What is competence? Media Inquiry Report

Various libertarian types have fired up their organs of liberty and laboured forth on the Finkelstein Media Inquiry report. Rather than ‘free speech’, I see ‘public competence’ as a much bigger problem at the current historical juncture than any threat to free speech.

Does the public have a problem expressing or accessing the views, opinions or whatever of others? In Australia, to a large extent, no. There are those in various communities without ‘voice’ of course, but this is not a problem with the actual concrete mechanisms and practices by which people participate in ‘free speech’. The current situation has been hard won through various battles in different jurisdictions over the last couple of centuries. I can understand why drawing on debates from the 17th and 18th centuries might be attractive for libertarians unwilling to face the differences plainly evident in the current situation. What are the differences? One key concept is ‘the press’. What was ‘the press’ then? What is ‘the press’ now? They are certainly not the same thing. What about ‘government’? Does ‘government’ operate as a monarchy now?

Rather than limits on ‘speech’ at the moment, we have an excess of channels and opportunities for many people from many different walks of life to have their say. We certainly do not have an abundance of competence. What do I mean by ‘competence’? The first competence is the capacity to assess whether ‘you’ are competent to assess your own competence. We often discuss this in terms of feelings of confidence. We also send people to school and perhaps university or some other post-secondary education to develop such capacities.

The abject character of this column by Liberal MP Sophie Mirabella, and the comments, is utterly sickening to me. I am dismayed that someone who is meant to be an MP and perhaps one day could possibly be running part of the government can read the Finkelstein report in terms of ‘political correctness’. Mirabella is participating in the pure aestheticisation of politics. Using others’ sound bites to ventriloquise moral indignation, the Finkelstein report becomes a tool to whip up and harness the stunted fury in the responses of others who have also not read the report.

Finkelstein is critically analysing the news-based media industry in terms of the measures of competence that the industry sets for itself. The example of Mirabella’s piece goes to the heart of the report’s main point. She does not seem to understand that when you write in a journalistic capacity for media outlets that have set a standard of ethics and regulated practice, then you are already writing under the constraint of a series of rules. One of the main rules of journalism, in whatever form, is to be accurate. Journalists do not deliberately lie. They attempt to be as accurate as possible. Accuracy is a question of competence. Either you are accurate in your representations and aspire for such accuracy or you are not.

She raises the example of how a piece of her writing was changed to fit with a Press Council ruling:

It was explained to me that it had to be done due to a Press Council ruling which found that the word “illegal” “may be considered inaccurate and unfair” in relation to those who enter our country by other than legal means. Go figure. Therefore journalists have been instructed to use the term “asylum seekers”, rather than “illegal entrants”. Even more insidiously, the Press Council ruled that “even opinion pieces and commentary” had to be held to this apparently new standard.
Without getting into the argument of whether it’s “unfair” to describe someone who has entered our country illegally as an “illegal entrant”, exactly who has made the ruling that my opinion is now so very offensive that it must be censored?

Unfair or not, the problem is that the term ‘illegal entrant’ is inaccurate. There is nothing illegal about seeking asylum. Using ‘illegal entrant’ in a journalistic capacity is strictly incompetent. It is nothing about being ‘offensive’. Change the laws to make seeking asylum illegal, then you can write journalism using the term ‘illegal entrants’ all day long.

This is just the tip of the iceberg. Can anyone else see how this is a monumental problem for Australian democracy?

Maybe it is just me.

News Media Council as Streisand Effect

This post is based on a comment I left in reponse to a post on Prof Mark Pearson’s blog where Pearson outlines his reservations regarding the suggested News Media Council as a recommendation of the Finkelstein Independent Media Inquiry report and my colleague at the University of Canberra, Jason Wilson, agrees with Pearson’s points. I’ll quote Jason’s comment below because it sums up Person’s points and briefly respond. Then I turn to Pearson’s example and argue that the effect of judgements made by the News Media Council would actually benefit advocacy journalism.


This represents an impost and a raising of the barriers to entry for small publishers. The key points made by Mark here, which I agree with, is that (i) this constitutes a de facto licensing scheme for news media, which operates by determining who and who isn’t subject to this regulation (ii) because any disputed outcomes will end up in the courts, small publishers may either be ruined or intimidated into compliance because of their lack of resources. The solution to the problems the report raises is, generally, more media, more voices. This is another piece of regulation that makes it more difficult for independent voices to emerge.

I am not sure what the ‘barrier’ is that Jason is describing. The report rules out economic sanctions (such as fines). The suggested News Media Council is designed to be as user friendly as possible, so I imagine that this would mean remote video conferencing participation or online submissions.

Pearson raises a very good point in his post regarding the character of protections for small publishers:

And what if such a Council orders a leading environmental news site or magazine to publish an apology to a mining magnate for the ethical breach of publishing a ‘biased’ and inaccurate report about the company’s waste disposal practices, based on sensitive material from confidential sources? Where would the power and resources rest in a court appeals process in that situation?
To publish such an apology or retraction would be an affront to the blogger, and in their principled belief it would be a lie to do so.

Firstly it is necessary that everyone agrees that small publishers will be subject to the same laws as they are now (regarding defamation, racial vilification, etc.), then I argue that rather than a bariier and a chilling effect of free speech that the opposite will occur.

The worst that could possibly happen with a journalistic report that draws on confidential source is that the News Media Council demands that a journalistic report has to be withdrawn from circulation. The journalist/publisher has to weigh up the decision to publish knowing that the journalistic document be withdrawn or the prospect of giving up the identity of a confidential source. Pearson argues that to publish such a retraction “would be an affront to the blogger, and in their principled belief it would be a lie to do so.”

Principles of journalistic ideals are fine if we lived in an ideal world. We do not live in such an ideal world. I prefer the reality of journalism to the ideals. What will happen if the above scenario involving a direct action group (say GetUp!) creates an online news media enterprise and publishes a journalistic article about environmental issues and a mining company? Or better yet, say the News Media Council itself becomes corrupt, and a journalist publishes a story relying on a confidential source about the corruption of the Council itself?

The journalistic article will be published. Mining company, member of the News Media Council or whatever will lodge a complaint. In three or four days a decision will be handed down that in a worst case scenario (beyond the conditions already in place for existing laws regarding defamation, racial vilification, etc.) means the journalistic article is withdrawn.

Both Jason and Pearson suggest that this will be offensive to journalists and/or media publishers because of a principled refusal to withdraw a published article. Offensive to principles or not, I think most publishers of advocacy journalism would welcome the News Media Council complaints mechanism, even if they have to withdraw their article. Why?

I suspect, and without it actually happening I can’t really frame it more strongly, that this will be a classic case of the Streisand Effect. The mining company, member of the News Media Council or whatever will draw attention to something it does not want attention drawn to.

I am making a number of assumptions of course.

The first is that rather than defining journalistic practice as establishing the truth and therefore it matters whether or not a journalistic report is retracted, I am instead assuming journalistic practice in the current media ecology operates as an economy of attention. There is a surplus of media messages and catalysing audience attention around an issue or event is precisely what the sort of advocacy journalism example Pearson provides is attempting to do. Does anyone have any doubts whatsoever what the response would be from the ‘public’ (which is at a minimum other journalists and interested parties) if such an order to retract a journalistic article was handed down? I am largely following the description of the news-based media industry by Stanley Cohen in the preface to the third editon of his famous Folk Devils and Moral Panics (basically he outlines how ‘moral panics’ are a tool for directing attention).

There are other assumptions regarding the details of the implementation of such a regulatory body (ie lodging a complaint is public, but this is not essential). Also that involvement from the News Media Council will commence only after the lodging of a complaint, and hence the publication of a journalistic article, which I think is a sensible assumption.

I can foresee the release/publication of such advocacy journalism reports via email (so it exists forever on mail servers, regardless of the News Media Council’s findings) late on a Thursday or Friday so it remains ‘live’ for at least a number of days. This way such reports will still catalyse critical attention in an audience around specific issues.

Protection for online media enterprises producing news?

I should be doing an article review for a colleague but want to respond quickly to Nic Christensen of The Australian who has also focused on the concept of having a traffic threshold for a site to be possibly regulated by the porposed News Media Regulator. Nic and I have had a brief exchnage on Twitter. It is better practice for more complex points to shift to a different platform as Twitter is inadequate. On the issue of a traffic threshold see my previous post on the misreading required to see the 15000 hit threshold as a problem using Mumbrella’s example.

Nic asks a slightly different question and rises the example of the UTS student news site Reportage Online. Reportage Online apparently receives more than the proposed traffic per year and Nic asks the question should the site be subject to a regulatory body for the news industry?

First question: Is it producing news? Yes.

Second question: Does it receive enough traffic? Yes (assuming the arbitrary figure the report uses will be implemented).

So, yes, it should be subject to the new regulatory body. I am not sure why anyone would think that a student-run site should be treated differently? Sure the managers of the site would argue they are striving to produce works of quality journalism?

If you run a small online media enterprise that produces news-based content, then how are the proposed changes better? Here is the relevant section (point 11, page 9):

A guiding principle behind the design of the News Media Council is that it will provide redress in ways that are consistent with the nature of journalism and its democratic role. Like the APC, its members should be comprised of community, industry and professional representatives. It should adopt complaint-handling procedures which are timely, efficient and inexpensive. In the first instance it should seek to resolve a complaint by conciliation and do so within two or three days. If a complaint must go to adjudication it should be resolved within weeks, not months.

Conciliation first, then adjudication. The current modes of redress for complainants (and protections for media enterprises) are entirely inconsistent with the “nature of journalism and its democratic role.” The report alludes to this in a following point (point 14, page 9-10):

The process of accountability proposed here recognises the realities and difficulties of journalism, emphasising immediate exchange and correction rather than financial or legal punitiveness. Equally it is consistent with the ideals guiding journalism by emphasising transparency and recognising the public interest in how a major institution of our democracy performs.

In fact, the report’s suggestions indicate a method by which an online news site can demonstrate it values trust and newsworthiness (point 15, page 10):

These proposals are made at a time when polls consistently reveal low levels of trust in the media, when there is declining newspaper circulation, and when there are frequent controversies about media performance. Many of the criticisms are self-interested or expedient; much of the public cynicism is misdirected. Yet a news media visibly living up to its own standards and enforcing its own high ideals is likely to increase rather than undermine public confidence and acceptance.

If a site owner is confident in the quality of the reporting and news-based media content on the site, then it would be a good to sign up to the regulatory body as you would then be subjecting your site to possible adjudication by a community panel. That is why the report suggests that some small sites may desire to ‘opt-in’ (point 11.68, page 268).

The report address the chilling effect of governmental regulation in detail using the experience in the US as a model (pages 183-187). Another kind of chilling effect are frivolous complaints by serial pests. It also addresses this point (point 11.70, page 296):

There should be a filtering process carried out by a senior officer of the News Media Council. The process is to determine whether or not a complaint is frivolous or vexatious. If it is, it need not be pursued. It may be appropriate to allow for an appeal to the chair by a complainant whose complaint is not to be pursued.

What is ‘news media’? Independent Media Inquiry

The Federal Government’s Independent Media Inquiry published its report today by Mr Ray Finkelstein QC assisted by Professor Matthew Ricketson. It is a massive report and will take some time to work through. This hasn’t stopped Tim from mUmbrella already getting stuck into the report around the issue of what sorts of ‘online media enterprises’ (as the Convergence Review calls them) will be classified as ‘news media’ for the purposes of any posssible regulation.

Tim has a blog post and a news piece about the issue. The news piece is some early analysis, and the blog post raises the example of a blog belonging to one of Tim’s mates. The blog is called Banana Watch and consists of photos of banana peels. The issue is regarding whether or not ‘Banana Watch’ would be subject to any new regulatory body. This is a pertinent question as it raises the issue of a multitude of long tail bloggers (of which I have been one for 8 or so years) becoming part of the regulatory scheme. In both of the posts on mUmbrella, Tim quotes an extract from the report. In the news piece he writes:

On which media would be covered, the Inquiry said: “There are many newsletter publishers and bloggers, although no longer part of the ‘lonely pamphleteer’ tradition, who offer up-to-date reflections on current affairs. Quite a number have a very small audience. There are practical reasons for excluding from the definition of ‘news media’ publishers who do not have a sufficiently large audience. If a publisher distributes more than 3000 copies of print per issue or a news internet site has a minimum of 15 000 hits per annum it should be subject to the jurisdiction of the News Media Council, but not otherwise. These numbers are arbitrary, but a line must be drawn somewhere.”
Finkelstein appears to be using the word “hits” to describe page views. 15000 per annum would equate to just 40 page views a day.

The ‘second change’ Tim quotes above discusses various (outdated) ways of thinking about inclusion as a measure of traffic and looked at this traffic issue alone as a point of contention. The context of this quoted extract in the document is the NZLC definition of ‘news’ to which the rport is suggesting changes (page 295):

For the purposes of the law the “news media” includes any publisher, in any medium, who meets the following criteria:
· a significant proportion of their publishing activities must involve the generation and/or aggregation of news, information and opinion of current value;
· they disseminate this information to a public audience;
· publication must be regular;
· the publisher must be accountable to a code of ethics and a complaints process.

Banana Watch, entertaining? Maybe. But does it belong to “news, information [or]opinion of current value”? In anyway that isn’t purely for amusement, then no.

Point 11.61 (page 294) of the document defines news media: “The news media are those that gather, analyse and disseminate news, often with their own opinions added.”

The first question that needs to be put to online publishers: is your content of news, information or opinion of current value? If the answer is ‘yes’ then move to next question. Next question: how much traffic do you get, etc.?

What about the “non-news entities” like Banana Watch? Point 11.68 (page 295 and immediately below the extract Tim selectively quotes as above) “it would be appropriate to permit non-news entities which see value in the role of the News Media Council to opt into the system. That, however, would likely be a small part of the overall regulatory system.” Yeah? Opt in or not for sites that are ‘non-news entities’.

EDIT 3/3/12: It seems like there are two misreadings of the report emerging.

The first is Tim’s above that mistakes the report’s focus on the functioning of news media for a focus on news content. The report does not seek to define ‘news’. It seeks to define the ‘news media’.

The second is from Chris Berg of the IPA who suggests that the recommendations of the report are equivalent to a licensing regime. Chris is looking at it from the consumer side and worried about restricting access to content (that is what a licensing regime does). I am not sure how this is possible when there is no discussion of restricting different forms of content at all in the report.

Disclaimer: Prof Ricketson works in my department at UC and I made a submission to the Inquiry.