Australia's News Media Council proposal - be careful what you wish for

ANALYSIS: The Finkelstein (and Ricketson) Independent Media Inquiry report released in Australia is a substantial and well researched document with a dangerously flawed core recommendation.

An impressive distillation of legal, philosophical and media scholarship (compulsory reading for journalism students) and worthy recommendations for simpler codes and more sensitivity to the needs of the vulnerable are overshadowed by the proposal that an ‘independent’ News Media Council be established, bankrolled by at least $2 million of government funding annually.

This council would have the ‘power’ to order corrections and apologies – but not to fine or jail journalists. That would be left to a higher court if a media outlet did not comply.

Several academics and small publishers have given it their approval. Even the Greens have applauded it, having demanded such an inquiry in the midst of the News of the World scandal in the UK and continued adverse coverage in News Limited publications locally.

The politicised circumstances of the inquiry’s birth fuelled a cry of ‘something must be done’ about the news media – for once and for all.

Criticism of the recommendations by the larger media groups on free expression grounds have been dismissed as a defence of their vested interests. It should surprise nobody that News Limited chief executive Kim Williams holds such a view, but such pigeon-holing of Finkelstein’s serious critics is a great shame. History is littered with examples of politicians withdrawing citizens’ rights to free expression because they did not like what they had been saying about them at a particular moment in history.

Scratch the surface
Scratch the surface of this proposal and you will find a harsh new regime which stands to damage Australia’s reputation as a democracy and might well come back to bite the politicians, academics and publishers who are supporting it today.

The key problems are with independence, enforcement and duplication.

The report details a process whereby the council would be funded by the government, yet kept at arms length from it via an ‘independent’ board headed by an appointed ‘independent’ chair.

Only the chronically naïve would believe true independence could be established and maintained through such an appointment process in a relatively small government-funded instrumentality. It would, after all, be the government selecting the initial appointments committee.

Even the appointment process to the High Court suffers criticism from time to time, and the independence of the Australian Broadcasting Corporation’s chair and board has been questioned in recent history by the same academics and politicians applauding this new ‘independent’ body.

Those very people argue that News Corporation editors do not need explicit directions from Rupert Murdoch  – that their very appointment implies they will toe the line. That may well be the case, so why would it be different here?

Although this statutory body will not have the power to fine or jail journalists, its appeal lies in its ‘regulatory teeth’, powers that the Australian Press Council has lacked and the Australian Communication and Media Authority has been loathe to use.

Face value
At face value, the News Media Council would only have the power to “require a news media outlet to publish an apology, correction or retraction, or afford a person a right to reply”.

However, what if a news blogger or publisher should disagree with such a direction so strongly that they refused to comply with such an order?

Well, then they would be cited for contempt and tried in a court which would have the power to fine or jail them. Several Australian journalists have suffered that fate in recent years. Such a court would be charged with the relatively straightforward task of determining whether the publisher has disobeyed an order of the statutory council.

Only then might publishers get the opportunity for an appeal – again by a judge in court:

11.78   In order to preserve the ability of the News Media Council to act swiftly, there should be no internal appeal from, or internal merits review of, a determination. Nor should there be external merits review via the Administrative Appeals Tribunal.

11.79   It would, however, be neither desirable nor possible to preclude all judicial supervision of determinations. In any event, because enforcement may need to be by way of court order, judicial supervision would be built into the process. In the course of enforcement proceedings a collateral challenge to a determination may be available and this would provide a sufficient mechanism for judicial supervision.

And who can guess what such appeals might cost your impoverished blogger or start-up publisher in legal fees – pitted against publicly funded prosecutors and their team of silks? So much for a quick and cheap dispute resolution process.

Slippery slope
It’s a slippery slope – all rosy for its supporters who can only see themselves calling to account the multinational News Corporation and its anti-Left line.

But they might consider how this might operate under a change of government, perhaps under a Howard-like government with individuals sitting on the council like those appointed to the ‘independent’ ABC board during that period?

And what if such a council orders a leading environmental news site or magazine to publish an apology to a mining magnate for the ethical breach of publishing a ‘biased’ and inaccurate report about the company’s waste disposal practices, based on sensitive material from confidential sources? Where would the power and resources rest in a court appeals process in that situation?

To publish such an apology or retraction would be an affront to the blogger, and in their principled belief it would be a lie to do so.

Yet, they would face a hefty fine or jail – or risk losing their home in an expensive court appeal process – if they chose to stand their ground.

This proposal effectively converts the MEAA Code of Ethics and the scores of in-house and industry codes of practice into laws – enforceable, ultimately, in the courts.

I suggested in my personal submission (PDF) to the inquiry and in my appearance at its Melbourne hearings that Australia already has enough of those laws. Hundreds of them. I suggested alternative mechanisms using existing laws. I argued that we did not need more media laws and more expensive legal actions and that a government-funded statutory regulator would send the wrong message to the international community. It is the approach adopted by the world’s most repressive regimes.

Duplication issue
Which brings us to the matter of duplication. I have seen few serious ethical breaches that could not be handled by existing laws like defamation, contempt, consumer law, confidentiality, injurious falsehood, trespass and discrimination. There are existing mechanisms to pursue them properly through established legal processes.

All of the serious examples cited at 11.11 of the report could have been addressed using other laws such as defamation, ACMA remedies or breach of confidence (or the proposed privacy tort). But the new regulator would do away with all the normal trappings of natural justice, dealing speedily with matters on the papers only without legal representation a media defendant would expect in a court of law.

Small publishers and bloggers might well be bullied into corrections or apologies because they would not have the time, energy or resources to counter a contempt charge in the courts.

This proposal (bizarrely titled “enforced self-regulation” at 11.33) risks duplicating the offences via ethical code breaches, with a big stick of a contempt charge hanging over a media offender who might well have been able to defend an action taken through the traditional channels.

The cost of this inquiry and its $2 million proposed annual funding would be much better spent on media literacy campaigns for the community, law and ethics training programs for journalists and bloggers, and the establishment of a one-stop referral service within the ACMA so complainants can get help in making their complaints through existing channels.

The budget would probably even cover a means-tested advocacy service to help poorer complainants pursue the most serious breaches of existing laws through the courts.

Australia is rare among Western democracies in that we do not have free expression or media freedom enshrined in our Constitution or in a Bill of Rights. Other countries like Britain and New Zealand proposing similar regulating mechanisms have free expression as an explicit right informing their jurisprudence.

No rush
The High Court demonstrated this week (PDF) that it is in no rush to progress its so-called “freedom to communicate on matters of politics and government”.

While rejecting the notion of licensing news media, the proposal quite rightly points out the problems in deciding the ‘news media’ that will be policed – in itself a defacto system of licensing journalists. It admits it could have no jurisdiction over foreign news outlets, which means the paparazzi and hundreds of offensive bloggers need only operate under an offshore enterprise.

Supporters of this News Media Council proposal should look again at the scenarios that could play out under a tough new regime of media regulation duplicating the court system. They might well heed that lyric from Australian songwriter Paul Kelly: “Be careful what you pray for. You might just get it.”

Mark Pearson is professor of journalism at Bond University and Australian correspondent for Reporters Without Borders. His views here do not purport to represent those of either of those organisations.

© Mark Pearson 2012. Republished with the author's permission from his blog journlaw.

Author's disclaimer: "While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks."