Asia-Pacific Regional Press Freedom Seminar

Philosophy of Press Self-regulation
Professor Ken McKinnon
Chairman, Australian Press Council

Most of us here are involved with the press in some way. It can be assumed that we consider freedom of the press important. It is also true, I think, that in most of our countries freedom of the press is either limited or cannot be taken for granted. Government Departments of Information with controlling powers and/or laws regulating the press are common. Even in long established democracies press freedom cannot be taken for granted.

In Australia freedom of the press is well established and widely valued by most sections of society. But it is always under some kind of threat. Here, as elsewhere, there are often federal or state legislative initiatives that if not challenged could limit press freedom in the name of protecting another public good such as privacy, or proper financial regulation.

For instance, the Australian Press Council's (APC) Freedom of the Press Committee meets every time the Council meets to work out ways to counter regulatory initiatives likely to infringe upon press freedom. Recently the Committee has had to work on issues relating to defamation, contempt by publication, financial services reform, and privacy laws, all having the potential to restrict press freedom. As well the Committee keeps a keen eye on events in other countries that might infect Australia, such as the regulation of e-publication and harassment laws.

Given that in all countries there are always strong regulatory tendencies what is the case for self-regulation? How persuasively can we put it?

The place to begin is with the right of the people in a democratic society to be informed. The strength of the concept of freedom of the press rests on the right of citizens to all of the information necessary to enable them to act as responsible, informed citizens. It is not so much the right of newspapers to publish as their obligation to inform the public by publishing the news, whatever it is, without fear or favour.

In America free speech is a right enshrined in the constitution. Hence the American press is robustly free and able to act in the public interest. If there were such a constitutional position in our countries there might not be a need for self-regulatory bodies. There have been sporadic attempts to insert such a right into the Australian constitution but to no avail so far.

In our societies there is more consciousness of the need to balance freedoms with obligations. There is more concern with the fact that the press is prone to judge as well as expose to scrutiny individuals, proposed laws and the institutions of society. Can every individual newspaper be its own judge of what is right and fair? It is a perennial question coming all the way down from Greek and Roman times, quis custodiet custodiens - who judges the judges?

Nor can it be claimed that newspapers are always without blemish or that there are no public interest considerations intersecting with the public's right to know. How are the mistakes or errors of judgement of newspapers to be corrected? What means should exist to balance the public interest when there are conflicting principles that might result in legislation unreasonably restrictive of the press? If neither a government watchdog nor laissez faire is a satisfactory answer what is the solution?

In Australia as in the UK and some other places a self-regulatory body with balanced membership, representative not only of press proprietors and journalists but also of the public was seen to be the answer. The Australian Press Council was established more than twenty-five years ago to meet this need.

Establishment of an apparently independent body is not in itself sufficient to meet the need. Newspaper organisations must have sufficient commitment to high standards and to such things as accuracy and fairness, to cause them to come together to devise a set of principles that will govern the work of the self-regulatory body. The must also agree to be bound by requirements such as prominent publication of the outcomes (adjudications) of complaints. It is a tough commitment because those principles are used in judging the actions of one of their newspapers.

There must also be sufficient commitment to the principles for newspapers to undertake the on-going financial support of the work of the self-regulatory body, including paying the staff. Self interest, that is, avoidance of government intervention, it may be, nevertheless from time to time proprietors may seem to be paying money to maintain a body that has beating them over the head as its main role.

The rationale is that the self-regulatory body should exist as an alternative to recourse to law. Persons aggrieved with what is published in newspapers can sue for defamation in Australia but the legal approach is a long expensive and uncertain road. Many aggrieved persons do not have the money. Many simply want to see a correction or a more balanced picture in what is published. A self-regulatory body that can take up complaints quickly, a body that brings to bear both the experiences of those actively gathering and presenting the news and the views of community members is more likely to ensure that their complaints are resolved.

It must be an alternative not supplementary to the law. That is to say, the APC requires that complainants waive their rights to legal action as a precursor to consideration of a complaint simply to ensure that evidence brought to light by informal dispute resolution processes does not then become evidence used in formal law courts.

An advantage of self-regulation is that it provides a cheap process, accessible to everyone, rich or poor. In that sense it is more even handed in achieving a just resolution since money alone does not prevail. Compared to the courts the processes of self-regulatory bodies are quick. The formalities of law courts can be dispensed with. Resolution of complaints does not depend upon hair splitting legalisms and technicalities.

Overly prescriptive and detailed principles are not helpful to the work of a self-regulatory body. There are both cultural diversity and geographical differences in most countries such that any matter brought up by complainants has to be treated on its merits in the context of that particular newspaper. The APC uses nine principles in its work. It does supplement these with general guidance press releases and policies but works most often on gradually evolving precedent (eg, when is it justifiable to publish horrible pictures?). It must be free to respond in a jury style to the issues raised in a particular matter under consideration.

There are limits too on the initiative entrusted to a self-regulatory body. The APC does not itself initiate complaints against newspapers. It rarely takes complaints from third parties not directly affected by the publish material about which there may be complaint. It is essentially a quasi-judicial body, responding to public input. It does not see its role as an intrusive supervisory body. What is published that does not offend the sensibilities of the public to the point where an individual feels upset enough to complain is assumed to be meeting community standards satisfactorily.

As far as the press itself is concerned the continuing existence of a self-regulatory body charged with scrutiny of the press has two major benefits.

On the one hand it is a protection. By their very nature newspapers offend some people. Indeed one commentator has suggested that material is only news if it offends some important person(s) or groups. Newspapers are always scrutinising those who exercise power in our community. They act for the public in questioning, checking, explaining and analysing what is going on in every aspect of community life. They express opinions and help people make up their mind about controversial matters whether elections, tricky moral issues like stem cell research or the quality of particular football teams.

A self-regulatory body protects them for more heavy-handed government or court intervention. It channels grievances into more positive channels by finding forms of redress (corrections, letters to the paper, opinion pieces, mediation, adjudications etc) that are ensure the public has access to the full story and that complaints are resolved. It publishes exemplary adjudications often used by newspapers in the training of their staff.

One the other hand a press council is a benign but powerful force for better press standards. Journalists and editors know that at any time any story or news piece might become the subject of a press complaint. Most newspapers have strong internal standards that encourage them to correct mistakes or apologise for errors of fact. In the grey area of opinion and balance and on questions of fairness, the existence of a self regulatory press watchdog able to adjudicate complaints and have adjudications published ensures that newspapers do not respond dismissively. As the adjudication of complaints involves compilation of a dossier on the complaint and hearings before a body composed partly of their peers, journalists and editors are keen to avoid the implied comment on their journalistic standards that the upholding of a complaint and its subsequent publication entail.

In summary, there is no doubt that the existence of a self-regulatory body for the press does help to insulate it from knee jerk responses and legislative action to hobble the press and prevent it from carrying out its mission to inform the public.

Professor Ken McKinnon

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