w w w . b r e n t o n p r i e s t l e y . c o m

The Australian Media: Regulation, Self-Regulation, the Public Interest and Free Speech (2004)
Brenton Priestley

Consider the self-regulation of the media and whether it is provides sufficient protection of public interest. Should there be a formal code enshrined in law or is the current combined approach sufficient? Indeed, is there any need to regulate the media at all?

Until recently, all radio and television programs were delivered via the radiofrequency spectrum, which is regarded as a national resource belonging to the community at large. Owing to the fact that the number of frequencies available for broadcasting is limited, and that communication through this medium is not inherently available to all, the government assumed responsibility for ensuring that spectrum was allocated in a fair and systematic manner in the interests of the public.[2]

Likewise, Turner and Cunningham argue that

... the holders of radio and television licences... bear responsibilities on behalf of the rest of the community. Since the licensees operate what is a very limited resource, and since this means that no one else can do so at the same time, they are trading in a highly protected commercial environment. In return for what amounts to a guaranteed limit on their competition, they are required to meet certain minimum obligations.[3]

An even more fundamental justification for the regulation of the media on public interest grounds is based on the profound influence that the media has on society. TV stations and newspapers may be operating in a commercial environment, but they nonetheless exercise an authority and responsibility in shaping public opinion and consciousness that is far beyond the scope of many commercial enterprises. Turner and Cunningham describe the media as being

‘consciousness industries’ because what they sell are ways of thinking, ways of seeing, ways of talking about the world. For instance, we learn about world politics from our newspapers, radio news broadcasts and TV; while we may be aware that the views we receive are necessarily brief and partial, they play an important part in our conception of the world.[4]

Hitchens echoes these observations:

The public interest is in ensuring that the public has adequate access to news and current affairs programming. Regulation of broadcasting, and particularly this type of programming, is recognition that media, particularly broadcasting, has become an important and essential source of information for the community, enabling its citizens to be informed about the world and to exercise their responsibilities within a democracy.[5]

Clearly, then, there is a significant amount of public interest tied up with the media. In order to examine whether the current regulatory frameworks for various media adequately protect this interest, it will be necessary to consider the frameworks themselves.

BROADCASTING MEDIA

Commonwealth Parliament is empowered to make laws concerning ‘postal, telegraphic, telephonic and other like services’ under s 51(v) of the Commonwealth Constitution. Under the Broadcasting Services Act[6] (BSA), a broadcasting service is defined as

a service that delivers television programs or radio programs to persons having equipment appropriate for receiving that service, whether the delivery uses the radiofrequency spectrum, cable, optical fibre, satellite or any other means or a combination of those means.[7]

Hitchens writes: ‘Because of their wide availability and ease of accessibility, broadcasting services are perceived to be the most influential and, hence, are subject to the highest degree of regulation.’[8] The BSA recognises the substantial degree of influence of television and radio media, and uses this as the primary justification for their regulation.[9] The BSA is the primary form of regulatory legislation for the broadcasting industry. Two other important Acts include the Australian Broadcasting Corporation Act[10] and the Special Broadcasting Service Act[11], both of which establish and regulate the Australian Broadcasting Corporation and the Special Broadcasting Service.

The Australian Broadcasting Authority (ABA), established by the BSA[12], acts as an administrator and enforcer of the Act, which includes the granting of broadcasting licenses. However, the BSA and the ABA do not act as a form of centralised government regulation of the broadcasting industry, but rather a framework by which media are expected to establish their own codes of conduct, and the government provides the legislative means for enforcement. A Productivity Commission inquiry into broadcasting, the BSA and the ABA found that the code of practice system ‘was more indicative of a self-regulatory scheme.’ [13]

Australia has been described by Higgs as being a ‘pioneer of the industry self regulation approach.’[14] The way in which the co/self-regulatory regime is designed to work under the BSA is as follows:

Under its provisions, professional associations are expected to develop codes of conduct in consultation with industry organisations, the public and government. When the codes have been finalised they are lodged with the Australian Broadcasting Authority and are binding on industry members. Complaints about media content are heard by the relevant industry association and only if a resolution cannot be reached is the matter referred to the Australian Broadcasting Authority.[15]

The codes of conduct developed by the industry groups must be cognisant of twelve matters outlined by the BSA in s 261. These matters concern:

-Regulating the broadcast of material which may be unsuitable for adults of children, including material which simulates news or events in a misleading or alarming way,

-The classification of programs that reflects community standards,

-the promotion of accuracy and fairness in news and current affairs programs,

-The amount of broadcasting time devoted to advertising,

-The broadcasting of Australian music on radio,

-The handling of public complaints about program content, compliance with codes of practice and reporting to the ABA

-Program captioning for the hearing impaired.

The primary commercial television code of practice is the Federation of Australian Commercial Television Stations (FACTS) Code, and radio code is the Federation of Australian Radio Broadcasters (FARB) Code, both of which address many of the matters outlined in the BSA.

According to the ABA,

Once an industry code of practice has been developed, it is presented to the ABA for registration. In assessing a code of practice for registration the ABA considers three mandatory criteria. The ABA must register a code of practice if it is satisfied that:

-the code of practice provides appropriate community safeguards for the matters covered by the code;

-the code has been endorsed by a majority of the providers of broadcasting services in that section of the industry; and

-members of the public have been given an adequate opportunity to comment on the code.[16]

Therefore, the ABA ultimately retains a certain amount of authority in approving broadcasting licenses, approving and registering codes of practice and in extreme cases of code of practice breach, suspending or cancelling licenses. However, the regime clearly emphasises self-regulation.

PRINT MEDIA

How is the print media regulated? While the government has the constitutional authority to regulate broadcasting media, it wields a lesser degree of power over the print media on a constitutional basis – specifically through the international and interstate trade and corporate affairs powers. The print media are also liable under general laws covering intellectual property, defamation and contempt. For the purposes of this discussion, the various state Acts that deal with registration of printers and imprints on publications[17] - essentially vestiges of laws ‘... passed to help repress dissent in England around the time of the French Revolution’[18] are only relevant in that they illustrate the extent to which the print media are left unregulated by the government. However, according to Armstrong, over the last couple of decades, the trend has been towards a greater degree of self-regulation:

More attention was given to the Journalist’s Code of Ethics of the Media, Entertainment and Arts Alliance. The code affects virtually all journalists, as members of that union. But its impact is greatest in print media, where there are no official codes and standards of the kind operating in electronic media... The Australian Press Council also became more active in dealing with complaints against newspapers. Some newspaper groups endorsed principles of professional independence and practice... In addition to those voluntary or private forms of regulation, newspapers were in 1987 for the first time caught up in cross-media ownership laws.[19]

He concludes:

Thus, although there are almost no laws directed at the print media, the reality is that the press operates within a web of regulatory and legal restraints.[20]

Since, as a private body, it has no legal power whatsoever, The Australian Press Council perhaps epitomises media self-regulation. Founded in 1976, and funded by the majority of major Australian newspaper and magazine publishers, the members of the Council include several newspaper representatives, journalists, editorial members, public representatives and an independent chairperson. The Council works firstly to maintain a standard of ethical and responsible behaviour amongst the press as well as the level of free speech that the press has enjoyed. It also functions as a dispute resolution and disciplinary body when standards are breached. These standards are outlined in the Council’s Statement of Principles which focusses on:

-The accurate, fair and balanced reporting of news,

-The making of apologies when harmfully inaccurate information is printed,

-The balance between an individual’s right to privacy and the legitimate publication of matters of public record or interest.

-Ethical journalistic practices,

-Consideration of community standards.[21]

The overriding principle which guides the Statement of Principles, like the BSA, is the public interest:

The freedom of the press is important more because of the obligation it entails towards the people than because of the rights it gives to the press. Freedom of the press carries with it an equivalent responsibility to the public. Liberty does not mean licence. Thus, in dealing with complaints, the Council will give first and dominant consideration to what it perceives to be in the public interest.[22]

The Council’s method of dealing with complaints resembles that of the ABA. Individuals are required to first contact the publication to inform them of their complaint. If the publication does not satisfactorily address and resolve the complaint, then it is referred to the council. The Council will then attempt to resolve the dispute – since it has no power to demand compensation, its only sanction is to request that the offending publication publishes adjudications or apologies.

It is also worth briefly considering the extent to which the Journalists’ Code of Ethics acts as a self-regulatory body for the media. As Armstrong pointed out, the majority of working journalists are members of the Media, Entertainment and Arts Alliance (MEAA), and are thus required to hold to the Code, which is composed of standards relating to, above all, fairness and accuracy in reporting. Penalties for breach include warnings, fines, suspension or expulsion from the MEAA. Butler and Rodrick however criticise the Code of Ethics because

it does not bind the persons who are most vital to its effectiveness, namely, media proprietors, editors and producers. These persons exercise real and ultimate power over what methods are used in journalism, how the results are published or broadcast, and how initial complaints are handled.[23]

INTERNET

The regulation of the internet is a new and particularly interesting area of media law, since the sheer size, accessibility and global nature of the internet seems nigh-uncontrollable. As a media outlet, the internet fundamentally differs from print media and especially broadcasting media in that the consumer has to actively seek out content as opposed to having it presented to them to passively consume.

The BSA has recently been amended in order to cover the internet, under Schedule 5, the first part of what Butler and Rodrick describe as the government’s threefold strategy for regulating online content:

The Schedule aims to restrict access to internet content that is likely to offend reasonable adults, protect children from internet content that is unsuitable for them and provide a means of addressing complaints about certain internet content. The regulation is imposed on internet service providers and internet content hosts.[24]

The second element of the scheme makes it an offence to use the internet for illegal means under State, Territory and Federal criminal laws, and the third element is a non-legislative education program aimed at the public, concerning internet content and management.

Under the BSA, the ABA is required to investigate complaints about prohibited content on the internet. Content is considered prohibited if it is classified RC or X by the Classification Board. If the ABA finds that the prohibited content is being hosted in Australia, then they can issue the content host a take-down notice to remove the content.

Like industry bodies in the broadcasting and print media, the Internet Industry Association has established three codes that act as arbiters for internet self-regulation. The emphasis in these codes is on what Arasaratnam has described as ‘end user empowerment philosophy,’[25] the use of filtering software by the internet user, rather than service providers blocking the content. Ultimately, then, the responsibility for internet regulation at this stage lies in the consumer – the public protecting their own interest.

IS THERE ANY NEED TO REGULATE THE MEDIA?

So, then, are these co-regulatory regimes sufficient for protecting the public interest? Should there be more or less government regulation?

One argument against government regulation of the media places the public interest at its forefront; the emphasis is on the principle that an independent media will foster free speech which will be jeopardised by concentrating too much power over it in the hands of the government. Kitto, specifically in reference to the Australian Press Council, has argued that media self-regulation is vital:

[The APC] has striven to provide an effective alternative to the frequently advocated governmental authority for Press control. It has taken as self-evident truth, illustrated in many countries throughout the world, that control of the Press by any form of external authority paves the way for dictatorship, and that the only practicable defence against the agitation for control is self-regulation assisted by a system of supervision by a body formed from within the Press and operating, not by coercive effect of threatened punishment, but by the persuasive effect of constantly reiterated ethical principle.[26]

A popular school of economic thought has argued that the law is essentially a hindrance to big business, is largely ignored or circumvented, and that the most efficient and effective means of market regulation is self-regulation[27]. The argument follows that media organisations nowadays are extraordinarily lucrative businesses[28], facing enormous market pressures, and therefore should be able to respond to the market as they see fit without having to face government interference. The consumer, rather than the government, should have the power to choose what the media provides.

Calls have been made recently to further deregulate media ownership so that large media companies can further expand. It is argued that ‘restraints on cross-media ownership restrict investment, and that investment restricts the ability to develop quality, diversified media.’[29] As long ago as 1995, Flint argued:

The rules on cross media ownership and foreign investment offend a fundamental unwritten requirement of any democracy. One of the checks and balances on government is an independent media (print and electronic)... Governments are the last people who should determine who owns what in the media. This is equivalent to putting High Court judges on annual contracts. The temptation for abuse is too great.[30]

However, in response to proposed media deregulation, Cherry points out that

[i]t is important for policy makers, when they argue that Australia should follow the UK approach to deregulating media ownership, to recognise that while the UK is looking at deregulating ownership to some degree, this is backed by a far tighter set of conditions on the responsibilities of media owners.

He also notes that

most European countries, recognising the importance of media, have some specific rules enhanced in law to prevent the dominance of various players. These measures include numerical and percentage restrictions on monomania and media-media ownership, the establishment of expert media bodies to advise competition authorities on media ownership issues, measures to promote editorial and journalistic independent and the requirement to promote media pluralism as a pre-requisite to licensing.[31]

The dangers of the alliance between media and commerce were perhaps most potently illustrated in the Cash for Comment inquiry in 1999. The principle that genuine opinion and advertising should be clearly delineated from one another is a reminder of the importance of distinguishing the media from other markets because of the level of influence that they exert to ‘... maintain the information flows, public debate and cultural expression central to a functioning democracy.’[32] It is for this reason that while it’s debatable whether there should be more regulation, there certainly should not be less. Hitchens has argued that ‘[i]t is generally accepted that one of the rationales for broadcasting regulation is to compensate for the market failure caused by an advertising funded system.’[33] Media regulation within Australia is not so much about stifling free speech but truly protecting the public interest. It is worth considering at this stage the objects set out by the BSA in s 3, justifying media regulation. They focus on promoting diversity, efficiency, responsiveness to audience needs, quality programming, Australian content, fairness and accuracy in news, respect for community standards and the protection of children from harmful material. Turner and Cunningham write:

Most of these requirements have cultural or social-democratic objectives, springing from a set of understandings about the minimum acceptable service the media should provide to the Australian community. The objectives arise from different senses of the term ‘community’. Some are about the preservation of a national cultural identity (or identities) — even where this may entail some commercial cost. Others are concerned with the notion of community as a set of shared social and ethical values, or consider local communities as service areas that should receive adequate and comprehensive information and entertainment.[34]

It terms of Australian content regulations, Butler and Rodrick point out that

Aside from its contribution to Australian culture, the regulation of Australian content has economic by-products, as it supports the Australian creative industry and provides opportunities for Australian creative talent. Australia’s small population base means that there is a huge economic incentive to purchase cheap foreign programs, rather than produce Australian programs. Without local content requirements Australia’s production industry would almost certainly decline.[35]

Surprisingly, one of the most influential regulation watchdogs has not been the ABA, or FACTS or the Press Council, but rather the ABC program, Media Watch. Hitchens notes that

there is little evidence that the ABA has adopted a more pro-active monitoring approach. The current investigations into alleged breaches of the new radio standards and into Telstra’s commercial arrangements appear to have arisen as a result of Media Watch reports.[36]

The censure of an adverse Media Watch report appears to hold significant influence on journalists and the media, and although produced and broadcast by the ABC, the program is indiscriminate in who it targets. And that effective regulation of the media, by the media, via the media seems oddly appropriate. Henderson has commented:

Some time ago there was a kind of view that it was legitimate for the media to criticise the trade union movement, or business, or political parties - Labor or Liberal or whatever, but no-one really should criticise the media because the media shouldn't talk about itself. Now that theory has now been done away with and the media does criticise itself, and others from outside criticise the media, and sometimes they get a run in the media for their criticisms of the media. That in my view is the best way to improve standards.[37]

CONCLUSION

The ability of the media, overseen by legislation like the BSA and via the various industry codes, to monitor and regulate itself should be acknowledged. The co-regulatory schemes seem to have often been able to strike a healthy balance between free speech, commercial and public interests. While the system may not be perfect, as evidenced by Cash for Comment-type fiascos, people’s voices are heard, Australian content is promoted, advertising is monitored and the classification schemes are relatively tolerant (especially when compared to the puritanical standards of the FAA in the US). It seems unlikely that a more government-oriented regulatory system would maintain the level of flexibility and recognition of the working reality of the media that currently exists. However, attention should be paid to the increasingly intense influence of commercial pressures on the media industry, and kept in mind in the face of calls from the media for further loosening of regulation.

ENDNOTES

[1] Evan Ruth, Media Regulation in the United Kingdom (2004) Article 19 <http://www.article19.org/docimages/764.htm> at 8 November 2004.

[2] Des Butler and Sharon Rodrick, Australian Media Law (2^nd ed, 2004) 486.

[3] Graeme Turner and Stuart Cunningham, The Media and Communications in Australia Today (3^rd ed, 2003) 16.

[4] Ibid, at 10.

[5] Lesley Hitchens, ‘Commercial Broadcasting – Preserving the Public Interest,’ (2004) 32 Federal Law Review, 79 at 90.

[6] 1991 (Cth).

[7] s 6.

[8] Ibid, 81-2.

[9] BSA 1991 (Cth) s 4.

[10] 1983 (Cth).

[11] 1991 (Cth).

[12] s 154.

[1] Productivity Commission, Broadcasting, Report No. 11 (2000) 447 at 453. Quoted in Hitchens, above n 5 at 95.

[13] Bronwyn Higgs, Associations & Industry Regulation (2000) Victoria University <http://www.business.vu.edu.au/bho2250/regulation.htm> at 8 November 2004.

[14] Ibid.

[15] Television: Content Regulation Codes (2004) Australian Broadcasting Authority <http://www.aba.gov.au/tv/content/codes/index.htm> at 22 November 2004.

[16] Such as the Printing and Newspapers Act 1973 (NSW), etc.

[17] M. Armstrong, D. Lindsay and R. Watterson, Media Law in Australia (3^rd ed, 1995), 211.

[18] Ibid, at 207-8.

[19] Ibid, at 208.

[20] Statement of Principles (2004) Australian Press Council <http://www.presscouncil.org.au/pcsite/complaints/sop.html> at 18 October 2004.

[21] Ibid.

[22] Butler and Rodrick, above n. 2, at 574.

[23] Butler and Rodrick, above, n 2 at 555.

[24] Quoted in ibid, at 559.

[25] Sir Frank Kitto, quoted in Armstrong et al, above n. 18, at 208.

[26] See esp. James J. White, ‘Contract Law in Modern Commercial Transactions, an Artifact of Twentieth Century Business Life?’ (1982) 22 Washburn Law Journal 1.

[27] British media baron Lord Thompson described owning a television station as being like ‘a licence to print money.’ Quoted in Turner and Cunningham, above n. 3 at 13.

[28] John Cherry, ‘Media Regulation’ (Speech delivered to the Senate,

[29] Canberra, 5 March 2003) <http://www.crikey.com.au/media/2003/03/06-deregulation.html> at 18 October 2004.

[30] David Flint, Cross-Media Ownership: A Dangerous Dinosaur (1995) Australian Press Council <http://www.presscouncil.org.au/pcsite/apcnews/aug95/dinosaur.html> at 18 October 2004.

[31] Cherry, above n. 28.

[32] Turner and Cunningham, above n. 3, at 14.

[33] Hitchens, above n. 5, at 104.

[34] Turner and Cunningham, above n. 3, at 16.

[35] Butler and Rodrick, above n. 2, at 526.

[36] Hitchens, above n. 5, at 95.

[37] Gerard Henderson, interview on ABC Radio National, ‘Journalism and Self Regulation’, The Media Report, March 13 1997 <http://www.abc.net.au/rn/talks/8.30/mediarpt/mstories/mr970313.htm> at 18 October 2004.