October 2, 2012

Self-Regulation

Independent Media Inquiry

Paul Chadwick [Media Ethics Commentator, 1996]:
[Media] concentration has reached the point where no legislature would have the courage to enact a statutory scheme of journalism ethics and then to enforce it against the largest media outlets.
(p 209)

Alan Rusbridger [Editor In Chief, The Guardian, Orwell Memorial Lecture, 2011]:
The simplest explanation [for the lack of action] is a combination of fear, dominance and immunity.
People were frightened of this very big, very powerful company and the man who ran it. …
[News International] had become the untouchables of British public life.
(p 210)

British Parliamentary Select Committee on Culture, Media and Sport:
[We] believe that statutory regulation of the press is a hallmark of authoritarianism and risks undermining democracy.
[Self-regulation] must be seen to be effective if calls for statutory intervention are to be resisted.
(February 2011)

Of the 25 countries deemed to have the greatest freedom of the press, 21 have systems of self-regulation.
(p 221)

[There] is general agreement in the codes on the values and standards that publishers and journalists should observe. …
On the other hand, there are few effective institutional measures for enforcing the codes. …

An ombudsman could be an effective accountability mechanism.
[However, few have been appointed, and fewer still given sufficient power to be effective.]
(p 203)

[There is a clear impression that the Australian] media will not tolerate, let alone finance, an effective industry regulator.
The principal basis for resisting reform is that it is an attack on a free press. …

[Given that the media] accepted the idea of press regulation by having set up the [Australian Press Council; it follows logically] that that regulation should be effective. …

[It is questionable whether] the effect on freedom of the press is any different in substance [if] the underpinning for the complaints body is statutory or, as with the APC, contractual.
The real objection to statutory backing is about how the power might be misused in the future …
(p 244, italics added)

[The Australian Press Council] accepts that to implement the reforms [necessary for it to] become an effective regulator, government … support is required [in the areas of:]
  • funding,
  • the conferral of powers of investigation and enforcement and
  • the mandating … of membership.
(p 242)


Contents


Codes and Ombudsmen
Press Councils

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.

    JOURNALISTIC CODES AND OMBUDSMEN


    [Structural reasons for reform:]
    • commercialisation — where the need for short-term profits can trump responsible reporting
    • concentration — where the publishers are in a position to make their news publications serve their own interests rather than the public interest
    • declining news quality — where in recent years the trend has been to reduce numbers of journalists and increase the production of ‘infotainment’ with the result being ‘cheap fun instead of public service’.

    Behavioural reasons …
    • violations of the privacy of individuals
    • injury to the reputation of individuals and institutions
    • partisanship in politics.
    (p 189)


    The market as a mechanism of accountability


    [The] newspapers argue that the marketplace is the ultimate mechanism of accountability and nothing more is required. …

    [A] truly competitive market … imposes considerable discipline on suppliers of products.
    [The] Australian newspaper market is [not such a] market …
    [Consumers] have little choice and little power to influence what is supplied.

    [Newspapers serve] both readers and advertisers with only about a quarter of their income coming from circulation sales.
    [The commercial] need to balance the conflicting interests of readers and advertisers [will not always] favour the interests of readers.
    (p 190)

    Newspapers themselves regularly champion regulation in favour of consumers in [other] markets where similar asymmetries apply [eg ‘[truth] in advertising’, product warranties and financial product disclosures statements …

    [There is a natural] tendency to minimise [the high costs of news production] by reducing quality to the minimum level acceptable to readers.
    Because of information asymmetry, readers are seldom in a position to
    • know or judge the quality of news stories …
    • assess the reliability of the data or sources used,
    • distinguish between facts and opinion [or]
    • identify bias in the way the story is reported …

    [There is a general expectation] that news should be factual, reliable, accurate and unbiased.
    Newspapers and journalists share these expectations and give expression to them in codes of ethics. …
    Their adoption of these codes is not only a form of self-regulation [but a tacit acceptance that the market forces alone are inadequate as a mechanism of accountability. …]

    The main flaw in the present arrangements is … insufficient diligence in the application of the codes.
    (p 191)


    Codes of ethics


    The journalists’ code

    Through the 1920s and 1930s members of the journalists’ union [then the Australian Journalists’ Association (AJA), now the Media, Entertainment and Arts Alliance (MEAA)] discussed the need for a code of ethics …
    The union’s code was drafted by a distinguished barrister, later Justice Barry of the Victorian Supreme Court, and was incorporated into the union’s constitution and rules in 1944.

    The AJA wanted newspaper proprietors to join with them in promulgating the code but they refused …
    RAG Henderson [Editorial Executive, John Fairfax and Sons Ltd]:
    The maintenance of ethical standards is a matter between newspapers and their readers and it cannot be considered a function of [a journalists'] organisation …
    (p 192)

    Part of the tension between the AJA and the publishers [arose from] the existence of socialists in the union movement and [Frank] Packer’s strong opposition to communism.
    [Nevertheless, there was] a real tension between proprietors and journalists over standards.
    In the 1940s, Crayton Burns, a political journalist observed:
    Employers rarely instruct a journalist specifically to do something unethical; they merely expect results and take no excuses.
    There are some who are not very squeamish how the reporter, photographer or commentator gets results.
    The men who get the results also get the rewards. …
    [The current MEAA code requires journalists:]
    • to commit themselves to … independence [and] respect for the rights of others …
    • to report and interpret honestly,
    • [to] strive for accuracy and fairness …
    • [to] disclose all essential facts …
    • [to] ‘respect private grief and personal privacy’ [and]
    • [to] do their ‘utmost to achieve fair correction of errors’.
    (p 193)

    [Not] all practising journalists are members [and] union membership is declining …
    [Those] working in senior editorial positions are exempt from membership …
    (p 194)

    [The national secretary of the MEAA] indicated that since the revised code was adopted in 1999 only three members had been censured or rebuked.
    [The] last expulsion [for breaching the code having] occurred nearly 40 years ago.
    (p 195)


    What do the codes require?

    [Common values] that emerge from the journalists’ and publishers’ codes [include:]
    • fairness
    • separation of fact and opinion
    • the need for accuracy linked with the responsibility to correct errors
    • condemnation of deliberate distortion and suppression of information
    • maintaining of confidentiality of sources
    • upholding journalists’ responsibility to guard the citizen’s freedom of expression …
    • protecting people’s right to privacy
    • respecting and seeking out the truth
    • avoiding discrimination on grounds of race, sexual orientation, gender, language, religion or political opinions
    • avoiding conflicts of interest
    (p 196)


    The value of codes

    [Ethical codes] can be an effective component in a broad strategy to institutionalise ethical behaviour. …
    [Alternatively, they can] serve as a marketing tool. …

    Journalism schools around the country devote considerable time to teaching ethics.
    [However,] the competitive pressure in the newsroom to get the story sometimes pushes journalists in different directions …
    One study found that the reason behind 21 of 61 admitted breaches of standards was ‘pressure from superiors’. …

    [A] study in which 100 news producers were surveyed and 20 key news producers and media experts were interviewed … found that uppermost in the minds of interviewees were the commercial pressures of increasing ratings, in radio and television, and circulation, in newspapers, and that many news producers were eager to give audiences what market research tells them audiences want.
    (p 197)

    [There] is limited consensus about how the standards in codes should be interpreted and applied.
    [This may partly be due to] the highly individualistic culture of the profession and its strong competitive ethos. …

    There is also the difficulty of [translating abstract] values, standards and ideals [into ethical behavior. …]

    [Research] into the reporting of the 2009 Black Saturday bushfires [found there was no consensus among journalists …]
    • on how to respond to official roadblocks. …
    • on whether to use deception to obtain access to closed areas. …
    • on how to treat private property within the fire ground. …
    • on whether, once in the fire ground, media practitioners should declare themselves to the authorities or conceal their role. …
    • about obtaining prior consent before using images and content from social media sites such as Facebook.
    • about whether it was right or wrong to induce survivors to cry for the camera.
    (p 198)

    There was some consensus
    • that a survivor’s refusal to be interviewed also implied a refusal to be photographed or captured on film. …
    • on how to treat survivors: most practitioners accepted that no means no. …
    • that detail about causes of death should be confined to that which was strictly necessary to an understanding of the story.

    Ombudsmen and readers’ editors


    The precise role of an ombudsman differs from paper to paper. …

    [The] most useful role … is to look within their news organisation on behalf of the reader to see whether standards have been met and if not to say so, and to look outside their news organisation to see what is developing as potential ethical issues for journalism. …
    (p 200)

    [It] is somewhat surprising that the appointment of an ombudsman or reader’s representative is not more widespread. …
    (p 201)

    [The first readers' editor at the The Sydney Morning Herald proved] too independent for the liking of the Herald’s journalists who had not been consulted by management about the new role.
    Following a series of disagreements over adverse findings, a committee representing journalists black-banned several of [his] reports and tried to suppress them from publication.
    (p 202)

    [The readers' editor] terminated his contract.

    At present, there is one readers’ editor in Australian newspapers [covering] The Sydney Morning Herald and its sister paper The Sun-Herald

    The editor-in-chief of The Age [indicated] a readers’ editor [would] be appointed in early 2012.

    SBS has had an ombudsman … since 2005.
    (p 203)


    PRESS COUNCILS


    The first press council [was formed in 1916 by] the Swedish government …
    Many European countries followed suit …
    [The] British Press Council … was established in 1953 …
    Unlike their European counterparts, the United States press councils did not have a long life.

    There are now more than 87 press councils around the world [most of which] have been set up by the media. … In Western democracies they tend to be independent of government [although] in India, the government appoints the members [and] in Germany the press council receives 30 per cent of its funding from government. …

    Their purpose is
    • to maintain public trust in the media by improving the quality of journalism …
    • [to provide] some degree of public accountability [by reference to some set of standards or principles, and]
    • to promote free speech
    (p 205)


    The British Press Council


    [The British Press Council] was used as a model for the Australian Press Council …

    [In the UK] the first Royal Commission on the Press … reported its findings in 1949. …
    [There have been] at least eight [subsequent] commissions and inquiries [the most recent being] the Leveson Inquiry [into] the News of the World scandal.
    (p 206)

    The [1949] Royal Commission recommended the establishment of a General Council of the Press, which was to derive its authority from the press, not from statute. …
    [In 1952 a] private member’s bill was introduced into parliament to set up a statutory press council. …
    A General Council of the Press was established by the industry in 1953. …
    Contrary to the Commission’s recommendations, the Council was not to consider complaints, it did not have an independent chair and it had no lay member.

    In 1961 the second Royal Commission … criticised the General Council’s failure to implement the recommendations of the first Royal Commission … [If the council failed at the] a second opportunity [to voluntarily] adopt those recommendations [it was] recommended that a statutory body be established.

    [Only] a few of the recommendations were adopted [including] a new constitution which provided for 20 professional members, five lay members and a lay chairman. …
    It did not set up a Complaints Committee until 1967.
    (p 207)

    In 1972 the Younger Committee [inquired into privacy issues and] recommended that the Press Council should have more lay members [and] should insist that its adjudications on complaints be prominently published.
    [Neither recommendation was implemented. …]

    The third Royal Commission … reported in 1977. …
    [It] said that the Press Council did not deal with complaints satisfactorily.
    [It was suggested] that the Press Council should publish a written code of conduct for journalists, and monitor the press’ compliance with the code.
    [It was made] clear that unless matters improved, a statutory press council should be set up.
    The Press Council rejected these suggestions. …

    [In 1989] private members’ bills were introduced … related to the protection of privacy [and] to providing a right of reply.
    The government responded by appointing [the] Calcutt Committee [which] reported in 1990. …
    [The Press Complaints Commission] was established … in 1991.
    It had 16 members, 12 of whom were editors or senior journalists.

    [David Calcutt later reviewed] press self-regulation [after] the publication of photographs of the Duchess of York topless [and] the publication of tapes of a conversation between the Prince of Wales and the then Lady Camilla Parker Bowles. …
    (p 208)

    [He recommended that a] statutory press tribunal [be established with the] power to conduct its own inquiries, draw up a code of practice, impose fines and costs, and award compensation.

    [In 1993] the National Heritage Committee on Privacy and Media Intrusion … also recommended the establishment of a statutory tribunal [including] the appointment of a statutory press ombudsman with power to supervise the wording and position of retractions and apologies and impose fines and order the payment of compensation. …

    The government rejected [these suggestions on the basis that]
    [Industry] self-regulation is to be preferred.
    [The] Select Committee on Culture, Media and Sport [reaffirmed its belief in self-regulation] in 2003, 2007 and 2009.
    (p 209)
    David Cameron:
    [If politicians call] for more regulation of the media [they're] accused of wanting to stifle … free speech.
    But the deeper truth is [that] there is a less noble reason.

    Because party leaders were so keen to win the support of newspapers, we turned a blind eye to the need to … get on top of the bad practices, to change the way our newspapers are regulated. …
    Over the decades … both Labour leaders and Conservative [politicians] have spent time courting support, not confronting the problems.
    (8 July 2011)
    (p 210)

    On the other hand there are strong voices opposing significant change. …
    [Important people who] speak in favour of a system that has not operated effectively in the 60 years of its life.
    (p 211)


    Ireland


    [In 2003 the Legal Advisory Group on Defamation recommended that] a statutory press council be established. …
    [This] was strongly attacked. …
    The Irish government decided not to introduce a statutory council.
    (p 219)


    South Africa

    Miklos Haraszti [Commentator, Media Self-regulation]:
    [Regulation cannot] make the press more professional or ethical …
    True ethics standards can be created only by independent media professionals, and can be obeyed by them only voluntarily.
    [Any] attempt to impose standards on journalists by law will [restrict] the free flow of information in society.
    (p 220)


    The Australian Press Council


    In 1954 the Australian Journalists’ Association (AJA) [mounted the first failed attempt] to establish a press council …
    Pat O'Malley [1987]:
    [During] the ensuing years, the absence of a Labor government federally, or in any major state, ensured that the issue remained on the sidelines, and it was only the prospect of a federal Labor government that was to promote the issue back into the realms of possibility. …
    (p 221)
    Nigel Bowen [Coalition Attorney-General, 1969]:
    [It] is worth considering whether we should not follow the United Kingdom and have a Press council in Australia …
    (p 222)

    [In 1971 the AJA met with the Australian Newspaper Council to again] discuss the question of establishing a Council of the Press to mirror Britain’s Press Council.
    [The membership of the ANC was] almost unanimously opposed to a Press Council. …
    Graham Perkin [Editor, The Age, 1971]:
    My great fear is that unless the newspaper industry establishes some form of self-surveillance [then we will one day] have surveillance forced upon us by Government.
    (p 223)
    Rupert Murdoch [1971]:
    The Press Council was invented as a fig-leaf by a frightened British Press establishment at a time of genuine concern.
    Surely we do not need such hypocrisy in Australia?
    Two years [passed] before the AJA tried again.
    (p 224)

    The APC was established on 22 July 1976 [and] comprised an independent chair, three public members, three AJA representatives and six industry members.
    Fairfax:
    We believe that the very existence of a Press Council will do harm rather than good through giving the impression that it would be able to exercise a degree of supervision and influence which in fact it cannot achieve.
    (p 225)

    [In] 1980 when News Limited withdrew from the council.
    [No] reason was given [however] News Limited was dissatisfied with the council’s unfavourable adjudication [against] reporting of the 1979 South Australian election. …

    In 1982 John Fairfax Ltd joined.
    The Fairfax papers had always cooperated with the APC, publishing not only adjudications concerning itself, but those of other publications. …


    On 3 December 1986 News Limited launched a takeover bid for The Herald & Weekly Times.
    [The chairman of the APC proposed] that a tribunal be established to prevent further concentration of press ownership.
    [This proposal was rejected, the chairman resigned, and the APC was restructured.]
    (p 226)


    The APC today


    Activities

    The APC currently receives about 450 complaints each year …
    In 2010–11, the APC’s involvement led to a correction, apology or some other form of remedial action by the publisher in 134 cases.
    If a complaint cannot be resolved by agreement, the complainant can ask for adjudication by the APC.
    In 2010–11, 71 per cent of adjudicated complaints were upheld. …

    The APC’s role in policy matters is to express views on media standards and related matters in the public interest, not as an industry advocate for the media …


    Statement of Principles
    • Publications should take reasonable steps to ensure reports are accurate, fair and balanced.
      They should not deliberately mislead or misinform readers either by omission or commission.
    • Where it is established that a serious inaccuracy has been published, a publication should promptly correct the error, giving the correction due prominence.
    • Where individuals or groups are a major focus of news reports or commentary, the publication should ensure fairness and balance in the original article.
      Failing that, it should provide a reasonable and swift opportunity for a balancing response in an appropriate section of the publication.
    (p 230)
    • News and comment should be presented honestly and fairly, and with respect for the privacy and sensibilities of individuals.

    Complaints procedure

    In recent years about half of all complaints have been resolved [by 'mediation'.]
    In the 2010–11 year [this] resulted in 16 apologies (either public or private), 26 retractions, 28 corrections, 28 actions similar to corrections and 36 publications of a response by the complainant.

    If a complaint is to be adjudicated it is referred to the complaints committee [made up of a majority of] public members [ie] independent of the press.

    The average time taken to finalise a complaint is one month, unless the complaint proceeds to adjudication in which case [it] is about three months. …

    The APC requires its adjudication, or a reasonable summary of the adjudication, to be published with ‘due prominence’.
    With few exceptions the APC’s adjudications have always been published, albeit occasionally in a summary form …
    [The] manner of publication has [often been without] due prominence.

    [Since July 2007 adjudications] must be published in full (unless the APC agrees otherwise) … and must clearly be differentiated from other material on the page.
    The position in the publication must also be approved in advance …
    (p 231)

    The APC estimates that informal complaints (which deliver an immediate outcome satisfactory to the complainant) are substantially more numerous than the number of formal complaints.


    The effectiveness of the APC

    [Some] public members of the APC (such as legal academics) have brought considerable relevant expertise, but that other members have been able to contribute little. …

    [The constituent bodies of the APC] can impose sanctions if dissatisfied with the APC’s conduct, by reducing funding or even withdrawing altogether. …

    [During the term of APC chairman Dennis Pearce (1998-2000)] News Limited had withdrawn from the APC because it took the view that an APC adjudication was wrong and would not be published.
    (p 235)

    He agreed that the APC would never be effective unless it had secure and adequate funding.
    [He said] that the press have an incentive not to give the APC too much money, because it would only be able to criticise them better.
    [He suggested that] the APC should have a power to require publication of a correction …
    [He] described giving the APC an own motion power to investigate and prevent wrongdoing as
    an extraordinary intervention in the freedom of the press.
    [David] Flint was chair between 1986 and 1996. …
    [He] said that the APC does not require any further funding and that too much funding leads to bureaucracy.
    He opposes statutory regulation of the press as being inconsistent with democracy …
    He considers that the APC is faster than a statutory regulation …
    He is opposed to the APC being given power to award compensation …
    (p 236)

    [Kenneth McKinnon] was chair from 2000 to 2009. …
    He [considered] that statutory processes would lead to increases in cost, time and rigidity. …
    [If] properly resourced and with a rather stronger brief [the APC would handle complaints more effectively than a statutory body.]
    [He could see no] difficulty with the APC receiving government funding [provided it was] structured in a way that ensured the APC’s independence.
    He observed that [media proprietors were] equally interested in influencing its actions.

    [Julian Disney, the current chair, outlined the APC's major weaknesses:]
    • [Lack of public] awareness of the existence of the APC …
    • The inability to properly investigate a complaint for lack of binding powers.
    • [Lack] of funding.
      [The] APC receives around $1 million per annum [‒ News Limited (45%), Fairfax (24%), Seven West Media (12%).]
      To meet its responsibilities … it needs around $2 million per annum.
      [If] one major organisation were to withdraw, the APC could collapse.
      [He suggested that] membership of the APC could be secured [by making the press' statutory privileges] conditional on membership ……
      [These include exemptions from …]
      • [the Commonwealth Privacy Act granted] to ‘media organisations’ which have committed themselves to a publicly-available set of standards about protection of privacy. …
      • the [prohibition under the Commonwealth] Consumer and Competition Act [against] misleading or deceptive conduct [granted to information providers.]
    • Insufficient powers of enforcement [regarding] the publication of apologies, retractions or corrections …
    • The appearance of lack of independence from the publisher members. …
    (p 238)
    Greg Hywood [Executive and Managing Director, Fairfax Media]:
    We believe that we fund [the APC] adequately to fulfil its task. …
    There has not been [up] to this point … within the industry a high level of concern that the Press Council does not have sufficient funding.
    [The media unanimously regarded any compulsory] means of enforcing APC adjudications (for example, by imposing an obligation to publish the adjudication in a particular place, or conferring a power to require a retraction or an apology) as a grave attack on freedom of the press …
    (p 242)

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