Conroy serves up a media mess

Stephen Conroy has finally unveiled his ‘’reforms’’ to the media sector. While perhaps not as threatening or as intrusive as it was once feared they might be, they do extend the reach of regulation and government into new areas of the media without compelling justification.

From the moment Conroy established the Convergence Review in 2010 and Finkelstein Inquiry in 2011 it was apparent the Gillard government was determined to broaden the regulatory reach over the media despite the proliferation of new media and the swelling existential query over the old.

In a digital, multi-platform environment the obvious approach to media regulation would have been to loosen the old platform-specific regulation designed for old media oligopolies to recognise that barriers to entry and market power have been substantially eroded by the emergence of new digital media and the multiplicity and diversity of media voices they have enabled.

Politicians, of course, don’t trust markets or the collective judgements of consumers to discipline behaviour, particularly in areas perceived as politically sensitive.

While Conroy has backed away from some of the more controversial recommendations of the reviews he commissioned he does plan to create a new ‘’Public Interest Media Advocate’’ to oversee both mergers of ‘’national significance’’ and also to ‘’authorise’’ self-regulatory bodies dealing with news media standards and complaints, using the coercive threat of removal of exemptions from privacy legislation to force media companies to join and fund those self-regulatory bodies.

The public interest advocate will enforce a new public interest test the government plans to legislate to ensure diversity of voices is considered in any assessment of proposed major media mergers.

Such a test has been debated for the best part of two decades as it has become increasingly clear that the cross-media, foreign ownership and audience reach limitations on media mergers were becoming increasingly anachronistic.

The quid pro quo for a national interest test was supposed to be a removal of existing restrictions but Conroy has referred the question of whether the 75 per cent reach rule for broadcasters should be abolished to a parliamentary committee after a brawl broke out between the commercial networks, with Seven and Ten galvanised by the news that Nine was in merger discussions with Ten’s regional affiliate, Southern Cross Media.

The concept of a national interest test has, as indicated, been intensely debated over a considerable period. It is contentious because there is no obvious way for such a test to be objective and it would, as former Australian Competition and Consumer Commission chairman Graeme Samuel has argued recently, create scope for politicians to interfere in ownership decisions and gain leverage over media content for political gain.

Should the 75 per cent reach rule not be abolished, Conroy’s reforms would add another layer of regulatory impediment to media mergers and create a new and powerful regulator without any offsetting deregulation.

The new ‘’advocate’’ would also effectively extend the reach of content regulation from media holding broadcast licences – using public assets to distribute their content – to print media and new digital media previously outside the regulatory net.

The free-to-air networks would get a permanent halving of their licence fees while the print and digital media would get exemptions from the privacy legislation (which has been referred to the Australian Law Reform Commission) in exchange for joining the independent self-regulatory body which will, under the watchful eye of the advocate, ensure their compliance with a ‘’press standards model’’.

There’s going to be a lot of interest from those concerned about the independence of the media in the detail of that model.

The public interest advocate, according to Conroy, will be appointed ‘’in consultation with the opposition’’. The more important aspect of that statement is not that the government will consult but rather that it will appoint the person charged with overseeing both media mergers and media standards and protecting the ‘’public interest’’ in the process.

The press standards model and the definition of the public interest – the test that Conroy plans to introduce and that the advocate he appoints will oversee – could, therefore, probably be whatever the government of the day wants them to be.

That’s an interesting structure for ensuring strong and "independent" self-regulation. It would appear the media industry is not only going to have some content regulation and a new regulator imposed on it but it will have to pay for the privilege.

Conroy also plans to refer to a parliamentary committee the question of whether the Australian Communications and Media Authority should consider supply arrangements for news and current affairs as part of its determination of whether a person is in control of a commercial TV broadcasting service.

That would appear to be a direct shot at News Ltd (the owner of Business Spectator) and, to a lesser degree, Ten Network.

Ten has effectively outsourced its Meet the Press program to News, causing some consternation within the government despite the reality that there has been increasing cooperation and cost and talent-sharing between most of the major media organisations (public and commercial) as the industry settings have become both tougher and more of a multi-media environment than the siloed media forms of the pre-digital age.

Conroy has yet to provide a convincing justification for his ‘’reforms’’. Logically the fragmentation of audiences and revenues, the erosion of power and the increase in diversity that has accompanied the rise of the digital environment and digital media ought, if anything, to have led to some deregulation of the media and the removal of some media-specific regulation.

Instead we are seeing proposals for an expansion of the regulatory net and de facto government influence over industry content and standards where previously there was none.

Currently, the ACCC is there to deal with competition policy issues and the public has the ability provided by an increasing array of digital choices to ostracise any media outlet that offends it or doesn’t satisfy it. Then there’s defamation law and, it appears, probably a privacy tort on the horizon as well as the existing and recently strengthened (in response to the looming threat of government intervention) self-regulatory mechanisms within the Press Council.

Conroy has given parliament two weeks to pass the legislation (and even less time to the committee looking at the reach rules) or else, he says, he will abandon the media reforms rather than ‘’barter’’ over them. That would not necessarily be the worst conceivable outcome.