Focus: The Independent Media Inquiry: enforced self-regulation for media?
7 March 2012
In brief: The recommendations of The Report of the Independent Inquiry into the Media and Media Regulation, if enacted, are profound. The Report proposes the establishment of a new independent statutory body, the News Media Council, that would have jurisdiction over news media organisations, whether print, online, radio or television. The new regulator would have power to require a news media organisation to publish an apology, correction or afford a right to reply. Partner Ian McGill (view CV) and Lawyers Maryann Muggleston and Amy Dobbin report on the analysis and recommendations in the Report.
- Structure of the Report
- The Report: identification of the problems
- The options for reform
- The recommended model: enforced self-regulation
- Cost of reform
- Next steps
How does it affect you?
- The recommendations of The Report of the Independent Inquiry into the Media Regulation (the Report), if enacted, are profound and include:
- a new converged regulator, the News Media Council (NMC), created by statute, with jurisdiction over the standards of conduct of any publisher in any medium of news or current affairs;
- the NMC to take over all functions currently undertaken by the Australian Press Council, as well as existing relevant code and standards and complaints handling procedures administered by the Australian Communications and Media Authority; and
- the NMC to have enforceable powers, including the power to enforce a right of reply.
- These recommendations will have no impact on the news media until the government responds to it and the Convergence Review1, and that government response, if developed, takes legislative form.
The Minister for Broadband, Communications and the Digital Economy announced the establishment and terms of reference of an inquiry into media and media regulation on 14 September 2011, and consistent with the government's requirements, the report was duly delivered on 28 February 2012. The Report was undertaken by the Hon. Ray Finkelstein QC assisted by Professor Matthew Ricketson and can be viewed on the Department of Broadband, Communications and Digital Economy website, under the Independent Media Inquiry.
Given the short time frame, the authors have produced a report of enormous value to all interested in Australia's news media and the essential role of a free press. The Report adopts the following structure:
- an analysis of the role of the news media in a liberal democracy, including the historical antecedents to the press freedoms that Australians enjoy today;
- the disruptive impact of the Internet on the news media, including the current state of the Australian media market and the economic stresses imposed by and media owner responses to, for example, online alternatives to traditional advertising;
- the identification of what the Report's authors' call deep-seated weaknesses in professional standards and accountability in the news media;
- a description of the legal position of the media in Australia, including the privileges that apply to news media (eg, exemptions from privacy and trade practices laws and, in some jurisdictions, immunity from disclosure of confidential sources to a court) and restrictions that apply to news media (eg, the laws of defamation and contempt and restrictions on discriminatory speech and on speech that vilifies others in legislation such as the Racial Discrimination Act 1975 (Cth));
- an analysis of the existing complaints handling procedures of the Australian Communications and Media Authority as they apply to the commercial broadcasting sector and of the in house complaints handling procedures of the national broadcasters;
- a discussion of the issues concerning public funding and media independence, and the potential for government regulation of media to have what the Report authors' call a chilling effect on freedom of speech;
- an analysis of the existing internal regulation of print and online media news content, including an evaluation of the marketplace as a mechanism of accountability, journalists' codes of ethics, publishers' codes of ethics and ombudsmen and readers' editors;
- an analysis of the origins and history of the Australian Press Council (APC) and an evaluation of its effectiveness as well as proposals from the APC itself to reform its effectiveness;
- the building of a case for a statutory right of reply to redress news media errors and harm; and
- a discussion of the theories of regulation applicable to media, and a proposed preference for co-regulation ('when the rules are developed, administered and enforced by a combination of government agencies and regulated entities' 2).
The Report asserts that the need for reform is made out because of the following problems it identifies:
- self regulation (internal or external through the APC) has not been successful in dealing with irresponsible news reporting;
- there is no effective regulation of Internet news publications: it is inappropriate that different standards apply to print and online;
- ACMA's complaints-handling procedures for commercial broadcast news media require reform; and
- the existing structure of self-regulation and co-regulation have not worked and in any event is not effective regulation to prevent an abuse of power by the news media.
There is room for a healthy discussion on both the existence of and the weight given to these problems in the Report.
The Report identifies and evaluates a number of options for reform.
- maintain the self regulation status quo: rejected, because self regulation through the APC or internal codes is ineffective and involves turning a blind eye to a significant decline in media standards;
- enhance the APC: rejected, because enhanced government funding would not address the lack of powers of the APC, and there are constitutional difficulties in conferring statutory powers on a private entity;
- license publishers of print and online news: rejected, because in a democratic society government should not be involved in who should publish the news;
- establish the NMC to take over the functions of the APC and relevant functions of the ACMA: proposed, as outlined below.
The Report's central recommendation is a single regulator, the NMC, established by statute and to be a platform agnostic one-stop-shop applying to all news producing media.
The NMC's jurisdiction derives from the proposed definition of news producing media. The Report proposes3 that news producing media means any publisher, in any medium, where a significant proportion of their publishing activities generates or aggregates news, information and opinion of current affairs that is disseminated to a public audience. Small publishers and bloggers would be caught if they distribute more than 3,000 copies of print per issue or a news Internet site has a minimum of 15,000 hits per annum. The Report admits these numbers are arbitrary. If not caught above, all Internet publishers of news and current affairs would be within jurisdiction, including foreign-based Internet publishers that have a connection with Australia. Finally, non-news entities would be able to voluntarily submit to the jurisdiction of the NMC.
The Report proposes institutional and governance arrangements to ensure, in the Report's authors' views, that the NMC is free from the influence of the executive and the industry it regulates, including:
- an independent process for the appointment of NMC members ;
- a full-time independent chair and 20 part-time members, one-half men and one-half women;
- standards to be developed by the APC, based on existing codes developed by the media and in consultation with the news media;
- funding out of consolidated revenue and independence from government sought by a triennial funding model; and
- no funding from the industry that it regulates.
The Report describes the five principal functions of the NMC:
- preparing and reviewing standards of conduct;
- investigation and resolution of alleged contraventions;
- commissioning regular reports on the state of the news media in Australia;
- education of the news media on the standards;
- educating the public about the standards and the NMC itself.
The Report provides a proposed outline of a complaints-handling procedure that would feature, among other things: the waiver of an initial complainant's legal rights, dealing with a complaint quickly and 'on the papers' rather than by a hearing, any hearings would be conducted without lawyers, all communications provided to the panel would be privileged and there would be no mandated requirement for the panel to provide reasons for a decision.4
The Report recommends that the NMC's remedial powers include:
- publication of a correction;
- withdrawal of an article from publication;
- publication of a reply;
- publication of the NMC's decision or determination; and
- when and where publications should appear.
The Report recommends that remedial powers would not include fines or compensation, but if the news producing media firm refuses to comply, then either the complainant or the NMC would have a right to approach the Court for an order compelling compliance.
The Report also recommends that there should be no merits review and no internal appeal process for its determinations, but normal judicial review and supervision processes would apply to those determinations and to any court-enforced compliance with an NMC determination.
The Report considers the cost of reform, which is likely to be more than current operating costs of the APC given the increased coverage and number of complaints the new regulator would receive. The Report estimates that the cost to the government subsidising an improved APC or a new NMC would be approximately $2 million.5
The Government will consider the recommendations of the Report in the context of its response to the Convergence Review Committee's final report due later this month.
- The Convergence Review is an independent review established by the Australian Government to examine the policy and regulatory frameworks that apply to the converged media and communications landscape in Australia.
- Report paragraph 10.20.
- Report paragraph 11.65 – 11.69 inclusive.
- Report paragraph 11.70 – 11.73 inclusive.
- Report paragraph 11.83 – 11.85 inclusive.
- Ian McGillPartner,
Ph: +61 2 9230 4893
- Michael PattisonPartner,
Ph: +61 3 9613 8839
- Gavin SmithPartner,
Ph: +61 2 9230 4891