Submission from the Australian Press Council to the Department of Health and Ageing on its Review of the Tobacco Advertising Prohibition Act 1992.

31 October 2003

The Australian Press Council is an independent body of publishers, editors, journalists and members of the public which oversights the freedom and the responsibility of the Australian print media. The Council acts as the self-regulatory body for the print media. Its objects include the promotion of freedom of speech through responsible and independent print media, and adherence to high journalistic and editorial standards, by, amongst other things:

Keeping under review, and where appropriate, challenging political, legislative, commercial or other developments which may adversely affect the dissemination of information of public interest, and may consequently threaten the public's right to know.

The Council's principal concern

The Council is concerned with the third particular term of reference (the extent and impact of media reporting and portrayal of smoking in the media) and views with dismay the Review's attempts to widen the definition of 'advertising' to encompass material that it neither advertising nor promotional. The paper fails to recognise that there is a distinction between advertising and editorial content. It seeks to intrude into the reporting of, and commentary on, matters of public interest and concern, while purportedly dealing with advertising.

The Act as it stands concerns advertising, and not the editorial content of the press. In all the print media, the two functions are clearly separated. The Press Council has issued statements about the confusion between them, condemning advertising disguised as editorial. Most print media respect the distinction between advertising and editorial content but the Review appears to conflate the two, seeking to intrude into the reporting and commentary role of the press. The Council would regard any such attempts at expanding the Act's remit as an unnecessary and dangerous restriction on the traditional freedom of the Australian press to publish matters of public interest and concern, for the information of their readers.

Free speech implications

The implications for free speech implicit in the Act, and likely to arise from any changes to the current regime which may adversely impact on the media's ability to report and comment on issues are not addressed in the August 2003 Issues Paper. In regard to the implications for free speech, the Council draws attention to the 1996 decision of the Canadian Supreme Court in which the majority found that analogous legislation did not meet the constitutional requirements of that country. The court argued that, in any such legislative regime, there needs to be a rational connection between objects of such a regime and any advertising bans established, and a minimum impairment of free speech. The court asked, and the Canadian government was unable, or unwilling, to provide a response to, a question which the Council also raises: are there alternates to advertising bans in the effort to achieve the laudable objects of limiting the exposure of the public to messages and material that might persuade them to start, or continue, smoking and to improve public health by reducing the incidence of use of tobacco products? Like the Canadian government, the Issues Paper does not address this question.

Data on effectiveness

Nor does the Issues Paper provide any data on effectiveness of advertising bans. It cites one study - internationally 1970 to 1992 - which concludes in the year the Act was passed, but no study from Australia since 1992. In the Canadian Supreme Court case referred to above, the government spoke of a study but it was not produced in court. The Issues Paper also cites two articles from the US on the link of advertising to smoking but no empirical evidence for the effectiveness of advertising bans is produced. In the absence of such data, it is difficult to comment on the effectiveness of the current regime, let alone to comment meaningfully on proposed changes to the regime.

The Advisory Panel

The Council notes an apparent imbalance in the Advisory Panel. There is no person with expertise in the print media, even though the third specific term of reference referred to above would seem to directly impact on the press. (The overview asserts that there is expertise on the broadcast media on the Panel but the Council could not see to whom this referred.) There appears to be a preponderance of those already committed to one position on smoking, through their activities and affiliations, and the Council is concerned that the Panel, as established, might be predisposed to a particular view on the Act.

Terms of reference

The Council notes that there is no question raised in the terms of reference about the effectiveness of advertising bans. This seems to assume, to an extent, the outcome of the Review. For example, a question to be addressed might be: has cigarette consumption or take up rates fallen in Australia since 1992? Equally, the Review might address the question raised by the assertion that tobacco advertising is about brand differentiation, not about recruitment of new smokers: have the relative market shares of brands changed in Australia since 1992? Rather the questions raised appear to reflect only the possibility of expanding the Act's remit and removing existing defences.

The Issues Paper

The Council notes a number of assertions in the paper, made without examples being provided. For example, in an area which may have relevance to any attempt to expand the remit of the Act into reporting, not advertising, the paper asserts: "The Department has received an increasing number of complaints relating to incidental tobacco advertising in recent years". From whom has it received such complaints? And about what aspects of advertising?

Additionally, the Council notes the attempts in the paper to widen of the definition of "advertising". It reiterates the comments made above in respect to such attempts. In particular, it would argue that images of smoking, published in the press as a part of its reporting of, and commentary on, matters of public interest, are not necessarily promotional. The press has an obligation to present the world as it is, not as we might wish it to be. Unnecessary censorship of images or reports would restrict further the ability of the press to inform its readers on matters of concern to them.

Conclusions

The Press Council submits that

1. No recommendation for change be made which would have the effect of widening the Act's remit from advertising into areas of editorial content;
    
2. An Advisory Panel more representative of the wider community, including representatives of the print and broadcast media, be appointed; and
    
3. Given that the government seems willing to ban advertising but not smoking, and there are some implications for free speech in the current regime, and additional implications in any further restrictions on tobacco promotion, any review needs to be detailed, well-argued and replete with examples. The benefits, if any, of the current regime need to be demonstrated, not assumed. The benefits of a further tightening of the current regime, and the elimination of extant defences, need also to be more strongly demonstrated.

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