Is Media Regulation The Answer?

On Thursday Lord Justice Leveson handed down his report into the British media. The Leveson inquiry was set up in the wake of the Murdoch media phone-hacking scandal and was tasked to interrogate "the culture, practice and ethics of the press".

Leveson’s 2000-page report is extensive, but its key recommendation is for an independent media watchdog with the power to impose hefty fines on news outlets who act unethically. Membership would be voluntary, but those who declined to join the regulatory system would face higher civil damages if sued by victims.

Here in Australia, where Rupert Murdoch’s News Ltd owns the vast majority of print media, the report has particular relevance. We asked four local journalists and media academics what lessons the Leveson inquiry had for media reform in Australia. Here’s what they had to say.

 

Jeff Sparrow is the editor of Overland literary journal.

One of the less attractive phenomena in today’s media is instapunditry: the production of opinion pieces distinguished less by their rigour than their immediacy. The Leveson report runs to four volumes and nearly 2000 pages, and it only appeared several hours ago. Anyone who claims to have read all of it is a liar. Bear that in mind when you read the commentary, including what’s below.

Will Leveson’s recommendations improve the UK media? Of course not — but that was never really the point.

The report emerged out of a scandal not simply of the press but of the whole political class. Murdoch’s men could go about their vile business trolling distraught families unimpeded because of their extraordinary closeness with police and politicians. Indeed, if you sought an analogy with the distinctive hypocrisy of the tabloids (braying about law and order even as they listened into the phone messages of murder victims; cheering on the Iraq war while snooping on the relatives of dead soldiers, etc), the most obvious comparison would be Tony Blair’s New Labour, where unctuous proclamations about ethical foreign policy went hand-in-hand with pre-emptive invasions and coercive interrogations.

Labour, like the Tories today, governed via spin and media manipulation, and that meant an incestuous relationship with the press proprietors, a relationship directly linked to the tabloids’ sense of legal invulnerability.

There’s nothing in the report to address the cosy, self-serving nexus between politicians and the press. But then again you wouldn’t expect there to be.

Too often liberal enthusiasts for media reform proceed as if the key task is to provide tabloid editors with a refresher course in the core principles of journalism. But, at the end of the day, newspapers are businesses, not philanthropic institutions. That means any worthwhile account of why the press behaves like it does involves economics rather than ethics. The venal amorality of News Ltd is deep in the DNA of every multinational corporation, and it’s hard to see how an "independent self-regulatory body" will change that.

Which is simply to say that any serious attempt to foster media diversity needs to begin by giving the excluded a voice: creating new platforms, fostering alternative and oppositional models. But Leveson was never about that, and so it’s naïve to expect it to make much of a difference.

Or, at least, much of a progressive difference.

One of the stranger aspects of the discussion around Leveson is that so much of it ignores how the phone tapping scandal took place alongside a very different but far more significant event in the media world – namely, the slow burning journalistic revolution spearheaded by Wikileaks. Julian Assange’s outfit broke more stories over the last few years than almost all of the traditional media combined. How did Wikileaks do it? Actually, many of Assange’s big scoops came via methods not so very different from those employed by the London tabloids. Wikileaks’ sources broke the law, too — it’s just that they did so in pursuit of issues that actually mattered, rather than in the name of cheap titillation over a sensational murder or a randy film star.

Furthermore, the regulatory laxity that allowed the Sun‘s gang of spivs to rampage unimpeded accompanied a general crackdown on whistleblowers and leakers — even as the Leveson report hits the streets, we’re hearing excruciating details about the slow crucifixion of Bradley Manning.

That’s why there’s every reason to be concerned, as the human rights group Liberty reportedly is, about some of Leveson’s specific recommendations. For instance, the report calls for an extension of the maximum penalty available for "data theft", and advocates criminalising "knowingly or recklessly" obtaining personal data. You don’t have to be a conspiracist to think such regulations (if they get up) will be far more likely to be used against a Manning-style whistleblower than to send Rupert Murdoch to jail. Let’s remember how, on the other side of the Atlantic, the well-documented revelations of the CIA’s involvement in detainee abuse have resulted in exactly one prison term. Yes, that’s right: John Kiriakou is behind bars, not because he tortured anyone, but because he blew the whistle on those who did.

What are the implications of Leveson for Australia? In the short term, not very much. One doubts that the beleaguered Gillard government has much enthusiasm for stepping any time soon into the minefield that is media reform.

But let’s be optimistic. The best outcome would be that the report prompts progressives, both here and in Britain, to start thinking more deeply about the kind of media we have — and, more importantly, the kind of media we need.

 

Andrea Carson is a PhD researcher at the University of Melbourne examining the contribution that Australian broadsheets have made to investigative journalism over time. As the business model for print has fractured, a question of interest is who will fund investigative journalism, generally considered a "public good" that serves the public interest, in the future, if new news funding models are not found. This raises the question of media legislation and reform. Do we need measures in place to enshrine public interest journalism?

Lord Justice Leveson has been very clever in recommending "independent self regulation" of the British press but with statutory underpinning if the press fails to organise themselves as he has recommended. He said such a scenario of failure to adopt his recommendations, would be a "regrettable event" that would require statutory regulation with the communications regulator Ofcom to act as a backstop for those not prepared to join the "voluntary" scheme. Leveson has also been clever by describing the system as voluntary, but providing powerful sticks and carrots as incentives for all press to sign on.

Australia also needs to have a strong "voluntary" regulatory system. The current Australian Press Council has recently been strengthened under the Chair of Professor Julian Disney, who has beefed up the rules of membership and doubled the council’s funding, but it remains insufficient. In the words of Leveson, such a system does not work because it leaves the press in charge of "marking their own homework".

The same can be said of the Australian Press Council. Effectively, when there are complaints against journalistic standards and media ethics, it is the Australian press who currently grade themselves, and history has shown them to be very generous markers. While Australian membership has been tightened so that members must give four years notice before leaving the Council, membership remains too discretionary. News media can exempt themselves from the process, which is what Seven West Media, the publisher of the West Australian newspaper and Pacific Magazines, did when the changes were announced this year.

It’s clear that the current system of media regulation in the UK has failed. Leveson repeatedly pointed to the failure of Britain’s Press Complaints Commission to adequately deal with gross breaches of journalistic standards.

Leveson is right in that there needs to be a new system implemented. If the press follow his recommendations, I believe it would lead to an improved UK media. Under the recommended system, there would not be government intervention, despite fear-mongering that there would. In fact as Leveson states, "it would enshrine, for the first time, a legal duty on the Government to protect the freedom of the press".

Importantly, trust between the press and the public has corroded and the new self-regulatory body would be a step to repair that damage. The body would be self-funded, again giving it distance from perceptions of government intervention, but it would have independence because the chair and other members of the body would be appointed by an independent appointments panel. The formation of this panel is well detailed by Leveson to ensure the panel is free of government or industry persuasion.

While the Prime Minister David Cameron argues the new body would threaten press freedom, the Opposition leader Ed Milliband offers, in my view, a more reasonable assessment, which is that it doesn’t mean loss of free speech. Rather, the phone hacking victims are one of many examples where the current form of self regulation has failed in the UK and this is a clever way to fix a broken system.

The Leveson inquiry’s overwhelming strength is that it forced the media to critically evaluate itself for the first time in a long time. It made journalists and news publishers, not just in the UK but around the world, think about what they value in a free press and what are the responsibilities that come with such freedom.

Leveson’s recommendations are a strong combination of a carrot and stick approach with a "voluntary" self-regulatory system. Offering members safety from exorbitant litigation fees through the establishment of an inquisitorial arbitration system to settle disputes is a strong incentive. A weakness of the recommendations could be the proposed changes to data protection rules that in practice might be too limiting in the way in which journalists can use personal information when reporting in the public interest.

 

Chris Graham is the managing editor and founder of Tracker magazine, owned by the mighty NSW Aboriginal Land Council. He’s also the former and founding editor of the National Indigenous Times.

My perspective on the Leveson Inquiry report comes from a two-and-a-half decade career in the media. The first half of that was in mainstream media. The second half has been as an Aboriginal affairs reporter.

Twelve years ago, I believed strongly in the need for an independent, unregulated press.

Today, I believe the press, and the broader Australian media, is part of the problem.

Virtually everything Lord Justice Leveson said about the British press —– that they have failed to regulate themselves; that they have failed to hold themselves to the scrutiny they impose on others –— can be leveled at the Australian media.

I accept that the role of the media is not only to inform and educate, but to entertain as well. The Australian media does many of those important jobs well. But surely the most important role of the media is to give voice to the voiceless? Surely that is the mark not only of a free and independent press, but of a mature and moral nation?

On that front the Australian media falls down very badly.

I accept that media is only ever really a mirror of the society in which it operates, but in Australia’’s case, that is precisely the problem.

Hence, the need for an independent regulatory authority. Because often a society needs to be protected from itself. It’’s why we have laws banning drugs, regulation of alcohol and tobacco, and legislation that guides virtually every industry in the nation.

More broadly, Australians need to be protected from their apathy.

Our blind faith that somehow one of the crucial pillars of our democracy — the media — is not going to be corrupted by the power it wields, is extremely naïve.

I can tell you that the people routinely on the receiving end of, at best, media disinterest, and at worst media misbehavior, don’’t believe that for one second.

Do I 
believe Leveson’’s recommendations would lead to an
 improved UK media? Yes, there would be improvements. The only way is up, because the UK media can’’t really sink much lower.

But in my view, Lord Justice Leveson’’s recommendations for the independent regulation of the press with a legislated watchdog don’t go far enough. The media should be regulated and licensed, similar to that imposed on lawyers.

I acknowledge that when you tinker with a pillar of democracy, that slow, incremental change is a good thing. But in Australia, our radio and television media is already regulated to some extent. It has not been enough to bring them to heel.

Without question, some of the worst offenders are on television and radio.

Think Alan Jones. Think A Current Affair. Think Today Tonight. Think ABC Lateline’’s deliberately misleading story on the NT intervention.

Both press and broadcast media need to be properly regulated, with genuine sanctions for the sort of unethical conduct that would not be tolerated in any other Australian industry.

I actually think the strongest arguments for regulation are contained in the arguments leveled against it by the press.

Chris Blackhurst, editor of the UK Independent, was interviewed by the BBC in the days leading up to the handing down of the Leveson report. His argument against regulation, and I’’m not making this up, was this: “There are laws that are intended to stop people robbing banks, but every day in Britain a bank is robbed. No matter how much you regulate… some people will set out to break the law.”

Every day, the Australian media fails to live up to the standards to which it holds all other sectors of our society.

Our industry — and our belief in the need for a free and independent media —– is a triumph of process over product, the product being a daily diet of bias, sensationalism and indifference to the suffering of those unfortunate enough to be a minority.

The Australian media will never do the right thing if left to their own devices. The aspirational values of society –— the nation we say we want to be, and often pretend we are — must be imposed through regulation.

A system of regulation which places a heavier burden of proof on the perpetrators of the fraud, is the only real solution.

But at the moment, media have all the power, and all the resources. Individual members of the public, comparatively, have virtually none.

And there must be sanctions —– real sanctions —– for journalists and newsrooms who choose the route of gutter journalism.

If any other sector of Australian society — doctors, nurses, lawyers, police, plumbers, electricians, builders, taxi drivers —– failed so spectacularly and so regularly to meet the most basic of professional standards, as the media routinely does, there would be no debate about the need for genuine regulation.

I think the approach of the Leveson inquiry was adequate. It took testimony from a wide array of sources, in particular those affected by the practices of the British press. I think a similar process must be run in Australia, but I don’’t believe that the federal government, in the current climate, has the courage to take on the Australian media.

While I’’ve worked with many outstanding and ethical journalists, they are in the minority. Anyone who has worked in my industry has a litany of stories of grossly unethical conduct by journalists and editors.

Our culture is no different to that of the police —– if we’’re not engaged in grossly unethical and sometimes illegal conduct ourselves, then the vast majority of us say nothing when we witness it from others.

A news editor from a British paper interviewed by the BBC recently argued that the “conduct of a few” should not be allowed to have an impact on all journalists, the majority of whom do not engage in illegal conduct like phone hacking.

Of course, the media are the first to scream for new laws when the conduct of a few in any other industry impacts on the many. But what’’s so significant about this ‘argument’ is that not only is it the widely held belief of journalists in Britain, it i’s one of the key claims by media here in Australia in arguing against regulation. That and the claim that the sort of tactics employed by the British press don’’t happen here.

That argument misses the central point of the Leveson inquiry. It was not just about phone hacking, it was about the broader ethics and the culture of the British press.

The family of Clare Bernal, a young Briton who was murdered by her boyfriend, was also interviewed by the BBC in the lead up to the Leveson report.

Like Millie Dowler, Clare Bernal’’s phone was hacked by Rupert Murdoch’’s News of the World. But the complaints of her family –— at least in the BBC interview — centred not on the illegality of the phone hacking, but on the conduct of the press pack camped outside their home in the hours and days after the murder.

That is a very familiar scene in Australia.

 

Jenna Price is an academic and journalist who is, along with 20,000 others, a member of Destroy the Joint, an online community against misogyny and sexism. She works on a program with Victims’ Services, part of the NSW Department of Attorney General and Justice, to develop guidelines for media who deal with victims of crime. 

I doubt very much that the Australian government, in its present iteration, will have the guts to do anything at all about media reform. It is on a tightrope and far too busy defending itself against the Opposition, instead of taking seriously its responsibilities for the future.

Australia has not routinely followed Britain in this arena and is unlikely to do so now without serious activism to make change. We have two weak bodies — both the Australian Press Council and ACMA do not serve the public well. It still shocks me that ACMA found the David Campbell story needed to be told by Channel Seven to explain why the NSW state minister resigned. I’ve worked with those who are victims of crime over the past two years and at no stage do they feel they are well protected by the Australian bodies.

I think it is pretty difficult as an Australian to make a serious assessment of whether Leveson, if implemented, will improve UK media. Residents of Britain say there has already been a change — the existence of the inquiry made reporters operate differently without a single piece of legislation. You can’t behave in the way you’ve always behaved when you know people are watching and when you know former colleagues have been arrested and charged. This is not fear of MediaWatch but of something far more powerful.

The British Prime Minister, David Cameron, says the final test of the effectiveness of Leveson will be whether victims feel they will be better protected. If that’s the case, it is way too early to be cheerful. The BBC reports that Mark Lewis, lawyer for Bob and Sally Dowler, the parents of murdered schoolgirl Milly Dowler, said the couple greeted the findings with "cautious optimism".

Lewis said: "They need to ensure that the politicians now implement something that really prevents the abuse that they suffered."

Self-regulation in Australia has not worked in any way. It’s a little like dieting — you only do it if you think you might die.

As for freedom of speech, Australia doesn’t have it. We already have laws about defamation and contempt. My experience over the last three months shows that the only people who promote free speech are those who think it is perfectly alright to have an opinion without a single fact to back up what they say. I really recommend everyone reads Patrick Stokes on why it’s not okay to have an opinion.

I think there is little point in any kind of media regulation now. Who gets their coverage from the kind of media which will be affected by media regulation? No-one. When so much media is consumed through social media and those who interpret and commentate on social media, it seems to be of little value to regulate. Just as Emily Bell, director of the Tow Centre for Digital Journalism at Columbia University, New York, wrote in The Guardian on Thursday: "Just as nature abhors a vacuum, the internet abhors geo-specific regulation."

Mark Pearson, professor at Bond University and author of Blogging and Tweeting Without Getting Sued, said there are thousands of unactioned tweets every day — and he’s probably understating that. If you can’t legislate around the three most powerful news media in the world — Google, Facebook and Twitter — you need to work around the culture. As Bell puts it: "The real remedy is a change in culture at every level."

From my point of view, that’s possible — but it requires the kinds of activism witnessed this year, such as the campaign by Destroy the Joint against sexism and misogyny. That works. It makes people take greater care. But that kind of campaign requires aggregation of community against serious institutional abuse of power — and that requires a lot of work when nobody is paying.

In the past week, UK tabloid media has spent more time analysing the tweets of Sally Bercow, wife of the Speaker of the House of Commons, who tweeted material about Lord Robert McAlpine, the Tory politician mistakenly accused by the BBC’s flagship current affairs program of being implicated in child abuse, than it has in seriously predicting or discussing the findings of Leveson. Bercow is tweeting again even though it looks as though McAlpine will sue those who retweeted the Newsnight material.

I earnestly wish that those who are the victims of unprofessional and exploitative coverage by mainstream media would have a venue to seek financial recompense for the wrongdoing of journalists and editors, which would not involve victims in costly court cases. Mostly those people can’t afford it and don’t have the support to do it.