Media regulation – the mailed fist in velvet glove option

Inquiries into the media, not to mention more general reviews of legislation affecting its interests, are all the rage in the wake of the News of the World “Hackgate” affair in the UK. Retired judge Lord Leveson is running an inquiry in Britain while Ray Finkelstein QC (a retired Australian judge) is conducting a slightly lower profile and more limited inquiry into Australia’s media. It’s understandable that the Brits see the need for such an inquiry given the serious News Corp abuses revealed in recent months.

The need for an Australian inquiry is a little less obvious.  Perhaps it’s just a sop to the Greens whose votes the Gillard government needs to cling to power.  On the other hand, perhaps it’s fair enough in light of Andrew Bolt’s demonising of “white Aborigines”,  journalistic behaviour which was censured in the recent Federal Court decision in Eatock v Bolt. The conduct of Bolt and News Ltd is forensically dissected in this Overland article by Michael Brull.  It makes fascinating if disturbing reading.

Moreover, yesterday’s behaviour by Murdoch’s Brisbane Courier-Mail of publishing edited extracts of a Liberal-National “dirt” file on Queensland Labor MPs rather suggests that it is high time for media behaviour to be placed under the microscope of public scrutiny.  The “Fourth Estate” has been defecating in its own nest for too long and is unlikely to receive much sympathy from the general community if government seeks to bring it to account.

At the same time the federal government has released a discussion paper on proposals to consolidate and simplify Australia’s anti-discrimination laws into a single code (including the Racial Discrimination Act 1975 whose anti-vilification provisions formed the basis of the “white Aborigines'” litigation against Andrew Bolt).

Meanwhile, there are increasing demands that the federal government should legislate to  create a statutory tort of serious invasion of privacy as recommended by the Australian Law Reform Commission in its landmark report For Your Information: Australian Privacy Law and Practice authored by CDU’s Professor Les McCrimmon.

How can we best wend our collective way through the thickets of competing public and private interests and demands unavoidably raised by these issues?  ABC Media Watch host Jonathan Holmes has a straightforward if arguably self-serving answer:

Since my recent column on the issue, the inquiry [Finkelstein’s one] has published an Issues Paper, which seeks responses to a number of questions. The paper’s favourite word is ‘appropriate’. It asks, for example…

…is it appropriate, especially in the search for the ‘truth’ on political issues, that persons holding opposing views have an opportunity to express their views in the media?

And…

If a substantial attack is made on the honesty, character, integrity or personal qualities of a person or group, is it appropriate for the person or group to have an opportunity to respond?

To which, surely, the obvious answer is: Of course it’s appropriate. What could be inappropriate about giving opposing views space, or allowing those attacked to respond?

In my view, however, they’re silly questions. The real questions are: Should ‘appropriate’ media behaviour be required, and if so, who should do the requiring, and how?

Holmes answers his own rhetorical questions with another set of rhetorical questions:

How would the establishment of a statutory body to regulate the print media be justified, given that it would fly in the face of centuries-old freedoms, especially at a time when media diversity is about to become greater than it has been for generations?

How could it be determined which publications, in print and online, such a statutory body would regulate, and which it would not?

Are we to revert to licensing the presses, and attempting to extend those licenses to Australian cyberspace? Is every blogger and propaganda website to be licensed, and regulated, or otherwise considered illegal?

Should we, perhaps, at the same time set up the regulator’s throne upon the sands at Bondi Beach, and require it to order the waves to retreat?

However, Holmes implicitly assumes that formal government regulation and heavy-handed bureaucratic oversight are the only available alternatives to the current system of self-regulation of the print media by the Press Council, which Holmes himself (and just about everyone else) concedes is “slow and toothless”.   In fact there a range of possible options for achieving more effective oversight of media behaviour without undermining democratic freedoms.

The solution I favour would involve bringing print media under the regulatory oversight of ACMA, but with an “opt-out” option if the industry adopts a more effective self-regulatory code.  Such a code would necessarily require media organisations to give the Press Council self-regulatory “teeth” and perhaps adopt a set of Key Performance Indicators measuring their speed and effectiveness in responding to complaints and implementing Press Council decisions/recommendations.   Part III Division 3 and Part IIIAA of the Privacy Act 1988 (Cth), which allows opting out of the National Privacy Principles by private sector bodies with approved privacy codes, provides a model for such a system.  Section 18BE contains an explicit threat of reversion to formal government regulation if self-regulation fails, a prospect which should wonderfully focus the minds of even the most gung ho Murdoch executives and ensure that the Press Council ceases to be “slow and toothless”.

I can feel a submission to Commissioner Finkelstein coming on.

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3 thoughts on “Media regulation – the mailed fist in velvet glove option”

  1. Ken, my concern with bringing print media under ACMA oversight is that it opens the way for blogs and other online media to be brought under as well. Or at least, subject to some sort of regulation. Conroy has said, “Crucially,we have asked the inquiry to investigate ways by which has substantially strengthened the independence and effectiveness of the Australia Press Council,including in relation to online publications, and with particular reference to the handling of complaints.”

    I wonder what your thoughts are on the general question of all online publications being subject to the sort of “complaints” regulation Conroy is gesturing towards?

  2. Hi Tim

    I don’t think the blogosphere should be a law-free zone i.e. defamation, copyright, privacy and yes, even anti-vilification laws, should and do apply to bloggers just as they do the MSM. I wouldn’t have a problem in principle with blogs being subject to an industry self-regulatory regime, as long as the voluntary regulator (Press Council?) was clearly impartial and independent of the MSM. I wouldn’t have a problem with Julian Disney, for instance.

    I doubt that this would really change things very much in practice for bloggers. The reason bloggers tend not to be targetted legally has nothing much to do with whether or not we/they are theoretically subject to some form of (self) regulatory oversight, but rather to the fact that we’re mostly small targets not worth suing. I actually wouldn’t mind there being an avenue for complaint when targetted by Bolt, Blair and their moronic minions.

    People get all nostalgic about the Wild Wild West but I strongly suspect that it wouldn’t have been very nice living there. Similarly with the lawless days of the early blogosphere when hardly anyone even knew what it was. As Hobbes observed, life was nasty, brutish and short

  3. Hmmm, interesting if blogs did get brought under regulation. I tend to think that the blogs which are run by newspapers should come under the umbrella of any regulation…with private blogs, not quite sure what the answer is. Would it change anything? Would it be effective? How would private bloggers be impelled to withdraw posts which were deemed inappropriate? What would the remedies be (as a remedies lawyer this always interests me ;-))

    However, I think the idea of a right of reply is a great idea. If you’re targeted in the way that Bolt targeted the plaintiffs in Eatock v HWT you ought to be able to reply to the allegations and rebut them/respond them in the same paper.

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