Peter A Clarke

On Monday the Australian, per Troy Bramston in Ministers firming on media direction gives his view on where the Government is going with media regulation.  It is an easy informative read, with a breathless quality describing internal ructions within Cabinet. A piece clearly written by someone who is being briefed from the inside rather than a work of painstaking investigative reportage.  It is quite interesting and informative.  Up to a point.  Bramston’s analysis of the privacy issues and possible reform is  Australian cookie cutter argument on the subject.  Simplistic and generally wrong.  The article, some commentary, provides:

As the Gillard government fin­alises its overhaul of media law division between ministers and Julia Gillard has led to a watered-down set of  proposals that nevertheless still poses a threat to the principle of freedom of speech safeguard by a free media, and to the future viability of media companies. There  has been no cabinet deliberation on a submission dealing  with media reform; nor has  there been any discussion as part of the regular strategy sessions within cabinet on substantive proposals.

However, there is general agreement as one minister says, that the government “won’t be going the full monty” on substan­tial reforms proposed by the  Finkelstein inquiry and the Convergence Review.  While the Finkelstem inquiry proposed a statutory-based and government-funded industry super-regulator to be known as the News Media Council, the government is likely to reject this proposal. A senior government source describes the proposal for a media regulator as “all but dead”.

But it didn’t go without a fight. The  unprecedented step of regulating the media with a new body that could set standards and hear complaints, and then force media outlets to publish correc­tions or issue apologies, and order rights of reply, was strongly backed by Communications  Min­ ister Stephen Conroy and Treas­urer Wayne Swan.

However, Conroy and Swan, who have accused the publisher of this newspaper, News Limited, of running a political campaign against the government, were overruled by the Prime Minister, who last month told Conroy to re­vise his package of reforms.

Conroy had wanted the biggest reform to media laws since the 1980s to be an “under the line”sub­mission to cabinet, which would avoid the usual process of circulating a submission for comment within government and allowing other ministers to consider the proposals and receive advice be­ fore the cabinet meeting where they would be discussed.

Gillard would have none of it and insisted that the submission be revised and developed within the normal processes, that there be a full cabinet debate on the pro­posals and that Conroy should work to secure a strong cabinet endorsement. Even though the Labor back­ bench wants a strong package of reforms, as an election edges ever closer and the government’s standing has improved in the polls, senior government figures doubt if this is the right time to pick a fight with the media over reforms that will inevitably be controversial

A detailed cabinet submission proposing  landmark reforms to the media that are bound to g er controversy is, ironically, likely to be leaked to the media before it is fully  circulated, let alone before it lands on the cabinet table for debate. That is why ministers want to secure  broad agreement before cabinet meets to discuss the proposals, which is likely before the end of the year but could be within weeks.

The government is settling on five reform areas: enhancing the role of the Australian Press Coun­cil by requiring media outlets to abide by its standards in return for gaining protection from, for exam­ple, shield laws; adding pay tele­vision-effectively Foxtel -to media ownership laws that restrict companies to owning only two of three key platforms: print, radio and television; adopting a “public interest test”for mergers and take­ overs that  will consider market competition  alongside influence · and diversity to be determined by the  Australian Competition & Consumer Commission; main­taining licence  fee rebates for commercial TV  in  return for boosting locally created content; and new privacy laws aimed  at protecting individuals from media intrusion. while this reform package falls short of some of the more ideologi­cally  driven   and   flawed   rec­ommendations of the Finkelstein inquiry, such as the News Media.Council, it will not be problem-free for the government.

Clearly, some ministers,  with substantial backbench support, want to go in much harder to regu­late the media.That is also the position of the Greens. They won’t be happy with the proposals. But even under what one minis­ter calls a “light touch”approach to regulation, there are elements-that could have a profound impact on the freedom  of media  organis­ations to report news and also the future commercial viability  of those companies. A fight with me­dia companies is still likely. At a time when some compan­ies that own a combination of TV,radio or newspapers are genuinely struggling to survive amid rapidly changing consumer preferences; dramatic decline in traditional advertising and unprecedented competition for reporting  news and analysis, particularly online, any form of regulation over content and any attempt to restrict the ability  of media  companies to expand  their  businesses  could diminish the value of those assets.

Further, by definition, regulating the media is an attempt to limit the  freedom of  speech safe­ guarded by a free media, which is a cornerstone  of an informed and . active citizenry and is one of the public’s few protections  against the abuse of power, secrecy and illegality in government, business and community organisations.

As a matter of logic the above statement is wrong.  It is possible to regulate the media and not touch the sides of freedom of speech.  Restriction on foreign ownership, as used to be the case, hardly infringes upon what happens on the news floor.  Regulating the nature of any corporate structure is likewise a matter of governance rather than freedom of speech issue, unless of course one wishes to stretch and strain the definition out of its current understanding.

That is why one of the most dangerous aspects of what is being proposed concerns the strength­ening of privacy laws.

Nonsense.

Encouraged by the phone hacking scandal in Britain,

To the extent that Minister O’Connor had some interviews in July and issued a discussion paper in September which was at a time that the phone hacking scandal was white hot in the press there is a connection in time. But this reasoning has more than a pinch of Post hoc, ergo propter hoc.  The consideration of a right to privacy has been a matter of debate, discussion and reportage in the last 10 years at a consistent level and well before then as well.

which was not replicated here in any way,

So what.  The issue is not hacking, it is whether there should be a statutory form of action an individual can take to protect their privacy.

and some recent local examination such as media coverage  of the death of teenager Molly Lord,

This is a complete furphy.  The Molly Lord case is an example, not an isolated one, of an interference with privacy.  It occurred in the very recent past but is hardly a instigator of a call for a statutory right to privacy or an accelerator of any debate.  The purpose of highlighting this case is not made clear by Bramston but a reasonable inference is that it is used to highlight the purportedly superficial and immediate interest as opposed to the more accurate contention that reform for which there has been broad and longstanding support.

the government wants to limit what a media organisation can report to the public when it concerns matters of a private nature.

Wrong.  The discussion paper, the ALRC reform (volume 108) and the commentary have not focused on a media specific law.  It is the height of arrogance for Bramston (amongst many other commentators/complainants) to characterise the law as such.  Clearly some activities by journalists may constitute an interference with privacy. Such a tort would apply to all individuals or organisations.  It may be used by an individual in relation to the activities of other individuals whose sole connection with the media is as a consumer of its product(s).  The other problem with this statement is

Senior government sources know there is difficulty here in balancing what is a private matter  with a matter  of genuine public interest.

A balance of interests should be part of the formulation of any statutory claim.  The difficulty in that balance is another matter.  It is within the wit of government to formulate the elements of the cause of action to incorporate such a balancing exercise for the courts to consider. It is well within the skill and expertise of judges to apply those elements to the facts.  Any difficulty is far from insurmountable.  The body of jurisprudence in the UK shows that the law can be applied to deal with the nuances thrown up by the unexpected fact situations and the particular policy issues.  The ALRC report considered these issues in detail.

The forthcoming cabinet de­bate will be fascinating because the internal and external dynam­ics affecting the government are vastly different than they were a year ago when these new media laws were first contemplated.

The issues surrounding a statutory right to privacy have not been altered at all.  If anything the rapid development of technology and its abuses make the need for some form of protection all the more important.

The larger issue, however, is that shackling media companies with regulation will inevitably restrain freedom of speech and reduce the commercial value of those companies, and therefore, their ability to continue to provide rigorous scrutiny of government that ensures those in positions of power e accountable to citizens.

 To the extent that Bramston refers to a statutory right of privacy this is just polemical nonsense.  Such a cause of action is not confined to the media.  The media operates in the UK where the misuse of private information cause of action is now well developed.  In the UK the media is not the sole focus of such actions.

As is common with these sort of vague complaints about a statutory right of privacy there is a Henny Penny element to the jeremiad.  A pity really.