One of the fundamental themes that runs through a study of media law is freedom of speech. Ultimately, any law that affects the media – whether it is defamation law, or copyright, or censorship – restricts freedom of speech in one way or another. While the knee-jerk reaction is to decry any fetter on unlimited freedom of speech, there is clearly a delicate balance to be achieved in allowing the kind of free expression vital for a democratic society as well as protecting legitimate social interests. As Ruth puts it,
The media in Australia are largely self-regulated, that is to say, rather than being under the control of centralised government regulation, the media industries are responsible – to various degrees - for formulating and enforcing their own codes of conduct. Is this enough to protect the public interest? Should the government, less beholden to the commercial interests of the media industries step in and regulate the media? Or, conversely, in a free marketplace where news, entertainment and the public’s attention can be seen as commodities, should it be necessary at all to regulate the media?
This discussion will examine the regulation of the media in Australia by contrasting three formats of media with differing regulatory schemes; the broadcasting media, specifically television and radio, print media, specifically newspapers, and the internet. It will discuss what is meant by ‘the public interest’, analyse the current regulatory frameworks that exist for broadcasting, print and internet media, and then examine the general value of regulation and its implications for the freedom of speech and protection of the public interest.
THE PUBLIC INTEREST
There are two basic arguments for the regulation of the media in the public’s interest. The first is the ‘natural resource’ argument, outlined by Butler and Rodrick:
Likewise, Turner and Cunningham argue that
An even more fundamental justification for the regulation of the media on public interest grounds is based on the profound influence that the media has on society. TV stations and newspapers may be operating in a commercial environment, but they nonetheless exercise an authority and responsibility in shaping public opinion and consciousness that is far beyond the scope of many commercial enterprises. Turner and Cunningham describe the media as being
Hitchens echoes these observations:
Clearly, then, there is a significant amount of public interest tied up with the media. In order to examine whether the current regulatory frameworks for various media adequately protect this interest, it will be necessary to consider the frameworks themselves.
Commonwealth Parliament is empowered to make laws concerning ‘postal, telegraphic, telephonic and other like services’ under s 51(v) of the Commonwealth Constitution. Under the Broadcasting Services Act (BSA), a broadcasting service is defined as
Hitchens writes: ‘Because of their wide availability and ease of accessibility, broadcasting services are perceived to be the most influential and, hence, are subject to the highest degree of regulation.’ The BSA recognises the substantial degree of influence of television and radio media, and uses this as the primary justification for their regulation. The BSA is the primary form of regulatory legislation for the broadcasting industry. Two other important Acts include the Australian Broadcasting Corporation Act and the Special Broadcasting Service Act, both of which establish and regulate the Australian Broadcasting Corporation and the Special Broadcasting Service.
The Australian Broadcasting Authority (ABA), established by the BSA, acts as an administrator and enforcer of the Act, which includes the granting of broadcasting licenses. However, the BSA and the ABA do not act as a form of centralised government regulation of the broadcasting industry, but rather a framework by which media are expected to establish their own codes of conduct, and the government provides the legislative means for enforcement. A Productivity Commission inquiry into broadcasting, the BSA and the ABA found that the code of practice system ‘was more indicative of a self-regulatory scheme.’ 
Australia has been described by Higgs as being a ‘pioneer of the industry self regulation approach.’ The way in which the co/self-regulatory regime is designed to work under the BSA is as follows:
The codes of conduct developed by the industry groups must be cognisant of twelve matters outlined by the BSA in s 261. These matters concern:
The primary commercial television code of practice is the Federation of Australian Commercial Television Stations (FACTS) Code, and radio code is the Federation of Australian Radio Broadcasters (FARB) Code, both of which address many of the matters outlined in the BSA.
According to the ABA,
Therefore, the ABA ultimately retains a certain amount of authority in approving broadcasting licenses, approving and registering codes of practice and in extreme cases of code of practice breach, suspending or cancelling licenses. However, the regime clearly emphasises self-regulation.
How is the print media regulated? While the government has the constitutional authority to regulate broadcasting media, it wields a lesser degree of power over the print media on a constitutional basis – specifically through the international and interstate trade and corporate affairs powers. The print media are also liable under general laws covering intellectual property, defamation and contempt. For the purposes of this discussion, the various state Acts that deal with registration of printers and imprints on publications - essentially vestiges of laws ‘... passed to help repress dissent in England around the time of the French Revolution’ are only relevant in that they illustrate the extent to which the print media are left unregulated by the government. However, according to Armstrong, over the last couple of decades, the trend has been towards a greater degree of self-regulation:
Since, as a private body, it has no legal power whatsoever, The Australian Press Council perhaps epitomises media self-regulation. Founded in 1976, and funded by the majority of major Australian newspaper and magazine publishers, the members of the Council include several newspaper representatives, journalists, editorial members, public representatives and an independent chairperson. The Council works firstly to maintain a standard of ethical and responsible behaviour amongst the press as well as the level of free speech that the press has enjoyed. It also functions as a dispute resolution and disciplinary body when standards are breached. These standards are outlined in the Council’s Statement of Principles which focusses on:
The overriding principle which guides the Statement of Principles, like the BSA, is the public interest:
The Council’s method of dealing with complaints resembles that of the ABA. Individuals are required to first contact the publication to inform them of their complaint. If the publication does not satisfactorily address and resolve the complaint, then it is referred to the council. The Council will then attempt to resolve the dispute – since it has no power to demand compensation, its only sanction is to request that the offending publication publishes adjudications or apologies.
It is also worth briefly considering the extent to which the Journalists’ Code of Ethics acts as a self-regulatory body for the media. As Armstrong pointed out, the majority of working journalists are members of the Media, Entertainment and Arts Alliance (MEAA), and are thus required to hold to the Code, which is composed of standards relating to, above all, fairness and accuracy in reporting. Penalties for breach include warnings, fines, suspension or expulsion from the MEAA. Butler and Rodrick however criticise the Code of Ethics because
The regulation of the internet is a new and particularly interesting area of media law, since the sheer size, accessibility and global nature of the internet seems nigh-uncontrollable. As a media outlet, the internet fundamentally differs from print media and especially broadcasting media in that the consumer has to actively seek out content as opposed to having it presented to them to passively consume.
The BSA has recently been amended in order to cover the internet, under Schedule 5, the first part of what Butler and Rodrick describe as the government’s threefold strategy for regulating online content:
The second element of the scheme makes it an offence to use the internet for illegal means under State, Territory and Federal criminal laws, and the third element is a non-legislative education program aimed at the public, concerning internet content and management.
Under the BSA, the ABA is required to investigate complaints about prohibited content on the internet. Content is considered prohibited if it is classified RC or X by the Classification Board. If the ABA finds that the prohibited content is being hosted in Australia, then they can issue the content host a take-down notice to remove the content.
Like industry bodies in the broadcasting and print media, the Internet Industry Association has established three codes that act as arbiters for internet self-regulation. The emphasis in these codes is on what Arasaratnam has described as ‘end user empowerment philosophy,’ the use of filtering software by the internet user, rather than service providers blocking the content. Ultimately, then, the responsibility for internet regulation at this stage lies in the consumer – the public protecting their own interest.
IS THERE ANY NEED TO REGULATE THE MEDIA?
So, then, are these co-regulatory regimes sufficient for protecting the public interest? Should there be more or less government regulation?
One argument against government regulation of the media places the public interest at its forefront; the emphasis is on the principle that an independent media will foster free speech which will be jeopardised by concentrating too much power over it in the hands of the government. Kitto, specifically in reference to the Australian Press Council, has argued that media self-regulation is vital:
A popular school of economic thought has argued that the law is essentially a hindrance to big business, is largely ignored or circumvented, and that the most efficient and effective means of market regulation is self-regulation. The argument follows that media organisations nowadays are extraordinarily lucrative businesses, facing enormous market pressures, and therefore should be able to respond to the market as they see fit without having to face government interference. The consumer, rather than the government, should have the power to choose what the media provides.
Calls have been made recently to further deregulate media ownership so that large media companies can further expand. It is argued that ‘restraints on cross-media ownership restrict investment, and that investment restricts the ability to develop quality, diversified media.’ As long ago as 1995, Flint argued:
However, in response to proposed media deregulation, Cherry points out that
He also notes that
The dangers of the alliance between media and commerce were perhaps most potently illustrated in the Cash for Comment inquiry in 1999. The principle that genuine opinion and advertising should be clearly delineated from one another is a reminder of the importance of distinguishing the media from other markets because of the level of influence that they exert to ‘... maintain the information flows, public debate and cultural expression central to a functioning democracy.’ It is for this reason that while it’s debatable whether there should be more regulation, there certainly should not be less. Hitchens has argued that ‘[i]t is generally accepted that one of the rationales for broadcasting regulation is to compensate for the market failure caused by an advertising funded system.’ Media regulation within Australia is not so much about stifling free speech but truly protecting the public interest. It is worth considering at this stage the objects set out by the BSA in s 3, justifying media regulation. They focus on promoting diversity, efficiency, responsiveness to audience needs, quality programming, Australian content, fairness and accuracy in news, respect for community standards and the protection of children from harmful material. Turner and Cunningham write:
It terms of Australian content regulations, Butler and Rodrick point out that
Surprisingly, one of the most influential regulation watchdogs has not been the ABA, or FACTS or the Press Council, but rather the ABC program, Media Watch. Hitchens notes that
The censure of an adverse Media Watch report appears to hold significant influence on journalists and the media, and although produced and broadcast by the ABC, the program is indiscriminate in who it targets. And that effective regulation of the media, by the media, via the media seems oddly appropriate. Henderson has commented:
The ability of the media, overseen by legislation like the BSA and via the various industry codes, to monitor and regulate itself should be acknowledged. The co-regulatory schemes seem to have often been able to strike a healthy balance between free speech, commercial and public interests. While the system may not be perfect, as evidenced by Cash for Comment-type fiascos, people’s voices are heard, Australian content is promoted, advertising is monitored and the classification schemes are relatively tolerant (especially when compared to the puritanical standards of the FAA in the US). It seems unlikely that a more government-oriented regulatory system would maintain the level of flexibility and recognition of the working reality of the media that currently exists. However, attention should be paid to the increasingly intense influence of commercial pressures on the media industry, and kept in mind in the face of calls from the media for further loosening of regulation.