Australian Press Council chair Professor DAVID WEISBROT expresses alarm at our media landscape and calls for publishers to work together.
- The law is lagging
- Hostile times
- Secrecy laws
- Metadata retention
- Importing US laws
- Facebook censorship
- Purpose of council
- Shirking responsibility
Unfortunately, the challenges to free speech and press freedom have grown in number and urgency.
Australia currently ranks 25th out of 180 countries in the World Press Freedom Index, so there are many worse and more dangerous places to be a journalist. However, we used to rank among the very best, up there with New Zealand and some Scandinavian states.
The law is lagging
Arguably, the single biggest constraint on free speech is defamation law—and we are well behind comparable nations in this area.
The current law inhibits investigative reporting and robust debate. The need for defamation law reform is all the more urgent because, unlike virtually all other Western democracies, we do not have an express constitutional or statutory guarantee of freedom of speech that can be relied upon to temper the harsher effects of the law.
Although review and reform was flagged in this area through the Council of Australian Governments (COAG) Reform Council over a year ago, defamation is not even listed among the 13 items on its current Reform Agenda.
The UK has proven that it’s possible to modernise defamation law in a sensible and measured way and the United States has long had constitutionally-mandated restraints on defamation law, especially where the person concerned is a ‘public official’ or ‘public figure’.
Of great recent concern was President-elect Donald Trump’s hostility to the media during his recent election campaign, barring such leading publications from the press pool, referring to the media as “crooked”, “dishonest”, “disgusting” and “scum”, and foreshadowing that as President he would seek to “open up our libel laws, so when they write purposely negative and horrible and false articles, we can sue them and win lots of money”.
Then we have overly broad ‘anti-terrorism’ laws. More than 40 such laws have been passed, often without sufficient parliamentary scrutiny of the potential effects on press freedom.
This is arguably the most voluminous and intrusive legislation among liberal democracies.
In their reach and complexity, the laws have the potential to ensnare journalists and editors who are simply doing their jobs in the public interest.
And we have a serious problem with our secrecy laws. The Australian Law Reform Commission’s report on Secrecy Laws and Open Government in Australia (ALRC 112, 2010) concluded, among other things, that far too much government information is over-classified, the criminal provisions on “unauthorised disclosures” were too vague, and the system was generally inconsistent with modern notions of openness, transparency and accountability.
The ALRC made 61 sensible, if rather cautious, recommendations for reform—none of which have been dealt with by successive governments.
The worrying list goes on. Compared with other common law jurisdictions, Australian courts are unusually willing to issue suppression orders, which run contrary to the important general principle of open courts and open justice.
This is a long term problem, and is particularly marked in some states.
There will be occasions in which the safety of a litigant or witness requires this protection, or other exigent circumstances apply, but suppression orders should be a rarity rather than the norm—and should never be used simply to save someone from embarrassment.
I have previously described the new metadata retention laws as a “crushing blow” to investigative journalism. These laws contribute significantly to the emergence of a “surveillance society” in Australia, which will dissuade whistleblowers and confidential sources from engaging with the media—despite the fact that many such revelations have proved to contain critical material that is wholly in the public interest, exposing corruption or misconduct.
Sadly, these laws received bipartisan support, with significant opposition in Parliament only from the Greens and some Independents.
Metadata retention laws are aimed, in part, at facilitating the detection of leaks and the sources of information. There has also been a recent growth in specific laws criminalising whistleblowing itself.
Most notably, under the controversial Australian Border Force Act 2015 s 42, ‘entrusted persons’ (public servants, doctors, lawyers, social workers) employed by the Australian Government who disclose “protected information” (such as allegations of malpractice or abuse) risk two years gaol. Following a legal challenge by Doctors Without Borders, on the basis these laws conflict with their professional ethical obligations to patients and infringe upon freedom of political communication, in September the Secretary of the Department flagged (via a determination) that doctors would be removed from the ambit of 42 — but not teachers, social workers or others caught by the law.
Importing US laws
Similarly, there have been moves in a number of states and the federal Parliament to introduce so-called ‘ag-gag’ laws imported from the United States, in which animal welfare campaigners and journalists who expose cruel and unlawful treatment of animals are themselves subject to serious criminal liability.
A number of the American ag-gag laws, such as one of the earliest efforts in Idaho, have been ruled unconstitutional by the US courts for impermissibly stifling speech.
The ability of journalists to access public sector information through the Freedom of Information process is critical to good investigative reporting, and to holding governments at all levels to account.
For a time, it appeared that the establishment of the federal Office of the Australian Information Commissioner (OAIC) would spark the necessary investment in resources, systems, expertise and cultural change to reinvigorate the commitment of the government and the public service to the principles and practice of freedom of information, openness, transparency and accountability. Unfortunately, that has not proved to be the case.
Although the Government has abandoned its earlier plans to abolish the OAIC, the office remains severely underfunded for its mission, with many senior positions unfilled or continuing on short-term contracts. A number of high profile Ministers, including the Attorney-General, have fought FOI requests through expensive actions in the courts, rather than comply with the spirit, and often the letter, of the legislation.
On a happier note, since the 2 July election, the Government appears to have revived its commitment to the Open Government Partnership process (which involves 70 other countries), with the government producing a Draft National Action Plan that has been exposed to civil society for comment in advance of the fourth OGP Global Summit in Paris in December.
The Press Council has been involved in discussions and information-sharing with other Australian civil society groups through the OGP Network Steering Committee.
Then there is Facebook. While Facebook has maintained, until very recently and contrary to all of the evidence—that it is simply an IT platform and does not act as a publisher or editor, controversies to continue to mount over its increasing role as the dominant distributor of news (with surveys indicating that nearly half of all users saying that this is how they now access the news).
Recent criticisms include: the clumsy censoring of images that are strongly in the public interest, such as the iconic and Pulitzer Prize-winning “napalm girl” photo from 1964, public service messages about breast cancer screening, and a photo of female Aboriginal elders painting themselves in advance of a traditional ceremony; changing algorithms, which promote or suppress the output of certain publications or certain type of stories; and the publication of unverified or patently ‘fake news’, which some pundits claim had a material effect on the recent American elections.
The Press Council has issued two media releases about Facebook’s increasing power in recent times and, in association with other similar bodies internationally, we will continue put pressure on Facebook to recognise its role, confirms its commitment to an open, independent and free press, and to adopt policies that support this commitment.
What about the controversy raging over ss 18C and 18D of the Racial Discrimination Act 1975 (Cth)?
In the first instance, a complaint made under s18C triggers a conciliation process in the Australian Human Rights Commission. In the past two decades, since these provisions were added to the RDA, only a small number of matters have proceeded to prosecution, and even fewer succeed, given the strong free speech protections offered by s 18D.
However, if a parliamentary or law reform inquiry results from one or more of the recent controversies, then the Press Council will seek to ensure that free speech and press freedom are adequately enshrined in any mooted changes.
Purpose of the council
The raison d’etre of the Australian Press Council is to provide sufficiently effective self-regulation of the print and online space to obviate any need for formal government regulation (and potentially control) of the independent news media in this country.
The Press Council does this primarily by setting appropriately high standards of practice, and holding the media accountable by handling complaints from members of the public.
Membership is vital. It means that each member commits the publications it controls to: comply with the Council’s Standards of Practice; to ensure its publications deal with complaints in accordance with the Council’s complaints-handling processes; comply with the requirements relating to publication of adjudications; and finally to contribute to the financial and other resources required to meet successfully all of these responsibilities.
The Press Council currently represents roughly 900 mastheads covering about 95 per cent of print circulation and a growing proportion of online-only publications.
But there is no compulsion for publications to join, nor any financial disincentives for failure to join.
Non-members are, in effect, shirking their responsibility to contribute to the industry’s self-regulatory regime and in doing so they inevitably weaken it. They create space for those who would impose unwanted government regulation on the sector.
Worse still, some of them criticise member publications when complaints against them are upheld in adjudications, without disclosing that they have not made themselves accountable in this way and are not bound by the Council’s standards or processes.
In light of the litany of threats to free speech, press freedom and to journalists themselves, it is now, more than ever, the time for media outlets to work energetically and cooperatively with the Press Council to safeguard these pillars of our democracy.
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