Competing universes at Senate Committee hearings on media reform

Kevin Rudd's immediate leadership prospects weren't the only things declared dead as the week ended. So too the four media reform bills.

Andrew Wilkie was right to describe the whole process as shambolic, pointing out that all seven crossbenchers were in favour of reform legislation, but not this lot as dished up with a week to take it or leave it, as originally explained.

The failure of the government to make, build, and explain the case for what it was on about, seek some input on what was to be proposed, make adjustments that would improve the bill, and sound out those with vital votes, provides another chapter for that bulging "poor examples" section of someone's policy development case book. What to expect if as has been reported the matter went to cabinet "under the line" without any documentation in advance, after a year or so of silence. It was all downhill from there

What was said in the Senate committee hearings on the reform bills and in submissions won't count for a row of beans now but it was nevertheless insightful into thinking about the media, regulation of any kind, and the current self-regulatory system.

Putting the merits of the fatally flawed proposal to one side, extracts of who was saying what are included below. They include Ray Finkelstein QC and others spelling out the rationale for regulation, self or otherwise, and the use of media power; Margaret Simons defining freedom of speech as a right enjoyed by media organisations only to the extent to which they serve the rights of freedom of speech of citizens; and Julian Disney listing the problems with the Australian Press Council self-regulatory scheme, and others similarly making the point that self-regulation isn't working despite improvements Professor Disney has produced.

On the other hand, we had Kerry Stokes on why the print media should simply be left alone to make money, and the Institute of Public affairs telling the committee the markets are so powerful even self-regulation should just be optional. 

And a couple of others for good measure.

Opportunity lost, big time. Where it goes from here is now entirely in the hands of media organisations themselves. Good luck to us all.

In the meantime these bits shouldn't be confined to the bin.

The scheme  
Some explanation from officials about how the scheme was supposed to work.

"What's the problem?" 
 Kim Williams, Greg Hywood and others kept returning to "what's the problem?" . As Hywood put it "We have said from the beginning of this process that there is no evidence that there is a problem to solve in Australia."

While he wasn't supporting the bills as presented, it was left to the CEO of the Australian Press Council and others to detail how the self-regulatory body Williams and Hywood fund isn't dealing adequately with the issue of standards.


Privilege
While Williams mused that the case for regulation of the print media is yet to be made by anyone, Professor Disney mentioned 

 "There is a whole stack—at least 50 or 60 that we know of—of statutory or non-statutory privileges for journalists or media organisations"

Perhaps one, or 50 or 60 reasons why an expectation of responsibility and accountability is reasonable in the circumstances? And opening up the carrot and stick possibilities for holding self-regulation up to the mark?

Power and it's exercise
None of the politicians had a go at explaining the rationale for regulation of the press, self or otherwise but Ray Finkelstein drew attention to the fundamentals of power, responsibility and accountability:

Without any doubt, the news media, whether it is via print, broadcasting or online, is a powerful institution. It shapes the nation's policy and can change the course of history. At the same time the news media can cause great harm to individuals, organisations and other groups in society. The media can cause harm when it does not adhere to the basic standards of fair and accurate reporting; hence the need for there to be some oversight of the news media. There is some existing oversight. At present the print media regulates itself through the mechanism of internal codes of conduct plus supervision by the Australian Press Council. Putting that into context, this amounts to an acceptance by the print media that its important role requires, first, the adoption and observance of codes of conduct and, secondly, oversight of their process. As a result of legislation, the broadcast media is regulated through internal codes of conduct approved by ACMA and externally through ACMA itself. On the other hand, the online news media is substantially unregulated.

As regards the Australian Press Council and ACMA, neither form of regulation has worked well. Three of the last four chairpersons of the Australian Press Council have spoken of its failings. The most significant failings I can list: a lack of public awareness of the Press Council, a lack of powers of investigation, a lack of resources, a lack of powers of enforcement, a lack of independence from publishers and slow procedures. Regarding ACMA, it is hamstrung by limited statutory powers of enforcement and slow statutory procedures. So, if oversight is required—and both the print media and parliament regarding the broadcast media think that it is—then the committee might easily accept that the existing models are inadequate.

Dr Denis Muller in a submission similarly explained:

The media is a locus of power in its own right, and like all others in positions of
power, it owes accountability to the public.The media’s attitude to being made accountable has habitually and historically been a mixture of arrogance, contempt and promotion of naked self-interest. It deploys various well-worn arguments: that accountability somehow impinges on press freedom and freedom of speech; that the media is accountable to its readers and audiences; that the media itself is in the best position to be judge and jury in its own cause.

The debate – if it may be dignified with the term – since the Government announced its package of media measures in the week beginning 11 March 2013, has been long on free speech and short on accountability. There is a point of principle here: in a liberal democracy the public is entitled to hold those in power to account. The media is a power. It should, as a matter of principle, be held to account. Moreover, public trust in the media and in the profession of journalism is low in Australia. The Finkelstein Inquiry presented 45 years’ of data saying so. When an institution that is so central to a democracy is held in low public esteem, the institution is weakened and so is the democracy. Trust is built on performance, on accountability for performance and on transparency of process in assessing performance.

It follows that the Australian polity as well as the media as an institution would be strengthened, not weakened, by a transparent, independent mechanism of media accountability..... The media will not make themselves effectively accountable without having a statute to say they must. History tells us that. But the detail of these proposals forces me to come out against this particular model.

Dr Margaret Simons on freedom of speech fundamentals:

..the right to freedom of speech is not held by organisations, including media organisations. It is a right that is held by individuals. The rights, freedoms and privileges that media organisations have in most liberal democracies are consequential. They rely on the extent to which the media outlet or the journalist serves the free flow of information in society, and the right to freedom of speech of both the individuals who make up the media organisation but also the individuals in the audience and the broad general public. While for the most part large media organisations play a vital, effective and good role in disseminating information and extending the right to freedom of speech, it is possible—and the risk is highest when media concentration is highest—for the media to actually interfere with freedom of speech. This happens, for example, if somebody requests a correction to incorrect information and they have trouble in obtaining that correction, or if they ask for a right of reply to something that has been published and they are not able to obtain that right of reply. I think there is quite a lot of evidence, which I am prepared to detail, that we do have that situation in Australia with at least some media outlets at the moment.

Given that the right to freedom of speech of large media organisations is a consequential right and it relies upon the extent to which they serve the rights of freedom of speech of citizens, it is reasonable for them to sign up to standards about accuracy, fairness, publication of corrections and rights of reply and other matters. Indeed, all of our main media organisations have signed up to such codes and standards. If there is concern that they are not taking those obligations and standards seriously, then it does not seem to me unreasonable to suggest that their special privileges under law, which are there to enable them to disseminate information, should be contingent on taking self-regulation seriously.

... there is no controversy about the standards. As the Finkelstein report observed, they are very similar the world around. There is no controversy about what the standards should be. I think that there is also quite a lot of evidence that while all the main media organisations sign up to commonly accepted standards, they are not taken seriously in newsrooms. I can draw your attention to some evidence of that if you wish.

Senator BIRMINGHAM: That would be useful because, frankly, one of the challenges coming into this is that the government has not exactly made the case for why these reforms are necessary.

Professor Disney on the problems the APC is experiencing that media bosses didn't mention:

There are substantial problems with media standards in Australia. A number of them we have in common with other countries. What I am going to say now is based on the experience of the complaints that we receive. We get about 600 now. The numbers increased by about 50 per cent over the last year or so, probably because our profile is so much higher than it was before, with our existence and our role being advertised in virtually all issues of every member publication...
The problems include distortion and suppression of key facts and opinions; confusion of fact and opinion; errors of fact, especially online due to excessive haste in posting material and inadequate corrections of those errors; invasion of privacy, particularly through the use of photographs taken from a distance. Some problems, of course, in any profession or industry, are inevitable. I do not think it should be a surprise that there are some. The level is higher than it should be and I think it is a significant problem that needs to be addressed.  

Having said that, there is a substantial problem that needs to be addressed. I might say that it has an adverse impact, amongst other things, on freedom of expression. If people are to have freedom of expression, they need access to reliable information. If they are fed false information, then the views that they form and they might want to express will not be the views that they would form and express if they were well informed. Access to unreliable, distorted information is an attack on freedom of expression.

Similarly, if they are unable to get their voice heard reasonably, because particular outlets have perhaps a general tendency to be more willing to publish views from one part of a perspective on a particular issue rather than another, that infringes on the freedom of expression of those people who do not come from the part that is going to be more generously covered. If they are given an occasional example to express their views but that is overwhelmed by a very extensive coverage of the other view, then again their freedom of expression suffers. Freedom of expression needs to be for all people, not just for those who are wealthy or for those who have special access to the most widely read media. Of course, it is a huge infringement on freedom of expression if people are intimidated by vitriol or by other forms of excessive abuse. That, again, even if it comes from active proponents of freedom of speech, it is in fact an attack on freedom of expression. So media standards, good media standards, are an essential element, for a number of reasons...

Quite a lot of progress has been made but we are still moving too slowly in our handling of complaints. We are suffering from sustained misrepresentation of our adjudications and other comments from some quarters, sometimes from proponents of freedom of speech, who are alleging quite forcefully that some of our adjudications have inhibited freedom of speech. By falsely presenting what we have said and implying that we have put inhibitions on freedom of speech, they themselves are inhibiting freedom of speech. We are still suffering from not a high enough level of cooperation from publishers in some areas and we need to keep working on that. We are making progress.
I want to finish with two important strengthenings that we need to achieve and then comment very briefly on the bill. The first strengthening is—as Mr Finkelstein asked of me at the inquiry, but at the time I said perhaps we should do it another way—we now definitely need to be able to institute our own investigations without waiting for a complaint. There are far too many instances...
I have seen some very bad abuses in the last few weeks where we have had no complaint and yet I know, in fact, the people were concerned about it but thought it would just make it worse if they complained.
 

Two specific changes he wants to current arrangements are the ability for the APC to initiate its own investigations and a review of activities every three years by an independent panel to report on our compliance with particular benchmarks. 

Professor Matthew Ricketson on self-regulation :

... the overwhelming evidence presented to the independent media inquiry was that the system of voluntarily self-regulation for the print media has not worked and will not work unless important changes are put in place. Improvements in the certainty of funding arrangements for the Australian Press Council have been put in place after the delivery of the media inquiry report, but a key weakness of voluntary self-regulation has been exposed again with the withdrawal of the Seven West Media Group from the Press Council and the prospect that some have raised of the further splintering of the members of the council. This would be a retrograde step that would take us back to the beginnings of the Press Council in 1976, when the then John Fairfax newspaper company refused for several years to join the council. Thank you.....
....the idea that there is no problem with our news media in this country strikes me as an odd one in the sense that comparisons are made with the situation in England where there has been entrenched phone hacking and so on; ergo, if we do not have entrenched phone hacking here in Australia, we therefore have no problem with our news media. We did not find evidence in the inquiry of phone hacking occurring, but we did find problems with the news media in a variety of ways and from a variety of sources—and you referred to a couple of those. Also I would like to say that it strikes me as an odd argument to say that because we in Australia have not suffered the worst scandal of media ethics in living memory, therefore everything is okay with the media in this country. It seems to me that is suggesting that you are prepared to accept journalism that ranges from average to poor to very poor to falling just short of phone hacking, which clearly in my view is not a satisfactory situation.

At annexure (i) of the media inquiry report, one of the things we did—drawing on some academic research that was in process at that time—was detail anonymous comments by people. For example, they had been the victim of rape or somebody in their family had been murdered or something of that nature and then that had been reported on in the news media. We have anonymous comments from them because they were given anonymously in the academic study. I will quote one to begin with. It is someone who was a survivor of rape and was being hounded constantly for an interview. The quote from the person was:

I did have someone from the media call me, but she was just a hungry animal. I found her quite a lovely person but eager to get a story. I was in tears but she didn't care. She was happy to throw my case all over the TV and magazines, and I kept saying, 'No, no, no, you don't understand; you know nothing about me; don't do this.' In fact, in any case, the story was run. That is one of numerous examples in annexure (i) about that particular issue. We did highlight some others—some of which involved ordinary people and some of which involved more high-profile members of the community—in chapter 11 of the report, and I will just list them briefly. A minister of the Crown: his homosexuality was exposed and he was forced to resign. A second one involved a chief commissioner of police who was the victim of false accusations about his job performance being fed to the news media by a ministerial adviser and, following publication of the articles, he was forced to resign. A third one was that a woman was wrongly implicated in the deaths of her two children in a house fire. Her grief over her children's deaths was compounded by the intrusive news media coverage. A fourth one was that nude photographs said to be of a female politician contesting a seat in a state election were published with no checking of their veracity. The photographs turned out to be fakes. Finally, a teenage girl was victimised because of her having had sexual relations with a well­known sportsperson. So those are some.

We also, as you may know, looked at not simply one or two opinion polls about the news media but at many opinion polls over many years looking at the way the news media operates from a variety of perspectives. Overwhelmingly, it was found that there was a low level of trust by ordinary Australians in the functioning of the news media in this country.

Professor Michael Fraser on the same subject:

It has been claimed by media representatives that their freedom of expression should be unfettered and unlimited, but no right is unlimited. They themselves recognise this by having industry self-regulatory standards and professional and ethical standards which they impose on themselves. Moreover, the right to freedom of expression by journalists or by an organisation that pretends to enjoy that right, which is an individual right, is limited to the extent that it conflicts with other fundamental human rights, such as the right to privacy, the right to reputation and honour of the person. These rights are equally important in a liberal democracy. So it cannot be the case that it is only the media that should not be accountable to anyone. And it cannot be the case that the essential rights of the media in serving the public's right to know cannot be limited. Indeed, as has been noted just now, these rights are limited by many other laws, such as defamation laws, privacy laws, contempt of court laws, suppression orders and other laws that apply.

I think it is agreed by everybody that the best mechanism for accountability by the press is self-regulation. I think many disinterested persons, including previous Chairs of the Press Council, have acknowledged that self-regulation by the Press Council has to date not been sufficiently independent and effective and that their decisions have sometimes been ignored by their members. Or, when their members have not liked the activities of the Press Council, their own body, in limiting their unfettered role, that they have walked away and withdrawn their funding and their membership. This bill attempts to maintain industry self-regulation but holds the industry to account to ensure that that self-regulation is genuine and lives up to its own standards. The other aspect of the public interest media advocate is ensuring diversity. Unfortunately, I have not had the opportunity to hear the earlier parts of the hearing, but I am sure that it is well established here that we have one of the most concentrated media in the world. There are many commercial reasons for that, but it is certainly in the public interest that news and current affairs should not be monopolised by only one or two voices. That is in the public interest.

Unless those regulated fear the regulator, that the regulator has an armoury of weapons with which to enforce their decisions, that they are binding and that they can't be walked away from, then any form of regulation is not worth the paper it is written on. The Press Council has had a role as a self-regulatory body, but it has been weak.

CHAIR: People spoke earlier about carrots and sticks. We have a hugely influential and powerful press in this country. Is that your estimation as well?

Prof. Fraser : It is, and if I could just say a few words as to why they should be regulated now. I think that they are far more powerful than before. As a community we had norms that were well established and recognised by all kinds of corporations, including media corporations. But now we see extreme invasions of privacy using long lenses and surveillance techniques and we see prurient interest in people's personal and private lives far beyond what would have been unimaginable only a short while ago—within our own lifetimes. The media now have such powerful techniques and technologies and propaganda skills that they are feared by everybody if they focus these techniques. As we have seen in the UK, even the most senior politicians have feared the power of the media. The lack of ability of an ordinary citizen to get a right of reply or correction or to be able to even be consulted sometimes before a story touching on them is run, I think that is why these issues have come up. Although we have avoided the most egregious examples such as in the UK, I think there is a general feeling in the community now that this great power of the media is unsettling our civic life and the ability of others to go about their duties.

 

 But the print media should be left alone to make money, said Kerry Stokes:

Mr K Stokes : If I chose tomorrow to go out—and I have done it once before in Canberra—and buy a printing press and start a paper—and I have done that before in Canberra too—and find that I live or die commercially on what I do, I shouldn't be regulated on that. Why should I be?

CHAIR: Because the press is not simply a commercial operation. There are public interest issues. That is why.

Mr K Stokes : Senator, the public issue was actually first raised by the Minister for Communications, Charles Davidson, in 1956 when he introduced the Broadcasting Act. The broadcasting was not just a commercial undertaking like print. There was a parliamentary distinction made between the two. The facts of the matter are that it is a business like any other business. If you want to be a radical newspaper, then that is your choice. People probably won't buy you. If you want to be a newspaper that makes money, then you will do what it is that makes money. We are talking about newspapers, not public assets.

Senator LUDLAM: Are you saying you have no public interest obligations apart from just to make money for your shareholders? Mr K Stokes : They are one and the same. 

And Bruce Davidson CEO of AAP advocates absolute freedom of the press:

CHAIR: Did you hear the evidence from Mr Finkelstein and Professor Matthew Ricketson?

Mr Davidson : I heard some of that today, not all of it I am afraid.

CHAIR: What do you say to their argument that there is no absolute freedom of the press?

Mr Davidson : I think in our western democracies most individuals or members of our community would believe that there should be absolute freedom of the press. I heard Mr Finkelstein discuss that issue and I do not agree with his contention that there must be a level of regulation, which I think were his terms. I am quite happy with a level of regulation in terms of the industry ensuring that its codes of conduct and its practices are adhered to and I am quite happy to be held to account for any breaches of those, but I think we need to avoid the potential for interference by government to potentially misuse or distort that regulation.

 

Finally the Institute of Public Affairs thinks the market is so powerful even self regulation should be optional

 CHAIR: Does the IPA believe that the press should regulate itself in any way?

Mr Berg : We all regulate ourselves in many ways. I am sure that if you talk to journalists and editors they make decisions about what they are going to put in their paper on all sorts of grounds. The press does regulate itself. Should the press have a self-regulatory body? I do not have a big problem with that, and that is really up to the press, in my view.

CHAIR: Would you argue that there is no need for self-regulation?

Mr Berg : I am not sure. It is really up to the press. The whole point about self-regulation is that the individual industry gets to decide whether it wants to or not. That is the definition of a self-regulatory framework.

CHAIR: That is a principle that you would support, that the press can make a determination whether it self-regulates or not?

Mr Berg : Yes.

CHAIR: So it can just say, 'We will do what we like and face any consequences'?

Mr Berg : Yes. Of course that would be within the existing legal framework, which is substantial and extensive....

CHAIR: The Australian can basically ignore the Press Council and just print—

Mr Berg : Yes, that is the definition of a voluntary self-regulatory scheme.

CHAIR: So it is all voluntary; it is really meaningless—the Press Council?

Mr Berg : No, I would not suggest it is meaningless. I think they would have very seriously considered whether to do that.

CHAIR: If the Australian decides it is just going to repeat the same allegations in a different form, it is just ignoring the Press Council, isn't it?

Mr Berg : I think it is defying the Press Council in that case but I also think—

CHAIR: Defying?

Mr Berg : Yes, sure. But I think in many—

CHAIR: That is okay?

Mr Berg : Yes. It is a voluntary self-regulatory system. I think in many cases the Australian will have published retractions and so forth according to Press Council edicts. I am certain that other newspapers do and I have no reason to suggest that the Australian does not either.