News in brief - November 2001

Reporting "race"
Submission on Defamation Law Reform
Submission on 'payola'
Appeals procedures
Media ownership rules
Reader-based publications
Annual Report 25
Mediations

Reporting "race"

The Australian Press Council has recently reviewed a number of its reporting guidelines, some of them now decade or more old, and has been re-issuing them in an amended form. General Press Release 245 looked at the reporting of health matters and GPR 246 covered matters such as reporting of suicide, drugs, opinion polls and recall notices. These were noted in the August 2001 issue of the News. It recently released GPR 248 as a general guideline for the print media on the ways in which newspapers and magazines should approach the reporting of matters related to race, nationality, ethnicity etc.

The Australian Press Council often receives complaints about the reporting of the race, colour, ethnicity and nationality of individuals or groups, and these raise important questions about the responsibility of the press in our multicultural society.

In the broadest terms, the Council has found that the tone and context of such reporting are usually the crucial elements in deciding whether its principles have been breached.

The Council's principles state: "Publications should not place gratuitous emphasis on the race, religion, nationality, colour, country of origin, gender, sexual orientation, marital status, disability, illness, or age of an individual or group. Nevertheless, where it is relevant and in the public interest, publications may report or express opinions in these areas".

An obvious case where reference to a person's physical characteristics or ethnic background is relevant, or in the public interest, is when they are part of police descriptions of wanted suspects. Thus is particularly so when the suspects are regarded as violent and dangerous. When a person's physical characteristics or ethnic background are tendered as relevant evidence in court, they are then matters of public record.

The question of race and ethnicity is a difficult one. In the strict biological sense, "race" is the subject of complex scientific debate and particular care should be taken when describing somebody as being of "mixed race", unless it is reporting direct quotes or self-description. However, there is no doubt that people are often perceived, and perceive themselves to be, members of a race in a broadly cultural sense. Ethnic identity, too, is sometimes difficult to define.

There is also the danger of using the term "race" where no such race exists; there is no 'Jewish race', equally there is no 'British race' nor 'French race'. Another danger is to accept too readily the race labels used by racist groups in hate campaigns; such labels should be examined carefully and critically.

The Council is principally concerned about references to race, colour, ethnicity or nationality which promote negative stereotypes in the community. It acknowledges that the question of stereotypes is not cut and dried, and much depends on the context.

The Council in principle condemns gratuitous use of offensive slang terms for minority groups. However, if someone controversially used such expressions, a publication may well be justified in reporting them in direct quotes. The Council also generally believes that the use of such terms is permissible in opinion articles, when it is to make a serious point, and sometimes in humorous articles and satire. But here again the boundaries are usually determined by tone and context.

The Council also accepts that some international situations are extremely difficult to report or comment on without causing offence to different groups in the community. For example, referring to the "Former Yugoslav Republic of Macedonia" might offend some readers. But referring to it simply as "Macedonia" might offend others. The Israeli-Palestinian and Northern Ireland conflicts are other obvious examples where deep-rooted passions among readers from various backgrounds are easily inflamed, even by impartial reporting.

In the Council's view, in general, the press needs to show more sensitivity in reporting issues when minority groups are perceived in the community to be more "different" or when they are the subject of particular public debate.

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Defamation Submission

After some consideration by a working party of publishers, convened by the Press Council, the Council has made a detailed submission to the NSW Attorney-General on defamation law reform. The Council has for many years advocated uniform defamation laws in Australia. It urges the Government of New South Wales to initiate action to achieve that outcome by making both substantive and procedural reforms to defamation law as set out in this submission.

The objectives include speedy correction of factual error and compensation for maliciously inflicted financial damage while preserving freedom of speech and avoiding lengthy lottery-like trials. The main proposals include:

• an up-graded Offer-of-Amends process, post-writ and pre-trial, including mediation in an attempt to reach a compromise and, if there is no settlement, the plaintiff will be responsible for the subsequent costs of both parties if the trial judge considers the Offer-of-Amends to have been reasonable;
   
• judges be required to take a stronger view of the capacity of material to carry imputations, only referring to the jury claims that are 'more likely than not' to have been conveyed in the article;
   
• the trial process itself should be amended to bring the jury into both the imputations and the defences stages;
   
• the defence of qualified privilege should be extended to cover a greater range of circumstances, especially the fair reporting of public comment, including third party statements;
   
• the judge alone should decide the damages payable to a successful plaintiff guided by clauses within the legislation comparable with amounts possible under other legislation/court guidelines;
   
• to succeed in a defamation action people of public prominence should have to prove malice and actual harm to reputation; and
   
• government departments and corporations should not be able to sue individuals for defamation.

The complete submission is published on the Council's website.

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'Payola' Submission

In October the Council also made a submission to the Attorney-General of South Australia on 'payola' provisions of the Criminal Law Consolidation (Offences of Dishonesty) Amendment Bill 2001.

The Council argued that the 'payola' provisions of the Bill which attempt to deal with matters arising from the commercial radio cash-for-comment inquiries are so broad and sweeping in their wording and ambit that they pose a threat to the traditional freedoms of the press in Australia.

"The provisions are intended as legislation that will deal with a particular and publicly discussed issue, the prevalence of cash-for-comment in commercial radio. However, the legislation drafted is ambiguous and has the potential to catch a wide range of common situations, well beyond that required by any matters arising from concerns with 'payola'," the Council said. "[We are] concerned that the legislation will have the unintended effect of limiting the free flow of information to the public."

The Council called on the Attorney to withdraw the 'payola' provisions of the Bill and redraft those sections of it before any re-introduction.

The complete submission is published on the Council's website.

Following the Council's submission and submissions from other media organisations, the 'payola' provisions of the Bill were deleted, to be subject to further discussion before reintroduction.

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Appeals

The Council has reconsidered how it will deal with appeals from complainants or publications about its adjudications and has agreed to the following propositions:

1. 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/s 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.
   
    
2. Cogent reasons include an error of fact or an erroneous assumption or inference which adversely affected the determination of Council.
    
3. In most circumstances, the Council should ensure that any committee which deals with an appeal is composed of different members to the one which drafted the decision.

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Policy on media ownership

In its recent review of guidelines and policies, the Press Council developed a new policy on media ownership laws, governing both cross-media ownership and foreign takeovers. That policy is:

Access by all Australians to full, truthful, unbiased information about world and domestic events and to a pluralist range of opinions and commentary about those matters from an Australian perspective is the key issue to be considered in determining government policy on media ownership.

Different media feed off each other in the race to present the news first and best. The print media in particular presents the depth and diversity of analysis and commentary on news and events that enhance the democratic qualities of our society.

Accordingly the Press Council has adopted the following policies.

1. Freedom of the press, and of the media, should be guaranteed by inclusion in the Constitution or, at least, by statute.
    
2. Plurality of media outlets, diversity of views, and the regard for Australian content in the print media are issues of key importance.
    
3. Media ownership should be governed by competition law. Regulation should be achieved primarily by the Australian Competition and Consumer Commission (ACCC) under the competition policy aspects of the Trade Practices Act.
    
4. Judgments on substantial lessening of competition should be made on the basis of impact, circulation and penetration, considering the media as a single market.
    
5. Foreign takeovers of major capital city newspapers and free-to-air TV channels should continue to be subject to the Foreign Acquisitions and Takeovers Act.

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Reader-based publications

The Australian Press Council has received several complaints about magazines that use material supplied by readers and often published under the readers' name. The complaints came from readers whose stories were published in this way, and who believed that there were inaccuracies or misrepresentations made about their work.

After meeting with the editors of the most successful of these lifestyle publications, the Press Council suggests the following guidelines:

• The magazine that runs a story based on written material supplied by a reader should clearly explain what it intends to do with any subsequent article. Often, the material is supplied by filling in relevant facts on a coupon. If so, it would be appropriate for the coupon to state how the material is to be treated and where it is to be placed.
   
• The magazine also should seek corroboration of the facts. If anything is contentious about the story, or likely to be libellous, the magazine should seek an affidavit from the reader and independent legal advice.
   
• When an article runs under the readers name, its contents should be checked with the reader before publication.

The Press Council has found that, in most cases, a reader's submitted material is handled by a trained journalist who interviews the reader and writes a story according to the known facts. In such instances, running the article under the reporter's name should overcome most concerns.

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Annual Report 25

The Australian Press Council's twenty-fifth annual report shows that it continues to be a successful self-regulatory body.

The report demonstrates that only a small percentage of complaints received by the Council are dealt with by adjudication. Many more complainants have their matters mediated successfully by the Council or are satisfied by actions taken by the newspaper.

The new procedure whereby complainants who are dissatisfied by the publication's response can ask for a mediation conducted by a Public Member of the Council who lives in the local area where the complainant and publication are has been trialled in the reporting year and several more complaints solved amicably in this way.

In 2000-1, the Council received 413 complaints. Only 65 of these were followed through to the final stage of the complaints procedure: the issuing of an adjudication by the Council. 81 were successfully mediated and a further 96 were withdrawn by the complainant after receipt of the publication's formal response to the complaint. (The other complaints were refused by the Council as being outside its remit; referred to other bodies; or not followed through by the complainant.)

The major areas of complaint continue to be inaccuracy (45 per cent) and imbalance - particularly the non-publication of letters to the editor - which accounts for 22 per cent of complaints. Allegedly offensive material, including publication of confronting colour photos on front pages of newspapers, led to 12 per cent of complaints. Complaints about invasion of privacy by the media accounted for about 6 per cent of complaints.

The report is the first for the Council's current Chairman, Professor Ken McKinnon. In his foreword, he notes the force of Council adjudications. "The spotlight of the adjudication process is not something editors relish. They send senior editors to hearings and make the best possible cases for articles in contention. An unfavourable adjudication from a Council among whose members there are several newspaper peers is more than a mere slap on the wrist. Newspaper organisations often use annual data on adjudications ... and the content of particular adjudications as points of reference for editorial policy and enhanced standards."

Apart from dealing with complaints, the Council's other major role is as a defender of the traditional freedoms of the Australian press. The Council made submissions to relevant bodies relating to a wide range of issues that affected the media, especially on attempts to expand the contempt laws; on proposed reforms of defamation law; on the proposals to legislate on the privacy of personal information held by the private sector; and on attempts by various state governments to limit media access to prisoners. The report details the Council's activities in defending press freedom.

Also included in the annual report are detailed statistics on the formal complaints received by the Council and circulation figures on all major publishers, provided by the publishers themselves.

Copies of the report are available from the Press Council office and extracts from it, including the complaints' statistics, and the Freedom of the Press Committee report, are posted to the Council's website.

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Mediated Complaints

The Council office tries to solve matters by direct contact with the publication concerned. This often leads to a settlement of the matter satisfactory to both parties. In recent times a second level of mediation has been introduced, enabling Council members to act as mediators after the publication has responded to the complaint but before it is referred to the Council for adjudication. Below are some examples of recent successful mediations.

• A short article in a country newspaper made aspersions against a specific volunteer group. Members of the group wanted an apology from the newspaper. The newspaper had changed hands by the time the complaint was received by the secretariat. The new owners, however, gave space in which the retired editor apologised for the comments made in the offensive article.
   
• A magazine published an article stating that only a named pollster predicted the result of a specific election. The complainant, another polling organisation, refuted the statement in a letter to the editor. The letter was not published. After the intervention of the Press Council, the magazine published the letter. The complainant was then happy to let its complaint rest.
   
• A Sunday metropolitan published an article on an official report. Two complainants, both of whom had standing, complained that the paper had broken the embargo and had misrepresented the contents of the report. The parties agreed to a formal mediation by a Press Council Public Member. The mediation was successful: the paper promising to publish a news story on the issue; to consider an op/ed piece for publication; and to keep open the lines of communication between the parties and the paper.
   
• A national newspaper published a front-page photograph of a person falling from one of the World Trade Centre towers. The complainant was offended by the photograph, believing it to be in poor taste. The editor-in-chief of the newspaper wrote to the complainant. He accepted that the judgment to publish may have been in error. He also apologised for the affront it caused. The complainant accepted the paper's apology.
   
• Another national newspaper published a review, in its arts section, of a music festival. The complainant believed there were factual inaccuracies and misrepresentations in the review. He wrote to the paper, setting out his concerns. The paper apologised for the delayed response to the complaint, due to staff being on leave. Upon her return, the appropriate editor considered the complaint and agreed that the review needed a published clarification. It was duly published, and the complainant withdrew his complaint.

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