Media Diversity Fears Are Absurd And Obsolete

The twin themes of the media debate – new regulation and creative destruction – coexist awkwardly.

Communications Minister Stephen Conroy told Channel Ten’s Meet the Press recently that his government’s proposed public interest test for media acquisitions was not aimed at Gina Rinehart’s investment in Fairfax. In fact, the mining magnate would pass the new test.

This revelation will disappoint many of his colleagues. But thank goodness. The Gillard Government is, happily, not so brazen as to write a new law to stop one particular critic from investing in the media. Doing so would be the essence of arbitrary government, and would be clearly in response to Gina Rinehart’s political views.

Not all media reform is a threat to free speech. But motives do matter. The Government’s hostility to News Limited damned the Finkelstein inquiry. Any new ownership regulation inspired by one specific proprietor would also be dodgy. Some in the government have suggested media purchases could be conditional on signing up to a charter of journalistic independence – which just happens to be the matter of dispute between Gina Rinehart and the Fairfax board. A coincidence, I’m sure.

So if the Labor government is backing away from such obviously political media laws, that’s good.

Yet Conroy’s defence on Meet the Press still struck a weird note. He argued that any suggestion the test was aimed at a specific person was false because the ALP has been campaigning for a public interest test for a long time.

That’s true. When the Howard government directed the Productivity Commission to look into media regulation in 1999, the Beazley opposition talked at length about public interest guidelines for ownership.

But that was a long time ago. Compare then and now. We had a very, very different media market in 1999. Google had only eight employees. Its news aggregation service was still three years away. And in the compressed history of the internet, Google is relatively old. MySpace didn’t launch until 2003. Most of what we think of as ‘new media’ didn’t exist. Facebook didn’t exist. YouTube didn’t exist. It wasn’t until mid-2000 that Apple starting thinking about music. The first iPod arrived in late 2001.

And when the Beazley-led opposition was first promoting a public interest test, Fairfax shares were trading at a price nearly 10 times greater than today. Indeed, the turn of the millennium seemed like a great time to get into newspapers.

In politics, consistency is usually admirable. Yet there is consistency and there is stubbornness. It’s bizarre hearing Conroy strike the exact same notes as Beazley did a dozen years ago. Everything has changed. Apparently the ideal policy has not.

For both Conroy and Beazley, the goal of extra media ownership restrictions would be to protect a diverse range of opinions and voices. But it is exactly the enormous choice of opinions and voices on the internet which is uprooting the media landscape.

Put it this way: budding moguls would not be able to buy press assets so easily if the newspaper business hadn’t been undercut by the very diversity Conroy claims is at risk. This is a weird recursive loop. Surely we do not believe the extraordinary growth of voices online is reducing the diversity of voices overall.

Yet that seems to be the logic behind the current push for a public interest test.

Policy proposals have use-by dates. Something that is arguable in one decade can be silly in the next. Press proprietors have never been less powerful than they are today. Newspapers and broadcasters do not have the monopoly on information they enjoyed in the past.

That Conroy’s views on this are about 10 years out of date shouldn’t be a surprise. Australia’s communications ministers are notorious for fighting the last war. They have a track record of either accidentally delaying or actively resisting the implications of technology. With motives good and bad, our ministers have held back the introduction of new radio stations, new television stations, pay television, and FM radio.

The Gillard Government’s Convergence Review was supposed to be a break with the past. Yet even it got caught up trying to impose anachronistic laws on new technologies. Local content requirements are one example of regulations which do not make sense in the internet age; ownership limits are another.

So the major policy outcome of the apparently forward-thinking Convergence and Finkelstein inquiries could be tackling obsolete fears of media moguls.

It is absurd to think that just as the newspaper industry is going through a once-in-a-century upheaval, the Government is devising ways to limit investment in the press. But in media regulation, absurd is not unusual.

Should Governments Protect Independent Journalism?

We already subsidise journalism heavily. The ABC’s budget for 2011-12 was $995 million. SBS got $223 million in the same period. And Parliament has specifically nominated the vast bulk of this money to “inform, educate and entertain audiences”.

So it’s peculiar that when media theorists devise clever schemes to subsidise journalism in order to protect democracy – such as publicly funded newspapers, or tax-deductibility for the print media – they rarely mention the money we give SBS and the ABC for that purpose.

Perhaps some people believe we should increase those broadcasters’ budgets. That’s a legitimate debate. Let’s all draw lines and argue it out. But pretending we do not already spend an enormous amount of the public’s money to inform the public is simply dishonest.

Our media debate is very provincial. Fairfax is at a crossroads. News Ltd is too, although that company is reluctant to admit it. Here, the US is about two to three years ahead of us. Their experience suggests the print media will shrink dramatically in the next few years. But it also tells us good journalism is good journalism, whether produced on paper or online.

I hope our two print giants develop new business models that suit the times. Certainly many others will. The online media in the US is vibrant and plentiful. Australian readers and writers have good reason to be optimistic, at least about the medium-term future.

If they want to be taken seriously, advocates of subsidies have to answer some basic questions. How many media outlets does healthy democracy require? We might assume more is better than fewer. But as the past year has demonstrated, many people believe some newspapers and radio stations should be run out of town. Several media critics suggest tabloids and talkback radio are hurting democracy . So just calling for “more journalism” is not much of a guide for policy-making.

Maybe the government should subsidise only “worthy” journalism, if there was a way to define such a thing. The business of the press has always been intimately connected with delivering something people want to read or watch. Right now, the case for even more journalism subsidies is little more than a thought bubble.

The Farce That Is The Leveson Inquiry

On October 7, 2009, News International chief Rebekah Brooks sent opposition leader David Cameron a text message:

I am so rooting for you tomorrow not just as a proud friend but because professionally we’re definitely in this together!

The “tomorrow” in question was the final day of that year’s Conservative Party conference. Cameron would not have been surprised by Brooks’s words. James Murdoch had told him the Sun newspaper would abandon Labour because the Conservatives would be better economic managers. During the Labour conference a week earlier the paper declared “Labour’s lost it”. So while Brooks put it in an unsophisticated way, she was right: professionally they were now “in this together”.

The uncovering of this bare little text message was the fruit of Cameron’s five hours of testimony to the Leveson inquiry into the phone-hacking scandal last week.

The message has been reported in headlines around the world, from the Huffington Post to the Calcutta Telegraph. It is, according to the Daily Mail, “explosive”, “cringe worthy”, “astonishing” and “incredibly embarrassing”.

But embarrassing for who, exactly? Cameron was the one giving testimony, not Brooks. It’s hard to see why an opposition leader securing the support of a media proprietor for an upcoming election should be cringe worthy. That is his job – to gather support where he can.

The Leveson inquiry started in November with Hugh Grant and the parents of the murdered school girl Milly Dowler. Back then, its themes were criminality and police corruption. It was surrounded by arrests and resignations and Scotland Yard. All serious stuff.

But six months later, what was a serious inquiry has devolved into a strange sort of puritanism. Participants are being judged against ethical rules unheard of before Leveson convened. For a newspaper to back a political party is apparently a breach of these novel rules. And friendship between politician and proprietor is outrageous.

The phone-hacking affair no longer has anything to do with phone-hacking. It’s trying to make scandals out of the basic practices of representative democracy.

Politicians cultivate relationships with journalists. They have to, if they want to achieve their political and policy goals. That might seem distasteful. We all share a romantic ideal about the fourth estate being implacably at odds with the first estate. But let’s not be too delicate. Democracy is about coalition-building. Journalists and editors are stakeholders. A politician that does not make friends in the media will not be a very successful politician.

But we also shouldn’t pretend Cameron’s fortunes were solely in the capricious hands of media moguls. Yes, only Brooks’s side of the SMS conversation has been released. But its clear impression is of a proprietor sucking up to an opposition leader – not, as those who imagine Rupert Murdoch has an iron-grip on politics expect, an opposition leader coming cap in hand to a proprietor.

So an ambitious Cameron convinced the Sun to editorialise in favour of his party in 2009. It’s questionable how big a coup this really was. Does anyone genuinely think Gordon Brown could have held on if he’d only had the Sun’s support? Labour had been in power for 12 years. Brown was astonishingly unpopular. And the British economy had collapsed. Tabloids have always chased popular sentiment more than they’ve led it.

In Australia, the Finkelstein Inquiry into media regulation flirted with deeper questions about the functioning of democracy. But, ultimately, Ray Finkelstein had a limited brief. His final report charged towards a single, digestible proposal for a new regulatory body. He steered clear of uncomfortable philosophical questions.

By contrast, the Leveson Inquiry lacks Finkelstein’s modesty. Lord Justice Leveson’s team has now grilled four Prime Ministers and nearly 20 cabinet ministers. They’ve interrogated them about press strategy and public relations, the use of anonymity and favouritism, leaks and friendships.

It’s Cameron’s fault. The phone-hacking was the scandal. But Cameron was embarrassed by having hired Andy Coulson, a former News of the World editor. So he gave Leveson virtually unlimited terms of reference. One of his tasks is to make recommendations concerning “the future conduct of relations between politicians and the press”, which would seem to encompass every aspect of political and government communication.

Future historians will no doubt appreciate Leveson’s forensic accounting of who had lunch with who. But it seems more designed to appeal to the coterie of media critics sure that democracy is on the slide.

There’s an absurdity that the Finkelstein and Leveson inquiries share. They both held court on the nature of democratic politics, and they were both conducted by a senior judge whose touted virtue is that they are independent and unaccountable – that is, completely undemocratic.

That Brooks’s artless text message is now seen as a scandal illustrates how farcical the Leveson circus has become.

Convergence Review Is Clever, Subtle … And Worrying

One pregnant sentence in the Convergence Review says, “It is important to note that the current Australian Press Council regime where members can opt out or reduce funding is not an acceptable situation.”

When the review’s draft terms of reference were released in 2010, nobody expected proposals to regulate ‘fairness’ in newspapers would form a core part of the review’s final report.

And that sentence’s claim – that voluntary press regulation is unacceptable, and regulation is necessary – undercuts the review’s repeated assertions that its “underlying approach [is] in favour of deregulation”.

The Convergence Review’s final report was released on Monday. Its task was to develop a framework whereby all media communications is regulated equally, regardless of whether it is distributed by radio, television, or the internet.

So it’s disappointing that the review got caught up in the swirling currents of vitriol between Rupert Murdoch’s newspapers and the Gillard Government.

The Convergence Review has proposed a new, mandatory agency to regulate “standards” in news journalism and commentary. In this, it offers a watered-down version of the proposals made by Ray Finkelstein in the Independent Media Inquiry earlier this year.

But Finkelstein Lite is also Finkelstein Possible.

Unlike Finkelstein’s proposal, this new body would not be a statutory authority, but “industry-led”. It would be funded by a mixture of private and government money. It would be analogous to the Australian Press Council, but no newspaper or broadcaster would be able to quit the new agency if they didn’t like the way they were being regulated – by law, membership would be compulsory.

And unlike the Finkelstein report’s proposal, it wouldn’t have an absurdly large jurisdiction. It wouldn’t catch those websites that had just 41 hits a day, or those tiny street magazines, or those email newsletters. Just the really big guys – Fairfax, News Limited, Ten, Foxtel, etc.

Indeed, the Convergence Review is a very clever document.

It avoids being too clear about what “sanctions” the industry-led regulator would have in its tool kit. And it is ambiguous as to how the regulator would enforce its sanctions. A short sentence buried in the report’s appendix suggests that enforcement would be “contractual” rather than legislative. This odd distinction raises many more questions than it answers.

But nowhere is the cleverness of the Convergence Review clearer than in a diagram which visually represents the media outlets that would fall under the jurisdiction of another new regulator – the “super-regulator” – which is to replace the Australian Communications and Media Authority. (The diagram is on page 12, for those playing along.)

Media organisations will have to meet certain revenue and audience thresholds to qualify. Those thresholds just happen to include all major newspapers and broadcasters, and they just happen to exclude all online media.

The thresholds have been drawn to make sure that Telstra, Apple and Google just fall just below them, and smaller broadcasters like Macquarie Radio Network and Grant Broadcasters pop just above. How convenient.

To be fair, this is thankfully a long way from the expansive plans of an interim convergence report released in December, which would have included everything except “emerging services, start-up businesses and individuals”.

But it’s pretty clear why the thresholds have been drawn so precisely. First: nobody wants to wake up to the headline “Gillard government’s plan to regulate the internet”. Second, and more critically: the Convergence Review doesn’t seem to have quite figured how converged regulation could actually work.

By deliberately excluding even the biggest websites, all the Convergence Review does is kick the ball down the court, and hope the super-regulator will take responsibility later.

It’s a neat way to avoid seriously rethinking the justification for old, legacy media regulations. And, given the Convergence Review’s focus on political feasibility above all else, it helpfully avoids upsetting the status quo too much.

Take for instance the Australian content requirements currently imposed on broadcasters. Sure, it would be tough to ween the culture industry off those long-standing subsidies. But it will be even tougher to shoehorn those requirements into the online world.

The best the Convergence Review can do is offer future online media outlets that provide “professional television-like drama, documentary or children’s content” an option to be taxed to support a “converged content production fund”.

Right now this is all hypothetical, because the Convergence Review draws its thresholds just above Telstra, Apple, and Google. Good decision. Another unhappy headline would be “Gillard Government to introduce internet tax”. But that is the practical upshot of its proposals … just not yet.

For the Government, the Convergence Review has the advantage of being possible to implement. It’s Conroy-ready.

But like Finkelstein’s proposal, the Convergence Review recommends a substantial intrusion into the free press.

Yes, not every little blog will be wrapped up in its regulatory arms. But it would still impose a regulatory body on newspapers, with some unspecified coercive powers, overseeing what is printed.

Don’t be deceived by the claim that the standards body would “industry-led”: it would be a compulsory regulator administering compulsory regulation. There is a world of difference between that and the currently voluntary Australian Press Council.

The authors of the Convergence Review have gone to a lot of effort to make their report subtle, not-too-obvious, politically feasible, and to avoid obviously upsetting the status quo.
But that shouldn’t be any comfort for those of us who still value freedom of the press.

Newspapers Tangled In Politics… That’s Yesterday’s News

Every generation thinks the world they are presented with is unique.

Reflecting on the 1819 parliamentary session, the British conservative Henry Bankes regretted that the government had not done more to “restrain and correct the licentiousness and abuse of the press”. Newspapers are “a tremendous engine in the hands of mischievous men,” Bankes wrote.

Bankes’ complaint was old hat even then. There’s not much new in media criticism. When Ray Finkelstein argued the press fosters “inequality, abuse of power, intellectual squalor, avid interest in scandal, an insatiable appetite for entertainment and other debasements and distortions”, he may not have realised how tired a note he was striking.

The great champion of press freedom, Thomas Jefferson, lamented that nothing in a newspaper could be believed. With obvious disappointment, Jefferson wrote “the man who never looks into a newspaper is better informed than he who reads them”. Journalists had welcomed “prostitution to falsehood”.

John Stuart Mill described the London press as “the vilest and most degrading of all trades”. Edmund Burke considered newspapers as a “grand instrument of the subversion of order, of morals, of religion and… of human society itself”.

We could go on. For as long as there has been media there have been complaints that it is biased, unbalanced, unfair, immoral, reckless, unethical, excessively powerful, and untrustworthy. An unhappy Samuel Johnson said too many journalists of his day were political partisans “without a wish for truth or thought of decency”.

So – for instance – it is hard to understand Robert Manne’s claim that in recent years The Australian has “transcended the traditional newspaper role” and become an “active player in both federal and state politics”. Newspapers have always been tangled up in politics. There is no traditional, non-political role for them to transcend.

Manne wrote in his Quarterly Essay that The Australian is a “remorselessly campaigning paper”. Is this description supposed to be damning?

One of the world’s greatest media moguls, William Randolph Hearst, claimed his newspapers “control the nation”. His New York Journal didn’t just report, it participated. It distributed welfare and disaster relief. It launched public interest lawsuits. It even broke someone out of a Cuban prison – “the greatest journalistic coup of this age,” according to the Journal.

Popular mythology reflects Hearst’s self-aggrandisement by crediting his papers with amazing political power as well. But the reality does not reflect the legend. It suits everyone to talk up the power of the media. Proprietors trade on the illusion of clout, and politicians want excuses for their own impotence. Hearst later made a series of failed political runs. Clearly he thought public office a desirable promotion.

Across the Atlantic, the mid-century press baron Lord Beaverbrook famously said he ran the Daily Express “merely for the purposes of making propaganda and with no other motive”.

Beaverbrook was being playful. The occasion for those words was his interrogation by the 1947 Royal Commission on the Press. That Commission had an eerily similar origin to our recent Independent Inquiry. The post-war Labour party was frustrated with press hostility. Labour had won the 1945 election by a landslide. But most papers in that election had editorialised in favour of the Tories. For Labour politicians egged on by the journalists’ union, this was proof the papers and their owners were dangerously out of touch.

Any semblance of historical awareness should lead us to focus our attention not on the repetitive, unchanging complaints about how venal the press is, but on what is genuinely new.
And that is the extraordinary wealth of new information, new sources, and new outlets available to media consumers in 2012; our access to the global press online, social media and ‘citizen’ journalism, the opening up of the journalistic processes, and, even, the democratisation of media criticism.

While the complaints about journalism made today are virtually indistinguishable from those made by Henry Bankes in 1819, the environment in which the media operates is totally different.
The Finkelstein Inquiry was given two tasks. The first was to look how the internet challenges newspaper business models. The second was to look at press standards and quality. One of Finkelstein’s biggest failures was not coherently joining the two tasks together – what the second task meant in light of the first.

Finkelstein’s proposed News Media Council is strikingly similar to the 1947 Royal Commission’s recommendation that British newspapers be governed by a General Council of the Press. (The Royal Commission’s threat of statutory regulation led the industry to form the UK Press Council.)

It’s as if nothing has changed in the meantime.

The Duke of Wellington defeated Napoleon and made it to the office of prime minister – few were more respected and influential than Wellington – but he privately complained to his family that Britain’s real rulers were “the Gentlemen of the Press”.

It is a professional pastime of politicians to complain about newspaper influence and the grubbiness of journalism. We do not have to treat their whining as novel. And we must not believe it is anything more than the traditional antagonism between government and press.

Regulating From A Distance: Finkelstein, Politics, Power

The structure of the News Media Council proposed by Ray Finkelstein is complicated.

The council would consist of a chair and 20 other members. Half of those members are to be drawn from the public. The other half would come from the industry, but they cannot be managers or shareholders. The chair should (of course) be a judge or an “eminent” lawyer.

The council would be appointed, not by parliament, but by a separate, independent body comprised of three senior academics, the Commonwealth Ombudsman, and the Commonwealth Solicitor-General. The three academics would be chosen by a board of university vice-chancellors from across the country.

So that’s one independent body, appointed by another independent body, most of whom will be appointed by a third independent body.

This elaborate composition is supposed to demonstrate maximum impartiality and objectivity.

After all, it would not do to have any whiff of politics near something as sensitive media regulation. The risk of impropriety – or just the impression of impropriety – would be too great.

This allows Finkelstein to write in his report that, beyond its funding and powers, “government should have no role”. It’s a curious claim.

Do not imagine, as his language implies and some have since suggested, that his proposals are just industry self-regulation with a little bite. Finkelstein describes his scheme “enforced self-regulation” – a term drawn from the regulatory theory literature but one which is virtually meaningless.

An independent regulatory agency is the Government. Sure, the News Media Council wouldn’t directly answer to Julia Gillard. It wouldn’t be democratic. But it would have coercive powers, would be funded by compulsory taxation, and its journalistic codes of conduct would be mandatory. This is the very definition of ‘government’. Any limit on free speech it imposed would be a limit on free speech imposed by the state.

The idea behind independent regulatory agencies is simple, and superficially attractive: to get the politics out of policy and compliance. Rather than having politicians oversee the decisions made by regulators – with all the risks of corruption and political manipulation that would create – the agencies are separated from the rest of the government. They are delegated their powers by parliament, but they are not responsible to parliament.

Independent regulatory agencies are relatively new to Australia and Europe. There were virtually no such bodies in the 1960s. Governments of the early and mid-20th century were vast public utilities, owning industries and enforcing cartels.

The untold story of the “neo-liberal” reforms of the last few decades is how privatisation and trade deregulation was matched by an extraordinary explosion of new regulation. And to enforce this huge corpus of new law and regulation, state power was spun off into dozens of independent bodies. The responsibility for regulation was moved out of ministries and into agencies.

Along every measure government has grown. Government has expanded its reach and ambition and brought more activities into its web.

At the same time government has become less democratic. That is a feature, not a bug. Those who call for regulatory independence worry parliamentary representatives could interfere in technocratic decision-making.

It’s a reasonable concern. Politicians are driven by politics. They have political motives, political aims, and use political tactics. They are the last people you’d want in charge of regulation.

Yet we seem reluctant to over think the implications of this change. Certainly, there are other undemocratic parts of government – the courts and the police are the most obvious. But regulatory agencies are one of the fastest growing areas of government power.

And these agencies make government policy. Parliament provides the general legislative framework within which those agencies operate, but leaves them to refine their goals. The regulators are free to pursue their own agendas and set their own direction. In a very real sense, they shape (within the limits of parliament’s legislation) the law of the land.

Outside the democratic spotlight, the independent agencies are highly susceptible to regulatory capture – that phenomenon where special interests manipulate the regulatory process to favour their own interests, rather than the interests of the public.

In Finkelstein’s proposal, the News Media Council itself would write the code by which the media is governed. This would avoid the taint of partisan politics, which is good, but would at the same time have the limits of democratic debate circumscribed by a committee appointed by university vice-chancellors.

It is well to imagine regulations which might, if perfectly and uniformly enforced, change things for the better.

But the choice which modern advocates of greater regulation offer is unappealing: give power to politicians, and risk the corruption and politicisation of public policy, or give power to independent regulators, and allow unelected and unaccountable bureaucrats to govern economy and society.

The Greeks have been rightly upset that their government has been replaced, virtually wholesale, with European technocrats.

As independent regulatory agencies blossom, we might start thinking about what it means for democratic control to be eroded as government expands.

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.

Opening statement to the Independent Inquiry into Media and Media Regulation

I have serious concerns about the political circumstances under which this Inquiry was formed. The relationship between the government, the Greens and News Limited is unrelentingly hostile, as we all know, and the Inquiry is clearly and explicitly the result of that hostility.

Nevertheless, obviously questioning the political purpose of the Inquiry is within the terms of reference and I would like to speak to those, but I think that the circumstances under which the Inquiry was formed do actually provide an implicit guide for the Inquiry itself. The Inquiry needs to avoid any suggestion that the result of those circumstances is an increased regulatory burden on the opponents of the government.

I am also concerned because the Inquiry, in my view, seems to be asking some of the wrong questions and travelling down some of the wrong paths. Never before have consumers had more access to more media. Never before have citizens had such an opportunity to create their own media, and never before have the business models that sustain the press been under such intense and escalating strain. The walls that separate journalists from consumer, blogger from publisher, commenter and broadcaster online are completely breaking down. It is my strong view the implication of these trends implies that regulation of the press should be, if anything, reduced. Certainly I will go further and suggest that many of the concepts which have been raised and may be raised in the future by this Inquiry might be seen as anachronistic within the next decade.

I don’t speak from a journalism perspective, but from a political economy and political philosophy perspective. Many of the suggestions that have been raised so far by some submissions and some commentators in the press I find extremely objectionable when we consider the high importance that the liberal democracies place on freedom of speech.

It is my view that journalists, commentators, bloggers, people yelling on street corners and even media moguls should have their freedom of speech protected equally. Thank you.

Media Inquiry Motives: Accountability Or Revenge?

Bob Brown’s submission to the Independent Media Inquiry has an appendix of criticisms he’s received in the press since calling for a media inquiry: ‘totalitarian’, ‘self-serving’, ‘prejudicial and dishonourable’, ‘witch-hunt’, ‘pillory’, ‘fascism’ and so on.

It’s a strange appendix to include, considering that the substance of those critiques is how the Greens leader’s support for a media inquiry is motivated by personal animus. And, further, such a motivation means the inquiry is not a benign investigation of the current media regulation, but something more sinister – politicians trying to use their powers of legislation to punish critical newspapers.

So a bit of an own-goal there.

The Government has repeatedly rejected claims that the inquiry will be focused on News Ltd. That’s clearly not the way many of the inquiry’s supporters see it. Brown can barely go a media appearance without talking about The Murdoch Press. Critics of the Greens say the minor party is actually the government. If so, then Brown sees Rupert Murdoch as his loyal opposition.

Labor’s backbenchers are also loose-lipped on the inquiry. A furious Senator Doug Cameron said last week, “The Murdoch press are an absolute disgrace, they are a threat to democracy in this country and we should absolutely be having a look at them”.

Cameron was angry about reports of leadership instability in the Daily Telegraph. Maybe the Telegraph reports were a beat up. Maybe they were not. ‘Government backbencher says leadership speculation is baseless’ is not a decisive rebuttal.

But regulation of the press imposed as revenge for anti-government reporting is much more a threat to democracy than any tabloid headline could be. That neither Bob Brown nor government backbenchers like Doug Cameron appear to recognise this blindingly obvious problem is worrying enough.

Governments and the press have never gotten along. The two are, and will continue to be, absolutely opposed to each other. One accumulates power. The other undermines it. Australia’s first media proprietor, Robert Wardell, described the free press as a weapon to “frustrate the designs of tyranny, and restrain the arm of oppression”. One 19th century Chicago Times editor said “It is a newspaper’s duty to print the news, and raise hell”.

This is certainly not to defend media ethics. Bad journalism deserves harsh criticism. Raising hell can bring up devils. But the choice presented is not between our current media and a noble, ethically-unimpeachable media. It is whether the Government should to try to ennoble it for us.

What constitutes ethical practices is not for governments or bureaucrats to decide, and certainly not for them to enforce. Governments are subordinate to civil society. They must not be the supervisors of their critics. This is a much more fundamental principle of democracy than the often-repeated idea that free elections require an informed citizenry. Restraining the actions of government once a parliament has been formed is surely just as important making sure people can decide who to vote for every couple of years.

Sometimes attacks on government or politicians are misinformed, simplistic, or propagandistic. Sometimes those attacks mix up facts and opinion. Wrongheaded views – even wilfully ignorant ones – are not unique to the press. They are a feature of democracy.

In his submission, Brown suggests the fact a journalist described him as “self-serving” helps strengthen his case. God knows we wouldn’t want the public to think politicians can be that.

Nevertheless, Brown’s submission is interesting. The Greens leader has said journalists don’t tell both sides of a story accurately or reasonably. The submission builds his case at length, free of media gatekeepers.

Brown conflates two separate grievances into one. First: The journalist’s Code of Ethics, administered by the media union, “has become a hollow vessel”. Second: Rupert Murdoch has oligarchical control over the print media.

Are these two linked? Brown thinks they are. A core problem for the Greens leader is “Almost all the news media in Australia is owned by private corporations, outside of the ABC and SBS”. In July, as the News of the World scandal hit its stride in the UK, Brown asked whether the News Ltd board meetings should be opened to public broadcast. This would impose a degree of public scrutiny on a single company that isn’t even applied to federal cabinet, or, indeed, his own party conferences. Perhaps he thinks all private companies should open their boardrooms. But that’s not what he said. Just News Ltd – a firm which employs his most strident critics.

The profit motive is one of the most powerful forces in our society precisely because it delivers consumers what they want. Organisations which offer people goods or services which are attractive and desirable and not prohibitively expensive succeed. Those which do not, fail. All government should do is provide a legal framework, under which laws are universally applied. For instance, to choose a law completely at random, don’t hack phones.

The profit motive seems like a pretty good way to deliver journalism which people want to read, watch and listen to. But, otherwise, the Government spends a billion dollars a year on the ABC – specifically to address an assumed failure by the market to provide quality media in the absence of a public broadcaster.

Bob Brown would no doubt like the ABC budget increased. But that’s not the argument he is mounting. Tellingly, the ABC barely rates a mention. His focus is on the private News Ltd, not the ability of existing institutions to achieve any democratic objective.

Brown’s enthusiasm for the media inquiry seems more about fighting his party’s critics than any principled position about the relationship between democracy and media.

Greens pressure led to the formation of the inquiry in the first place. So it is hard to take the Government’s reassurances that the Independent Media Inquiry has nothing to do with the hostility of the press.

Communications Regulation Is A Dog’s Breakfast

The way we regulate media and communications is a dog’s breakfast. That judgment has been blindingly obvious for more than a decade now.

But it has now been confirmed by no greater authority than the dog.

A paper by the Australian Communications and Media Authority (ACMA), Broken Concepts, was released on Monday to coincide with the Government’s media convergence review. In it the communications regulator details the complexity and contradictions of laws which regulate everything from phones to emails to subscription television.

For instance: Australian content requirements apply to television, but not to the television-like services broadcast via the internet. Subscription TV and free-to-air TV have totally different content standards. Spam faxes and spam emails and telemarketing are regulated differently. The universal service obligation seems incongruous in a world where most Australians have mobile phones and many people are going home-phone-free.

It goes on. In the regulations and regulatory frameworks they studied, ACMA found the “majority” were broken or have been severely challenged.

This is not a surprise. Regulation and technological change just don’t go well together.

Telecommunications and broadcasting policy has long been characterised by rent-seeking and paternalism.

Indeed, we got off to a terrible start. In 1905, the Commonwealth decided to take control of the radiofrequency spectrum with the Wireless Telegraphy Act. But the Act had been delayed by the Barton government’s worries that the new technology would challenge the existing telegraph companies.

For a century, governments have conspired with politically-protected firms to hold back or cripple new technologies at the expense of consumers.

It’s that century of regulatory perfidy that has gifted us the inconsistency and confusion of the 23 Acts and 523 pieces of regulation ACMA oversees in 2011.

In 2000, the Productivity Commission described a history of “quid pro quos” which “created a policy framework that is inward-looking, anti-competitive and restrictive.” And the Howard and Rudd governments only prolonged this sad tale.

Communications regulation is worth cleaning up for its own sake. Inconsistent regulation distorts investment and consumption. It impairs innovation.

But it’s doubly worth cleaning up considering the pace of technological change will only increase. Governments will forever have to figure out how new technologies fit in.

The ACMA suggests we reframe our views about communications regulation according to a ‘network layers’ model. This model was developed in the early 2000s by communications academics who took the internet challenge to legacy media seriously.

Communications technologies have traditionally been regulated separately and distinctly – in “silos”. But treating technologies like silos doesn’t make sense any more. The copper wire network is no longer the only way you can make a phone call. Free to air television isn’t the only place you can watch a television show.

Instead of silos, the layers model views all communications networks as consisting of a number of layers, from infrastructure (copper wire, for example, or mobile phone networks) up to content (television programs or phone calls).

ACMA suggests a model with four layers. There are other options. The original theorists talked about seven, others talk about five, or three.

But the idea is the same. All infrastructure should be regulated consistently, no matter what technology that infrastructure is made of. All content should be regulated consistently, no matter how it is delivered.

The layers model is elegant. It’s probably the only model which will accurately and flexibly describe the communications of the future.

However, ACMA may not be aware the network layers model implies something more than moderate reform.

In a regulatory environment governed by such a model, the communications regulator would probably have nothing to do. Adopting a layers model would bring radical deregulation.

After all, if a regulator treated internet and free to air exactly the same, how would they enforce Australian content requirements on both? ACMA would be unable to insist that a certain percentage of all websites were Australian even if they wanted to. Same for the broadcasting standards and codes of practice – how could a regulator insist on “balance” on the internet?

That’s content. If the Government wanted to regulate infrastructure consistently, would it insist every owner open its network to competitors – as Telstra’s copper lines were treated? Or would it leave infrastructure to the market – like mobile phone networks? The economic logic of infrastructure investment suggests less regulation would be imposed, not more.

Of course, regulation being regulation, the current dog’s breakfast has supporters. Industries have grown up relying on this regulatory mess. Any change is a threat to the commercial status quo.

And the hysteria we saw from the actors’ union after a minor change to the Foreign Actors Certification Scheme earlier this year will be nothing compared to the outcry when the Government concludes, rightly, that Australian content requirements are anachronistic and impossible in a digital world.

Furthermore, as hostilities between News Limited and the Government increase, there’s no political appetite for media deregulation. No matter how obvious or necessary.

But credit for ACMA where it’s due. It’s a rare regulator which recommends such radical change. Especially change which could, if done properly, close that regulator down.