The Finkelstein Media Report And Media Regulation

Gail Hambly holds degrees in Law, Science and Economics and is Group General Counsel and Company Secretary of Fairfax Media Ltd, responsible for legal services across Fairfax Media Ltd. She also serves as a Member of the Advisory Board of the Centre of Media and Communications Law at Melbourne University. Following the release of the Finkelstein Media Report, Gail Hambly joined Dr Matthew Ricketson, who assisted Justice Finkelstein in the Media Inquiry, at The Sydney Institute, on Monday 28 May, to discuss the Report and its findings.

THE FINKELSTEIN MEDIA REPORT AND MEDIA REGULATION

GAIL HAMBLY

Thanks Gerard and Anne for the invitation to speak tonight and thank you all for coming out to hear it. There’s one thing that Matthew and I will happily agree on and that is that the media is important in a democracy and it’s special – and I would say that, I’m from the media – but I think Matthew would agree, it’s not like regulating doctors or lawyers, or people who need a ticket to practice because they harm people.

Yes, the media can harm people but there’s no innate conflict with the government regulating lawyers or doctors or accountants or those kinds of people. There is an innate conflict in government regulation of the media because a large part of the media’s really serious job is to bring to the public the things that the public has a need to know, or a right to know, largely in relation to the performance of its government, the performance of its public institutions and the performance of people of power and influence in our society.

Nor are we likely to differ on our belief that the media has a duty to the public, to report without fear and favour, and to do it as effectively and as honestly as it can. Where I think we will differ is on what the state of the media is in Australia, the extent to which it needs further regulation than it already has, and how the duty to the public is properly discharged.

My reading of the Finkelstein Report – and it’s summarised in the executive summary at the beginning – is that the problem which was disclosed, according to the report, was 1) a lack of trust in the media and 2) what the report calls a, “market failure”, which, really, if you read the chapter on market failure, is about whether of not the public has the ability to judge whether what the media reports is accurate. In my view, they’re the two key findings. There was no listing within the Report of atrocities committed by the media, particularly in relation to the press.

The terms of reference of the Report were related to the print media and the internet offshoots of the print media. It, not surprisingly, wandered into what that meant – particularly in the context of the Convergence Review which was going on at the same time; it not surprisingly wandered into whether or not there was consistency between regulation of the various forms of media. But the purpose of the inquiry was to look at print media and its internet offshoot. So what were the proposed solutions?

Matthew has talked about these, but in my view they can be encapsulated as: Regulate current affairs coverage on all platforms, digital, print, TV and radio; enforce standards of media conduct; have statutory powers to investigate contraventions of law or media standards and to be able to make binding decisions in relation to contraventions, including the power to require apologies, corrections and retractions. This is an aside, and I don’t want to go into the details of my concerns about the mechanics of the processes that the Finkelstein Report proposes, but we can talk about those later if anybody’s interested. But in relation to press willingness to publish adjudications, it’s important that we make a distinction between adjudications of the Press Council, for example, or any regulatory body, and apologies.

What the press – including Bob Cronin from The West – objects to, is not publishing adjudications. I can’t remember an adjudication against Fairfax, for example, that has not been published. What the press objects to is publishing an apology in relation to an article or a set of facts which are in dispute. And even at the end of adjudication, it’s perfectly possible for two sides to have a different view of what the truth is. It’s very difficult in terms of the media’s view of their public duty, to publish an apology in relation to something where they fundamentally disagree on the facts. I wanted to clarify that because it’s easy to say, “Oh, all we want you to do is publish an apology.” But the principles behind that are a little more complex.

So, why are the proposals a problem? Well, I start from the proposition that unnecessary regulation is bad because it’s costly, it limits media freedom and it has the potential to limit public debate. That doesn’t mean that we don’t have media regulation, we do, we have a vast amount of it in Australia.

We have laws against all sorts of things from what can be published about court cases to defamation, to issues about vilification of people for a whole lot of reasons. Those rules apply to all of us, they apply to the media and they apply to all of us in this room. Those are rules that we all abide by and if we breach them then there’s redress for those things. It is true that redress for some of those things like, for example, taking a defamation case is pretty expensive.

However, if you toddle down to the Supreme Court or the District Court when there’s a defamation case on these days, you will very often find that those cases are being run – and I make no adverse comment about this – by what is called “on spec”. Fundamentally they’re run by lawyers and council on the basis of no win no pay. I’m not saying it’s easy, it’s not, it’s expensive, it’s unpleasant, all of that. But defamation is the one where there are issues.

In relation to vilification, of all sorts and relation to the inappropriate publication of material which is either suppressed or which legislation says you shouldn’t publish. For example Family Court matters. The legislation is complied with and there are remedies which are pretty severe. So, do we have a problem in Australia that warrants further regulation? I’ve already said what I believe were the key findings of the Finkelstein Report and which were lack of trust in the media and market failure. But that’s all that was said. Am I happy that there are studies from the 1960s to the present day which say that the public doesn’t trust the media? Not particularly, I don’t think any of us would be surprised by that.

I don’t think we’re ever going to get to a circumstance where the public trusts the media, in part, because we do get things wrong. It’s a very often used saying that, “the media is the first cut of history”. We tell you today what happened yesterday, or we tell you today what happened today. Usually what we tell you is, “this happened”, “X said Y”, revelation about whatever it is, whether it’s Craig Thomson, whether it’s a climate change debate, it could be about anything as seemingly trivial as politicians misusing expenses to what some celebrity said.

I’m not surprised by the notion that the public doesn’t trust the media. We’re not there to be trusted, we’re there to give you what we know and then, damaging as that may be on occasions – and we shouldn’t be proud of that – it then runs, and the story develops.

Remember what sparked the media inquiry in Australia. It was the horrors of what was going on in the UK, where I think most people who’ve looked at the evidence from the Leveson Inquiry and who know the press in Australia will acknowledge that there is a completely different culture of media in the UK. Just to give you some numbers – and these are all public numbers that came out of the Leveson Inquiry – there are 4791 potential phone-hacking victims in the UK; 1891 of those have been contacted by the police. The police think that 1174 of those are likely victims. There are 300 estimated phone-hacking claims in the UK, that is court cases. Fifty of those have already been settled and there’s an expectation that there’s another 200 claims that will come on the basis of the evidence about who was hacked and the databases of the “private investigators” let’s call them, who were supplying the service.

Three million pounds has been paid in settlement already to Milly Dowler’s parents, a large proportion of that went to charity; £600,000 is the next largest settlement for damages that’s been paid already and the costs are mounting. Forty-seven people in total, largely journalists, have been arrested and to date there’s three separate police investigations going on. The investigations have cost the police about £40 million to date, and there’s no real end in sight.

There is no evidence of any of that behaviour in Australia. Further, all of that behaviour in the UK was at the time illegal and could have been the subject of prosecutions. The problem in the UK was not lack of regulation, it was the failure of the police to do their job, and it was the failure of the politicians in that they were too close to some journalists. But it’s not going to be solved by further regulation in the UK, it’s going to be solved by people properly investigating sources of complaints.

That’s not the sort of thing that any regulatory body in Australia, outside of a major judicial inquiry, is going to get to the bottom of. And the reason why it wasn’t picked up in the UK is because it just was covered up. This wasn’t a failure of the law, it was a failure of investigation. Increased regulation won’t solve any of these problems. The electronic media in Australia is more heavily regulated than print, yet from a private individual’s point of view – and also, I suspect, the government’s point of view – the worst behaviour of the media comes out of radio and television. So, again, there’s no evidence that increased regulation will make any difference to the kind of behaviour that I think we can all agree is inappropriate.

The Press Council in Australia had some concerns about its funding and its ability to enforce the publication of its adjudications. It’s fair to say that in relation to most of the press in Australia, the publishing of adjudications has not been an issue with the Press Council, although there’s been a concern that if somebody chose not to publish, there would be no right of enforcement.

However, and this is perhaps a positive thing which has come out of the Finkelstein Report, since the Finkelstein Report the press in Australia has doubled the funding of the Press Council, which is what Mr Disney was looking for. We’ve all become contractually bound to publish adjudications and to publish them after discussion in relation to their prominence. If the purpose of the Finkelstein Report was to get the press into gear in relation to increased funding to the Press Council, that has happened. And I don’t see that a regulator funded by the government is going to do a better job. I think, in particular, that the more powers of coercion that a regulator has, the more obligation that regulator has to provide natural justice to both sides.

The inevitable effect of that are the proceedings become more judicial, they take longer – they take a great deal longer – and there needs to be a right of appeal against any decision that’s made. It’s also, incidentally, the fact that administrative tribunals, or regulators of these kinds, don’t actually have the power to enforce their judgments, they have to go to court to get them enforced because of the separation of powers. So what you get from increased regulation is increased costs, increased time taken and, in my view, no benefit in terms of real remedies for people who feel aggrieved.

There’s one way, somebody said to me the other day, of looking at the issue, of what the Finkelstein Report calls “market failure”. This is this issue of how the public can know whether what the media says is right or wrong. Particularly in the world we live in now, the media’s a bit like Wikipedia. I’d be surprised if anybody in the room doesn’t use Wikipedia. We certainly know that you use it with caution and you have to take a view about who wrote the last entry, but it’s an incredible resource and what we know is that over time it actually settles to accuracy.

That’s what happens in the media. News Limited writes some outrage about climate change, or whatever, somebody else has a go on the other side, the debate goes on. I find it fundamentally absurd that anybody in our society now simply takes whatever any news source says as gospel and stops reading.