September 29, 2012

Broadcasting

Independent Media Inquiry

[In 2003, the Coalition] Minister Alston … made 68 complaints of bias in the ABC’s reporting [of the second Iraq war].

An internal investigation found that two of the 68 complaints were substantiated.
An independent panel found that 17 of the complaints had merit, although there was no evidence of anti-Coalition bias as alleged by the minister.
[The] Australian Broadcasting Authority found that 21 of the 68 complaints were substantiated, but did not accept the complaint of systematic bias.

At the time [there was a funding] disagreement between the [government and the ABC.]
The minister said that the complaints were not connected with this [disagreement but that if the] parliament thought that the ABC had lost the plot, they could be defunded. …

[There] is no suggestion that the minister’s complaints caused the ABC to ‘tone down’ its reporting, even though its budget was a matter of intense debate between the ABC and the government of the day.
(p 124)

Contents


Licensing

Complaints

Independence

Fairness


INDEPENDENT MEDIA INQUIRY

  • Independent Media Inquiry, Department of Broadband, Communications and the Digital Economy, Commonwealth of Australia, 28 February 2012.
    Ray Finkelstein: former Federal Court judge; former President, Australian Competition Tribunal.
    Matthew Ricketson: Professor of Journalism, University of Canberra.

    THE REGULATION OF BROADCASTING


    Licensing of broadcasting in Australia


    [In] 1932 the Commonwealth established the Australian Broadcasting Commission …
    (p 158)

    In 1977, the Commonwealth created the Special Broadcasting Service Corporation (SBS), because it was considered that the ABC was not dedicating sufficient attention to the user interests of autonomous cultural groups and ethnic minorities. …

    In 1981, the Broadcasting Act was amended, so that the Australian Broadcasting Tribunal could refuse to grant or renew a licence, and could suspend or revoke a licence, if satisfied (among other things) that the applicant or licensee was not a ‘fit and proper person’. …

    The Broadcasting Services Act 1992 was seen as moving to a more market-based, less interventionist approach to broadcasting regulation …
    (p 159)


    Current system — licensing, program standards and industry codes

    The Broadcasting Services Act requires that a person obtain a licence to provide ‘broadcasting services’. …
    [It] also touches on ‘national broadcasting services’ [i.e.] the ABC and SBS under special legislation. …

    The broadcasters’ codes [impose similar obligations to those] imposed on the print media …
    • Broadcasters are required to report news fairly and accurately, and to distinguish between factual material and commentary. …
      The ABC and SBS are under stricter obligations [than commercial broadcasters] to provide ‘balance’ in news reporting.
    • Broadcasters are required to make reasonable efforts to correct significant errors of fact at the earliest opportunity.
      There is no formal right of reply (although a remedial direction from [the Australian Communications and Media Authority] could achieve this in practice).
      Commercial radio broadcasters are required to make reasonable efforts to present significant viewpoints when dealing with controversial issues of public importance.
    • Broadcasters should not disclose a person’s private affairs unless there is a public interest in doing so. …

    The activities to which codes apply under the Broadcasting Services Act do not include broadcasters' online activities.
    (p 164)

    Nonetheless, for the most part broadcasters voluntarily apply the same editorial principles in the codes to their online news services.
    (p 165)


    Reasons for different treatment of broadcasters

    Several [reasons have been given] why broadcasters, unlike the print media, are required to obtain a licence and comply with other requirements that regulate the content of what is broadcast.

    [Because the] airwaves are a public resource … it is feasible to licence use of the spectrum …
    [However, this] does not justify the regulation of the content of what is broadcast.
    In 2000, the Productivity Commission recommended that licences granting access to spectrum should be separated from content-related licences that grant permission to broadcast. …
    (p 166)

    If there are more potential broadcasters than frequencies to allocate, then there cannot be an unabridged right of every individual to speak, write or publish.
    However, changes in technology (such as cable television and digital television) have greatly reduced the force of this view. …
    In any event, there is a question whether content regulation is the proper response to scarcity.

    [That] the broadcast media should be regulated because of their distinctive power to influence public attitudes … appears to underpin the Broadcasting Services Act. …
    There is an empirical question whether the broadcast media (particularly television) is more influential than the print media.
    [Some] contend that it is the [newspapers] that shape the political agenda.
    [But even] if broadcast media do exert influence, it does not seem right to subject more persuasive media to greater regulation than those imposed on less effective media.
    (p 167)

    It is doubtful whether the reasons given for regulating the broadcast media would support imposing similar requirements on the press.
    Still less does the regulation of broadcasters support imposing a ‘fit and proper person’ test for newspaper publishers.
    The fit and proper person test was imposed under the former Broadcasting Act [in order] to ensure that commercial broadcasting was conducted in the interests of the public.
    [A ‘fit and proper’ test is no longer] imposed on broadcasters, but rather a narrower test directed at whether a broadcaster will comply with the Broadcasting Services Act and its licence.
    (p 168)


    Complaints-handling procedure for broadcast media


    Sanctions that can be imposed on licensed broadcasters

    The Broadcasting Services Act does not explicitly allow ACMA to require a licensed broadcaster to issue an apology or retraction (whereas it can recommend that the ABC or SBS do so). …
    (p 172)


    Internal complaints handling

    [During] 2010–11 the [ABC's] Audience and Consumer Affairs [unit] finalised 22 875 complaints.
    A Senate committee concluded in 2008 that the high number of complaints was not only because people feel ownership of the ABC, as the national broadcaster, but also because the ABC (unlike commercial broadcasters) accepted complaints made online and by email.
    The committee supported that feature, and also the fact that the ABC has a dedicated section for handling complaints.

    At SBS, internal complaints are handled by an ombudsman [who] is responsible for hearing complaints from viewers about accuracy and balance in news reporting as well as program classifications.
    (p 175)


    ACMA’s complaint-handling procedure

    In 2010–11, there were a total of 2786 complaints made to commercial television broadcasters …
    • 624 complaints about television current affairs programs (including 100 complaints relating to bias/inaccuracy), and
    • 661 complaints about televisions news programs (including 357 complaints about bias/inaccuracy).
    The information provided by commercial radio broadcasters is not sufficiently detailed to enable a similar analysis to be done for radio complaints. …

    [In cases] of factual inaccuracy, ACMA might research independent resources.
    (p 176)

    On average, an investigation by ACMA takes four months to finalise …
    • ACMA may only investigate these matters if the broadcaster does not respond within 60 days, or if any response is considered by the complainant to be inadequate. …
    • [Procedural fairness] requires the broadcasters to be given an opportunity to put their case in response to the complaint, and then again in response to a potential finding of a breach.
    [The ACMA appears] less concerned to provide the complainant with opportunities to comment.
    The ACMA [considers] that although investigations are triggered by a complaint, the complainant is not a ‘party’ to the investigation.
    (p 177)

    In 2000, a Senate committee [noted] widespread criticism [about]
    • the time taken to deal with complaints …
    • inadequate monitoring of the system by the regulator, and
    • the lack of meaningful penalties

    Also in 2000, the Productivity Commission … recommended that requirements as to accuracy and fairness in news reporting should be a licence condition, and not just a requirement in a code of practice, to enable persons affected to complain directly to the regulator. …

    In 2004 Professor Ramsay found that there was a ‘significant deficiency’ in the remedies available to the regulator …

    In 2008, a different Senate committee … was critical of the existing complaints process …
    (p 178)

    In 2008, [a performance review by] the Australian National Audit Office … found that ACMA:
    • lacked documented procedures for conducting broadcasting investigations;
    • had not fully investigated all prima facie breaches of the code about complaints handling by broadcasters;
    • had decided not to investigate five cases (despite legal advice to the contrary), without documenting the reasons for these decisions;
    • had not documented in most investigations its consideration of past decisions or precedents;
    • had not assessed whether complainants should be given the opportunity to comment on draft investigation findings; [and]
    • had not informed all complainants of the results of the investigation …
    (p 179)


    An assessment of ACMA’s complaints-handling procedure

    [These] criticisms indicate that the Broadcasting Services Act does not provide an appropriate model for dealing with complaints, whether against broadcast media or any other. …
    [Despite] ACMA’s enforcement powers being expanded in 2006, it does not have the power to require a broadcaster to publish a finding that there has been a breach of some standard.

    [A] new system is needed, one which is swift in its operation, treats complainants and licensees on the same footing, and which requires licensees to broadcast findings of a breach.


    Two further issues


    Government funding and the independence of public broadcasters

    [Fairfax Media and others contended] that the provision of government funding to the [Australian Press Council] would inevitably compromise the independence of that body.
    [Others, including] Professor McKinnon, a former chair of the APC, disagreed …
    (p 180)

    Both the ABC and the BBC are funded by public money … but have a strong tradition of independence from government. …

    The experience with the ABC [and its reporting of the Iraq war reinforces the need for] applications to be members of the ABC Board [to be] assessed by an independent nomination panel established at arm's length from the government.

    [The] position of the ABC and the BBC suggests that it is possible to create a body that is publicly-funded but still independent from the government.
    [While] governments may attempt from time-to-time to use their control over funding to influence the behavior of the broadcasters … by and large, that pressure has been resisted … successfully.
    (p 182)

    The same question about operational independence can be asked about the APC [which] is funded by newspaper proprietors.

    [The APC] states that it does not receive sufficient funding to perform its complaints-handling functions properly, and does not have sufficient funding to perform other functions (such as the report on the state of the press) at all.
    [The] true issue is whether the potential negative impact of government funding on the performance of the APC’s functions would be greater or lesser than the existing system.

    [Newspapers] themselves already receive money from government, in the form of advertising dollars.
    Representatives of newspapers [responded] that structures are in place to ensure that the receipt of advertising money [from any source] does not undermine editorial independence.
    The question is why similar structures … could not exist in the APC (or other complaints body).
    (p 183)


    Government regulation and the ‘chilling effect’ — fairness doctrine in the United States

    The fairness doctrine imposed two main requirements.
    • First, it was expected that a broadcaster spend adequate time in its programming on the treatment of controversial matters of general importance.
    • Second, the broadcaster was required to undertake such treatment in a fair manner, by giving suitable opportunity for the depiction of other views. …
    (p 184)
    Federal Communications Commission:
    [The] interest of the public in viewpoint diversity is fully served by the multiplicity of voices in the market place …
    [The] intrusion by government into content of programming … unnecessarily restricts the journalistic freedom of the broadcasters [and] inhibits the presentation of controversial issues of public importance …
    (Fairness Doctrine Report, 1985)
    [The] fairness doctrine [was repealed] in 1987 [under Ronald Reagan. …]

    Some commentators have argued that there is evidence that the fairness doctrine did have a chilling effect. …
    [Others] have challenged these empirical claims. …
    (p 185)

    This debate in the United States [suggests] that the ‘chilling effect’ is less an empirical claim and more a value judgment as to which potential harms are to be preferred.
    (p 184)

    [The] ABC and SBS are under comparable duties to be impartial or balanced over time …
    [No] one has suggested … that these obligations to report impartially or with balance have prevented either of the national broadcasters from reporting fearlessly. …
    (p 186)

    Prohibitions on misleading and deceptive commercial speech ‘chill’ speech in one sense, but there is no social loss from any speech that is deterred.
    With news and current affairs, the challenge is to frame any restrictions on speech with as much clarity as possible, to reduce the possibility that self-censorship will lead to otherwise beneficial speech not being made.
    (p 187)

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