DRAFT SUBMISSION ONLY | Independent Inquiry into Media and Media Regulation in Australia.doc (1)

8/4/2019 DRAFT SUBMISSION ONLY | Independent Inquiry into Media and Media Regulation in Australia.doc (1)

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Independent Inquiry into Media and Media RegulationIssues paper

. . .

DRAFT ONLY

INDUSTRY DISCUSSION PAPER ONLY > FOR LATER SUBMISSION

draft submission by jason brown, avaiki nius agency, to the :

Issues paper

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The Media Inquiry is looking into various aspects of the media and media regulation. Its terms

of reference were published on 14 September 2011 (see Attachment A). In the course of

considering the matters raised in the terms of reference, it will be necessary for the Media

Inquiry to consider, among other matters, the issues listed below.

The list of issues is not set out in any order of importance. Nor is the list intended to be

comprehensive. The issues are, however, among the important matters that the inquiry will

consider. The Media Inquiry will be greatly assisted by any comments it will receive.

It is not necessary for a respondent to deal with each and every issue. The Media Inquiry would

in any event be assisted if persons choose to comment only on specific issues.

Access

1. One common justification for freedom of the press (nowadays referred to as freedom

of the media) is that given by Mr Justice Holmes in his dissenting opinion in Abrams v

United States 250 US 616, 624 (1919)1. He said:

[T]he ultimate good desired is better reached by free trade in ideasthat the test of truthis the power of thought to get accepted in the competition of the market.

2. Does this marketplace of ideas theory assume that the market is open and readily

accessible?

Yes. Debate about the digital divide between developed and developing countries, aswell reference to the golden mile between fibre optic and homes, even in developed

countries, shows that a free market of ideas is far from a reality.

1 http://supreme.justia.com/us/250/616/case.html

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With all the mass media concentrated in a few hands, the ancient faith in the

competition of ideas in the free market seems like a hollow echo of a much simpler

day. ~ Kingman Brewster, Jr.

3. Are there alternative or preferable justifications for freedom of the media?

Yes, and yes. With the first three estates legislative, executive, and judiciary

increasingly limited to a political economy of privatisation, the Fourth Estate is

fast becoming the sole remaining public space, an increasingly strategic avenue

for ordinary people to have their voice heard and opinion upheld, to participate

in democratic processes, as an informed citizenry. In real-world, real-time, real-

people situations, as edited and presented by journalists. Hourly. This news industry

is amplified measurably by social networks, including bloggers, citizen journalists,

columnists and mainstream media themselves, with the United States Pew Institute

study showing that 80% of new media posts, like Facebook and Twitter, lead back

to old media websites, like The Guardian and the New York Times. This speaks to a

public need for authoritative voices, to argue for, and against.

Also strongly suggesting ordinary people do have an interest in mainstream issues,

and mainstream media presentation of those issues.

An intense interest, even.

Meantime, journalists are being sacked in their tens of thousands, worldwide, while

nation states pump ever more billions into communications.

4.

Regardless of the justification, is it appropriate, especially in the search for the truthon political issues, that persons holding opposing views have an opportunity to

express their views in the media?

Absolutely. But balance is often mistaken for fairness. For example, the huge weight

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of generally accepted scientific evidence is that global warming is increasingly due to

human impact, yet most media, many with corporate conflicts of interest, still present

the issue as a he-said versus she-said argument, unresolved.

2.1 If a substantial attack is made on the honesty, character, integrity or personal qualities

of a person or group, is it appropriate for the person or group to have an opportunity

to respond?

Yes, always. But again a search for truth should not be frustrated by a desire for balance

over fairness. Public figures must accept that with power comes responsibility, and not

avoid questions, then attack the media for bias.

2.2 What factors should be considered in determining (a) whether there should be an

opportunity to respond? (b) how that opportunity should be exercised? Would those

factors differ depending on whether the attack is published in the print or the online

media?

a) see above b) see above and [c] no difference between print and online, more the old

distinction between news and opinion, whether the opinion is a letter to the editor, or

a like and comment on Facebook, or Twitter, etc.

Standards

1. Is it appropriate that media outlets conform to standards of conduct or codes of

practice? For example, should standards such as those in the Australian Press Councils

Statements of Principles (1999) apply to the proprietors of print and online media?

Yes, increasingly so. Before publishers and broadcasters were one of the few outlets

for public expression, and the only outlet for independent information. They rightfully

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resisted attempts by governments to promote even mild forms of regulation, such as

journalist registration, as a dangerously slippery slope towards state control. Historically

it was felt there should be no limits on who can practice journalism, or call themselves

a journalist, in a craft that stretches back to feather quills, lest formalization lead to

fascism or other forms of totalitarianism.

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2. Is it appropriate that journalists conform to standards of conduct or codes of practice?

If it is, are the standards in the Media Entertainment and Arts Alliances Code of Ethics

(1999) an appropriate model?

Yes, highly appropriate, for similar reasons to the above. From a journalist perspective,

technological change has also freed the profession from the responsibility of gate-

keeping challenges to freedom of expression. With the rise of citizen journalism, there

is instead a need to distinguish professional journalism from more amateur variants,

through voluntary formalisation.

3. Do existing standards of conduct or codes of practice such as those mentioned in 3 and

4, as well as those established by individual print and/or online media organisations,

fulfill their goals?

Probably not. Possibly due to the sheer volume of news, and the human potential for

error always being high, especially in an industry where older, more experienced but

expensive journalists are routinely sacked in favour of younger, more compliant and

cheap graduates. Churn rates are high. There might some worth in a kind of Small ClaimsTribunal for news media to ensure the public record can be kept accurate, without

complainants and news media having to fork out thousands.

4. To what extent, if any, does the increased use of online platforms affect the

applicability or usefulness of existing standards of conduct or codes of practice?

As above, online platforms increase the volume of interaction with standards andcodes, while also complicating legalities with most online identities being anonymous or

pseudonyms.

5. Can and should the standards of conduct or codes of practice that apply to the

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traditional print media also apply to the online media?

Yes, both print and broadcast online media.

Regulation

6. Is self-regulation via standards of conduct or codes of practice necessary to maintain

the independence of the media?

Yes, because education begins at home. However, self-regulation should not be the

end of media independence, but an opening or initial tier within media accountability

systems. This already exists, to some degree, with in-house codes of conduct,

Ombudsmen (I am advised by a friend, a woman Ombudsman, that her female

colleagues use the term advisedly, and regard its origins as gender neutral), Press

Complaints Councils, Broadcasting Standards authorities, and, of course, defamation

cases in civil court. However, there is little linkage at a legislative level between use of

words like news and journalism and journalist, and actual adherence by news

workers and media managers to Media Accountability Systems.

Exhbit 1 : Murdoch.

9.1 Is there effective self-regulation of (a) print media and (b) online media by the

Australian Press Council?

Doubtful, with broadcasting self-regulation equally dubious, especially in the private

sector. Ironically, it is libel law in the US that helped frustrate self-regulation, when

courts ruled that an organisation that policed comments online were liable for libel,

while those who did not police comments were deemed not to have published those

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comments.

9.2 What are the Australian Press Councils strengths and limitations as a regulator of

those two forms of publication?

Strengths : APC is a voluntary body, so seems less threatening to publishers and

journalists like. Weaknesses : APC is a voluntary body, so can seem less independent to

complainants.

9.3 Is it necessary to adopt new, and if so what, measures to strengthen the effectiveness

of the Australian Press Council, including in the handling of complaints from members

of the public (for example, additional resourcing, statutory powers)?

An annual or semi-annual review by outside institutions, e.g. a national ombudsmen,

and/ or a coalition of overseas Press Councils, a la peer reviews between countries in

the OECD. Yes to additional resources to handle the influx of online content and

commentary.

9.4 As an alternative to strengthening the effectiveness of the Australian Press Council,

would it be preferable to establish a statutory body to take over its functions?

No. Both should exist, and co-exist, with the same exposure to peer and other review,

with, perhaps, a statutory body existing as a kind of superior court to self-regulators,

adding a further layer of within media accountability systems.

9.5 Concerning any proposed new measures, which are specific to the print media and

which the online media?

If there is any specificity, then a possible split could be between self-regulators handling

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complaints and suggestions specific to professionally produced journalism, while a

statutory body, more reflective of wider community input, handles user created

content, such as comments on news stories. And/or between large and small claims

from complainants.

10 If self-regulation is not an effective means of regulation, what alternative models of

regulation could be adopted that would appropriately maintain freedom of the media?

Like Germany and beer, news and journalism may benefit from a purity law that helps

protect news product from inferior imitators. This would seek to protect, maintain and

promote freedom of the media from commercial and political pressure relating to the

impact from individual stories and concentrate on the mannerin which those stories are

prepared, ensuring both ethics and legality.

A recent example of this approach comes from the French supreme court, La Cour de

cassation, which agreed with an appeal against the French Court of Appeal, by journalist

Denis Robert, who exposed the worlds biggest banking affair, Clearstream, in 2001,

including false assets of some US$1.5 trillion.

In three rulings in February 2011, the 1st Civil Chamber of the Court of Cassation

quashed a conviction by the Court of Appeal of Paris, declaring "a general [public]

interest in the subject and noting the seriousness [depth] of the investigation."

Mr Robert told AFP, "This decision will set a precedent because the Court recognized

that a journalist like me could commit small errors in good faith if covering a topic of

general interest while leading difficult work in the opaque medium of finance.

Apologies for the rough translation. The decision also referred to the European

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Convention on Human Rights, and its guarantee of freedom of expression. Australian

law promises similar freedoms, but precedence shows a focus on impact on reputation

rather than due journalistic process.

Such an approach would also speak to the public good of journalism, and its

contribution to good governance by exposing corruption to official review and action.

11 Would it be appropriate for such a model to include rules that would:

a. prohibit the publication of deliberately inaccurate statements

No. Prohibition implies presence of censors to stop publication, in

contradiction of well-established precedence to publish and be damned.

b. require a publisher to distinguish between comment and fact

Yes. And this should also apply to broadcasters, to avoid such media

monstrosities as Friends of Fox News.

c. prevent the unreasonable intrusion into an individuals private life

Perhaps, but on a sliding scale of public standing. The higher the public

profile, the lower the threshold for unreasonable intrusion. Publicity does not

necessarily denote profile.

d. prohibit the gathering of information by unfair means (for example,

by subterfuge or harassment)

I am uncertain of privacy laws in Australia, but I assume there are already

robust protections for individuals and tax entities, etc. In this regard, Australia

would do well to examine jurisdictions such as Norway where tax details

are available to all members of the public. If public scrutiny is increasingly

reliant on new and old media among the four estates, then it may stand to

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reason that Victorian notions of what should remain private be revisited. For

example, should a multi-national conglomerate enjoy the same privacy rights

as an individual voter. I suggest not.

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e. require disclosure of payment or offers of payment for stories

Always. Include gifts and offers in kind.

f. deal with other topics such as those currently covered in the

Australian Press Council advisory guidelines?

Yes, perhaps on appeal from such bodies.

12 If an alternative model was to be a statutory complaints tribunal, is it appropriate for

that tribunal to have power to:

a. obtain information necessary to resolve a complaint

Yes, with obvious exceptions, like confidentiality of sources. As with a lawyer,

doctor, or priest, confidentiality must remain sacrosanct. Any statutory body

must focus on how information from a confidential informant is used, not who

that information came from.

b. require a publisher to do an act (for example, publish a correction of

unfair or misleading reporting)

Yes, within limitations of the format, e.g. space in newspapers, time on air,

with full versions available online.

c. impose sanctions for a failure to do that act?

Yes, but any significant sanctions must be automatically reviewable by other

courts, with defense costs borne by the state.

13 Is there any reason why the regulation of the print media should be

different from the regulation of broadcast or online media?

Assuming this refers to statutory regulation, I would suggest not, other than

recognising the need for regulatory expertise relating to different modes of news

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production. It raises a question myself - is there any reason this media review did

not extend to broadcasting interests ? I would suggest that this limitation risks

treating print and broadcast differently already.

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New media and business models1. To what extent has the development of digital and online platforms had an

impact on the traditional business model for media organisations, and to

what extent is the further development of these platforms likely to affect

the business model/s for media organisations over the medium to long

term?

Use of the term business model in itself indicates notions of for-profit expectations

from journalism, directly impacting media freedoms. To remain effective, journalism

cannot and must not be regarded as a zero-sum game where profits indicate

journalistic success, and loss, failure. If journalism forms an integral part of the

Fourth Estate, and is, reputedly, a public good, then exclusive focus on a business

model is misplaced.

Accepting this argument at face value, however, I would estimate that the extent of

impact of digital online platforms on traditional media has been huge, both in media

business models and standards. Around the world, tens of thousands of journalists

have been sacked in the last few years, with as many as 30,000 workers gone from

US newsrooms alone. I suspect that similar losses have been felt in Australia, with

the lions share of a record boost for public broadcasting going to drama and

entertainment, rather than news and current affairs.

Measuring this impact between business models and media freedoms is difficult

because most countries, including Australia, do not track how people declare

themselves a part of the news business. Statistical measurement in

Commonwealth countries traditionally pick up on doctors, legislators, lawyers, police

officers and teachers, but the Fourth Estate, like a wedding photographer, is usually

the last consideration until, like this inquiry, it is very late in the day.

The Australian Bureau of Statistics notes:

Neither the Television, Film and Video Production Survey nor the ABC and SBS

Annual Reports provide detailed breakdowns of the type of occupations in which

people are involved in the radio and television industries.

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At the same page, a 2006 survey found some 928 journalists employed in free-to-air

television, with none (zero) in pay-television, and just 326 radio journalists. For a

nation of 20+ million at that time, this appears to be an astonishingly low figure, of

roughly one broadcast journalist per 16,000 people. Imagine a teacher, doctor,

lawyer or even police officer having to contend with that kind of workload?

No doubt, with the ensuing Global Financial Crisis, that ratio has only got worse, but

without empirical evidence, it is hard to be more accurate.

Contrast this with the US, where relatively up-to-date Statistical categories are

readily available for assessing employment levels of writers, editors, reporters,

journalists, publishers and producers, among others. There are even predictive

stats. In 2008, before the global financial crisis, an estimated 8,000 more reporters

and other newsroom workers were thought to be at risk of losing their job by 2018,

from a 2008 total of around 70,000. By May 2010, LBS statistics show that the

actual losswas closer to 25,000, three times higher than predicted. Of the 45,000

remaining reporters and correspondents, some 10,000 were in radio and television,

a ratio of one reporter per 30,000, with Australia probably suffering a similar ratio.

Even paid news analysts, in 2008 expected to grow a scant 300 by 2018, instead

dropped from 7,700 to 5,700 in the US.

So how do these statistics relate to the medium to long term? Future impacts on

journalism levels in Australia will continue to be gigantic, changing how

news consumers approach news and journalism as much as technology has

changed telecommunications from phones with crank handles to satellite mobiles,

as one comparison. Given the emphasis within industry discourse

towards business models, as outlined above, it can be expected that journalists will

continue to be sacked in high numbers, with a lucky few absorbed into burgeoning

public and private spending on communications or public relations roles, furtherdiminishing news media capacity to provide equality and plurality between all four

estates.

7. What are the other key factors that have an impact on the business models

of media organisations, what is the magnitude of their impact to date, and

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to what extent are they likely to be significant over the medium to long

term?

Other key factors must include an apparent unwillingness within news media and

interested parties like the other three estates to tackle controversial issues, like

the recent Murdoch hacking and bribery scandal starting in the UK.

Apparent, because after declaring herself open to the idea of an inquiry following

questions about the Murdoch scandal, Guillards willingness to examine media ethics

and standards seems to have been somewhat lost in the terms of reference for this

review, and its related questions. Indeed, the focus of these questions now seems to

be on challenges of technological change rather than the controversy itself, the one

that sparked calls for this inquiry.

This failure of nerve if that indeed is what this is probably forms the biggest

challenge to notions of strengthening media standards by replacing self-regulation

with statutory regulation, and possibly the most important question facing such a

change would statutory regulators prove any more adept at reigning in obvious

examples of ethical and legal wrongdoing?

Or would statutory regulation only have the effect of burying such occasions under

even more myriad considerations than an internal industry approach? Perhaps

answers can be found in examples from nearby.

A recent and controversial Lowy Institute survey of public opinion in Fiji found wide

public support for the military regime, despite its censorship of news media. Or,

perhaps, because of that censorship.

Freed from troublesome details, like reality, the Fiji public is apparently enjoying a

sense of security and stability. There are disturbing parallels with Fiji across theTasman, in New Zealand. Unlike Australia, New Zealand does not have a sustained

history of investigative journalism in either print or broadcast. Current affairs

programmes come and go. Certainly there is nothing remotely approaching the

prestige and controversy of Four Corners. An indication of the timidity of the New

Zealand press comes from the title of one of the latest offerings, called Q+A.

Little wonder, then, that residents rank themselves as least corrupt in the world,

comparing themselves equal to other, much more transparent countries like Norway

and Sweden.

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8. What is the impact to date on the level of investment in quality journalism

and the production of news and what is the expected impact over the

medium to long term?

Again, this is hard to estimate, without proper evidence. Again, compared with the

US, Australia is poorly served by its media institutes. For example, the Pew Institute

regularly discusses the crisis in journalism, whereas in Australia, even a trade union

site like MEAA refuses to examine such an idea. Astonishingly, MEAA has almost

nothing to say about the Murdoch scandal, except for a July 2011 speech at annual

journalism awards. In later welcoming the review, MEAA did not mention the ethics

scandal that sparked it at all, preferring to concentrate on technological changes.

However there are a few compelling examples of impact from lowering levels of

investment in quality journalism. Most obvious would be the Global Financial Crisis,

with much of the so-called financial press cheerleading the global economy into near

collapse.

Over the medium to long term, scrutiny of globalised markets is expected to worsen

in terms of quantity. While numerous new media business models are emerging,

there is an overall capacity loss that the Pew Institute estimated as high as US$1

billion from US newsrooms. At a local level, one report estimated that loss of

capacity means one million missing stories in San Francisco alone. Where it survives

lay-offs, quality journalism is increasingly at risk ofdisappearing behind pay walls.

Support

9. Is there need for additional support to:

a. assist independent journalism

Yes, especially in the short to medium term as new business models are

found to replace lost capacity in quantity and quality.

b. assist the media to cater for minority audiences

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Yes, because minority issues face a double challenge lack of capacity to

investigate properly, and, frequently, cultural sensitivity to delve into difficult

stories. Cost-benefit analysis at a national level might show that greater

awareness of minority issues and priorities means less downstream societal

issues such as poverty, illiteracy, under-employment and crime.

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c. remove obstacles that may hinder small-scale publications

Yes, and small-scale broadcasters.

d. promote ease of entry to the media market

Yes, by assembling a toolkit of legislative, technical and professional

information, such as those developed by the UK Media Standards Trust, and

its Transparency Initiative.

e. foster other aspect of the medias operations?

Yes, by commissioning such items as a media census of journalist and

other media worker numbers in Australia, a statistical snapshot feeding

into a Situational Analysis and Needs Assessment of the profession, and its

supporting industry.

This may include an industry driven but publically funded trade training

initiative at multiple levels, see discussion at appendix.

10. What are the best methods for providing that support?

I would suggest, here, that support be tied to evidence of adherence to codes of conduct

and ethics within news organisation, and a willingness to provide transparency to MediaAccountability Systems.

The Murdoch scandal and a subsequent failure by Murdoch organs to handle fallout in an

independent professional manner might indicate there is a need, as suggested by the tenor

of questions here, for more direct regulation.

Just as there is a need to protect consumers from toxic food with food standards, theremust also be a need to protect the public from toxic news or views masquerading as

news. As outlined above, use of the words news and journalism could be tied to purity

laws of the kind enjoyed by German beer drinkers. Nothing but pure news, ethics andaccountability.

The challenge to the prospective news media standards lawmaker is in ensuring a balance

between extremes - the politically correct illusions of Singapore and the corporately correct

delusions of New Zealand.

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Attachment A:

Independent Media Inquiry Terms of Referencea. 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.

As per questions.

b. 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.

As per questions.

c.

Ways of substantially strengthening the independence and effectiveness of theAustralian Press Council, including in relation to online publications, and with

particular reference to the handling of complaints.

As per questions.

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.

Journalism as a public good suggests one business model that might work, without

risk of interfering in editorial independence. This would be where news media accredit

themselves as educational institutions at a trade level, for training citizen journalists and

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other new media workers and volunteers.

Such institutes would fill four needs:

1. Provide a more informed and participatory public, with citizen journalists learning

basics of ethics, conduct, and generally accepted practice in professional journalism,

including the means to avoid defamation claims.

2. Better graduates. Many news media managers complain that university graduates

know a lot of theory, but are frequently near useless at the actual field craft of

journalism. Trade type institutions at council, state and national, run by the media, for

the public, with public and private funding, may increase potential for professionalism in

the news media.

3. Career paths. A role for older, more experienced journalists to continue plying

their craft in a manner perhaps more meaningful than public relations or so-called

communications.

4. A potential business model that provides much needed income, especially where

linked with legislation requiring community media wanting to access state funding to

attend news media along with existing small business training.

FURTHER READING

Most industry debate worldwide focuses on technological outcomes, and Australia is no

different, not even within erstwhile unions.

Not even after Murdoch.

For a more robust discussion of strengthening journalism, expanding public media and

fighting media consolidation, we must turn overseas. An example of advanced concepts

for a more a realistic future for journalism than techno-utopia can be found, ironically, or

maybe not, in the United States at the Free Press site, Save The News.

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ENDS.

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