False or misleading information in the media is not a new phenomenon but during the coronavirus pandemic, governments around the world have sought to enact new laws and regulations, or to strengthen existing rules, in order to address it. Here, we compare the rules governing print and broadcast news media (as distinct from social media) in the United States of America and Australia (the jurisdiction in which the authors write). Although laws and regulations often aim to strike a fair balance between upholding a right to communicate ideas[1] and a right to make informed decisions based on fact,[2] regulation and freedom of speech are uneasy bedfellows. Lawmakers must be ever mindful to ensure that intervention is reasonably adapted to achieving its stated aims.
The United States of America: First Amendment protects false speech in marketplace of ideas
In the United States, any attempt to govern the information marketplace will inevitably come up against First Amendment protections and a relatively weak regulatory framework. Despite concerns over false information arising out of the coronavirus pandemic, content-based speech regulation that survives the scrutiny of judicial review remains thin on the ground.
FOX News’ early downplaying of COVID-19 sparked debate in the United States. FOX presenters Sean Hannity and Trish Regan claimed the danger posed by the coronavirus was being overblown by critics of the Trump administration. On April 2, a not-for-profit organization called the Washington League for Increased Transparency and Ethics (WASHLITE) sued FOX News Media in Washington State Court.
WASHLITE argued that FOX News Channel, FOX Business, and other cable television companies were liable under state consumer protection legislation and had committed the tort of outrage by intentionally and recklessly inflicting emotional distress. WASHLITE also sought an injunction to prohibit FOX from “interfering with reasonable and necessary measures to contain the virus by publishing further false and deceptive content.”
FOX News General Counsel Lily Fu Clafee was quoted in the Times of San Diego as saying “[w]rong on the facts, frivolous on the law. We will defend vigorously and seek sanctions as appropriate.”[3] FOX News was supported by an amicus brief filed by the Internet and Television Association, an organization that represents cable programmers and distributors including their rivals, along with the Reporters Committee for Freedom of the Press. WASHLITE made the radical argument that First Amendment protections didn’t extend to FOX News because they were a cable television channel. Georgetown Professor of Law Erin Carroll wrote in Just Security that “despite any visceral appeal to this suit (or the others that could follow), it is unlikely to be legally successful.”
As predicted, the claim against FOX News ran up against the gold standard of positive free speech protection. The First Amendment of the U.S. Constitution bars liability against publishers even if it was foreseeable that the information they disseminated might be used in a negligent or dangerous manner. Superior Court Judge Brian McDonald labelled the lawsuit “laudable” but ultimately struck out WASHLITE’S claim, noting that:
if there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.
Free speech protections are not the only thing standing in the way of the success of claims like WASHLITE’s. These claims will also fail in tort where they seek to establish a duty of care to the public at large or fail to make out the requirement of causation.[4] Other regulations in the United States would also be of little use in similar circumstances. The Federal Communications Commission’s (FCC) “broadcast hoax” rule and a “news distortion” policy may be used to target broadcasting false information in a pandemic. In adopting the broadcast hoax rule in 1992, the agency noted that “the First Amendment does not preclude civil liability for broadcasts that create a foreseeable risk of personal injury.”[5] However, in practice, the context or disclaimers suggested by the broadcast hoax rule are rarely followed and the FCC has been criticised for its inaction relative to other regulators. In her piece for Just Security, Carroll notes that:[6]
[T]he FCC has no direct authority over network news providers like FOX, ABC, NBC, or CBS. Any legal action under the broadcast hoax rule would need to be taken against the stations that carry FOX News, making such an action more difficult. The news distortion policy is just that, a policy, and while violation of it can inform the FCC’s licensing decisions, it otherwise has limited bite.
Australia: Self and co-regulation without equivalent free speech protection
Australia is different to the United States as we lack constitutional protection for free speech that is equivalent to a positive personal right. Although we also have a regulatory framework that is not overly interventionist, future attempts to govern the field of false information may have the potential to alter the delicate relationship between the press and the State.
Similar claims to the FOX News suit would also fail in the current legal and regulatory landscape in Australia. This is true in tort law for the same reasons explained above, and also in consumer law. Although we have a robust consumer protection framework, practically speaking, unless false or misleading representations were made in advertisements or self-promotions, the media would be able to defend such claims.
The U.S. Constitution was referred to by the framers of the Australian Constitution, and our High Court has been influenced by American constitutional jurisprudence and free speech tradition.[7] Our system of law and regulation has evolved without a personal right of free speech equivalent to the First Amendment but the High Court has recognised that an implied freedom of communication exists under the Australian Constitution in relation to political and government matters.[8] The lack of personal free speech protection has generally allowed firmer constraints on speech and freedom of the press than in the United States, but the accuracy of print and broadcast reporting has not been heavily regulated.
The Media Entertainment and Arts Alliance’s (MEAA) Journalist Code of Ethics is an instrument which informs journalists’ ethical practice and more formal accountability schemes are found in the codes of practice of the Australian Press Council (APC) and the Independent Media Council (IMC) for print and online publishers, and in the broadcasting codes of practice registered with the Australian Communications and Media Authority (ACMA). Television and radio broadcasting have historically been burdened with more regulation than the publishing sectors.[9] Insofar as false or misleading information is concerned, reporting errors of news publishers are generally self-regulated by the APC and complaints about news broadcasts on television and radio are subject to co-regulation through an industry code overseen by ACMA. Neither the APC nor ACMA have the power to order compensation, fines or other financial sanctions for false or misleading statements in the news.
The kinds of actions taken by regulators are minimal and center mainly on the compliance pull of censuring media organizations. For instance, in March 2020 ACMA ruled that Seven News in Queensland misled viewers when it said a local council member “was cleared of allegations made against him” when in actual fact the Queensland Crime and Corruption Commission decided not to investigate the council member.[10] Seven will circulate a copy of ACMA’s investigation report to its Queensland editorial staff and include the decision in future training sessions to ensure compliance.[11] In-house counsel at media companies view these rulings as a form of moral or reputational hazard, rather than legal hazard.
ACMA’s website claims that “accuracy and accessibility of news and other critical information broadcast on commercial and national broadcasters remains essential during the pandemic” and promises to “prioritise investigating allegations of inaccuracy of news content that directly relate to COVID-19 during this time.”[12] Despite ACMA’s undoubted readiness to look into the problem of false information during the pandemic, the outcomes of their accuracy and impartiality investigations into television[13] and radio broadcasting[14] have not yet cited any COVID-19 related content. Australian Press Council adjudications in 2020 have similarly not cited any COVID-19 related content.[15] It must be noted regarding ACMA that complaints may only be made after first complaining to the broadcaster and either not receiving a satisfactory response or not receiving a response within 60 days.[16] With respect to the APC, complaints may be made directly to the Council but in some circumstances, the Council may ask the complainant to raise the complaint directly with the publication and then come back to the Council if its further involvement is sought.[17] Plainly, it does not necessarily follow that a lack of adjudications on COVID-19 means there has been no misleading or inaccurate reportage of the pandemic in Australia. However, grievances that are in the public domain (whether the subject of an adjudication or not) appear to be on the lower end of the scale of severity or unrelated to public health.[18] That very few complaints have attracted regulatory or public attention would seem to suggest that Australian media (like the government on which it reports) have largely avoided disseminating false information that would attract citation.
Self-regulation has historically been the object of some derision in Australia as a “toothless tiger” beholden to industry. The APC was first established in 1976 on a purely voluntary basis and is funded by its members. The media mogul Kerry Packer said before the House of Representatives Committee into the Print Media in 1991 that the APC was “a complete and absolute piece of window-dressing.” It has, however, in recent years greatly strengthened its capacity and independence by increasing its funding and membership, requiring members to enter into contracts which require commitment and funding for three years, and requiring members to prominently advertise APC complaints procedures and publish APC adjudication decisions that exactly conform to required words and placement.[19]
Like other governments, Australia has undertaken a number of reviews into media regulation in recent years. In 2012, the Finkelstein Review called for a government funded “super regulator,” the News Media Council, to be created in order to set and enforce journalistic standards across all media.[20] In 2013, then Communications Minster Steven Conroy attempted unsuccessfully to establish more government control over independent bodies regulating the media, including through the introduction of a Public Interest Media Advocate that would have been responsible for overseeing self-regulatory bodies.[21] More recently, the Australian Consumer and Competition Commission (ACCC) examined digital platforms and their impact on the supply of news and journalistic content and recommended that digital platforms with more than 1 million monthly active users in Australia should implement an industry code of conduct to govern the handling of complaints about disinformation in relation to news and journalism.[22]
Calls for more regulation will continue to surface but the model for print and broadcast regulation has thus far endured due to concern over government interference or oversight. Recent legislative attention has focused not on print or broadcast media but on ensuring greater transparency about who is behind a political message[23] and on the vexed issue of false information on social media,[24] including that disseminated by foreign actors.[25] In a recent position paper, ACMA supported an industry code to govern online misinformation on the basis that false and misleading information has “been shown to have real-world consequences, including personal illness and damage to property.”[26] This is true as a general statement about attendant harm, but this position paper, like many other writings on the subject, appears to conflate the “potential harm” of misinformation with its mooted “impact” on “the broader Australian community.”[27] Surveys, examples of “fertile circumstances” for the spread of misinformation, and the language of an “infodemic” may not be sufficient to convince Australians of the “acute and chronic harms” that require a particular remedy.[28]
Of course, we should avoid complacency on false information, most notably on digital platforms due to their distributed and networked nature, and their inherent vulnerability to foreign actors who may seek to disrupt Australia’s democracy and values. We should not, however, imagine that the potential harm of false information is exactly the same the world over, or forget that Australia has, by global standards, an educated and engaged population and a less partisan print and broadcast media than other countries.
Judges and bureaucrats are not experts at the difficult fact finding mission that may be required under more expansive regulatory frameworks, and while nobody is suggesting that we would follow countries such as Singapore, Malaysia, Russia and Fiji and enact fake news legislation that could be used to severely curtail free speech, Australia is not immune to restrictive laws. This is evidenced by a raft of legislation introduced in recent years which undermines protections for journalists, whistle-blowers and confidential sources. We must be aware of the possibility that intervention with noble intentions may have unintended consequences. For instance, in Germany, fake news laws implemented in 2018 led to difficulties with enforcement and unintentionally targeted legitimate content, prompting a government review and complaints from the German Federation of Journalists.[29] Unlike in the United States, the impact of any regulatory encroachment on freedom of speech could be magnified in Australia in the absence of comparable constitutional safeguards.
The regulation of our media has always been an intensely political question on which reasonable minds may differ. It is the authors’ view that a multifaceted approach that supports existing self and co-regulatory schemes, education and independent fact checking organizations can help to ensure that we are all able to make informed decisions in the marketplace of ideas. Whatever the threat, we must not trespass on the more sensitive aspects of relations between the press and the State without first examining whether the cure may be worse than the disease.
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[1] Mill, John Stuart. On Liberty. London: Longman, Roberts & Green, 1869.
[2] Kant, Immanuel, James W. Ellington, and Immanuel Kant. Grounding for the metaphysics of morals ; with, On a supposed right to lie because of philanthropic concerns. Indianapolis: Hackett Pub. Co, 1993.
[3] See https://timesofsandiego.com/business/2020/04/02/washington-state-group-is-1st-to-sue-FOX-news-for-calling-coronavirus-a-hoax/.
[4] See Carroll, Erin. ‘Lawsuit against FOX News over Coronavirus Coverage: Can it succeed? Should it?’, Just Security 10 April 2020. Available at https://www.justsecurity.org/69556/lawsuit-against-FOX-news-over-coronavirus-coverage-can-it-succeed-should-it/.
[5] Amendment of Part 73 Regarding Broadcast Hoaxes, MM Docket No. 91-314, Report and Order, 7 FCC Rcd 4106, 10 – 11 (1992), Available at https://docs.fcc.gov/public/attachments/FCC-92-208A1.pdf.
[6] See Carroll, Erin. ‘Lawsuit against FOX News over Coronavirus Coverage: Can it succeed? Should it?’, Just Security 10 April 2020. Available at https://www.justsecurity.org/69556/lawsuit-against-FOX-news-over-coronavirus-coverage-can-it-succeed-should-it/.
[7] For a detailed exposition, see Stone, Adrienne. ‘Freedom of Political Communication, the Constitution and the Common Law’ [1998] UMelbLRS 1. Available at http://138.25.65.17/au/journals/UMelbLRS/1998/1.html#fn3.
[8] Nationwide News Pty Ltd v Wills (1992) 177 CLR 1. See also see Stone, Adrienne. ‘Freedom of Political Communication, the Constitution and the Common Law’ [1998] UMelbLRS 1. Available at http://138.25.65.17/au/journals/UMelbLRS/1998/1.html#fn3.
[9] ACMA’s industry responsibilities in television and radio are governed respectively by the Broadcasting Services Act 1992 (Cth) and the Radiocommunications Act 1992 (Cth). This more extensive regulation was formerly justified on the basis of the airwaves being a scarce public resource and due to the special power of broadcast media to influence public attitudes, but this distinction is becoming less relevant over time. Broadcasters must obtain licences and comply with complex, sector-specific rules under a co-regulatory regime.
For more information, see Australian Competition and Consumer Commission, Digital Platforms Inquiry, Final Report, June 2019. Available at https://www.accc.gov.au/focus-areas/inquiries/digital-platforms-inquiry/final-report-executive-summary.
[10] Investigation Report no. BI-521 5 March 2020, the Australian Communications and Media Authority. Available at https://www.acma.gov.au/publications/2020-03/report/bi-521-investigation-report.
[11] See https://mumbrella.com.au/acma-rules-seven-news-queensland-misled-viewers-620009.
[12] See ‘Investigations into TV broadcasters’, Australian Communications and Media Authority, accessed 15 June 2020. Available at https://www.acma.gov.au/investigations-tv-broadcasters.
[13] ‘Investigations into TV broadcasters’, Australian Communications and Media Authority, accessed 15 June 2020. Available at https://www.acma.gov.au/investigations-tv-broadcasters.
[14] ‘Investigations into radio broadcasters’, Australian Communications and Media Authority, accessed 15 June 2020. Available at https://www.acma.gov.au/investigations-radio-broadcasters.
[15] ‘ Adjudications and other outcomes’, Australian Press Council, accessed 15 June 2020. Available at https://www.presscouncil.org.au/adjudications-other-outcomes/.
[16] See https://www.acma.gov.au/complain-about-program-tv-or-radio.
[17] See https://www.presscouncil.org.au/making-a-complaint/.
[18] See e.g. this post about a Sky News Headline https://twitter.com/beneltham/status/1248423674987679745. The Sky News headline discussed was promoting the following story https://www.skynews.com.au/details/_6148457238001. See also the Murray Darling Basin Authority have written to Nine Entertainment complaining about alleged factual errors in reportage about water management in the pandemic, Available at https://www.mdba.gov.au/media/mr/complaint-60-minutes-coronavirus-growing-pain.
[19] Podger, Andrew. ‘Fake News: Could Self-Regulation of Media Help to Protect the Public? The Experience of the Australian Press Council.’ Public Integrity Volume 21, 2019. Available at https://www.tandfonline.com/doi/full/10.1080/10999922.2018.1549341.
[20] Finkelstein, Ray. Report to Minister for Broadband, Communications and the Digital Economy, Independent Inquiry into the Media and Media Regulation, 28 February 2012.
[21] See https://www.abc.net.au/news/2013-03-12/conroy-announces-media-reforms/4567550?nw=0.
[22] See Australian Competition and Consumer Commission, Digital Platforms Inquiry, Final Report, June 2019. Available at https://www.accc.gov.au/focus-areas/inquiries/digital-platforms-inquiry/final-report-executive-summary. Recommendation 15
suggests that such codes should be registered with and enforced by an independent regulator, such as the
Australian Communications and Media Authority.
[23] For example, under the Commonwealth Electoral (Authorisation of Voter Communication) Determination 2018 (Cth), all online advertisements that deal with electoral matters must include the name and address of a person responsible for the advertisement.
[24] See Australian Competition and Consumer Commission, Digital Platforms Inquiry, Final Report, June 2019. Available at https://www.accc.gov.au/focus-areas/inquiries/digital-platforms-inquiry/final-report-executive-summary. See also the Australian Government’s response to the Digital Platforms Inquiry at https://treasury.gov.au/publication/p2019-41708.
[25] See https://www.theguardian.com/australia-news/2020/jun/11/home-affairs-flags-steps-to-help-australians-identify-fake-news-by-foreign-powers. See also https://www.afr.com/politics/federal/alarm-sounds-over-foreign-social-media-platforms-20200318-p54b78.
[26] ‘Misinformation and news quality on digital platforms in Australia – A position paper to guide code development’, Australian Communications and Media Authority, June 2020. Available at https://www.acma.gov.au/australian-voluntary-codes-practice-online-misinformation.
[27] ‘Misinformation and news quality on digital platforms in Australia – A position paper to guide code development’, Australian Communications and Media Authority, June 2020. Available at https://www.acma.gov.au/australian-voluntary-codes-practice-online-misinformation.
[28] ‘Misinformation and news quality on digital platforms in Australia – A position paper to guide code development’, Australian Communications and Media Authority, June 2020. Available at https://www.acma.gov.au/australian-voluntary-codes-practice-online-misinformation.
[29] See https://www.djv.de/startseite/profil/der-djv/information-in-english.html.