News in brief - November 2002

Prize
Apology
On the Council
Freedom of Information
Annual Report No. 26
Copyright - moral rights
Financial services reform
Survey of complainants 2003
Reader-based lifestyle publications
New booklet
Mediations

APC Prize 2002 and 2003

The results for 2002 and the Topic and Conditions of Entry for 2003 are published elsewhere in this issue of the News, together with some details on the winners, some comments from the judges and a copy of the winning essay.

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Apology

The editor apologises for the experiment in alternate punctuation evident in the August 2002 APC News.

Due to a font conflict between the Council's computer and the printer used to create the masters for the printing, all apostrophes and quotation marks were elided in the publishing process. This was missed due to inadequate proofing.

The editor undertakes to do better in future.

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On the Council

There are two new Public Members of the Council, representing South Australia and Victoria, respectively.

Helen Edwards is currently a Director of the Lane Wine Company (a family-owned business). She has had extensive experience as a director and councillor on a range of boards, currently being a board member of Pedare Christian College and of the Guardianship Board of South Australia, as well as a director of Bedford Industries. From 1993 to 2001 Helen was CEO and Registrar of the Nurses Board of South Australia. Prior to that, she had been CEO of the Family Planning Association. In her role on the Nurses Board she had experience in the investigation and resolution of complaints, gaining an appreciation of the spirit and importance of self-regulation. Helen's community networks arise from her involvement with the wine industry, the intellectually disabled employment and accommodation sector and the education system. She is interested in the role the press takes in the education of young people in society, and is keen to see the work of the APC used as an important educational resource.

Katherine Sampson is Managing Director and principal of Mahlab Recruitment (Victoria) Pty Ltd, a specialist legal recruitment business operating nationally and overseas. She studied Arts and Law at Monash University and worked as a solicitor at (then) Corr & Corr before commencing her career in legal recruitment. Katherine serves on a number of boards and committees in both legal and non-legal spheres. She is a Board Member of the Melbourne International Festival of the Arts and, until recently, was Deputy Chair of The Walter & Eliza Hall Institute of Medical Research Ethics Committee. She has been a Board member of Craft Victoria and is a Fellow of Leadership Victoria, having completed the Williamson Community Leadership Program in 1996. She is also a member of the Australian Institute of Company Directors, Australian Corporate Lawyers Association and Law Institute of Victoria. Her interests include family, reading, travel and the arts.

In October, the Council appointed a new Journalist Member, Helen Elliott. The journalist members are either freelance, retired or academic journalists who owe no allegiance to any of the Council's publisher members. Helen Elliott is a freelance journalist for national and metropolitan newspapers and well as a lecturer, Media and Communications, Monash University. She has previously been Books Editor for Vogue Australia; Literary Editor, Senior Features and Opinion Writer for the Herald Sun; a book reviewer on ABC radio; a lecturer in Modern American Fiction at the University of Melbourne; and a contributor to Fairfax, News Ltd and other publications. Her community involvement includes: being the initiator of Free Speech (a bank of distinguished speakers who talk to State school students, waiving any fee); National Media Liaison and Consultant for the UN Year of the Older Person; a member of the assessment panel for Arts Grants, Arts Victoria; and doing voluntary work with Association Dominique Pirie.

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Freedom of Information

Australian governments must reinforce their commitment to openness by improving the effectiveness of Freedom of Information (FoI) laws, according to the Australian Press Council.

Releasing details of a study into the operation of Australian FoI laws to federal, state and territory Attorneys-General and other interested parties, the Press Council called for a clearer commitment on the part of all governments to making more accessible to the public information they hold. This includes putting more resources into dealing with FoI requests.

The right to seek information is an express right of the public under international civil and political rights covenants to which Australia is a signatory. But, the Council said, journalists were finding that their attempts to seek information were being thwarted in many ways.

The Press Council has called on the Standing Committee of Attorneys-General to take a uniform approach on improving public access to government information.

A primary concern with the administration of FoI laws is that there is a significant under-resourcing of FoI administrators. The Council calls on governments to ensure that those charged with meeting requests for the release of information be adequately resourced to meet all reasonable requests.

To counter the obstructionism encountered by many journalists in the FoI process, the Council urges two significant changes to FoI procedures:

• the introduction of penalties for department and FoI officers who fail to comply with the time-frame provisions of FoI legislation; and
   
• giving FoI applicants the ability to claim their costs if they are successful in the administrative appeals process.

These changes would help address the main concerns about FoI identified in a study commissioned by the Press Council.

The study found:

• many FoI requests were obstructed on the grounds that meeting them would "substantially or unreasonably" divert resources;
   
• time delays discouraged FoI requests;
   
• 'user-pays' principles often made the cost of seeking information prohibitive;
   
• the operation of exemption provisions greatly reduced information made available; and
   
• arbitrary decisions on classification of documents by FoI officers often stopped requests in their tracks.

While acknowledging that FoI laws were not intended for use solely by journalists, the Press Council expressed concern that journalists who are the link between the public and the public's right to know were often frustrated in attempts to get information that properly should be made public.

The principles of FoI should be honoured more enthusiastically by government, the Council said.

Its survey of editors and journalists concluded that processes should be developed within government to assist the media identify documents held and that there should be a higher level of routine disclosure of government information. In that way FoI would become more beneficial for journalists and the public they serve.

At the same time as it is making this call on government, the Council is recommending to the print media actions they might take to clean up their own house in relation to FoI. Such actions should include reduction in the number of 'ambit' FoI requests and a better fine-tuning of requests. There should also be more training for journalists in the 'proper' use of FoI requests. The Council itself is developing some best practice FoI standards for distribution to the print media to assist it in this area.

The Press Council survey was prompted by examples of FoI requests that ran off the rails, including:

1. A newspaper was told it would cost more than $1million to process a request for information about overseas travel by Commonwealth MPs not long after the Government had called in auditors to examine such expenditure. In an AAT hearing the government said MPs travel information was regularly tabled in parliament but the newspaper immediately produced the name of one MP whose name did not appear on the tabled list. The government also claimed that people whose names appeared on expenses claims and receipts would have to be consulted because of privacy concerns. The AAT found that the information should be provided but that the government was entitled to seek payment for the costs of doing so.
    
2. Queensland has legislation that exempts cabinet submissions from FoI scrutiny. Thus delicate matters deemed by ministers or officers to require secrecy are rolled into the Cabinet room in order to gain status as "Cabinet papers" and avoid scrutiny.
    
3. Yet another recent FoI debacle involves a request for information about the approval of drugs and medical treatments. The department quoted $3,855 for the information, including 141 hours of "decision-making" at $20 an hour.
    
4. Several weeks after making an FoI request, a journalist was told there would be an unavoidable delay past the statutory period for replies because of backlogs, short-staffing etc ... When the reply arrived, the journalist was told by the FoI officer that only six documents were considered to fit within the "terms of your request". Of these, "access is granted in full to three documents" and "access is denied in full to three documents". The three documents the journalist was allowed to see were all correspondence to ... him, relating to his FoI request.

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Annual Report No. 26

The Australian Press Council's twenty-sixth annual report draws attention to some of the contemporary restrictions on the ability of the Australian press freely to report matters of public interest and concern and notes, in particular, that Freedom of Information (FoI) legislation does not overcome many of these restrictions.

In his Foreword, the Council's Chairman, Professor Ken McKinnon notes,

FoI laws are too easily circumvented. In the new era, some officials - whether justifiably or not - seem to fear their career prospects may be damaged if they are too free with information. Delays and rejection of appropriate requests that are not letter perfect are common. ... In summary, Australian FoI laws, by and large, are not currently working as intended. The Council is embarking on a project to encourage governments to make them more effective, legally and administratively.

According to the report, in 2001-2002, the Council received 390 written complaints. (Many other complainants did not proceed to a formal complaint after telephone or email contact with the Council led to a amicable settlement of their concerns.) Only 70 of these were followed through to the final stage of the complaints procedure: the issuing of an adjudication by the Council. 88 were successfully mediated and a further 96 were withdrawn by the complainant after receipt of the publication's formal response to the complaint. (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 (30 per cent) and imbalance - particularly the non-publication of letters to the editor - which accounts for 23 per cent of complaints. An area of complaint that continued to attract concern was the publication of confronting color pictures of scenes of tragedy or violence on front pages of newspapers. 13 per cent of complaints were about allegedly offensive material. Complaints about invasion of privacy by the media were, again, a minor component of the complaints received (around 5 per cent).

In his Foreword, Professor McKinnon discusses the extent to which the Australian press is a responsible press, arguing:

By the standards of British tabloids or some American newspapers it certainly is. Judged by the expectations of readers in 2002 the answer might be that more can be done.

After noting that the Council was seeking an improvement in press responsibility and was initiating a series of discussions with editors, Australia-wide, aimed at benchmarking publications' standards for dealing with complaints and seeking to ensure the suitability of its own procedures, Professor McKinnon added:

Another on-going conversation has been the degree to which newspapers fudge, innocently or deliberately, the fine line between news and comment. All sorts of reasons are advanced for the formerly clear separation becoming more blurred, ranging from the greater incidence of by-lines, to the necessity to compete with the style of television news. It is clear that strict recital of the facts may not always be enough. Even news items have to have context to be intelligible for readers. Keeping opinion to op-ed pages is difficult, but in the Council's view is a useful way to foster dialogue on matters of this kind as part of its pursuit of the delicate on-going responsibility of the Council to ensure higher print media standards.

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

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Copyright - moral rights

The Council's Policy Development Committee has considered several matters arising from recent amendments to the Copyright Act which give certain moral rights to copyright holders of artistic material. One of these is the right to attribution and another is the right to the integrity of the work.

The committee particularly considered a number of inquiries about, and attempts to use, the moral right to the integrity of a work to deal with the question of the editing of letters to the editor. In response to one such request for information the Council wrote:

... there is some debate on the extent to which [moral rights] can apply to newspaper contributors. First, the Act refers only to 'artistic works' in dealing with those works given the moral right to the integrity of the work. Secondly, the Act has two important caveats: there is a reasonableness defence - a newspaper could argue that the changes were reasonable in the circumstances - which would come back to a test very similar to the one applied by the Council [ie the changes, made for grammar or space reasons, to not alter the meaning or tenor of the letter]. Thirdly, the Act allows for the continuance of industry practices that pre-existed. It is an established practice in the print media that letter writers submit letters knowing they are subject to the discretion of the editor, both as to publication and as to editing. Again, it comes back to the same test as the Council's: was the editing fair?

In response to an attempt to use the legislation against a small community-based newsletter, the Council sought the advice of one of its Contributing Bodies which noted:

... the newspaper will have to rely on the 'reasonableness' test to justify sub-editing the letter. As long as the sub-editing did not alter the thrust or meaning of the letter, then it was reasonable for the editor to alter it for publication.

We ... take the view that the 'reasonableness' test does not give our newspapers the certainty they need to cut letters to size, improve grammar, etc. To counter this, most of our publications carry a copyright assignment notice which, in effect, transfers ownership of the letter to the newspaper.

For example, one newspaper today on page 12 carries a grey-tone box in the bottom right-hand corner. Among other information, it states: "Letters to the editor ... are submitted on the condition that [the company] as publisher of [the newspaper] may edit and has the right to, and license third parties to, reproduce in electronic form and communicate these letters." This disclaimer allows reasonable editing and bestows on [the company] the right to store the letters electronically and disseminate them to others by electronic means as well as in newsprint. Hence letters may be published on Websites, etc.

The Press Council endorsed the approach taken by this company and recommends that all publishers of print media take similar steps to ensure that they don't rely solely on a court agreeing that their actions were 'reasonable'.

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Financial services reform

Recent changes in the Corporations Act have widened the definition of 'financial services' covered by the legislation and mean that, where personal financial product advice is given by a journalist or by a publication, a licence may be required. Where the information given is a report, commentary or general financial product advice, there is a general media exemption from the need for licensing, provided the media organization or individual is subject to a code of practice or to the Council's Statement of Principles. The Council, having considered possible draft codes of practice and a recommendation from legal counsel, has decided that the best approach to the recent changes is to rely, in cases of reporting, commentary or general financial product advice, on the current Statement of Principles, particularly Principle 5 which mandates that commercial or other conflicts affecting a report need to be clearly disclosed. The Council also recommends that media organisations maintain a register of financial interests of journalists. Additionally, those publications and individuals that give personal financial product advice need to take their own counsel on the need for a licence under the legislation.

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Survey of complainants 2003

The Council previously surveyed a random sample of its complainants, and of the editors that dealt with it, in 1994 and published the results. It has resolved to undertake a similar exercise in 2003 and then continue the survey on an on-going basis. Early next year, the Council will seek responses to a survey on its complaints procedures and activities from a sample of the 2002 complainants and editors and, from then, will sample a number of complainants and editors at the closing of complaints. In this way, the Council will be undertaking a testing of its procedures on a continuous basis. The Executive Secretary and the Vice Chairman are currently drafting the questions for tabling in November.

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Reader-based lifestyle pubs

In September 2002, the Council revised its guideline on magazines which publish material in their readers' names. The revised guideline reads:

The Australian Press Council has received several complaints about magazines that use material supplied by readers and often ghost-written and 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 reader's name, a final draft should be supplied to the reader and its contents checked 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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New booklet

Last issue the Council noted changes in its objects and procedures. The Council has reprinted its information booklet and the new booklet is available from the Council office. It has also been posted to the Council's website (http://www.presscouncil.org.au/pcsite/public/booklet.html).

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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. On rare occasions, a Public Member of the Council will convene a face-to-face mediation, by agreement with the parties. Below are some examples of the matters recently settled in these ways.

• A weekly supplement to a metropolitan newspaper published inaccurate figures relating to road deaths in the United States. The complainant requested a correction of the inaccuracy. The paper published a correction in the next issue of the supplement.
   
• A metropolitan newspaper published a series of articles on a stalking case which the complainant believed to be inaccurate and imbalanced. The paper published a follow-up article, correcting any perceived imbalance.
   
• Another metropolitan newspaper ran an article on medical practitioners who were seropositive to HIV, Hepatitis B and C. The headline implied that these doctors were dangerous to their patients. A doctor, who is HIV seropositive, complained about the article, and the headline in particular. Due to privacy concerns, the doctor chose to remain anonymous. Through the Press Council, the parties were able to agree on an opinion piece written by the GP which gave the other side to the debate.
   
• A bylined columnist in a metropolitan newspaper wrote an item which was intended to be humorous. The humour was lost on the complainant, who was offended by the graphic details contained in the item. The complainant and the paper had a telephone discussion. The eventual outcome of the talks was a written, personal, apology from the bylined columnist to the complainant for the offence caused.
   
• An advertising feature in a regional daily contained in inaccurate statement as to consumer information. The complainant was unsuccessful in his attempts at having the statement rectified. The secretariat checked with the relevant department, which confirmed that the complainant was correct in his complaint. After contacting the paper, and it making its own enquiries, a clarification was immediately published.

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