3.1
This chapter outlines government policy designed to assist the news media sector, and in so doing discusses areas that stakeholders highlighted for improvement and reform.
3.2
The chapter then outlines regulatory oversight mechanisms for Australian news media, not including digital platforms that are unregulated, as discussed in the following chapter.
3.3
Although this chapter briefly notes that the current approach is fragmented, inconsistent and not fit-for-purpose for the challenges of a converged market, it leaves a comprehensive discussion of this matter and subsequent consequences to the following chapter.
Recent Commonwealth measures
3.4
The Department of Infrastructure, Transport, Regional Development and Communications (the Department) outlined several ways in which the government supports media organisations to produce public interest journalism, namely:
the former Regional and Small Publishers Jobs and Innovation Package (RASPI);
the Public Interest News Gathering (PING) program;
annual appropriations for funding of the public broadcasters;
the News Media Bargaining Code; and
the Media Reform Green Paper.
Regional and Small Publishers Jobs and Innovation Package
3.5
In 2017, the government introduced the RASPI in the wake of amendments made to the Broadcasting Services Act 1992 (BSA) (see Chapter 2). In doing so, it was suggested:
The media industry is in significant transition and this poses challenges for small publishers and small regional newspapers in particular. The business models that have traditionally supported journalism—particularly those funded by advertising revenue—are being challenged, and the need to adapt successful subscriber and revenue models is proving especially demanding for smaller publications. The provision of quality journalism is under pressure.
Quality journalism is an important feature of our democracy, and access to locally relevant factual journalism is vital to developing and maintaining strong regional communities.
Effective journalism also plays a vital role in holding our institutions to account and creates a framework in which complex issues can be understood, offering the public reliable information to support decisions in political, economic and social life.
3.6
More specifically, the Department stated that the RASPI was designed:
…to help small metropolitan and regional publishers adapt to the challenges facing the contemporary media environment, create employment opportunities for cadet journalists, and support regional students to study journalism. The package was worth $60.4 million over three years and consisted of three programs:
• the Regional Journalism Scholarships Program;
• the Regional and Small Publishers Cadetship Program; and
• the Regional and Small Publishers Innovation Fund.
3.7
The Department's submission stated that the RASPI funded: 66 scholarships at 16 universities, and 43 cadetships at 39 small and regional publishers; and around $17.6 million was awarded in grants under the Innovation Fund administered by the Australian Communications and Media Authority (ACMA). The Department also submitted that the RASPI package had disbursed just over one-third of its allocated budget:
Across its three-year period, the RASPI package allocated a total of $21.5 million of the $60.4 million available to regional and small publishers.
3.8
Potential improvements to Commonwealth funding mechanisms for small and regional publishers is discussed further in Chapter 7.
Public Interest News Gathering program
3.9
The PING program is a $50 million support package targeting Australian media businesses affected by the COVID-19 pandemic that was announced on 15 April 2020. The Department stated that the program consisted of $13.4 million new funding, alongside $36.6 million in unallocated funds from the RASPI package. The program's purpose was to:
…support regional broadcasters and publishers to maintain or increase their production and distribution of public interest journalism in regional communities during the COVID-19 pandemic.
On 29 June 2020, the Government announced that 107 regional broadcasters and publishers would receive funding under the PING program. The funding was allocated between three streams:
Stream 1: Commercial Television—$20 million
Stream 2: Commercial Radio—$12 million
Stream 3: Publishing (including online and print)—$18 million.
3.10
Dr Kristy Hess from Deakin University stated that ultimately the PING program did not properly recognise and support 'greenshoots' (new start-ups in the industry):
The PING funding was available only for existing and established media outlets, such as [Australian Community Media], which closed down dozens of printing presses during COVID. And when independent start‑ups sought to enter the marketplace they were being hamstrung by structures that limited access to both subsidies and government advertising revenue, which put them at an immediate disadvantage.
3.11
Dr Hess suggested that an immediate improvement would be to reconsider the funding eligibility criteria:
At the moment for PING funding, companies have to have a revenue of $150,000. We have to remember that local news is not only a public good but also a social good, so people trying to start up these ventures see the gap and see that people in their communities are crying out for reliable, credible information. That's where the attention needs to be when we think about supporting green shoots, not necessarily in terms of their commercial application but their social good.
3.12
Mr Bruce Ellen from Country Press Australia acknowledged receipt of some funding under the PING program but asserted:
…the way PING funding was distributed was an absolute disgrace. It ignored the intent of the original regional and small publishers fund from where the government got the majority of that funding from. In reality, there was $38.4 million that remained a pool for regional and small publishers, and it had been allocated to regional and small publishers. The government decided to use the $38.4 million and add a paltry $11 million to spread cross a much wider range of publications, including some large corporates, with the result that the small publishers who were the original intended recipients of the funding got less than 15 per cent of the amount that had previously been allocated to them.
3.13
Dr Hess and Professor Matthew Ricketson, also from Deakin University, suggested that there needs to be an independent body—such as a regional media advisory council—tasked with evaluating government expenditure in the sector. Professor Ricketson said:
…it's hard to find the current mechanism by which those various initiatives are being both evaluated and then made transparent to the parliament and general public. This is a fast-moving space, the media environment, so if those programs are working, we need to know they're working and, if not, we need to know the same and act accordingly. It's hard to find accurate, up-to-date and comprehensive information about how those various initiatives are working.
3.14
In the final stages of this inquiry, freedom of information (FOI) documents released by the Department demonstrate some questionable practices in the government’s administration of the PING funding. For example, PING funding was awarded to Australian Community Media (ACM), even when it was scaling back print distribution and some digital titles were not publishing new content. Guardian Australia, which obtained the FOI documents reported that there was a lack of clarity around how funding was adjusted to reflect ceased outlets:
…ACM’s grant was reduced to $10.46m as a result of these decisions [to not recommence printing of some newspaper titles], though they provide little clarity on how much ACM lost or the methodology used by the department to account for the reduced frequency or a digital return only.
3.15
Chapter 7 of this report further discusses the need for funding and support measures for small and regional media organisations, including start-ups.
Funding of public broadcasters ABC and SBS
3.16
The Department stated that the Australian Broadcasting Corporation (ABC) and Special Broadcasting Service (SBS) are provided with 'long-term certainty in funding' through the triennial funding process in the Budget, which is currently:
…nearly $3.2 billion and $887 million respectively, over the three years of the current triennium from 2019-20 to 2021-22, [and] represents a substantial investment of public funds in our national broadcasters. This funding assists the ABC and SBS in the provision of news and media services in line with their Charters.
3.17
The Department noted that the ABC currently receives $43.7 million funding through the Enhanced News measure, which was established by the Rudd Government, to support the production of news and current affairs, including regional newsrooms and specialist investigative journalists:
The Enhanced News Funding program enables the ABC to deliver more tailored news, more local news and bring news from across the country to a national audience. As a result, ABC News has made a significant investment in its regional newsgathering capacity and local content‑makers in regions where it was previously under-represented or not represented at all. Overall, it is estimated that there are currently 69 positions attached to the Enhanced News Services funding. This measure has enabled job creation at a time when commercial news media are rationalising their services and contracting or amalgamating regional news resources.
3.18
Some stakeholders argued that the Commonwealth does not currently fund the ABC to an appropriate level, noting a number of negative effects on its provision of news. Chapter 7 of this report discusses this point in detail.
News Media and Digital Platforms Mandatory Bargaining Code (2020)
3.19
In April 2020, the government asked the Australian Competition and Consumer Commission (ACCC) to develop a mandatory code to address the imbalance in power between Australian news media companies and digital platforms, specifically Google and Facebook (also see Chapter 2). The News Media and Digital Platforms Mandatory Bargaining Code (the News Media Bargaining Code) was passed by the Parliament on 25 February 2021.
3.20
In announcing the News Media Bargaining Code, the Treasurer and the Minister for Communications stated:
The Code will ensure that news media businesses are fairly remunerated for the content they generate, helping to sustain public interest journalism in Australia.
The Code provides a framework for good faith negotiations between the parties and a fair and balanced arbitration process to resolve outstanding disputes.
Importantly, the code encourages parties to undertake commercial negotiations outside the Code and the Government is pleased to see progress by both Google and more recently Facebook in reaching commercial arrangements with Australian news media businesses.
3.21
Essentially, the News Media Bargaining Code means that Facebook, Google, and other digital platforms where news appears, must reach a remuneration agreement on defined 'core bargaining issues' with eligible news companies for the content they generate. If no agreement can be reached directly between the digital platform and the media entity within three months, then the news organisation can notify the ACCC to commence arbitration.
3.22
Eligible news companies must have a revenue exceeding $150 000, have a primary purpose of creating news, operate primarily in Australia for Australian audiences, and be subject to the various codes of conduct and standards of practice governing broadcast media.
3.23
The News Media Bargaining Code is mandatory, and digital platforms must participate if the Treasurer determines that the Code's provisions apply to them. The ACMA has three roles in this process, to:
assess the eligibility of news businesses who want to participate in the code
appoint mediators to assist bargaining parties
register and appoint arbitrators if bargaining parties cannot agree on the make-up of an arbitration panel.
…responsible for administering and enforcing the code, and would have a role in providing submissions as part of compulsory arbitrations conducted under the code.
3.25
Representatives from the ACMA advised that 25 applicants have now been registered under the News Media Bargaining Code. However, the regulator does not know how many of these organisations have contractual relationships with Facebook and Google:
We are not privy to or advised of which organisations have actually reached a deal. Some have been reported in the media as having done so. But our role is to register them under the legislation, and that's what we've done. So we're not aware of which ones have or have not.
3.26
The Chair of the ACMA, Ms Nerida O'Loughlin added:
…the news media bargaining code is specifically set up to provide very strong incentives for digital platforms to make arrangements and negotiate outcomes with publishers… I'm not party to why Facebook or Google, or both of them, or, particularly, one of them over the other, might make an assessment in that negotiation… I would expect that those negotiations will continue with Facebook and Google over the coming months because of the incentive put in place by the code.
3.27
However, the committee is aware that some media organisations, including SBS and The Conversation have been excluded from making deals with digital platforms. Mr James Taylor, Managing Director of SBS, stated that:
There was a series of preparatory discussions about having the discussion [reaching an agreement]. But at the time when the discussion was to happen, Facebook indicated that they had no intention of entering into any form of negotiation and, therefore, any form of agreement with SBS.
3.28
A senior departmental official advised that, while the minister has been briefed on Facebook's refusal to negotiate with SBS, the government has not yet taken action to designate the platform subject to the Code:
…we've briefed the minister. The government would be well aware of the scheme that has been established and the tools they've got available, so I couldn't comment on what the next step might be or when the next step might be taken.
3.29
Mr Andrew Jaspan, a former newspaper editor appearing in a private capacity, suggested that the Code had primarily benefitted News Corp and Nine, and so did not genuinely encourage greater diversity:
…the news code legislation which is now being applied was largely scripted and driven by News Corp. That's why the biggest beneficiaries are News Corp and Nine Entertainment. The smaller players have been bought off with smallish sums of around $200,000 to $250,000 a year. But the deal simply reinforces media concentration.
Media Reform Green Paper
3.30
On 27 November 2020, the government released the Media Reform Green Paper: Modernising television regulation in Australia (Green Paper). On its purpose, Minister Fletcher stated:
The media landscape has changed significantly over the past decade, with faster internet allowing digital technologies to generate significant benefits for industry and consumers. However, these technologies have also fractured business models and rendered many of our regulatory structures obsolete… With declining revenues, rising costs and an outdated regulatory framework, the capacity of Australia’s media sector to provide Australian programming, local content and public interest journalism is being challenged. These structural pressures have been accelerated by the economic impact of the COVID-19 pandemic, reinforcing the need for regulatory action.
3.31
The Green Paper sought stakeholder views on a number of issues, including:
Offering commercial broadcasters the choice to operate under a new kind of commercial television broadcasting licence, with a reduced regulatory burden provided they agree to move at a future point to using less radiofrequency spectrum;
Promoting the public interest by using proceeds from freed-up spectrum to invest in Australian news and screen content;
Introducing an Australian content spend obligation on video-on-demand services; and
Formalising the role of national broadcasters as key providers of Australian content.
3.32
The consultation process for the Green Paper ended on 23 May 2021 however, the government is yet to release its response.
3.33
However, some commentary has already suggested that the proposed reforms may not go far enough. For example, Allens Linklater observed that it follows 'a long line of government papers on proposed media reform stretching back to the 2012 Convergence Review (and beyond)' however, it is not the required wholesale reform of the BSA:
The Green Paper represents another step along the way towards harmonisation of the Australian media regulatory environment–however it is no more than another step.
Oversight and regulation of news media
3.34
Media regulation and oversight in Australia is primarily regulated according to the relevant platform, rather than content. Depending on the platform, it is shared across Commonwealth regulatory frameworks and self-regulating industry bodies to enforce standards of practice.
3.35
This section outlines the principal institutions and mechanisms that regulate media in Australia, and where there are identified gaps, before the following chapter discusses both flaws in the system, and potential reforms.
Broadcast media
3.36
In 2018, the Centre for Media Transition observed:
In the broadcast environment, there are eight separate sets of rules as each type of broadcasting service has its own code of practice, as does each of the national broadcasters.
3.37
Broadcast media is subject to regulation through the ACMA, which administers the BSA. Under the Act, the ACMA:
plans the broadcasting spectrum
manages broadcasting licensees and collects licence fees
monitors compliance with ownership and control rules that apply to commercial tv broadcasters
helps develop codes of practice
develops and administers program standards
manages local content rules for regional commercial tv broadcasters
investigates the broadcasting industry.
Free-to-air commercial television
3.38
The ACMA oversees the Commercial TV Code of Practice, which regulates broadcast content of commercial free-to-air television 'according to current community standards'. It provides procedures for handling and responding to viewer complaints, which can be made either directly to the broadcaster or through Free TV Australia—and for referring these complaints to the ACMA if the complainant is not satisfied with a broadcaster's response.
3.39
The Commercial TV Code requirements were summed up by Free TV Australia, which noted that broadcast news must:
present material facts accurately and ensure that viewpoints included in the relevant program are not materially misrepresented (clause 3.3)
present news fairly and impartially and to clearly distinguish the reporting of factual material from commentary and analysis (clause 3.4); and
disclose commercial arrangements when featuring third party products or services in current affairs, infotainment and documentary programs (clause 4).
Pay TV
3.40
The Department states on its website that:
Pay TV broadcasters must follow any rules set out in their licence conditions, the ACMA program standards or the relevant code of practice when broadcasting content.
The codes of practice for pay TV in Australia were developed by the peak industry body, the Australian Subscription Television and Radio Association (ASTRA) in consultation with the ACMA.
3.41
The ASTRA Code of Practice is available on the ACMA's website. Regarding news, it provides that broadcasters must:
(i)present news accurately, fairly and impartially;
(ii) clearly distinguish the reporting of factual material from commentary, analysis or simulations;
(iii) not simulate news or events in a way that misleads or alarms the audience.
3.42
Moreover, the ASTRA Code also stipulates that:
In broadcasting news and current affairs programs to the extent practicable Licensees:
(i) must not present material in a manner which creates public panic;
(ii) must include only sparingly material likely to cause some distress to a substantial number of viewers;... [and]
(vi) will make reasonable efforts to correct significant errors of fact at the earliest opportunity.
3.43
As with the commercial free-to-air code of conduct, complaints on content are to be directed to the broadcaster in the first instance, and responded to in a determined manner and timeframe. Should a complainant not be satisfied with the response they receive, the complaint 'may be referred to the ACMA'.
Public broadcasters
3.44
Australia's two public broadcasters are not subject to the same regulatory regime as commercial broadcasters under the BSA, and the ACMA has only a 'limited role as regulator'. Rather, under their foundation legislation, the Australian Broadcasting Corporation Act 1983 and the Special Broadcasting Service Act 1991, they are required to develop codes of practice relating to their content, and to provide this to the ACMA.
3.45
The ABC's 2019 Code of Practice sets out principles and standards across seven key matters, for content broadcast free to air. It also sets out associated standards, comprising a key editorial standard, for television programs broadcast on its domestic free-to-air services.
3.46
The SBS's 2021 Code of Practice similarly sets out its principles and policies for content that is produced, commissioned, acquired or otherwise obtained by SBS for broadcast or publication on the platforms over which it has editorial control.
3.47
Similar to the arrangements for commercial broadcasters, complaints that public broadcasters have acted contrary to their Code can be made to the broadcaster directly. Should a complainant be unhappy with the response or should no response be made, they are able to take up the matter with the ACMA, which has a discretionary power to investigate if it considers it is required to do so.
3.48
The ACMA has undertaken a number of investigations into ABC and SBS news content, which are listed on the regulator's website. These include complaints that the broadcaster has not been accurate, impartial, or caused harm and offence, contrary to their charter obligations.
3.49
In 2021 to date, there has been one complaint alleging a breach of the ABC Code of Practice, which was not upheld. In 2020, there were three complaints alleging a breach of the ABC Code, with one complaint upheld. For this same two-year period, the ACMA has not reported any complaints alleging breaches of the SBS Code.
3.50
An audit undertaken by the Australian National Audit Office in 2018 found that the ABC's complaints process is effectively managed by its complaints areas, although its 'limited visibility' of the content area's handling of a complaint 'reduces the overall effectiveness'. The audit found that the complaints process is accessible, easy to navigate, and responsive to complainants. It also found that the ABC's analysis of complaints data is shared to relevant stakeholders to inform 'continuous improvement of its programs and services'.
3.51
In October 2021, the ABC announced that it has commissioned an independent review of its editorial self-regulatory system and complaints handling process. The review will be led by Professor John McMillan, former Commonwealth and New South Wales Ombudsman, and Mr Jim Carroll, former SBS news and current affairs director.
3.52
ABC Chair, Ms Ita Buttrose, has described the review as a timely initiative to ensure the ABC's complaints handling procedures meets audience expectations.
3.53
The following chapter discusses the regulatory framework for broadcasters, as well as the ACMA's handling of complaints concerning ABC and SBS content.
Print media
3.54
There are several sets of self-regulatory systems that cover Australian print news media (and associated online activities).
3.55
The Australian Press Council (Press Council) is one of the main content regulators, with responsibility for responding to complaints about Australian newspapers, magazines and associated digital outlets that are its members. Other industry regulators, such as the Independent Media Council (IMC), apply their own codes of conduct and standards to their members. Individual print media organisations and their online outlets may also adopt their own codes of conduct.
3.56
The Press Council submitted that it has 'responsibility for setting and promoting high professional standards' for its members, and for 'considering, dealing with and responding to complaints' about its membership, currently consisting of approximately 900 print and online mastheads. It set out its principles and activities in this regard as follows:
The Press Council sets General Principles covering accuracy and clarity; fairness and balance; privacy and the avoidance of harm; and integrity and transparency. It has approved Specific Standards on the coverage of suicide and of contacting patients in care. It has also approved a Statement of Privacy Principles (in consultation with the Federal Privacy Commissioner) and Advisory Guidelines on a range of journalistic issues.
The Press Council considers complaints about print and online publications. Where appropriate, it seeks to achieve agreed remedies, issues letters of advice to publishers and publishes formal adjudications regarding certain complaints.
3.57
Seven West withdrew from the Press Council in 2012, announced that it would henceforth be subject to a new body, the IMC. The IMC's membership includes a number of Western Australian newspapers and online platforms, which are subject to established guidelines, codes of practice, and a complaints resolution system.
3.58
Other news media organisations have their own media standards and complaints procedure. For instance, Guardian Australia is subject to its own News and Media Editorial Code, which is overseen by its own internal ombudsman.
3.59
The ACMA has a limited role regarding print media for 'associated newspapers' that are associated with commercial TV and radio license areas, which are subject to the media diversity rules under the BSA.
3.60
The regulatory framework for print media is discussed further in the following chapter of this report.
MEAA standards
3.61
In 1944, the Australian Journalists Association (now part of the Media, Entertainment and Arts Alliance [MEAA]) created and adopted the Journalist Code of Ethics (the Code of Ethics) for its journalist members. The MEAA currently has 5109 members in its media section. Journalists with membership in the MEAA Media section are subject to the Code of Ethics.
3.62
The Code of Ethics comprises four parts, including a preamble that sets out aspirations for journalism, the values on which standards are based and the standards themselves:
[Preamble] Respect for truth and the public's right to information are fundamental principles of journalism. Journalists search, disclose, record, question, entertain, comment and remember. They inform citizens and animate democracy. They scrutinise power, but also exercise it, and should be responsible and accountable.
[Values] MEAA members engaged in journalism commit themselves to:
Honesty
Fairness
Independence
Respect for the rights of others.
3.63
The MEAA noted that almost all Australian codes of conduct for publishers and broadcasters are based on the Code of Ethics. However:
The Code of Ethics, while influential, binds MEAA members only. This means MEAA's Ethics Committee is limited in its ability to enforce the Code to ensure high standards across the industry. Non-members are not subject to the committee's rulings and can be seen to 'get away' with ethical breaches.
Understandably this leads to frustration from consumers who feel hopeless to do anything about what they see as unethical reporting.
Digital platforms
3.64
Digital platforms, such as Facebook and Google, are currently not subject to oversight mechanisms, although some choose to be members of the Press Council or apply internally-developed codes of conduct. The Department submitted:
…digital-native media services, including online-only news publishers and internet streaming services, are not captured by current media regulation in Australia. For example, live internet streaming services (including television, radio, and social media video streaming services) are currently excluded from the BSA definition of a 'broadcasting service'… These services are not currently subject to the regulatory provisions in the BSA including media ownership rules, content regulation and quotas, and licensing requirements.
3.65
In June 2019, the ACCC addressed the specific issue of regulating for disinformation as part of its Digital Platforms Inquiry. The ACCC considered that there is 'a risk of consumers being exposed to deliberately misleading and harmful news when using digital platforms', particularly 'serious incidents of disinformation' (false or inaccurate information deliberately created to cause harm). It recommended that 'digital platforms establish an industry code to govern the handling of complaints about disinformation'.
3.66
In response, in February 2021, the Digital Industry Group Inc (DIGI), the peak body for the digital industry in Australia, launched a new voluntary code of practice. This Australian Code of Practice on Disinformation and Misinformation has been adopted by a number of platforms—such as Adobe, Apple, Facebook, Google, Microsoft, TikTok and Twitter—and commits these platforms to reducing harm that may arise from the propagation of disinformation and misinformation online.
3.67
In October 2021, DIGI announced additional accountability measures, including an independent complaints handling committee to oversee potential breaches of the code. ACMA Chair Ms O'Loughlin welcomed these measures but commented:
…we do have concerns that complaints about non-compliance with opt-in commitments will be treated differently to those about mandatory commitments. We will be watching how this works in practice and whether expanding the committee's remit will be necessary.
3.68
Generally, online platforms such as Google and Facebook do not accept that they are 'publishers' of content, but instead define themselves as platforms upon which a range of entities from media organisations to private individuals can publish material. It should also be noted that digital platforms that publish news content are, however, subject to general laws such as libel and other offences.