5.1
The previous chapter outlined the compelling evidence that the current regulatory system for traditional media is weak, ineffective and inconsistent even within specific media formats. In short, it is not fit-for-purpose and long overdue for reform.
5.2
This chapter moves to consider the further challenges posed by the recent and dramatic rise of the ‘digital giants’ as major players in the media sector, particularly the regulatory void regarding digital platforms, especially Google and Facebook. This includes the lack of suitably robust standards, complaints and oversight mechanisms for a modern converged media that is fluid across traditional and digital platforms.
5.3
Over the course of this inquiry, the committee has been aware of strident calls from traditional media organisations and independent commentators for governments to regulate digital platforms and social media companies. Some of these concerns were discussed in the previous chapter.
5.4
This chapter discusses more recent calls for government intervention in the online space, which have expressed: the disjuncture between the regulatory systems of traditional and new media; the competitive nature of traditional and new media; as well as widely-held expectations on the role of government.
5.5
The chapter includes consideration of the recent suspension of the News Corp broadcaster Sky News from the Google-owned platform YouTube—an event that played out over the course of this inquiry. This incident illustrated to the committee the regulatory chasm between the unregulated new digital platforms, that are unaccountable to any external standards or regulatory frameworks, and the traditional old media forms, now increasingly converged across platforms and subject to a confusing patchwork of regulatory oversight.
5.6
This case study brings into stark relief the traditional media’s frustration with the power of the new platforms to remove content, which could be used to censor or restrict information arbitrarily, and their calls for government to consider regulation in this complex, contested and rapidly evolving area.
5.7
This development deeply concerns many traditional news organisations, and similarly concerns the committee.
5.8
However, the case study also illustrates the complexity of the regulatory system applying to traditional news media, particularly when content appears across platforms, including on unregulated social media channels and digital platforms.
5.9
It also highlights the failures of the current system, particularly the inability of the Australian Communications and Media Authority (ACMA) and other bodies to adequately address misinformation and other complaints about content produced by traditional media.
Concerns over the regulatory void for digital platforms
5.10
A number of submitters told the committee that they were concerned about the lack of oversight and accountability of digital platforms that host news media content.
5.11
In evidence, Facebook underplayed its role in the Australian news media ecosystem. Ms Mia Garlick, Director of Policy for Facebook, said:
With respect to Facebook, we are primarily a service that Australians use to connect with friends and family, to engage in community groups that they're passionate about and to follow pages that they're interested in. News is not the primary reason people come to Facebook, and news is also highly substitutable on our services. When there is less news on Facebook, people engage with other content, and the revenue that we generate from news is virtually zero.
In addition to news only being a small part of people's experience on Facebook, all evidence indicates that Facebook does not play a significant role in the ability of Australians to access news...
5.12
The committee asked Google whether it was subject to oversight under the Australian system of media regulation. Ms Samantha Yorke, Senior Manager, Government Affairs and Public Policy suggested that the organisation had recently:
…worked very closely with the ACMA on the development of the first Australian Code of Practice on Disinformation and Misinformation. While it is a voluntary code, it does set out a number of commitments that all of the signatories have signed onto, and the overseeing regulator for that code is the ACMA.
5.13
Ms Yorke outlined that Google was also subject to a number of other non‑regulatory accountability mechanisms:
…first and foremost we comply with the law, including antidiscrimination laws. From there, we are accountable to a number of different entities when we develop our community guidelines: we're accountable to governments, of course; we're accountable to our users, who give us lots of feedback about how our policies are working and how they're impacting the content that they are seeking to distribute on the issues platform. We're also accountable to our advertisers. YouTube is an ad-funded platform. It's made available for free to people around the world. Advertisers are also very quick to let us know if they think our policies are out of step or in some way unreasonable or unrealistic, based on community standards and expectations. So there are a range of entities that we do feel very directly accountable to, when we develop these policies.
5.14
However, significant concerns were expressed by members of traditional media organisations that the digital platforms are not subject to more formal scrutiny and accountability standards and oversight. For example,
Mr Robert Thomson, Global Head of News Corp, suggested that the real challenge facing Australian media is not diversity, but the lack of an agreed consistent set of regulatory expectations and standards for digital platforms:
The new big digital players are not subject to the laws that are imposed upon the traditional players. So diversity is not an issue; consistency is an issue… I think the best thing is for parliament to introduce legislation that covers the new big digital players.
5.15
Along similar lines, Mr Whittaker, Chief Executive Officer of Sky News Australia asserted that digital platforms can enforce self‑developed standards to remove content from media outlets at their own discretion, and with no external oversight:
It is now beyond debate that YouTube is a publisher, selectively editing content for political or commercial reasons, but unlike traditional media it does not accept any of the regulatory or legal burdens that being deemed a publisher carries with it.
5.16
Mr Thomson drew this point out further. He suggested it was time for the digital giants Google and Facebook to accept responsibility and accountability, in the same way as traditional media:
They are a publisher. They publish information, and, as you well know, there was a recent court case in Australia which found a News organisation, us, responsible for comments on the Facebook site about content that may have originated with News Corp but was published by Facebook. One of the distinctions is that, if people have a complaint about an article, and there needs to be accountability with a newspaper, there are so many routes by which we can be held accountable…whether it's a standards editor, whether it's a readers' editor, whether it's a corrections editor, whether it's a media regulator, whether it's the libel laws…there are ways to hold publishers to account. Unfortunately, that's not yet the case for the big digital platforms.
5.17
Mr Thomson saw creating these mechanisms as a two-stage process. First, he thought it essential that organisations create their own internal mechanisms to set standards and deal with complaints. Secondly, he asked:
…what is the external mechanism of oversight? Both of those mechanisms are missing at the moment [in the digital realm]… I think if anybody who operates in Australia playing a role of content provider in order to make money should be subject to Australian jurisdiction.
5.18
Other traditional media companies agreed. Nine told the committee:
This is the largest threat to media diversity in Australia—the uneven approach to regulation (resulting in reduced ability to derive revenue whilst simultaneously being held to a higher journalistic and content standard than digital platforms and other new entrants in the Australian media landscape) is having a disproportionate effect on the sustainability of Australian media companies.
5.19
The Australian Press Council also noted issues stemming from the convergence of traditional and new media:
…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.
5.20
As well as noting that online platforms are unregulated, Mr Stevens of the Australian Press Council (APC or Press Council) noted the need to harmonise the self-regulatory system of traditional print media and the regime broadcasters are under, which is ultimately a Commonwealth agency:
…one of the challenges of convergence, because some areas of the media, such as broadcasters, are in fact under the auspices, if you like, of ACMA. Others, the more traditional print media, are not. They are in a different self‑regulatory environment. One of our challenges is trying to bring the two different environments together.
5.21
The government has indicated that it considers reform is needed in this space. Responding to the Australian Competition and Consumer Commission (ACCC) inquiry into digital platforms, the government made several commitments, including:
…commencing a staged process 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...
5.22
In addition, the committee is aware of some recent concerns about Facebook and Google’s behaviour—not only regarding their place in the news media landscape, but also relating to their inability to enforce internal standards.
5.23
A recently filed antitrust case in the United States (US) alleges that Google and Facebook colluded in 2017 to reinforce their dominance of online platforms by illegal anticompetitive actions. According to one analysis, the case:
…accuses Google of making an ‘unlawful agreement’ that gave Facebook special privileges in exchange for promising not to support a competing ad system. It’s just one of many claims made in a case that takes broad aim at Google’s monopoly over the online advertising ecosystem, but it could very well be the most consequential. The case is a civil suit, and it names only Google as a defendant. But if what [the Texas Attorney-General] is alleging is true, then both companies may have violated federal antitrust law—and committed felonies in the process…
5.24
Facebook has also been hit by allegations of poor corporate behaviour, in that it is unwilling to address known negative effects on users and society more generally. A former senior employee turned whistleblower, Ms Frances Haugen, released a number of documents to the Wall Street Journal and gave evidence to a United States Senate committee as well as a United Kingdom parliamentary committee. The Wall Street Journal summarised the allegations as follows:
Facebook Inc. knows, in acute detail, that its platforms are riddled with flaws that cause harm, often in ways only the company fully understands. That is the central finding of a Wall Street Journal series, based on a review of internal Facebook documents, including research reports, online employee discussions and drafts of presentations to senior management.
Time and again, the documents show, Facebook’s researchers have identified the platform’s ill effects. Time and again, despite congressional hearings, its own pledges and numerous media exposés, the company didn’t fix them. The documents offer perhaps the clearest picture thus far of how broadly Facebook’s problems are known inside the company, up to the chief executive himself.
More strident calls for regulation of the digital realm
5.25
In the final weeks of this inquiry, Rupert Murdoch, the Executive Chairman and controlling owner of US-based News Corporation addressed a meeting of shareholders, and spoke directly of the disjuncture between the regulatory regimes of traditional media and digital platforms, and the need for systemic reform. This was reported in Australia across News Corp titles. In the Daily Telegraph, an article ran under the headline ‘Time to rein in big tech tyranny News boss’ warning’:
[News Corporation] executive chair-man Rupert Murdoch has expressed deep concern over the corporate behaviours of Google and Facebook, accusing the tech giants of censorship, collusion and a lack of transparency that has left other companies and consumers worse off.
In his opening remarks to News Corporation’s annual meeting of stockholders, Mr Murdoch called for ‘significant reform’ of some of the business practices employed by the digital platforms.
‘For many years, our company has been leading the global debate about Big Digital. What we have seen in the past few weeks about the practices at Facebook and Google surely reinforces the need for significant reform,’ he said. ‘There is no doubt that Facebook employees try to silence conservative voices and a quick Google News search on most contemporary topics often reveals a similar pattern of selectivity—or to be blunt, censorship.
5.26
Mr Murdoch drew shareholders’ attention to the recent examples of poor corporate behaviour exhibited by the digital giants, including alleged anti‑competitive and anti-trust collusion designed to stymie competition by using their online monopoly:
The collusion between the two companies on ad tech as alleged in the Texas Attorney General’s complaint is extraordinary... obviously, publishers have been materially damaged, but companies have also been over-charged for their advertising and consumers have thus paid too much for products…
The idea falsely promoted by the platforms that algorithms are somehow objective and solely scientific is complete nonsense. Algorithms are subjective and they can be manipulated by people to kill competition and damage other people, publishers and businesses.
5.27
The same day, longstanding News Corp journalist, Terry McCrann pulled no punches in a News Corp editorial expanding on Mr Murdoch’s speech:
Facebook, YouTube and the rest, search engines like Google, don’t need to be better regulated, they need to be destroyed. This would be, this should be, achieved by the simple expedient of holding them accountable for what they publish—and that word is used very, very advisedly.
Holding them accountable like every other publisher would destroy their parasitic, all power and no responsibility, business models. If Facebook, for most telling example, had to check everything and I mean everything posted on every and I mean every Facebook page—for defamation, and for crossing thousands of other legal lines—like this paper and every other media publication has to, or take the consequences, it would become utterly unfunctional.
5.28
Mr McCrann stated that Rupert Murdoch’s comments to shareholders were attacking the ‘widespread, deep and sustained censorship of Conservative voices and even plain news’ by Google and YouTube. Mr McCrann suggested the remedy was to ‘create a level playing field’:
Facebook, Google and the rest went aggressively and undeniably into the publishing business, by prohibiting content purely on the basis of editorial decisions. That is exactly what the censorship identified by Murdoch is: a publishing decision.
We don’t need a whole new regulatory structure around social media; simply remove their totally outdated unfair and unjustified advantage, to recognise the reality they have chosen to create.
Simply, create a level playing field for all media.
5.29
These strident calls echo the evidence provided to the committee by News Corp executives, discussed both in the previous chapter and below. These include comments like those made on the need to regulate online platforms by Mr Robert Thomson, Global Head of News Corp, such as:
‘I think the best thing is for parliament to introduce legislation that covers the new big digital players’; and
‘Honestly, I have conflicting views on this. I would like it to be relaxed for us and intensified for them’ (when asked about potential reform to anti‑siphoning laws for traditional and digital platforms).
Case study: YouTube suspension of Sky News (August 2021)
5.30
In August 2021, YouTube (which is owned by Google) suspended Sky News from its video hosting platform for a one-week period. The committee was interested in this as an illustration of the inherent tension between traditional and new media platforms, which shows the clear fault line in regulation, including that:
a digital platform can act quickly and decisively to ban content reproduced on its site, when an industry regulator could or would not (in this case the ACMA); and
a traditional media company was held to account by a digital platform enforcing its own self-developed standards and processes, which are not subject to external oversight or review mechanisms.
5.31
The suspension was imposed on Sky News for uploading content that violated YouTube’s medical misinformation policies, including content that suggested the COVID-19 virus did not exist, and which encouraged people to use non-proven treatments. This content featured the Sky News broadcasters Rowan Dean, Alan Jones, and Rita Panahi.
5.32
Sky News told the committee that it had taken down a number of other videos ‘of a similar nature’ as a precaution against potential future adverse findings by YouTube.
5.33
YouTube confirmed that it had removed Sky News content because they breached the platform’s own COVID-19 misinformation policies which came into effect in March 2020. YouTube also explained that it had followed a publicly available process in providing a written warning and then a ‘strike’ to Sky News, and that its policies were applied ‘equally to all YouTube content and channel owners’—from individuals to global media companies. It was also confirmed that the Sky News videos had been detected by the platform’s automated intelligence system.
5.34
Ms Longcroft confirmed a number of details about the matter:
There is a total of 23 videos that have been removed… The majority of those videos were removed as violations of our COVID-19 misinformation policy. Two videos were removed as violations of our election integrity policy… The action was taken in accordance with our normal policies and procedures. Subsequent to the strike being made public, we did receive a communication from the ACMA asking for details about the nature of the actions we had taken and we responded to those questions.
5.35
Ms Longcroft also confirmed that Sky News were offered an opportunity to appeal:
When we inform Sky News, as we inform all content and channel owners, that a violation has been found and material has been removed, we also very clearly inform that owner of the process of filing an appeal. Where they do not appeal—and, in this case, Sky News has not appealed—then the material is taken down. We would then take that as ceding to the violative nature of the videos. But I wouldn’t speak to Sky News’s intent in this case.
5.36
The committee sought information about this matter from Sky News. Mr Whittaker, its Chief Executive Officer, told the committee that he did not accept YouTube’s rationale for the suspension:
YouTube asserted that the videos removed, some up to a year old, did not comply with its COVID misinformation policies. YouTube’s assertion that Sky News has ‘denied the existence of COVID-19’ is expressly rejected. That assertion is, frankly, ridiculous… Sky News Australia strongly supports vaccination. Any claims to the contrary are false and a blatant attempt to discredit and harm our news service.
5.37
In taking this position, Mr Whittaker questioned whether YouTube’s standards were selective and censorious:
YouTube’s actions make clear that it is not a neutral platform, but a publisher selectively broadcasting content and censoring certain views, while allowing videos that are patently false, misogynistic and racist to proliferate. Sky News videos on crucial COVID-19 issues, ranging from important discussions about treatments to prevention measures, have been removed from public view, while tawdry tutorials on drug taking, videos glamorising gang violence, and a rich diet of crackpot conspiracy theories are freely and widely available on YouTube.
5.38
Moreover, Mr Whittaker suggested that YouTube’s compliance practices ‘lack transparency and a clearly articulated process’ that would afford organisations the opportunity to address or challenge decisions:
If we’re saying that YouTube is the model that we want our regulator to abide by, that means we are saying that the regulator should be able to shut down a major TV network with 30 minutes notice, with no consultation, no explanation, no written justification and no procedural fairness. To me, that sounds more like the mentality in a totalitarian state rather than a liberal democracy.
5.39
It was put to Google that YouTube’s actions had been cast as ‘agents for the authoritarian state’. To this, Ms Longcroft responded:
I would respectfully reject that characterisation. We take our responsibility to our users extremely seriously, in terms of safeguarding their rights as well as safeguarding them from harm. What we do is balance the importance of free information on the internet with that responsibility to keep our users safe. Our guidelines, as you heard reflected earlier, span a variety of conduct that would cause harm to our users. The policies have been developed through close consultation with authorities globally. They are revised constantly and they are enforced by highly trained trust and safety teams to ensure that they are applied robustly and agnostically regardless of whoever has uploaded the content.
5.40
Mr Whittaker also commented that he considered the suspension to be symptomatic of ‘YouTube overreach’, and suggested the content would be more appropriately assessed through the ACMA’s processes:
Those videos were broadcast on Sky News and therefore come under ACMA’s regulations. But this particular issue with ACMA wasn’t because of ACMA inaction. It was a case, in my view, of YouTube overreach, because there were no complaints about any of those videos that were taken down by YouTube. Those are the complaints that ACMA would be acting upon… There were no complaints from the public about them, and ACMA rely on the complaints from the general public viewing them.
5.41
On this point, the committee sought evidence from the ACMA on the material removed by YouTube, as well as any complaints about Sky News content before the regulator. Its Chair, Ms Nerida O’Loughlin, stated:
We’re not aware of the content that has been taken down by Google. We have not been informed of the specific pieces of content. We did ask Google that question, and they did not provide that information to us. I can say that, over the last eight months, we’ve received 37 complaints about COVID related Sky News reports. Of those 37 complaints, 24 referred to broadcast material and provided contact details, and we were able to refer those complaints back to the broadcaster, as the co‑regulatory model requires us to do. To date, none of those have come back to us for further investigation. We had nine additional complaints and inquiries that referred to online content. Obviously online content is beyond our remit, so we have not dealt with those. We also had three anonymous complaints. Anonymous complaints are difficult for us because it’s very hard for us to refer those on to a broadcaster for resolution. They’re still on our deck at the moment to see what the broadcasters have done with the complaints that have gone to them. And we had one complaint, which was from 5 August 2020, which we investigated and found no breach.
5.42
More generally, the ACMA said that its timeframe for handling complaints was ‘around four to six months’, to give respondents ample time to respond to the complainant. Ms O’Loughlin commented that the regulator did not have the power to compel programs to be removed in a shorter timeframe due to the constraints of the ACMA’s guiding legislation:
…can I take programs off-air quickly? No, that would be inconsistent with the regulatory regime that applies and has applied since 1992.
5.43
On this matter, former Prime Minister, the Hon Kevin Rudd AC, asked rhetorically:
…what were [ACMA] doing to earn their salary to allow this to occur? They have a direct responsibility here, under the law, because this material is being rebroadcast on free-to-air television. So, ACMA didn’t act. I have corresponded with them as to why they haven’t acted. They said that it’s within their powers to initiate their own investigation into such matters, which are deeply in the public interest, but they chose not to, and they pointed me…to the fact that it’s a matter for the parliament to change the laws governing the Broadcasting Services Act, which establishes ACMA, to enable it to do the job for the Australian people that YouTube have had to do instead.
5.44
Mr Rudd also pointed out that this matter represented a clash between different kinds of monopolies—the concentrated market ownership in the traditional media, against the emerging dominance of the tech giants:
The problem that we’ve seen with Facebook’s actions in the last 24 hours [in suspending Sky News] is that they give us a graphic example of what a very large new media monopoly can do to abuse its power, just as we should be equally mindful of how a continuing media monopoly—that’s Murdoch—also abuses its power and has done so for a long period of time. That is why I go back to my original proposition…about why a royal commission is necessary: monopoly of itself is wrong in principle, whether it’s in politics, whether it’s in the economy, or whether it’s in the news media—of any form. I don’t want Facebook determining my future, and I don’t want Murdoch determining my future either.
Committee view
5.45
This chapter has focused on the current lack of regulatory mechanisms for online platforms, and the suspension of Sky News from YouTube.
5.46
The suspension illustrates the current disjuncture in regulatory systems where some platforms are unregulated, and regulatory standards and processes for other media formats could be greatly improved.
5.47
Regarding the performance of regulators, this matter shows that the ACMA has no real power or inclination to compel the removal of potentially damaging content hosted online, even if it was originally generated by a broadcaster subject to the ACMA’s regulations. In this, the committee considers that Google/YouTube acted appropriately and responsibly in removing dangerous and misleading content, which could have harmed Australians.
5.48
ACMA’s reluctance to intervene in the matter was reflected further in a puzzling answer it gave to a Senate Estimates hearing in October 2021. Asked whether ACMA had formally turned its mind to the adequacy of the broadcasting codes to protect Australians from misinformation during the COVID-19 pandemic, the authority’s Chair, Ms Nerida O’Loughlin, replied that ACMA didn’t see the need to do this because of the low level of complaints throughout the period. Her answer, however, surely prompts this further question: if ACMA has not formally turned its mind to the issue, how can it know whether the codes are providing adequate community safeguards?
5.49
The committee shares the concerns of submitters including News Corp that an online platform, which cannot be held to account by a regulatory mechanism or enforceable standards, can itself hold a powerful media outlet to account, as Google did in the case of Sky News. Google’s intervention shows it is clear that online platforms can decide to arbitrarily break the connection between broadcaster and audience, should they wish to do so.
5.50
Although the committee supports YouTube’s actions to address Sky News’ misinformation on COVID-19—where the government’s own regulator could or would not—it is alarming to think that this power could be used in other contexts to censor or block potentially valuable news coverage that could impact Australians’ right to access reliable information and news content.
5.51
The need for reform in the current outlook poses a clear but complex challenge, both for the Commonwealth and for self-regulated industry bodies.
5.52
For the traditional media, it is rightly concerning that unregulated online platforms enjoy a competitive advantage of being unregulated, and have the ability to block or restrict news content without established and transparent standards, or independent oversight.
5.53
However, as the following chapter discusses, evidence received by the committee suggested that News Corp is similarly unable to be held to account to its own standards, and that its own use of its dominance in the market is not beyond reproach.
5.54
For the Commonwealth, it should be concerning that inconsistent and weak regulation is corrosive for our society and democracy, and harms our national wellbeing, which is the subject of the following chapter.