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.