Asia-Pacific Regional Press Freedom Seminar

Administering a system of press self-regulation
Jack R Herman
Executive Secretary, Australian Press Council

Each country will need to develop its own system of self-regulation, based on the traditions and mores of that country. This paper will address the way in which the Press Council in Australia was established and how it goes about dealing with complaints from the public about the ethical behaviour of newspapers and magazines.

The Council was established in 1976 by an agreement between the journalists union and the major publishers. The establishment of a self-regulatory scheme independent of government can only really be achieved by an initiative that arises from the industry itself. However, once the initiative is taken, there is a need to involve the reading public as well. A truly effective and independent press council relies on a participation of representatives from these three sources: from the publishers, from working journalists and from the public.

One of the first steps taken by the Australian Press Council was the appointment of an independent Chairman. It was agreed that the Chairman should be someone with no previous connections with the press. The founders chose Sir Frank Kitto, a retired High Court judge. The first appointment of public members was made by Sir Frank on the basis of applications from the public, after advertising in the print media. Like the Chairman, the public members had to have no connection with the press.

Code of Ethics

Unlike New Zealand, where they decided to do without a code of ethics in the first instance, Sir Frank drafted a Statement of Principles upon which the Council would act. His draft was of a series of general statements which would be defined by subsequent rulings. That Statement of Principles stood largely in its original form for twenty years. When in 1996 the Council decided to redraft the Principles it appointed a drafting committee of publisher representatives, chaired by the then Managing Director of Australian Consolidated Press, Richard Walsh, who was not a member of the Council. Their draft was amended slightly by the Council and approved by the publisher members of the Council before adoption. Thus the Principles under which the Council operates are from the industry itself but authorised by the Council.

The principles used by the Council are still phrased in the general and are described as "broad principles". The preamble establishes the basis for the Council: " that "the freedom of the press to publish is the freedom of the people to be informed". And that "the freedom of the press is important more because of the obligation it entails towards the people than because of the rights it gives to the press. Freedom of the press carries with it an equivalent responsibility to the public". Finally the preamble notes that "the Council will give first and dominant consideration to what it perceives to be in the public interest".

The general principles state:

1. Publications should not publish what they know to be false;
    
2. Publications should make amends for publishing harmfully material;
    
3. News should be presented honestly and fairly, and with respect for the privacy and sensibilities of individuals;
    
4. News should not be obtained by dishonest or unfair means;
    
5. Publication should make fact and opinion clearly distinguishable; not misrepresent or suppress facts; not distorting the facts in text, headlines, pictures, billboards or posters; and disclose any commercial or other interest;
    
6. Publications should not lapse in taste such as to be extremely offensive to their readership;
    
7. Publications should not place any gratuitous emphasis on the race, religion, nationality, etc;
    
8. Where individuals or groups are singled out for criticism, the publication should provide a reasonable and swift opportunity for a balancing response; and
    
9. Where the Council issues an adjudication, the publication concerned should prominently print the adjudication.

Funding

The Australian Press Council is funded solely by the print media - by the publishers and associations of publishers which are its Constituent Bodies (CBs). The Council takes the view that no other source of funding is acceptable for an independent body of self-regulation. It will not take any government funds for fear of tying itself to the government. It has rejected alternatives such as levying complaints fees or charging publications on the basis of complaints made.

In May of each year, the Council convenes a meeting of its CBs to discuss the budget for the coming financial year and to consider the recommendations from the Council, its Chairman and the secretariat for spending initiatives in the coming year. The CBs agree on a total figure for the fees for the coming year and, generally, as to those initiatives they are prepared to fund. They also recommend whether the Council should budget for a surplus or a deficit for the year. (The final decision, within the parameters of the set amount of the fees, the size of any Council reserves and the limits on those reserves, caused by the need to maintain provisions for staff entitlements, on what is spent and on what is made by the Council.)

In 2001-2, the fees collected will be a little over $650,000. The associations (representing regional daily, country and suburban publishers), the magazine publishers and AAP each pay a set percentage of the Council's total budget for each year. In total they contribute about 20 per cent of the fees. The remainder is paid by the publishers of metropolitan daily newspapers, pro rata on the basis of Monday-Saturday circulations.

The Council budgets around 40 per cent of its fees to the cost of the Council itself, including honoraria, meeting costs, travel expenses etc. This is particularly high because the Australian Council is a national body with representatives from each state who need to be flown in for its monthly meetings and because the Council meets twice each year in a metropolitan or provincial city outside of Sydney. About 7 per cent goes to the rent and cleaning of the Council offices in Sydney which include a meeting room where the Council and its committees normally meet. Another 30 per cent goes towards the cost of the full-time secretariat, which the Council maintains in Sydney. The remainder of the fees are allocated to the Council's activities, including its publications, internet site, case studies, promotion, maintenance of its library, and all other expenses.

The Secretariat

The Council maintains a small but efficient office in Sydney. It has three full-time staff who do all the work. It is headed by an Executive Secretary appointed by the Council. The first three Secretaries were former journalists but, as a result of some concerns with the actions of the third such appointee, who saw his job as largely consisting of lecturing complainants about the role of the press in society, the Council determined to appoint managers rather than former journalists. The first such Secretary was Jennifer Treleaven who retired in 1994 when I was appointed her successor.

As Executive Secretary, I am responsible to the Council for the day-to-day running of the Council, maintaining financial and other records and administering the complaints procedure. I have an Office Manager, Deb Kirkman, who assists me with the processing of complaints, and an office junior, Stephanie Dick, who does typing, filing, reception and preparation of material for Council meetings.

Because of our involvement in attempts to mediate complaints, both Deb and I have completed Mediation Training Courses with approved tertiary institutions.

The office operates only during business hours and we have no after-hours complaints facility except in so far as complainants can access the Council's website which provides advice on complaints and an on-line complaints form. As the Council does not engage in prior restraint and deals only with matters after publication, the unavailability of staff outside office hours is not grievous.

Most complaints contact the Council first by phone or email, seeking advice. We would receive perhaps 5 phone-calls for every written complaint we eventually receive. We advise complainants of their rights and of the best way to settle their concern (or direct them to a more appropriate complaints agency). Most frequently we advise direct contact with the publication at the editorial level. This frequently leads to a settlement of the concern.

Complaints

The Council receives somewhere around 400 formal, written complaints a year. It deals primarily with complaints about the mainstream print media. The Council is concerned with news reports, articles, editorials, letters and images (including cartoons) in newspapers and magazines and complaints arising out of their publication. Complaints must generally be lodged within three months of publication of the material complained of. The Council prefers to deal with complaints about specific matters but has recently determined that it will deal with more general complaints about the print media if such complaints are supported by particular examples of the matters complained of.

Complaints are sometimes lodged by lawyers acting on behalf of clients. Except in extenuating circumstances, lawyers should not be involved in complaints. In most cases, the secretariat will request that the lawyer ensure that the correspondence is passed on to the complainant and that the latter be responsible for dealing with the matter.

So how are complaints dealt with.

Complaint refused or referred

The Executive Secretary may rule that a complaint does not appear to breach any of the Council's principles. He may, at this point, refuse the complaint. This may involve a complaint where the matter raised is a mere disagreement with an opinion expressed in an editorial, opinion column or cartoon. The Council has said that newspapers are entitled to have an opinion and express it. It may be that an allegation of invasion of privacy has been made as a result of a court report. If the report accurately reflects what was said in court, there is no breach of the principles. The complaint may be out of time.

If the matter is better handled by another body, the Executive Secretary will refer the matter to that body or, where more appropriate, inform the complainant of their options and the bodies which may be better able to deal with your matter.

About 20 per cent of all complaints are dealt with in these ways.

The office seeks a waiver or further information

If the I consider the complaint could be the basis for a legal action against the publication, I will be request a waiver of legal rights before the Council will proceed further. The Council seeks a waiver because it sees itself as an alternative, not a complement, to the courts. There are two other reasons for seeking a waiver: because in processing the complaint or publishing an adjudication the Council may deal with matters that are sub judice; and because parties cannot be expected to provide information and co-operation if this might prejudice their position in legal proceedings. On provision of the waiver, the complaint is dealt with normally; in its absence, the matter is closed.

Alternatively, I may think that there is insufficient information in the complaint for the Council to act upon and seek further details, either on the alleged breach of the principles or on the particular publication. If the complainant responds with the additional information, I may very well accept the complaint; if not, then the matter is closed.

Around 20 per cent of all complaints are closed for these reasons.

Complaint mediated or withdrawn

When I accept a matter for processing (and about 60 per cent of all complaints get to this stage), I try in the first instance, where applicable to negotiate a settlement to the complaint. If the Executive Secretary considers that a settlement may be possible, the complaint will immediately be referred to the editor before it is formally processed. Many complaints are amicably resolved during this preliminary stage.

If the attempt at a negotiated settlement fails and/or the Executive Secretary accepts the complaint for processing, it will be sent to the publication for a formal written response. Once a matter is accepted for processing, copies of all communications received from the complainant are sent to the publication, and vice versa. No communication may be kept confidential from the other party. The Council also asks that publications keep bylined writers or sourced news services informed of the progress of complaints arising from their material.

On receipt of a publication's response to a complaint, the Executive Secretary will send that response to the complainant. At this stage the complainant may regard the response as a sufficient answer to the complaint and let the matter rest.

About 40 per cent of all complaints received are dealt with either by a mediated settlement or by withdrawal by the complainant after receipt of the publication's response. These are the ones we, in the office, regard as "the successful complaints". Any matter sent to the Council for adjudication is one we failed to mediate a settlement of.

Public member mediation

The Council has recently introduced a new step in the procedures. On receipt of the newspaper's response, the complainant may seek mediation by a Press Council public member. When the parties, by consent, agree to use a locally-situated public member of the Council to act as a mediator, the secretariat and the public member will arrange for a mediation, either face-to-face or by phone, to seek a settlement of the matter. We have had about 8 such mediations in the last year, most successfully reaching an amicable settlement.

Adjudication

Fewer than 20 per cent of formal written complaints reach the stage of adjudication. Yet it is these which are most visible to members of the public because it is the publication of these to which the Council's name is attached. Historically, the Council has upheld (in whole or part) over 40 per cent of complaints and dismissed about 57 per cent. The remainder have been neither upheld nor dismissed, or been the subject of a statement of general principles.

On receipt of a publication's response to a complaint, where a complainant remains unsatisfied, and/or where public member mediation is unsuccessful, or the option is rejected by either party, the complainant may refer the matter to the Council for adjudication.

When a complaint has been referred to the Council, the Executive Secretary arranges for the complaint to be considered at the first available Council meeting. The Complaints Committee, on which the public members must be in a majority, holds hearings for all complaints and the Executive Secretary informs the parties of the date and place of the meeting of the Complaints Committee which will consider the matter. It is not necessary for parties to be present at the Complaints Committee hearing, but they are encouraged to attend. Many complainants do attend in person and may be accompanied by a friend or associate. Publications are usually represented by an editorial executive, sometimes accompanied by the bylined writer concerned. Legal counsel may not appear as a representative of either party.

If one or both parties do appear at a Complaints Committee meeting, the result is a round-table discussion. There is no formal taking of evidence. No new material may be introduced at the hearing. The purpose of the hearing is to clarify the written submissions for the Council. The Complaints Committee drafts an adjudication which goes to the Council meeting (usually the next day) as a recommendation.

The Council considers the matter and usually issues an agreed version of the adjudication which may differ from the draft presented to it by the Complaints Committee.

Adjudications are sent to the parties in writing by express post or fax and distributed to the media. It is the Council's practice to embargo general publication to enable the newspaper or magazine concerned to publish first. The Council reserves the right to restrict communication and reporting of adjudications in special circumstances.

Appeals

Appeals can be lodged by either party. When an appeal is lodged against an adjudication of the Council, the matter should be handled in the first instance by the Chairman of the Council. The Chairman should proceed as follows:

1. Where it is clear to the Chairman that the disappointed party has got no cogent reason(s) for the appeal, other than simple disappointment at the decision, the Chairman should, without further ado, dismiss the appeal;
2. Where the Chairman, either forms the opinion or forms the opinion after consultation with the Vice-Chairman that the appellant has provided a cogent reason or cogent reasons which would likely lead to a modification or reversal of the Council's determination, the matter should be referred by the Chairman to the Complaints Committee which could either reject the appeal or refer it to Council.

Cogent reasons include an error of fact or an erroneous assumption or inference which adversely affected the determination of Council.

In special circumstances, the Chairman may direct that the adjudication not be issued or, if issued, not be published, until the Council has considered the appeal.

Publication of adjudications

The Council's principle 9 mandates the printing of adjudications by the publication concerned. has no requirement that the adjudication be printed verbatim but requires that, where edited, the conclusion and spirit of the adjudication remain clear and unchanged. It does not restrict publications from making editorial comments on the adjudication as a part of the printing of them. At each Complaints Committee meeting, the committee reviews the printing of adjudications in the publications concerned in the previous month's determinations. If the adjudication has not been printed in the publication affected, or the committee believes that the publication has misrepresented the finding or not printed it with adequate prominence, it can recommend to the Council such action as would be appropriate in the circumstances.\

The Council itself publishes all adjudications in its quarterly newsletter and in its annual report. All adjudications are added to the archive of complaints maintained on the AustLII website (http://www.austlii.edu.au/au/other/apc), a searchable database which has all adjudications from July 1976 on. In the short term, adjudications are also posted to the Council's website (http://www.presscouncil.org.au) and maintained there until transferred to the AustLII site.

Two final notes on the procedures

The Council will deal with complaints against newspapers, magazines or periodicals printed or published in Australia, whether or not the publisher belongs to an organisation affiliated with the Council. (The Council may not deal with a complaint about a publication which is limited to a small, private circulation.) If a publication ignores communications from the Council concerning a complaint, the Council proceeds as best it can in the circumstances.

Parties are asked to respond promptly to requests from the Council and comply with any time limits set by the Executive Secretary. The Council seeks the co-operation of publications in quickly responding to complaints and asks that any initial response be sent within a week of the receipt of the complaint. In any case, if letters or calls are not answered within two months at the maximum, the Council will normally treat the complaint or defence as abandoned, depending on the party in default.

Jack R Herman

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