Broadcast Co-Regulation and the Finkelstein Review

The Australian Communications and Media Authority (ACMA) has released a 'Consolidated Report' regarding its Contemporary Community Safeguards Inquiry, a nice example of never grab a hot potato if you can flick it into tomorrow.

The inquiry is concerned with "matters that should be addressed in contemporary broadcasting industry codes of practice", including privacy. The stated intention is  "to ensure that codes of practice are fit for purpose in a converging media environment".

ACMA indicates that it

has now decided to defer further work on the inquiry and to publish this report, so that the evidence it captures can immediately inform the broader conversation about the future of broadcasting regulation in Australia, as well as the industry code reviews due to be undertaken.

The Consolidated Report states

ACMA’s disposition in conducting the inquiry was to produce guidance which is evidence-based and supportive of the minimum level of regulatory intervention necessary to achieve the desired aim. That is, regulatory intervention that is appropriate and proportionate in all the circumstances. In this regard, while commenced prior to the current government’s deregulation agenda, the inquiry is wholly consistent with it.

It does not provide "specific guidelines for future codes of practice reviews" (i.e. the outcomes expected at the beginning of the inquiry) and as you might expect does not echo the Finkelstein or Leveson inquiries.

It is assumed under the co-regulatory regime embodied in the Broadcasting Services Act 1992 (Cth) that the industry groups representing television and radio broadcasting licensees will develop codes that apply to the broadcasting operations in those sector. The codes must be developed in consultation with ACMA, taking into account relevant ACMA research. ACMA can only register a code where it is satisfied, among other things, that the relevant code provides appropriate 'community safeguards'.

ACMA indicates that the report "summarises the consultation undertaken during the inquiry and provides a high-level overview of the directions emerging from that process", including -

• ‘first principles’ analysis of the enduring concepts, which could or should be reflected in contemporary broadcasting codes
• consultation on the Contemporary community safeguards inquiry—Issues paper, which examined the existing code requirements and the extent to which they aligned with the identified enduring concepts
• seven 'Citizen conversations forums' on relevant topics
• economic research about the market for broadcasting content in Australia and the industry-identified costs of the code requirements 
• community research exploring contemporary citizens experiences of, and expectations about, broadcasting content
•  reviewing the existing information in this area, including the work of complementary reviews and inquiries. 

There is supposedly "a high level of consensus about the enduring concepts and core matters that should be reflected in contemporary broadcasting codes", which -

• are "strongly correlated" with what the Broadcasting Services Act 1992 (Cth) indicates broadcasting codes ‘may address’. 
•  should continue to enable public interest considerations to be addressed in a way that does not impose unnecessary financial and administrative burdens on broadcasting service providers 
• should be sufficiently flexible to accommodate new technology and a changing media environment. 

In what at times reads as a parody of Yes Minister ACMA advises that

Taking these and other applicable matters into account, the ACMA is of the view that there is strong support and a solid rationale for code-based contemporary community safeguards relevant to:

• enabling adults to make informed decisions about accessing content based on their personal tastes and preferences 

• preventing the broadcast of certain content that prevailing community standards indicate should be prohibited 

• enabling parents and carers to protect children in their care from inappropriate or harmful content 

• accuracy, impartiality and transparency in certain factual material 

• the transparency of advertising and promotional practices 

• the appropriate balance between program material and advertising/promotional material 

• fair treatment and privacy 

• the provision of reliable consumer information about the mechanisms available for accessing content 

• emergency information 

• the provision of minimum requirements for Australian music 

• complaints-handling systems and information. 

Alan Jones can sleep soundly.

The report notes that

There is a lower level of consensus around how these matters should be ‘operationalised’ in codes. For example, it is easy to agree that codes should protect children, but harder to agree how that might most appropriately be done and whether different broadcasting platforms, models and genres logically suggest different (and tailored) methods. There is no doubt that there is scope and support for rationalisation, simplification and adaptation to changes in media markets and practices. As indicated above, further consideration will need to be given to such matters in the context of industry code reviews.

There is no indication of how and when the reviews will be "progressed", as Sir Humphrey might say, and whether the exercise will be superseded by broader changes to competition (e.g. lessening of ownership restrictions) and media policy.

In discussing privacy aspects of the co-regulatory regime,  comprehensively weighted towards broadcast interests, the report states -

Submissions to the inquiry indicated widespread community and industry support for safeguards relating to the broadcast of material that discloses personal information or intrudes on a person’s seclusion. The CBAA said:

Community radio stations exist to meet their relevant community interest and, through the guiding principles, have committed to promote harmony and diversity. Based on this, and widespread public support for rules about privacy it is appropriate that the Codes continue to include privacy protections for the public. 

However, submissions also stressed the fundamental importance of ensuring that there is an appropriate balance between respecting the privacy of individuals and the right of the public to be informed on matters of public importance, and the essential role which the ‘public interest’ test plays in this context. Submissions suggested that the ‘public interest’ test used in the codes should be clearer and could be enhanced. The Australian Privacy Foundation submitted:

It is essential that the qualification [on the privacy protections provided by the codes] be upgraded to ensure that not only does a public interest exist, but also that it is of sufficient significance that it outweighs the individual's privacy interest. The operative words could be amended simply by appending those words to the expression ‘unless there is a public interest’. However, alternative formulations could achieve the level of protection that is needed, provided that they implement the Proportionality Principle.

Industry submissions questioned the need for privacy requirements to be expanded to program genres beyond news and current affairs. However, citizen and public interest advocacy groups supported expansion of the code provisions to ensure that an individual’s right to privacy is safeguarded across all program genres. 

There was support across submissions for public figures being afforded the same privacy protections as other citizens, although submissions acknowledged that some public roles may lead to a greater likelihood that the broadcast of private information would be in the public interest

The report goes on -

Previous ACMA community research on privacy included two complementary qualitative and quantitative research studies—Australians’ views on privacy in broadcast news and current affairs and Community research into broadcasting and media privacy. This research explored community perspectives about privacy issues that arise in broadcast news and current affairs programs and radio competitions. It found that citizens believe it is very important for broadcasters to safeguard a person’s privacy, especially in the context of news and current affairs programs. Citizens identified certain situations as being very intrusive invasions of privacy. However, the qualitative component also identified a spectrum of views about the balance to be struck between respecting individuals’ privacy and informing the public about matters of public importance. Key criteria used by citizens included the relevance of the personal material to the story, whether consent is given, and the character of the person involved. It was apparent that individuals consider a range of circumstances and assess on a case-by-case basis the interplay of issues. 

The qualitative CCSi community research showed that, for the most part, there is no strong community consensus on what constitutes an invasion of privacy by a broadcaster. However, regardless of age and overarching attitudes, the majority of participants felt that individuals, in theory, should have a right to privacy in the broadcasting context. This right to privacy was something which participants felt should be ‘guaranteed’, other than in specific circumstances. Participants largely assumed that broadcasters should, and do, seek consent to broadcast private information in most cases. 

This right to privacy was assumed by participants to be guaranteed in general observational footage where a story might have a negative impact for those involved in the program, for example, obesity or gambling. Participants tended to assume that consent to broadcast footage used in observational documentaries had been sought by broadcasters. It was also expected that broadcasters would have sought consent from anyone who is directly involved in the program, for example, someone interviewed. Similarly, there was an expectation among group participants that social media photos (for example, profile pictures) should not be used by broadcasters in a way that might damage an individual’s reputation. Participants assumed broadcasters had sought the individual’s consent. 

Focus group participants did not appear to have a broad framework within which to consider possible situations or scenarios that were discussed during the groups. They tended to assess each case individually without having clearly defined ‘rules’, but they highlighted some of the factors they would use to consider each instance. An example given by participants of content that they considered as invading privacy included stories about neighbour disputes (for example, chopping down a neighbour’s tree), especially where the stories did not illuminate something which the public would benefit from knowing. Without a broader public purpose, these stories were felt by participants to be largely sensational and not in the public interest, with the potential to harm the reputations of those involved.

'Regulating journalists? The Finkelstein Review, the Convergence Review, and News Media Regulation in Australia' by Terry Flew and Adam Glen Swift in (2013) 2(1) Journal of Applied Journalism & Media Studies 181-199 comments

This paper identifies two major forces driving change in media policy worldwide: media convergence, and renewed concerns about media ethics, with the latter seen in the U.K. Leveson Inquiry. It focuses on two major public inquiries in Australia during 2011-2012 – the Independent Media Inquiry (Finkelstein Review) and the Convergence Review – and the issues raised about future regulation of journalism and news standards. Drawing upon perspectives from media theory, it observes the strong influence of social responsibility theories of the media in the Finkelstein Review, and the adverse reaction these received from those arguing from Fourth Estate/free press perspectives, which were also consistent with the longstanding opposition of Australian newspaper proprietors to government regulation. It also discusses the approaches taken in the Convergence Review to regulating for news standards, in light of the complexities arising from media convergence. The paper concludes with consideration of the fast-changing environment in which such proposals to transform media regulation are being considered, including the crisis of news media organisation business models, as seen in Australia with major layoffs of journalists from the leading print media publications.

The authors argue

Around the world, there are two major forces driving changes in media policy, which both have significant implications for news media industries and journalism as a professional practice. First, there is the question of how to revise media laws in the context of convergence, where the rationales that underpin platform-specific regulations are challenged by the availability of the same or similar content across multiple media platforms. The proposition, for instance, that broadcast media should be more extensively regulated than print is challenged when all content is available online, and where established media companies are developing cross-platform content available across the full range of digital devices, both in order to more effectively compete with each other, but also with the ICT and social media giants such as Apple, Google, Microsoft, Amazon and Facebook. Reviews of broadcasting, telecommunications and other legislation to meet the challenges of media convergence have been, or are being, undertaken in the United Kingdom, Canada, Japan, South Korea, Taiwan, and Australia (ACMA, 2011a). 

Second, there has been a renewed concern with media ethics, and the conduct of journalists and the news organisations they work for. This emerged most dramatically in the United Kingdom in 2011 as it became apparent that the hacking into private phone calls extended not only to celebrities, footballers, politicians, and members of the British Royal family – allegations that had been made for some time – but to relatives of deceased British soldiers, victims of the 2005 London bombings and, most damningly, the family of murdered schoolgirl Milly Downer. Public outrage immediately put intense scrutiny upon News International and its owner, Rupert Murdoch, and led to the closure of the 168-year-old popular tabloid News of the World. This proved to be insufficient to quell public anger, and in July the British Prime Minister David Cameron announced that a public inquiry would to look into phone hacking and police bribery by the News of the World, while a separate inquiry would consider the culture and ethics of the wider British media, chaired by Lord Justice Leveson. The Leveson Inquiry, which has been conducted in a highly public manner, has put under the spotlight the effectiveness of print media self-regulation in the U.K., as Leveson declared that the Press Complaints Commission had failed to safeguard ethical standards and the public interest (Cathcart, 2012). 

This paper considers both the challenges of media convergence and the question of media regulation in relation to ethical standards in the context of two Australian media inquiries that commenced in 2011 and were concluded in 2012. The first was the Convergence Review, established by the Gillard Labor government to ‘review the operation of media and communications legislation in Australia and to assess its effectiveness in achieving appropriate policy objectives for the convergent era’ (Convergence Review, 2012, p. 110). Established by the Minister for Broadband, Communications and the Digital Economy, Sen. Stephen Conroy, the independent Convergence Review Committee was asked to ‘propose an alternative structure [for media regulation] that would encourage continued innovation and protect citizens’ interests in an age of convergent communication’ (Convergence Review, 2012, p. 110), in the context of Labor’s ambitious National Broadband Network (NBN) scheme, aiming to provide high-speed broadband services to over 90 per cent of Australian homes and businesses by 2017. 

The second review was the Independent Media Inquiry into the Media and Media Regulation, which was established in September 2011, in the wake of the Leveson Inquiry in the U.K. and concerns about standards in the Australian print media. This inquiry was chaired by the Hon Ray Finkelstein QC – and its final report is commonly referred to as the Finkelstein Review – assisted by Matthew Ricketson, Professor of Journalism at the University of Canberra. Like the Convergence Review, it was conducted with the support of the Department of Broadband, Communications and Economy (DBCDE). Its Terms of Reference required it to consider:

a) The effectiveness of the current media codes of practice in Australia, particularly in light of technological change that is leading to the migration of print media to digital and online platforms; 

b) The effectiveness of the current media codes of practice in Australia, particularly in light of technological change that is leading to the migration of print media to digital and online platforms; 

c) The impact of this technological change on the business model that has supported the investment by traditional media organisations in quality journalism and the production of news, and how such activities can be supported, and diversity enhanced, in the changed media environment; Ways of substantially strengthening the independence and effectiveness of the Australian Press Council, including in relation to on-line publications, and with particular reference to the handling of complaints; 

d) Any related issues pertaining to the ability of the media to operate according to regulations and codes of practice, and in the public interest (Independent Inquiry into the Media and Media Regulation, 2012, p. 13).

In addition to the Convergence Review and the Finkelstein Review, other reviews taking place that had some relevance to media policy included the Review of the National Classification Scheme undertaken by the Australian Law Reform Commission (ALRC, 2012), the development of a National Cultural Policy, and a review of copyright laws, also undertaken by the ALRC. But it was the Convergence Review and the Finkelstein Review that were most specifically focused on news media, whose recommendations had the most implications for the conduct of journalism in Australia, and which attracted the most diverse – and frequently divided – public commentary.