The Australian government’s mishandling of legislation related to press standards has left media reform in a mess … Richard Ackland reflects on what went wrong and why the threatened loss of the media exemption under the Privacy Act was a joke.
The manner in which Communications Minister Stephen Conroy introduced his “media reform” legislation last month was so peremptory that it suggests he was teasing us, that he had no real commitment to the key elements of his legislation.
Maybe he was throwing a bone to the media reform diehards in caucus. Maybe, it was a genuflection to the hard work of the Finkelstein and Convergence Review people, knowing full well his legislative tribute would be stillborn.
Whatever. It was quickly apparent that the cross-benchers and even the Greens were unhappy at being told the government will not “barter” and that if the Bills are not passed in a little over a week, then that’s it – the legislation is dead.
As it happened the two least contentious measures did pass – the Convergence Bill (revising the ABC and SBS charters specifically to include digital media services, Australian content transmission quotas and no fourth commercial TV licence) and the Television Licence Fees Amendment Bill.
The legislation relating to press standards had a quick death, which is a shame because it is likely to be another generation before a parliament gets within coo-ee of looking at the topic again.
Here is how the scheme under the News Media (Self Regulation) Bill would have worked:
The Public Interest Media Advocate would have the power to declare organisations, such as the Australian Press Council, to be “news media self-regulation” bodies.
The appropriate eligibility requirements for a news media self-regulation body included: independence from the news media and government; timely complaints handling procedures; standards that dealt with privacy, fairness, accuracy and “other matters”; and the extent to which those standards “reflect community standards”.
A self-regulatory news media body would also have the authority to order the publication to publish apologies and corrections – known as “remedial directions”.
A news media self-regulation body could only expel or suspend a media organisation if that member failed to pay its fees or breached a remedial direction.
The stick to keep everyone in line was the loss of the media exemption under s.7A of the Privacy Act in the event that a publisher was suspended or expelled from the scheme.
The PIMA could not issue remedial directions or make orders directly affecting what was published in a newspaper on by online news media.
Further, decisions of the PIMA would have been subject to judicial review.
Senator Conroy’s scheme envisaged more than one independent self-regulatory body – possibly a series of competitive regulators.
Probably he was inspired by graffiti on a toilet wall at the London School of Economics: “How Come there is only One Monopolies Commission?”
Effectively, this meant that small newspapers, bloggers, and small to medium news and commentary web sites could not be punished by the media self-regulators.
Without a sanction there was no requirement for these publishers to sign onto any recognised self-regulatory standards scheme.
Radio and TV broadcasters were also exempt, staying under the protective wing of ACMA.
But, would the proposed sanction for larger media companies of losing their exempt status under the Privacy Act have been a sufficiently scary stick to poke at misbehaving news vandals?
A closer look reveals that it may well be within the resources of large press publishers to snort with derision at this sanction.
According to the most recent annual report of the Office of the Australian Information Commissioner, there were no compensation payments for breaches of the Privacy Act over Aus$10,000 in 2011-2012 where the commissioner had conducted a preliminary inquiry and one in that year for more than Aus$10,000 as a result of conciliation after an investigation.
A determination by the AIC in 2011 involving the release of information by the Wentworthville Leagues Club about the gambling habits of a member resulted in an order for a payment of Aus$7,500 and an apology.
In that case the complaint was made in October 2008 and the final hearing took place three years later.
In December 2012, the commissioner determined that a payment of Aus$2,000 and an apology be made in a case involving release of credit information. The complaint was lodged in April 2009.
Hardly, the sort of penalties and speedy outcomes that would rock the socks off a badly behaved mainstream metropolitan newspaper group.
By contrast, the all-party agreement in Britain for a Royal Charter to enforce decent standards of journalism allows for the award of exemplary damages in libel cases for rogue newspapers that fail to be part of the scheme.
That is a penalty on top of general damages upwards of £25,000.
The Human Rights Act could be one avenue of appeal from this imposition, which is an irony in itself as the Red Tops have led the charge against the intrusion of the European Convention on Human Rights’ into British law.
Loss of the Privacy Act exemption was an idea from the Australian Press Council – so maybe there’s no big surprise that it’s a bit toothless.
The cacophony from press groups that accompanied Conroy’s proposal was distractingly over-wrought.
This was an end to freedom of the press and therefore democracy itself was under threat from “Gillard’s henchman”.
News Ltd CEO Kim Williams was dismayed that the legislation had not been introduced in a “sober, disciplined way” while his Daily Telegraph showed what sober and disciplined meant by photo-shopping Conroy as Joseph Stalin.
Williams (pic) seemed confused, to say the least, about the basic concepts, muddling the shield law amendments under the Evidence Act with the Privacy Act.
On March 13, he said after giving evidence to a Senate committee in Canberra that removal of the Privacy Act exemption was:
“A travesty of the most heinous kind. To be discussing the elimination of one of the great protections of journalism in Australia which is the security of the shield laws under the Privacy Act is action of an extremist nature that goes to the very heart of the operation of free speech in our society.”
What did concern other commentators was the requirement in the News Media (Self Regulation) Bill to reflect “community standards” in the journalists’ codes of conduct.
What might be a “community standard” in this context is a little loose at the edges.
Some of the journalistic practices that would offend “community standards” would be things such as underhand news gathering techniques, inadequate disclosure of conflicts including, as Mark Latham pointed out in the Financial Review, News Ltd’s failure to disclose the political staff jobs and pre-selection candidature of people now plying their trade as “journalists” in the press gallery.
The difficulty with applying “community standards” to a code of journalists’ conduct is that it could also exacerbate the ceaseless flow of spurious complaints about discrimination and bias that usually have nothing to do with journalists’ standards, but nonetheless keep newspaper executives and lawyers extremely busy.
An enforceable and serious code of conduct for newspapers and their staff can’t really do much about poor quality journalism, repetitive journalism or boring journalism.
The best it can do is handle dishonest journalism, a lot of which sails on, under the nose of the Press Council.
To claim that ordering corrections and apologies by a news media self-regulator is incompatible with a free press is a piece of journalistic hyperbole.
*Richard Ackland is the publisher of Law Press of Australia and editor of the online law journal Justinian. He writes a regular legal affairs/media column for The Sydney Morning Herald.
This post originally appeared in the Gazette of Law and Journalism– Australia’s leading online media law journal.