Former Federal Court of Australia judge Ray Finkelstein QC has handed down his report into the media which having a quick read seems to have been co-signed by Julia Gillard and Craig Thomson.
Make no mistake, it is a political document designed to protect corrupt politicians and dodgy policies from scrutiny and outing by the media. If The Fink’s recommendations had already been in effect we would not of heard about a lot of the dodgy dealings of the politicians because the reporting would have been closed down in record time.
The recommendations by The Fink would make any communist dictator proud.
When complaints are made against media organisations they will be denied natural justice and procedural fairness in their attempt to defend themselves against the compliant. Yep, you guessed it, just like a Kangaroo Court.
The new laws would also apply to bloggers so it is from this perspective that I mainly write about as I am what is considered a blogger. For those who do not know a blog is just a type of website like mine where I write my own articles.
I will start off having a look at a few of the recommendations and then see what effect they would have had in a number of cases if they had already been legislated. For this we will look at the Craig Thomson defamation proceedings against Fairfax Media, Julia Gillard’s attempt last year to close down reporting of her past and the post I did on Mr Finkelstein’s suitability to head up the media inquiry.
The Fink says “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. It is envisaged that the body would take over the functions of both the APC and the news and current affairs standards functions of ACMA.” (From page 290 of the report. APC currently looks after print media and ACMA looks after broadcast media, TV & Radio) (Click here for the full report)
Some of the proposed legislation/laws
Page 291
11.50 The chair should be a retired judge or other eminent lawyer. That person need not be a practising lawyer. (A retired Judge, no need to say what I think about that. Maybe The Fink is looking for a job)
Page 292
11.53 Funding should be by the government out of the consolidated revenue and not be recovered through a levy on the media. This is preferable to funding from the industry. One of the concerns identified by the APC is that it is not seen to be independent of the press because it is funded by the press. This is not an unreasonable view. (This is what happens in communist countries. It would be controlled by the government of the day)
Page 295
11.67 “If a publisher distributes more than 3000 copies of print per issue or a news internet site has a minimum of 15 000 hits per annum it should be subject to the jurisdiction of the News Media Council, but not otherwise. These numbers are arbitrary, but a line must be drawn somewhere.” (15,000 hits a year is just under 300 hits a week which is almost every blogger who posts at least twice a month. Whether he means page views or unique browsers I do not know but it does not make much difference at the end of the day. It is a very low number and would even capture high school children who have a blog)
11.69 Another aspect of jurisdiction concerns how the News Media Council will exercise its power over all internet publishers. Foreign publishers who have no connection with Australia will be beyond its reach. However, if an internet news publisher has more than a tenuous connection with Australia then carefully drawn legislation would enable the News Media Council to exercise jurisdiction over it. (That is a joke and would not work. What are they going to do? Send the Federal Police overseas to arrest people?)
Page 296
It is not proposed that the complainant should first present his/her complaint to the media outlet. That may sometimes be an effective means of resolving a complaint, but it would take time and often a complainant is at a disadvantage when dealing with an experienced editor. (This part is designed to protect politicians like Julia Gillard and Craig Thomson. If they made a complaint to me or other bloggers we would scan the compliant in and do another post which if it was from Julia Gillard for example would probably go viral)
However, if the organisation has an effective internal complaints handling procedure, the Council should have a discretion whether to refer a complainant to the organisation in the first instance. Specifically, the ABC and SBS have dedicated complaints handling sections18 and one newspaper has a readers’ editor. (This I suspect is what would happen if the average person made a complaint, they would be palmed off to the media organisation to get the run around)
If not resolved informally, complaints should be dealt with by a complaints panel consisting of one, three or, only in exceptional cases, five members of the News Media Council. The chair should have power to select the panel for any given complaint and may, where appropriate, select himself/herself.
Page 297
· Complaints should, as a general rule, be dealt with on the papers and not by a hearing. (Here we go. A clear denial of natural justice starts with this one)
· Privilege should attach to all information provided to the panel; (What does The Fink mean by this? You can not sue for what the other party says in the complaint or reply to the compliant? What I suspect he actually means is “Legal professional privilege” which means that media organisation would not get to see the full complaint against them and would only get a summary. This would be open to abuse by the likes of politicians)
· There should be no requirement for the panel to provide reasons for a decision although it would likely ordinarily do so. (That’s right, no requirement to provide reasons. How dodgy is that)
11.71 The News Media Council would require a rule-making power to further develop its own rules and practices for complaints-handling. The rules should exclude lawyers from hearings (although a complainant might be permitted to have lay assistance), impose strict timetables on procedural steps, forbid cross examination without leave and make other provision for the speedy and efficient resolution of a complaint. (No cross-examination without their approval. What do you think the chances of a blogger being allowed to cross-examine Julia Gillard or Craig Thomson or any politician would be. Zero. They could make complaints all day every day knowing full well they would never have to defend the complaint.)
11.74 The News Media Council should have the following remedial powers for complaints and own-motion investigations:
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; (But hold on a minute they do not have to give reasons. So what would there be to publish?)
To direct when and where publications should appear.
Page 298
11.75 When a media outlet publishes a correction, apology, reply or determination as required by the News Media Council both it and the News Media Council (This is a bad joke. What they would have no confidence in their own decisions. To me sounds like it is to the benefit of politicians who can get the News Media Council to make news outlets to make false apologies and take down from the web evidence of the criminal conduct of politicians.)
11.77 “There should be a legal requirement that if a regulated media outlet refuses to comply with a News Media Council determination the News Media Council or the complainant should have the right to apply to a court of competent jurisdiction for an order compelling compliance. Any failure to comply with the court order should be a contempt of court and punishable in the usual way.” (This a big stick and real communist style laws. A government body with government paid employees can take out court orders and if you do not comply you can go to jail.)
Page 299
11.78 In order to preserve the ability of the News Media Council to act swiftly, there should be no internal appeal from, or internal merits review of, a determination. Nor should there be external merits review via the Administrative Appeals Tribunal. (Once again a clear denial of natural justice)
11.79 It would, however, be neither desirable nor possible to preclude all judicial supervision of determinations. In any event, because enforcement may need to be by way of court order, judicial supervision would be built into the process. In the course of enforcement proceedings a collateral challenge to a determination may be available and this would provide a sufficient mechanism for judicial supervision. (Sounds very vague to me and also it would be after the damage is done. And how can you mount a proper appeal if the News Media Council have not given reasons for their decision)
11.80 The proposed News Media Council will be an independent body that would not compromise editorial independence and would provide an effective means of resolving disputes between members of the public and the media. It would, in addition, foster democratic institutions by improving the quality of information that is available to the public. (This is a joke and like I have said it is to protect corrupt politicians and policies from scrutiny, not to protect the public as The Fink would have us believe)
Craig Thomson
The federal MP Craig Thomson is accused of ripping of the Health Services Union. In my previous post it says the below:
“The union’s accusations were reported by The Sydney Morning Herald in April 2009.In response, Thomson initiated defamation proceedings against both the Health Services Union and against the publisher of the Herald, Fairfax Media. In pretrial proceedings in the New South Wales Supreme Court, Fairfax Media claimed that subpoenaed records showed that details of Thomson’s driver’s license had been noted on the credit card receipt, that phone records showed that Thomson’s phone had been used to call two phone numbers associated with a Sydney escort agency and that mobile phone records showed that Thomson had travelled from his constituency to Sydney on one of the nights on which one of the impugned charges to the credit card had been made.” (Click here for the previous post)
The key part to that is because Mr Thomson initiated defamation proceedings against Fairfax Media this allowed them discovery which means they could subpoena documents like phone records and credit card receipts. It was a major mistake by Mr Thomson to initiate defamation proceedings as it allowed Fairfax Media to uncover further evidence.
Under the proposed new media laws Mr Thomson would not have initiated defamation proceedings. He would have made a complaint to the News Media Council and they would not have had a hearing. They would have handed down a judgement directing Fairfax Media to publish an apology. The News Media Council would not have had to given reasons.
And the News Media Council would “be protected from legal proceedings based on the publication—in other words, a form of privilege should attach to the publication.” This is important because as we all now know Mr Thomson did rip off the union and if the New Media Council did not have privilege they could be charged with concealing a crime.
The bottom line is defamation laws do not protect politicians from committing crimes as Mr Thomson has found out. But the proposed new media laws would.
Australian Prime Minister Julia Gillard
Ms Gillard phoned numerous media outlets last year to close down reporting of her past involvement in a $1,000,000 theft of the AWU in the mid 1990’s. We know for a fact that she phoned John Hartigan the then CEO of News Ltd and also spoke to Chris Mitchell the editor of the Australian and Mike Smith ultimately left radio station 2ue over the same matter.
But she has never come after me even though I have done a number of posts on this. (Click here for one of the posts) Why? Well, I have the evidence to support my claims for starters. And a phone call to me would be fruitless as she would know and under defamation laws she would have to send me a concerns notice as the first step of defamation proceedings. A concerns notice is basically letter on complaint and also detailing what action they want, like an apology or for me to remove the post.
The problem being is that if Ms Gillard sent me a concerns notice (or any blogger for that matter) I would do what I previously did when Kerry Stokes’s lawyer sent me a threatening letter. I would scan it in and do another post. I never heard from Stokes or his lawyers again. (Click here for the post)
To get a concerns notice off Julia Gillard and then for me or another blogger to publish it would be highly embarrassing to her for starters. She never would or could initiate defamation proceedings because then I would utilise discovery and subpoena documents which would be very damaging to her without a doubt.
But under the new media laws she would not have to make a complaint to me. She could make a complaint to the News Media Council who could then make a decision without a hearing and without giving reasons demand that I take my posts about her down. If I did not comply they could then take out a court order and if I did not comply with that I could be found in contempt of court and be sent to jail. And even if there was a hearing I would never be allowed to cross-examine her.
Ray Finkelstein QC
I wrote a very critical post about Ray Finkelstein being appointed to head up the inquiry. It related to his time as a Federal Court judge when he tried to hear a case where he had a financial interest and was a party to the proceedings via his own private superannuation fund. He can not take any action against me because under the law I am well and truly covered. (Click here to read the post)
But under the new media laws, like Gillard and Thomson, he could have made a complaint and without hearing or reason given I could have been directed to take down my post with the threat of jail time if I do not.
The list of people who could abuse the proposed new laws goes on and on. But it is mainly the politicians and say corrupt judges who would benefit the most. Not the public.
Sit back and think about all of the other stories that would have been closed down under the proposed new laws.
General Observations
THE new media laws would apply to bloggers for the first time. But there is no need. This site and others like it are not exempt from defamation laws and they protect the general public very well from bloggers. In the last few months Melbourne based blogger, Marieke Hardy, was sued for defamation and she paid a settlement “after erroneously identifying Joshua Meggitt, of Melbourne, as the author of a hate blog dedicated to her.” (Click here to read the full article)
So the laws work fine for the public and protect them from bloggers.
How do you enforce the 15,000 hits for the bloggers? Alexa.com is the main ranking site for websites but does not give you the number of hits. For that you can go to statshow.com for an estimate of the number of hits, but statshow.com estimates the number of hits based on the sites Alexa ranking. So what is the New Media Council going to do? Hack into your account? Or maybe it will be a case of honesty and you tell them how many hits you get on your site.
My site for example is sitting at a ranking of 3.67 million on Alexa but the number of hits has been sky rocketing the last week and I know from previous experience my ranking should be at least 2 million places higher but it has actually been going backwards the last week. So I could say to the media council that I do not get 15,000 hits as the ranking is actually wrong and it should be outside the top 10 million. How would they be able to prove different.
Alexa is actually owned by Amazon who gave WikiLeaks the boot from their hosting service. As you are aware I have done a number of posts on WikiLeaks and my ranking started playing up the other night when WikiLeaks started to publish new material. Makes me wonder. Whether or not that is just a coincidence does not matter. It is well documented that governments around the world have been trying to tighten control of the media and WikiLeaks is a prime example and so is the proposed new media laws.
The government led by the communications minister Stephen Conroy tried to bring in an internet black list 18 months or so ago. The list would have been kept secret from the public and internet service providers would have been made to block certain sites. That did not work because the online community rallied against it.
If the government tried to pass the new media laws as recommended by The Fink which captures bloggers who would be next. Twitter users and Facebook users? I have no doubt there would be an online Armageddon led by the bloggers and backed up by ten’s of thousands if not hundred’s of thousands of Twitter users and Facebook users etc.The government would be destroyed at the next election.
The Greens need to watch themselves as well as Bob Brown has apparently come out in support of the proposed new laws. It is one thing to attack News Ltd which Mr Brown did 6 or 7 months ago but by supporting the new laws he is attacking all the media and that could really come back to bite his party.
I do not think the government would be stupid enough to try to legislate the proposed new laws, but in saying that governments around the world have tried some very stupid things in the past and this current federal government is no exception.
The bottom line is defamation laws do not protect the politicians from bloggers in relation to their dodgy and corrupt conduct, they failed with the internet blacklist and the proposed new media laws are just another attempt to close down bloggers as well as other media.
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