Convergence Review: Complete, Spectacular Failure

The Convergence Review “has assembled what could be a workable model for regulating the converged media environment,” said Greens Senator Scott Ludlam last week.

Really? The review’s interim report, released on Thursday, is a lot of things but “workable” isn’t one of them.

The Convergence Review’s purpose is to reshape communications and media law in light of the rapid technological changes over the last decade.

And if its interim report is anything to go by, the review has completely, spectacularly failed.

Just take one of the most prominent examples of its entirely unworkable suggestions. The report recommends imposing minimum Australian content requirements on all “Content Service Enterprises” that provide audio-visual services. Those Content Service Enterprises include websites.

The extent of regulatory intervention to do so would be extraordinary. The effort to distinguish Australian websites from international websites would be significant. The incentives to avoid these new regulations would be enormous.

Certainly, the Interim Report says “emerging services, start-up businesses and individuals should not be captured by unnecessary requirements and obligations”.

Yet that one-sentence caveat begs more questions than it answers. Who draws the line between an “emerging service” and an established one, and according to what principle? And why, exactly, is it that start-ups and individuals should be excluded? What theory of media regulation distinguishes between old and new companies, between companies run by one person and companies run by two, between companies doing innovative things and those which are not?

So that caveat, rather than suggesting the Convergence Review has thoughtfully engaged with the complexities of its task, reveals it has been unable to devise a coherent model of communications regulation which makes sense in an online world.

This failure is a particular disappointment because the Convergence Review was supposed to be the real game. Yes, it is just one of a bunch of reviews into media law. But only the deliberately naïve think the Independent Media Inquiry is anything but a political attack on hostile newspapers, and the National Classification Scheme Review is too constrained by its limited brief to recommend any serious reform.

The Convergence Review, by contrast, had scope and ambition. Scope: it was to look at all media from broadcast television to blogs to newspapers. Ambition: it was to take the communications revolution seriously and construct a regulatory framework which could last 20 years.

And it asked the right question. Now that you can listen to the radio on your computer, browse the internet on your TV, and read newspapers on your phone, why should the law treat each service and each technology differently? Forget whether News Limited gave the stimulus package a fair go, or whether Rob Oakeshott is being quoted accurately. This is the most important media policy question right now.

In The Drum in September I argued media convergence necessarily implies deregulation.

It is impossible to impose on the internet the same complex, technocratic, micromanaging regulations which have governed Australian broadcasters.

And even if it were possible, it would not be desirable. Any limit or imposition on what an organisation can publish or broadcast is a restriction on freedom of speech. In Crikey last week, Bernard Keane wrote the Convergence Review “represents the most far-reaching proposals for internet regulation since the Howard government banned online gambling” – much more substantial and threatening than the internet filter ever was.

It follows that if we are to have a new framework regulating all services consistently, broadcasting regulations should be lowered, not internet regulations raised.

Yet such genuine reform would require challenging the obsolete content regulations which have built up over the last half-century. The idea “Australian voices” need to be protected and subsidised is anachronistic – since the rise of home video, television networks or regulators stopped being able to dictate what media content we watch. More than ever our media consumption is about choice. If Australians want Australian content they will seek it out. If they don’t, they won’t.

The Convergence Review goes boldly in the other direction. Drawing on a “wide range of views”, the report concludes there “is an ongoing need for government intervention to support the production and distribution of Australian content”. This claim makes it impossible for the review to meet its brief.

Not to say they haven’t tried. One option for Content Service Enterprises, if they can’t produce Australian content themselves, is to support “a converged content production fund”. In practice, that seems to be a tax on websites to fund Australian television production companies.

Not quite the radical, principled rethink about media regulation we were hoping from the Convergence Review.

But a sad reminder of how hard it will be for regulators and legislators to ever come to grips with the communications revolution.