the package Conroy announced is the opportunity to make news media regulation or self-regulation uniform across platforms has been lost, for the moment at least. Both Finkelstein and the Convergence Review, and almost every industry body consulted, recommended the approach be platform neutral. This would have represented a liberalisation of regulation for broadcast media.

Currently, under the Australian Communications and Media Authority, it is in theory possible for a statutory body to withdraw a broadcaster’s licence for breach of standards. This tends to be forgotten amongst those who portray any change from status quo as incursion of freedom of speech.

Of course, taking away a licence would never be done, and the hammer-to-crack-a-nut approach, plus the cumbersome nature of administrative law makes ACMA an ineffective regulator. Although there have been improvements in recent years.

But under Conroy’s approach outlined yesterday, print and online media will be regulated under a self-regulatory system, and broadcast will remain with ACMA. Why on earth? This makes no sense at all in a converged media world.

Possibly it is because the Australian Press Council, the body most likely to succeed as the model of the future, is still recovering from its many decades as a sorry piece of window dressing. It has neither the resources, nor the systems, in place to be ready to take on the greatly increased workload of broadcast media. Its reforming chairman, Julian Disney, has always preferred a few years to get the house in order before looking for more work.

The other reason why Conroy’s approach is minimalist, and no threat to freedom of speech, is that the membership of beefed up self-regulation schemes remains entirely voluntary. To encourage membership, the government has chosen only one carrot: making the existing news media exemption from the Federal Privacy Act contingent on membership of a self-regulation body that meets certain standards.

If you are a news media corporation and you don’t want to join such a body, that’s fine — but you will have to comply with the Privacy Act. The reality is that will involve you in such a bureaucratic burden that you would be mad not to join up for self-regulation instead.

As for the standards the industry self-regulation body will have to meet, we await the detail. Preliminary indications are the Press Council, after its recent reforms, is almost up to the mark. Conroy’s package would spur it over the final barriers.

“… this is about as minimalist a response as it is possible to get, though perhaps more than one would expect in an election year.”

But the independent operation set up by Seven West Media after its dummy spit over Disney’s reforms to the APC is unlikely to meet the standards in its present form. So Seven West will either have to brave the Privacy Act, reform its self-regulation body or rejoin the Press Council.

That’s if Conroy’s package is passed, which you would have to say is unlikely.

The other thing Conroy ruled out is government funding for industry self-regulation. So all this lifting of standards and improvement of processes has to be financed by the industry. Good luck with that.

The self-regulation bodies will be masters of their own destiny within the standards set. There will be no court of appeal, no legal sanction, no risk of editors and journalists going to jail (as was possible under Finkelstein’s approach). The role of the Public Interest Advocate in the area of journalism standards is merely to designate which self-regulation bodies meet the standards and which don’t.

As for the public interest test on mergers and takeovers, we need the detail to judge. Conroy’s words suggest it is not going to be a “fit and proper person test”, which is probably what the Greens would like to see, but which history has shown to be both nasty and legalistic in operation.

Lots of people seem to have missed the very limited reach of the public interest test. It will cover only PAID services, with more than about 60,000 customers. That means major newspapers and subscription television, and perhaps in the future paid web-based news services with a substantial subscriber base.

Crikey, with around 15,000 subscribers, would not be caught, despite its more substantial traffic on the free website. So Crikey could be merged or taken over by News Limited (what a thought) without a public interest test being applied.

Probably, the recent sale of Business Spectator to News Limited would not be caught under this regime, because its subscriber numbers were below the necessary level. The Conversation, the Andrew Jaspan-founded not-for-profit, could be bought or merged without falling afoul of public interest tests because it is a free service.

So the test will apply only to changes of ownership among the big boys, and not cover all of their interests.

All in all, after all the work and controversy, this is about as minimalist a response as it is possible to get, though perhaps more than one would expect in an election year. Most people expected Conroy to do nothing, given the forthcoming election. He has clearly had to work hard to get even this much up, with the big money hard questions — like the 75% reach rule — put off for another day.

The time limit imposed by Conroy for passage of the bills means that whatever happens, it will not preoccupy during the election. The time limit will also concentrate the minds of the Greens and independents by making it clear this is the most they will achieve for the foreseeable future.

The most one can say is that if this is passed — and that is unlikely — it is a small pebble in the foundations for any future action, with platform neutral regulation of media standards surely the most obvious thing to remain undone.

Companies

Mar 12, 2013

5 comments

Communications Minister Stephen Conroy has announced a minimalist package of media regulatory reforms with the goal of rapid passage through Parliament as the government runs out of time before the election to deliver a comprehensive response to the Convergence and Finkelstein reviews.

The package consists of:

  • A new public interest test for media mergers of national significance. Media companies from the commercial television, commercial radio, subscription TV platforms (e.g. Foxtel), subscription TV news channels, newspapers and online news services (with subscribers) will be caught by the new test if they are above a certain size in terms of readership (understood to be 30% of an average metro commercial evening news bulletin audience, orcurrently around 59,000). The test will require any mergers to be assessed against the requirement that they do not result in a substantial lessening of diversity or the public benefit outweighs the reduction in diversity.
  • A new print/online media self-regulatory framework in which industry self-regulatory bodies will be required to demonstrate a capacity to enforce current media standards.
  • A Public Interest Media Advocate who will determine the capacity of self-regulatory bodies to enforce standards and implement the public interest test.
  • As promised, a permanent halving of the commercial television licence fee rebate.
  • A referral to a joint parliamentary committee of proposals to remove the current 75% reach limit and to add program outsourcing to the issues that determine control of a television licence;
  • Referring (back) to the Australian Law Reform Commission the issue of a statutory right to privacy;
  • A permanent allocation of spectrum to community television.
  • Updating the ABC and SBS charters to reflect their online and, where appropriate, international activities.

Conroy was blunt about why the 75% rule removal had been referred to a committee: the outbreak of dissension among the metro commercial free-to-air networks meant the proposal needed to be considered further, but that if a quick consensus could be reached on it the removal would be added to the legislative package. Both Seven and Ten have retreated from support for the removal of the 75% reach rule with news Southern Cross Media has been considering a merger with the Nine Network.

Conroy was blunter still about the government’s interest in finessing the package past the crossbenches and through the Senate, saying it won’t be “bartering” over the legislation and if it isn’t past next week it will drop the package.

The government has thus presented the Greens, which have been pushing hard for rapid action on media reform, with a fait accompli — either support the government’s reforms or see nothing happen at all before, as seems likely, the Coalition is returned to power.

COMMENT:

After months of debate and endless predictions that it was about to be released, this is a minimalist reform package from Labor. The public interest test — the nature of which won’t be revealed until we see the legislation later this week — will overlay the current ownership restrictions, although it will embrace a wider range of media groups than the current media ownership laws, which are confined to major newspapers, commercial television and commercial radio (and which doesn’t include national dailies The Australian and The Australian Financial Review, which currently aren’t caught by radio licence area-based ownership restrictions).

For the first time, subscription television and online publications, if sufficiently large, will be captured by media ownership laws. The test also adds a third regulatory layer to the media merger approval process — mergers now need to be considered by the Australian Competition and Consumer Commission, the Australian Communications and Media Authority and the new Media Advocate.

In exchange, the commercial television networks get their permanent licence fee reduction, with the notional quid pro quo of Australian content requirements that are already below current multichannel local content levels. A final judgment on the public interest test awaits the detail of the legislation, but it will be hard to avoid the core problem of a subjective, qualitative test — the uncertainty that attends the test for media companies, consumers and people opposed to individual mergers.

Conroy has also minimised, but by no means eliminated, the chances of a stoush with newspapers by opting for strong requirements for a newspaper/online self-regulatory régime, with the incentive of protection from existing privacy laws, rather than imposing any government regulation or funding a new mechanism.

Conroy has also sought to address a problem that has particularly vexed Labor — the growing News Limited influence over the Ten Network — by proposing that provision of news and current affairs programming be added to the legislated criteria in the schedules of the Broadcasting Services Act by which ACMA might determine that a party providing news and current affairs programming is a “controller” of a television licensee, even if they don’t own any part of the licensee or have a board presence. This is a subtler way of addressing the issue than simply banning it or seeking to impose intrusive, bureaucratic rules on media outlets as the Howard government did with local content on radio, but Conroy has played it safe by sending it off to a committee.

Moreover, by referring a statutory right to privacy back to the ALRC, which looked in vast depth at privacy in 2009 — there have already been four inquiries over the last five years devoted wholly or partially to privacy including that one — Conroy is safely deferring the issue off beyond the election. But a statutory right to privacy, coupled with a public interest exemption, remains the most significant omission in Australia’s media regulatory framework and one that courts and judges are likely to increasingly address themselves without waiting for media-wary politicians to act.

The update to the ABC and SBS charters, which some of us proposed within government a decade ago, is long overdue. But the decision to permanently allocate spectrum to the pointless and irrelevant community television sector is a disappointment — that spectrum is better off opened up to the market to see what competition brings.

Overall as a response to the Convergence Review — which proposed a genuinely innovative and forward-looking set of reforms to both the substance and the framework of media regulation — it’s probably best forgotten about. The Convergence Review, it seems, will join the many other significant reports on media regulation that have been ignored by governments.

Journalism

Dec 4, 2012

5 comments

Watching the hostile response to the Leveson inquiry from the British press and prime minister David Cameron has been a thoroughly depressing experience for Matthew Ricketson — if only because it’s been so familiar.

Ricketson is the media academic and former Age journalist who assisted Ray Finkelstein’s inquiry into the print media — the one that recommended the creation of a government-funded council to oversee all Australian media outlets. This recommendation, widely portrayed as an assault on press freedom, is still to receive an official government response nine months after the report’s release — but whispers from cabinet say there’s virtually no chance of it getting up.

Over in the UK, the press — with the exception of papers such as The Guardian — has been campaigning hard against Leveson, with The Daily Mail slamming the report as a “mortal threat to the British people’s historic right to know”.

Ricketson tells Crikey the campaign against both the Leveson and Finkelstein recommendations raises the “looming prospect” that nothing significant will ever be done to make the media more accountable. Getting the balance right between free speech and upholding press standards is already difficult; throw in self-interested media campaigning and it’s almost impossible.

British PM David Cameron came out against Leveson’s key recommendation — the creation of a new press trust — only 90 minutes after the report’s release.

“What does that tell you about the power of the media and the willingness of politicians to kowtow to the news media? It’s a deeply disturbing issue for the way our society operates,” Ricketson said.

“If significant progress can’t be made on this issue after England has been through the worst media ethics scandal in living memory, when will progress be made? Here, the news media framed the issue by saying there is no problem, we don’t have phone hacking therefore we don’t need more regulation. You can’t run that line of argument in England.”

Both the British and Australian press, Ricketson argues, have not served the public interest through their reporting on the media regulation debate.

“The way the media covers this issue is largely by acting as a mouthpiece for their own industry,” he said. “That’s something they wouldn’t allow to happen and would abhor in other industries. They would say, ‘this is a view from a vested interest and it needs to be subject to scrutiny’.

“The Leveson Report has moved very quickly to commentary about how it won’t work, how it’s the worst thing since the Spanish inquisition. The average citizen has had very little chance to assess the report in any detailed way and arrive at an informed view themselves.”

Although similar, there are important differences between Finkelstein’s proposed New Media Council and Leveson’s press trust (as thoroughly outlined by the University of Melbourne’s Denis Muller). In many ways, Finkelstein’s approach is tougher and Leveson’s more nuanced despite everyone agreeing press behaviour has been far worse in the UK.

Finkelstein’s council would be a statutory body funded by government and covering all media outlets (even websites with tiny readerships). Its main power would be ordering the publication of prominent corrections — with the option to use contempt of court powers (which carry a potential jail term) against those editors who refuse. This often gets reduced, in media shorthand, to “locking up journalists”.

By contrast, Leveson’s press trust would be funded by the industry and outlets would join voluntarily — presumably lured by incentives such as speedier and cheaper resolution of defamation cases. The big stick would be fining publications up to 1% of their turnover or one million pounds.

Ricketson wouldn’t be drawn on the pros and cons of the two approaches as the government hasn’t announced its response to Finkelstein. But doing nothing, he says, isn’t an option – even though no Australian journalists have been caught hacking phones.

“It’s the height of arrogance from people in the [Australian] media to say there is no problem. Any industry can be improved,” he said.

Federal

Oct 25, 2012

5 comments

With only two weeks of the federal parliamentary sitting year to go, the government is down to the wire on one of the biggest issues it has attempted to tackle — a system of media regulation fit for the times.

The Convergence Review, which reported in May this year, was big and overdue. Previous communication ministers had variously fiddled and wimped out, ever since the Howard government failed to implement the Productivity Commission’s landmark report at the beginning of this century. A root and branch review was well overdue.

So Stephen Conroy got deserved pats on the back for appointing the Convergence Review, and giving it a broad brief. Since we live in an increasingly media enabled world, its recommendations — covering everything from Australian content to media ownership to how the broadcasting spectrum is divvied up and doled out — had the potential to impact on just about every aspect of our lives over the decades to come.

And that is even before one considers the rushed add-on of the Finkelstein inquiry, charged with considering news media regulation, with its controversial recommendation (rejected by the Convergence Review) of a statutory News Media Council. (Read Crikey‘s previous summary of the Convergence Review recommendations in this area.)

It’s all very big, very difficult and very important. But will the government actually manage to do anything?

For the last six months, those concerned with this issue have been on tenterhooks, led to expect announcements were just days away. Lives have been out on hold, holidays cancelled. But the decisions have been supposedly days away for weeks and weeks. Now the government is down to the wire. A decision will be made on whether or not to push ahead in the next 48 hours. None of it is easy. The Convergence Review was perhaps necessarily broad brush. There are very few areas in which it gave the government a clear legislative path to follow.

We know Conroy’s attitude on some things — for example, he favours a public interest test for changes in media ownership. On news media regulation, my understanding is the government is more inclined to the Convergence Review’s approach of giving the industry another chance to get serious about self regulation — with a beefed-up all-media Australian Press Council as the foundation — rather than leaping straight to the Finkelstein statutory authority approach.

But even here there are problems and unanswered questions. The Convergence Review left lots of things unanswered. For example, how will publishers be forced to join a self-regulatory body without some statutory backing? Matthew Ricketson, who assisted Finkelstein, has drawn attention to other paradoxes and problems with the Convergence Review’s approach.

Since the Convergence Review reported, the publisher members of the Australian Press Council have in any case made changes, signing up to increases in funding and long-term funding contracts. If these changes had been made before the Finkelstein exercise it’s likely the recommendations of that inquiry would have been different.

Yet even so, the attempts of the industry to reform and strengthen the Press Council were undermined by the departure of Seven West Media. It lent force to the argument that a self-regulation body that can be abandoned at will is always going to be weak and dependent on the goodwill of those it is meant to police. Seven strengthened the arguments for a statutory approach.

The view around the traps is the government favours the carrot and stick approach. The idea is to make various privileges and protections available to news media and journalists contingent on membership of an acceptable self-regulation scheme like the Press Council. This would require changes to several laws: the exemption from the Privacy Act, the exemption from the misleading and deceptive conduct provisions of the Competition and Consumer Act, shield laws, whistleblower legislation, the list goes on.

Can this be done in the dying days of the current parliament? Will the government regard it as strategic to push it through?

Another approach being discussed is to effectively shelve the issue for now, but to put the news media on notice that it should get its own house in order within a set time period or face statutory intervention — a hollow threat, perhaps, given the likely longevity of this government.

All that is before you even consider the big-money decisions relating to content regulation and the like. Those questions are also urgent. Our stressed commercial free-to-air broadcasters are regulated one way, the new internet-based “broadcasting” services are regulated quite differently. Sensible platform-neutral reform is badly needed. The present legal arrangements simply won’t do much longer. In fact, they are already anachronistic.

Then there is media ownership, an urgent issue if ever there was one, including the thorny question of a public interest test.

If the government doesn’t announce its approach by early next week then nothing will happen this year. Next year is an election year; not an ideal time to be taking on the big boys of media. Suddenly, recasting media regulation for the modern age may again prove too big a job.

Whatever your views on the best approach, that would be a sad outcome.

*Declarations: I made a submission and appeared before the Finkelstein inquiry. The Centre for Advanced Journalism at the University of Melbourne, of which I am the director, has organised a number of public events at which speakers have discussed news media regulation, including speeches by News Limited CEO Kim Williams, Australian Press Council chair Julian Disney, Matthew Ricketson and shadow minister Malcolm Turnbull. The centre has invited Stephen Conroy to appear at a future event but has not had a reply.

Print

Aug 21, 2012

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If you think a newspaper, magazine or website (including Crikey) has been inaccurate, biased or unfair in its reporting on the findings of the Finkelstein inquiry or Convergence Review don’t bother going to the Australian Press Council with a complaint. The watchdog won’t touch it.

That’s what Alan Corbett, a former NSW politician, learned when he complained to the APC about an article in The Australian last month. Corbett took umbrage at the lede of the article: “News Limited chief executive Kim Williams will challenge the Gillard government’s proposed media reforms in the High Court if they are introduced, declaring them unconstitutional and a threat to democracy.”

After his letter to the editor was not published, Corbett, who runs the Journalist Complaints website, took the matter to the APC.

“That is not fair or accurate reporting,” he wrote. “The recommendations of any inquiry or review cannot be accurately and fairly stated as belonging to the government of the day, simply because the government established the inquiry or review in the first place.”

The government, as Corbett wrote, has yet to outline its official response to either of the media reviews.

Paul Nangle, the APC’s head of complaints, responded: “We understand your concern at the obvious inaccuracy of the references to the ‘government’s proposed media reforms’ and ‘The government’s proposals’. We are unable however, to consider the matter sufficiently to make an adjudication.

“The Council has decided that it should not adjudicate on complaints relating to the Finkelstein and Convergence Review’s reports because of its possible conflict of interest.”

This left Corbett with nowhere to go. He couldn’t complain to the MEAA because at least one of the authors of the article was not a union member.

Press Council boss Julian Disney tells Crikey the Council could, hypothetically, address a complaint about the issues flowing from Finkelstein or Convergence if it is “clearly a matter of indisputable fact”.

But as a general rule they’re out of bounds because both reviews deal extensively with the future of the Press Council. Disney says he has received other queries from potential complainants, but they decided not to proceed when he advised them of the APC’s stance. Disney can’t say when this stance, which he first outlined at a university forum earlier this year, will change.

Corbett remains unimpressed: “I think they should put it to one side, explain the difficulties they have and say our job is to keep an eye on the print media.”

Companies

Jul 27, 2012

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It’s looking very much as if News Limited may have overplayed its hand in the fight it has picked with the government over media regulation. Indeed, there are signs the Holt Street heavies are now being taught a subtle lesson that the corporate sword of “government relations” pressure can cut both ways.

The Murdoch battalions fired their first salvo last month with a letter to the Prime Minister signed by News CEO Kim Williams and six other media executives (three of whom head companies owned, or partially owned, by News). The letter robustly protested any form of statutory content regulation for the print media.

Message: the PM and Communications Minister should pull their heads in pronto unless they want to get even more of a shellacking than they already receive from News Limited papers and like-minded media outlets.

Fair enough. The lofty joint letter has long been a legitimate lobbying tactic used by interest groups of all persuasions to grab some public attention and remind the government that major policy changes may have unwanted political consequences.

When the ring-master of such a campaign also occupies the most powerful chair in the Australian media the arguments carry undeniable force, if not logic. But, as we noted at the time, the great weakness in this News-led stand is that it is far from united. Fairfax and Network Ten didn’t sign up, signalling their doubts that direct confrontation with Julia Gillard and Stephen Conroy is the most effective tactic.

Undeterred, News has used its op-ed space and letters pages to keep hammering away at the government. This campaign reached a laughable nadir on Monday when The Australian ran a long opinion piece by former ABC director and chair Maurice Newman, who thundered about complacency, boiling frogs and threats to free speech. (This is the same free speech-loving Newman who championed a strict confidentiality “protocol” he required all ABC directors to sign and abide by, on pain of injunction. And the cultural warriors at The Oz showed just how out of touch they are by describing Newman as “the former chairman of the Australian Broadcasting Commission”. The ABC has, of course, been a corporation, not a commission, since 1983.)

Then, just when the News-led “we have written you a letter” campaign began running out of puff, the Prime Minister replied to Snow Williams and his Six Dwarfs — as convention, good manners and propriety demanded she must. We can’t know in precisely what terms Gillard responded because her letter was undoubtedly headed “confidential” and/or “not for publication”.

But that didn’t stop News Limited. It was determined to claim a victory. On Tuesday The Oz made the PM’s courtesy letter their “exclusive” front-page lead, under the preposterous headline: “PM seeks truce over media rules”. There was not a single quote in the story to substantiate that heading — in fact, not a quote of any kind from the letter. Nevertheless, its use of the word “truce” stood as an unguarded admission by News that it has, indeed, been waging a war on the government over media regulation.

The one kernel of apparent substance in the story was that the Prime Minister’s letter suggested that if the signatories had any concrete proposals for strengthening print media content standards through self-regulation then the government was happy to consider them. In other words, the classic “show us good cause why not/put up or shut up/what’s your credible alternative?” response that prudent politicians always offer their opponents when mooted reforms are challenged.

It’s a neat and entirely proper position for Gillard to adopt in a formal acknowledgment letter. She commits to nothing, yet sends a significant message.

The PM is reminding News and its camp followers that simply opposing any form of government-backed media regulation on absolutist “free speech” terms is not good enough. By implication, she’s saying that if the media companies can’t propose a genuinely effective system of accountability, then the government will.

The secondary message is that the government was not convinced by the hurried “beefing up” of the Australian Press Council by the proprietors in response to Finkelstein and the Convergence Review. More likely, the rushed expansion and rule changes were seen as confirmation that the APC has, up to now, been a dud.

For the self-appointed agenda setters at News to spin all this as some form of concession or peace offering from Gillard is disingenuous — or naive. The hard politics are that she has made no concessions, while appearing calm and reasonable — which makes Williams and his co-signatories look like hysterical doom merchants who mainly deal in threats and rhetoric.

This saga still has a long way to go, and may well not go anywhere given Labor’s precarious majority and the proximity of the next federal election. But by playing a deft bureaucratic dead bat, Gillard has shown it’s possible to counter News Limited’s bullying without having to trade fisticuffs in their confected stoush.

Fairfax has clearly sensed that the campaign they declined to join is now faltering. Yesterday’s Sydney Morning Herald ran a modest report under the heading “Media’s response to PM may be divided”, quoting an executive of one of the non-News signatory companies saying it might be more fruitful if media companies continued these discussions with the government individually, and in private. They’re telling Williams: back off, we won’t just do and say what News tells us.

Meanwhile, as the Holt Street strategists consider their next move, The Oz has been reduced to publishing simple-minded letters to the editor about “Kremlin-style” proposals and “threats to our democratic society”. Not the kind of stuff that sways too many opinions in cabinet.

Federal

Jul 20, 2012

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David Salter’s analysis in Crikey yesterday of a speech I gave to the South Australian Press Club fundamentally misunderstands the principles which have underpinned broadcasting legislation for over 80 years, underestimates the threat to press freedom Finkelstein’s recommendations represent and offers misplaced legal opinion.

Salter does not accept that licensing scarce public spectrum to free-to-air broadcasters is one of the key elements for regulating broadcasters differently from other media. He makes the incorrect assertion that: “Spectrum regulation is purely a technical matter.” This is simply wrong. As the Productivity Commission has pointed out:

“Differences in media regulation can be attributed to differences in the way television platforms operate. The FTAs use a scarce public resource. The licence fees they pay, and some other regulations to which they are subject, reflect the benefits they derive from having preferential access to that public resource.”

The fact is that the centrepiece of our broadcasting policy has been built around the government licensing a limited number of companies scarce public spectrum together with a set of regulatory protections to those licensees. In return these companies have certain obligations such as broadcasting Australian content and oversight of complaints by the media regulator. Print media does not use scarce public spectrum, has never been licensed and is rightly not subject to the same regulatory obligations as the broadcasters. The 80 years of regulation of users of spectrum whilst print was not so regulated is explained by the fact that those spectrum users use a scarce publicly owned resource. Does David Salter explain his mischaracterisation as legislative and policy amnesia?

Salter also claims that News Limited “over egged” our claims Finkelstein’s recommendations represent a threat to press freedom. He said we say the threat to press freedom arises because the regulator would be government funded and therefore controlled — a proposition with which he does not agree. In doing so Salter mischaracterises our argument.

Sadly, Salter assumes that what is at stake is nothing more than extension of current rules applicable to TV and radio to print — I am drawn to an inevitable conclusion that he, like so many other commentators on these matters, has not actually read the Finkelstein Report for that is not what is proposed in the report.  The threat to press freedom arises from the combination of draconian measures contained in Finkelstein: including the super regulator’s ability to seek orders to jail or fine journalists, the fact the regulator does not have to publish reasons for its decisions and the fact that decisions by the regulator would not be appealable.

The point that the government funds such a body — which opens it to control — is only one component in the overall disturbing picture.

Salter appears to conflate democratic accountability with media accountability. A pillar of democratic accountability is that the government is held accountable, including quite fundamentally by media scrutiny. How effective can that scrutiny be if those who are scrutinised can discipline the scrutineers (and ultimately control them) over that very scrutiny? Inter alia Salter is naïve to believe that “accuracy” is always objective — a disagreeable view will often be lambasted as “inaccurate” as anyone in the media knows all too well.

Salter should also take care with his lay legal assertions — if he considered what the Finkelstein Report actually proposes even he would identify serious issues of free speech and appropriation.

The only thing we can agree on is Salter’s point that we are talking about recommendations to government rather than any firm government proposal. We hope that good sense informed by facts and real understanding of the policy settings will drive sensible responses including understanding the very significant enhancements to the operation of the Australian Press Council which were adopted earlier this year after an extended process of review and negotiation.