Tobacco

'How Does the Tobacco Industry Attempt to Influence Marketing Regulations? A Systematic Review' by Emily Savell, Anna B. Gilmore and Gary Fooks in (2014) 9(2) PLoS ONE notes that

The Framework Convention on Tobacco Control makes a number of recommendations aimed at restricting the marketing of tobacco products. Tobacco industry political activity has been identified as an obstacle to Parties’ development and implementation of these provisions. This study systematically reviews the existing literature on tobacco industry efforts to influence marketing regulations and develops taxonomies of 1) industry strategies and tactics and 2) industry frames and arguments.

The authors indicate that

Searches were conducted between April-July 2011, and updated in March 2013. Articles were included if they made reference to tobacco industry efforts to influence marketing regulations; supported claims with verifiable evidence;were written in English; and concerned the period 1990–2013. 48 articles met the review criteria. Narrative synthesis was used to combine the evidence. ...

This systematic review suggests that the TI uses a relatively narrow range of strategies/tactics and frames/arguments when attempting to influence marketing regulation, albeit a wider range than suggested by existing taxonomies of corporate political activity. This review also suggests that TI political activity is not geographically specific, with strategies/tactics and frames/arguments being used across a wide variety of jurisdictions. Consequently the taxonomies developed within this paper are likely to be helpful in understanding TI political activity internationally. ...

This review has a number of limitations. First, although a broad search strategy and search string was used when initially identifying articles it is still possible that some relevant articles may have been missed and therefore not included within the review. To minimise this, we worked with a librarian, searched online research repositories, and contacted experts in the field to identify additional articles. Second, the coding of arguments and tactics within the articles is often subjective. To mitigate this, all three authors reviewed and re-reviewed the coding at various points during the systematic review process and, at the end,collectively reviewed 50% of the included articles, plus all of those in categories where coding concerns had been identified. Third,the identification of tactics and arguments, and the jurisdictions in which they are used, is dependent on the available literature, its quality, and any publication bias. This in turn may depend on limitations in the availability and nature of the TI documents on which much of the literature is based. These issues have a number of implications. For example, many of the articles included did not focus primarily on TI attempts to influence marketing regulations and thus only made brief references to TI tactics or arguments,with little context or background. We attempted to overcome this limitation by requiring each tactic and argument to be supported by verifiable evidence. Information regarding the success or failure of a particular policy proposal was not always recoded, making it impossible to reliably determine which tactics or arguments were most successful in defeating marketing-related regulations. Furthermore, it is highly likely that some of the tactics and arguments were used more frequently by the TI than identified within the literature. For example, financial incentives are likely to be used more frequently and broadly than the two occasions identified in Europe, we know that the TI frequently attempts to discredit their opponents (see for example ....), however this tactic was only found to have been used twice within the included literature, and similarly, arguments that marketing regulations will increase illicit tobacco are more commonly used, and in more jurisdictions, than this review would suggest. The limited appearance of some arguments, such as tobacco not having been proven to cause disease (which was only identified as having been used by the TI in Uzbekistan in 1994), may reflect the fact that we only examined tactics and arguments from 1990 onwards. In addition, we note that despite a growing literature showing how the TI influences trade agreements and then uses them to argue against the feasibility of regulations, the use of trade agreements to pre-empt marketing policy is not identified as a tactic (although we do identify the use of trade agreements as an argument under the‘legal’ frame). This is perhaps due to the focus of our search being on the TI’s influence of marketing regulations which may,therefore, have missed articles examining industry influence on trade agreements that were in turn used to influence marketing regulations. Due to our concerns regarding bias in the literature,the counting element of this review should be used as a guideline only to provide some insight into the most frequently used tactics and arguments.

The main strength of this review is its systematic approach and its attempt to rigorously categorise industry strategies/tactics and frames/arguments; to our knowledge it is the first attempt to do so. A key strength is the geographic diversity of the literature reviewed. Although over half of the included articles (26 articles, 56%) focussed on North America, Europe or Australasia (perhaps in large part due to grants provided by the US National Cancer Institute for research on TI documents in the early 2000s), a significant proportion did not, and the geographic base was far more diverse than some previous reviews of industry tactics. While some tactics and arguments were seen only in one or a few jurisdictions, this sometimes appears to reflect limitations in the underlying literature (see above), or specific jurisdictional issues for example the use of pre-emption in the USA. While care needs to be taken in assuming that tactics and arguments used in one jurisdiction will be used elsewhere, this review suggests that the findings will be broadly applicable across different geographies. It is, however, also important to recognise that some arguments are likely to be more effective in certain circumstances, for example legal arguments may be more successful where government legal expertise is undeveloped and the costs of litigation proportional to government revenue are high.

They report that

56% of articles focused on activity in North America, Europe or Australasia, the rest focusing on Asia (17%), South America, Africa or transnational activity. Six main political strategies and four main frames were identified. The tobacco industry frequently claims that the proposed policy will have negative unintended consequences, that there are legal barriers to regulation, and that the regulation is unnecessary because, for example, industry does not market to youth or adheres to a voluntary code. The industry primarily conveys these arguments through direct and indirect lobbying, the promotion of voluntary codes and alternative policies, and the formation of alliances with other industrial sectors. The majority of tactics and arguments were used in multiple jurisdictions.

They conclude

Tobacco industry political activity is far more diverse than suggested by existing taxonomies of corporate political activity. Tactics and arguments are repeated across jurisdictions, suggesting that the taxonomies of industry tactics and arguments developed in this paper are generalisable to multiple jurisdictions and can be used to predict industry activity. ...

Hillman and Hitt’s framework, on which the categorisation of tactics in this review was initially based, considerably under-represents the range of tactics that the TI uses when attempting to influence policy. This may reflect both the unprecedented number of regulatory risks facing this particular industry and that their categorisation was developed prior to the release of internal TI documents. Furthermore Hillman and Hitt’s [21] taxonomy was based on exchange theory which assumes that corporate political activity represents one side of an exchange relationship in which corporations offer policymakers support and information in return for influencing policy. While the relevance of this approach is now arguably more limited with the advent of the FCTC’s Article 5.3 (which aims to protect public health policies from the ‘‘vested interests of the tobacco industry’’), this will not necessarily reduce the TI’s ability to influence policy but simply require them to do so less directly. The frequency with which the TI relies on third parties highlights the weakness of exchange theory-based models of corporate political activity. We also identified tactics/strategies that sit outside of exchange theory (such as constituency fragmentation, the threat of litigation, and ineffective forms of self-regulation) which challenges the assumption that corporate political activity is designed to produce outcomes that are mutually beneficial to corporations and policymakers, and we show that the information and arguments the TI uses are highly misleading; findings which suggest the original model may be both limited and naıve.

Although it appears that the TI uses a number of discrete arguments within a narrow range of frames, many of them fall within a larger ‘cost-benefit’ meta-frame which promotes the economic and social costs of proposed public health policies and underplays their benefits. This approach is highly relevant to current policymaking which embeds stakeholder consultation and impact assessments within the process of policy formation. It has previously been shown that the TI successfully lobbied for the introduction of impact assessments in Europe (impact assessments using a cost-benefit approach in which the impacts of policies are monetised) because it felt that this system would work to its advantage and make it harder for public health policies to be implemented. This is also supported by the related literature which shows how impact assessment, notably cost benefit analysis, can serve to assist corporate interests. Arguments such as‘the cost of compliance will be high’, ‘the regulation is more extensive than necessary’ and those under the ‘negative unintended consequences’ frame are used to increase scepticism about the likely benefits of regulation, and highlight the potential future cost for industry, retailers, and the public through the wasting of public funds on unnecessary policy formation, discussion and implementation. This is also observed through the omission of a ‘health frame; this review found no evidence of the TI making reference to the dangers of smoking, although it did find an example of the TI refuting the relationship between smoking and disease as late as 1994 in Uzbekistan.

Finally we note that there is some overlap in the tactics and arguments used by the TI. For example, there is both a legal strategy and a legal frame, the policy substitution strategy overlaps with the regulatory redundancy frame (especially, for example, the tactic ‘develop/promote voluntary code/self-regulation’ an argument ‘industry adheres to own self-regulation’), and many of the arguments within the negative unintended consequences frame are linked to efforts in constituency building. This highlights how the tactics and arguments used by the TI are mutually reinforcing.

Sharing

The annual report [PDF] about the Telecommunications (Interception and Access) Act 1979 (Cth) - aka the TIA Act - last year indicated that there were 319,874 authorisations by Australian governments for access to telecommunications information between July 2012 and June 2013.

Those authorisations included the national and state police forces, the Clean Energy Regulator, Australia Post, Australian Health Practitioner Regulation Agency, Workcover NSW, Tax Practitioners Board, Medicare, Department of Immigration & Citizenship, Harness Racing NSW and Bankstown City Council.

That report indicated that information obtained under interception and stored communications warrants was used in 3,083 arrests, 6,898 prosecutions and 2,765 convictions. Access under the TIA Act was used in 895 cases regarding a missing person.

Telstra's new transparency report [PDF] indicates that in the second half of 2013 it received 40,644 requests from government agencies for customer data under that Act.

From 1 July  to 31 December Telstra received 36,053 warrantless requests for customer information, carriage service records, and pre-warrant checks from Australian government agencies. A further 2,871 requests related to emergencies, along with 270 court orders and 1,450 interception warrants.

Those requests were not necessarily accepted; Telstra does not disclose the number of requests it complied with.

Telstra indicated that it received under 100 requests for customer information in that period in other countries.

A perspective is provided in last month's submission [PDF] by the Inspector-General of Intelligence & Security to the Senate Legal and Constitutional Affairs References Committee Inquiry into comprehensive revision of the Telecommunications (Interception and Access) Act 1979.

The submission reflects the Committee's  consideration of inclusion of an objectives clause within the Telecommunications (Interception and Access) Act 1979 (Cth) to expresses the dual objectives of the legislation (protect the privacy of communications; enable interception and access to communications in order to investigate serious crime and threats to national security) and be consistent with with the privacy principles contained in the Privacy Act 1988 (Cth).

IGIS commented

Although the primary objective of the Act is to prohibit interception of telecommunications or access to stored communications except in certain prescribed and regulated circumstances, the range of exceptions has grown and may continue to expand. An objectives clause along the lines proposed recognises the need to balance the privacy of users of the telecommunications services in Australia with ASIO’s investigative requirements for security and foreign intelligence purposes. The privacy principles in the Privacy Act 1988 would provide a useful benchmark reflecting community expectations. 

The Committee considered whether the Attorney-General’s Department should undertake an examination of proportionality tests within the Telecommunications (Interception and Access) Act 1979 (Cth), indicating that actors to be considered in proportionality tests include the privacy impacts of proposed investigative activity; public interest served by the proposed investigative activity, including the gravity of the conduct being investigated; and availability and effectiveness of less privacy intrusive investigative techniques.

The Committee also recommended that the examination of the proportionality tests consider the appropriateness of applying a consistent proportionality test across the interception, stored communications and access to telecommunications data powers in the TIA Act.

IGIS commented that it

has a particular interest in whether proposed changes place sufficient weight on maintaining the privacy of individuals, and whether proposals reflect the concept of proportionality – that is, that the means for obtaining information must be proportionate to the gravity of the threat posed and the likelihood of its occurrence. The exercise of ASIO’s TIA powers will, almost always, not be apparent to the subject. Further, the use of ASIO’s powers is not usually subject to scrutiny by a court or through legal processes as can often occur for law enforcement agencies. As ASIO’s use of TIA powers is often highly intrusive, these powers should only be considered for use when other, less intrusive, means of obtaining information are likely to be ineffective or are not reasonably available. 

Any proposal to apply a consistent proportionality test will need to be examined carefully to ensure that it does not compromise privacy objectives.

In relation to warrants the Committee  considered whether A-G’s Department should examine the Telecommunications (Interception and Access) Act 1979 "with a view to revising the reporting requirements to ensure that the information provided assists in the evaluation of whether the privacy intrusion was proportionate to the public outcome sought".

IGIS states that

Relevant agencies are required to keep records relating to documents associated with the warrants issued and particulars relating to warrant applications and each time lawfully intercepted information is used, disclosed, communicated, entered into evidence or destroyed.

Chief officers of law enforcement agencies are required to report to the Attorney-General on the use and communication of intercepted information and the Attorney-General must table a statistical report in Parliament. The Commonwealth Ombudsman oversights the use of TIA powers by Commonwealth law enforcement agencies and reporting requirements are set out in the TIA Act.

ASIO’s use of TIA powers are not included in the Attorney-General’s report to Parliament. The Attorney-General’s Department could consider whether the public reporting regimes of similar organisations overseas might provide useful models of alternative reporting approaches.

The oversight regime for ASIO is not specified in the TIA Act. In practice, my office oversights ASIO’s use of TIA powers under the inspection function in the IGIS Act. To assist the Committee in understanding the way this oversight occurs I have summarised the current inspection regime.

Warrant related papers are examined so that we may be properly satisfied that:

• the intelligence or security case that ASIO has made in support of the application is soundly based and that all necessary legislative requirements have been met 

• the individuals identified in each warrant are actually identical with, or closely linked to, persons of security interest (this is particularly relevant where a ‘B-Party’ telecommunications interception warrant is being sought) 

• appropriate internal and external approvals for the request have been obtained 

• the Director-General of Security has identified in writing those individuals who may execute the warrant, or communicate information obtained from the warrant 

• written reports to the Attorney-General on the outcome of executed warrants are factual and provided in a timely manner 

• the activity concerned did not begin before, or continue after, the period authorised by the warrant 

• in the small number of cases where unauthorised collection has occurred, including through carrier error, prompt and appropriate remedial action has been undertaken.

Warrant related papers are examined after the Attorney-General has authorised the activity. If any issues with warrants are identified, they are raised with the Director-General of Security to ensure that remedial action is taken and that processes are reviewed to prevent future errors. Where appropriate I can also advise the Attorney-General of any concerns. I also include a summary of inspection activity in my annual report. Generally the standard of warrant materials is high and the error rate is low. Comprehensive recordkeeping in ASIO is essential to ensure ASIO complies with the legislation and to enable effective oversight. Any proposal to change the recordkeeping regime should enhance accountability requirements.

Animals

'Do Animals Need Rights?' by William A. Edmundson for next month's The Animal Turn and the Law: Interdisciplinary Perspectives and New Directions in Animal Law Conference comments

 The idea of animal rights makes many people skittish. Even many advocates of better treatment of animals sense that the language of rights is misplaced and unhelpful in the forum of debate about the ethical treatment of animals. Rights theory is the intellectual home of these misgivings. This paper has two parts. In the first, I speak through a composite figure I call the animal-rights skeptic. The skeptic weaves views taken from the “will” (or “choice”) theory of the conceptual nature of rights together with substantive normative argument that emphasizes reciprocity and autonomy as the justificatory basis for assigning rights. The skeptic concludes that the interests of animals in avoiding mistreatment can be fully served without assigning them rights, and that therefore nothing is denied to them by recognizing that they are not capable of rights holding. In short, animals do not need rights. The second part of the paper counters the skeptic, and points to important, needed advantages that rights can offer animals. In particular, I argue that rights have a generative nature that makes them more valuable that the duties correlative to them at any time. Moreover, rights express respect for the right holder in a way that no ensemble of protective indirect duties can duplicate. Animals, I conclude, do need rights.

Search

'Speech Engines' by James Grimmelmann in (2014) 98 Minnesota Law Review comments that

Academic and regulatory debates about Google are dominated by two opposing theories of what search engines are and how law should treat them. Some describe search engines as passive, neutral conduits for websites’ speech; others describe them as active, opinionated editors: speakers in their own right. The conduit and editor theories give dramatically different policy prescriptions in areas ranging from antitrust to copyright. But they both systematically discount search users’ agency, regarding users merely as passive audiences. 

A better theory is that search engines are not primarily conduits or editors, but advisors. They help users achieve their diverse and individualized information goals by sorting through the unimaginable scale and chaos of the Internet. Search users are active listeners, affirmatively seeking out the speech they wish to receive. Search engine law can help them by ensuring two things: access to high-quality search engines, and loyalty from those search engines. 

The advisor theory yields fresh insights into long-running disputes about Google. It suggests, for example, a new approach to deciding when Google should be liable for giving a website the “wrong” ranking. Users’ goals are too subjective for there to be an absolute standard of correct and incorrect rankings; different search engines necessarily assess relevance differently. But users are also entitled to complain when a search engine deliberately misleads them about its own relevance assessments. The result is a sensible, workable compromise between the conduit and editor theories.

US Patents

'A Rational System of Design Patent Remedies' (Stanford Public Law Working Paper No. 2226508) by Mark A. Lemley comments that

 A [US] design patent owner who wins her suit is entitled to the defendant's entire profit from the sale of the product, whether or not the design was the basis for buying the product. No other IP regime has this rule, and it makes no sense in the modern world, where a design may cover only a small component of a valuable product. The culprit is section 289 of the Patent Act, a provision added in the nineteenth century, when design patents were very different than they are today. We should abolish section 289 and bring rationality to design patent remedies.

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.

DVS 2.0

In 2010 the Australian National Audit Office strongly criticised implementation of the national Document Verification Service (DVS), envisaged as a secure online service enabling real-time verification by Commonwealth (and state/territory) government agencies or core identity documents such as birth certificates, passports, visas and drivers licenses. Last month the DVS was quietly made available to the private sector, inc over 17,000 organisations.

The Service is now to be 'enhanced'.

In 2012 a report [PDF] on a Privacy Impact Assessment regarding the DVS became available under the Freedom of Information Act. It is regrettable but unsurprising that the Attorney-General's, facing ongoing and substantive criticism about the operation of the DVS and concerns regarding use by the private sector, should have hidden that light under a bushel.

Indications of community consultation regarding the DVS have not been fulfilled. It is unclear whether the enhancement preempts consultation and reflects criticism by entities such as the Australian Privacy Foundation [PDF] regarding both substantive problems with the existing DVS and concerns about ongoing function creep.

The PIA indicated that

The identity verification requirements for private sector organisations arise, for example, under legislation and related regulations:

• in the financial services sector under various provisions such as those found in the Anti-Money Laundering and Counter-Terrorism Financing Rules Instrument 2007 (No. 1), the Superannuation Industry (Supervision) Regulations 1994 and the Credit Reporting Code of Conduct made under the Privacy Act

• in the telecommunications sector, under regulations made under subsection 99(1) of the Telecommunications Act 1997, carriage Service Providers and their retailers are required to collect and verify their customer’s identity and address information 

• in the transport sector Individuals wishing to work in secure aviation or maritime zones need to apply for an Aviation Security Identification Card (ASIC) or a Maritime Security Identification Card (MSIC). Applicants need to provide documents to prove their identity and Australian citizenship or residency. ASIC and MSIC cards are only issued after the issuing body has established the applicant’s identity and background checks are conducted as required under the Aviation Transport Security Regulations 2005 made under the Aviation Transport Security Act 2004, and the Aviation Transport Security (Consequential Amendments and Transitional Provisions) Act 2004 and the Maritime Transport and Offshore Facilities Security Regulations 2003 made under the Maritime Transport and Offshore Facilities Security Act 2003

It goes on to note that

it is common practice in the private sector for identity documents that are provided by an individual to be largely accepted at face value. Documents are routinely copied by organisations and the copies are retained in hard or scanned form. 

An organisation may seek additional documentation where it is not satisfied that the individual has established his/her identity to a sufficient level. This might include manual, or in some cases online (through subscription to the document issuers’ database), verification of personal information. Manual document verification by an organisation of papers presented to it involves the organisation forwarding personal information to the document Issuer Agency by mail, fax, email or transcribing it over the phone. The Issuer Agency will then undertake a manual search of its registers and usually respond with a copy of the document or additional supporting detail about the applicant. Online verification can involve for example, CertValid (the Certificate Validation Service), which verifies Birth, Marriage and Change of Name Certificates issued by State and Territory Registries, or the Visa Entitlement Verification On-line service, which is operated by the Department of Immigration & Citizenship to allow organisations to verify visa details. 

Organisations in the finance sector have recourse to other service providers such as credit reference agencies to undertake checks on their behalf. In 2009, the Anti-Money Laundering Magazine identified the public and proprietary data sources used to conduct checks:

• The Australian Electoral Roll, 

• Sensis White Pages, 

• Department of Immigration and Citizenship, 

• Department of Foreign Affairs and Trade watchlists, 

• Australia Post Postal Address file, and 

• Proprietary databases such as historical white pages, an online public number directory derived from Telstra’s Integrated Phone Number Directory and other in-house credit reference data.

A number of organisations providing identity verification services also include “data-scraping” as part of the services they offer. A form of web harvesting, data-scraping obtains validations of client data from a service agency’s public-facing internet facilities by: 

• encouraging a client to provide authentication details and logon data into an online account or service portal, and 

• running third-party systems that can observe and register the results of that transaction. A successful login is then recorded as successful client verification and sold onto a client organisation.