4.1
This chapter looks more closely at the current regulatory environment for traditional media, which was outlined in the previous chapter. In particular, it sets out evidence that the current approach is weak, fragmented, and not-fit-for purpose, given the challenges of convergence and concentration. The chapter highlights that:
many traditional media organisations are not able to be held accountable for their content by a strong regulator or robust self-regulation mechanisms; and
across all media, complaints are difficult to make and appeal, and penalties do not carry sufficient weight to be meaningful.
4.2
The evidence noted that digital online platforms operating in Australia currently have no established regulatory mechanisms for oversight, enforcing standards and ensuring accountability, yet are able to enforce self‑developed standards to remove content from news media outlets at their own discretion. Although this is foreshadowed in this chapter, the following chapter goes into this matter in greater detail.
A system that is not fit-for-purpose
4.3
Many stakeholders argued that Australia's system of media regulation is not effective, citing the weakness of its mechanisms, its inconsistent governance arrangements and standards across platforms, and the lack of oversight for digital media.
4.4
For example, the Media, Entertainment and Arts Alliance (MEAA) submitted that there were around 14 different 'forms of statutory and self-regulation of journalistic content in Australia', commenting that this created a 'disjointed and fragmentary approach' that is not fit-for-purpose.
4.5
This fragmented approach was noted by the Finkelstein Inquiry and Convergence Review a decade ago. These reviews recommended the creation of a new independent regulator and platform-neutral approach for standards and oversight respectively. Professor Matthew Ricketson, Professor of Communication at Deakin University, told the committee that a decade ago when he worked on the Finkelstein Inquiry, it was clear that:
…the system of regulation was both fragmented and weak, and the environment in which the news media existed then [in 2012] was already converged, or at least converging. The regulatory system that was then in place was separate, with the Australian Press Council looking after primarily print media and the Australian Communications and Media Authority looking after radio and television, and for online media there wasn't much regulation at all.
4.6
Former Prime Minister the Hon Kevin Rudd summed up the flaws and gaps of the current arrangements, in building a case for a 'common regulatory approach' based on shared principles, to ensure news is based on 'fair, factual and balanced reporting':
The Press Council regulates, as an industry-only regulatory body, the guidelines for Australian print media, and it is, I think most commentators would agree, an utterly toothless tiger. ACMA was established to regulate the Australian broadcasting media, and, by this case, in terms of public disinformation on public health, has been demonstrated to be a toothless tiger as well. For the digital platforms, there is a voluntary digital code, as I understand it, from which News Corp have exempted themselves and said that in fact they will adhere to Press Council guidelines to govern what they should do. So there is this great, as it were, hole in the middle.
Traditional print media
4.7
Professor Ricketson noted that no systemic reform had been undertaken to address inconsistencies in the print media regulatory environment that had emerged over the last decade:
…media convergence is a lived reality for both journalists and those who consume journalism, yet the regulatory framework has changed only marginally. The Press Council now regulates the online arms of formerly print media companies, as well as some online-only outlets. But there are still some online-only outlets that aren't regulated by the Press Council. The West Australian is one prominent example and more recently the Guardian Australia. And journalistic content that is not regulated remains available online, because the Press Council is a voluntary self-regulator.
4.8
The committee notes that most of the evidence provided to this inquiry relates to the Australian Press Council's (Press Council or APC) regulatory approach, the largest of these oversight mechanisms.
4.9
The Press Council told the committee that its role in overseeing the independent self-regulation of the media was essential, and that it effectively binds members to 'high standards and to an independent complaints-handling system'. Ms Yvette Lamont, the Chief Executive Officer, outlined the purpose of the organisation:
It's essential in a democracy that the press is free to make available to the Australian people a wide diversity of views and opinions; to hold government, business and community leaders accountable; to protect the public's right to know; and to be a trusted source of news in a world of competing sources of information and, in some cases, misinformation. Meeting this objective requires high standards for editorial and journalistic practices. More than ever, people need to be able to access reliable and accurate news—news that is relevant to them, whether they live in the city or in rural or regional areas.
Publisher members of the Press Council commit to be bound by high standards and to an independent complaints-handling system. At this critical juncture there is a heightened need for independent self-regulation of the media, as the consumers of news need to be assured that complaints about breaches are assessed independently of government and publishers. The Press Council meets this need and will continue to do so by evolving, exploring partnerships and embracing opportunities and challenges.
4.10
Following the release of the Finkelstein Inquiry report and the Convergence Review, the Press Council received doubled funding from its members and strengthened independence. It also resolved to deal with complaints ‘more promptly and rigorously’, and that the ‘setting and monitoring standards of media practice will be greatly strengthened’. This included that:
Publishers' obligations to provide funding and to comply with the Council's complaints processes will become legally binding.
This includes, for example, the requirements to publish our adjudications with due prominence, a matter that has been of great concern to some complainants and the Council.
4.11
Professor Andrew Podger, a former Public Member of the Press Council until June 2021, has suggested that these reforms were made because of the ‘threat of government regulation’ expressed in the Finkelstein Inquiry and Convergence Review.
4.12
Ms Lamont conceded there are still areas for improvement, even though she asserted the value of the Press Council in setting and overseeing standards. In particular, she indicated her priorities are working to ensure a more diverse representation on the council and adjudication panel, addressing issues of convergence. She also acknowledged deficiencies with the council’s complaints-handling timeframes:
The [Press Council's] complaints-handling system, while robust, is too slow for the modern world.
4.13
The Press Council’s sets out its complaints-handling framework and powers on its website:
The main roles which the Australian Press Council may undertake when handling complaints include
investigating and considering the complaint;
seeking to facilitate an outcome acceptable to the complainant and the publication;
providing information and comment about the relevance of the Council's Standards of Practice to the particular circumstances;
making an adjudication, where appropriate, as to whether the publication has breached the Council’s Standards of Practice.
Adjudications must be published by the publication in accordance with the Council’s specific requirements.
The Council has no power to order compensation, fines or other financial sanctions. Where a complaint is upheld, the adjudication may also include a reprimand or censure, and may explicitly call for (but not require) apologies, retractions, corrections or other specified remedial action by the publisher. The Council may also call for specific measures to prevent recurrence of the type of breach in question.
4.14
The Press Council states that complaints are handled in three stages:
Level 1: Consideration by Council staff
Level 2: Consideration by Adjudication Panel
In practice, the great majority of complaints are finalised at Level 1. If a matter is referred to Level 1, the Executive Director or another member of the Council's complaints-handling staff undertakes informal consideration and, if necessary, investigates the issues, before deciding whether to seek a response from the publication. There may be further communication with the complainant and the publication in order to clarify the issues and, where appropriate, explore the possibility of an outcome which both are willing to accept. This may involve a request for response being sent to the publication that identifies particular issues on which the Council is seeking information or comment from the publication. In some circumstances, the Executive Director may conduct or organise a formal mediation if the complainant and publication agree to that course of action.
4.15
However, many participants in this inquiry argued that the Press Council is falling well-short of its purpose and stated goals, particularly in its ability to handle complaints in an effective manner and compel redress where these complaints are upheld. For example, when asked whether the Press Council was a ‘paper tiger’ with no real powers, Dr Denis Muller commented that:
…it is true that it is [a paper tiger], and it is a tragedy. It is yet another result of the lack of diversity because the financing of the Press Council is proportionate depending upon the circulation of the paper. Once again, News Corporation is a dominant force in the financing of the Press Council. Clearly the Press Council lacks independence… The Press Council over time has proved to be ineffectual.
4.16
Professor Ricketson also noted that the Press Council is funded by the organisations it is meant to oversee and investigate, which compromises its processes:
…the Press Council is funded by the news media industry but, because of the highly concentrated nature of media ownership in Australia, it remains vulnerable to being disproportionately influenced by its biggest funder—and that would be News Corporation Australia. News provides 60 per cent of the council's funding. When the media inquiries looked into the Press Council a decade ago, that level was 45 per cent. The understanding was that no single publisher could contribute more than 50 per cent of the council's funds, and yet this is the situation in which the council finds itself today.
4.17
Dr Muller told the committee that, even when the Press Council found adversely against one of its members, the outcome was not taken seriously, and therefore not meaningful for complainants:
…media members tend to treat [the Press Council’s] findings with contempt. Even when they publish negative adjudications against them, they will be published as far back in the paper as possible under a heading that says something like, 'Press Council adjudication number 1,506'—no signs of a verb or a noun anywhere.
4.18
The committee is aware of the MEAA's decision to give a notice of withdrawal from the Press Council. In a press release the MEAA suggested this was because:
Arbitrations have been inconsistent, slow and are increasingly out of touch with community expectations… The Press Council has lost credibility with journalists and even with the publishers who make up its membership. There have been too many cases in recent years where adjudications have been mocked or ignored…
In order to maintain trust in journalism in Australia, a credible regulator—where there are real consequences for breaches—is critical… It is MEAA’s view that unfortunately the Press Council is no longer fit-for-purpose for the modern, cross-platform media industry. The industry needs a simpler system of self-regulation that is consistent across all platforms and organisations, upholds the standards of public interest journalism, and serves the needs of members and the public who want ethical practices and accountability.
Case studies
4.19
Submitters who had personal experience of dealing with the Press Council confirmed the deficiencies of its oversight. Two examples are discussed here: Associate Professor Michelle Telfer; and the United Firefighters Union, Victoria (UFU Victoria). It should be noted that News Corp was provided with an opportunity to respond to these cases, but chose not to do so.
Associate Professor Michelle Telfer
4.20
Professor Telfer is an eminent paediatrician and head of the Gender Service at the Royal Children's Hospital in Melbourne (RCHGS). Her submission contended that she had been personally targeted and vilified by the News Corp title The Australian in 45 articles between August 2019 and July 2020. She considered this was an intentional campaign targeted at attacking and discrediting her work with children seeking treatment. Of this coverage, she stated:
It created a narrative that did not reflect reality. In my opinion, it was not news, it was disinformation. Its effect was to create fear and anxiety, to exacerbate the stigma, discrimination and prejudice that exists against trans children and young people in our society. It attempted to destroy my professional reputation and to destabilise the growing network of clinicians and researchers across the country who work to improve the health and well-being of this vulnerable group. It undermined the trust patients and families had in their treating clinicians and caused concern and trepidation for families who were yet to seek professional support and medical care. It also sought to influence political opinion and decision making at the highest levels of government.
4.21
Professor Telfer suggested the articles used the following methods:
'Use of headlines and by-lines that generated fear and anxiety of trans children and young people, often portraying them as victims, with their doctors portrayed as dishonest, manipulative or incompetent';
'Use of expert opinion was delivered by people who were not qualified to speak on the issue';
'Material presented as fact was often inaccurate and/or misleading and indistinguishable from opinion'; and
'Over the 45 articles, not one trans child or adolescent is interviewed and there is use of prejudicial language, derogatory terms and mis-gendering via the use of the wrong pronouns, designed to dismiss the identities of the young trans people portrayed'.
4.22
Professor Telfer’s submission made no reference to the complaint she had lodged with the Press Council, which at that time was in train. However, subsequently the Press Council found that The Australian’s coverage of this matter had breached several standards, including:
one breach of accuracy standards made in the coverage related to medical treatment standards (even if the Press Council was unable to 'resolve' broader 'conflict' in research material over 'regret rates for hormone therapy, rates of de-transition and social contagion');
that The Australian had 'failed to take reasonable steps to ensure fairness and balance' by 'repeatedly quoting the views of professionals from various fields of medicine and psychology…without explaining that they are not medical specialists in the area, and linking the criticism so personally to the complainant'; and
that although coverage of the matter 'was sufficiently justified in the public interest', this 'did not justify the extent of references to the complainant in so many of the articles or implying that the healthcare practised at the RCHGS is out of step with mainstream medical opinion'.
4.23
On this finding, the RCHGS commented:
The continued campaign has impacted Michelle, the Gender Service team, our patients and the transgender community. The APC adjudication confirms that media outlets have an obligation to deliver accurate, unbiased reporting on transgender issues.
4.24
The editorial response made by The Australian on 3 September 2021 questioned the integrity of the Press Council's findings, including by suggesting the finding may have been swayed by activists and could be an example of 'cancel culture tactics used to stifle debate'. It further stated:
The question is whether the council's stance will further constrain legitimate scrutiny of gender clinics and stand in the way of good journalistic practice and free speech. It can be argued the APC has been swayed unduly by a concerted campaign by activists not interested in this issue receiving the public scrutiny it deserves. We contend that closing debate in this way will have a chilling effect on free speech.
4.25
The Press Council responded to this statement in answers to questions on notice. It noted The Australian had complied with the Press Council’s findings in this case, prominently publishing the adjudication in print and online, as well as placing a note on archived articles. The Press Council further noted that it had no further powers to require ‘compensation, fines or other sanctions’.
4.26
Counterintuitively, the Press Council claimed that The Australian’s editorial—which dismissed much of the adjudication and cast aspersions on the underlying motives behind it—actually demonstrated the adjudication had been taken seriously and carried weight with its members:
Publications are not constrained from publishing criticisms of an adjudication provided that: they do not misrepresent what was found in the adjudication; and the Council’s Standards of Practice are complied with. The Press Council submits that public criticism of Press Council adjudications demonstrates that publications do take findings by the Council seriously. If an adjudication carried little weight, it would seem odd that a publication would publish material to defend itself from a Council finding.
United Firefighters Union Victoria
4.27
Other flaws in the Press Council's complaints handling processes were brought into focus by the UFU Victoria, which made five complaints against News Corp’s Herald Sun on 113 articles published over 2015 and 2016. The UFU Victoria argued that this deliberate campaign was misleading, inaccurate, and failed to give a right of reply.
4.28
Mr Peter Marshall, Secretary of the UFU Victoria, gave evidence about this coverage, which he called 'vilification' and 'grossly misrepresenting' the facts of the matter, which firefighters had summarised as:
…that certain sections of the media, working in concert with [the representative for volunteer firefighters in Victoria], propagated a dishonest and biased account of issues under discussion in the enterprise agreement negotiation, and vilified career firefighters as 'greedy' and 'thugs' because they argued for safer working conditions and demanded they have a say, through their union, over the quality of the equipment they are expected to use.
4.29
Mr Marshall made several points, which suggested the Herald Sun had:
made factually incorrect assertions about the UFU Victoria and its workplace bargaining negotiations;
not sought union input or responses to these allegations;
re-printed incorrect allegations after inaccuracies had been brought to the media outlet's attention; and
refused to print retractions, clarifications or corrections on any matter, even when other newspapers did so.
4.30
Regarding the effects of this vilification, Mr Marshall suggested that it:
had been an intentionally politically motivated attack, which was designed to discredit the union;
caused immense distress to union members, including loss of morale, and negative mental health outcomes; and
created prejudice and ill-will in the community against firefighters, who had been subjected to intense abuse in public and on social media.
4.31
Mr Marshall commented that the Press Council told his union it was unable to process complaints about such a large volume of material:
The Press Council ended up coming back to us [after 7 months], saying, 'We haven't got the resources to be able to deal with that volume of complaints.' As I explained in my previous appearance, the volume of complaints was not because the union vexatiously put in complaints; it was because of the extent of the vilification. So…the Press Council said, 'Give us one or two; we'll fly them up the flag and see what happens.' We just ended up withdrawing from the process [13 months after commencing proceedings]… We didn't withdraw the complaints. We just gave up pursuing them, because there was just no outcome.
4.32
The UFU Victoria commented that it considered this lack of action by the Press Council to be politically driven, and that there was 'no way of making [the Herald Sun] accountable':
…despite numerous complaints to both the Herald Sun and the Press Council, there was no real avenue to adequately address the consistent and constant media vilification. The reporting remained biased, inaccurate, and misleading. By denying the UFU [Victoria], as complainant, a forum to allow for scrutiny of the Herald Sun media coverage, the Press Council allowed Victoria’s professional firefighters to be nothing more than political footballs in the Herald Sun’s public campaign.
4.33
Mr Marshall suggested that, even should a Press Council finding be made in a complainant's favour, the consequences would be almost insignificant:
I've been around for long enough to see that, if there was a retraction, it would probably be on page 14 or 15 and it would be in small print. What would it mean? What would be the relevance?
4.34
The UFU Victoria suggested that there were few other avenues to seek redress outside the Press Council complaints system. It noted that defamation processes were costly and time consuming for individuals to pursue, but that the UFU Victoria was unable to access defamation proceedings, as most organisations do not have standing under the current provisions:
For a person who has a grievance with a media outlet, the only alternative to the impotent Press Council is defamation proceedings. Legal proceedings are extraordinarily costly, lengthy and bring with them a risk. Most individuals cannot afford to sue… [However,] the Uniform Defamation Law prohibits a corporation from bringing proceedings unless they are an 'excluded corporation'… Generally speaking, and subject to limited exceptions, only natural persons are able to sue in defamation. Advice obtained by the UFU from a prominent Queens Counsel confirms that it is very unlikely for the United Firefighters Union of Australia (UFUA) to be able to sue.
Free-to-air, subscription and public television
4.35
As outlined previously in this report, the Australian Communications and Media Authority’s (ACMA) oversight of broadcast media takes a co-regulatory approach. Under this arrangement, broadcasters must develop codes of practice, which are then registered with the ACMA. Free-to-air codes are developed by Free TV Australia; Pay TV broadcasters do this through the Australian Subscription Television and Radio Association (ASTRA). Public Broadcasters develop their own codes, which they then provide to the ACMA.
4.36
In a previous review of broadcasting standards, the committee observed that a robust and effective complaints handling process is 'a central requirement for an effective co-regulatory environment'. During the current inquiry the ACMA outlined its complaints processes, which are similar across free-to-air, subscription and public broadcasters:
Complaints made to the ACMA are referred to the broadcaster in the first instance to resolve and take action where they identify they may not have complied fully with their code of practice, and the complainant may come back to the ACMA if the complainant is not satisfied with the broadcaster's response.
We can also commence our own investigations into issues where we are made aware of serious allegations or significant public concern through complaints, our own intelligence, media reporting or other sources… Where there is a breach of the code, the ACMA negotiate with the broadcaster to take voluntary steps to address problems and avoid future breaches, or we can seek court enforceable undertakings. If there are repeated or systemic breaches of the code by a licensee, the ACMA may impose a new licence condition. If the ACMA considers there is an industry-wide problem and a code is deficient, it may put in place an industry standard. Licence conditions and standards, once applied, provide us with stronger judicial responses, such as remedial directions, civil penalties and licence cancellation.
4.37
Regarding its powers to self-refer inquiries, Ms O'Loughlin stated that the last matter it considered was the standards of broadcast coverage of the Christchurch terrorist attack in 2018. She also confirmed that 'we do not have a monitoring role' to actively look for instances where codes of conduct may have been breached, but only 'a role in which our responsibilities are enlivened when a complaint comes to us in this area'.
Co-regulatory model questioned
4.38
The committee considered evidence that suggested that the co-regulation of broadcasters by the ACMA is not sufficiently robust. However, it also considered evidence of a case study set out below, which demonstrates the limitations of the ACMA's powers in a converged media environment.
4.39
Mr Rudd noted that the ACMA has considerable regulatory powers, including to remove licenses from broadcasters, but that it was slow to investigate complaints, reluctant to use its full powers, and so has 'been demonstrated to be a toothless tiger'.
4.40
The MEAA submitted that many of its members did not believe the current regulators, including the ACMA, were 'adequately fulfilling their role in enforcing standards'.
4.41
Mr Rudd also noted that the complaints process was complex to navigate and onerous for complainants:
Ultimately, the penalties available to ACMA are huge. They can withdraw someone's licence. It's getting from the complaint to that point which seems to be lost in a Byzantine tunnel of obscurity.
4.42
This evidence contrasts with answers that the ACMA gave the committee on dealing with Sky News broadcasts in regional Australia.
4.43
Sky News has been carried by WIN in northern New South Wales, Griffith and South Australia since 2018, and by Southern Cross Austereo in Victoria, southern New South Wales and Queensland since 1 August 2021, thereby coming under the remit of the ACMA.
4.44
When asked about what action the ACMA has taken against Sky News as a broadcaster, the ACMA advised the committee:
Ms O'Loughlin: …My notes tell me that we had one complaint about the Alan Jones program, where the complainant had seen the broadcast on WIN News, and we investigated that matter under the Commercial Television Industry Code of Practice.
Senator KIM CARR: How did that complaint go?
Ms O'Loughlin: It was found to be a non-breach…
Ms Rainsford: Certainly. The complaint related to an allegation that Mr Jones had inaccurately stated that children don't spread COVID, that masks were useless, that shutdowns didn't work and insinuated that COVID was a hoax. We looked into those matters under a range of provisions in the Commercial Television Industry Code of Practice. I understand that we found some of the allegations were not to be breaches. We did find some concern around the accuracy of some of the statements, but, in that, a correction had to be made. The way that code operates means that that was not a breach…
4.45
The committee further pressed the ACMA on Sky News’ obligations as a broadcaster on regional television:
CHAIR: Let's be very clear, Ms O'Loughlin. We're not asking you about the number of complaints. We've heard that. What we're asking is whether Sky News, free-to-air as opposed to subscription television, is abiding by their obligations.
Ms O'Loughlin: We do not see evidence before us, through the complaints process, that they are not.
CHAIR: You don't look for it, do you?
Ms O'Loughlin: We do not have a monitoring role.
Senator KIM CARR: That's right. Do you have any evidence that Sky News's arrangements are, in fact, consistent with a highly responsible corporate culture? Is it possible that the arrangements are, in fact, working really well, that the reason you don't have any complaints is because there's nothing to complain about?
Ms O'Loughlin: I can't speculate on why people make complaints. They watch programming. They complain to us.
4.46
This highlights the inadequacy of the regulatory framework and the difficulty in ensuring broadcasters comply with their obligations. Even when the regulator holds concerns about accuracy, it is difficult for it to find that the code has been breached.
4.47
ABC Alumni suggested that the ACMA standards are inconsistent between commercial and public broadcasters. Their submission argued that commercial standards had been loosened in 2015, removing provisions to ensure a diversity of opinions are represented, whereas public broadcasters must do so:
The Commercial TV Industry Code of Practice…is now more specific: licensees must 'ensure viewpoints included in the program are not misrepresented'. There is no longer even an implicit requirement that all major viewpoints should be presented over time. Anyone complaining to the ACMA about the one-sided nature of Sky News's analysis and commentary, whether on a free-to-air WIN channel or on its subscription service, would find that no clause of the relevant codes supports such a complaint.
By contrast, the ABC's Editorial Standards specifically require its program‑makers to 'present a diversity of perspectives so that, over time, no significant strand of thought or belief within the community is knowingly excluded or disproportionately represented' (4.2), and NOT to 'unduly favour one perspective over another' (4.5). Citizens who believe that the ABC does not give adequate coverage to major viewpoints DO have grounds for a complaint to the Corporation, and ultimately, to ACMA.
4.48
However, Free TV Australia argued that the ACMA's requirements for commercial broadcasters are more restrictive than those covering public broadcasters:
Before registering the Free TV Code, the ACMA must be satisfied that it provides appropriate community safeguards for the matters it covers; is endorsed by a majority of commercial television stations; and members of the public were given adequate opportunity to comment. Significant penalties apply for non-compliance. However, despite also offering a free‑to-air television broadcasting service, the regulatory model that the ABC and SBS operate under only requires them to notify the ACMA of their Codes of Practice. The Free TV Code development process should be aligned with that of the national free-to-air broadcasters to avoid inequitable regulatory outcomes.
4.49
The committee is also aware of public commentary on the ABC's complaints handling process, which suggests its model of self-assessment of complaints in the first instance has led to it ignoring complaints—even those made by the ACMA and its internal bias regulator, and argued that it is prone to making judgments in its own favour.
Calls for a unified regulatory and standards system
4.50
A wide range of stakeholders called for a unified regulatory system that covered all players in the media sector, regardless of platform. For example, Professor Ricketson observed that the current approach was no longer 'fit‑for‑purpose' and should be reconsidered:
…it made no sense then, back in 2012…to have separate media regulatory bodies for separate parts of the media, when the media was already being converged. It makes even less sense now… I think there is a need for a new body that would regulate print—as in text—radio, television, online and, indeed, as you alluded to earlier in questions to witnesses, the big tech platforms, which are public and which produce huge amounts of content and/or the mechanism by which it's distributed.
4.51
Mr Rudd also highlighted the need for uniform regulatory system and standards:
The truth is, given media convergence across platforms, from print to digital to classic electronic, radio and the rest, what we need is an increasingly uniform set of regulatory arrangements rather than those we've inherited from the past.
4.52
Ms Karen Percy, the Federal Vice-President of the MEAA, told the committee that her organisation and its membership supported consolidation of the regulatory environment:
[We] would like to see a streamlined approach to regulation. We know that we need a stronger, a simpler oversight mechanism that is transparent, that people easily understand and that is easy for people to access. A one‑shop-stop is what we'd like to see. Sixty-eight per cent of our members worry that ACMA and the Press Council and other regulatory systems within our industry are just not adequately carrying out their roles.
There are too many sets of rules. Whether it's your separate broadcasters and different mechanisms for digital and different print media, there are too many. We know there's wider frustration not just within our sector but from the public about regulation and how news consumers can take part in regulation… There's a real lack of consistency between [the current self‑regulatory approaches]. Members of the public, whether they're listeners, readers, viewers or our members, really don't have any recourse if you have issues about something.
4.53
The Centre for Media Transition suggested that a single set of standards should be adopted across all platforms, with a single complaints mechanism that is independent of both government and news organisations themselves (i.e. not handled by the organisation that is the subject of complaint):
We propose that all businesses involved in the news process be subject to a single, consolidated news media standards scheme as a way to foster confidence in authoritative sources of news and information. This need not mean the same rule for all participants—there could be certain minimum standards and opt-in arrangements for higher standards—but all participants would be subject to the same core obligations and the same, independent industry-based accountability mechanism.
4.54
It was argued that this would reflect the 'reality of how businesses are presently structured, across platforms', and that it would have a range of benefits for consumers and businesses, including digital platforms:
...the implementation of uniform standards that apply the same rule about accuracy wherever the content appears is a logical and necessary next step [of reform]. The benefits of a uniform scheme would enhance Australian voters’ ability to access reliable, accurate and independent news by providing a single destination for consumer complaints and recognising that platforms are firmly established in the news ecosystem, and that they have responsibility for the way in which news and journalism, as public goods, are treated. Furthermore, it would have the advantage over alternative approaches in that it would not treat platforms as publishers.
4.55
Some cited the findings of the Australian Competition and Consumer Commission (ACCC) Digital Platforms Inquiry that recommended the development of a platform-neutral approach to promote competition, which would have benefits for media organisations, consumers, and the economy. The government response to the ACCC report concurred that there is a need:
…to reform media regulation towards an end state of a platform-neutral regulatory framework covering both online and offline delivery of media content to Australian consumers.
4.56
A number of submitters pointed out that there is currently a void in Australian media regulation regarding the tech giants, particularly Google and Facebook. This matter is discussed in the following chapter of this report.
Other potential considerations for reform
4.57
The evidence canvassed a number of other potential reforms to current media regulation.
Merger and competition laws
4.58
Some evidence argued that Australia's media merger laws do not have the capacity to assess the impact of mergers in the new converged environment.
4.59
The ACCC submitted that it only has the capacity to assess and approve mergers on the basis of competition, not public interest or media diversity:
…the ACCC's focus is always on competition, in particular, whether the merger lessens competition for readers/viewers, whether the merger lessens competition for advertisers, and/or whether the merger lessens competition in the buying or selling of content. A merger may lead to reductions in choice, quality and diversity, but not cause a reduction in competition.
4.60
Professor Allan Fels, Chair of the Public Interest Journalism Initiative (PIJI), commented that the current approach to mergers within the broader converged media landscape should be reconsidered:
We have merger laws, but the competition merger laws only operate within an industry. So, if there's a newspaper merger, that's covered. But, if there is a cross-media merger, generally the competition law doesn't stop it. That gives rise to the issue of whether there should be some kind of test that goes beyond competition and runs into some kind diversity test or public interest test.
In the Productivity Commission report on it many years ago, they said, yes, there should be a public interest test, which would include criteria like diversity, pluralism and so on, I think the Convergence Review reached a similar conclusion… There was a general belief that those cross-media ownership restrictions didn't work terribly well and were somewhat outdated; it was better to have a general public interest test done by an independent regulator.
4.61
The MEAA called for stronger merger laws that could 'prevent mergers that lead to more harmful levels of media concentration'. Similarly, Mr John Menadue called for a temporary moratorium on mergers or asset transfers between the large four media companies, News Corp, Nine, Seven West and Australian Community Media (ACM).
4.62
Others called for a 'public interest test' to be added to the framework for considering mergers. For instance, pointing to the United Kingdom (UK) approach, the Centre for Media Transition stated:
In the event of mergers between media organisations an independent regulator should be able to apply a public interest test to assess whether the particular combination of media groups will benefit audiences in terms of the provision of public affairs content in the markets if the transaction were to proceed.
Much of our thinking on this aspect draws on the framework used in the UK where a public interest test is applied to media mergers by the media regulator, separately from the competition test applied by the competition regulator.
In our view, a fundamental flaw in the Australian regulatory arrangements is the reliance solely on outdated caps on ownership of commercial television and commercial radio licences.
Introduction of a ‘fit and proper person test’ or sanctions
4.63
Many submitters and witnesses were concerned there was no mechanism to take action against media companies that consistently and wilfully act in bad faith.
4.64
For instance, the Centre for Advancing Journalism (CAJ) suggested that News Corp outlets systemically spread misinformation without fear of consequence. It noted that the restoration of a ‘fit and proper' person test in the BSA would act as a constraint on this kind of behaviour:
The reintroduction of a ‘fit and proper person’ test in the Broadcasting Services Act would open Murdoch’s holding of this licence to public scrutiny over conduct such as this. Equally it would open to public scrutiny all other applications for broadcast licences in the newly deregulated media ownership environment. This would insert an opportunity for public interest considerations to be weighed as factors in decisions whether to grant a broadcasting licence.
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The CAJ noted that Australia’s framework already has a ‘suitable licensee’ test in the BSA, which replaced a fit and proper person test in 1992:
In 1981 the Broadcasting Act was amended to give the Australian Broadcasting Tribunal [ABT] power to apply a ‘fit and proper person’ test to applicants for broadcast licences. In 1989 it found Alan Bond to be not a fit and proper person to hold a broadcasting licence, citing five grounds, two of which concerned Bond’s giving what the ABT said was misleading or false evidence to the Tribunal.
In 1992 this test was replaced by a ‘suitability’ test as part of what the Government of the day touted as a streamlined licensing procedure.
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However, the Centre for Media Transition noted that the current provision for a ‘suitable licensee’ makes the BSA much less robust than the more ‘far-reaching’ fit and proper person test contained in the UK model. In the UK system, its regulator Ofcom:
…shall not grant a licence to any person unless they are satisfied that he is a fit and proper person to hold it…[and] shall do all that they can to secure that, if they cease to be so satisfied in the case of any person holding a licence, that person does not remain the holder of the licence.
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Dr Michael Mann, a distinguished professor of atmospheric science who appeared in a private capacity, was not specific about the mechanism, but called for 'sanctions for media outlets that repeatedly lie to their readers':
I call it a lie because it's wilful misinformation and disinformation that is being promoted by the Murdoch media around the world. Here in the United States, of course…they played an instrumental role in this deadly [January 2021] insurrection and attempt to overthrow our democratic government. The fact that the Murdoch media played a wilful role in that should chill every person to their bones. Clearly, they need to be reined in in Australia, in the United States and around the world.
Divestment powers
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Some witnesses also suggested that divestment powers in competition laws could be considered to tackle monopolies in the media sector, whereas others recognised this would be politically impossible to introduce.
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For example, Professor Fels observed that 'there's no divestment power [in Australian competition law]. You can't break up someone who you think is too concentrated'. The submission made by a number of experienced newspaper editors suggested that forced divestment is 'politically implausible and legally questionable'.
Committee view
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This chapter has set out the evidence about the current regulatory approach to media regulation in Australia, and found that it is fragmented, weak, and inconsistent across the traditional formats of print and broadcast media.
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It is not a new concept that Australia's approach to media regulation needs reform. This report has noted several times that the Finkelstein Inquiry and Convergence Review found more than a decade ago that there was a clear need for a new approach. More recently the ACCC’s Digital Platforms Inquiry recommended major reforms to the Australian media landscape.
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It is apparent that the weak and fragmented regulatory system for traditional media noted in these earlier reviews is still not fit-for-purpose. The imperative for reform noted repeatedly in the past is even greater now, given the increased pace of convergence and concentration in the sector.
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Submitters across the board—from global media conglomerates to individual submitters—perceived that a new approach to a converged marketplace was necessary.
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As the Press Council told the committee, there are immense challenges stemming from a situation:
…where similar content on different platforms can be subject to different regulatory regimes, and the emergence of digital platforms which have disrupted the traditional revenue model of publishers and which disseminate stories through their own channels that are not part of any established regulatory system.
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This need for a consistently applied framework to address convergence issues and the unregulated digital media was also supported by academic, industry and individual commentators.
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There is also a need to make media complaints processes more efficient and robust. The evidence clearly demonstrates that the self-regulation of the print media is woefully inadequate, and the ACMA's oversight of broadcast media is slow, complex, onerous for complainants, and often inconclusive.
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This is clearly demonstrated by the case studies considered by the committee. The Press Council’s adverse findings regarding Professor Telfer were dismissed by The Australian as partisan and compromised by activists. The fact that a News Corp‑owned entity can be so dismissive of the findings of an industry-based regulator, that derives 60 per cent of its funding from News Corp publications, demonstrates both the dubious ethical standards guiding The Australian’s editorial judgment, and the impotence of the Press Council.
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Moreover, the Press Council's inability to investigate the serious complaints made by the UFU Victoria, due to claims that the volume of material containing allegedly egregious errors and vilification was too onerous, speaks volumes to its inefficiency. It suggests not only that the Council does not have sufficient resources to investigate serious claims, but also that it could be perceived at times to be reluctant to investigate a publication that is the principal funder of its activities.
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The committee is also cognisant that some submitters are not satisfied with the complaints handling processes of the public broadcasters, the ABC and SBS. Indeed, these processes are now the subject of an inquiry before the Senate Environment and Communications Legislation Committee.
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The Senate has directed the Legislation Committee to suspend this inquiry ‘until the independent review of the ABC’s complaints system has been completed’, expected to be in April 2022.
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This report makes no comment on that inquiry, beyond this point: complainants who are not satisfied by the findings of the public broadcasters’ complaints handling processes have exactly the same recourse as unsatisfied complainants to the commercial or subscription broadcasters: the right to refer these matters to the ACMA for determination.
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Even though the complaints oversight is broadly the same for all broadcasters subject to the ACMA process, the ABC and SBS’s operations are held to a higher level of accountability in crucial aspects: they are scrutinised through various Parliamentary and Senate processes; and they are bound by their codes to reflect a diversity of views in their content, where the commercial broadcasters are not.
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Rather than the Government using Senate committee processes to conduct a thinly-veiled political attack on the ABC, a more worthwhile venture would be to investigate how effectively the ACMA regulates, and determines complaints against all broadcasters within its oversight.
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This inquiry has found that the ACMA's approach to managing misinformation and poor standards is woefully inadequate for a modern, converged media sector.
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The committee is very concerned that the ACMA is not necessarily aware of harmful material that may put people's lives at risk, without a public complaint being raised. Moreover, it seems that even when complaints are made, the ACMA's processes cannot address them in a timely and efficient manner.
Conclusion
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It is clear that the current system of oversight is inefficient, uneven across traditional media platforms and not fit-for-purpose. The call for a consistent oversight regime was expressed across the evidence. Commentators, academics and individuals consistently recognised that the gulf between regulatory systems amongst traditional media makes the current approach unworkable.
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Moreover, as the next chapter shows, many of these submitters recognised that it is remarkable that that there is no established and reliable framework to ensure digital giants, Google and Facebook, are responsible and accountable elements of the Australian media landscape. These concerns were also expressed by large global media outlets, who argued stridently for government to regulate digital platforms.
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The following chapters also discuss ways in which the Commonwealth could best move towards a fair, equitable and reasonable system that levels the playing field for all elements of the media sector, in a consultative, responsible and independent manner.