A recent post
noted Julian Assange's splenetic response to his failed relationship with the
Guardian. In the latest issue of that newspaper there is a feisty response by Catherine Bennett, tartly commenting
The collaboration has been a long time in coming, but so close is the current working relationship between WikiLeaks and the Daily Mail that it is becoming difficult to believe that the two organisations were ever at odds.
Hardly any time has passed since the paper was happy to style Assange a “traitor”, aka “the slimy WikiLeaks founder”; his most notable achievement, in that newspaper’s estimation, to have cost Britain around £9m – to date – for policing the Ecuadorian embassy. All the WikiLeaks editor in chief appeared to have in common with the Daily Mail editor Paul Dacre, was a mutual abomination of the Guardian. ...
No disrespect to the Mail’s showbusiness reporters but Assange has surely outstripped all rival contributors since his colleagues at WikiLeaks dumped a massive file of Sony Pictures’ emails (originally hacked by persons, allegedly North Korean persons, unknown) in a new, search-friendly format, accompanied by the founder’s high-minded justification. “This archive shows the inner workings of an influential multinational corporation,” Assange said. “It is newsworthy and at the centre of a geopolitical conflict. It belongs in the public domain. WikiLeaks will ensure it stays there.”
No government or corporation will ever be powerful enough to suppress, for instance, the fact that a famous friend of Sony Entertainment’s CEO once newsworthily tried to set up their famous mutual friend with someone also quite well known who fancied him, though it newsworthily didn’t work out. Whether it reflects the evidence, in this cache, of people doing the sort of things they might well do inside a global film production company, or the shocking complacency of a meretricious western media, the geopolitical implications of Sony’s emails appear to have attracted less attention than content featuring celebrities or money or bitching or anything remotely embarrassing to do with bottoms.
Bennett goes on to comment
“Once again,” tweeted Glenn Greenwald, celebrated champion of the individual against the state’s covert mining of personal data, “@wikileaks has performed a great journalistic function & service with this new archive.” Although not so journalistic that it involved any effort at editing, so as to separate out politically and fiscally telling material from the morally indefensible.
In terms of gossip, admittedly, there is no arguing with Greenwald’s assessment: WikiLeaks’s lurch into celebrity scandal was instant inspiration to fellow content providers at Gawker and its sister blog, the purportedly feminist Jezebel. Hardly had WikiLeaks released 173,132 emails and more than 30,000 documents than the latter’s editors had fallen upon the (former) Sony Pictures chair, Amy Pascal’s Amazon shopping history, added scatological commentary and transformed it into clickbait gold. ...
[L]esser members of staff who have neither cracked distasteful jokes about Obama nor had the impudence to buy La Prairie face cream, nor earned enough money to have forfeited all privacy rights, remain equally vulnerable to this form of dehumanisation. Questioned about this invasion of the privacy of those Sony employees and their correspondents who were naive enough to think their work email accounts safe for exchanges about, say, illnesses, bereavements and relationships, Greenwald tweeted: “It wasn’t @wikileaks that did the hack. And there is very close government dealings w/Sony.” So by all means laugh at the expense of staff who rank too low to help progress Sony’s sinister web of geopolitical alliances, but who nonetheless unwittingly volunteered for what is called, when GCHQ does it, the bulk interception of private correspondence. ...
How much Greenwald’s invocation of a greater good will soothe Sony employees whose data has been made so instantly trawlable can perhaps be gauged from the previously exposed and mocked. Julian Assange, for instance, has objected vigorously to media portrayal that, he said, took liberties with his privacy, even when the offending material (like the hacked Sony emails) was already accessible online. In 2012, Ofcom ruled that his privacy had not, after all, been violated in a Channel 4 documentary that showed him dancing in a club. Assange, it said, “was not shown engaged in an activity which would reasonably be considered to be private or in circumstances which could normally give rise to a legitimate expectation of privacy”.
But Assange’s shyness, in that instance, is at least consistent with principles he outlined to writer Andrew O’Hagan, for an autobiography subsequently published without his authorisation. His early “cypherpunk” adventures, he stressed, were all about protecting individual privacy from data-hungry corporations and governments and his personal life was no exception; it was a “category error” to suggest otherwise. “Disclosure is my business,” he said, “but we don’t deal in gossip.”
Well, he does now.
'When Does Press Self-Regulation Work?' by Ray Finkelstein and Rodney Tiffen in (2015) 38(3)
Melbourne University Law Review 944 comments
All societies must make decisions over what to regulate and how. Short of ‘black letter law’, there are many codes of conduct and models of self-regulation. The press has always been considered a special case, because of the conflicts and potential abuses involved in government regulating an industry which has a central role in reporting and commenting on government activities. However, any consideration of the role of press councils in Britain and Australia shows how, in practice, self-regulation of the press has failed as an avenue for providing accountability. Those who feel aggrieved by coverage only erratically achieve redress or a clear right of reply. Public opinion polls consistently find a low opinion of press performance and ethics.
Finkelstein and Tiffen argue
Regulation is not of itself an appealing idea. No political leader would call for a general increase in regulation. Rather, everyone is against ‘red tape’, against ‘excessive’ regulation and against onerous compliance costs. When the Rudd government was elected, one of its four most senior ministers, Lindsay Tanner, had the title Minister for Finance and Deregulation. The Abbott government also had a Minister for Deregulation, Josh Frydenberg.
Deregulatory rhetoric reached a peak in March 2014, when the government had a ‘Repeal Day’. It announced ‘the abolition of more than 1000 acts of Parliament and the repeal of more than 9500 regulations’. Some of these were historical curiosities and anachronisms, such as the Defence Act 1911 (Cth), which regulated how long a senior cadet could drill for. So some of the effect was ‘the theatre of scrapping dead letters and fiddling with trivia’. One claim was that the savings would add up to $700 million. But, warned The Sydney Morning Herald’s economics editor Ross Gittins, ‘don’t ask how that figure was arrived at’. The dominant theme, according to public policy scholar John Wanna, was that the regulations were all part of a ‘“culture of compliance and enforcement that stifles productivity” and that by eliminating all unnecessary regulation we will be liberated’. The image here is of regulation as the product of either an aimless, irrational bureaucracy or meddling, expedient politicians. The attack on regulation is also a symptom of the aversion to state intervention that became more insistent and pervasive in the late 20th century. According to Chris Berg of the Institute of Public Affairs, ‘[r]egulation suppresses innovation, raises consumer prices, ties the sector down in compliance costs, and opens up opportunities for rent-seeking.
Such unqualified anti-regulation generalisations are not helpful to an understanding of the role of regulation. They obscure rather than illuminate the choices all societies make about what should be regulated and how. A society devoid of all regulation may seem like a utopia to some ideological warriors but would prove to be an unlivable nightmare for its members. ...
The press has always been — and certainly has always seen itself to be — a special case in terms of regulation. On the one hand, the case for regulation is strong. It is a powerful, non-democratically organised force which influences the political process and shapes cultural attitudes, and which can cause great damage to businesses and to people’s lives. In all forms of power, those who exercise it must be subject to some constraint. Otherwise, the temptation for abuse may be compelling. As regards the press, Cohen-Almagor asserts
'As it is unthinkable to allow other agents of power in society to act without proper professional standards, so it is unthinkable to allow journalists to act with complete freedom and oblivious attitude to risks and harmful consequences'.
Baker has identified several other values, intrinsic to the press, that might justify regulation: first, the wish of members of the public to have access to diverse options rather than having one or a few media owners having power over content choice; second, the need for effective opportunities for speakers to reach large target audiences; third, the important democratic principle that regulating arrangements’, for example, to secure or ‘gain market share’. the community is not subject to potential political or cultural manipulation by one or a few media owners; and fourth, the desirability that there be a broad opportunity for discursive participation.
However, the press also is an area where official regulation is perhaps uniquely contested because of the press’s struggle to establish its independence from the state, to assert its democratic role in holding governments to account, and to argue plausibly that no official body can be an impartial arbiter, but instead will always be influenced by ulterior motivations and partisan self-interest.
The press’s democratic role is at the forefront of those who seriously consider the issues. Professor Julian Disney, chair of the Australian Press Council (‘APC’), said ‘[t]he press is a means to an end ... which is the public’s right to information. So that’s the underlying driving force, and it is important to always think of that, its ultimate importance from the point of view of democracy. Sir Brian Leveson began the hearings for his major inquiry in November 2011 by declaring that ‘[t]he press provides an essential check on all aspects of public life. That is why any failure within the media affects all of us. At the heart of this Inquiry, therefore, may be one simple question: who guards the guardians?’ It would be remarkable if the commercial interests of the publishers, especially in a concentrated oligopolistic newspaper market such as Australia’s, were always identical with what is best for democracy.
Moreover, running in close parallel with the narrative of the press and democracy is the press and power. Members of the press are often very conscious of their capacity to affect political fortunes. In 2007 Mathias Döpfner, Chief Executive Officer of the Axel Springer SE media group, the owner of Bild newspaper, said: ‘whoever takes the elevator up with Bild will also take the elevator down with it’. The Guardian editor Alan Rusbridger explained the long inaction and lack of response to the phone hacking scandals at Rupert Murdoch's News of the World as a combination of fear, dominance and immunity. People were frightened of this very big, very powerful company and the man who ran it. And News International knew it. They had become the untouchables of British public life. ... It is a company intensely interested in its political muscle — an influence which politicians now readily admit they routinely courted because they felt they had no alternative. There became an unspoken reciprocity about the business and regulatory needs of Mr Murdoch and the political needs of anyone aspiring to gain, or stay in, office.
So the need for regulation of the press is compelling, but the difficulties of doing it in a way that is fair, and does not compromise the press’s democratic role in holding government to account, are formidable. But, as we shall see, self-regulation presents as many problems.
In relation to the activities where self-regulation has been most effective, though, the press does not present a promising scenario. Ownership of the press is concentrated rather than dispersed. There is not a belief that rogue behaviour will be punished by the market, but rather that it will be rewarded. While there are broadly agreed codes of conduct, their application in practice is rarely agreed on by all. The result is that both in Australia and in Britain, the country on which Australian practice has often drawn, self-regulation by the press is widely and justly seen as a failure
In discussing proposals for reform the authors comment
Many, including many in the press itself, accept that there must be some press regulation and that, because of the key weaknesses outlined above, the APC has only very partially succeeded as an avenue for accountability. However, it is universally agreed that any reforms must be carried out so as to ensure the freedom of the press, so that newspapers can effectively carry out their functions of discovering and testing the truth and of providing a critical report on the political and social life of the community. Appropriate regulation can and will further these ends. The thrust of the Finkelstein Inquiry proposals was ‘about making the news media more accountable to those covered in the news, and to the public generally’. It sought to address the weaknesses of the APC by:
- first, and most contentiously, preventing publishers from opting out by giving the work of the APC statutory underpinning;
- second, having agreed formulas for how and where adjudications would be published; and
- third, guaranteeing secure funding by having government finance the APC, indexed at twice the current level.
It should be stressed that there was no proposed change in standards. Rather these would continue to be the current ones, ones which the industry says that it already embraces. There was to be no change in the composition of the APC — it would remain as half industry and half public representatives. Finally the sole punishment was publication of the adjudication and in some cases offering a right of reply. The Finkelstein Inquiry’s main aim was to offer a forum for redress that: a) was as conciliatory as possible; b) carried no financial or legal risk for either party; c) procedurally was simple, quick and cheap; and d) would enlarge rather than restrict the flow and exchange of information and views. Although the report recommended secure government funding and a statutory basis to underpin the APC’s authority, it would not give the government of the day any extra power to influence news coverage than that which it already possesses. The report explicitly set out procedures to ensure its independence. The proposal was one of compulsory self-regulation, with standards, procedures and outcomes closely following the current practices of the APC. The inquiry was proposing minimal reforms. They would have little impact on the practice of journalism. They would not affect at all issues of newsworthiness or story selection. The complaints that the Greens and Labor held about the Murdoch press, for example about double standards in news judgement, would not be touched. But it would give better procedures for testing and resolving issues of misrepresentation.
Despite the modesty of the proposals, the reaction was immediate and extreme. Visiting celebrity Naomi Wolf called the report ‘step one to fascism'. of a jihad against that company’. The former Chairman of News Limited, John Hartigan, saw it 'as part of of a jihad' against that company. Bob Cronin, group editor-in-chief of the West Australian Newspapers Group, described it as ‘the most outrageous assault on our democracy in the history of the media, and likened its proposals to 'what was common when Joe Stalin was running the Soviet Union'. The economist Henry Ergas wrote in The Australian that ‘Finkelstein’s proposals would empower state-appointed officials to silence dissent’, while columnist Andrew Bolt thought that such ‘thought police can only stifle debate’. Paul Kelly thought it was ‘another threat to freedom in Australia’, and that it reflected ‘naive hubris’. The Australian Financial Review thought 'it constituted a Labor plan to control the media’, while The Sydney Morning Herald editorialised that the report wanted to impose ‘reason’ on society, but ‘[t]hat experiment was tried last century and, in 1989 it collapsed amid rejoicing with the Berlin Wall. But the spirit of that disastrous experiment clearly lives on in experiments such as this'. The head of the Institute for Public Affairs, John Roskam, thought it was 'intellectual arrogance at its most breathtaking ... the totalitarian fallacy: don’t let the people decide (because the people are too stupid), let judges and academics decide for them. The Finkelstein Report overturns two centuries of Western political philosophy'.
Then Opposition Leader Tony Abbott was squarely in the critics’ camp. He thought the Finkelstein Inquiry looked like ‘an attempt to warn off News Ltd from pursuing anti-government stories. 'It's easy to imagine the fate of Andrew Bolt or Alan Jones, for instance, at the hands of such thought police’, he argued.
They conclude
Laura Stein has observed that the press
favors the interests of advertisers, shareholders, and more valued audience segments over those of the broader populace, including the poor, the very young and old, and racial and ethnic minorities. [The press] also systematically disfavor[s] unpopular and minority viewpoints ...
There are several reasons for this. The most important is that newspapers are businesses. They exist to make money. At the same time newspapers also report the news, ‘act as watchdogs’ and ‘unearth scandals’. But newspapers do these things to succeed in business.
Along the way they publish inaccurate, misleading and distorted information which is rarely corrected and, when it is, even more rarely with due prominence. Not only this, the press, while free to be partisan, ought to distinguish clearly between comment, conjecture and fact. This ‘obligation’ is routinely treated with contempt.
The proposal in the Finkelstein Inquiry report aimed to establish a forum independent of both government and industry that would provide redress to those injured by the press. It did so in ways that enlarged — and did not restrict — the flow of information, and through procedures with no financially punitive sanctions on either side beyond public exposure. The successful hostility of the press to having a statutory basis for such procedures means that for the foreseeable future, beyond the rule of statutes and torts, such as defamation and contempt of court, the main means of accountability will continue to be voluntary self-regulation.
There are some who believe in press self-regulation. The Swedish Press Ombudsman Ola Sigvardsson declared that ‘[a]mong the Swedish publishers there is a desire to behave decently, to behave in an ethical way. I think many publishers just think it’s a good thing to do’. A journalist thought the German Press Council sits within a vibrant array of wider media accountability instruments, including ‘ombudsmen, codes of newsroom ethics, reader advisory councils, correction corners, online portals that specialise in media criticism and self-criticism, media literacy campaigns to encourage reader interaction, and so on.
Experience tells us that the thought that such rosy scenarios represent the future of press self-regulation in Australia is foolish. Still, it is not surprising that action by government, even though not directed to fettering or gagging the press, is never likely to occur. It is the press and not the government that runs the show.
