15 September 2011

The Dog that doesn't bark?

From Deborah Kirkman's 1996 history [PDF] of the Australian Press Council -
The second recommendation of the Senate inquiry in respect of the APC was one connected with the second main area of criticism of the Council: its complaints facility. Aggrieved readers of publications have three options open to them. First, they can initiate legal proceedings against the newspaper or magazine, an option that is realistically only viable for the rich or the very poor. Second, they can approach the publication and try and obtain a correction, clarification or opportunity to reply. Or, third, they can make a complaint to the APC. It is the latter option that people turn to when they rule out option one and fail in their attempt at option two.

The inquiry, like most observers of the Council, appeared to assume that the only outcome of the complaints procedure was an adjudication. Yet nearly twice as many complainants have their complaints mediated or are prepared to withdraw them after receiving the newspaper’s response than refer their complaints to the Council. The inquiry found that the APC should "be given power to impose and enforce sanctions on the print media. This should be done by legislation if necessary".

The Chair of the Committee, Senator Barney Cooney, explained that the sanctions may include fines and even suspending publication for a short time. Professor Flint immediately attacked the idea of a statutory authority:
It’s a draconian power. My immediate reaction is that I don’t think in a democratic society that any authority should be vested with the power. If the council can be given that power, who else may be given the same power? Giving us the power to impose fines would turn us into a court. It wouldn’t work. It would mean complainants and media organisations turning up with QCs and arguing for days over such fines, making Council’s work longer and more expensive.
Or, as Geoff Hussey put it, "a statutory authority is contradictory to the whole concept of freedom of the press. A statutory authority would leave the government which imposes the authority with the power to influence the freedom of the press".

It is difficult to disagree with this argument, especially when consideration is given to the way courts operate in Australia. Involvement in the court system means a great deal of money and long delays often resulting in anxiety. The original concept of the APC was for an alternative to the court system, one which was accessible to all.

This is a good place to put in a word about the role of the Press Council’s secretariat. As noted above, it is not commonly known that, as the first people to touch base with complainants, the secretariat’s aim is to try and mediate between publications and the public. Where possible, an amicable solution is found ... either by way of a letter to the editor being published, a follow-up article being printed, a clarification made etc. Other complaints are outside the Council’s remit, such as those regarding television or radio, and the remainder are either not followed up by the complainant or the file is closed once the publication has responded and the complainant is happy to let the complaint rest. It is only when mediation by the secretariat is unsuccessful or the newspaper fails to satisfy the complainant’s concern that a complaint is considered by the Council which issues an adjudication on the matter.

If the powers of the Council were increased to include the imposition of fines, what would be the scale of the fines, who would be the trustee of the money, would it be spent and, if so, by whom and on what? If the fines were to be in the form of compensation to a complainant, would not the APC be inundated with complainants who were after monetary compensation as opposed to the concept of upholding an ethical press? The idea behind the imposition of fines is to give teeth to the "toothless tiger". The problem with the idea is that a fully equipped tiger might bite off the hand that feeds it! Even in the most litigious country in the world - America - opponents of Press Councils with punitive powers are to be found. In their article 'Press Councils: the answer to our First Amendment Dilemma?', John Ritter and Matthew Leibowitz make the point that the power of a press council to publicise its decisions gives the "toothless" watchdog something which is noticed - a loud bark. It is from this loud bark that press councils derive their real power 'developing public awareness of problems in the free press-fair press area'. Even the customers of the APC are in two minds on the issue. While a majority of respondents to the APC’s survey of complainants strongly indicated that the APC should be able to impose a fine if the decision goes against the publication, 59% were not primarily concerned with monetary compensation.

APC detractors have pointed out that the Council does not even have the power to enforce publication of its adverse adjudications. The APC counters that, in the period 1988-1993, for example, an average 91% of adverse adjudications were published in the newspaper or magazine concerned, or not published by agreement. Of the remainder, the publications refused to publish or there were specific reasons for non-publication such as legal advice not to do so. The public, it is suspected, would have a higher regard for the APC if it had the ability to enforce publication of adverse adjudications. When this idea was suggested to Geoff Hussey, he was very firm in his antagonism to such a move. "To make publication mandatory", he argued, "would move it away from being a self-regulatory body. It would necessitate government regulation, a statutory authority, one that is able to levy fines". What is being suggested in this essay is not the levying of fines, but a simple amendment to the APC’s principles that requires the publication of all adverse adjudications. As most publications already co-operate, making mandatory the publication of adverse adjudications should not prove to be a problem.

It would, likewise, increase the APC's prestige if a similar rule was enacted that required the entire adjudication be published (not an edited version) and in a prominent position. It is not surprising that only 4% of past complainants were very satisfied with the publicity the Council’s decision received compared with 30% who were very dissatisfied. Yet, if a situation arose again in which they had a similar complaint, 52% would take it to the APC. The picture is therefore not all bad for the Council. In fact, the complaints procedure itself is simple and very well explained. The inability to enforce publication of adverse adjudications is one area that could be bettered.
The Press Council's 2009-10 Annual Report [PDF] features the Charter of a free press in Australia adopted by the Council in 2003 and presumably relished by those who remember that freedom of the press belongs to those who own a press -

Freedom of opinion and expression is an inalienable right of a free people.

Australia is committed to The Universal Declaration of Human Rights. Article 19 of the Declaration provides:
Everyone has the right of freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
In a truly democratic society open debate, discussion, criticism and dissent are central to the process of generating informed and considered choices. These processes are crucial to the formation of values and priorities and help in assessing and finding solutions to social, economic and political problems.

A free press means a free people and the people of Australia have a right to freedom of information and access to differing views and opinions and declare that the following principles are basic to an unfettered flow of news and information both within Australia and across the nation’s borders.

The Principles

1. Freedom of the press means the right of the people to be informed by the press on matters of public interest so that they may exercise their rights and duties as citizens.

2. The press shall not be subject to government licence and government authorities should not interfere with the content of news nor restrict access to any news source.

3. The press has a responsibility to the public to commit itself to self-regulation which provides a mechanism for dealing with the concerns of members of the public and the maintenance of the ethical standards and journalistic professionalism of the press.

4. It is in the public interest for the press to make available to the people a wide diversity of views and opinions.

5. It is the responsibility of the press to protect the people’s right to know and to contest encroachments upon that right by governments, groups or individuals.

6. Laws, regulations and practices which in any way restrict or inhibit the right of the press freely to gather and distribute news, views and information are unacceptable unless it can be shown that the public interest is better served by such laws, regulations or practices than the public interest in the people’s right to know.
We might ask whether self-regulation by the major media groups - print or otherwise - is effective and whether a more meaningful regime would be outweighed by crimps on free speech. ACMA's incapacity in dealing with the 'Cash For Comments' affair isn't a distant memory. Reading the hand-on-heart ethics statement from News Limited -
News Limited group publications aim for the highest editorial and ethical standards. Editorial employees and contributors should be open-minded, fair and respect the truth. ...
1.1 Facts must be reported impartially, accurately and with integrity.
1.2 Clear distinction must be made between fact, conjecture and comment.
1.3 Try always to tell all sides of the story in any kind of dispute
I do wonder whether the princes of print are living up to their aspirations.

One response might be that we need a justiciable national Bill of Rights that enshrines privacy and freedom of speech (the latter not necessarily the same as the freedom that comes from owning a press, as distinct from a keyboard). Such a Bill might offset the preparedness of some governments to gut human rights Charters such as that in Victoria.