The report, by Ray Finkelstein QC and media academic Matthew Ricketson, initially considers "Media codes of ethics and accountability", commenting that -
1. There is common ground among all those who think seriously about the role of the news media and about journalistic ethics that:The report goes on to discuss "Changing business models and quality journalism", commenting that -
• a free press plays an essential role in a democratic society, and no regulation should endanger that role2. There is less consensus on how this accountability should be enforced.
• a free press has a responsibility to be fair and accurate in its reporting of the news
• a free press is a powerful institution which can, and does, affect the political process, sometimes in quite dramatic ways
• a free press can cause harm—sometimes unwarranted—to individuals and organisations
• a free press should be publicly accountable for its performance
• codes of ethics regarding accuracy, fairness, impartiality, integrity and independence should guide journalists and news organisations.
3. In Australia for newspapers there are several existing mechanisms of self-regulation:
• the adoption of ethical codes or standards which at a minimum impose obligations of fairness and accuracy4. Broadcasters (radio and television) have additional regulation. They are required to observe standards both approved and overseen by the Australian Communications and Media Authority (ACMA).
• the appointment by some newspapers of an ombudsman or readers’ representative to handle complaints from the public
• the establishment by the newspaper industry of the Australian Press Council (APC) to handle complaints from the public and monitor professional standards.
5. There is, however, external regulation which applies to all news media. They must operate within the laws of the land, most importantly for the media, the laws of defamation and contempt.
6. I have come to the conclusion that these mechanisms are not sufficient to achieve the degree of accountability desirable in a democracy:
• Of the existing self-regulation measures, only one or two newspapers have appointed an ombudsman or readers’ representative.7. The problems with both the external and self-regulatory mechanisms are inherent, and cannot be easily remedied by piecemeal measures.
• Online news publications are not covered.
• The most important institution, the APC, suffers from serious structural constraints. It does not have the necessary powers or the required funds to carry out its designated functions. Publishers can withdraw when they wish and alter their funding as they see fit.
• ACMA’s processes are cumbersome and slow.
• If legal proceedings against the media are called for, they are protracted, expensive and adversarial, and offer redress only for legal wrongs, not for the more frequent complaints about inaccuracy or unfairness.
8. I therefore recommend that a new body, a News Media Council, be established to set journalistic standards for the news media in consultation with the industry, and handle complaints made by the public when those standards are breached. Those standards will likely be substantially the same as those that presently apply and which all profess to embrace.
9. Moreover, I recommend that the News Media Council have those roles in respect of news and current affairs coverage on all platforms, that is, print, online, radio and television. It will thus explicitly cover online news for the first time, and will involve transferring ACMA functions for standards and complaints concerning news and current affairs. It will replace the voluntary APC with a statutory entity. In an era of media convergence, the mandate of regulatory agencies should be defined by function rather than by medium. Where many publishers transmit the same story on different platforms it is logical that there be one regulatory regime covering them all.
10. The News Media Council should have secure funding from government and its decisions made binding, but beyond that government should have no role. The establishment of a council is not about increasing the power of government or about imposing some form of censorship. It is about making the news media more accountable to those covered in the news, and to the public generally.
11. A guiding principle behind the design of the News Media Council is that it will provide redress in ways that are consistent with the nature of journalism and its democratic role. Like the APC, its members should be comprised of community, industry and professional representatives. It should adopt complaint-handling procedures which are timely, efficient and inexpensive. In the first instance it should seek to resolve a complaint by conciliation and do so within two or three days. If a complaint must go to adjudication it should be resolved within weeks, not months.
12. An important change to the status quo is that, in appropriate cases, the News Media Council should have power to require a news media outlet to publish an apology, correction or retraction, or afford a person a right to reply. This is in line with the ideals contained in existing ethical codes but in practice often difficult to obtain.
13. If these recommendations are adopted, both the public and news media organisations should be confident that the News Media Council will carry out its functions independently and effectively. There will be a single, properly-funded regulator with the power to enforce news standards across all news media outlets.
14. Although I recommend that these steps be taken to make the news media properly accountable, there is another side to the media that ought to be acknowledged. Despite the volume of complaints and criticisms, what also became apparent to me during the course of the Inquiry is the news media’s many achievements, and just how strongly many people, both inside and outside the media, care about the health of news and journalism. Australia’s newspapers employ many dedicated professionals, performing their roles skilfully and diligently. The process of accountability proposed here recognises the realities and difficulties of journalism, emphasising immediate exchange and correction rather than financial or legal punitiveness. Equally it is consistent with the ideals guiding journalism by emphasising transparency and recognising the public interest in how a major institution of our democracy performs.
15. These proposals are made at a time when polls consistently reveal low levels of trust in the media, when there is declining newspaper circulation, and when there are frequent controversies about media performance. Many of the criticisms are self-interested or expedient; much of the public cynicism is misdirected. Yet a news media visibly living up to its own standards and enforcing its own high ideals is likely to increase rather than undermine public confidence and acceptance.
16. New technology, particularly the internet, has revolutionised access to the news. The result has been a reduction in the circulation of newspapers and a reduction in revenue from classified advertising. The advertising expenditure is now spread across platforms. Main news organisations are recovering only a small proportion of these revenues by moving to online publishing.Much of the report is anodyne and early criticisms that it will usher in a 'big brother state' are misplaced. In discussing 'ethics and intrusions on privacy' the report notes that -
17. These changes have been greeted with dramatic rhetoric: Who killed the newspaper? asked The Economist magazine in 2006 . In the United States, the crisis has been felt by the news media much more acutely, and there has been considerable pessimism about the news media being able to continue their traditional democratic roles.
18. It is too early to reach such conclusions in Australia. We are in the midst of changes whose future direction can only dimly be discerned. Moreover there are many positive as well as negative changes with the increasing importance of the internet. Low barriers to entry will facilitate new ventures, and so may lead to more democratic diversity, given the concentrated ownership of Australian newspapers.
19. I have reached the conclusion that at this stage there is not a case for government support.
20. Nevertheless, the situation is changing rapidly, and requires careful and continuous monitoring. Therefore, I recommend that one function of a News Media Council should be to chart trends in the industry, and particularly to see whether there will be a serious decline in the production and delivery of quality journalism.
21. In addition, I recommend that within the next two years or so the Productivity Commission be issued with a reference to conduct an inquiry into the health of the news industry and make recommendations on whether there is a need for government support to sustain that role. It should also consider the policy principles by which any government support should be given to ensure effectiveness, as well as eliminating any chance of political patronage or censorship.
22. Apart from reviewing those issues on a national scale, one area that requires especially careful monitoring is the adequacy of news services in regional areas. There is some evidence that both regional radio and television stations and newspapers have cut back substantially on their news gathering, leaving some communities poorly served for local news. This may require particular support in the immediate future, and I recommend that this issue be investigated by the government as a matter of some urgency.
4.56 Community concerns about media intrusions on individual privacy are widespread. A 2004 parallel survey of voters and journalists by Muller found sharp differences in attitudes between the two sets of respondents on a number of specific ethical questions. The biggest differences were on privacy and deception. On privacy, 92% of voters but only 38% of journalists said it was never right to take a picture of someone in their backyard from outside the property without their knowledge and consent. On deception, 85% of voters but only 38% of journalists said it was never right to obtain access by pretending to be someone other than a journalist. The survey also asked whether it was right to pretend to be sympathetic to a person’s situation in order to obtain an interview. In their responses, 68% of journalists said it was right and 28% said it was never right. In sharp contrast, 70% of respondents said it was never right and 29% said it was. Large proportions of respondents to an earlier (1974) survey by Saulwick considered interviewing people against their will to be an invasion of privacy: for celebrities it was 56% and for private citizens it was 76%.The report goes on to comment that -
4.57 In May 2010 after the resignation of a New South Wales Government Minister who had been ‘outed’ by a commercial television channel, Essential Media asked people whether it was appropriate to reveal details of a political figure’s private life. A majority (54%) said it was justified in at least some circumstances, specifically where the conduct had an impact on the politician’s work or taxpayers’ resources or where the politician had acted in a way that was clearly at odds with their publicly expressed views. Thirty-eight per cent said such disclosures were never justified.
4.58 In a survey taken in July 2011 by Essential Media in the immediate aftermath of the British phone-hacking scandal involving the now-defunct News of the World, 51% of respondents said they were now more concerned about the conduct of Australian newspapers, but 38% said it had made no difference to their views.
4.59 A recent prominent example of an invasion of privacy involving a public figure was the publication on the front pages of News Limited papers in March 2009 of fake photographs said to be of Pauline Hanson who was at the time a candidate for election to the Queensland parliament. The journalistic failings were well catalogued in a Media Watch episode on 23 March 2009. Essentially, in the rush to print, the journalists at The Sunday Telegraph carried out only very rudimentary verification. An apology was later published. In his evidence to the Inquiry, Mr Littlemore QC, who had represented Ms Hanson, referred to this as a rare case in which it was not necessary to issue a statement of claim for defamation before the dispute between the parties was resolved.
4.60 While there is substantial disapproval of media infringements of individual privacy, complaints to the APC concerning privacy represent only about 10 per cent of total complaints . In his evidence Mr Chadwick, the ABC’s Director of Editorial Policies, calculated that historically privacy complaints to the APC, ABC and the Australian Communications & Media Authority (ACMA) have been around five per cent of total complaints. On that basis he concluded that :
… invasion of privacy is not a serious offence, a constant offence, a major offence, committed by the Australian media.4.61 In 2008 the ALRC completed a two-year long investigation into privacy. A year earlier as part of its inquiry process, the ALRC released an issues paper which included discussion of the self-regulatory model for the print media, some criticisms of it and proposals for reform before expressing this view :
In the ALRC’s view, freedom of expression is a fundamental tenet of a liberal democracy. Appointing an independent government body to oversee the media is a measure of last resort. Such an approach should be taken only where there is substantial evidence that self-regulation and co-regulation in the media industry have failed. Based on the relatively low rate of privacy-related complaints, investigations and findings of breach, as well as the small number of submissions calling for a change in regulatory model, the ALRC does not consider that the appointment of a government body, such as a Media Complaints Commission, is warranted.4.62 In its final report, For Your Information, the ALRC noted ‘particular concerns’ relating to the reporting of certain types of personal information by media organisations, including personal information about children and young people, sensitive personal information, including health information and personal information connected to legal proceedings . Then referring to the present self-regulatory model for print media it stated :
The ALRC has ongoing concerns about the capacity of a self-regulatory system to preserve the tenuous balance between the public interest in freedom of expression and the public interest in adequately safeguarding the handling of personal information.Several submissions to the Inquiry expressed similar concerns. Four warrant particular mention.
4.64 The first is from a group of academic researchers currently engaged on a three-year Australian Research Council (ARC)-funded research project examining ‘Vulnerability and the News Media’. The report on the study is due later this year, but the group agreed to provide its preliminary findings to the Inquiry. The research spans a content analysis of national, metropolitan, regional and suburban newspapers during 2009, an analysis of APC adjudications concerning complaints about how the news media dealt with people during ‘moments of vulnerability’ and six focus group interviews conducted across four states during 2010 and 2011.
4.65 The research identified two main types of vulnerability stemming from a person’s identity or from a person’s circumstances. The first concerned particular groups in society (such as Indigenous Australians, those from diverse ethnic or religious backgrounds, physically or intellectually disabled people or those suffering from a mental illness) who have most often been misrepresented or stereotyped in media coverage. The second comprised people who are in a vulnerable state because of an event in their life, such as the death of a family member, their involvement in a natural or man-made disaster, or their suffering physical or sexual assault.
4.66 In their submission, the research group observed that vulnerable people are typically ignorant of media practices and of complaint procedures . When offered a chance to respond, vulnerable people are not in an appropriate state of mind or emotional position to comprehend the offer or to take advantage of it. As to the apparent under-representation of privacy complaints to the APC, the research group offered this view:
Making a complaint to the Press Council requires knowledge that the complaints mechanism exists and a relatively high level of literacy about the steps involved in that process. Vulnerable sources may well have a desire to complain, but not the energy or competence at the time to do it. This relies on third-party support to make the complaint - which is not always available4.67 Research by the Centre for Advanced Journalism at the University of Melbourne examined the effect on survivors of being covered by the media, as well as ethical issues arising for the media in covering the 2009 Victorian bushfires. The research revealed many news media practitioners treated the survivors with respect, but there were some serious lapses. These included one instance of a reporter disguised as a volunteer obtaining access to a relief centre and after lights-out attempting to obtain interviews with survivors surreptitiously. It should be added, in fairness, that this was an isolated though egregious case.
4.68 The third submission was from the South Australian Commissioner for Victims’ Rights, Michael O’Connell . He wrote:
Media insensitivity towards victims of crime, especially violent crime, can cause a ‘second injury’. In spite of media assertions that reporting on victims’ plight humanises their coverage of crime, victims’ opinions (influenced by their dealings with the media) can differ. Rather, insensitive (sometimes dehumanising) reporting and coverage often re-victimises victims.
4.69 Mr O’Connell provided the Inquiry with a list of grievances he had received from crime victims’ about the news media. Those grievances included the following.
• Photographs or footage of crime scenes, including dead bodies.4.70 The commissioner acknowledged some crime victims have told him they found telling their story to the media to be cathartic and others who praised the work of individual journalists and photographers.
• Interviews at inappropriate times, such as when the victim is in shock and unaware of the consequences of his or her replies.
• Unwillingness to respect victims’ requests, especially filming funeral corteges.
• Approaching people for interviews before they have been informed of the death of a relative.
• Publishing gruesome details, such as the precise nature of injuries sustained by a murder victim.
• Inappropriate or aggressive questioning.
• Intrusion into a victim’s privacy, including, for example, publishing an image of the victim’s home even though the crime took place elsewhere.
• Relying on speculation to challenge a victim’s credibility.
• Blaming the victim for the crime, especially victims of sexual assault.
4.71 Fourth, the Australian Privacy Foundation , a national non-profit body advocating on privacy issues, submitted that ‘there are all-too-frequent instances of seriously and unjustifiably privacy-invasive actions by the media’ and cited numerous instances in recent years concerning ordinary citizens as well as high profile people.
4.72 To this might be added two more recent instances.
4.73 On Saturday 19 November 2011, The Sydney Morning Herald led the paper with two reports and a large photograph on its front page about a fire at a nursing home at Quakers Hill, Sydney, that had killed four of the home’s 96 elderly patients the previous day. Another news report and six more photographs were published on page 10. The photograph on the front page showed an elderly man lying in his bed, but the bed was on the street as the residents had been evacuated from the home. His mouth was agape and his eyes closed. At least two readers wrote to complain. Published on 21 November, the first letter asked why the newspaper hadn’t used more photographs of the emergency services personnel rather than ‘the frail, elderly residents who had been pulled to safety and deserved some privacy’. The second letter empathised with relatives reading or watching coverage of the fire on television: ‘News is one thing, compassion another. Surely the two can be mixed more sensitively’.
4.74 On 3 August 2011, New South Wales police were called when a young woman, Madeleine Pulver, reported that an intruder had placed a collar bomb around her neck. The bomb turned out to be a hoax. The following day her father made repeated calls to the media to respect her privacy. Some newspapers had already obtained images from Facebook of Ms Pulver and printed them. Reporters from broadcast television stations then camped outside her house for up to four days. A Sydney newspaper published photos of her walking her dog.
... the news media can cause wrongful harm to individuals and organisations by unreliable or inaccurate reporting, breach of privacy, and the failure to properly take into account the defenceless in the community.
11.11 Here are a few striking instances:
• A minister of the Crown has his homosexuality exposed. He is forced to resign.11.12 Self-regulation has not been successful in dealing with irresponsible reporting. Certainly codes of ethics have improved the position, but not sufficiently. The failings of APC — lack of awareness of its existence, lack of funding, lack of enforcement powers, lack of reach — are problems that such bodies face in many democracies. ...
• A chief commissioner of police is the victim of false accusations about his job performance fed to the news media by a ministerial adviser. Following publication of the articles, he is forced to resign.
• A woman is wrongly implicated in the deaths of her two young children in a house fire. Her grief over her children's death is compounded by the news media coverage.
• Nude photographs said to be of a female politician contesting a seat in a state election are published with no checking of their veracity. The photographs are fakes.
• A teenage girl is victimised because of her having had sexual relations with a well-known sportsman.
That self-regulation and co-regulation have not worked satisfactorily is not the only problem. Even if instances of breaches of standards were few there is still something missing. What is missing is a system that, as Professor Sampford put it in his submission, ‘can be seen as a form of risk management - a kind of ‘institutional insurance’ against the misuse or abuse of power.’ Accordingly, Professor Sampford said, it is not necessary to show abuse to justify the implementation of effective regulation - although the probability of abuse and its seriousness are matters that ought to be taken into account when deciding what to do.
