Thoughts on the Finkelstein report

Today the Finkelstein Independent Media Inquiry reported. Here are some quick thoughts.

The report includes a section titled “Whatever the rational, free speech is not absolute” (2.47). Rather irritatingly Finkelstein repeatedly quotes Oliver Wendell Holmes;

Hence there are laws which prohibit incitement to murder, ‘falsely shouting fire in a theatre and causing a panic’, libel, misrepresentation, conspiracy, obscenity, perjury, hate speech and other publications. They will be examined in more detail in a later section. At this point it is only necessary to observe that these laws are instances where it has been thought that the harm caused by the targeted speech justifies its regulation, notwithstanding the risk of harm to democracy.

‘Falsely shouting fire in a theatre’ comes from Schenck v. United States, a case that found a US citizen did not have the freedom to express opinions against the draft during World War I. Schenck served six months in prison for expressing his anti-war opinions. Hardly a fantastic example of appropriate censorship.

Yes, a nitpick, but a valid one!

The report (which admittedly I’m flicking through) provides an enormous amount of background on media law, the privileges and responsibilities of the fourth estate, the history; this content is an interesting work in its own right.

The section on defamation (5.90) points out that it’s very hard for a litigant to obtain a net monetary benefit; from 5.108:

In a recent Victorian case, Mark French, a professional cyclist sued the publisher of the Herald Sun over an article published six years earlier that suggested Mr French was a drug cheat[1]. The trial lasted six days. Mr French was awarded $175 000 in damages and the publishers were ordered to pay his legal costs. Mr French has paid $893 000 in costs. If he recovers two-thirds of those costs, Mr French, a successful litigant, will be out-of-pocket by more than $100 000.

This reinforces my opinion the defamation is a legal option only available to the rich. To defend a defamation suit also requires immense resources – so in one way it’s quite a beneficial arrangement for the bigger media players; smaller competitors are much more likely to be crushed by this exposure.

The report often betrays a view of the internet as a novel new way of distributing newspaper pages. As an example, here’s 11.13 on online publications;

In addition, there are special problems with online publications. The internet is a medium by which almost anybody can publish their views and is a medium which is largely unmanaged and uncontrolled. If there is to be continued regulation of the print media it would be inappropriate to apply two different standards to material they publish both online and offline or to apply different treatment to their online competitors.

I find fault with the assertion that “online competitors” to the online content of print media must be subject to a common regulatory framework. As the paragraph says – anybody can publish their views. The online space is open to a more rapid discourse with much broader participation. The resources and processes behind news blogs are vastly different to those behind the Sydney Morning Herald. Additionally a blog’s expected readership (often simply one’s acquaintances) is subject to unexpected variation.

The report goes on to argue that self-regulation has failed, and calls for the establishment of a statutory and independent body, the “News Media Council” (NMC) with the role of “promoting the highest ethical and professional standards of journalism.” It would achieve this (section 11.56) by:

  • preparing and reviewing standards of conduct
  • investigating and resolving alleged contraventions of the standards whether on complaint or by own motion
  • at regular intervals preparing or commissioning a report on the state of the news media in Australia;
  • educating the news media about the content of the standards
  • educating the public about the standards and about the existence and role of the News Media Council.

Some time is spent discussing who should be subject to the NMC. This can be summarised as “any publisher, in any medium” whose activities are regular and significantly involve the public dissemination of “news, information and opinion of current value”.

This seems reasonable, but unfortunately the report goes on to suggest that bloggers are not in the “lonely pamphleteer tradition”, and any online publisher receiving 15,000 hits in an annum should be subject to the NMC. I’m left wondering how there is to be a central record of website hits! Practicality of this metric aside, the suggested cut off comes to 40 hits per day. If you’ve got a regular blog with news content, and you tweet your posts to a few hundred twitter followers, you’ll be subject to the NMC.

Here we come to the stick. Complaints received by the NMC are first addressed informally, through discussions with the involved outlet. If that fails, the complaint goes before a panel. The panel would be able to compel attendance and require production of documents, but will respect journalistic privilege.

If the complaint is upheld, the NMC would have the power (11..74):

  • To require publication of a correction.
  • To require withdrawal of a particular article from continued publication (via the internet or otherwise).
  • To require a media outlet to publish a reply by a complainant or other relevant person.
  • To require publication of the News Media Council’s decision or determination;
  • To direct when and where publications should appear.

On the second point – it is not in practise possible to remove something from the internet, particularly once it has been of enough interest to generate a complaint to a statutory body! Removing the document from the publishing website seems futile in an environment where offshore, publicly accessible archives of web sites are available – eg. the way-back machine. Pretending that document removal is possible (and thus a remedy with merit) is a mistake.

Section 11.70 is interesting; when complaining to the NMC:

“A complainant should be required to waive any possible future action they might have arising out of the grievance.”

Unfortunately those with the resources to launch a defamation suit can still do so, and will simply ignore the NMC. So this requirement has the effect of reinforcing the reality of defamation as a legal protection exclusively for the rich.

To the extent that the recommendations of the report affect print media and their online activities it is possible they will do some good. I’m not sure that the provided remedies (such as right-of-reply, or publication of a correction) would offset the damage done to an individual by an attack from a large media organisation.

Given power over small online publishers, the NMC would be a body prone to abuse. Consider the publisher of a minor political blog; the NMC provides an extremely cheap means for malicious persons to launch vexatious complaints.

The time a blogger would spend defending a complaint to the NMC could easily be far in excess of that spent authoring the content. It is not hard to imagine that after the hassle of an NMC complaint, an author who was writing in their free time and without financial motivation would stop writing.

The Finkelstein report has made the mistake of focussing on the regulation of a declining print media, viewing online publication solely as an extension of print. As the report itself mentions, any decline in quality has some origin in the failure of the print/broadcast business model. I’d add that we’re seeing increasingly polarised coverage as publications attempt to secure the custom of smaller, more politically unified and fervent communities of readers.

A more nuanced view of online publication was required and unfortunately was missing. Subjecting smaller publishers to a body such as the NMC might be a fair trade for a shield from financially crippling defamation litigation, but unfortunately the repressive effect of defamation law on free speech and the emerging online press was largely ignored by the inquiry.

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