How to regulate the media to improve freedom of speech

The current media accountability/self-regulation system in Australia has passed its use by date. To become a proper safeguard of quality in journalism and to function as a mechanism to re-build the lost trust in journalism displayed by the public, it needs amendments. In fact, the regulations need to become much stricter. The question is: can this be done without impeding on freedom of speech and freedom of the press?

Australia bucks the global trends of journalists’ trust in public institutions (Hanitzsch & Berganza, 2012:806). Even though it has a free and under regulated media, there is no constitutional guarantee or protection to freedom of speech. When left-leaning ideas of (publicly funded) media regulation are presented (Bacon, 2012:69), this flies in the face the existing ideological restraints inherent within the news as a commodity, essentially igniting a hysterical media already worried about its access to freedom of speech. To further hold the media accountable and to regulate the media, without impeding on the freedom of speech or freedom of the press, legislators need to create value for all parties involved. A constitutional freedom of speech guarantee is necessary before more enforceable forms of media regulation can be pursued.

To explore this question, I will first present the background to the lead up of the media regulation debate and the stances of the parties involved, second I will justify why the values of accountability and trust are necessary within a democracy and finally I will detail how regulation can enhance media in accordance to these values, without impeding freedom of speech and of the press by referring to the contextual difference Australia is in, when compared to other western democracies.

Trust in Australian news media[1] has been in decline (Finkelstein, 2012:106). In 2010 the News Of The World (NOTW) phone hacking scandal prompted the United Kingdom (UK) to inquire about the state of its media and why its co-regulation had failed, not only in holding journalists accountable, but in maintaining the overall trust in the news media of the UK, the report of which is called the Leveson Inquiry (Jones, 2012:51).

This prompted Australia to investigate if we had the same ailments as the UK, leading to two different reports, the Convergence Review (CR) and the Independent Media Inquiry (IMI), sometimes known as the Boreham Report and the Finkelstein Report (Jones, 2012:60). What the IMI found was that the Australian media regulation bodies are not adequately funded(Bacon, 2012:32)(Tiffen, 2012:39). The processes of accountability and consumer complaints is confusing and very disjointed, one must be an expert to get anything done (Lindberg, 2012:72). And most concerning of all trust in news media was very low.

The IMI recommended a series of reforms, which in essence would maintain the current Australian Press Council (APC) and subsidise it with some level of public funding (Tiffen, 2012:38). Further the findings of the APC would be enforceable in that if their orders were not obeyed, the publisher could be taken to court, it would not be as Kerry Packer put it “a toothless tiger” (Tiffen, 2012:39). The response to the report and its proposals were histrionic, as the news media cried foul, claiming that any strengthening of regulation would be an attack on free speech (Pearson, 2012:97), likening the figurehead of the proposal Stephen Conroy to that of Joseph Stalin (Jones, 2013).

One could be mistaken for cynically believing this is a reaction based on commercial interest, and a petulant outburst to ensure more power in the hands of media owners and publishers, but this would be an over simplification of the issue.

Before seeking to claim that there should be more regulation, one must first justify the objectives. In this case and much of the literature surrounding stricter and enforced regulation, of which many academics seem be open to [reference], the key terms referred to are accountability and trust. In all cases, regulation is put forward as a way to firstly, hold the media accountable for potential misconduct/ethical breaches and secondly to grow or rebuild trust in the media.

Why are these relevant? On the notion of accountability, journalism has a purpose. Some would put it that the purpose of journalism is to provide citizens with the information they need to be free and self-governing (Kovach & Rosenstiel, 2007:12) Journalism builds meaning, and through these meanings we create heroes, villains and narratives, we build personal and cultural identities and inform the public of the information needed to make democratic decisions.

The need for a free press is explicitly covered in Chapter 2 of the Finkelstein report, The democratic indispensability of a free press. The purpose and role of journalism is not only almost universally agreed upon by the media and its owners (Kovach & Rosenstiel, 2007:14), it has a long history dating back at least to the American Founding Fathers when Benjamin Franklin claimed “the people have a right both of exposing and opposing arbitrary power, by speaking and writing the truth”. Indeed this very language was the justification of the NY Times when it published the Pentagon Papers “the founding fathers gave the free press the protection it must have to fulfil its essential role in our democracy. The press was to serve the governed not the governors”(Kovach & Rosenstiel, 2007:17).

It is seen that in every nation where freedom is sought to be suppressed, the first target is to control the media. It is a tool and a watch dog to hold government and other social powers accountable (Kovach & Rosenstiel, 2007:12). Because of this the media is granted freedom from not only government censorship, but also some legislative restrictions, such as some exemptions from the Privacy Act of 1988 (Pearson, 2012:96). These are great powers within the democratic system to use in the pursuit of holding social powers accountable, but regretfully the tired comic book cliché of with great power, comes great responsibility, is not only highly relevant, but central to the notion of media regulation.

It is important that the public not only holds politicians and other state officials accountable, but also that those individuals and institutions such as journalists and the media who monitor the state, should themselves be held accountable for their actions (Obuya, 2012:131). Why after all, should the media be free from the same accountability they place on others? They are a social power just like any other institution, granted power and freedom due to the nature of their practice; like the cliché states, there is a responsibility that comes with such a power. That responsibility is to the people, and it is enforced through a system which the IMI agrees, self-regulation cannot adequately perform.

The second value presented for the case of more regulation is trust. Why should public trust in any institution matter? In the same way that a healthy dose of scepticism is good for a journalist to do his job of holding a government accountable, why should the public trust journalists? An argument could be made that such a lack of trust and scepticism could indeed bolster democratic performance as such scepticism would need to be validated through a measure of critical thinking.

There are a few points to tackle such a position. Trust is an element of public engagement, it drives civic beliefs, attitudes and behaviours. Studies of social organisation suggest that social capital is borne not directly within the individual, but rather is facilitated via networks of interpersonal trust that allow for transference of information, cultivation of norms and formation of interpersonal relationships (Williams, 2012:117). Trust is described as a “lubricant of cooperation” (Putnam 1993:171), which works to also motivate people to become more motivated in their communities. It seems that too much scepticism then stifles the action of working together as a community, trust is necessary it seems, as a factor of building community engagement and interpersonal efficiency.

We also know that media consumers must make decisions about what media they choose to consume. A consumer after all cannot watch all media because of a lack of time, thus they must make judgements given the options available to them of what media to consume. One factor which informs a consumer’s choice of media is how much they affirm their world view (el-Nawawy, Powers 2006:440), however the higher the trust consumers have in that media, the more people will affirm with their news sources (Williams, 2012:119).

Trust, which is gained through quality journalism, editorial independence, integrity, fairness and balance, is thus an asset to any news media publication. It is quite literally one of the greatest economic assets they have to compete with other news organisations, a lack of trust leads to public disownment of said media. After all one could say that the public does cast a vote (like that of a representative democracy) when they purchase or consume certain media(Lindberg, 2012:71). Thus a lack of trust, leading to a lack of sales would temper the media, like a loss of votes would in a democratic election. Whilst ideally this form of market force would deal with the accountability of news media, the truth is that commercial news media organisations deal within a dual market, serving both advertisers and the public. In fact only 25% of their revenue is from consumer sales, and the rest comes from advertising (Bacon, 2012:30). The fact that of the matter is that news media is essentially, whilst not immune, resistant to losses of sales from public trust declining, because advertising revenue is there to temper it. That is why what happened to the NOTW seems an exception to the rule and not a norm.

So if we can see why accountability is necessary (because of the power that media holds within a democracy brings responsibility) and we can see why trust is necessary within a democracy (because it is a “lubricant of cooperation”) and we can also see why it is within a media organisation’s interests to be trusted by the public (due to sales revenue in relation to advertising revenue), how could media regulation actually enhance journalism, as opposed to restrict journalism, as the “old media” has suggested?

The fact of this dual market has implications for the very purpose and nature of journalism: If news is thus a commodity, and most of the revenue comes from the advertisers, isn’t it within the interests of any organisation whose goal it is to make money and to serve the interests of making money over potentially less lucrative interests of fourth estate ideals?

These restraints which are inherent to any news media organisation that exists within a neoliberal market place have been explored in a theory put forward by Noam Chomsky and Edward S. Herman called the Propaganda Model (1996), which points out five filters through which information must pass through before publication by a media organisation. I do not have space to explore the theory in full, but the five filters:

  1. Ownership (The values of media owners)
  2. Funding (Advertising, sales)
  3. Sourcing (Information given by sources/informants)
  4. Flak (Criticism, public and peer)
  5. Anti-communism ideology (A general faith in the free market)

Provide an understanding of how decisions on the publication of stories as well as policy surrounding media regulation are handled; it is within their interests to maintain the funding of the organisation (which primarily comes from advertising revenue) over fourth estate ideals, which are not immediately profitable as criticism over poor journalism (filter 4, Flak) is only one element of the 5 which informs a news media publication’s interests.

Indeed these market forces are so great that in places where media is under regulated such as the US or Australia, there is a flourishing of pseudo journalism like that of aggressive political talk shows (Glenn Beck) or tabloid television (A Current Affair/Today Tonight), which are encouraged to meet market demands over that of serving the public interest (Cushion et al, 2012:834).

Media regulation may thus exist to counteract these market forces by making ethical codes of practice enforceable by law (Pearson, 2012:97). Public deficits of trust inevitably lead to complaints; these complaints (Filter 4, Flak) would now have more power than before. Where previously all a consumer could do (because the complaints system is so convoluted and complicated to a layman) was to simply not purchase the media in question (of which is of relative unimportance, because advertising buffers the loss), a consumer’s complaint could lead to court orders for unethical behaviour to be rectified, thus in wanting to avoid such an event, ethical behaviour would likely improve as the fourth filter of flak grows in general economic importance. As ethical behaviour improves and quality of journalism improves. Public trust in journalism would as the theory suggests, improve because it is built on the very things that are necessary to avoid complaints.

In a case study of how UK news organisations dealt with the “devolved” political situation, Cushion et al found that the BBC, which was under the influence of more interventionist regulatory measures fared better and improved its quality of journalism over that of commercial broadcasters which were using a “light touch” regulatory approach (2012:831). Indeed this same study also found that their results supported the assertion that after controlling for variables such as civic education and economic inequalities, knowledge about current affairs increases in nations with a more publicly funded infrastructure of news media and that continued deregulation of the broadcast media is likely, on balance, to lower levels of public knowledge (2012:846).

With the case now made for how media regulation could enhance as opposed to restrict news media through improved accountability and public trust, I return to the central question: Can this be done without impeding on freedom of speech and freedom of the press?

Michael Ricketson (the co-author to the IMI) was mistaken, when he responded to criticism of the IMI and CR’s recommendations to the government, that “we would all be living in Stalinist Russia or even Hitler’s Nazi Germany with its Reich Chamber if the government acted on this recommendation” by claiming the only difference between their recommendation and the current set up of the Australian Press Council (APC) was that a portion of the APC would be funded by government (Pearson, 2012:97).

The major difference was not the notion of public funding for the media regulator but the greater concern that the amount of power to refer disobedient media outlets to courts with a distinct possibility they might face fines of a jail term if they continued to disobey the council’s order was too much for a free press to be considered free. The proposal makes ethical codes, into law.

Whilst reading the proposals without the context of Australia’s free speech situation, the reaction may seem rather petulant. After all, the recommendations did not call for something as extreme as needing a journalist license, which is often reported on with much vitriol (Belfast Newsletter, 2005), and rejected by other countries (Wu, 2004).  The media seems to have a consensus on its purpose (albeit without much of a notion for personal accountability or importance of trust [Lindberg, 2012:78]), so why then would is the idea of having ethical codes enforceable be so offensive to them?

A study done by Thomas Hanitzch and Rosa Berganza which looked into explaining journalists’ trust in public institutions across 20 countries found that Australia bucked trends within the developed western world (2012:806).

The findings suggested that as a rule the principal determinant of journalists’ trust emanate from a country’s political performance, from state ownership in the media and from the extent to which people tend to trust each other. Trust is endogenous, rational and founded upon performance. High economic performance, low corruption and high levels of media freedom seem to be a condition for high levels of trust in government by the media. Countries which had the inverse set of characteristics tended to show low levels of trust in public institutions by the media.

Whilst in the nations of the western world which exhibited these characteristics journalists’ trust was very high, Australia which did exhibit these characteristics showed mediocre levels of trust by journalists in the government. The study suggested that “although media freedom is positively linked, quality of democracy was not, in fact the better the democracy the less trusting journalists are. If democratic performance impinges on journalists’ levels of institutional trust, its effect may depend on the relative weight given to the various aspects of political performance in a given society” (2012:806) to explain the instance of Australia’s anomalous results. They continued that perhaps this inbuilt scepticism is on some level driving the quality of journalism which in turn is driving the quality of democracy experienced in Australia.

I agree that the effects of a strong and thorough free media are on some level an element to Australia’s high democratic quality, but believe there is more informing this lack of trust than the watch-dog mentality alone. There must be something setting Australia’s journalists contextually apart from their international counterparts of the developed western world.

Australia lacks a constitutional guarantee to freedom of speech. In fact Australia is anomalous within the developed world for not having a bill/charter of human rights. Yes the ACT and Victoria have bills of rights on the state level, but they are not federally enforceable. Contempt of court laws mean that journalists whilst already ethically obligated to not reveal sources once granted anonymity, could be jailed or fined for having stuck to their ethical obligations (Pearson & Polden, 2011:265). Indeed Australia is contextually different in this regard, there are no shield laws, for journalists and their sources, there is no freedom of speech guarantee, defamation is taken far more seriously here than in other countries like the US where freedom of speech is an arch social right and on the side of Freedom of Information, Australia does not rank highly on an international level either (Lindberg, 2009:177). Australia’s legal system is thus more complicated for a journalist to navigate than in other nations, there is more danger and significantly less protection from the law for their work and their role as information providers to citizens, even in light of their exemptions from other laws.

It is quite frankly naïve of anyone to think that passing tighter, more enforceable regulation on Australia’s journalists would pass without some concession to the media as well. The key to any deal between one or more parties is to create value for all parties involved. Whilst to us as the audience or academia studying the media, find it obvious where the value of regulation lies for media organisations (greater trust and quality due to accountability), viewed from their perspective, such suggestions inflame the worries of a media already finding its self under protected, working through a maze of legal challenges.

To finally answer the question posed to the essay, the way to pass regulation, and to pass it in a manner which enhances the media’s quality and does not restrict it, the recommendations of the IMI and CR, must be coupled with all the standards, bells and whistles that exist for journalists in other nations. This means a constitutional guarantee to freedom of speech, this means shield laws for journalists and their anonymous sources, this means greater freedom of information and it means greater educational resources for journalists to navigate their respective legal landscapes. Only when these highly important aspects of freedom of the press and transparency are assured, can you then expect to see the media trust public institutions enough to be regulated in a stronger manner than before. For these concessions form the basis of a journalist’s defences against a government who would use its regulatory powers to oppress a media, they are the basis of freedom of speech and the free media.


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[1] Media is an umbrella term which includes music, film, art and other forms of expression, for the purposes of this essay, the term “media” will explicitly refer to “news media” unless otherwise stated.


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About Saúl A. Zavarce

Venezuelan-Australian journalist and international relations academic.

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