This article provides an overview of the Australian Competition and Consumer Commission (ACCC) Digital Platforms Inquiry, as a case study in the new thinking about digital platform regulation taking place in many nations. With its focus upon the impact of digital platforms on news and journalism, the ACCC Inquiry parallels other reviews, such as the Cairncross Review on the Future of Journalism in the United Kingdom. While the Inquiry had a somewhat ‘accidental’ history, the core issues that it raised have acquired considerable political resonance in Australia. The concept of harms provides a useful lens through which to understand the ACCC’s focus, as it identified harms caused by the market dominance of Google and Facebook for traditional news media businesses, and for consumers and citizens. Responding to the ACCC Final Report will present challenges in identifying the public good dimension of journalism and who should pay for it, the scope and reach of digital platform regulation and its relationship to media policy and regulation, and the scope for small nations to effectively manage the power of global digital platform giants.
On a Tuesday afternoon in December three years ago, two young presenters on the Australian radio programme Summer 30 devised a prank call to impersonate Queen Elizabeth and Prince Charles.The events that followed were soon known around the world. The station's licensee, Today FM (Sydney) Pty Ltd, tried to stop Australia's broadcasting regulator, the Australian Communications and Media Authority (ACMA), from finding it in beach of statutory and regulatory rules. But a recent unanimous decision of the High Court of Australia, reversing a unanimous decision of the Federal Court, has freed the ACMA to publish its investigation report and take enforcement action.To the industry, the matter demonstrates severe regulatory overreach. To others, it exposes gaps in the industry codes of practice. Given the international interest in the subject, this note reports on the High Court's decision within the context of the ACMA's long-running investigation. INDUSTRY AND REGULATORY BACKGROUNDBroadcasting in Australia is regulated almost exclusively under federal law. Licences for commercial radio services are issued by the ACMA under the Broadcasting Services Act 1992 (Cth) (BSA). The Act imposes conditions on these licences and establishes the framework for the industry to develop, and the ACMA to register, a code of practice.1 Matters that may be addressed by a code -for example, accuracy and fairness in news and current affairs and avoidance of indecent and harmful material -are included in an indicative list in s 123(2) of the Act. 2 The ACMA can develop its own * Visiting Fellow, Faculty of Law, University of Technology Sydney. All websites accessed 2 May 2015 1 Commercial radio licences are allocated by the ACMA under Division 1 of Part 4 of the BSA. Standard licence conditions are imposed under Schedule 2. Codes of practice are registered under s 123. 2 The ACMA is required by s 123(4) to register a code of practice if it is satisfied of three preconditions: it is endorsed by a majority of broadcasters in that section of the industry; there has been an adequate opportunity for programme standards if it considers there is convincing evidence that an industry code of practice is not operating to provide appropriate community safeguards. In the commercial radio sector, for example, the ACMA's standards dealing with disclosure of commercial agreements in current affairs programmes supplement a code provision on distinguishing advertising and programme material.3As in other jurisdictions, the radio industry is multi-faceted. Commercial operators offer talk and music-based formats on generally high-powered services on the AM and FM bands. They are complemented by public service ('national') broadcasters and community-based services, as well as niche 'narrowcasting' services. 4 All except the last category have allocations on the DAB+ multiplexes that serve the capital cities, but not regional areas.Summer 30 was among the programmes offered by radio station 2Day FM, part of the Southern Cross Austereo group that controls radio ...
In February 2021 two initiatives for regulating digital platforms in Australia were implemented. The News Media Bargaining Code (“News Code”) attracted international attention as a legislative means of forcing platforms to pay for news content, while the Australian Voluntary Disinformation and Misinformation Code (“Disinformation Code”) was modelled on an international initiative. Both were developed to meet Government policy formulated in response to Australia’s Digital Platforms Inquiry. Whereas the Inquiry recommended the use of co-regulation, Government policy switched to voluntary codes for both, then to a legislative scheme for the News Code. This article examines the schemes and critiques the policy on which they are based. It applies a conceptual framework to assess the optimum conditions for the use of co-regulation and self-regulation. It finds that a self-regulatory scheme of voluntary codes was never a suitable approach for the News Code, and that the close involvement of the regulator on the Disinformation Code — without a suitable remit or enforcement powers — distorts the self-regulatory model. This can in part be explained by the failure to address well-recognised flaws in the co-regulatory framework for telecommunications and broadcasting, the consequences of which are now being seen in attempts to regulate digital platforms.
Australia currently has fourteen standards schemes that oversee journalists and news media, making for both duplication and inconsistency. The result is a torn and frayed patchwork leaving broadcasting heavily regulated but some areas of online content without any applicable standards or clear avenues for consumer complaint. In this article, we describe Australia’s confusion of news media standards schemes amid the global challenges to media oversight in a digital age, including from the algorithmically driven delivery of news via social media and other digital services. We argue that internationally the ongoing disruption of news media is being accompanied by a parallel disruption of news media standards schemes. This creates significant uncertainty, particularly since citizens and journalists have contrasting expectations about news media oversight. However, this uncertainty also presents an opportunity for reform. We then draw on international scholarship and regulatory developments to make four high-level arguments. First, Australia should implement a coherent cross-platform standards scheme to cover news content on TV, on radio, in print and online. Second, digital services and platforms ought to be brought under this scheme in their role as distributors and amplifiers of news, but not as ‘publishers’. Third, this scheme ought to have oversight of algorithms. And fourth, citizens ought to be afforded a greater role in the operation of this scheme, which has significant potential to serve the public interest by improving public discourse.
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