University of South Australia The Law of Media and Communications

LAWS 2031

SCHOOL OF LAW INTERNAL STUDENT ASSIGNMENT COVER SHEET

First Family Student ID

Student’s Name: Suzanne STONE 100000922

THIRD ASSIGNMENT

Title: Media Regulations

Word length required 1200 Actual word length 1181

Due date: 6/12/15

Submitted date: 5/12/15

I declare that the work contained in this assignment is my own, except where

acknowledgement of sources is made. I authorise the University to test any work submitted

by me, using text comparison software, for instances of plagiarism. I understand this may

involve the University or its contractor copying my work and storing it on a database to be

used in future to test work submitted by others.

Note: The attachment of this statement on any electronically submitted assignments will be deemed to have the same authority as a signed statement

------------------------------------------------------------------------------------------------------------------

Suzanne Stone Final Research Media/Communications Law ID 100000922

Assignment

2

1. Explore how Australia should frame future media regulation generally.

2. What do you think of the suggestions of Finkelstein and Boreham? Leave it as is and

allow the Courts to put on notice new media for egregious behaviour? Or, follow the

reports and set up a one-stop-shop regulatory body?

INTRODUCTION

In this era of the 24-hour news cycle, headlines, profits and sales are increasingly taking

precedence over journalistic integrity, quality, and accountability in news and commentary.1

Radio and television content has always been independently regulated, whereas print has been

self-regulated. In recent years, broadcasters and print alike have increasingly used the Internet

not only for their own website, but also via social media applications such as Twitter and

Facebook. This brief essay will outline what has been identified and recommended in recent

media inquiries with respect to content standard in news and commentary. From this,

recommendations are provided on how the media industry should move forward.

THE INQUIRIES

Outline tasks that were set for, and the finding of, the two inquiries mentioned above.

Since the UK News of the World scandal came to light in 2009,2 there have been three inquiries

into media regulation, of which recommendations were made with respect to content standards

in all forms of media, with the exception of the most recent inquiry,3 The Finkelstein Report4

included media practices and codes of practice; how they related to the convergence to new

media; the quality of news; and how to strengthen the Australian Press Council’s powers.5 It

recommended to establish an independent regulatory body to set journalistic standards, and

handle complaints with respect to breaching those standards.6 Its investigation found that

although the Internet is second only to television as the main source of news,7 there is still no

threat of existence for the Australian press.8

Although the press went to considerable pains in their submissions to this inquiry that their

self-regulation on content standard is sufficient,9 the inquiry found the level of trust,10 bias, and

confidence in journalists and the media as an institution much lower than for other professions

and institutions. This was particularly felt towards newspapers.11 Research found that the

1 Rhonda Breit, Professional Communication: Legal and Ethical Issues (LexisNexis Butterworths 6th ed 2011)

434. 2 Indu Chandrasekhar, Murray Wardrop and Andy Trotman, Phone Hacking: Timeline of the Scandal, The

Telegraph, (23 July 2012) < http://www.telegraph.co.uk/news/uknews/phone-hacking/8634176/Phone-hacking-

timeline-of-a-scandal.html>. 3 Joint Select Committee on Broadcasting Legislation, Three Broadcasting Reform Proposals, (Commonwealth

2013). 4 R. Finkelstein & M. Ricketson, Report of the Independent Inquiry into Media and Media Regulation,

(Commonwealth 2012). Presented to the Minister dated 28 February 2013. 5 Ibid 7-11. 6 Ibid 8. 7 Australian Communications and Media Authority [‘ACMA’], ‘Digital Australians—Expectations about media

in a converging media environment’ (2011) cited in Finkelstein Report of the Independent Inquiry, 90 8 Finkelstein, Report of the Independent Inquiry, 101. 9 Ibid 103 10 Ibid 106-10, 123 11 Ibid 123, 157

Suzanne Stone Final Research Media/Communications Law ID 100000922

Assignment

3

public widely viewed (a) the reporting of news to be unfair, inaccurate and unbalanced;12 and

(b) there is an alarming difference in opinions between journalists and the public with respect

to privacy and deception.13 They are commonly used by politicians, police and other public

officials for their own use; and in their hunger for “exclusives”, journalists often failed to verify

their stories and sources. In losing credibility, they failed being the independent “watchdog” in

this democratic society and their rights for journalistic privilege.14 In summary, the results were

concerning, and urgently needs improvement.15

The second report (Convergence Report: Final Report) 16 investigated among other matters,

media content standards,17 and recommending all media platforms should be of a standard

expected by the Australian public.18 It concluded that a policy framework should be built to

regulate “significant enterprises” based on size and scope regardless of media platform and

subject to regulation. However, this would not include social media and other user-generated

content.19 Regarding news and commentary, this report agreed with the Finkelstein Report on

its recommendations, except rather being a statutory body, it should be self-regulated with

industry-led members developing and enforcing a media code aimed at promoting news

standards, adjudicating complaints, and providing timely remedies. 20 The report noted that

content standards is currently regulated through multiple bodies depending on the provider and

media platform with varying degrees of standard and power, with only the ABC21 and SBS22

being legislatively regulated.23 Therefore, it recommended the absorption of the Australian

Press Council and ACMA24 in news and commentary, covering all media platforms.25

In 2013, the third report was published. It did not review content standard or the convergence

of media, but it did recommend that ACMA be given power to compel on-air reporting on its

findings.26

DISCUSSION

Describe how you would tackle, from a policy perspective, the need for a regulatory

framework that is capable of covering all forms of media including new media.

In spite of all current professional media representative bodies showing commitment to a policy

framework on content standard, as identified in the Finkelstein Report, the community has

12 Ibid 113 [4.39], 124 [4.79] 13 Denis Joseph Andrew Muller, Media Accountability in a Liberal Democracy—An Examination of the Harlot’s Prerogative (PhD Thesis, University of Melbourne, 2005) cited in in Finkelstein, Report of the Independent

Inquiry, 117-18 [4.56], 124 [4.80] 14 Ibid 116 15 Finkelstein, Report of the Independent Inquiry, 124 [4.81] 16 Senator the Hon Stephen Conroy, Minister for Broadband, Communications and the Digital Economy,

‘Government moves to ensure quality Australian content stays on Australian television,’ (Media Release, 30

November 2012) cited in Finkelstein, Report of the Independent Inquiry, 2; Convergence Review: Final Report

(Commonwealth 2012). 17 Convergence Review: Final Report (Commonwealth 2012) viii. 18 Ibid. 19 Ibid ix. 20 Ibid x, 38. 21 Australian Broadcasting Corporation. 22 Special Broadcasting Service. 23 Convergence Review: Final Report (Commonwealth 2012) 52. 24 Australian Communication and Media Authority 25 Convergence Review: Final Report (Commonwealth 2012) xiv. 26 Ibid v

Suzanne Stone Final Research Media/Communications Law ID 100000922

Assignment

4

found the actual practice to this commitment falling well short. It found that the Broadcasting

Services Act 1991 is not sufficient to handle all media complaints within their jurisdiction.27

Currently, the only remedy against defamation and other egregious behaviour, particularly

against newspapers, is civil suits. Even though defamation is legislated, it is an extremely

expensive, lengthy, complicated, and stressful process for the plaintiffs. 28 It does not allow a

speedy redress,29 and the defending media would invariably draw proceedings out utilising

expensive counsels, raising preliminary disputes, calling many witnesses and lengthy cross-

examinations. If the plaintiff is not successful, not only would they be consigned with their

own legal expenses that could be as high as $500,000, but also left paying the respondent’s

legal costs which would very likely be even higher.30 Although there have been successful

examples of individuals winning defamation cases against large corporations,31 on the whole,

the complexity and extraordinary costs easily discourages vulnerable individuals to sue, thus

allowing journalists and publishers to continue with near impunity.32 When making complaints

to self-regulating bodies, there is invariably no power to enforce any compelling remedy or

compensation other than to remove the member from that organisation33 thus no real protection

for the vulnerable general public.

There is very little difference between media platforms with respect to investigative

journalism.34 Both newspapers and broadcasters are now using online methods of

communication that are usually sourced from the original whether it be by podcast, video or

written article. Ultimately, all media platforms face the same concerns regarding content

standard. Accordingly, similar to the Finkelstein Report, it is recommended that an independent

statutory body be legislated with robust powers to investigate, enforce, and hear breaches of

content standard across all media platforms. The principles and code of editorial standards

would be no more restrictive than what already exists and to which media already pledge to

commit such as MEAA Journalist Code of Ethics, 35 ABC’s Code of Practice,36 and ABC’s

Editorial Policies, Principles and Standards.37

The existing ACMA could be an expanded with a disciplinary body fashioned like that to the

South Australian Passenger Transport Standards Committee.38 It is also recommended that like

many other professions of importance and accountability, journalists should be accredited and

held to account. Likewise, all publishers including print be licenced. Appendix A, provides a

draft amendment bill regarding the aforementioned. It is a compilation of portions from the

Passenger Transport Act 1994 (SA) 1994 and the Broadcasting Services Act 1994 (Cth). This

provides a skeleton framework upon which it can be further developed. Its associated

rules/laws and content standards would be detailed in the Regulations and Code of Conduct

which are not included at this time.

27 Finkelstein, Report of the Independent Inquiry, 179 [6.60]. 28 Finkelstein, Report of the Independent Inquiry, 147 [5.90]. 29 Ibid 151 [5.103]. 30 Ibid 152 [5.107]. 31 Duffy v Google, [2015] SASR 170. 32 Ibid 152 [5.107] – [5.110]. 33 Media, Entertainment & Arts Alliance, How to Make a Complaint (2015) < https://www.meaa.org/what-we-

believe/media-regulation/how-to-make-a-complaint/>. 34 Finkelstein, Report of the Independent Inquiry, 157 [6.1]. 35 Media, Entertainment & Arts Alliance, Journalist Code of Ethics (2015) < https://www.meaa.org/what-we-

believe/media-regulation/>. 36 Australian Broadcasting Corporation, Code of Practice 2011 (Revised 2014) (ABC 2014). 37 Australian Broadcasting Corporation, ABC Editorial Policies – Principles and Standards, (ABC 2011). 38 Passenger Transport Act 1994 (SA) Div 5, 6

Commented [RS1]: Lovely!

Suzanne Stone Final Research Media/Communications Law ID 100000922

Assignment

5

CONCLUSION

There is considerable importance placed on journalism in being the “watchdog” of society. An

inordinate level of trust and credibility is expected of them to attain the privileges that go with

this position. Being held to account in the role they play is now never more important to protect

the vulnerable, regain trust, and provide quality content, and integrious investigative journalism

across all media platforms. A single consolidated independent regulatory body with legislative

disciplinary powers would not be such an exaggerated requirement to uphold these

expectations. In today’s information age, the media, and the 24-hour news cycle has more

impact on society than ever before. These recommendations are just one step towards

facilitating the balance between freedom of speech and the rights of the individual.

Assessable word count 1,181.

Does not include footnotes, headings or assessment questions/statements.

Commented [RS2]: Well done!

APPENDIX A

6

The following draft amendment bill is a compilation of portions from the Passenger

Transport Act 1994 (SA) 1994 and the Broadcasting Services Act 1994. The words

shown in red have been modified for this amendment. This provides a skeleton

framework upon which it can be further developed.

Broadcasting Services Amendment (Media Convergence, Licencing and Accreditation,

and Standards Committee) Bill 2015

A Bill for an Act to amend the Broadcasting Services Act 1992, and for other purposes.

Contents

Part 1 - Preliminary

3 Objects of this Act

5 Role of the ACMA

Part 4—Operator Licencing and Journalist Accreditation

Div 1—General media services

27 Licencing of operators

(to be further developed)

Div 2—Journalists

28 Accreditation of journalists

(to be further developed)

Part 5—Disciplinary powers

35A Australian Communications and Media Authority Standards Committee

36 Disciplinary powers

37 Related matters

Part 6—Appeals

38 Appeals

3 Objects of this Act

(1) The objects of this Act are:

(a) to promote the availability to audiences throughout Australia of all

media platform services offering entertainment, education and

information; and

(aa) to promote the availability to audiences and users throughout

Australia of a diverse range of datacasting services; and

APPENDIX A

7

(b) to provide a regulatory environment that will facilitate the

development of a media industry in Australia that is efficient,

competitive and responsive to audience needs; and

(ba) to provide a regulatory environment that will facilitate the

development of a datacasting industry in Australia that is efficient,

competitive and responsive to audience and user needs; and

(c) to encourage diversity in control of the more influential media

services; and

(e) to promote the role of media services in developing and reflecting a

sense of Australian identity, character and cultural diversity; and

(ea) to promote the availability to audiences throughout Australia of

television, radio, print, internet, and any other communication format

about matters of local significance; and

(f) to promote the provision of high quality and innovative services by

providers of media services; and

(fa) to promote the provision of high quality and innovative content by

providers of datacasting services; and

(g) to encourage providers of commercial and community media

services to be responsive to the need for a fair and accurate coverage

of matters of public interest and for an appropriate coverage of

matters of local significance; and

(h) to encourage providers of media services to respect community

standards in the provision of program material; and

(ha) to ensure designated content/hosting service providers respect

community standards in relation to content; and

(i) to encourage the provision of means for addressing complaints about

media services; and

(j) to ensure that providers of media services place a high priority on

the protection of children from exposure to material which may be

harmful to them; and

(ja) to ensure that international broadcasting services are not provided

contrary to Australia’s national interest; and

(k) to provide a means for addressing complaints about certain internet

content; and

(l) to restrict access to certain internet content that is likely to cause

offence to a reasonable adult; and

(m) to protect children from exposure to internet content that is

unsuitable for children; and

(n) to ensure the maintenance and, where possible, the development of

diversity, including public, community and indigenous media

services.

APPENDIX A

8

5 Role of the ACMA

(1) In order to achieve the objects of this Act in a way that is consistent with

the regulatory policy referred to in section 4, the Parliament:

(a) charges the ACMA with responsibility for monitoring the media

industry, print industry, the datacasting industry, the internet industry

and the commercial content service industry; and

(b) confers on the ACMA a range of functions and powers that are to be

used in a manner that, in the opinion of the ACMA, will:

(i) produce regulatory arrangements that are stable and

predictable; and

(ii) deal effectively with breaches of the rules established by this

Act.

(2) Where it is necessary for the ACMA to use any of the powers conferred

on it by this Act to deal with a breach of this Act or the regulations, the

Parliament intends that the ACMA use its powers, or a combination of its

powers, in a manner that, in the opinion of the ACMA, is commensurate

with the seriousness of the breach concerned.

(3) This section does not, by implication, limit the functions and powers of:

(b) the Australian Competition and Consumer Commission; or

(c) any other body or person who has regulatory responsibilities in

relation to the internet industry.

(4) In this section:

commercial content service has the same meaning as in Schedule 7.

Part 4—Operator Licencing and Journalist Accreditation

Division 1—General media services

27—Licencing of Operators

(to be further developed)

Division 2—Journalists

28—Accreditation of Journalists

(to be further developed)

Division 5—Disciplinary powers

35A—Australian Communication and Media Authority Standards

Committee

(1) The Minister must establish a committee, to be called the Australian

Communication and Media Authority Standards Committee, to exercise

disciplinary powers under this Division, and to exercise or perform such other

powers or functions as may from time to time be conferred on the committee

by the Minister.

APPENDIX A

9

(2) The Minister may, as the Minister thinks fit, appoint suitable persons to be

members of the Standards Committee (and may at any time remove any

person from membership of the committee).

(3) An appointment under subsection (2) will be on terms and conditions

determined by the Minister.

(4) The quorum for any proceedings of the Standards Committee will be three

members of the committee (but this subsection does not prevent additional

members sitting in any proceedings of the committee).

36—Disciplinary powers

(1) The Standards Committee may hold an inquiry for the purpose of determining

whether proper cause exists for disciplinary action against a person or

operator who is under this Act.

(1a) An inquiry may be commenced by a complaint being lodged with the

Standards Committee or by the Standards Committee acting of its own

motion.

(2) There is proper cause for disciplinary action against a respondent if—

(a) the respondent is found guilty of an offence against this or any other

Act or law; or

(b) the respondent holds an operator’s licence or journalist accreditation

and has—

(i) in the course of operating a media service or as an accredited

journalist, acted negligently or fraudulently; or

(ii) failed to meet any standard that relates to the respective

operator’s licence or journalist accreditation; or

(c) the respondent holds an operator’s licence or journalist accreditation

and has ceased to have sufficient responsibility or aptitude to operate

to which the operator’s licence or journalist accreditation relates; or

(d) the respondent holds an operator’s licence or journalist accreditation

and has failed to meet a standard that relates to the accreditation; or

(e) the respondent—

(i) obtained an operator’s licence or journalist accreditation

improperly; or

(ii) has ceased to be a person of good repute, or in any other

respect has ceased to be a fit and proper person to hold an

operator’s licence or journalist accreditation under this Act

or, in the case of a body corporate, a person who has gained

or is in a position to control or influence substantially the

affairs of the respondent is not, or has ceased to be, a person

of good repute, or in any other respect is not, or has ceased to

be a fit and proper person to exercise such control or

influence in respect of a body corporate that is the holder of

an operator’s licence under this Act; or

APPENDIX A

10

(iii) has ceased to be eligible for any other reason to hold an

operator’s licence or journalist accreditation under this Act;

or

(iv) has breached, or failed to comply with, a code of practice

under this Act, or otherwise has breached, or failed to

comply with, a condition to which his or her licence or

accreditation is subject; or

(v) has breached, or failed to comply with, a provision of this

Act; or

(vi) has breached, or failed to comply with or satisfy, any other

requirement, standard, criteria, qualification or condition

prescribed by the regulations for the purposes of this

provision.

(3) If, after conducting an inquiry under this section, the Standards Committee is

satisfied that proper cause exists for disciplinary action, the Standards

Committee may exercise one or more of the following powers:

(a) the Standards Committee may reprimand the respondent;

the Standards Committee may require the respondent to pay to the

Consolidated Account a fine not exceeding $XXX (recoverable by

the Crown as a debt);

(c) if the respondent is an licenced operator or accredited journalist, the

Standards Committee may—

(i) attach conditions to the licence or accreditation;

(ii) shorten the period of licence or accreditation, or issue a

temporary licence or accreditation, and warn the respondent

that if further grounds for disciplinary action arise, the

respondent will be liable to be disqualified from holding a

licence or accreditation under this Act;

(iii) suspend the licence or accreditation for a specified period,

until the fulfilment of specified conditions, or until further

order;

(iv) revoke the licence or accreditation;

(d) the Standards Committee may disqualify the respondent from holding

a licence or accreditation under this Act—

(i) permanently; or

(ii) for a specified period; or

(iii) until the fulfilment of specified conditions; or

(iv) until further order.

(4) The powers conferred by this section may be exercised in relation to conduct

occurring before or after the commencement of this Act.

APPENDIX A

11

(5) The Standards Committee must not revoke or suspend the accreditation of a

person who is the holder of a service contract under Part X except with the

concurrence of the Minister.

(6) The Minister is not obliged to conduct a hearing or invite submissions for the

purpose of deciding whether or not to give his or her concurrence under

subsection (5).

(7) A person or operator who has had their operator’s licence or journalist

accreditation suspended is not an operator licensee or accredited journalist

during the period of suspension.

(8) Where the Standards Committee revokes an operator’s licence or journalist

accreditation under this section, the Standards Committee may stipulate that

the revocation is to have effect at a future time specified by the Standards

Committee and impose conditions as to the conduct of any activity under that

operator’s licence or journalist accreditation until that time.

(9) If a condition is imposed by the Standards Committee under this section, the

respondent must not contravene or fail to comply with the condition.

Penalty: Division 3 fine.

37—Related matters

(1) In the exercise of powers under this Division, the Standards Committee—

(a) must act according to equity, good conscience and the substantial

merits of the case without regard to technicalities and legal forms;

and

(b) is not bound by the rules of evidence, but may inform itself on any

matter in such manner as it thinks fit.

The Standards Committee may, for the purpose of any proceedings under this

Division—

(a) by summons signed by a member of the Standards Committee,

require the attendance of any person, or require the production of any

document, object or material; and

(b) require any person who appears in connection with the proceedings to

answer any relevant question; and

(c) require any person to make an oath or affirmation to answer

truthfully any question put by the Standards Committee.

(3) If a person—

(a) who has been served with a summons fails without reasonable excuse

to attend in obedience to the summons; or

(b) who has been served with a summons to produce any document,

object or material, fails without reasonable excuse to comply with the

summons; or

(c) misbehaves during any proceedings, or interrupts any proceedings; or

(d) refuses to answer any relevant question when required to do so under

this section; or

APPENDIX A

12

(e) refuses to be sworn or to affirm,

that person is guilty of an offence.

Penalty: Division 5 fine.

(4) A person is not obliged—

(a) to answer a question under this section if the answer would tend to

incriminate that person of an offence, or to produce a document,

object or material if it or its contents would tend to incriminate that

person of an offence; or

(b) to provide information under this section that is privileged on the

ground of legal professional privilege.

(5) Except as provided by this section, proceedings under this Division may be

conducted in such manner as the Standards Committee determines.

(6) The Standards Committee must prepare and publish information to assist

persons who may be the subject of proceedings under this Division. Division

6—Appeals

38—Appeals

(1) A person or operator—

(a) whose application for operator’s licence or journalist accreditation

under this Part has been refused; or

(b) who is an licenced operator or accredited journalist and is aggrieved

by a decision under this Part with respect to—

(i) the conditions imposed with respect to the operator licence or

journalist accreditation, or a variation or proposed variation

of them; or

(ii)the variation of the operator licence or journalist accreditation; or

(c) who is (or has been) an licenced operator or accredited journalist and

is aggrieved by a decision of the Standards Committee under

Division 5,

may appeal to the District Court.

(2) A right of appeal does not lie against a decision to suspend or revoke a

temporary operator’s licence or journalist accreditation.

(4) An appeal must be instituted within one month of the making of the decision

appealed against.

(5) The Minister or the Standards Committee must, if so required by a person

affected by a decision made by the Minister or the Standards Committee (as

the case may be), state in writing the reasons for the decision.

(6) If reasons are not given in writing at the time of making a decision and the

person affected by the decision requires (within one month of the making of

the decision) the Minister or the Standards Committee (as the case requires) to

state the reasons in writing, the time for instituting an appeal runs from the

time at which the person receives the written statement of those reasons

APPENDIX A

13

APPENDIX A

14

Assessment feedback

School of Law

The Law of Media and Communications

Assignment 3: 1,200 Words 30% of final grade

The Graduate Qualities being assessed by this assignment are:

GQ 2 and 4.

Name: Suzanne Stone

Key components of this assignment

Comment (if any)

1. Content

Has the topic been addressed critically and with sufficient depth?

Are all of the key issues addressed clearly?

I was watching your marks…this needed to be pretty good to get you to 85 overall. You need to get 29/30.

2. Structure

Introduction adequate?

Body of essay with key points?

Conclusion justified?

Getting close to 29

3. Language and presentation

Has it been written well?

Spell checked?

Grammar, syntax and spelling OK?

closer

4. Referencing

Are in text references (author, date, page) OR footnotes adequate?

Is there appropriate use of quotations, and referenced well?

closer

Total and grade

29 Out of 30

Comments generally This is a very fine piece of writing…easily the best paper I have read so far. 25 + 31 + 29 = 85 (so how about that!)

Marker’s signature rs

APPENDIX A

15

This form meets the requirements of UniSA’s Code of Good Practice: Student Assessment