gazetteAustralia’s attempt at media reform has gone nowhere fast … Media lawyer and author Patrick George looks at what happened, what is at stake and why a Media Ombudsman might be the answer

The campaign to shut down media reform in Australia has been very effective.

When the government announced the News Media (Self-Regulation) Bill, with the statutory Public Interest Media Advocate in March, it was met with a fairly predictable response from the media.

The managing director of Fairfax Media put the case:

“For the first time in Australian history outside of wartime, there will be political oversight over the conduct of journalism in this country.

The practical application of this legislation is that it sets up a model where a minister of the government can pick up the phone to his own appointee and say ‘Fix it – Fix it’, meaning ‘Get the media off our backs’.”

The Daily Telegraph went full throttle with an extraordinary front page, which some might have thought was on a war-time footing.

imageIt claimed that the communications minister had joined “despots” such as Stalin, Mao and Castro in seeking to control the press.

So effective was this, Rupert Murdoch has now proudly signed a copy of that front page for posterity.

There can be no doubt that politically the Media Advocate or PIMA proposal could have been better handled.

There was no public discussion about the position of Media Advocate before the minister’s announcement and the media could have been expected to react in the extreme way they did.

The proposal had emerged following more than twelve months deliberation by the minister after the inquiry conducted into media practices in Australia by former Federal Court judge Ray Finkelstein.

The Finkelstein Report made recommendations for reform, but the Media Advocate was not one of them.

He preferred a government funded “Media Council” which would have been responsible for setting media standards applicable to Australian media outlets and enforcing remedies for breaches including the publication of corrections.

That model had also been severely attacked by the media.

The group editor in chief of West Australian Newspapers claimed that the Finkelstein recommendations represented “the most outrageous assault on our democracy in the history of the media”.

The Australian published an article in which it said the Finkelstein Media Council would be the government telling a newspaper what to publish, the same as Hitler and Goebbels had done with the Reich Press Chamber.

In the meantime, the conduct of the media and in particular News International was the subject of serious criticism during the Leveson Inquiry and in the subsequent report.

Despite significant media opposition, the UK government has achieved consensus between the leading political parties as to a means to provide independent regulation of the press – by Royal Charter.

This proposes an independent self-regulating Media Council, membership of which would provide certain benefits to those who volunteered to join.

By comparison, the Media Advocate would have been empowered in Australia by legislation to declare those media bodies which independently regulated themselves with acceptable ethical standards, as entitled to certain benefits, in particular exemptions from the Privacy Act, but if they failed to introduce or administer such standards, those declarations would be revoked or not be made in the first place.

The recommendations made about regulation of the media in both countries have been vigorously opposed with the kind of hostile opinions expressed above because of the strongly held view that governments should not regulate or be seen to regulate the media.

Any such regulation would, it is argued, have the tendency to inhibit freedom of speech, which would be against the public interest.

Freedom of speech and indeed freedom of the press are freedoms that were hard won despite the opposition, often violent, of governments and monarchs through censorship and suppression, over centuries.

Government is the most powerful and dominant force in our society. It is understandable that the media, another powerful and dominant force, would find government control or government funded regulation unacceptable.

The media’s role as “guardians” of the public interest is often necessarily in conflict with the interests of government, particularly where the exercise of power is carried out behind closed doors hidden from public view.

Yet individuals can suffer immeasurable harm, embarrassment and victimisation where there is abuse of media power as clearly evident in the Leveson Inquiry and discussed in the Finkelstein Report.

If government is not an appropriate regulator of the media, given the lessons of history, who should “guard the guardians”?

In Australia, targets of media abuse tend not to make complaint to the Australian Press Council because of a perceived lack of impartiality arising from self-regulation and lack of meaningful remedies.

Complainants may elect to pursue their rights through the courts where the determination of their legal rights is carried out independently and remedies are enforceable.

The legal process is, however, very expensive and slow. Access to justice for ordinary people through the courts against media outlets tends to be a battle of attrition, pitted against the substantial financial resources of the media.

The courts are independent of government, however, separated by the powers recognised in the Constitution.

They administer the laws which impose restrictions on freedom of speech, provided they are “reasonably appropriate and adapted” to be constitutionally valid.

Amongst the reforms there has been no proposal to regulate social media, whether be it by government or otherwise.

Of course, the global nature of the internet makes it impossible to be regulated by any one country.

imageSocial media has provided the clearest exercise of freedom of speech. People feel free to say whatever they like, even in the most horrible of circumstances or with the most hateful of intentions.

Social media is seriously challenging the business models of traditional media and is gaining acceptance as a news source, as people appreciate the ease and speed with which they can access news instantly anywhere, anytime.

The ethical standards to which the traditional media may subscribe are not seemingly relevant to social media.

News can be released without checking facts or without regard for privacy or grief.

The question of who should regulate the media in Australia remains unresolved due to the conflicting views of the powerful interests involved and the rapidly changing nature of the media.

However, an alternative approach might accommodate the interests of media, government, law, and most importantly, the public.

The Commonwealth government has the power to establish a neutral and independent position, not a Media Advocate for the purpose of regulating the media as such, but for the purpose of reporting to parliament the abuses and excesses of those who use the media.

A “Media Ombudsman” would exercise the freedom of speech available through parliament to name and shame those who engage in such behaviour.

This would include not only those in the traditional media who breach ethical standards but also those who victimise and stigmatise others on social media and the internet without regard to any ethical standard.

The Media Ombudsman would be empowered to prepare a report outlining the complaints that were made and investigated and on which he/she formed an opinion as to whether the particular medium had been abused.

The report would then be tabled in parliament under the protection of absolute privilege and publicly debated.

In this model, the Media Ombudsman would have no power to remedy the matters of complaint, for example by requiring apologies or payment of compensation, or depriving the media of benefits or privileges they otherwise have.

The traditional media which subscribe to ethical standards would be left to regulate themselves as may be appropriate without government interference and the law would be left to determine the legal rights and remedies of those who bring proceedings in the courts at their own expense and risk.

The power of the Media Ombudsman would extend to include reports of abuses of social media and the individuals named and shamed in parliament.

The position might encourage self-restraint to those who publish in whatever form of media is used, not for the purpose of inhibiting free speech, but for the purpose of encouraging standards of truthfulness, accuracy and responsibility.

The position might also encourage the guardians not to turn on those they protect for their own commercial self-interest.

The Media Ombudsman’s report would enable the public to form their own opinions of the rights and wrongs of the conduct identified.

This cannot be a chilling of free speech, but the exercise of free speech itself.

*Patrick George is a partner at Kennedys and the author of Defamation Law in Australia (2011) published by LexisNexis.

This post originally appeared in the Gazette of Law and Journalism– Australia’s leading online media law journal.