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News Media (Self-regulation) Bill 2013

Introduced into the House of Representatives on 14 March 2013
Portfolio: Broadband, Communications and the Digital Economy

News Media (Self-regulation) (Consequential Amendments) Bill 2013

Introduced into the House of Representatives on 14 March 2013
Portfolio: Broadband, Communications and the Digital Economy

Summary of committee view

1.1        The committee considers that these bills appear to limit the right to freedom of expression and freedom of association, and notes that in order to justify these limitations, it must be demonstrated that the new scheme seeks to address a legitimate objective and the measures adopted are necessary and proportionate.

1.2        The committee considers that the material presented in support of the bill does not provide sufficient information about supposed inadequacies or the ineffectiveness of current systems in regulating the news media to allow an informed assessment of the need for, and proportionality of, the proposed scheme of regulation.

1.3        Before forming a view on the compatibility of these bills with human rights, the committee seeks further information as to why changes to the regulation of the news media is considered necessary and whether any other less intrusive alternatives to the proposed scheme were considered.

Overview

1.4        These bills form part of a package of measures[1] that represent the government's response to two reviews that were conducted in 2011 and 2012 – the Convergence Review and the Independent Inquiry into the Media and Media Regulation. These bills respond to matters raised in both inquiries relating to standards of media news and commentary.

1.5        The bills seek to introduce a new scheme whereby:

• a media organisation will only continue to be exempted from the requirements of the Privacy Act 1988 if that organisation is a member of a 'news media self-regulation body';[2]
• the Public Interest Media Advocate (PIMA)[3] will have the power to declare that a specified body corporate is a 'news media self-regulation body';[4]
• A body corporate can only be declared to be a news media self-regulation body if it has a 'news media self-regulation scheme' in place.[5] The PIMA has a discretion to declare a body to be a news media self-regulation body, but in exercising that discretion the PIMA must have regard to a number of matters, including:
  • the extent to which the body's self-regulation scheme is likely to be effective;
  • the extent to which standards made under the scheme deal with privacy, fairness, accuracy, the professional conduct of journalism and community standards;
  • transparency in the standards and compliance with them;
  • the availability of remedial action under the scheme and the ability for complaints to be made;
  • the extent to which decision-making under the scheme is independent from news media organisations, news media owners, governments and government authorities;
  • the need for freedom of expression and the need to protect individual privacy.
• Before making a declaration that a body is a news media self-regulation body, the PIMA must consult the Privacy Commissioner, publish the draft declaration and invite submissions.[6] The PIMA also has the power to hold hearings in the carrying out his or her functions or exercising powers.[7]

Compatibility with human rights

1.6        These bills are accompanied by a self-contained and detailed statement of compatibility, which address issues related to the bills' impact on the enjoyment of freedom of expression, the right to privacy, freedom of association, and the right to take part in political and public affairs.

General

1.7        The stated purpose of the bills is ‘to promote compliance by significant providers of print and online news and current affairs with minimum standards both in the practice of journalists and in the effectiveness of complaints handling arrangements’.[8]

Freedom of expression

1.8        The guarantee of freedom of expression in its individual and systemic forms is considered to be a fundamental pillar of a free and democratic society. The UN Human Rights Committee has stated in relation to the guarantee contained in article 19 of the International Covenant on Civil and Political Rights (ICCPR):

A free, uncensored and unhindered press or other media is essential in any society to ensure freedom of opinion and expression and the enjoyment of other Covenant rights. It constitutes one of the cornerstones of a democratic society. The Covenant embraces a right whereby the media may receive information on the basis of which it can carry out its function. The free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential. This implies a free press and other media able to comment on public issues without censorship or restraint and to inform public opinion. The public also has a corresponding right to receive media output.

As a means to protect the rights of media users, including members of ethnic and linguistic minorities, to receive a wide range of information and ideas, States parties should take particular care to encourage an independent and diverse media.[9]

1.9        Given the fundamental nature of this right, international human rights bodies have scrutinised with great care any limitations on freedom of expression, including the introduction of regulatory schemes for media. They have insisted that States demonstrate convincingly the need for measures which prevent or restrict the operation of a free and independent media,[10] and have been especially concerned about content-based restrictions and restrictions which might inhibit the expression of views that contribute to public and political debate.

1.10      At the same time, article 19(2) provides that the exercise of freedom of expression carries with it special responsibilities, and certain limitations on the exercise of freedom of expression are permissible under article 19(3). International human rights bodies have also drawn attention to the obligations of States to protect other rights, in particular the rights to privacy and reputation, which may be affected by the exercise of freedom of expression.

1.11      When considering the permissible scope of freedom of expression in a democratic society, human rights bodies have noted that the guarantee protects the expression of views that may be ill-informed, exaggerated, reliant on comedy or parody, offensive to others, and wrong. The UN Human Rights Committee has underlined the extensive scope of the right:[11]

Paragraph 2 [of article 19] requires States parties to guarantee the right to freedom of expression, including the right to seek, receive and impart information and ideas of all kinds regardless of frontiers. This right includes the expression and receipt of communications of every form of idea and opinion capable of transmission to others, subject to the provisions in article 19, paragraph 3, and article 20. It includes political discourse, commentary on one’s own and on public affairs, canvassing, discussion of human rights, journalism, cultural and artistic expression, teaching, and religious discourse. It may also include commercial advertising. The scope of paragraph 2 embraces even expression that may be regarded as deeply offensive, although such expression may be restricted in accordance with the provisions of article 19, paragraph 3 and article 20.

Paragraph 2 protects all forms of expression and the means of their dissemination. Such forms include spoken, written and sign language and such non-verbal expression as images and objects of art. Means of expression include books, newspapers, pamphlets, posters, banners, dress and legal submissions.  They include all forms of audio-visual as well as electronic and internet-based modes of expression.

Permissible restrictions on freedom of expression

1.12      Even though restrictions are permissible in certain circumstances, human rights bodies have insisted that any restrictions be convincingly justified and narrowly tailored to the achievement of a legitimate purpose. As the UN Human Rights Committee has stated:

Restrictions must not be overbroad. The Committee observed in general comment No. 27 that ‘restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve their protective function; they must be proportionate to the interest to be protected...The principle of proportionality has to be respected not only in the law that frames the restrictions but also by the administrative and judicial authorities in applying the law’. The principle of proportionality must also take account of the form of expression at issue as well as the means of its dissemination. For instance, the value placed by the Covenant upon uninhibited expression is particularly high in the circumstances of public debate in a democratic society concerning figures in the public and political domain.

When a State party invokes a legitimate ground for restriction of freedom of expression, it must demonstrate in specific and individualized fashion the precise nature of the threat, and the necessity and proportionality of the specific action taken, in particular by establishing a direct and immediate connection between the expression and the threat.[12]

1.13      It is against this general background that the committee approaches the scheme proposed by the bill. The purpose of the bill is to bring a range of news media within a new regulatory framework. Some of the media covered by the bill are already members of a self-regulatory body, others may be subject to regulation by the Australian Communications Media Authority (ACMA), but others are not currently subject to any form of regulation.

1.14      News organisations by virtue of their status as such currently enjoy the benefit of exemption from certain provisions of the Privacy Act 1988. Subsection 7B(4) of the Privacy Act 1988 provides:

(4) An act done, or practice engaged in, by a media organisation is exempt for the purposes of paragraph 7(1)(ee) if the act is done, or the practice is engaged in:

(a) by the organisation in the course of journalism; and

(b) at a time when the organisation is publicly committed to observe standards that:

(i) deal with privacy in the context of the activities of a media organisation (whether or not the standards also deal with other matters); and

(ii) have been published in writing by the organisation or a person or body representing a class of media organisations.

1.15      The New Media (Self-regulation) (Consequential Amendments) Bill 2013 proposes to add a new paragraph 7B(4)(c) to the Privacy Act 1988 which will include the further requirement that, in order to benefit from the exemption, the news media organisation must at the relevant time be a current member of a news media  self-regulation body (within the meaning of that Act).

1.16      The statement of compatibility notes that:

By being a member of a declared news media self-regulation body, a news media organisation will retain the exemption from the National Privacy Principles and other provisions of the Privacy Act that it currently enjoys under subsection 7B(4) of the Privacy Act but will commit to observance of standards framed more specifically for the print and online media through its membership of a news media self-regulation body declared by the Public Interest Media Advocate. This approach of linking membership of a recognised body to certain privileges of journalism is a simple and transparent mechanism to promote effective and independent self-regulation of print and online news media organisations.

1.17      Without the benefit of this exemption, it would be difficult, if not impossible, for many media organisations to carry on their news work.

1.18      The effect of the bills are, as a practical matter, to require a news media source to become a member of a self-regulation body whose constitution, powers and operations satisfy a number of criteria. The PIMA is the arbiter of whether the self-regulation organisation satisfies those standards and the PIMA can declare that a particular organisation no longer satisfies the criteria, and can therefore lose the benefit of their exclusion from certain provisions of the Privacy Act 1988.

1.19      While the actual direct regulation of the standards of news media bodies, including consideration of complaints, is not undertaken by a statutory body (the PIMA), nonetheless the proposed scheme represents a significant change in the manner in which Australian media have been regulated. Outside the area of broadcasting, the regulation has largely been self-regulation on a voluntary and non-binding basis (in the case of many newspapers and their on-line platforms, through the Australian Press Council).

1.20      Removing the exemption of news media organisations from the Privacy Act 1988 appears to effectively limit the right to freedom of speech of the journalists who may no longer have the benefit of the exemption and limits the rights of readers and viewers to receive information unfettered by these confidentiality requirements. Enabling the PIMA to determine which media organisations can have access to that exemption is a form of regulation on how news media organisations operate, and appears to engage and limit the rights of these organisations to freedom of speech, and the rights of people to receive information from such news organisations. In order to justify an important change of this sort, the Minister must be able to point to a legitimate objective for such regulation, show that the proposed scheme bears a rational connection to this objective, and demonstrate that it is a necessary and proportionate measure for achieving that objective.

Right to privacy – positive measures and a permissible basis of limitation of freedom of expression

1.21      Under the ICCPR States parties have an obligation to take positive measures to ensure that the right of a person to privacy and reputation are not unlawfully or arbitrarily interfered with by the state or by non-state actors. This includes protection against unlawful or arbitrary interference with privacy and reputation by the media.

1.22      The statement of compatibility argues that the measures contained in the bill ‘will promote news media organisations’ respect for the privacy of individuals through effective and transparent self-regulation which includes mechanisms to achieve compliance with appropriate standards of practice and opportunities to have concerns addressed.’[13] It states that the bill will balance the rights of the new media to publish and the rights of individual in relation to privacy and reputation.

Approach to evaluation of the encroachment of freedom of expression

1.23      The bill states that its purpose is to promote compliance by media with standards set by the media industry itself, although these must, in the view of the PIMA, satisfy the various criteria set out in proposed new section 7. A number of these criteria are related to objectives the pursuit of which is permitted by article 19(3) of the ICCPR, for example the reference to privacy (covered by the permissible objective of ensuring ‘respect for the rights and reputation of others’). However, the range of criteria that the PIMA must consider goes well beyond the matters mentioned in article 19(3). The statement of compatibility does not clearly articulate how the requirement to take into account a wide range of factors in determining whether a self-regulation body should be a declared news self-regulation body, in general promotes an objective permitted by article 19(3) and is a reasonable and proportionate means of doing so.

1.24      On the basis of the material provided with the bill it is difficult to assess whether the limitation on freedom of expression is justified. Neither the explanatory memorandum nor the statement of compatibility demonstrate why these reforms are necessary. They do not provide any detailed information or empirical data on the extent of the unacceptable intrusions by the news media on personal privacy in Australia, or of the adequacy or otherwise of existing procedures (media specific or under the general law) for obtaining redress if there is a violation of the right to privacy. No doubt there are some (possibly many), for which there may be no redress, but the statement of compatibility takes that for granted rather than demonstrating it.

1.25      To the extent that current regulation may not be effective, the question then becomes one of proportionality— the question arise of whether a major new scheme of regulation is a proportionate response to any demonstrated inadequacies in the current system or whether some other less intrusive alternative might achieve similar results. The statement of compatibility does not provide any information about other options considered by the government.

Freedom of association

1.26      The statement of compatibility identities freedom of association as a right potentially engaged by the bill. However, it argues that even though the scheme ‘encourages’ certain news media organisations to become members of a self-regulation body, 'membership ... remains voluntary under the scheme' and accordingly the bill 'does not limit the right to freedom of association'.[14]

1.27      In assessing the impact of a legislative measure on the enjoyment of rights, international human rights jurisprudence looks not only at the formal elements of a law but at its practical impact. The scheme established by the bill conditions a media organisation’s enjoyment of the journalist’s exemption from the Privacy Act 1988 on it being a member of a declared self-regulation body (that is, one that is in compliance with the criteria set out in the bill, in the assessment of the PIMA). Without the benefit of that exemption, it would be extremely difficult, if not impossible, to engage in news journalism, in particular on a competitive basis. Accordingly, as a practical matter most news organisations would feel compelled to join such an organisation. Indeed, the success of the scheme proposed seems premised on the existence of such compulsion in practice if not in law.

1.28      Thus, the guarantee of freedom of association in article 22 of the ICCPR is engaged. The question becomes whether the restriction on the enjoyment of that freedom is justified. This raises similar issues to the question of whether the scheme embodies permissible limitations on freedom of expression.

1.29             The committee considers that the material presented to the Parliament in support of the bill does not provide sufficient information about supposed inadequacies or ineffectiveness of current systems for the regulation of media to allow an informed assessment of the need for, and proportionality of, the proposed scheme of regulation.

1.30      The committee intends to write to the Minister Broadband, Communications and the Digital Economy to request further information as to why changes to the regulation of the news media is considered necessary and will ask whether other less intrusive alternatives to the proposed scheme were considered and, if so, why this scheme was chosen over any less intrusive measures.

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