Political Censorship of the Media? Comment by Elizabeth Beal, Director, Communications Law Centre at Victoria University "The press can never be used to any good purpose when under political issues. Media Watch challenged the ABC’s justifications in the control of an inspector." refusing documentary filmmakers access to archived material, an issue similarly discussed by Richard Harris, Executive Director of the Australiar William Blackstone (1765-69) Screen Directors Association. Government influence over the media has Commentaries on the Laws of England been explicitly made out by Senator Alston's complaints concerning the Commenting on most aspects of regulation of the media and ABC’s coverage of the Iraq war. communications industries is a high-risk activity. Discussions about Concerns involving timidity within the media and the potential for political appropriate regulation whether from a legal, policy or ethical basis, can censorship is not about the ABC but rather something that applies to the involve a level of adrenalin not necessarily experienced when working media generally - the ability to publish and control the story, including future in other areas of government policy or the law. This is because there is use. In this context we are at times required to review the counter-balances a high probability that one's comments, or some extract or adaptation or protections that the law has provided in relation to discussing political thereof, will be reported to the broader community. Not that this point matters. Some of these are presented below. alone is of any particular significance. It is common sense to expect that the media and communications industries will be interested in • In the absence of a contractual arrangement with a politician, that stories about themselves. This is the case whether the issue is reform of is, an explicit arrangement that "we won’t licence footage of the defamation law, disclosure of commercial contracts, interpretation of interview" there is no legal basis for requiring prior approval before the film classification guidelines, copyright protection for digital works, releasing footage. Aside from contract, there is no basis for legal examining broadcasters' adherence to advertising regulation or assessing ownership or control over one’s persona. the merits of suppliers' self-regulation. In making statements about such • A citizen's right to communicate on matters of government has been matters we expect publication and are not surprised by some publicised accepted by the High Court since the early 1990s in decisions such as rebuttal. Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR Accusations of political influence over the media are a clear exception to 106 and Nationwide News Pty Ltd v Wills (1992) 177 CLR 1. Furthermore the easy access mainstream media generally provides to "communications a constitutional defence to defamation actions was recognised in cases law" issues. The proposition that the media silences or censors itself as a such as Stephens v West Australian Newspapers (1994) 182 CLR 211 and result of political pressure is one that is seldom the focus of legal debate in Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104 and Australia. Furthermore, one would imagine that avenues for publication of later refined in Lange vAustralian Broadcasting Corporation (1997) 189 this view would not easily be made available if the suggestion were indeed CLR 520. a reality. • Fair dealing exceptions for newsworthy materials exist in sections 42 It is accepted by most that Australia has become increasingly litigious. and 103B of the Copyright Act 1968 (Cth). These exceptions are not Practising "defensive" law or adopting a stridently risk-conscious style restricted to a report which is current: Commonwealth vJohn Fairfax in the provision of legal advice is a natural response. This involves EtSons Ltd (1980) 147 CLR 39. The fact that news is reported with exhaustively listing all possible legal problems in undertaking a particular humour may still allow it to fall within these exceptions: Channel course of action such as the potential danger in publishing a story or Nine Pty Ltd v Network Ten (2002) 55 I PR 112. providing access to information. • Jurisprudential debate is occurring in both Australia and the UK in Some of the common claims for censoring criticisms or for denying access relation to the competition between the media and expectations of to information that are generally used by corporations or government privacy. In Australian Broadcasting Corporation v Lenah Game Meats agencies are: risk of prosecution for defamation; copyright restrictions; Pty Ltd [2001] HCA 63 some commentary was made in relation to the privacy concerns; possible breach of trade practices legislation or passing implied freedom to communicate on political matters and the court o ff actions; and contradictions to internal policies. Those working in the declined to restrain publication notwithstanding that the contested media particularly in investigative journalism, are well used to receiving footage had been obtained during a trespass. such reasons for denials to requests for information/images/footage. Notwithstanding the absence of any constitutional guarantee for the Recently the media itself has been criticised for adopting a cautious protection of speech in Australia, it is worth noting that the concept of approach to reporting and for refusing to grant access to archive 'prior restraint' (which includes any attempt by government or a court material. David Marr's Overland lecture 'The shape of the argument' to restrict the publication of material) has a history of poor reception on (September 2004) criticises the media for failing to report certain legal challenge.

page 22 - Issue 167 - Communications Update January 2005

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