Be careful what you ask for: ACMA’s bid for more power

The media regulator ACMA has been able to do little about breaches to the broadcasting guidelines, and is calling for greater mid-strength powers. AAP/Tracey Nearmy

A media super-regulator, bigger and bolder than anything considered by the ALP? Or just an ambitious government agency engaged in street theatre as the Coalition slashes the public service? Those are questions for anyone reading the upbeat annual report from the Australian Communications and Media Authority (ACMA).

The Finkelstein report into media regulation is dead. It is unlikely to be disinterred as long as Murdoch’s media group keeps cheerleading about ‘The Australian Century’ and a mining magnate doesn’t buy influence by swallowing Fairfax or APN.

It is also unlikely to be disinterred while we continue to ignore the governance failures highlighted in the current trial of senior Murdoch executive Rebekah Brooks.

What does that mean for print and the electronic media?

It’s a question worth asking as the Australian Law Reform Commission explores remedies for the sort of abuses that killed off the News of the World.

It’s also worth asking because although the Press Council – no power, no enthusiasm, few resources – has stopped lamenting its weakness in dealing with the print giants that regulatory incapacity remains.

The Council is a non-government body, one that can’t be expected to discipline its parents. The Australian Communications & Media Authority (ACMA) is somewhat different. It’s a government agency that has power under national broadcast and telecommunications law. ACMA wants more power, much more, as it indicates in its annual report.

ACMA has been significantly more activist in dealing with online privacy problems than the Office of the Australian Information Commissioner. However, there are questions about its regulation of the commercial broadcasters. Do weaknesses in the law mean that regulation is a matter of soft touch rather than co-regulatory light touch. Should we be strengthening ACMA’s powers? Would ACMA use its authority?

In theory, ACMA has the regulator’s ultimate power. It can shut down a station or network. In practice the commercial broadcasters know it is not going to use the regulatory equivalent of the H Bomb. They have a commercial incentive to disregard criticisms by ACMA and to contest penalties imposed by the regulator.

They also have a corporate culture that emphasises going right up to the line – and beyond – and offering apology afterwards. Expressions of remorse are useless because figures who have been recurrently condemned for misbehaviour stay on the air. Incidents such as the Cash For Comments Affair – and Alan Jones’ egregious comments about Julia Gillard – demonstrate that golden tonsils are more important than contrition.

In its latest annual report ACMA refers to the need for “more flexible responses” to broadcasters. Those responses appear to include scope for deterring misbehaviour through imposition of stronger penalties – some strategic bombing rather than mutually assured destruction.

More broadly, ACMA refers to:

…the logic of bringing together all the various elements of media and communications under the umbrella of a single regulatory agency that can deliver timely, “fit-for-purpose” outcomes – a body with a broad remit, empowered with a scalable set of powers and a culture that allows it to operate flexibly in a range of modes and pervasive relationships. The ACMA stands ready to meet that challenge.

One response is to ask whether ACMA would use its powers. ACMA is good at image management and has continually indicated that it’s getting serious. But despite protestations in 2010 that ACMA was “nailing its colours to the mast” there’s been little action. That might be because ACMA’s experienced regulatory capture (it views its function through the eyes of the businesses it regulates) rather than because it has too few powers.

Another question is whether errant broadcasters would respond rather than factoring penalties into their cost of business, out-litigating the regulator or simply lobbying political parties that have respected shock jocks more than voters?

An underlying question, one that won’t be answered under the current government, is where does co-regulation fit into a brave new world of a super-ACMA?

ACMA is a result of a compromise, with the commercial broadcasters having considerable autonomy under industry codes of practice.

That’s the dominant model in much Australian regulation of business, with law essentially authorising private rules that developed by commercial entities and that pose substantive risks of regulatory capture.

The broadcasters are unlikely to welcome an amended regime that gives more power to an activist ACMA, that tightens up the permissive industry codes or requires broadcasters to take complaints seriously. Print publishers – online and offline – are going to be even more reluctant to applaud ACMA’s hubris. Consumer advocates will also be sceptical.

We might wonder whether ACMA’s call for a different regime is in essence a sort of street theatre, a bureaucratic ambit claim. Its executives know that they’re not going to be given what they ask for. They know that industry is aware of that likelihood. Imperial ambitions are useful under a government that’s busy cutting the public sector – threatened agencies bolster their position by taking on responsibility.

ACMA might be frightened and embarrassed if its ambitions come true. Consumers and small digital businesses should rightly be even more frightened.