Independent Media Inquiry - Another report, another recommendation for a new regulator of Australian media

26 March 2012

Key Recommendations

  • Replace the Australian Press Council with new independent regulator, the News Media Council, or NMC.
  • NMC to set and enforce journalistic standards; a wider remit than the APC and will take over some ACMA functions.
  • All ‘news media’ to be within NMC’s remit. Any publisher in any medium generating or aggregating news would be caught. Internet news sites with less than 15,000 hits per year or publishers of less than 3,000 copies of print per issue would not be caught. Foreign online news publishers may also be caught.
  • NMC to have a range of statutory powers, including requiring publication of a correction. Right to apply for court order to require compliance with NMC direction.
  • Recommended Productivity Commission Inquiry within the next two years.

Reports of the News of the World phone-hacking scandal and the ensuing investigations in the UK during 2011 resulted in calls for the Australian media to be similarly investigated.  At this time, there were also public allegations of political-bias among certain media outlets, particularly the national press. 

In response, the Federal Government convened the Independent Media Inquiry and its report, running to 468 pages, was delivered on 28 February 2012.  While the Inquiry found no evidence of phone-hacking or similar practices by the Australian media, it does recommend significant changes to media regulation in Australia. These changes will have far-reaching implications for Australian media (in particular, bloggers) and foreign media with an Australian readership or subscriber base.

The Inquiry, chaired by the highly-respected doyenne of media law in Australia, Ray Finkelstein QC, was charged with investigating the practices of print media (including digital and online publications) in Australia and the regulation of media outlets (as opposed to the concurrent Convergence Review Committee’s review of media regulation).[1]

Advertisements inviting submissions were published in the press and on the Inquiry’s webpage.  Justice Finkelstein also wrote to specific publishers, editors, academics and others inviting them to make submissions.  Public hearings were held, in which 41 people gave evidence.  In total, the Inquiry received submissions from over 11,000 people and organisations. 

Controversially, and as anticipated,[2] the Inquiry went beyond its allocated scope to include recommendations regarding the regulation of television and radio broadcasters in Australia.   The Inquiry’s rationale for extending the scope to broadcasters, is that broadcasters’ activities on-line are not caught by the industry codes of practice (under the Broadcasting Services Act) with which they must comply in respect to their main broadcasting activities.  Compliance with these codes and the complaint procedures is within the remit of the ACMA, but this applies only to traditional broadcasting activities, not online activities.  The Inquiry recommends that broadcasters’ online activities be subject to the regulation of the NMC and the same standards as would apply to other ‘news media’.  Unsurprisingly, there has been outcry from certain broadcasters, who were not given the opportunity to make submissions to the Inquiry.

Proposed super regulator: a one-stop shop

The Inquiry found that the current mechanisms of regulation (which include the Australian Press Council) ‘are not sufficient to achieve the degree of accountability desirable in a democracy’ (page 8 of the report). 

To counter the failings of the current mechanisms, the central recommendation of the Inquiry is the creation of a single independent statutory regulator,  the ‘News Media Council’ (NMC), to set and enforce standards for the news media (based on existing codes) in consultation with the industry, and to handle complaints made by the public when those standards are breached. 

The NMC would be funded by government and its members would be comprised of community, industry and professional representatives, but would otherwise be independent. 

The NMC would have jurisdiction over all news and current affairs coverage, including print, online, radio and television, and would replace the Australian Press Council and take over some functions of the Australian Communications and Media Authority. 

The response so far from the media to the creation of the NMC varies, but as with the proposed ‘super’ regulator recommended in the Convergence Review Committee’s Interim Report, there appears to be a general concern around threats to the independence of the media (where a government-funded body has broad powers to regulate the press).  However, the Inquiry found significant failings of the current self-regulatory framework, including the lack of funding of the APC and the slow complaint-handling processes of the ACMA.  In the increasingly convergent media environment, it is difficult to see why traditional print media should not be subject to clear standards, processes and level of accountability that apply to other media outlets. 

Criticism for broad scope of ‘news media’

The report recommends that ‘news media’ will include any publisher, in any medium, where a significant proportion of their publishing activities generate or aggregate news, information and opinion of current value that is regularly disseminated to a public audience.

Internet news sites which have more than 15,000 hits per annum and publishers who distribute more than 3,000 copies of print per issue, and foreign online news publishers that have ‘more than a tenuous connection to Australia’, will also come within the NMC’s jurisdiction.  Non-news entities which see value in the role of the NMC would also be able to opt into the system. 

Although the report acknowledges that these numbers are arbitrary, the low threshold for internet online news sites will mean that thousands of online sites will come within the NMC’s jurisdiction, given 15,000 page views equates to less than 300 hits per week. 

This would mean the new voices in the media sphere – blogs, tweets and other social networking sites which have overcome the traditional barriers to entry into the media, that is, by being low cost and easily accessible by millions – would be subject to the same compliance requirements as the large media players. 

The broad scope of ‘news media’ in the report is already attracting criticism.  If the concept is accepted by the Government, then it will need to be further and more clearly defined in the resulting legislation.  A broad definition along the same lines as in the report, would have impractical and unintended consequences.  The Corrs website, for example, would be considered ‘news media’ and subject to the journalistic standards applicable to other news outlets. 

No ‘toothless tiger’

The report recommends the NMC would have the following primary functions:

  • preparing and reviewing standards of conduct;
  • investigating and resolving alleged contraventions of the standards;
  • regularly preparing or commissioning reports on the state of the news media in Australia (to gauge whether there is a serious decline in the production and delivery of quality journalism); and
  • educating the news media and the public about the standards and the NMC itself.

The report also advocates statutory powers for the NMC to exercise binding remedial powers, including requiring publication of a correction, withdrawal of an article from publication, publication of a reply, and publication of the NMC's decision or determination. 

Remedial powers would not include imposing fines or compensation.  However, if a regulated media outlet refuses to comply with an NMC determination, the complainant or the NMC should have the right to apply to a court for an order compelling compliance.

Call for Productivity Commission inquiry

The final key recommendation of the Inquiry is that, within two years, the Productivity Commission conduct an inquiry into the health of the news industry and recommend whether there is a need for government support.  That inquiry should also consider the policy principles on which any such support, if necessary, should be given to ensure cost-effectiveness of any government intervention and eliminate any chance of political patronage or censorship. 

What next?

The Government has provided the Inquiry's report to the Convergence Review Committee for its consideration, which is due to deliver its final report by the end of March 2012.  

The Government will then need to consider which of the Inquiry’s and/or the Convergence Review Committee’s recommendations (if any) should be implemented through legislative change.  This will be no small task.  There is a significant amount of potential regulatory reform within the media and communications industries (including the anticipated recommendation by the Convergence Review Committee to establish a super regulator for the media industry).  It will be critical for the Government to consider the Inquiry’s recommendations in-the-round.  Although ensuring the news media (print, broadcasting and online) are subject to appropriate journalistic and classification standards, an increased regulatory burden would have a serious financial and administrative burden on the Australian media.   

[1] See ‘Convergence Review Interim Report: recommendations risk further uncertainty’ and ‘Convergence Review – meeting the regulatory challenge .
[2] See ‘Media Inquiry – where does print end and broadcast begin?’.

The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.

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