The Press Council and Self-regulation

An edited version of a speech by the Council's Chairman, Professor Dennis Pearce, to a seminar on media self-regulation organised by the Centre for Media, Communications and Information Technology Law, Faculty of Law, University of Melbourne.

The Council receives complaints against all forms of print media, including magazines. The puplication concerned does not have to be owned by a member of the Council. The effect of this approach is that complaints are accepted against the ethnic media and also many small newsletter type publications. As long as they have a public circulation the Council will deal with them.

The Council has recently determined that it will accept complaints against the electronic version of newspapers. It has not made a decision about other material published on the internet by constituent members or general news sites on the Web.

The Australian Press Council is unusual among similar councils in accepting complaints from persons not immediately affected by an article. So complaints are accepted, for example, from persons who are concerned about the invasion of another person's privacy even though the person affected chooses not to complain.

The Council, unlike its UK equivalent, does not confine its activities to the resolution of complaints. The Council concerns itself with freedom of the press issues and makes representations on behalf of the press on an array of topics such as defamation, freedom of information, privacy, contempt of court and so on.

Principles for determining complaints

The Council has adopted a Statement of Principles against which it determines whether a complaint against a publication should be upheld. The statement contains a general enunciation of the concept of the freedom of the press, emphasising that it is the freedom of the people to be informed that underpins the concept. The statement then sets out a series of propositions, some of which are of an ethical nature, to which publications are expected to adhere. These principles are broadly stated and inevitably involve elements of judgment. The diverse membership of the Council with its combination of representatives of the public and of persons with newspaper experience is suited to the application of the general statements contained in the principles to particular cases.

Procedure

The emphasis is on informality and speed of resolution. Whenever possible an agreed outcome is sought. This can often be achieved by bringing the person concerned in touch with the newspaper. The Council has recently formalised its commitment to mediation between the publication and the complainant as a means of achieving an agreed outcome. Public Members in each State will provide a service to complainants and papers on request.

Papers that designate an officer other than the editor to deal with complainants provide the best avenue for the resolution of complaints. Editors tend to become too close to their product and are also too busy to give the time necessary to deal patiently with members of the public.

If a matter cannot be resolved informally through explanation from the Council's secretariat or contact with the paper either informally or through mediation, the matter will proceed to consideration by the Council itself if this is what the complainant wants. The procedure then followed is for the matter to be dealt with initially by the Council's Complaints Committee, a body on which there must be a majority of public members.

The parties are invited to attend before the Committee and many do. Complainants may be accompanied by a friend but not a lawyer. The paper is usually represented by its editor but the journalist who wrote the article in question often attends also.

The debates on complaints at the Council are vigorous and voting is unpredictable and not on representation lines. Public members will vote to reject complaints that industry members will wish to uphold and vice versa. The industry members bring an experience of the shopfloor to the discussion that can balance the expectations of persons unfamiliar with deadlines and the pressure of getting the paper out. They also bring an awareness of what professionalism requires of a journalist and his or her paper and often condemn a paper for inadequacy in its research or sloppiness in presentation. The public members bring a community perspective on what is fair for a newspaper to publish and what the public is entitled to expect from the press. The broad membership of the Council brings a greater range of perceptions on what is right and fair than a single person acting as a tribunal or an ombudsman could.

Powers and sanctions

Not being a statutory body, the Council cannot compel anyone to give it information. Nor is it resourced to the extent necessary to enable it to conduct investigations. The Council is thus dependent upon the parties to provide it with information. This, of course, is no different from a court or most tribunals although they can compel the provision of information and can call witnesses. Usually, however, they leave it to the parties to put their case together. There is no doubt, however, that the absence of an ability to call witnesses affects the outcome of a number of complaints because the Council is faced with competing assertions of events that it is in no position to pursue further.

The papers are under an obligation to publish the Council's adjudications involving them. They are permitted to add editorial comment. The Complaints Committee reviews the publication of adjudications each month to ensure that they are given appropriate prominence and are accurate.

The Council cannot, as it is requested to do by many complainants, direct the publication of an apology or another article. To give the Council this power is seen by the press as an invasion of press freedom. It would be telling the press what it must publish. The Council's sanction can best be described as a public shaming. Papers do not like to publish material that is critical of them. To have them admit to all their readers that they got something wrong is a more severe punishment than is often credited.

Independence

The degree of independence of a self-regulatory body is always a problematical issue. By its very definition, a self-regulatory body is going to have some connection with the industry that it regulates. The Council is dependent upon the newspaper industry for its funding. This has the great advantage that there is no part of taxpayers' money allocated to the support of the Council. On the other hand, the industry determines the size of the Council's budget. The Council is not generously funded but it is sufficiently funded to carry out its complaints resolution role. Greater funding might pay for an investigatory role for the Council but the absence of this has not meant that the Council cannot do its task.

Where paucity of funding does have an impact is on the Council's freedom of the press activities. The absence of research facilities curtails the capacity of the Council to provide this support for the industry. It is really up to the industry to determine the extent to which it wants the Council to play this role on its behalf. If it wants assistance in pursuit of projects such as reform of the laws of defamation or contempt of court it will have to pay for the work to be done.

The other way in which the issue of independence arises is in the membership of the Council. The publishers nominate 10 of the 21 members of the Council and there are 3 representatives of journalist/editors, chosen from persons not employed by a constituent member of the Council. The Council itself chooses the public members after advertisement. The only formal qualification required is for the person not to have a connection with the press. There are 7 public members (and the Chairman) at each meeting.

On the face of it, it would seem that the industry will always have the numbers in a showdown if it is assumed that the journalist members will vote with the nominees of the constituent members. In practice this does not happen because the issues considered by the Council provoke differences of opinion among all members. In the 2 years that I have chaired the Council, I do not recall an instance of a matter being resolved on "party lines".

The Council is a large decision-making body and the interests of its members are disparate. Even the industry members represent competitors. For this reason it is unlikely that there will be such commonality of interest as to lead to an inevitable outcome on a particular issue. The Press Council is a unique type of regulatory body because of its size. It presents a very different picture from other industry regulators. For this reason capture by the industry is much more difficult.

Benchmarks for assessment

The Minister for Customs and Consumer Affairs, Senator Ellison, in August 1997 issued what were termed Benchmarks for Industry-Based Customer Dispute Resolution Schemes. It is of value in the assessment of the Press Council to apply those benchmarks to it.

Accessibility: The scheme makes itself readily available to customers by promoting knowledge of its existence, being easy to use and having no cost barriers.

The Press Council makes continuing efforts to publicise its existence through notices in the papers and taking advantage of any other media opportunities that it can use to bring its existence to the attention of the public. It meets twice a year outside Sydney and stages a public seminar at these places. The Chairman is available for comment on press issues. It is very easy to use and costs nothing. Formality for making a complaint is minimal. Third parties may bring a complaint to the Council.

Independence: The decision-making process and administration of the scheme are independent from scheme members.

The Press Council is accused of being a lap-dog of the industry. This has not been my experience of its operation for the reasons set out above. No self-regulatory body can divorce itself entirely from the industry that established it. It is the essence of self-regulation that the industry funds it.

Fairness: The scheme produces decisions which are fair and seen to be fair by observing the principles of procedural fairness, by making decisions on the information before it and by having specific criteria upon which decisions are based.

The Press Council resolves most issues before it informally without proceeding to a formal decision. Where it considers a matter formally it has a publicly declared statement of principles against which decisions are made. Its procedures require the exchange between the parties of all information on which it relies. Complainants have an opportunity to appear before the Council in person. However, it must be acknowledged that this is a right that persons who are not living in the place where the Council is meeting may have difficulty exercising.

Accountability: The scheme publicly accounts for its operations by publishing its determinations and information about complaints and highlighting any systemic industry problems.

The Council's decisions are required to be published by the paper concerned. If the matter is of general interest other papers will also publish an adjudication. The Council itself issues an Annual Report that reproduces its decisions and includes a review of all its activities. The Council also publishes a quarterly newsletter that reproduces adjudications for that quarter. It also has a website where again adjudications are available. The News contains commentary on matters relating to the press.

Efficiency: The scheme operates efficiently by keeping track of complaints, ensuring complaints are dealt with by the appropriate process or forum and regularly reviewing its performance.

The speed of resolution of complaints (13 weeks on average for adjudicated complaints; much shorter time for those resolved informally) indicates that the Council is an efficient manager of complaints. It has publicly stated procedures laid down for the resolution of complaints. Its Complaints Committee each month reviews the newspapers' adherence to publication requirements. The Council has reviewed its performance by surveying complainants and earlier this year engaged in a full examination of the whole of its activities.

Effectiveness: The scheme is effective by having appropriate and comprehensive terms of reference and periodic independent reviews of its performance.

The Council has detailed procedural guides and a statement of the principles against which complaints are judged. It has not used external reviewers but it has subjected its activities to scrutiny and made many changes as a result.

Alternative mechanisms

A useful way of determining the effectiveness of the Council is to examine other methods of dealing with complaints against the press. Existing mechanisms are the courts through an action for defamation, privacy commissioners and the judiciary committee of the MEAA. Mechanisms that could be created are a Press Ombudsman or a Press Complaints Tribunal.

The Press Council does not see itself as a complement to the judicial system but an alternative. A person cannot come to the Council unless he or she is prepared to waive all rights to bring an action in court against the publication concerned. Court actions are slow and expensive.

State Privacy Commissioners, where they exist, receive complaints against the press for invasion of privacy. In its last two annual reports, the NSW Privacy Committee has noted that complaints against the press were 2% and 1% of the total.

The Press Council deals with complaints against newspapers. If a complaint involves the conduct of a journalist, the complainant is referred to the MEAA. That body deals with complaints against members of the union based on a code of ethics that is similar to the Press Council's Statement of Principles.

It would be possible to establish a position of Press Ombudsman along the lines of the office that deals with complaints against the banks or telephone companies. The Banking Ombudsman is similar to the Press Council in that it is established by the banks and is funded by them. There is a single officer with a support staff. The Ombudsman can make monetary findings against a bank against which a complaint has been made. The enforceability of this is dependent upon the bank adhering to its contractual obligation with the Ombudsman.

The Telecommunications Ombudsman is a statutory body whose power is, like other government ombudsmen, to make recommendations to the company concerned. Enforcement is achieved through persuasion.

It can be seen that the Press Council closely resembles the Banking Ombudsman but with two significant differences. First, the rulings of the Council are not made by one officer but are the product of the collective view of the Council of 21. The second difference is that the Banking Ombudsman can make a compensatory order.

If it were thought necessary to invest the Council with a compulsory power to publish an apology or a correction of some kind it would have to be achieved through legislation. This issue can be considered in the context of the establishment of a Press Complaints Tribunal.

If a government wishes to establish a tribunal to deal with complaints against the press, it would have to confront a number of issues, chief of which would be funding and ensuring the cooperation of the press. Questions of standing to lodge complaints, appearance before the tribunal, representation, admission of evidence, calling of witnesses and so on would also have to be faced. This would place constraints on a complainant that the informality and flexibility of the Council's procedures avoids. Undoubtedly, the press would challenge attempts by a tribunal to compel it to publish material to which it objected.

There is always a danger that a government-established tribunal will be influenced in its decision-making by the fact that it owes its existence to the government. Securing reappointment and ensuring continuance of funding are factors that can affect the decisions of a body that is likely to be concerned with complaints by governments unhappy with their coverage in the press. Politicians regularly criticise the reporting of their activities by the press. It is only a small remove from that criticism being converted to action if there is available to the government a body that has power to control what is said in the papers.

A tribunal also has the problem alluded to above in relation to the appointment of an ombudsman that one person becomes the judge of what it is right for the press to publish. As suggested there, the Council brings a diversity of opinion to what is a very complex issue.

Conclusion

I suggest that this outline of the workings of the Press Council and the brief survey of alternative mechanisms indicates that, while the Council may have limitations, it is the best option available for dealing with complaints against the press when viewed both from the viewpoint of the public and the preservation of freedom of the press.

DENNIS PEARCE

A copy of the complete speech is available from the Council.

see also
Index of Dennis Pearce's material on the website

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