It has been a busy year in the Australian media and communications sector. There is the constant arguing over the National Broadband Network (NBN) – both between political parties and the telcos themselves – and a Federal election in the early part of the year saw the re-election of the Coalition Government, and a new Communications Minister, with new priorities for the sector.
The media ownership reforms introduced in 2017 are also having an impact, with the dust settling on the Nine takeover of Fairfax and the very recently announced acquisition of Prime Media by Seven West Media.
The communications sector regulator, the Australian Communications and Media Authority (ACMA), has also been active on a number of fronts, from ushering in new protections for consumers under the Telecommunications Consumer Protections Code, to taking action under the Interactive Gambling Act 2001 (Cth) and also in progressing regulatory action in relation to spectrum to assist the rollout of 5G networks.
But by far the most significant events in the Australian media and communications sector in 2019 have been the release of the Final Report of the Australian Competition and Consumer Commission's (ACCC) Digital Platforms Inquiry and a fierce debate on media freedoms.
Digital Platforms Inquiry: How will the Government respond?
The then Treasurer, Scott Morrison, commissioned the ACCC to look at so called digital platforms, including Google and Facebook, and the impact that these platforms have had on competition in the media and advertising services markets, in late 2017. The ACCC's Final Report was publicly released in July 2019. It contained 23 recommendations covering not only competition and consumer protection but privacy, copyright and broader communications regulation.
At the time the Final Report was released, the current Treasurer, Josh Frydenberg, stated that the Government recognises the need for reform of Australia's media regulatory framework. The Treasurer also announced that the Government would undertake a further consultation process on the Final Report, with that process due to be completed by the end of October. This will allow the Government to respond to the Final Report by the end of the year.
What will be the Government's response to the ACCC's recommendations? Despite furious lobbying by Google and Facebook, it is likely that the Government will be largely supportive of the recommendations. The Government's response to the Final Report may therefore be the start of a reform process that brings Australia's regulation into the digital era, as the implementation of even some of the proposals put forward by the ACCC will have significant long term implications. For example, the ACCC's recommended reforms of privacy regulation, including to strengthen notification and consent requirements, would apply across all sectors of the economy. To take another example, the ACCC has recommended reform of communications regulation to ensure a "level playing field" irrespective of the medium by which content is delivered to Australians.
Traditional media companies in Australia have this week come together in an unprecedented show of unity, through the "Your Right to Know" campaign, to draw attention to concerns that there has been, to quote The Australian, "a sustained attack on the rights of journalists to hold governments to account and report the truth to the Australian public"1. These concerns have been created by, amongst other events, the following:
- Australian Federal Police raids on the home of a News Corporation journalist and on the ABC headquarters, on 4 and 5 June 2019 respectively, which the media believes were intended to intimidate not only media organisations but also public sector whistle blowers
- the passing of legislation which inhibits the ability of journalists both to report public interest news stories and to keep their sources confidential. For example:
- National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (Cth): Notwithstanding that the intent of this legislation is to prevent foreign powers interfering in Australia's political processes, concerns have been raised that Australian businesses, advocacy groups and journalists may be subject to the espionage provisions of this Act in their normal activities, given how broadly "national security" has been defined
- Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (Cth) (Assistance and Access Act): This controversial legislation enables security agencies to request or require a broad range of companies that fall within the definition of "designated communication providers" to provide technical assistance in accessing and decrypting encrypted data. Critics claim this legislation is too intrusive and has only limited oversight. For example, it is argued it could require journalists to provide access to communications from confidential sources without those journalists having clear rights of appeal
- journalist information warrants: The Australian Media, Entertainment & Arts Alliance and others argue that provisions of the Telecommunications (Interception and Access) Act 1979 (Cth), which require telecommunications companies to retain so called metadata for a period of two years and allow government agencies to obtain journalist information warrants, may be used, in secret, to determine the confidential sources of media companies and journalists
- the Commonwealth Freedom of Information Act 1982 not operating as intended, with refusals to provide information by both agencies and ministers at high levels and long delays faced in challenging those refusals (typically, at the current time, due to a lack of resources available to the Office of the Australian Information Commissioner, it can take six months for a review officer to be appointed to consider an application to challenge a freedom of information refusal – which is only the first step in a challenge process)
- defamation laws not appropriately balancing freedom of expression – and the societal benefits from public interest journalism – against the rights of individuals. Although this issue has been long recognised, and reform proposals discussed, no changes to Australia's laws have been made.
The media organisations participating in the "Your Right to Know" campaign are seeking a number of reforms including the right to contest police warrants, exemptions from national security laws for journalism, a review of freedom of information laws and reform of defamation laws.
The Parliamentary Joint Committee on Intelligence and Security is currently undertaking an inquiry into the impact of the exercise of law enforcement and intelligence powers on the freedom of the press. That inquiry is due to report by 28 November 2019. The same Joint Committee is also reviewing the Assistance and Access Act, with that review to report by 13 April 2020. Not to be outdone, the Senate Standing Committee on Environment and Communications is undertaking a separate inquiry into the adequacy of Commonwealth laws and frameworks covering the disclosure and reporting of sensitive and classified information. That inquiry is due to report by 16 March 2020.
The Prime Minister has made it clear that his view is that journalists should not be prosecuted simply on the whim of politicians. But whether these Parliamentary inquiries, or the broader pressure being placed on Government as a consequence of the "Your Right to Know" campaign, will cause the Government to implement the sought after reforms remains to be seen.
Want to know more?
If you want to know more about these key issues, and what the future may hold, please sign up to attend the Law Council of Australia's Media and Communications Seminar to be held on 15 November 2019. Amongst other speakers, Rod Sims, the Chair of the ACCC, and Angelene Falk, Australia's Privacy Commissioner, will talk on the recommendations from the Digital Platforms Inquiry and the President of the Law Council, Arthur Moses will speak on media freedoms.
More details of the seminar are here.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.