Why the News of the World Fiasco and the Australian Convergence Review are not 17,000 kms apart.

Whilst the media world is currently undergoing a tumultuous period and change is at a swift pace, this blog proceeds more leisurely.  The mind is willing, but time is limited.  Anyway, here are some thoughts on the current media upheavals. 

The last twelve months have been a disconcerting time for the media.  Wikileaks challenged the traditional news gathering role of media, whilst the phone hacking scandal in the UK has called into question the role of the media and the way in which it carries out that role in a democratic society. 

Uneasy relationships and freeing the shackles

Watching the politicians in the UK (and the parliamentary proceedings) respond to the phone hacking scandal over the past week or so has been rather like watching a group of long-oppressed people being set free.  The silent suffering at the hands of their master have finally given way to a flood of pent-up feelings of rage and frustration, and a determination never to let themselves be again subject to such oppression.  Equally, during this time, politicians have been facing up to their own willingness to cosy up to the media and media moguls, and recognising the risks that may entail for their public functions.  However, these questionable relationships between media and politicians are not new, nor are they confined to the UK.  Australia too has had its share. 

Conflicts of interest or the appearance of conflicts are not confined to the relationships between politicians and media, but they expose a particular risk in the media sphere because of the role media plays in relation to public life and the promotion of public debate: 

“There is an intimate relationship between democratic debate and the media.   Governments, politicians, and public figures are rarely able to gain access to citizens in sufficiently large numbers except through the media.  The media have become the town square.  For citizens, the media area a major source for information and commentary on public issues.” [Hitchens, Broadcasting Pluralism and Diversity (2006), 31-2]  

It is this somewhat symbiotic relationship, but, especially, the dependency of the political sphere on the media, which has the potential to compromise the proper development of media policy and regulation.  Media regulation exercises are inevitably vexed activities.  And in a sense they should be.  We need to be cautious and to be on the alert for any inappropriate attempts to muzzle media freedom of expression:

 “To be an effective contributor to this democratic process, the media, as a channel for ideas and information and generator of debate, must be able to offer a variety of voices and views, and operate independently, without undue dominance by public or private power.” [Hitchens, Broadcasting Pluralism and Diversity (2006), 32]

At the same time, however, we should be on the alert for regulatory proposals that seem to lack rigour, or fall short of fulfilling policy goals, or favour certain media players.  The potential risks of this sensitive relationship and the importance of media’s role in public debate mean it is crucial that we have a coherent and clearly articulated normative understanding of the role of media and of media regulation.  Only with that clear normative framework can we have a standard by which to assess policy and regulatory proposals and evaluate whether such proposals are designed to ensure that the media is better able to fulfil its role within the public sphere, rather than to accommodate the partners to an uneasy relationship.  The UK Government has established an inquiry into the phone hacking matter.  Whether this will provide an opportunity to engage with that normative basis has yet to be seen.  It is unfortunate that the Australian Convergence Review with its potential for a comprehensive review of media policy and regulation doesn’t seem to be taking the opportunity.

Print media and the Convergence Review

At a time when those interested in media policy and regulation are much focused on the impact of convergence, it has been interesting to see that it is the old media, not the new, which has occasioned this most recent scandal.  The phone hacking scandal is all about the media practices of the old media, indeed the oldest of the old media: the press.  As such it might be thought that the current Australian Convergence Review does not have much relevance here with its focus on convergence and the electronic media, and references to the Broadcasting Services Act 1992 and the Telecommunications Act 1997, but it is the very fact of convergence which is dissolving those clear bright lines by which we could distinguish between the media.  Pre-convergence, it was relatively simple.  The (mass) media was understood as encompassing the press, radio and television. Although technically quite different, they nevertheless operated in similar and discrete ways.  Content was generally distributed across the one delivery platform.  The form of the content was predictable also: newspapers delivered text; radio, voice; and, television delivered voice and visual content.  Content was generally not shared between the media.  But this position has changed dramatically, and almost all of the characteristics of mass media just described can no longer be relied upon as a defining feature.  Newspapers now deliver not just text but voice and visual content, whilst broadcasting operations, via their online outlets, deliver increasing amounts of text.  Unless the Convergence Review is able to embrace this new reality there is a risk that new policy and regulatory choices will be made which may become increasingly artificial and difficult to apply. 

This is not to suggest that the media in Australia are tainted by the phone hacking practices which have occurred in the UK, but as the Convergence Review considers practices of media in Australia, there is no reason why in the converged media environment artificial policy distinctions should continue to be made.

In the midst of calls for inquiries, have we forgotten one?

And the News of the World phone hacking scandal has generated comment and concern about the media in Australia with calls for inquiries.  The Australian Government plans to commence a consultation on introducing a statutory right to privacy and it seems that the Government may be contemplating a more general media inquiry, although it is unclear what this would cover.  It has been a curious feature of these recent calls for an inquiry that there has been scant mention of the Convergence Review.  It seems strange that, whilst the nation is in the midst of a lengthy and comprehensive review, the Convergence Review is not considered an obvious focus to embrace the concerns about the role of the media and its ethical practices. 

But perhaps this is not so surprising, because, despite the Convergence Review’s enthusiastic use of social media to create awareness of the Review and encourage participation, there has been remarkably little mainstream media coverage of the Review.  There has been some but this has mostly been around brief reporting of industry submissions to the various consultations.  Absent has been any wide-ranging coverage on the debate that might inform and engage the nation about the Review, what it is doing, and why it matters to the nation and its citizens.  Perhaps it is naïve to expect the media to facilitate such a debate – it might require some degree of self-reflection.  Then again, maybe the failure of the media to see that it has a role to play here is what we should be inquiring into. 

Meanwhile, the Convergence Review soldiers on.  It has recently released an Emerging Issues Paper after the second of its consultations. Despite my poor blogging record, I have been making some small forays into the consultations: first, during the Terms of Reference Consultation, and, subsequently, the Framing Paper Consultation.  Submissions on the Emerging Issues Paper can be made until 28 October.  So join the debate!

PS

The UK media scandal has also generated discussion of the long established principle, ‘fit and proper person’ both in the UK and, here, also in Australia.  The test is still used in the UK Communications Act 2003, but, in Australia, was replaced by a more narrowly defined ‘suitability’ test with the introduction of the Broadcasting Services Act 1992.  A very long time ago, I wrote an article on the test of ‘fit and proper person’.   I dug it up this week and was amused to read that I had written (in 1995): “It is not a power which is of abstract relevance as the satellite merger showed.”  The satellite merger was a reference to a merger of British Satellite Broadcasting and News International plc’s Sky Television.  It was to become BSkyB.  Plus ça change…?  The article is long out of date, but in case you are interested, here is a link.  

A brief visit to India provides an opportunity to reflect on media regulatory design in Australia

In December 2010, I was fortunate to participate in a workshop, Comparative Perspectives on Media Regulation and Society, held in New Delhi, India. The Workshop was organised by the Programme in Comparative Media Law and Policy, University of Oxford in collaboration with National University of Juridical Science, Kolkata, National Law University, Delhi, and Annenberg School for Communication, University of Pennsylvania, with support from Star TV. The two-day workshop brought together academics and representatives from industry, government, and public interest groups to explore self-regulation in the broadcasting sector (a topic of considerable interest in the Indian media sector), and the experience of industry regulation (and of course there is a variety of descriptive terms - self-regulation and co-regulation - and spectrum of models) in other countries. For background to the workshop and some useful resources on Indian media regulation, go to the Programme in Comparative Media Law and Policy’s site, and for a brief report on the workshop, see Indiantelevision.com.

At the workshop I talked about the experience of co-regulation in the Australian broadcasting sector, and I thought it might be useful to post a brief note of my presentation here. With the Australian Convergence Review set to be established in 2011, there will hopefully be an opportunity to revisit the design of our current co-regulation model. What follows is an approximate version of my presentation at the workshop. It does not include any references or citations.

The Experience of Co-Regulation in Australian Broadcasting

Introduction
The Broadcasting Services Act 1992 (BSA) marked a move from a regulatory design which focused on a highly centralised statutory regulator to one which placed greater reliance on industry regulation, and sought to encourage industry to exercise greater responsibility for its own practices. Essentially the model established by the BSA was a co-regulatory model which comprised an industry regulator – now known as the Australian Communications and Media Authority (ACMA) – which would have responsibility for reviewing industry codes of practice and enforcement, whilst industry representative groups would take responsibility for the development of industry codes of practice.

The broadcasting co-regulation model was informed by a number of regulatory principles which were set out in the BSA statement of regulatory policy (see section 4). Of particular relevance:

• That services should be regulated according to the degree of influence the different services are able to exert in shaping community views in Australia; and
• Services should be regulated in a manner which enables public interest considerations to be addressed, but does not impose unnecessary financial and administrative burdens on service providers.

I suggested that in order to build an effective industry regulation model – one in which, having regard to the regulatory principles just mentioned, both industry and the public can have confidence that there were three key aspects to address: Code-setting (or rule-making); Monitoring; and, Enforcement. [A discussion paper on the optimal conditions for self- and co-regulatory arrangments was published by the ACMA in June 2010. See also a report by the Hans Bredow Institute for Media Research on Regulated Self-Regulation.]

In my view, there are some weaknesses in the design of the Australian broadcasting co-regulation model and these can be understood if we look at these three key areas.

Code-Setting
Some aspects of content regulation remain the direct responsibility of the ACMA and obligations are imposed via the BSA and/or through licence conditions or program standards. However, most content-related regulation is left to industry to develop through codes of practice, and there are different codes for different sectors of broadcasting services. For example, commercial television broadcasting services will have one code of practice whilst the commercial radio broadcasting services will have their own code. The matters to be included in a code of practice are set out in section 123, BSA.

Under the co-regulation model, the codes are to be developed by industry groups representing the different categories of broadcasting services, in consultation with the ACMA. The ACMA must register a code if it is satisfied that the code provides appropriate community safeguards; is endorsed by a majority of the broadcasting service providers in that section of the industry; and, members of the public have been given an adequate opportunity to comment on the draft code.

In principle, there is nothing intrinsically problematic with this process. However, it does rely on the willingness of the regulator to be active in the consultation process, especially, where, as in Australia, there has not been a strong tradition of public engagement in such matters. The codes cover some important areas for content regulation, such as promotion of fairness and accuracy in news and current affairs coverage, and so the detail of the codes is crucial if they are to provide sufficient public interest protection. The Cash for Comment matter showed how important it was for the codes to provide adequate safeguards.

Monitoring
Monitoring or supervision of compliance with the codes is largely complaint-driven. In other words, there is no systematic monitoring of industry compliance by the ACMA or by industry representative bodies. Although there is scope under the BSA for the ACMA to undertake an investigation, this power is not often exercised.

Hence, in general, the supervision of code compliance relies upon complaints being made. It is this aspect of the process which I suggested exposes some of the main weaknesses in the design of the broadcasting co-regulation model. If self-regulation is to generate confidence in its processes, and to be effective it will be important that the process is independent and transparent. However, it is a curious feature of the broadcasting model that complaints about potential breaches of a code are decided by the very person who may have breached the code. For example, if a commercial television viewer considers that there may have been a breach of the Commercial Television Industry Code of Practice by a licensee, then the complaint must be made to the licensee, and it is the licensee who deals with the complaint. The industry representative body which was responsible for the development of the code – in the case of commercial television, Free TV Australia – has no role in adjudicating complaints. The complainant receives a response from the licensee and, if not satisfied with the response (or no response is received within 60 days of the complaint), can refer the matter to the ACMA.

So clearly there is little independence in the process. This weakness is exacerbated by the lack of transparency, because no information is provided to the public about the internal complaint-handing process. Who, for example, deals with the complaint? There appears to be no internal independent process, such as an internal ombudsman, or if there is, information is not provided about it to the public. Other transparency concerns about the process can be identified. The outcome of complaints –when dealt with by the licensee – is not made public. Thus, unless it should happen that a complaint is referred to the ACMA, in the circumstances referred to, there is no assurance that the complaint has been dealt with appropriately under the relevant code. Although the complainant may be satisfied with the response received from the broadcaster, this may not address the question of whether or not the code has been breached. Finally, little is done to review the management of complaints by a broadcaster or industry sector. Although statistics are provided to the ACMA by the industry representative body about complaints received, little detail is provided about individual matters, as can be seen in this example from Free TV Australia.

A final concern about lack of transparency in the process links also to the next stage of the process – enforcement. The general lack of transparency about how complaints are dealt with at industry level also means that no information is publicly provided at the time about any internal remedial action or sanctioning which might be taken if a code breach is found. Free TV Australia provides some information in its annual report to the ACMA about action taken by broadcasters in relation to code breaches. All industry representative groups are required under their code to report to the ACMA (either annually or upon request) information about the complaints made to broadcasters and the handling of those complaints, but not all industry groups seem to make this information publicly available, or at least easily accessible.

Enforcement
Under the co-regulation model, the ACMA is able to provide statutory enforcement of the codes. However, this aspect has been recognised as a weakness of the Australian broadcasting regulation model. First, the ACMA is only likely to be involved if a complaint is referred to it, in the circumstances described, or if it has initiated an investigation.

Secondly, under the BSA, and, perhaps, curiously, compliance with an industry code of practice is not a condition of a broadcasting licence. A code breach does not constitute a breach of the BSA. This has meant that the regulatory powers of the ACMA have been limited when dealing with code breaches. Until 2007, the only enforcement action available to the ACMA was to impose a licence condition requiring compliance with the code and/or a condition relevant to the nature of the breach. Where the ACMA determined that there had been an industry failure (rather than an individual licensee failure), it could impose an industry-wide standard (compliance with which is a licence obligation). Both of these sanctions were used in the Commercial Radio Inquiry, which also commented upon the limits of the regulator’s enforcement powers. Since 2007, the ACMA has had increased enforcement powers and in relation to code breaches can now accept also enforceable undertakings from a licensee.

Finally

Whilst, co-regulation is well-entrenched in the Australian broadcasting regulatory environment, there are weaknesses in the design. It is especially within the monitoring stage, that these weaknesses come to the fore and the lack of independence and transparency in this stage of the process must give rise to concerns about industry’s commitment to ensuring a rigorous regulatory process.

For it is clear that beyond the actual design elements, an effective co-regulatory process will be dependent upon the commitment its participants have to acting responsibly. This was emphasised in the Commercial Radio Inquiry’s Final Report, when the Australian Broadcasting Authority (the predecessor of the ACMA) commented that:

[Co-regulation] recognises that ethical behaviour is behaviour which should be undertaken for its own sake, for the sake of principles which underpin it (in this case the expectations a community rightfully places on holders of major public assets), although it also provides a regulatory safety net.

In short, it is an essential part of such an approach that those promulgating and seeking to rely on self regulatory codes (as a defence from formal government intervention) are bound to ensure that the codes are living, working and workable guides to behaviour and conduct in the industry. The removal of the requirement for licence renewal hearings and the entrusting of significant self-regulatory responsibility to industry, indicates that a very high standard of compliance is expected of industry in fulfilment of its self-regulatory responsibilities.

There are lessons to be learned from the Australian experience of co-regulation in the media sector. For those of us in Australia, it will be interesting to see what scope the Convergence Review offers for rethinking regulatory design in the converged media environment.

My brief visit allowed only a few hours to explore New Delhi:

Dilli Haat, New Delhi



Auto-rickshaw, New Delhi




Lal Qila, New Delhi