Finkelstein media report’s four fatal flaws

“Make the media more accountable for their sins, and worry less about new technologies and freedom of speech”.

That’s a one-line summary of Ray Finkelstein’s Independent Media Inquiry.  It argues for a new system of media regulation to apply to journalists, commentators and most of the Australians who contribute to online news and opinion. It wants a government-created News Media Council to set standards for all media – broadcast, print, online. When necessary, that Council should “require a news media outlet to publish an apology, correction or retraction, or afford a person a right to reply”. And when the media outlet won’t comply? Normal contempt of court rules would apply. So eventually, an editor would spend some time in a jail cell.

The report is already copping it from the management of Australia’s major print media groups, who see themselves as its targets. I’m writing more out of interest. I’m involved in the media, as chief operating officer of the online publishing firm WorkDay Media. But WorkDay Media has always been happy to make corrections and grant prominent rights of reply; it has even tried to join the Australian Press Council. As a business manager, there’s nothing in the report that worries me.

There’s a lot to admire, too. I have done enough report-authoring to be impressed by the speed with which Finkelstein and his team (mostly lawyers) marshalled their arguments into something at once informed and understandable. It’s a good introduction to Australian media regulation issues, it appropriately handballs the issue of print media industry assistance to a Productivity Commission inquiry, and it seeks to align the jarringly different treatments of broadcast, print and online media.

But for all that, the Finkelstein report remains a flawed 468-page attempt to justify new government regulation of media. Four flaws, in particular, make it unconvincing.

1. Deploying the accountability dodge

The first question about this inquiry has always been: why now? Why should Australia introduce new media accountability regulations just when the Internet has delivered a huge new source of media competition?

Of course, one answer might be “because Bob Brown wants to restrict News Limited and the federal government at least wants to frighten it”. But you can’t make that the philosophical basis for a government inquiry. And besides, the fact that an inquiry has a political motive does not prevent it coming up with useful conclusions; all inquiries are founded with politics in mind.

So: why now? Finkelstein’s answer is first that there is an “increasing and legitimate demand for press accountability”, and second that the federal government must accommodate that demand. He has plenty of evidence for the first point, much of it drawn from public opinion research.  Trust in the media is relatively low and may be declining, many voters think the media use their power irresponsibly, most people think various media outlets report inaccurately, journalists often recycle press releases, and sometimes media seem to be pursuing the agendas of vested interests (ranging from poker machines owners to the Victoria Police) or overstating things such as the likely effect of the carbon price on household budgets. The call for accountability is the report’s keystone, the piece of rock which keeps everything else from falling down.

But calling for accountability only suggests we need some rules. It does not tell you what those rules should be.

Setting down those rules is hard. Nevertheless, if you’re serious about accountability, that’s what you have to do.

If you’re going to call the media or anyone else to account for their intrusions into people’s privacy, you must write a rule defining how privacy works and when breaches are actionable. That has turned out to be very hard to do. One person’s intrusion into personal anguish is another person’ powerful statement about society. Think about the famous photo of the napalmed girl running down a Vietnamese road. She is an icon who helped change the course of history; she is also a person, Phan Thi Kim Phuc. What was her right to privacy on that day in 1972?

The same is true of media bias. One person’s climate change denial is another person’s crusade for the truth. One person’s obsessive pursuit of the pharmaceutical industry is another person’s brave campaign against thalidomide. Before you hold a media outlet accountable for bias, you must actually set out rules which define bias.

But writing down rules is exactly what Finkelstein does not do. Instead, Finkelstein dodges. “Standards of conduct which would govern the news media should be developed by the News Media Council,” he declares.

Hold on. Since there are to be legal sanctions for breaching these “standards”, they are actually laws. The obvious thing to do is to have parliament write them, not some appointed executive-council. That’s how the country is supposed to work.

Self-regulation is a lousy second-best option for extracting good behaviour from a group off people. But there are good reasons why it is such a common solution in the media industry across the globe. One reason is that real regulation is so fraught. Some things are harder to regulate than others, and media matters are harder than most. For all its lousiness, media self-regulation may be the least awful option we have.

“Accountability”, which sounds such an important concept, may be ultimately nothing more than a way to dodge the hard questions of law-making.

2. Ducking the Jefferson challenge

Finkelstein was also charged with credibly assessing schemes of regulation against their potential to restrict press freedom. Again he falls short.

The extreme view of press freedom, much beloved of media companies but no less powerful for that, comes from Jefferson:

“Our liberty depends on the freedom of the press, and that cannot be limited without being lost.”

UK and US governments confronting similar media regulation issues have shied away from regulation on just these grounds. Jefferson’s claim is at the heart of the inquiry’s challenge, and Finkelstein would have done something worthwhile by grappling with it. It’s genuinely tough. Instead he quietly denies it. He claims the potential damage to free speech can be traded off against the advantages of limiting it.

The dimensions of the trade-off are only lightly assessed. Instead the report observes various ways in which free speech is currently restricted – crying “fire” in a crowded theatre, revealing defence secrets, publishing child pornography etc. The report then implies that since free speech is already restricted, further restrictions are not such a big deal. Not only that, but apparently the Australian press “accepted the idea of press regulation by having set up the [Australian Press Council]“. That might be news to them.

3. Dismissing the marketplace of ideas

Finkelstein’s report says ( at page 45) that what it calls the “social responsibility” approach has underpinned media regulation over many decades now. That approach, Finkelstein says, was justified by the industrialisation of the press, the realities of 19th- and 20th-century media economics, and the growth of government.

Finkelstein goes on to note that the alternative to the “social responsibility” approach is a “libertarian” approach informed by “a belief in the ‘self-righting’ capacities of public debate to ensure that in rational and reasoned discourse, error would be vanquished”.

That analysis seems right. The logical next step would be to observe that this “libertarian” approach to media regulation is ripe for revival.

I’ve written previously on Troppo and in WorkDay Media’s submission to the inquiry (with Ian Rogers) in support of this approach to media regulation. Technological change is leading to an explosion of content that undermines the case for existing restrictions on publishers even as it undermines the economics of their businesses. Traditional media had a level of oligopoly power over information distribution. These days anyone can publish. There is in a sense no longer any such thing as “the media” – rather, there is a huge and messy range of information forms, sources and channels with different levels of reach, frequency, engagement, audience trust and motivation. The “marketplace of ideas” has never been closer to being fully realised.

But Finkelstein wants nothing to do with making the “marketplace of ideas” the basis of future media regulation. Yes, he admits, traditional media’s share of the audience’s attention may be falling. Yet for him, the “social responsibility” approach is somehow more necessary than ever. He sees the marketplace of ideas as based on dubious assumptions, as a naive notion which has been “widely criticised”. Oliver Wendell Holmes and John Stuart Mill may be famous names, but in Finkelstein’s view they’re well behind the times.

4. Downplaying the disruption

In order to dismiss the relevance of the marketplace of ideas, Finkelstein has to downplay the sheer scale of the transformation being wrought by technological change. And so he does. Even the report’s analysis of  print advertising’s recent commercial fortunes sometimes seems to say that nothing much is changing. For instance, it concludes (page 83) that “the available data do not lend much support to the speculation of a wholesale shift of classified advertising from newspapers to the Internet”. The report does note that online media is “leading to the creation of some pressure points in the [print media] industry”. Such a comment calls to mind a Monty Python scene, the one where the Black Knight suffers a series of pressure-point creation incidents.

Finkelstein and his advisors simply don’t understand online media and its repercussions. That’s apparent from the already infamous comment that the new regulatory scheme should apply to online news or opinion sources with “more than 15,000 hits a year”. That’s 41 “hits” a day.  This is ill-considered at two levels. As a technical metric, “hits” is famously vague and uninformative. At a practical level, 41 “hits” – be it 41 file requests, 41 unique visitors, 41 pageviews or 41 anything else – is  nevertheless clearly far too low. Such a cut-off line would give the government regulatory power over The Australian, the Sydney Morning Herald, my local Northcote Leader, WorkDay Media’s Banking Day and The Bank Investor titles, Club Troppo and all the other Ozblogistan titles, hundreds of other news and opinion outlets, and the personal blogs and Facebook pages of at least several thousand Australians.

This is farcically over-ambitious – one step up from attempting to regulate telephone conference calls and group emails.

The significance is not that this particular cut-off line will become law; it won’t. It significance is that no-one within the inquiry could point out its foolishness before the report went to press.

You get to a point, a few hundred pages in, where the report takes on an oddly 1990s air, as if the Internet was an insignificant technological sideshow, newspaper businesses were sailing along happily, and postmodernism, with its scepticism about “truth”, was the natural tool for societal analysis. “Accountability” is what matters, press freedom is just another competing claim, the marketplace of ideas is old hat, and technology hasn’t disrupted anything much yet.

In action: A political burden

None of the criticisms set out above means that Finkelstein’s plans would spell disaster for free speech in Australia. The phrase “Orwellian” is already featuring in the more heated critiques of the report, but Finkelstein has not designed Australia’s first Ministry of Truth. As the report points out, newspapers have always carried statements with which they did not necessarily agree – statements called advertisements. Mandated corrections and rights of reply are an annoying intrusion on media freedom. They’re not the road to a police state.

Indeed, if this report did get turned into actual law, the News Media Council would likely have an unhappy and limited life. It would start with questionable legitimacy, seen by many as payback to News Limited for its coverage of the current federal government and the Greens. It would probably be reluctant to make rulings, since every ruling would risk exposing it to a new torrent of criticism and the risk of having to enforce its rulings. Also, determining when a media item merits a correction or right of reply is a very tough judgement call. Over time the Council would occasionally force media outlets to print insincere retractions of controversial stories, it would be forced to make some impossible judgments, and it would eventually become a joke. At some point an editor would simply refuse to print a correction, the legal system would unhappily send him to spend a few days in the clink (an experience from which he would generate a torrent of interesting copy), and then the whole regulatory show would fall apart under the weight of its own overkill.

The other notable effect of turning the report into law would be to give journalists and commentators a close-up view of one of the commonest complaints about the current government: that it has been, especially under Kevin Rudd, too ready to pass new regulatory schemes in order to make very small differences to tough problems. Journalists have not always made much of this complaint. But they will make much more of it if they become its victims. The media and its member journalists are at least as self-interested as any other industry. And nothing will more delight Tony Abbott than to constantly feed their discontent – to paint Labor as the restrictors of free speech, to a media primed to believe it, from now until the day far in the future when he could repeal the whole system.

Many people have wondered what possessed the government to apply the can-opener to this particular worm dinner in the first place. The report itself (at page 15) fingers Bob Brown as the chief local instigator of the inquiry. The really interesting question, then, is this: If the government felt compelled to hold the inquiry to make Brown happy, will it now feel compelled to serve up some of the recommendations as legislation?

Communications minister Stephen Conroy has no doubt heard many times about the folly of arguing with people who buy their ink by the gallon. He and Gillard are in the business of denying Tony Abbott opportunities, not handing him new ones. They could gain much, at little cost but Brown’s disapproval, by chucking the whole thing out.

Update 1: I strongly recommend everyone read Margaret Simons’ reading guide to the Finkelstein report, an object-lesson in how media should report documents like these. I disagree with her recommendation to put aside the philosophical reflections of section two, which to me drive everything else in the report, and with her praise for section three, which slightly mis-describes the state of the print media’s business. But I wish I could have written such a concise, accurate overview for people without the will or the time to read all 428 pages.

Update 2: Jonathan Holmes, whose coverage of the Inquiry has itself been fine journalism, last night floated a fascinating theory about the report. Its recommendations, he suggested on Media Watch, may be designed not so much to bring about the creation of a News Media Council, but more to scare the newspaper proprietors into giving more respect and more funding to the existing self-regulation body, the Australian Press Council. In other words, the report might be a giant bluff. Maybe. My guess, though, is that if you’re writing 468 pages, you want to believe in your conclusions.

Update 3: The IPA’s Chris Berg looks over the curious structure suggested for the News Media Council: “one independent body, appointed by another independent body, most of whom will be appointed by a third independent body”.

Update 4: Jonathan Holmes sets out his considered reaction at The Drumz; Finkelstein’s own reporting is cause enough for alarm. Finkelstein’s plan, he says, would “give statutory force to codes of conduct which by their very nature are fuzzy and hard to apply with precision”. Not only is fairness particularly hard to assess, but accuracy can be tough too. And Finkelstein has accidentally proved that point: several of his claimed examples of media harm were far less clear-cut than he claims . It usually isn’t easy to sit in judgment on media fairness and accuracy, even if you’re a former Federal Court judge.

This entry was posted in Media, Print media, regulation by David Walker. Bookmark the permalink.

About David Walker

David Walker is the principal of publishing consultancy Shorewalker DMS where his current projects include editing Public Accountant magazine for the Institute of Public Accountants. David has previously been chief operating officer of publishing firm WorkDay Media, director of communications and advocacy for the Business Council of Australia, director of policy and communications for the Committee for Economic Development of Australia, site director for online finance start-up eChoice and an editor and columnist at The Age. He has written professionally on economics, business and public policy since 1987 and spent three years in the Canberra Press Gallery. Contact him on 03 8899 7790 or email [email protected]

79 thoughts on “Finkelstein media report’s four fatal flaws

  1. I agree about the disruption part in particular.

    But I’m very surprised that you have faith in the minister for buggies and carts to do something vaguely sensible. I expect him to go the whole censorship hog, again. Hopefully Gillard still thinks she can be re-elected and overrules him.

  2. “As a business manager, there’s nothing in the report that worries me.”

    It’s not the report you will have to live with, it is the institution. Things never turn out quite as planned.

    “Instead the report observes various ways in which free speech is currently restricted – crying “fire” in a crowded theatre, revealing defence secrets, publishing child pornography etc.”

    And they are not restrictions on freedom of speech, but rather proscriptions against active harms to others.

    I think the more important examples for the Fink to find is lots of real harms to people by the media that provide a genuine counterbalance to the argument for a free press. According to the reports I’ve read, those examples are thin on the page.

    One of the things that amazes me is how anyone should have thought a judge the right person to weigh the arguments for such important issues of public policy. If there are two big things in the normal experience of a judge they are reverence for authority (their own especially, not many people can just send you straight to jail, no questions asked); and a method of reasoning based on precedent and not new thinking.

    “None of the criticisms set out above means that Finkelstein’s plans would spell disaster for free speech in Australia.”

    Sure, but they really could lead to actual harm in lots of small ways. The first rule of Institutions is that they quickly become self-justifying. There is only one way for the media council to do that and it is to justify and uphold complaints. Quite a number of people will have their livelihoods depending on it.

    My reading of Conroy is that he really wants this stuff, mainly I think because he is a pig-headed idiot.

  3. PS, David Kemp has a nicely put argument against in the Oz today.

    “The report is full of approved rhetoric about the need for accountability and transparency in a democracy. The problem is: accountability to whom?

    There are really only two choices. One is accountability to the people, the other is accountability to government.

    It is a dangerous myth that the people and the government are the same. “

  4. Re point 3, this idea that the marketplace of ideas will be “self-righting” seems more an article of faith than something for which there is a lot of empirical evidence. You could just as easily go the other way and say that it is “self-wronging”, ie bad ideas are rewarded by prominence.

    (I don’t think either is right.)

  5. @Pedro: “…According to the reports I’ve read, those examples are thin on the page….”

    The whole point is that you will not read examples of this in the press. One of the regular complaints about the press is that it can print headlines like: “Pedro Exposed As Gillard Greens Spy” on Page 1, and then six months later, maybe, you will get a retraction saying “Pedro story slightly wrong, sorry” at the bottom of page sixty in the middle of the escort agency ads.

    Secondly, what the heck does freedom of the press really mean? Perhaps the press ought to define that before they get given it. They clamour for it, certainly, but it seems to be a very rubbery concept that is skewed toward some people having freedom to report, and others being crowded out. There is an asymetry of power here that worries me. That is, a small number of people in the media get to say what information is out there (excluding the internet and social media for the moment) available to busy people in practical terms, and I am not sure those people have a particular interest in putting out information contrary to their own interests.

    Having said that, I think that the internet and social media are slowly killing the traditional mainstream media because of the things I have been talking about. On the internet etc media outlets have far less of a voice, and I can have an instant right of reply, as well as have my story out to my friends and colleagues in a few minutes. That means that unless they get their act together, the death spiral will continue.

    Perhaps the mainstream media should take up the Finkelstein recommendatons for their own survival, rather than view them as something to be resisted – market results are showing that we certainly do not like the product we are being shovelled at the moment.

    Having said all that,

  6. Not only would the 15,000 hit limit encompass all of the blogs on Ozblogistan, it would do so in a legally messy way.

    First of all, several of the blogs have international authors. If the Skepticlawyer authors, two are in Australia, two are in the UK.

    The servers are in Dallas, Texas.

    The hosting company’s headquarters are in California.

    To whom is a writ to be served? I, who pay the bills and administer the servers? To Linode? To the data centre operator subcontracted by Linode? To the local authors of a blog? To the foreign authors?

    The legal relationships between myself and bloggers on Ozblogistan are not clear cut at all. It’s not as though I’m a news media employer who can direct them to do or not do something. I only have sway until I sufficiently piss someone off that they take their bat and blog and go elsewhere.

  7. That’s the small issue. The larger issue, of course, is that it is utterly repugnant in a free society to have any government oversight of publication standards.

  8. Sure Jacques @8, but there are plenty who think just as passionatley that what the press does is utterly repugnant as well. The debate seems to be about where the middle ground of mutually assured repugnance lies.

    Perhaps I should butt out in the sense that I get almost nothing from Australian mainstream media these days, and should leave it to those who have some sort of stake. I am sure that newspaper proprietors who got precisely zero dollars from me last year cannot be the least bit interested in my opinion – I certainly am not interested in paying to read theirs.

  9. The debate seems to be about where the middle ground of mutually assured repugnance lies.

    Piffle. This o-so-wise notion of settling on some median position simply gives control to whoever can move the outermost positions.

    This is not a matter of degree, in my opinion; it’s close to a bipolar policy decision. You have can a free press or a supervised press. As soon as you have any degree of supervision, there is no longer a free press.

    The excuse for the Finkelstein review was the illegal behaviour of journalists in another country. The UK had a mechanism for their behaviour called “criminal law”, we have something similar. Regulation of the press is an orthogonal matter.

    To try and grab for broader media regulation under the smoke of a morally distinct issue is doubly repugnant.

  10. As soon as you have any degree of supervision, there is no longer a free press.

    That’s a pretty severe test for the concept of “free”. There’s universe of stuff you can write that can pass supervision. But hurtful opinions must be severely restricted. As as the verdict in the Bolt case pointed out, hurt is unavoidably subjective. Publishers must always be alert to that possibility. I do think that bloggers and their commenters have to be held accountable as well, and Finkelstein recognises this.

    We all know what reprehensible sites are Catallaxy and Professor Bunyip. Maybe a stretch in the clink can change attitudes for the better. It would only take one case.

  11. We all know what reprehensible sites are Catallaxy and Professor Bunyip. Maybe a stretch in the clink can change attitudes for the better. It would only take one case.

    A fair bit of what is on those sites is already actionable, although mostly under the civil rather than the criminal regime. (Assuming an aggrieved person could find the Bunyip, of course.)

  12. “Maybe a stretch in the clink can change attitudes for the better. It would only take one case.”

    That’s either a (poor) joke or the statement of a fuckwit. I’m guessing that not even hammygar was laughing.

    Spot on Jacques, a regulated press is not a free press. I don’t even buy the spectrum argument as a ground for fit and proper person requirements for electronic media. Yes, it’s our spectrum and should be auctioned of in the public interest. The public has an interest in getting good money for that spectrum and the public also has an interest in the govt not otherwise deciding who is a fit and proper person.

    One only has to listen to fuckwits like hammygar wanting to proscribe AGW deniers and the like to see how quickly regulation of the media can go wrong.

  13. Remember Anna Bligh and the Wivenhoe dam enquiry? Just as they are tidying up and polishing the tables at the end of a long night, up pops Mudroch with a front page revelation. The enquiry finds itself backtracking, Bligh finds herself on the hop, and wasn’t that just a fine piece of journalism? So firmly in the public interest too.

    If takedowns were an Olympic sport then I’d be judging a 9.3 on that one.

    Long live free speech.

  14. “This o-so-wise notion of settling on some median position simply gives control to whoever can move the outermost positions.”

    Only if you can move a lot of outermost positions. Indeed, the whole idea of a median is to avoid excessive influence of a small number of outriders.

  15. @Jacques: “piffle”. You have your passionate opinion. Others disagree just as passionately. If you think “piffle” is a sufficient argument to carry your point, be my guest. If you think it is piffle for me to point out that there are those with differing opinions, does that mean you think nobody has a right to a differing opinion? etc. etc. you get the drift I am sure.

    As I said in my earlier post, those demanding “freedom of the press” need to define exactly what they mean by that, and then justify it. “Freedom” in that sense is a weasel word that can be used to excuse great abuse of power, and in fact, I suspect that some use the word “freedom” when they actually mean “power” or “privilege”. ie, I say that those demanding “freedom of the press” need to convince us that they are not really demanding “privilege/power/tyranny of the press”.

    Parliament, the courts, the executive, all have to work to some pretty detailed and precise rules and definitions, and the separation of powers I might add, all designed to avoid corruption and abuse. I don’t think it is the least unreasonable of people to think that if courts, parliament, and executive all have to work to some rules, then maybe the press ought to as well.

  16. “Piffle” correctly summarises the attempt to dress up a power grab in the garb of scholarly contemplation.

    Of course people have different opinions. That’s why defending the free press — including blogs, it now seems — is so important.

    Many people believe that their position is so absolutely justified, and that the consequences of not accepting their position so dire, that any degree of intervention of the state is permissible and desirable.

    Well it’s an empirical nonsense. Every such body of ideology has been a fertile field for oppression. Before the first leaf of the concept that Some Ideas Are Allowed and Some Messages Are Forbidden can spring from that field, it needs to be howled down as an outright danger to everyone, including the people espousing that view.

    Classical liberalism takes the view that no view, no matter how extreme, should be regulated or limited; because the most extreme views cannot be suppressed by law. They are in fact emboldened by suppression and given succour. But everyone else is caught up in the onflowing consequences.

    As for your insinuation that the press is somehow completely above all laws, you’re inventing a strawman. I said:

    The UK had a mechanism for their behaviour called “criminal law”, we have something similar. Regulation of the press is an orthogonal matter.

    And I still mean it. Punishing people for crimes against individuals is a proper role of the state. Punishing people for crimes against acceptable ideas is the proper role of tyrants and their good friends, people who can’t win an open argument.

  17. Nope Jacques, I am not inventing a strawman. I am saying that I believe that the press wants to be above the law (Witness the UK situation). Not that it is. What we are, via the Fink, arguing about is what that law should be in respect of the press.

    Again I say, without definition of WTF ‘freedom of the press’ actually means, and some agreement about what laws the press should not be above, argument is pretty futile – without a definition, you don’t have the basis for any sort of argument.

    I also reject the bi-polar theory – if the press already operates under law as you yourself point out, then it already is somewhere off one pole. Maybe the press wants us to see it as bipolar, because the other pole is arguably worse, and acceptance of the bipolar theory leads us to give them what they want. However, observation that the press already operates off one pole means that it can operate further or nearer as the public might decide.

  18. “Classical liberalism takes the view that no view, no matter how extreme, should be regulated or limited; because the most extreme views cannot be suppressed by law. They are in fact emboldened by suppression and given succour. But everyone else is caught up in the onflowing consequences.”

    Agreed. If you have the power to manipulate the non-extreme positions then you can move the median around quite easily. Indeed, I would argue that for a would-be dictator this power is far more valuable than worrying about the extremes at all.

  19. One of the better Troppo articles in a while, well done to David but also to Pedro and Jacques for calling it on being as little soft, apologist and left leaning when push came to shove (but this is Troppo after all…)

    Marx – can you elaborate a little on how in your view “freedom of press” cannot be administered by current laws such as Jacques is suggesting?

  20. One thing that is indisputable is that this proposal would be a very effect jobs creator. Its just another regulatory make work scheme.

  21. I think freedom of the media is petty easy to define as the freedom to:

    1 publish news and opinion without regulation by the State;

    2 lawfully gather information and protect sources.

    It does not mean freedom to do things that are otherwise wrongs, such as to publish child pornography and the very few State secrets that are legitimately kept in the public interest.

    All laws operate within grey boundaries and so there is tension at the edges of what is lawful and what is not. The presumption for the media ought to be that State secrets are very rare birds.

    The interest of the public in a free media greatly outweighs the individual harms that will inevitably happen. This is because the potential harm to the public through the regulation of the media is enormous. Marks is worried about media power, to which I ask, so what? The reduction in media power can only come about through the increase in govt power in one of the worst ways. I frankly don’t understand what Marks was thinking about when he suggested that some people are being crowded out of the media. He only needed to think about what he was doing when typing the comment to notice the own-goal.

    As I suggested earlier, it is not so hard to distinguish between wrongs in speech and freedom of speech properly understood. Advocating child sex is revolting but does not harm anyone. Publishing pictures of child sex is to be complicit in the crime of abusing the child.

    The worst area at the moment is the incitement of hatred laws. These are too readily applied. Inciting a mob to bash someone, irrespective of the motive, is an easily recognised crime and has been for centuries. Inciting hatred is a very slippery concept as we have recently seen with the stupid Bolt decision.

  22. @22 Mack:

    I refer back to my example of the situation that exists today where the press can publish headlines like “Pedro Exposed as Gillard Greens Spy” or “Chester Closet Commie” on page 1, yet when a complaint is judged correct the press publishes a retraction at the back of the paper in small font.

    I hardly think in this example it is anything more than decency to get a retraction on the page the original mistake was made, and in the font it was made. Not only is this a matter of decency, but also making someone accountable for errors is likely to make them less likely to commit the errors – and since there is no financial penalty involved, it is to their reputation that the medium must look. A bad thing? Likely to strike at the very foundations of our society? Come on. And if people won’t (and they don’t) do the right thing and admit it when they make a mistake, then if making them do the right thing is wrong, then some people are bringing up their kids to be unholy terrors.

    @23 John. If we use the present laws and so called ‘codes of conduct’ people have to use lawyers to get redress because the codes of conduct don’t seem to be working. So, the alternatives seem to be: make work for lots of lawyers, make work for reams of regulators, or the media grow a collective decency gland (LOL – as if)

    Come on fellas. Is it really striking at the heart of our democracy if the media have to correct their mistakes? Quite the opposite I would suggest, as good information is vital to democracy. Poor and mistaken information is pernicious. What is needed is good information, and the present set up does not do that well.

    Similarly, each and every other suggestion for regulation should be subject to that sort of question, rather than see any attempt to make people act reasonably as some sort of windmill to tilt at.

    Perhaps what might be a better argument is to ask ourselves the question: “What is the best way that a society can get information and data”? Do we need the old mainstream media at all? Is arguing about the mainstream media like arguing about regulating blacksmiths and chandlers? Does the traditional media still even have the function that gained its classification as ‘the fourth estate’ and therefore the traditional need for ‘freedom of the press’?

  23. Marks
    Suggest that what would happen is that the work for lawyers would continue.

    Assume that you are not suggesting that the civil right of suing for defamation be removed and replaced by a government appointed ‘investigative tribunal’?

    The proposal would simply add a extra layer of management costs (and create even more ‘rulings’ for lawyers to challenge).

  24. @24 Pedro.

    Ok, so let me put to you that the media have several functions: to provide information, to entertain, to provide opinion and commentary for example. (There may be more, ok).

    I have no problem with press freedom to provide information – as long as it does its job. One can easily see the importance of good information to society, so I agree with your sentiments in this case, even in the gray areas. However misinformation should not receive any protection at all. Why should it?

    However, I don’t see why that FOP should extend to entertainment at all, nor fully to opinion – anyone is entitled to that, so why should press opinion have any more protection than yours or mine?

    So, basically I agree with your definition of FOP but only as far as the press is providing correct information. I see no reason for extending that to entertainment and misinformation/mistakes, and reckon that press freedom as far as opinion is concerned should not be any greater or less than yours or mine.

  25. Surely the bolt case shows you do not need such a proposal.

    Bolt wrote articles which were at odds with the facts and paid for it.

    He could have been hit with a libel claim.

  26. Marks @ 27 “only as far as the press is providing correct information” ???

    Are you suggesting a appointed polymathly expert tribunal to rule on what is ‘true’ across all areas of knowledge?
    Or would only be concerned with testing the truth of statements that bother you?

  27. Look, there are things published every day that I wish weren’t.

    The non-stop parade of quack cures, insensible mysticism, god help us all the antivaxers and on and on ad infinitum.

    But as much as I begrudge these people their rights, I take the view that it ought to be permissible. Because as soon as a power exists to regulate the content of the press, it will be abused. It will become a subject of political capture. That hurts everyone.

    The funny thing about classical liberals and other free press boosters is that we are the ones who arguing for the benefit of both sides of the debate.

    As to your question about what constitutes a free press. Here’s the point: regulating the behaviour according to existing, universally applied legal standards (eg, defamation, incitement, observance of criminal law) does not create an unfree press. What creates an unfree press is government regulation of content, and that is what Finkelstein’s proposals are intended to bring about.

    You continue to conflate these two distinct issues and that is why I continue to accuse you of strawman boxing.

  28. The government a few years ago put forward a plan to ‘filter’ the net. It did please a few focus groups but nothing much came of it. The proposal was unworkable in practice .
    This proposal looks equally unworkable, but it will give pleasure to some.

  29. What scares me is the very same Minister for carts and buggies is still there and still likely to espouse stupid luddite reactionary policies. Like this.

    In a piece the AFR recently Conroy commented that parents needed to buy multiple ipads since their kids would be all over them. Well guess what we only bought one, and we just told the kids, aged 3, 5 and 8, that they weren’t allowed to touch it if we didn’t specifically allow them.

    I have a real problem with people like that making policy for adults.

  30. “Because as soon as a power exists to regulate the content of the press, it will be abused. It will become a subject of political capture. That hurts everyone.”

    Whilst I generally agree with you, it’s easy to think of things people arn’t allowed to publish that would have general support — how to makes weapons etc . If you want an interesting case, then there is a current debate over whether some scientists should be able to publish an article looking at the influenza virus — apparently they have identified how the virus goes from being something transmissable via touch to something transmissable via the air. Obviously if this was used the wrong way it could do bad stuff to large numbers of people (i.e., a good chunk of the world’s population). Another one is people’s right to publish stuff that implies someone will do nasty stuff to you. Comedy central had to pull an episode of South Park because of that happening to them, and that is legal in the US (the episode with a harmless depiction of Mohammed). So there are clearly boundaries one can find, although I think for most things, they’re pretty far away from what the government wants.

  31. Patrick
    They do not do policy ,policy is for technicians, they do announcements.

    In about 1850 Emerson visited England , at the peak of power. He sensed that hidden in the grand edifice was the beginnings of decline and fall. He wrote that Britain was dominated by a kind of “submind” a mind that ‘exercised all skills at a secondary level’ He wrote that it was ‘Like walking in a great hall , standing on a marble floor where nothing can grow’.

    I think the same can be said for contemporary Canberra.

  32. Sorry, but Murdoch’s freedom is vastly overrated. Plutocratic private enterprise is harmfully distorting the social conversation and claiming personal victims in a way that no bureaucracy in a democracy like Australia could rival.

    Perhaps a distinction between personal and corporate speech could healthily afford individuals the freedom Jefferson talked about.

  33. Look at all the totalitarian fucks in here arguing for censorship of right wing newspapers.

    Nice place you got here, Parish.

    Bit harsh, Yobbo. It’s not as if the Pony Club is responsible for left-wing totalitarians holding the opinion that opposing opinions should be silenced.

    If the “meeja” isn’t sinking the boot into the government of the day, it’s not doing its job. That our zombie clusterfuck of a government doesn’t get that shows just how delusional the ALP leadership has become.

    Australian politics is trapped in a never-ending farce of FUBARity while this minority government shambles on to its ignominious end.

  34. @30 Jacques: “You continue to conflate these two distinct issues and that is why I continue to accuse you of strawman boxing.”

    Sorry Jacques. My examples give clear indication that my argument is with content – wrong content. I do not mean ads, I do not mean opinion, I do not mean entertainment. I mean getting the facts wrong. If you think wanting to get better information out there, and challenging the presumption of some ‘right’ to publish wrong information, is some strawman, well that is a pretty out there definition of a strawman. And by my examples, I don’t see how I could be misinterpreted.

    If you want a strawman, look at the nonsense of polymaths required for adjudication of what is correct. This judgement is made now with existing bodies in the media. Just no teeth to back it up with decent rectification of errors. So the ‘my my, who can tell right from wrong so why try?’ ploy is the strawman here, and it isn’t me applying it. LOLOL! :)

  35. A tribunal of the kind envisaged would either have to hear every single quack complainant who believes that the statement: “homeopathy is bunk’, is factually false or it would have to be very selective in regard to what sort of ‘factual dispute’ complaints it examines…… Wont work.

  36. My examples give clear indication that my argument is with content – wrong content.

    Marks, we already have laws to decide “wrong content”, and as pointed out in the post, the definitions of “wrong content”, e.g. child pornography, publication of state secrets, are tightly defined under current legislation.

    That is, it is the power of the state to regulate media content that is tightly defined, as it should be. The case you have FAILED to make is that OTHER content should be regulated. WHY should it be regulated?

  37. It’s funny how the proto-totalitarian mind works though. Marks is all for a free press so long as they only publish what is true. You’d have think that the light-bulb moment would arrive as he types the words, but no, instead we get this:

    “However, I don’t see why that FOP should extend to entertainment at all, nor fully to opinion – anyone is entitled to that, so why should press opinion have any more protection than yours or mine?”

    So some opinions ought to be silenced in the media? Whose I wonder? Mine as a right-wing death-bot railing against the carbon tax and the NBN? And just how will the Fink determine the wrong opinions that need correcting in public?

    Also, last time I checked the tribunal regulating Marks or my opinion doesn’t yet exist. We currently have exactly the same freedom as the media and the Finks proposal would see the media with reduced freedoms that you or I, except when we are commenting on blogs like this.

  38. Marks is all for a free press so long as they only publish what is true.

    In which case they should all be arrested any time they print an ALP press release.

  39. Mark
    Randy Newman’s ‘Political Science’ is not a truthful depiction of American foreign policy . But it is very entertaining.

    Would you go as far as regulating people who recursively represent , report or even simply repeat loony tune thoughts for the purpose of satire ?

    As Joseph Conrad once rightfully said ‘ all revolutionaries hate irony’.

  40. Hmm, did I wander into Catallaxy? It’s not a full moon surely?

    Funny today the reports in the media about the inquiry over the female cadet at Duntroon. Apparently it was all a beat up according to the media.

    Of course at the time, the media reckoned that a whole bunch of things happened and reported them breathlessly. Didn’t happen according to the media reports today.

    So, now we have one set of media reports contradicting a previous set of media reports. If you believed the first, then according to the second report you were a mug. Of course if you were a mug to believe the first reports from the media, why would you believe the second?

    Forgetting left or right of politics – what is the point of media you cannot believe? Unless, of course it is that you can just believe whatever suits you.

    Fortunately I believe that the power of the market is disposing of these charlatans and that fewer and fewer are reading or watching mainstream media. At some point, soon if present trends continue, the press can be as free as people want and it won’t matter a bit because nobody will be taking any notice. See the circulation figures for the Australian lately?

    @39 john. There is already a complaints authority making just those judgements you say can’t be made. Right. Reality check. My point is that there is no follow up where there should be, so there is no redress. ie the question of determining what a fair outcome should be is established with minimal difficulty, but getting the media to actually admit they were wrong and set it right is not. As to the notion that we can just go out get a lawyer and get things set right is farcical. How much chance does anyone think that any ordinary citizen could challenge News Limited and not end up broke? Libertarian not.

  41. The media don’t know what happened to fucking JFK either, that doesn’t mean they can’t report theories or the known facts. You really are an imbecile Marks.

  42. Thanks for a great post David – and I agree that Margaret Simons post is a fine one too – even though you disagree.

    Something makes me very suspicious of speaking of ‘free speech’ as if it is simply the absence of any kind of constraint. There are all sorts of constraints on speech today. Privacy, confidentiality, contractual agreements like NDAs, obscenity, national security, defamation and on it goes. If free speech is something of great value – which I think it is – it is surely a much more socially and politically constructed thing than some total absence of constraint.

    I think a free market requires minimal regulation such as the sale of goods act. Likewise, it seems to me a free press is a press which shows some minimal responsibility to the truth. Defamation law imposes some constraints of this kind, but I simply don’t think that a right to have a public retraction and/or apology for a story which has been found by due process to have been untruthful and recklessly so is a threat to a free press. Just as the sale of goods act is part of the infrastructure that supports a free market, so rules of basic responsibility should be seen as supportive of a free press.

    Ditto rules about diversity of ownership – for which there is also an analogue in trade practices competition rules.

  43. Forgetting left or right of politics – what is the point of media you cannot believe? Unless, of course it is that you can just believe whatever suits you.

    I assume you’re an adult, Marks? Who says you have to believe anyone?

    Nobody owes you the absolute truth, on anything, and you’re a fool if you think anyone can give it to you, let alone BE REGULATED to give it to you.

  44. I was trying to imagine the catatonic response to this from the usual suspects if Howard had commissioned it at any time during his reign and right there was my answer.
    Mind you the Howard Govt did respond to a rising public clamour from parents to censor the internet for the kiddies’ sakes and conservatives might have had some considerable empathy for it. They quickly had to face reality and give it up as a bad joke or Fink or steaming pile of manure or whatever you want to call it. Pathologically this mob want to take it all on bigger and steamier to add to their resume’.

  45. Actually I think they’re more cynical and calculating than that now. Knowing they’re probably stuffed they’re just creating more Evil Empire and stacking it with their mates to make the Opposition’s task that much tougher in Govt. You only need to recall the recent analysis that unemployment would be 2 percentage points higher without having done that already with their deficits, to appreciate just what process they’re accelerating now.

  46. Observa

    They are not that calculating , if they were they would not stuff up procedure all the time. This is the government where a high ranking member of the PMs staff can organise an ‘ambush’ of Mr Abbot when he is in the same ‘vehicle’ as the PM.
    They are heading for a political version of a Darwin award.

  47. @47 Nicholas,

    Often manufacturers who wish to have their product trusted actively seek and promote government regulation. The classic example is of German beer makers who make much of the fact that what they make is regulated by law. That is the point also of the sale of goods type legislation. If people can trust a product, that is often seen as a benefit to the business.

    In the case of the media they don’t seem to get the connection between trust and whether or not people are willing to pay for their offerings. It seems to me that either the media will have to get into some arrangement with government that inspires trust in media content, or see a continuing drift of reader/viewership to sources that are trusted. It is this point that I suspect the detractors of Finkelstein don’t get.

    Of course, various media outlets which cater to a particular prejudice will continue to be trusted. Alan Jones, for example, will always be trusted by those who hear him repeat back to them their own opinions, as will those on the other side of the political spectrum. Whether that is anything more than a niche and there is no future for balanced mainstream media is up for debate. Whether the media go down the road of the German brewers, or continue to fade away as people move to more trusted sources is up to them, and who knows, even going down the German brewer road might not save the media. It could already be too late. I know plenty of people who were fourteen papers a week and an hour at newstime on the box who now feel themselves more reliably informed elsewhere and won’t be back.

  48. Trust Yobbo to start talking about himself.

    The media might be better served if they stuck to publishing facts not opinion. We would all benefit if individuals were not subject to legal process regarding expression.

  49. Failure to perceive the distinction between speech and megaphones is beyond obtuse. Ideology run rampant? Special interest pleading?

  50. @48 Fyodor.

    I do not normally feed trolls, but this is too too tempting.

    In your comment at 48 you stated that “Alan Jones was a dipstick”. Yep you said that literally. And you know what, you can’t prove any different because as someone said recently: “…and you’re a fool if you think anyone can give it (the absolute truth) to you…”

    Of course if you could prove different to my assertion above, then no doubt a complaints tribunal could also reasonably adjudicate on truth or otherwise of enough complaints to make it worth while.

    *snicker*

  51. The sort of things that a tribunal would most likely be called to resolve the ‘true/false’ of, would not be straightforward issues of fact.
    They would most certainly be ideological and also involve recursive definitions and recursive interpretation: I.E a complete answer is by definition not possible.

    Courts and tribunals are not the place for settling political arguments.

    PS As people pay less and less for ‘journalism’ replacing it with ‘opinion’, cheap as chips becomes more and more attractive, think you might be confusing cause and effect.

  52. “but I simply don’t think that a right to have a public retraction and/or apology for a story which has been found by due process to have been untruthful and recklessly so is a threat to a free press”

    But that’s not necessarily all you get, and then there is the problem of timing. @45 Marks gets all confused about the Duntroon story, but its good to bring it up because one of the lessons is that things turn out to be different from what was originally thought, but not everyone can get a QC to straighten out the story.

    The fink committee will also become a version of the defamation writ, I predict.

    It’s a pretty important issue and I think that this is a clear “don’t fix it”.

    Marks @55, when you’re only half-smart, its *nicker*, not *snicker*.

  53. I do not normally feed trolls, but this is too too tempting.

    In your comment at 48 you stated that “Alan Jones was a dipstick”. Yep you said that literally. And you know what, you can’t prove any different because as someone said recently: “…and you’re a fool if you think anyone can give it (the absolute truth) to you…”

    That’s your response? The epistemological equivalent of farting in your space-suit?

    Of course if you could prove different to my assertion above, then no doubt a complaints tribunal could also reasonably adjudicate on truth or otherwise of enough complaints to make it worth while.

    *snicker*

    Non-sequitur.

    Of course, the statement I did not make about Alan Jones says nothing about the ability of any media agent – including, within Finkelstein’s ambit, this blog – to provide you with the absolute truth on anything, or the infallibility of any regulator in auditing such truth claims.

    Quit while you’re behind, dipstick.

    *chuckle”

  54. “The fink committee will also become a version of the defamation writ” If the tribunal ruled in favor of a particular position, could you then go on to court to seek damages?

  55. In your comment at 48 you stated that “Alan Jones was a dipstick”.

    Lol… The only reference to Alan was Marks himself.

    Hey marks, are you fronting up in front of judge Finkelstein’s Truth court? I hope he sets it up like Judge Judy with a live video feed so we can all watch.

  56. 60 JC illustrating the dangers of hopping into a thread without reading back.

    You mean like this:

    You:

    In your comment at 48 you stated that “Alan Jones was a dipstick”.

    But what does comment 48 say:

    Fyodor said:

    Forgetting left or right of politics – what is the point of media you cannot believe? Unless, of course it is that you can just believe whatever suits you.

    I assume you’re an adult, Marks? Who says you have to believe anyone?

    Nobody owes you the absolute truth, on anything, and you’re a fool if you think anyone can give it to you, let alone BE REGULATED to give it to you.

    You failed the very first Finkelstein rule and could be up in front of his Truth Court.

    Homer: if accuracy was what counted, you be writing apologies and corrections for the next 350 years for what you said in the past. You ought to be the last person talking about this stuff or showing up here instead of hiding behind a bush hoping you wouldn’t be noticed.

  57. So says Mr inaccuracy himself.

    look in the mirror sunshine.

    you are the idiot who claimed all deficits are expansionary just for one little gem.

  58. “Likewise, it seems to me a free press is a press which shows some minimal responsibility to the truth. Defamation law imposes some constraints of this kind, but I simply don’t think that a right to have a public retraction and/or apology for a story which has been found by due process to have been untruthful and recklessly so is a threat to a free press.”

    In practice Nicholas it’s a lot harder and more nuanced than that, if not simply downright vexatious because you didn’t get your Letter to the Editor printed.

    Where is the truth there? A. We need lots of lovely innocuous windmills to save the planet B. These monstrosity bird killers are driving us all crazy
    How would Mr Hobson choose?

  59. @66, JKC: Well jeez yeah, I could be up before the Fink because I made a statement that was incorrect. Fancy that? Being called to account for saying something wrong. Oh dear, civilisation as we know it is totally destroyed because someone who says something patently incorrect is called to account for it. Oh, and what is worse, if I am called to account for something wrong, heavens forfend, I might even lift my game next time and engage my brain before I publish. Couldn’t have that now could we? I mean, good heavens, if people out there actually got factual information to enable them to make decisions? Where would it end? Nup, better just leave it as it is where the press can make incorrect assertions without any requirement to retract – except on page 60 in between the escort agency ads.

    JC thanks for making my point. At least you seem to understand.

    I love this place.

  60. Well jeez yeah, I could be up before the Fink because I made a statement that was incorrect. Fancy that? Being called to account for saying something wrong.

    I find your attitude interesting on a number of fronts Marks. I find it interesting that you’ve been pontificating about the need for a Finkelstein Truth Court, but that your nose had to be rubbed in it a number of times before you admitted you make a mistake. that’s really quite ironic.

    Oh dear, civilisation as we know it is totally destroyed because someone who says something patently incorrect is called to account for it.

    You’re seriously confused. On it’s own no one really gives a shit that you made a mistake, as we all do, however you’re suggesting we require a Finkelstien Truth court to sort things out like that.

    Oh, and what is worse, if I am called to account for something wrong, heavens forfend, I might even lift my game next time and engage my brain before I publish.

    I couldn’t care if you lifted your game or not. I certainly don’t need a Finkel Truth Court to know you screwed it up and looked silly for not admitting it.

    Nup, better just leave it as it is where the press can make incorrect assertions without any requirement to retract – except on page 60 in between the escort agency ads.

    Who cares? Only you and some other leftwingers really. There are clear paths one can take if an untruth has been published. The law is pretty clear like that if it’s serious and there is no retraction. The stuff you and other leftwingers are suggesting is just anal retentive nonsense.

    I love this place.

    If you’re into flagellation.

  61. There are clear paths one can take if an untruth has been published. The law is pretty clear like that

    It is? That was the nub of the Finkelstein Report, to set up a body to guide fairness and accuracy in reporting.

    Legal proceedings are normally on points of law and do not address accuracy.

  62. As the report notes, in the US it is the concept of freedom of speech that the law upholds with the truthfulness to be judged by the “free market of ideas” (another concept). Only during legal argument is the truth ever tested which implies that only courts are required to be truthful.

  63. Jeez JC. Read and try to comprehend the thread willyer?

    Fyodor stated that it was impossible to discern the truth, and that only a fool would do so.

    I then followed that up with an open and shut example of where one could discern the truth – ie the statement you refer to. That what I wrote was untrue was the whole point old son. *shakes head in amazement*

    So, look at this simple syllogism:

    Fyodor reckons that someone who tries do discern the truth is a fool.
    JC then tries to discern that it is not the truth.
    Therefore, either JC is a fool (according to Fyodor), or Fyodor stuffed up.

    My money is on JC being correct in that one.

  64. Marks

    You don’t support freedom, speech which is integral to the functioning of a liberal democracy. You are therefore at best authoritarian or totalitarian.

    The idea of a Fink truth court should disgust most reasonable people.

  65. JC. Rot.

    Read the whole thread.

    Making someone accountable for what they say is hardly an attack on free speech.

    Making the press publish a retraction IF someone is aggrieved is hardly an attack on free speech.

    That’s just drama queen stuff. Or perhaps a drama strawman.

    If someone says something demonstrably wrong (like my example for example), why should they not be called on it? On a site like this, you can call me (and did) for what you rightly pointed out was a falsehood. It was intended to be so. If you read the thread and the post you would have seen that. If it were written in the Murdoch press, you would have no hope. IMHO propagation of lies and defense thereof is the hallmark of totalitarianism and authoritarianism. Witness Pravda and Der Sturmer.

    In one sense though, the Fink’s report is a little redundant, because the market is actually doing to ‘The Australian’ the same as it did to Pravda, and for the same reason – it is a propaganda rag which only niche readers would bother with. More power to the market. Perhaps if the Murdoch press actually told the truth, it might gain readership. Prolly too late now.

    *shrug*

  66. If
    You believe
    “in one sense though, the Fink’s report is a little redundant, because the market is actually doing to ‘The Australian’ the same as it did to Pravda, and for the same reason – it is a propaganda rag which only niche readers would bother with. More power to the market. Perhaps if the Murdoch press actually told the truth, it might gain readership. Prolly too late now.” that this is true then what are you worried about?

  67. Well, john, I must point out that it was not I huffing and puffing as though the idea of the media being accountable was the end of civilisation as we know it.

    Also, when I see such comments as:

    “Nobody owes you the absolute truth, on anything, and you’re a fool if you think anyone can give it to you, let alone BE REGULATED to give it to you.”

    I wonder what the writers of the United States Declaration of Independence would have thought of that quote above. Perhaps their thoughts might be as below:

    We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” (My emboldment)).

  68. Marks this is going nowhere….

    A question for the lawyers:
    ‘Logically’ speaking, any self statement that begins with “In my opinion” is always True (Or a self referential paradox). But is it also True for the law.

  69. Pingback: Newspaper crisis ensuring Finkelstein’s demise | Club Troppo

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