Australian response to the News

A belated government led discussion of a statutory cause of action for breach of privacy shouldn't be the sum total of the response here to revelations about the way parts of the News media empire did business in the UK. Those events-still unfolding and now accompanied by a trickle of reports of questionable activities in the US-raise issues about the way that company does business generally.

As the Australian Financial Review put it in an editorial yesterday

..Mr Murdoch is only slowly and reluctantly embracing the standards of accountability transparency and responsibility that his editorial divisions regularly demand of other people. This is a problem for his credibility and a lesson for all media organisations."

The company, tightly controlled by him, ultimately owns 70% of the print media in this country and has been shown to have corporate governance practices that failed to bring to early attention apparently widespread conduct that involved breaches of the law and have cost shareholders billions in lost value. The AFR again:

It is not clear whether underlings were afraid to report bad news upwards or tacitly encouraged not to do so, but the system did not work.

Professor Thomas Clarke Director of UTS Centre for Corporate Governance in a letter published in the AFR today describes the standards as "truly appalling."

Concern about media power and influence and the way it is exercised have been bubbling away here for ages. The issues aren't limited to News or the print media or to the conduct of journalism. For example last year's government decision to provide a $250 million benefit for commercial TV licence holders.

So given all this and the fact that News Australian boss John Hartigan has ordered an audit of payments to third parties over the last three years, to be oversighted by two retired judges, can there be any surprise about talk of a parliamentary review possibly covering ownership and concentration, and regulation, as floated by The Greens Senator Brown, and/or as part of the government's Media Convergence Review; and calls for examination of media/journalism ethics, standards and responsibilities and the efficacy of the current co- regulatory or self regulatory systems for broadcast and print respectively? Elements of those arrangements are the basis for the existing conditional exemption for media organisations from privacy laws- a separate issue from the statutory cause of action-that the ALRC found wanting in 2008.  The modest  recommendations for changes put forward then are also yet to be addressed by the government or media organisations themselves, publicly at least.  Putting self regulation of privacy issues to one side, the system has many critics with even the chairman of the press council this week struggling to avoid the word toothless in describing its powers.

Perhaps British Prime Minister David Cameron has given us a lead in foreshadowing an independent inquiry to look at the culture, the practices and the ethics of the British press:

In particular, they should look at how our newspapers are regulated and make recommendations for the future. Of course it is vital that our press is free. That is an essential component of our democracy and our way of life. But press freedom does not mean that the press should be above the law. Yes, there is much excellent journalism in Britain today. But I think it's now clear to everyone that the way the press is regulated today is not working. Let's be honest: the Press Complaints Commission has failed. In this case – in the hacking case – it was, frankly, completely absent. Therefore, we have to conclude that it is ineffective and lacking in rigour. There is a strong case for saying it is institutionally conflicted, because competing newspapers judge each other. As a result, it lacks public confidence. So I believe we need a new system entirely. It will be for the inquiry to recommend what that system should look like. But my starting presumption is that it should be truly independent ... independent of the press, so the public will know that newspapers will never again be solely responsible for policing themselves. But vitally, independent of government, so the public will know that politicians are not trying to control or muzzle a press that must be free to hold politicians to account. This new system of regulation must strike the balance between an individual's right to privacy and what is in the public interest. And above all, it should uphold the proper, decent standards that we expect.

On the statutory cause of action, the case for addressing this gap in the law was just as strong when the Australian Law Reform Commission recommended it three years ago. News, having led the charge to reject it out of hand, has just suffered the equivalent of an own goal by providing examples of the sort of wrong that should be recognised in a cause of action. Faced with possibly thousands of plaintiffs in the UK where the right to privacy has been judicially recognised, News has been prepared to settle out of court, in some cases for very large sums. In the event anything similar surfaced locally, its lawyers would affirm emphatically there is no right to action for breach of privacy recognised in Australian courts. The government in starting to move this along now is seen to be opportunistic leaving itself open to the charge that it's part of a fight back against strongly critical media coverage particularly from News publications. But it also seems to have realised it wouldn't be a good look searching through the in tray in the event  of a Milly Dowler episode here, saying "I remember the ALRC said something about this in 2008."