Finkelstein recommendations based on self regulation failures and gloomy prospects for change

There are many issues raised in the Finkelstein review that deserve close analysis and sensible discussion and debate-which may or may not occur. But a few observations on media accountability and what to do about it, from a quick read of the 477 page report.

The recommendation for a News Media Council to set journalistic standards for the news media in consultation with the industry, and handle complaints made by the public when those standards are breached, emerged from analysis that showed there is a problem with standards, that the media has failed in its self regulatory efforts and that there is no persuasive evidence that it can or will remedy the situation.

This assessment is largely based on evidence from the Australian Press Council and lessons drawn directly from history- that the APC has serious structural constraints, does not have the necessary powers or the required funds to carry out its designated functions, and is vulnerable because publishers can withdraw when they wish and alter their funding as they see fit. Separately regarding television and broadcasting, the report finds ACMA’s processes are cumbersome and slow. And if "legal proceedings against the media are called for, they are protracted, expensive and adversarial, and offer redress only for legal wrongs, not for the more frequent complaints about inaccuracy or unfairness.. The problems with both the external and self-regulatory mechanisms are inherent, and cannot be easily remedied by piecemeal measures."

Someone is wrong here- the APC and many others (supported by the inquiry report) who think change must occur, or those in the media who claim variously, that everything is pretty rosy (Fairfax and News Limited), that self regulation of "print" is worth another shot (the APC's Professor Disney, with a question mark about whether he has even reluctant support from his dominant members, News and Fairfax) or that a body to take over the task of seeking to hold the media to account to be funded by government and as independent as you can make it is a step too far (most journalists who have written on the topic to date and sub-editors everywhere.)

Not that there isn't room for plenty of argument about the detail in this and other areas of the committee's findings.

 But those up in arms about the report's findings, or who offer alternative evidence and other solutions about media standards who wish to be taken seriously hopefully first read the report in its entirety. And look at the annexures as well- B on the widespread consultation that has taken place; D summarising the 10,000 short submissions not previously published which include many apart from those organised by Avaaz and Newstand, as well as hundreds of more detailed efforts; E a bibliography long enough to make your head spin; F public opinion polling data that confirms the media/journalists have a public perception problem not necessarily reflected in sales; G the analysis of a sample of 100 APC complaint adjudications including that 38% of complaints concerning privacy were upheld; H the analysis of articles highlighted in the Victorian Office of Police Integrity Crossing the line report, some of which are cited elsewhere as involving a signficant breach of standards; and I, telling research on media treatment of vulnerable people from a group of academic researchers that include Professor Mark Pearson of Bond University among others highly respected in media circles.

The following extracts are the the summary given of the APC's situation (Chapter 8):

The failings of APC—lack of awareness of its existence, lack of funding, lack of enforcement powers, lack of reach—are problems that such bodies face in many democracies In fact the Australian Press council makes the case that it is ill equipped to handle the self regulatory functions it carries for these reasons:

• A lack of awareness of the existence of the APC and the assistance it can give to people who are aggrieved by a press publication.

• The inability to properly investigate a complaint for lack of binding powers. This is not an idle complaint. Take the case of an allegation that a newspaper has published inaccurate material. In a proceeding before the complaints committee the complainant has the task of satisfying the committee that the material is inaccurate. In some cases the lack of necessary forensic machinery to establish such an allegation can lead to a complaint being dismissed. The position could be otherwise if machinery were available.

•  Lack of resources due to lack of funding. Most of the funding comes from News Limited (45 per cent), Fairfax Media (24 per cent) and Seven West Media (12 per cent). Currently the APC receives around $1 million per annum. To meet its responsibilities it estimates that it needs around $2 million per annum. In those circumstances if one major organisation were to withdraw, the APC could collapse. Professor Disney suggested ways the membership of the APC could be secured. One way is through legislation. The press has certain statutory privileges. For example, the Commonwealth Privacy Act’s main restrictions do not apply to ‘media organisations’ which have committed themselves to a publicly-available set of standards about protection of privacy88. Most newspapers satisfy this requirement by virtue of their membership of the APC. Another example is the Consumer and Competition Act 2010 (Cth). It provides that the prohibition of engaging in misleading or deceptive conduct in trade and commerce does not apply to a person who carries on a business of providing information89

•  Insufficient powers of enforcement, including an inability to direct where and how APC adjudications should be published, and to direct the publication of apologies, retractions or corrections as the case may require. . These privileges could be made conditional on membership of the APC.

•  The appearance of lack of independence from the publisher members

•           Insufficient streamlining of complaints procedures. A fast track process for many complaints is required.

The report goes on to acknowledge some recent announcements of reform, but then why the record suggests the membership can't be relied upon to fix things satisfactorily.

The APC submission rightly makes the point that, if implemented, these reforms would improve its effectiveness. But, as its submission also acknowledges, the degree of improvement will depend upon the extent to which the APC obtains adequate funding, and the print and online publishers becoming and remaining constituent bodies, subject to the APC’s jurisdiction. It is also important to note that the APC accepts that to implement the reforms to enable it to become an effective regulator, government (that is, statutory) support is required.It is also important to note that the APC accepts that to implement the reforms to enable it to become an effective regulator, government (that is, statutory) support is required.The critical areas where government support is needed are funding, the conferral of powers of investigation and enforcement and the mandating (even by indirect means) of membership.In theory the members of the APC could agree to modify its constitution so that funding will be forthcoming and the powers that are needed are conferred. In reality, that will not occur.

First, the members will not agree to guarantee funding. One basis for this conclusion is that several members simply do not accept that further funding is required. For instance Fairfax Media, which contributes 24 per cent of the APC funds, is of the opinion that the APC has no need for more. Mr Hywood, the chief executive and managing director of Fairfax Media, made this point to the Inquiry. He said:  "We believe [the APC] does have sufficient funding to carry out its primary task [of adjudicating and mediating complaints]. It is what it chooses to do. Basically we believe that there might be judgments from Mr Disney about whether or not he has sufficient funding. We believe that we fund it adequately 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."  Similarly, senior representatives of The West Australian said that the APC had sufficient funding to perform its complaints function, and that it had not demonstrated any need for further funding.Even if some acceptable mechanism for funding were to be agreed, there will be no agreement on the conferral of appropriate powers of investigation and enforcement. Speaking with almost one voice, the media regard the establishment of any compulsory or coercive means of enforcing APC adjudications (for example, by imposing an obligation to publish the adjudication in a particular place, or conferring a power to require a retraction or an apology) as a grave attack on freedom of the press.