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Human writes

Media regulation debate clouded by appeals to simplistic notions of free speech

Gosh. In the last year the media has been dominated by … the media. We’ve had the furore over Andrew Bolt and racial vilification law, the Finkelstein inquiry (and, less prominently, the Convergence Review), and now ructions at our two main newspaper stables, especially Fairfax. Internationally, we have seen the fall from grace of News International in the UK, with the hacking scandal, the charging of senior News figures like Rebekah Brooks and Andy Coulson, and the ongoing Leveson inquiry.

One issue which has arisen again and again is the issue of free speech. While few have defended phone hacking (though there are exceptions), many claim that the prospect of greater accountability for the press poses a grave threat to freedom of expression.

The free speech/media debate may be split into two categories: one concerning regulation of media content, and the other, which has become more prominent after Gina Rinehart’s raid on Fairfax shares, relating to regulation of media owners. The two issues are however related. Concerns over media content in Australia have been accentuated because of a concern over a perceived lack of diversity due to concentrated ownership. For example, criticism of News Ltd content has been driven by the perception of an owner-driven culture of conservative bias in that content.

Freedom of speech is of course a crucial human right. But it is not unlimited: clearly one cannot falsely yell “fire” in a crowded theatre. Regulation of the media can accord with human rights: overregulation does not.

The Institute of Public Affairs [IPA] has been one of the loudest advocates of free speech arguments against media regulation. Yet its version of “freedom” is solely focused on freedom from the government. For example, IPA boss John Roskam has stated:

A free media means neither the government nor government-appointed censors can tell the media what it can do. And a free media means politicians don’t decide who gets to own newspapers.

But human rights are not only about freedom. They are also about fairness and equal opportunity. And while human rights are most obviously about constraining government power, an increasingly recognised aspect of human rights is its role in constraining private power. “Free speech” is relevant not only to media freedom from overly intrusive government regulation but also to protection of journalistic freedom against overly intrusive private owners and editorial diktats. If the latter is omitted from the equation, media outlets can become mere mouthpieces for the very loud exercise of “free speech” by powerful people drowning out alternative interests and views. Especially those of the poor and powerless, who tend not to own many media sites.

A good example of how powerful private interests can abuse free speech in order to dominate agendas is in the US. In 2010, the US Supreme Court ruled in the (in)famous Citizens United case that “political spending” was an exercise of free speech, striking down long-standing caps on corporate (and union) spending in federal elections. The decision has unleashed the so-called Super PACs who are spending truly obscene amounts of money to influence the 2012 vote. US politics is completing its transformation from a battle of ideas into a battle of money.

The IPA’s Research Fellow Chris Berg recently dismissed the UK’s Leveson Inquiry as a farce because it was daring to investigate linkages between UK politicians and the media. Is he really saying that the prospect (or extent) of disproportionate influence over government power by media moguls should simply be accepted as “normal”? After all, former Minister Tessa Jowell stated that Britain’s Labor Party became addicted to courting media barons like “crack cocaine”. Surely such sentiments give rise to concerns over perversion of the democratic process.

Of course, the argument can be made that “the market” is an adequate mechanism to ensure that quality media content in the private sector prevails. However, polls indicate that consumer levels of trust in the Australian media, apart from the ABC, is low and has been for some time. Yet it isn’t obvious that the media has responded to that reality in any meaningful way. Further, the market has not ensured access to a plurality of opinion reflecting Australia’s true diversity in the mainstream media. Australia currently faces the prospect of having all major newspapers controlled by either Murdoch (reportedly already at 70%) or Rinehart: right and righter.

I acknowledge that the appropriate retooling of media regulation is not easy to devise. It is important to avert the danger of regulation morphing into overregulation, and killing off the golden goose of a free press. In this regard I note the alarming solution adopted in Hungary, which has introduced draconian legislation under which journalists face crippling fines if their coverage is deemed too “unbalanced”.

Nevertheless, the shrill reaction to the notion of increased media accountability based on simplistic appeals to free speech should not be the end of the regulation conversation.

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