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Commercial Radio Australia Commercial Radio Australia Ltd ACN 059 731 467 Level 5, 88 Foveaux Street Surry Hills NSW 2010 T 02 9281 6577 F 02 9281 6599 E [email protected] I www.commercialradio.com.au COMMERCIAL RADIO AUSTRALIA LTD SUBMISSION TO CONTEMPORARY COMMUNITY SAFEGUARDS INQUIRY 29 JULY 2013 Introduction Commercial Radio Australia Limited (“CRA”) is the peak industry body representing commercial radio broadcasting stations in Australia. CRA has 260 members and as such represents approximately 99.5 percent of the commercial radio broadcasting industry in Australia. CRA welcomes the opportunity to comment on the Australian Communications and Media Authority’s (“ACMA”) discussion paper Contemporary Community Safeguards Inquiry (“Discussion Paper”) and confirms that the views set out in this submission represent the views of a majority of our members. CRA members may also make separate submissions to the ACMA on discrete matters in which they have a particular interest. At the outset we stress that CRA members do not wish to see this process result in more regulation for the commercial radio sector and would be pleased to see an outcome that was moving towards a reduction in regulation and accompanying compliance burden on commercial radio stations. Further, as clearly indicated by the ACMA in both public forums and private meetings, this discussion paper is simply designed to garner information on which core matters and associated community safeguards should appropriately be addressed in codes of practice. For that reason, CRA’s submission will not focus on: 1. the specifics of the current nine (soon to be ten) individual Codes; or 2. individual questions posed by the ACMA in the Discussion Paper. CRA’s submission will focus on broad areas of critical importance for the commercial radio sector. Background The ACMA has indicated that it wishes to go back to “core principles” in respect of its assessment and analysis of the core matters and community safeguards that should be appropriately addressed in codes of practice developed by Australian broadcasters. We believe this examination should most properly commence with the objects of the Broadcasting Services Act 1992 (the “Act”) and the Act itself. The development of the Codes of Practice is prescribed in the Act. Section 123 of the Act provides that, in consultation with the ACMA, radio and television industry groups develop codes of practice applicable to the broadcasting operations of each of those sections of the industry, CONTEMPORARY COMMUNITY SAFEGUARDS INQUIRY SUBMISSION OF COMMERCIAL RADIO AUSTRALIA Section 123(2) provides that the Codes so developed (as relevant to radio broadcast) may relate to: the prevention of programs that, in accordance with community standards, are not suitable to be broadcast by that section of the industry; promoting accuracy and fairness in news and current affairs programs; preventing the broadcast of programs that simulate news or events in ways that misled or alarm its audience, depict a process of putting a person into a hypnotic state, or designed to induce hypnosis; the broadcast of a quota of Australian music; handling complaints and reporting to the ACMA on complaints so handled; such other matters relating to program content as are of concern to the community. Section 123(3) further provides that community attitudes to the following matters are to be taken into account: (i) physical and psychological violence; (ii) sexual conduct and nudity; (iii) offensive language; (iv) the portrayal in programs of matter that is likely to incite or perpetuate hatred against, or vilifies, any person or group on the basis of ethnicity, nationality, race, gender, sexual preference, age, religion or physical or mental disability; (v) use of drugs, including alcohol and tobacco. Clearly, in our view, since the enactment of Parliament’s intentions, the Codes that have been developed have become broader and more interventionist than contemplated by the Act. 1 COMMERCIAL RADIO REGULATION 1.1 The objective of regulatory parity should drive legislative and regulatory design In a regulated media environment, CRA strongly supports the objective of regulatory parity within the legislative and regulatory framework. To the extent reasonably practicable, regulatory parity should be established on the following levels: . across all sectors subject to the BSA; and . across different platforms within a particular sector. As Figure 1 demonstrates at a high level, there is wide degree of disparity between the regulatory treatment of different sectors within Australia, with the commercial radio sector being one of the most heavily regulated sectors on the whole. JULY 2013 PAGE 1 CONTEMPORARY COMMUNITY SAFEGUARDS INQUIRY SUBMISSION OF COMMERCIAL RADIO AUSTRALIA Figure 1 - Regulatory imposts on selection of content distribution services in Australia While regulatory parity is desirable, CRA accepts that it may not be possible to adopt a ‘one size fits all’ approach. Regardless, there is significant scope to improve the degree of regulatory parity within the media and communications sector and particularly in relation to the Codes of Practice. In addition, there are some instances where regulatory parity does not achieve regulatory equality. For instance, broadcasters are subject to a number of obligations under various non- broadcast legislation, such as the Corporations Act 2001, the Australian Securities and Investment Commission Act 2001 (ASIC Act) and the Competition and Consumer Act 2010 (CCA). Under these Acts, broadcasters are obliged to transmit certain warnings, disclaimers or qualifications in relation to advertising – for example to ensure compliance with financial [1] product disclosure obligations and the prohibitions against misleading and deceptive [2] conduct. [1] Section 1018A of the Corporations Act 2001 provides that an advertisement for a financial product must identify the issuer of the product, the seller of the product, the location of the Product Disclosure Statement (PDS) and that the buyer must have regard to the PDS. [2] While publishers have a defence against misleading and deceptive conduct under both the ASIC Act in relation to financial products and the CCA more generally, in some circumstances this defence will not apply. JULY 2013 PAGE 2 CONTEMPORARY COMMUNITY SAFEGUARDS INQUIRY SUBMISSION OF COMMERCIAL RADIO AUSTRALIA These obligations have a disproportionate impact on radio broadcasting as, unlike its competitors in television or online, the platform is limited to audio transmissions only, with limited capacity for additional incidental content such as disclaimers or qualifications. With that said, CRA considers that there is, nonetheless, a strong argument in favour of implementing a higher degree of regulatory parity where possible, practical and suitable across different platforms than is currently the case by implementing a more flexible and less onerous regulatory framework for application to the commercial radio sector. 1.2 Options for the design of a legal and regulatory framework In designing a legislative and regulatory framework for a converging media environment, there are a variety of models that can be implemented. These models include:[3] Approach Description No regulation Markets are able to deliver the required outcomes. Self-regulation Industry collectively administers a solution to address citizen or consumer issues, or other regulatory objectives, without formal oversight from government or regulator. Other than established bodies of law (such as privacy, defamation etc.), there are no explicit ex ante legal backstops in relation to rules agreed by the scheme (although general obligations may still apply to providers in this area). Co-regulation Schemes that involve elements of self-regulation and statutory regulation, with public authorities and industry collectively administering a solution to an identified issue. The split of responsibilities may vary, but typically government or regulators have legal backstop powers to secure desired objectives. Statutory Objectives and rules of engagement are defined by regulation legislation, government or regulator, including the processes and specific requirements on companies, with enforcement carried out by public authorities. Each model above involves different levels of regulatory intervention and control, as depicted in the following representation: Figure 2 - The continuum of approaches - degrees of formal intervention [4] [3] Adapted from Ofcom, Identifying appropriate regulatory solutions: principles for analysing self and co- regulation, Statement, 10 December 2008, page 7. [4] Ibid. JULY 2013 PAGE 3 CONTEMPORARY COMMUNITY SAFEGUARDS INQUIRY SUBMISSION OF COMMERCIAL RADIO AUSTRALIA While regulation cannot be readily segmented into discrete boxes[5] and the implementation of a legislative and regulatory framework can involve the use of more than one approach, it is clear that there is currently a wide discrepancy between how traditional broadcast platforms are treated relative to new and emerging platforms, which remain largely unregulated. Commercial radio broadcasters are currently regulated through a combination of co- regulation and statutory regulation, broadly comprising: . co-regulation through industry codes developed by CRA in accordance with the requirements of section 123 of the BSA, which are registered with the ACMA after endorsement by a majority of the CRA membership and consultation with the listening public; and . statutory regulation through standards
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