16 March 2012

Will Ray Finkelstein's statutory "News Media Council" enable a totalitarian state?

"The fight for freedom begins with free speech"
Aung San Suu Kyi, The Observer, Sunday 11 March 2012

Aung San Suu Kyi was not saying this specifically in response to the report published 11 days earlier by the Honourable Ray Finkelstein QC on 28 February 2012 of his "Independent Inquiry into the Media and Media Regulation", but she could have been. Mr Finkelstein says in his report to the Australian Federal Labor government, who commissioned it, the following:

11.44 To rectify existing and emerging weaknesses in the current regulatory structures it is recommended that there be established an independent statutory body which may be called the "News Media Council", to oversee the enforcement of standards of the news media. ...

11.55 The News Media Council requires clearly defined functions. It is not recommended that one of them be the promotion of free speech. There are other ample bodies and persons in the community who do that more than adequately. ...
                  [bolding added by me]

What "ample bodies" would they be Ray? How would any such freely formed voluntary bodies compete with a statutory authority Ray? Are you suggesting they defy the News Media Council's rulings to promote free speech? Are you suggesting that speech coerced by a government body would be free speech?

I didn't think the Australian Federal Labor Government's opportunistic "Inquiry into the Media and Media Regulation in Australia" would be anything more than an irritating bye-product of a government under pressure looking for an easy media distraction from its then prevailing political woes.  The ostensible reason proffered by the ALP government for this enquiry was the moral frenzy over revelations of illegal phone hacking of private citizens by journalists on the other side of the planet in the United Kingdom. This was seized on as an opportunity to stick it to the publishers of what the government perceived as tiresome and unjustified criticism of it in the News Limited media in Australia (principally awkward speculation of internal ALP rumblings of a possible Rudd leadership challenge to the PM). Threatening such media organisations with a Leveson-like media enquiry was itself, at the time, a reprehensible misuse of government power, but surely any such  politically motivated enquiry would not be so reckless as to go on to make substantive recommendations to increase government power at the expense of freedom of speech in Australia? Nah, Mr Finkelstein QC has taken the opportunity to release a 474 page report with substantive recommendations that seriously imperil free speech in Australia.

Many other journalists and media commentators on all sides of politics have already contributed to an outcry by citizens around the world  defending free speech in Australia from this egregious attack by an Australian Labor Government commissioned enquiry. Apparently this government felt so threatened by criticism in the press and robust debate that it felt it as OK to muzzle free speech with a trumped up enquiry that has produced this result.

Mr. Finkelstein has also recommended a statutorily mandated "right of reply".

9.49   An enforceable right of reply is a desirable reform for the media. There are no significant moral or policy objections to such a right ...

Oh yes there are significant moral and policy objections to such a right Mr Finkelstein.  Not the least of which is that the modern world affords more avenues than ever before to express oneself and publish those expressions other than in a publication you disagree with. If someone publishes something you disagree with, you can now publish yourself. For instance, I disagree with Mr Finkelstein's recommendations. I do not call on him to publish my contrary views in an addendum to his report.  To compel others under pain of government sanction to publish a view for you is an act of the totalitarian thought police.

John Stuart Mill's classic and enduringly relevant 1859 treatise "On Liberty" established the modern philosophic and moral baseline for freedom of expression in Western civilization, and with the clear understanding that such a freedom is not absolute. It is understood that this freedom must always be tempered to a tolerable degree by the "harm principle", that one's speech must not actually harm others. There is clearly much debate on where the line is to be drawn, but freedom is the starting point. Mr Finkelstein seems to think that the starting point is that freedom of speech is a privileged afforded to citizens by a gracious government on conditions that the government imposes.

It is also seems less than evenhanded and unbalanced of Mr Finkelstein to suggest that a justification for having such a News Media Council and an enforceable right of reply, is the risk of defamation to person's reputations from media publications. Each of our States and Territories already have longstanding laws protecting people's reputations from defamation by media publications. Whether these laws are adequate and appropriate is always a matter for debate. But this was not an enquiry into the adequacy of current defamation and libel laws. There have been many previous such enquiries which were better equipped to deal with and focus on such law reform issues than Mr Finkelstein's media enquiry. To conflate defamation law reform with media regulation, as Mr Finkelstein appears to have done in his taxpayer funded enquiry, only demonstrates the dangers that can befall a free society that permits a government appointed official to determine the powers of government appointed officials.

Democracy is necessarily messy and noisy. Freedom of speech is not, cannot and should not be guaranteed in any one expression of speech, but in the protection of the right of any person to say or defend their views across a variety of media and time frames. The notion of "balance" is misconceived in the context of just one expression of speech. To assert that one expression of speech should be "balanced" erroneously assumes the patently false position that there is, for any one view expressed, an opposite view that for fairness sake must also be expressed. This willfully ignores both that in most instances of the expression of a view there are multiple other different views from multiple other perspectives, not simply one opposite view, and that such an opposite view may itself be unfair and irrelevant to the view expressed. To mandate "balance" in any one given expression of speech is to compel speech in an other that the person expressing it may not believe in or want to express. This is coercion, not freedom.

I have many other beefs with Mr Finkelstein's 474 pager, including that here in Australia we do not have any clear constitutional protections for freedom of speech, unlike in the USA. In such circumstances, to assert, as Mr Finkelstein does, that freedom of speech can "more than amply" be promoted by persons other than the statutory body that he recommends be set up to regulate media speech, is to leave freedom of speech at the mercy of that body.

The establishment of a statutory "News Media Council" as recommended by Mr Finkelstein is a dangerous and unnecessary attack on the freedoms of the citizens of Australia. The recommendations appear to be capable of being used to constrain criticism of government and control speech by corercive edicts from a government body. Those recommendations should not be implemented.

The fight for freedom begins with free speech


Lau Guerreiro said...

I’m afraid I disagree with a lot of what you said. I think a lot of it is based on ancient flawed logic that dates back even before John Stuart Mill to John Milton, the original champion of Freedom Of the Press. A lot of it has become an ideological sacred cow that is repeated and repeated and very rarely examined for veracity.

I’ve written a couple of articles exposing the logical flaws in these ancient and outdated arguments which are the main attack weapons of those who oppose sensible media regulation.

The first one is titled "Freedom of the press argument is deceitful" and debunks the argument that says that the public is smart enough to identify biased and untruthful media for themselves and that therefore we don’t need any regulation.

Here’s a summary of the second post titled "What's better than freedom of the press?"

Many of the opponents of media regulation will blindly hold aloft the sacred cow of the freedom of the press as if it's an indisputable truth that can not be surpassed by anything else.

Well I dispute its importance.

Freedom of the press is not the essential ingredient that ensures a well functioning democracy - its truth in media that's most important...

Freedom of the press may or may not lead to a diversity of opinion, and a diversity of opinion may or may not lead to the truth being made public.

What's important for society and democracy is that the truth is made public; and if we could get to the truth via another path other than through freedom of media and diversity then we should be prepared to take that path, rather than to keep holding aloft the sacred cow of freedom of the press.

Freedom of the press is a means of getting to the desired goal – it is not the desired goal – but some people have made it so.

Truth is the goal.

Sometimes freedom will lead to truth but sometimes it won't... its not the freedom we seek ... its the truth we seek!

If we make this paradigm shift then the debate will become very different.

In addition to these two flawed arguments there are many more flawed arguments in common use by anti regulation champions and I’m in the process of writing articles about them, but for now I’d be interested to hear what you think of the counterarguments I put forward in the couple of blog posts related to this subject on my blog www.amimakingsense.com.au .

Am I making sense in those posts or am I talking complete rubbish?


JCP said...

Oh, for goodness sake. You have no idea about media regulation in Australia. The fact is the Press Council is a toothless tiger and is controlled by the media outlets, 70% of which are owned by Murdoch.

If you support truth and justice, you might also want to consider accountability, because there is NO accountability under this system.

All Finkelstein has recommended is that a body of professionals (journalists) ensure prominent corrections are published. This body would be independent and set up under a statute.

As Lau says, truth is the goal and it is not being served in Australia by a highly concentrated market.