Repost: Sed quis custodiet ipsos custodes or, who guards the guardians?

By skepticlawyer

This article encouraged some of the most thoughtful, well-written responses I’ve ever seen when posted, which were all lost when the Catallaxy server died last week. Somewhat optimistically, I’m putting it up again, partly because Jason has reposted his ABC privatisation piece.

Most people with any sense of the history of western liberalism understand the role of the media – the so-called “fourth estate”. Allegedly, it is there to keep the powerful in check, make governments accountable, and – in an economic sense – go some way towards evening up the information asymmetry that often exists between citizens and institutions.

Most people with any understanding of western liberalism also know that, pretty much everywhere, the media is failing to fulfill its role. Press bloopers range from the comical (wrong name, wrong person, wrong company, wrong city etc) to the deadly serious – photographs and video footage made at the behest of parties on one side of a conflict, or edited and manipulated to push a particular point of view. The recent scandal over doctored photographs in Lebanon is a case in point. In between is repackaging of another news service’s footage as one’s own, or only attacking soft targets – the Paxtons story comes to mind.

Stuart Littlemore QC in the 1997 B’nai B’rith Oration includes a few good case studies. Sometimes, media types will do a Jayson Blair. Littlemore describes how Paul Barry pretended he was a reporter on the TWA 800 crash story. This involved him editing a BBC Panorama report to remove all images of the actual reporter (a Pom), inserting his own piece to camera, and revoicing it. When reporting on the Timothy McVeigh trial in Denver, the ABC stood its reporter in front of the FBI’s J Edgar Hoover building in such a way that only the letters VER were visible, leading viewers to think the story was actually filmed in, ahem, Denver. Littlemore goes on to describe advertisements run as standard news copy, the complete failure of the Australian media to report accurately events surrounding Pauline Hanson, and the kicker that everyone hates: invading individual citizens’ privacy to the point where some have been driven to suicide.

Sometimes I think Jayson Blair had to carry the can for an industry in terminal decline.

Now and then, individual journalists and commentators catch a glimpse of the problem, and write accordingly. In the piece I’ve linked, David Perlmutter makes a heartfelt plea to the “MSM” to accept its errors and respond openly, or expect to cede ground to bloggers who are simply more careful. Most of the time, however, there is a consistent refusal to recognise that there’s actually a problem. There seems to be no understanding as to why traditional news media audiences are evaporating, or why no-one trusts journalists any more.

Part of the problem stems from a confusion of “freedom of the press” and”freedom of speech”. The two are not one and the same, but rather a Venn diagram with a (relatively small) overlap. It’s a characteristic of the MSM that its practitioners think they represent the sum total of free speech, whereas in reality free speech is yours and my right to bag John Howard out at a BBQ, to stick up a website full of irreligious cartoons, or to tell blond jokes – without fear of a comeback.

That said, what is the solution – if there is one? Broadly speaking, there are two options. I’ll discuss these in turn. Littlemore QC proposes the extension of the “toothy” bit of Australian competition and consumer law to the media. He thinks the press should be exposed to the “misleading and deceptive conduct” provisions in legislation. At present, the media in its role as “information provider” is exempt from s 52 of the Trade Practices Act. This wasn’t always the case; s 65A, which confines s 52’s operation, was only introduced after a period of concerted lobbying by media organisations. The lobbying was in response to several Federal Court decisions – notably Australian Ocean Line Pty Ltd v West Australian Newspapers Ltd and Global Sportsman Pty Ltd v Mirror Newspapers Ltd. In those cases, the Federal Court held that the publication of statements in newspapers in the course of reporting the news were capable of breaching s 52 if the statements were misleading or deceptive. In response to the lobbying, the government “was persuaded that it was not appropriate to permit use to be made of s 52 in that way” – in the words of Russell Miller, Australia’s competition and consumer law guru.

The other option is one proposed by Queensland Premier Peter Beattie in his A N Smith Memorial Lecture in Journalism. In brief, this involves constructing the media as an arm of government (“the fourth estate”) and exposing it to administrative law mechanisms such as Freedom of Information and Judicial Review. Both proposals have their strengths and weaknesses.

Like the tort of defamation, action under s 52 is expensive, and wouldn’t assist people like the Paxtons or Benny Mendoza (the tv repairman who suicided). The gutter journalism characteristic of much of the media would probably go unhindered, although the Federal Court’s (relatively) more liberal rules with respect to class actions (called “group proceedings”) may help, as would the ACCC’s capacity to initiate legal action in response to consumer complaints. Administrative law, by comparison, is much cheaper for the citizen who has been traduced, but costly for the state. It requires tribunals, administration and legal officers. Using a Hayekian frame of reference, the only reason we now have so much administrative law in western countries is because of the expansion of government into so many aspects of our lives. Extending the reach of quasi-judicial administrative tribunals to the media represents an acceleration of this process.

How then, do we guard the guardians? Can they be made more accountable without burying us all in a morass of bureaucratic minutiae? Should we just accept that the press is there to turn a buck (like any other corporation) and yet continue to afford it protections no other corporation enjoys? If either (or both) of these proposals are adopted, should we consider loosening the grip of defamation on all kinds of commentary – not just the media – on the grounds that it genuinely does impinge on freedom of speech (as well as allowing all sorts of other silly things, like Victoria’s absurd religious vilification laws, to fly in under the radar)?

I strongly suspect that these questions (as Perlmutter suggests) will only be answered honestly and comprehensively in the blogosphere; with that in mind, then, over to you.


  1. Posted October 20, 2006 at 12:09 pm | Permalink

    … And if David Tiley drops by, I’d love him to repost his comment on this piece.

  2. FDB
    Posted October 20, 2006 at 12:13 pm | Permalink

    I’d just like to say that a post which mentions Stuart Littlemore (we hardly knew ye) AND Venn diagrams has my unqualified attention.

    I think I prefer Disco Stu’s proposal to PB’s, chiefly because I see this as a major avenue for pro bono legal work on behalf of the Paxtons of the world.

    Re: Beattie’s idea – I disagree that this sort of admin is only necessary “because of the expansion of government into so many aspects of our lives”. Rather it is because of the role of media in determining attitudes, perceptions and thus preferences and choices. This is a really important role; whether government involves itself deliberately or not, media and government are now inseparable. Not one and the same, thank Venn, but you can’t have one without the other.

    So naturally we need to ensure that the relationship is NOT one way – we can’t afford to have media organisations being more or less capable of deciding elections (or policy) and have the Govt toothless to respond.

  3. Posted October 20, 2006 at 12:19 pm | Permalink

    David Tiley’s followup to this piece is here.

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