The Age raid: where’s the public iterest?

Republished from The Conversation

Victoria Police e-crime squad members yesterday raided the offices of The Age newspaper as part of their ongoing investigation into allegations that reporters from the paper illegally hacked into an ALP database.

Officers attempted to seize the computers of investigative reporters Nick McKenzie and Royce Millar, but The Age obtained an emergency injunction blocking the removal of the equipment.

Police interest in the matter stems from a story published during the 2010 Victorian election campaign demonstrating the high level of personal detail kept on individuals by ALP on its voter management database.

The Conversation spoke with Associate Professor Martin Hirst about journalism, the law and what constitutes public interest.

The original story in The Age revealed how the Victorian ALP collected and used data on constituents. Was this in the public interest?

I guess every story in politics is in the public interest, and this certainly was a politically interesting story, but having reread it, it seems to me that it was merely a one-off, a front page splash for The Age, and an exclusive for them, so it was good for them, but in the scheme of things I don’t think anyone would be surprised that political parties, or indeed any organisation, is keeping files on them.

Has the significance of this story been overblown?

I think the significance of the original story has been overblown. It’s been kept alive very well over the past several months by the Herald Sun and by The Australian and I think they’ve done a very good job of keeping it alive in the public mind. They’ve related it very much to the British phone-hacking story and used it as a bit of a spoiler to deflect from the heat from that. It’s on a different scale,though. The News of the World events are much more significant.

How did the article lead to a police raid on the paper?

Well it seems there’s a bit of a background here. After the Herald Sun started sniffing around on this story, one of the people they spoke to was the Victorian Electoral Commissioner, who then complained to the police and asked the police to investigate whether any illegal activity had taken place. So it seems that’s where the original complaint was laid from, and the police are now just doing what they’re tasked with, which is to follow up on these types of of allegations.

Who do you see as being the victim in this crime?

It’s hard to say that anybody’s really a victim here. The Labor Party is obviously embarrassed because their secret polling and the existence of this database is now public information, so they’re a little bit embarrassed. The Age has been very careful not to release information they got from this database without checking with those people, so they haven’t really released any private information. I think to some extent it’s a victimless crime. There’s no victim I can see here.

The police have raided the office to establish whether journalists who accessed this database have broken any laws, in particular section 478 of the Commonwealth Criminal Code. If the journalists have broken this law, do you think it was a law they were entitled to break, and are journalists entitled to break the law in general?

The police have to establish through their investigation whether or not a law has been broken and I think if I was advising The Age journalists I’d be very cautious about what they say about this, and certainly I would argue that given that they got the password and the username from an ALP worker that they perhaps could argue that they were authorised.

But in the general sense of when it’s permissible to break laws, I think what has to happen in a a situation like that is that the public interest has to be set very, very high. I think the public interest test bar has to be incredibly high in a situation like this before you can actually say that journalists are allowed to break the law.

I think journalists often would like to think they’re above the law but they’re not. Journalists must abide by the laws of the land and for anybody to take the law into their own hands and argue that they have a right to break a particular law, you have to have a very good case, you have to have a very strong public interest argument that it’s desrirable to break the law. I don’t think the original public interest on this story was high enough to warrant breaking the law – if that’s what’s happened.

There is a shield law to allow journalists to protect sources, found in the Evidence Act. Should that shield law be applicable in this case?

It seems to me that the most interesting aspect of this case is in fact that that new section of the Evidence Act can be brought into bear here, and may be used as a defence. I don’t think this law has been used before – it was only passed into legislation earlier this year – so it has not yet been tested. Now having looked at section 126h of the Evidence Act, or the amendments to the act that were passed this year, it does make it quite clear that a journalist is within their rights to refuse to give up the name of a source if they have offered that source some form of identity protection, so in this case it could very well be used as a defence. It seems to me that we’re likely to see the first legal test of this if it does ever get to court.

 

Convergence Review Interim Report – The Conversation

Republished from The Conversation

The Federal Government’s Convergence Review has released its interim report, recommending the scrapping of existing cross-media ownership rules and that commercial operators be given “certainty” around the activities of the ABC and SBS.

The report, which says new digital media operators should face the same regulatory framework as traditional media outlets, suggests introducing a new “super-regulator”, local content quotas, and the use of a “public interest test” for media company takeovers.

Deakin University Associate Professor in Journalism Martin Hirst examines what the recommendations could mean for Australia’s rapidly changing media industry.

[published as Q&A due to my hand issues]

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Do you think the report adequately responds to the challenges arising from media convergence?

I think it’s quite empty of content, to be perfectly honest. The headline in it for me is that it’s an attempt to come to terms with what I call the “techno-legal time gap” – the dissonance between what technology can do and how it is regulated.

It’s an effort to bring the regulatory regime up to speed with the technological advances in the media industry.

This is why the report emphasises platform neutrality, which is the idea that we should treat all communications technology pretty much the same way. There is no real argument anymore for maintaining any difference in the way that we regulate print and broadcast.

Convergence means the overlap between different types of media is huge, particularly online. We now see television and radio networks producing blogs and other forms of written copy. You can go to the ABC News website and read transcripts of stories from ABC radio current affairs program AM, and you can go onto a newspaper’s website and watch video content that they have made.

This is one of the key things the review was set up to look at.

Some of the proposals, such as setting up a new regulator, will take a lot of work. Is the political climate right for these changes?

The devil is really in the detail, and it’s difficult to tell just from this interim report where exactly the entire review will head.

One of the most crucial issues seems to be the time frame. We are now probably 18 months out from the next federal election, and it’s going to take much longer to get that sorted out. So it looks like the review has created a political football to be kicked around until the election comes.

The issue of setting up a replacement for the Australian Communications and Media Authority (ACMA) is quite complicated. Where does this leave the proposal put forward by head of the federal media inquiry, Ray Finkelstein QC to give more powers and money to the Press Council?

If you have one super-regulator that is at arm’s length from the government and deals with consumer complaints, then you don’t need a Press Council to deal specifically with print.

ACMA has done a good job in the past few years, particularly in reining in the worst excesses of the shock jocks. But the report is putting forward a light-touch approach to regulation here, and that is definitely what the industry wants.

The report talks about clarifying the charters of the ABC and SBS around their digital expansion. What are the implications of this?

There is a very important line in the report which is going to come back to haunt the ABC and SBS, but it is something that the Murdoch camp has been pushing for globally for some time. It says that the government must “give commercial operators certainty about the boundaries of public broadcaster activities”.

Over the past three or four years that have been various people in News Corporation, including Col Allan, John Hartigan, James Murdoch and Rupert Murdoch, attacking the ABC and BBC, saying that they’re getting in the way of commercial networks expanding.

If there is a move to put strong boundaries around the ABC and SBS, that will certainly work in favour of the commercial operators.

The review calls for a “public interest test” for media takeovers and mergers. Would this work in practice?

This relies on a flawed idea of how the market operates. If you look at the public interest test as it currently exists in the ACMA legislation, the Broadcast Services Act and at the Australian Consumer and Competition Commission, it is all about the invisible hand of the market.

What this does is set up people as consumers rather than citizens. It says that as long as we are satisfied as consumers – rather than as citizens – the public interest is being met.

The report acknowledges the concept of public interest is not very well defined.

Could the loosening of ownership rules lead to a wave of consolidation, or change the make-up of the media industry?

The elephant in the room here is what is happening to the Nine Network. No amount of tinkering with the diversity and ownership rules is going to deal with the fact that Nine is on its last legs.

In the next two to three months, it will fall into the hands of the banks or the receivers. That is the biggest problem with this review – it cannot address issues of market failure.

Five years ago Nine was competing with the ABC to be known as Australia’s national broadcaster. Now it’s a basketcase.

The reason why Nine is in such mess is partly due to previous deregulation. The only thing that could be done to keep Nine going would be to nationalise it, and that’s not going to happen.

When all its debt comes due in February, I’d be surprised if it has anything in place to keep it afloat. The banks don’t want it – it’s toxic debt.

The beginning of the end for the Press Council?

Some interesting news this week of a new organisation set up to represent newspaper publishers.

THE country’s four major newspaper publishers have formed a new venture, the Newspaper Works, to give the industry a united voice on a range of issues from environmental sustainability to collecting readership data.

Under the new banner, the publishers at Fairfax Media, News Ltd, Seven West Media and APN News & Media have the scope to discuss, comment and set collective policies to make the sector more efficient for advertisers and readers.

Read more: http://www.smh.com.au/business/publishers-join-forces-for-a-united-lobby-voice-20111209-1onir.html#ixzz1g5F5asMR

I can’t help but wonder if this is not a precursor to something else – the break-up, or perhaps the assassination – of the Australian Press Council.

In the past few weeks the Finkelstein inquiry has been getting an ear-bashing from old-school newspaper types objecting to the kite-flying proposal to give the Press Council more teeth and some government funding.
All along Ray Finkelstein has been raising this possibility as a solution to the vexed question of how to enforce greater accountability for errors and egregious attacks while maintaining the cloak of respectability (invisibility?) that comes with the pretence of full ‘independence’.

In Perth a few days ago, this hefty swing from West Australian Newspapers group editor-in-chief Bob Cronin smashed the government support delivery out of the ground:

“My concern is that in recent times, rather than dealing harshly with egregious errors, the council has become a cudgel with which zealots, bigots, academics and despotic politicians are able to beat newspapers which dare to depart from their view of the world.”

[Media inquiry born of a desire to 'control news']

My colleague Professor Mark Pearson of Bond University and one of Australia’s leading media law academics also poured cold water on the Finkelstein idea. It seems, at least from this report, that they had a fairly terse exchange of views.

ANY attempt to force a newspaper to publish a judgment from a government-funded body would send a message that the Australian government does not believe in freedom of the press, a leading media law researcher has warned. Mark Pearson, professor of journalism at Bond University and the Australian correspondent for Reporters Sans Frontieres, was speaking at the final day of public hearings for the government’s media inquiry.

Chairman and former Federal Court judge Ray Finkelstein QC asked Professor Pearson what he thought of the notion of a levy-funded regulatory body with the power to order newspapers to publish Press Council-style judgments.

“Two out of three of the major members of the Press Council have told me they will refuse to provide any more funding,” Mr Finkelstein said. “So what do I do?”

But in a robust exchange of views Professor Pearson argued that any such body would be

viewed as an instrument of government regulation and would be at odds with any editor’s view of their role. “The notion of the fourth estate is a residual idea, it is much more than a commercial ethic. It is part of an editor’s sense of fierce independence from a government-funded body.”

Mr Finkelstein argued with Professor Pearson that a levy-funded body could be different.

“It is still a government institution,” Professor Pearson replied and said no editor or publisher would support it.

“Without freedom of expression embodied in a constitution or bill of rights, it would send a message to the international community that the Australian government wants to force its will on media organisations.”

Professor Pearson said he questioned any need for a new regulatory body when the Press Council did its job “reasonably well” and that all it lacked was community education of its process.

He also questioned the cost of the inquiry, estimating it as more than $1 million.

“So what, so what?” Mr Finkelstein said, glaring at him.

“I don’t object to government funding, but I do object to the regulatory regime,” Professor Pearson said.

Earlier, Mr Finkelstein had remarked that he was starting to understand the way editors thought: “Judges don’t like being told what to do and I have the feeling editors are like judges.”

The inquiry was also told publishers could benefit from the advice of an “integrity”authority.

[Nick Leys - The  Australian - 9 December]

I don’t agree with all of Pearson’s remarks, but in general he’s right – publishers have given a strong signal that they don’t like the idea of government ‘interference’ in their self-regulation (mutual stroking) regime.

But Mark is mistaken in his view about the links between ‘freedom of expression’ in a bill of rights type instrument and the freedom of the press being threatened by government ‘forcing its will’ on media organisations.

This idea is based on a flawed – but widely held view – that individual humans and giant media corporations are the same thing in the eyes of the law and that they have the same ‘rights’. I say this is bullshit.

Giant media corporations are legal entities (firms or companies) established for the benefit of shareholders. Their whole reason for being is to make money – profits – and to distribute this to shareholders.

Why should something – the media company in this case – which is founded on the principle of private profit be extended what is fundamentally a human right – the right of free expression.

What the legal fiction of equality before the law does in this instance is give licence to the private ownership of this right to speech.

The ‘right’ to freedom of expression should not reside with the media company; it actually belongs to the people and, as our political representatives – working to the public interest – governments technically and morally have a right to intercede on our behalf to ensure that corporations act in the public interest.

This is not going to happen, the force of the (broken) market will ensure that capital is free to exploit and expropriate and also to continue speaking with forked tongue on freedom of speech.

I am working on a major research piece that will elucidate my arguments more clearly. That will be available early in the new year.

Season’s greetings

This is my last post for 2011. I am having yet another round of hand surgery on Tuesday next – the dreaded ‘Viking disease‘ – and will be in a cast for three weeks.

I hope you have a safe and fun silly season where ever you are in the world. As a level 7 aetheist I offer a secular greeting – “cheers”.