Free Speech 2014 Symposium Papers

5.3Michael Sexton SC¹⁷

The two different worlds of the title are electronic media – radio and television – and the print media – newspapers and magazines. The former is the subject of highly detailed regulation in Australia through the medium of federal legislation, while the latter remains essentially unregulated (except insofar as newspaper proprietors may encounter restrictions on their ability to own electronic media outlets at the same time as their print publications). Each of these sectors will be considered in turn, although there will obviously be an emphasis on electronic media because of the volume of regulation to which it is subject.

The Broadcasting Services Act 1992 (Cth) (BSA) regulates electronic media in Australia. It is 1067 pages in length and extends to almost every aspect of this sector of the media. The body responsible for administering this system of regulation is the Australian Communications and Media Authority (ACMA), which is established by the Australian Communications and Media Authority Act 2005 (Cth).

Under the legislation the following categories of broadcasting services are required to obtain licences under the authority of ACMA in order to operate their activities:¹⁰⁴

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  commercial television
  
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  commercial radio
  
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  subscription broadcasting services
  
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  subscription narrowcasting services
  
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  open narrow casting services
  
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  international broadcasting services
  
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  community broadcasting services
  
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  datacasting services.
  

Each commercial television and radio licence is subject to a set of conditions set out in the legislation and to any other conditions that may be imposed by ACMA.¹⁰⁵ It might be noted that a breach of any of the conditions set out in the BSA is made a criminal offence and may also attract a civil penalty.¹⁰⁶ Licences may be suspended or cancelled for the breach of a condition.¹⁰⁷

One of the conditions applicable to commercial television and radio licences is a requirement that the licensee comply with program standards developed under the legislation.¹⁰⁸ The commercial television and radio industries have formulated codes of practice that include program standards. In theory this is a voluntary exercise, although the legislation provides that, if no code of practice is supplied to ACMA, the authority itself may determine a standard in relation to any aspect of the codes referred to in the legislation.¹⁰⁹ Amongst the matters that can be covered by codes of practice are:¹¹⁰

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  preventing the broadcast of programs that, in accordance with community standards, are not suitable to be broadcast
  
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  methods of classifying programs that reflect community standards
  
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  promoting accuracy and fairness in news and current affairs programs
  
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  amount of time devoted to advertising.
  

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  portrayal of physical and psychological violence
  
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  portrayal of sexual conduct and nudity
  
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  use of offensive language
  
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  use of drugs, including alcohol and tobacco
  
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  matters that are likely to incite or perpetuate hatred against, or vilify, any person or group on the basis of ethnicity, nationality, race, gender, sexual orientation, age, religion or physical or mental disability.
  

There is a local content requirement under the BSA for commercial television services that effectively amounts to 55% of viewing time over any particular year.¹¹² Yet another area of regulation is the cooperative scheme between the federal, state and territorial governments for the classification of publications, including films and computer games, by way of two federal bodies, the Classification Board and the Classification Review Board.¹¹³

Complaints may be made to ACMA in relation to program content or non-compliance with a code of practice, and in the case of the ABC and SBS, about non-compliance with a code of practice.¹¹⁴ A complaint can only be made to ACMA if an initial complaint has been made to the relevant organisation and a response is not received within 60 days, or the response is considered by the complainant to be inadequate.¹¹⁵

ACMA is authorised by the legislation to conduct investigations in relation to any of its functions and may conduct public hearings in these areas if it is so minded.¹¹⁶ For the purpose of an investigation ACMA may summon a person to attend and produce documents or answer questions under oath or affirmation.¹¹⁷ In the case of hearings, ACMA may summon a person to appear to give evidence on oath or affirmation or to produce documents, or to do both.¹¹⁸

One such investigation by ACMA was the subject of protracted proceedings in the Federal Court over the last year. The proceedings arose out of a telephone call made by two presenters of radio station 2Day FM in December 2012 to the hospital in London where the Duchess of Cambridge was being treated during her pregnancy. The presenters, posing as the Queen and Prince Charles, spoke with two hospital staff and the recorded telephone call was played on air in Sydney. One of the two staff members subsequently took her own life, although whether influenced by the conduct of the presenters was difficult to determine.

ACMA instituted an investigation into whether the radio station had complied with one of the conditions to which all commercial radio licences are subject – that is, the licencee will not use the broadcasting service in the commission of an offence against a law of the Commonwealth, a state or a territory. The recording of and publication of private telephone conversations may be contrary in some circumstances to the provisions of the Telecommunications (Interception and Access) Act 1979 (Cth) and the Surveillance Devices Act 2007 (NSW).¹¹⁹ The radio station sought an injunction restraining ACMA from making any finding that it had committed a criminal offence on the basis that such a finding could only be made by a court. Edmonds J held that ACMA was entitled to continue its investigation despite the radio station not having been found guilty of any offence by a court.¹²⁰

On appeal to the Full Federal Court, however, it was held that the relevant provisions of the BSA did not envisage a finding by ACMA as to whether or not particular conduct constituted the commission of a criminal offence.¹²¹ The Full Court considered that ACMA could only find a breach of the relevant condition where the licencee had made an admission that it had used its broadcasting service in the commission of a criminal offence, or a court exercising criminal jurisdiction had found that such an offence had been committed. ACMA has filed an application for special leave to appeal to the High Court and the application will be heard on 15 August 2014. The cost of these proceedings has already been substantial on both sides and obviously further considerable costs will still be incurred, particularly if leave to appeal is granted by the High Court.

Restrictions on media concentration

The BSA has a lengthy set of extraordinarily complex provisions seemingly designed to prevent significant concentration of media ownership in particular markets.¹²² A single media company is, for example, precluded from controlling a commercial television licence, a commercial radio licence and a newspaper in the one region. One problem with this concept is that the BSA, like all earlier legislation in this area in Australia, has largely accepted an existing historical situation of substantial concentration of media ownership. It may be, however, that there is a degree of inevitability about this kind of ownership structure in Australia. The combination of a relatively small population in urban clusters and a large land mass might suggest oligopoly as a likely result. These provisions of the BSA – and the provisions of the Competition and Consumer Act 2010 (Cth) dealing generally with competition in markets – have their genesis in the U.S. anti-trust legislation of the 1890s. It might be doubted that this kind of legislation has ever been particularly effective in the U.S. itself, but the value of its importation to a much smaller and inherently less competitive environment in Australia can certainly be doubted.

In contrast to the elaborate system of regulation for the electronic media, the world of newspapers and magazines, together with their on-\line extensions, is largely unregulated. There was a proposal to change this situation in 2012 in the form of the Finkelstein report into the media and media regulation.¹²³ The report recommended a News Media Council that would set journalistic standards for both the electronic and print media, and handle complaints made by the public when those standards were breached.

The report was heavily criticised, not least for its apparent assumption that most members of the community were incapable of assessing material in the media without some form of external guidance. It was said in the report, for example, that ‘in modern society there is a limited capacity of people to learn all that they must to fully participate in the democratic process’ and that often ‘readers are not in a position to make an appropriately informed judgment’.¹²⁴ In any event, the report, which was made to the then relevant Minister in the federal government, was not implemented.

There is a system of voluntary regulation for the print media in the form of the Press Council. The Council is comprised of 22 members, nine of whom are nominees of media organisations together with four independent journalist members and nine members who have no affiliations with a media organisation, one of these being the chairperson. The core funding for the Council is provided by the major media organisations that form its membership. Complaints can be made by members of the public to the Council and are considered against standards that have been developed by the Council. The Council’s adjudications on complaints are published in the newspaper – and its online extension – about which the complaint was made.

One problem for the Press Council is that it seems to have become embroiled in highly contentious and ultimately unresolvable debates over economic and social issues by considering complaints about publications on these kinds of questions. It might be thought that complaints as to factual inaccuracy would be better confined to those by an individual as to what has been published about him or her in the relevant article.

It should be noted that the print media, like the electronic media, and even social media, is subject to various legal regimes that may impose civil or criminal liability for what is published. The most obvious of these regimes are the law of defamation which provides a remedy, subject to a range of defences, for damage to reputation, and the law of contempt which imposes criminal liability for publications that, for example, prejudice the pending trial of a person charged with a criminal offence.

In March 2012 the Convergence Review established by the then federal government reported to the relevant Minister.¹²⁵ As its title suggests, it had been set up to consider the question of media regulation at a time when the boundaries between traditional forms of media had become significantly blurred. The chief findings of the review were as follows:

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  Licensing and broadcasting services should cease as this sector was over regulated.
  
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  Major media operators – perhaps numbering 15 in Australia but not including, for example, Google, Telstra and Apple – would be subject to regulation in two areas:
  
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    First, media ownership to ensure that no operator had a dominant influence in a local market for news and commentary.
    
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    Second, content standards for news and commentary should be the responsibility of an industry-led body along with other content standards, including local content quotas, being the responsibility of a federal statutory body replacing ACMA.