1999 Spry Memorial Lecture

In focusing on the role of public broadcasters in countries such as Canada and Australia, I begin this speech by examining several assumptions that underlie broadcasting in general in order to reconsider their relevance to the new technologies and challenges faced in the coming millennium. What role, if any, should governments have in broadcasting regulation? What part do regulatory regimes at the national level play in the purported ‘global village’? How can examining the historical justifications for regulation in the examples of Canada and Australia, for instance, help us understand self-regulation as a balance between industry efficiency and public expectation? By raising afresh considerations such as these, I intend to offer an interpretation of how self- regulatory systems are necessary to ensure the public interest, especially in new broadcasting media such as the Internet.

What role should government have in broadcasting regulation? Following the social philosopher Rousseau, I begin my response to the question by first discussing the nature of government, and specifically how democratically elected governments are obliged to realise the public good consented to in their election. As the guiding principle for the process of public decision making and the outcome of such a process, I suggest that a concept of the public good as not something fixed and monolithic, but determined by circumstance, provides the sole justification for governments to regulate society in general and broadcasting in particular.

Within the United States, Canada, the United Kingdom and Australia, broadcasting has traditionally been regulated for reasons of dealing with a scarce resource, the broadcast frequency spectrum.

I suggest that underlying such justifications was the sense that government regulation enforced a social or “civic” responsibility for broadcasting content, formulated in the BBC Charter to “inform” and “educate” as well as to “entertain” the public.

Governments implicitly recognized the considerable influence broadcasting had on society as a phenomenon of the masses and increasingly embraced this as their public responsibility, shifting the function of regulation to today’s present concerns – an interest in quality content and the need for accountability in broadcasting, especially relating to portrayals of violence and sex, the fostering of national culture, public education, information and entertainment.

Since 1986 in countries such as Canada and Australia, governments have recognized the emerging civic model for broadcasting by restructuring the regulatory framework to encourage forms of “self-regulation”. Where the regulator is able to intervene if the industry regulation fails, the system is more properly termed “co-regulation” and forms the model for the Australian approach to broadcasting.

The speech then focuses on the Australian experience as a test case for broadcasting in general, and examines how the change in Australian broadcasting history from 1932 to 1999, from a government-regulator to a highly consultative and co-regulatory system, reflects the change in perception from issues of public good and property to issues of promotion and protection of the public interest and national culture. I argue that the greatest challenge facing Australian co-regulation, and other co- and self-regulatory systems worldwide, is that of staunchly defending the public interest and cultural identity in the face of industry pressure to sideline such issues.

Perhaps nowhere else is this challenge more immediate than in relation to the internet, which I argue ought in many respects to be subject to a similar form of self- or co-regulation as broadcasting media. Unlike the frameworks for regulating other media, legislation for the Internet requires the capacity to effectively enforce national standards while simultaneously developing standards at an international level. There is then the need for international cooperation at a high level to establish mutual links in technology and legislation to keep up to date with the transnational nature of the Internet and the many differing notions of public interest that it reflects in being an international environment.

The regulatory approaches I outline in Australia, Canada and the United Kingdom balance the right to free expression with the right of communities to determine their local and national interest. I conclude that such approaches, which rely upon the healthy cooperation between industry and public interest, propose a vibrant democratic alternative to the United States model, wherein the discussion of broadcasting regulation is dominated by the free speech lobby at the possible cost of the broader public interest.

1 – Introduction

I am deeply honoured to have been invited by Professors Raboy and Caron to present the 1999 Spry Memorial Lecture. In recent years these addresses have focused on the role of public broadcasters which is highly appropriate given Graham Spry’s eminent contribution to the role of public broadcasting in North America. In this address, while I will certainly give my views on the crucial role that I believe public broadcasters do and should have in countries such as Australia and Canada, I wish to move beyond the role of the public broadcaster itself and to examine a very fundamental question – why, as we move into the digital age of frequency abundance, should governments continue to have a significant role in developing and implementing regulatory regimes for broadcasting? If governments should continue to involve themselves in this process, what should the appropriate model be? And how do these approaches in relation to broadcasting interact with the rapid uptake in Europe, North America and Australia, of the Internet and other online services? It is, I believe, impossible to pursue a fundamental dissection of these issues without confronting the basic question of the respective roles which governments, parliaments, regulators, industry and individual citizens have on the cusp of the Twenty First Century. It is fashionable to talk of the global village, the global society, global industries and global markets, but where is the governance for the global at the global level? Who creates such governance as exists and where does that leave the individual citizen of the nation state as a participant in decision-making about such governance?

I will not hesitate to suggest that the overwhelming justification for all forms of governance at any level must be the public good. But what is the public good, how is it to be determined and by whom? And in what shape or form should governance be delivered – by governments themselves, or parliaments, or regulators, courts or industry bodies? Once again, I will not hesitate to suggest that in societies such as ours, ultimately any system must be grounded in the consultation and consent of the individual citizen through democratic processes. If industries seek to govern themselves through self-regulation then the rationale for them to do so is not because it profits the industry that this be done, but rather because this benefits the citizen through better administration, systems, accountability and outcomes. How is the citizen’s view of the public good to be consulted, how is the citizen’s disquiet with the way in which services are delivered or with the content of those services to be expressed? These questions invite the answer that a balance must be sought between industry efficiency and public expectation, and that systems must be in place which ensure that where there is conflict it is in the end the public interest which is paramount in decision making. If this is so, then there must be some agency which is able to guard the public interest in such processes as the delivery of broadcasting and online services. The establishment by parliament of such an agency and the interaction of such an agency between citizens, policy makers and industry bodies produces a regulatory framework, often referred to as self-regulation but which is more properly called co-regulation – that is to say, a balance is struck between the need of a mature and rapidly evolving industry such as broadcasting to accept responsibility for itself, and the need of the individual citizens to have the means to ensure that their interests are being guarded in the implementation of self-regulatory regimes. I will in my written remarks, but not in this speech, explore a little of the history of regulation of broadcasting in Australia. In this speech I will show how the lessons drawn from the Australian experience with the broadcasting industry have been relevant to consideration of the appropriate framework for dealing with at least some of the many issues relating to online services in Australia. I remain in the end, and in the face of recent international developments in Yugoslavia which challenge this principle, a champion of the role of the nation state to determine and govern its own affairs. My rationale for this is fundamentally that at this point in time the needs and rights of the individual citizen are foremost and on the verge of the third Christian millennium there is no international or transnational decision making body, other than the European Parliament, which is emplaced through the democratic process of citizen choice. Wherever national parliaments are the bodies which give outlet to the voice and choice of individual citizens, it will be appropriate and indeed desirable that it be national parliaments which settle the overarching policy and rules for the public good.

2 – The concept of government for the public good

The recent NATO intervention in Yugoslavia has called into question the unchallengeable integrity of the nation-state as supreme arbiter of the destinies of all those within its borders. As eminent a humanist as Vaclav Havel has said in “Kosovo and the End of the Nation-State” that there is every indication that the glory of the nation-state as the culmination of every national community’s history, and its highest earthly value … has already passed its peak, because

“human beings are more important than the state… The State is a human creation [but] human beings are the creation of God. In the next century I believe that most states will begin to change from cult-like entities, into less powerful and more rational administrative units that will represent only one of the many complex and multi-leveled ways in which our planetary society is organized. [The] conditions toward which humanity will, and in the interests of its survival must, move will probably be characterized by a universal or global respect for human rights, by universal civic equality and the rule of law, and by a global civil society.” (1)

While I accept that these remarks contain great wisdom and probable foresight, I believe they also contain the nub of the conundrum – if the individual human is to be given protection, recognition and voice, then who else but the lawfully constituted and democratically elected national parliaments and governments currently exist to do so? Organizations such as the United Nations and NATO are not democratically elected and are not, except in the most indirect ways, accountable to individual citizens for their actions. The only genuinely transnational body of constitutional form and with legislative powers democratically chosen by individual citizens is the European Parliament, whose mandate is limited. While Vaclav Havel suggests a direction humankind may go in, we are only at the very beginning of such a journey. At this moment, in much of the world it is only national parliaments and the governments which derive their mandate from democratic election which can be said to give voice to the individual citizen, and must therefore be seen as the individual citizen’s most appropriate voice in terms of policy, legislation and administration of human affairs.

In taking this view I endorse the position put by Bernard Manin in his essay ‘On Legitimacy and Political Deliberation’ :

“that legitimate law is the result of general deliberation, and not the expression of the general will” and that “it is the process by which everyone’s will is formed that confers its legitimacy on the outcome, rather than the sum of already formed wills. The deliberative principle is both individualistic and democratic. It implies that all participate in the deliberation, and in this sense the decision made can reasonably be considered as emanating from the people.” (2)

As I have said before, nowhere at the international level, other than in the election processes for the European Parliament, is there a decision-making body which allows democratic expression to the views of individual citizens in the shaping of the rules that govern humankind. Nor is there a sign that in the decades ahead such institutions will emerge. The nation state equipped with democratic processes remains for the foreseeable future the unit best equipped to allow the individual citizen free and fair capacity to shape decision-making through the selection of parliaments, installation of governments, passage of legislation and delivery of administration. For all of the imperfections that may arise within this construct, the democratic process has no real rival with any similar claim to respect or legitimacy. The most extreme champions of cyberspace may believe they do, but they simply do not and I believe will not in the foreseeable future.

So given my view that only the nation state based on democratic processes provides an adequate outlet for expression of the individual citizen in the shaping of laws and forms of governance, what is or ought to be the end toward which such nations should strive through the delivery of government, law and administration? I would like to suggest that the answer to this is simply that the state must act in all its processes in the public interest to secure the public good.

3 – The Public Interest and the Public Good.

Jean-Jacques Rousseau followed a simple and inexorable path in exploring the way in which to identify the public good:

“The firm will of all the members equals the general will. By its exercise they are citizens, and free. When a law is proposed in the people’s assembly, what is asked to them is not exactly whether they approve of or reject the proposition, but rather whether it conforms to the general will, which is also theirs. Each person in voting, gives his opinion on this matter, and the general will is then deduced by counting the votes… It follows from the preceding that the general will is always right and always tends towards the public good.” (3)

On this basis we could conclude that any expression of the general will through democratic processes would always be for the public good.

Yet even Rousseau conceded the flaws inherent in this approach:

“One always wishes for one’s own good, but one cannot always see it. The people cannot be corrupted, but they are often deceived, and it is only then that they seem to wish for what is bad.” (4)

Whilst I do not wish in this paper to be drawn into an exploration of the various strands of legal theory represented by Grotius, Pufendorf, Locke and others on the one hand, and Hobbes and Rousseau on the other, it seems that in both strands there is a real connection between the concept of the public good, the protection of the proprietary rights of the individual citizen and the safety of their person and assets. It is the reconciliation of these views that finds reflection in the words of such a document as the “Virginia Declaration of Rights” which states in section 1 that:

“all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.” (5)

The public good may thus be seen on one level to be an amalgam of individual rights entitlements and benefits, not least to property and safety. However, there must inevitably be a rivalry inherent in the competing rights, entitlements and benefits of the many individuals that make up a community or a nation. In identifying the public interest in securing the public good, a balance must therefore be struck between the rights and entitlements of the individual citizen and the wider rights of the whole community to stability and order. This is the role of parliaments and policy-makers. It is, I believe, also the role of any administrative body charged with administering laws in such societies and nations. The Broadcasting Services Act 1992 in Australia recognizes that for a body of this kind there is a need to strike balances between competing areas in providing at s.4(2) that the Parliament

“intends that broadcasting services in Australia be regulated in a manner that, in the opinion of the Australian Broadcasting Authority, enables public interest considerations to be addressed in a way that does not impose unnecessary financial and administrative burdens on providers of broadcasting services.” (6)

In 1997 the present administration of the United States of America highlighted the importance of the public interest by establishing the Advisory Committee on Public Interest Obligations of Digital Television Broadcasters to recommend appropriate legal obligations and market place rules for the digital television era. This committee has in turn referred back to one of the early seminal statements in the development of US broadcasting policy, a speech by Herbert Hoover, as US Secretary of Commerce to the Fourth National Radio Conference in Washington DC in November 1925, in which he said: 

“the ether is a public medium, and its use must be for a public benefit…. The dominant element for consideration in the radio field is, and always will be, the great body of the listening public, millions in number, country-wide in distribution.” (7)

Whilst political philosophers may have the luxury of proposing absolute theories to underpin notions of governance, an administrator such as myself cannot afford to see the world we deal with in too rigid or structured a way. Matter and society are more fluid than Locke or Rousseau contemplated. No absolute rules are therefore likely to be practical. However, I would like to propose some principles to help focus on these twin issues of the public interest and the public good or benefit, as follows:

  • The public interest is that interest which governments, parliaments and administrators in democratically governed nations at least must accept and reflect in laws, policies, decisions and actions in ensuring peace, order, stability, security of person, property, environment and human rights for the overall welfare of the society and nation who, through constitution and election, allow the individual citizen to renew and reflect their agreement and consent to be so governed and administered
  • In pursuing that public interest, balances need to be struck from time to time and from circumstance to circumstance, about the nature of the public interest in each case because the public interest is not constant and unchanging in every situation.
  • Whilst the rights and entitlements of the individual citizens must be paramount in assessing the public interest, the requirement to ensure order, stability, security of person and property all require democratic institutions to identify the need to ensure economic well being, which procures employment and overall prosperity, the provision of services, the supply of food, clothing and housing, all of which are essential for the overall well-being of the individual citizen.
  • Accordingly, democratic societies and their institutions must, as part of their pursuit of the public interest, balance the needs of the individual citizen with the needs of the corporate citizen which, though without a vote in the democratic process, is essential to the creation of employment, income, prosperity, supply of goods and services necessary to the well-being of the individual citizen.
  • Parliaments themselves are not able to lay down all of the indicia for assessing the public interest in every circumstance, and institutions are required, operating under the oversight of parliaments, to undertake the delegated task of assessing where this public interest lies and how best to achieve it in relation to specific issues and specific circumstances.
  • Such institutions need to undertake public consultation and research and draw on expert knowledge to assist with their roles.
  • The citizen, individual and corporate, must be consulted by such bodies as part of the process of identifying what the public interest is in specialist fields and in relation to specific issues.
  • The public good is a phrase which may, on the one hand, refer to an asset or chattel in the public domain or public ownership, such as Crown Lands or rivers and coastal seas or the airwaves or cable bandwidth.
  • The public good is however more generally a phrase which is used interchangeably with the phrase the “public benefit” to describe the outcome or the product which is or is sought to be achieved through the policies and processes of democratic institutions, the actual attainment of results which deliver to the individual citizen the level of peace, order, stability, security of person, property, prosperity, environment or rights.
  • The public good may take the tangible and measurable or quantifiable form of a physical asset, such as roads, schools or hospitals.
  • Very often, and far more problematically, the public good may take the form of an intangible outcome which is difficult to measure, such as the provision of services or indeed the nurturing of entirely new industries or technologies, such as broadcasting, telecommunications, the Internet and the migration from analog to digital technologies.
  • Yet again, very often it is only after these services have been implemented that one can measure the extent to which they are effective in providing a public good.
  • One of the few ways of measuring this is through public consultation or other research devices for measuring public opinion to assess whether the individual citizen is collectively and largely satisfied with the service provided.
  • So the public good may be tangible or intangible, measurable and identifiable or difficult to measure and difficult to identify but which takes the form of a product, service or outcome resulting from the democratic decision-making process in pursuit of the public interest. For example, the development of local content rules for television is a public-good service resulting from a public-interest based process of CRTC in Canada and the Australian Broadcasting Authority in Australia. The actual television programs resulting from those rules are a public good product resulting from the same process.

If my reasoning is sound, then in democratic societies and democratic institutions the public interest and the public good may be represented simply as follows:

  • The guiding principles for the process of public decision making
  • The outcome or result or product of such a process.

I have in this approach already used examples from the fields of broadcasting, telecommunications and the Internet to illustrate my case. I would now like to move on to consider in greater detail the way in which these principles can, should, have and will apply to the fields of broadcasting and the Internet.

4 – Broadcasting as a Public Good

To begin with, I will consider the first of the meanings I referred to in relation to the public good, as an asset or chattel in the public domain or public ownership. This is a particularly significant issue here because so much of broadcasting policy since the 1920s has stemmed at least at first glance from the view that the broadcasting frequency of the airwaves is a scarce public asset or public good and has required to be administered, dealt with and disposed of, or allocated, in very particular and specific ways. To reprise the quotation of 1925 from Mr Herbert Hoover: “the ether is a public medium, and its use must be for a public benefit”.
Following a period of chaotic competition for use of the radio frequency spectrum in the early 1920s in the United States on 11 March 1924, Herbert Hoover as Secretary for Commerce addressed the US House of Representatives Hearing before the Committee on the Merchant Marine and Fisheries on the theme “To Regulate Radio Communication, and for other Purposes”.

It is urgent that we have an early and vigorous reorganization of the law in the federal regulation of radio. Not only are there questions of orderly conduct between the multitude of radio activities … but the question of monopoly in radio communications must be squarely met.

It is not conceivable that the American people will allow this newborn system of communication to fall exclusively into the power of any individual group or combination. We cannot allow any single person or group to place themselves in a position where they can censor the material which shall be broadcast to the public, nor do I believe that the Government should ever be placed in the position of censoring this material.

Radio communication is not to be considered as merely a business carried on for private gain, for private advertisement or for entertainment of the curious. It is a public concern impressed with the public trust and to be considered primarily from the standpoint of public interest to the same extent and upon the basis of the same general principles as our other public utilities. (8)

A frequency war between the USA and Canada in the mid 1920s had in fact highlighted the need to regulate use of radio frequency spectrum. The passing of the US Radio Act and the establishment of the Federal Radio Commission in the USA in 1927 took the first serious steps to ensure stability in the allocation of the use of radio frequency in North America.

In a message to the US Congress in late 1926, President Calvin Coolidge said, “The whole service of this most important public function [of radio broadcasting] has drifted into such chaos as seems likely, if not remedied, to destroy its great value. I most urgently recommend that this legislation [the Radio Bill] should be speedily enacted”(9).

The new Radio Act became law on 23 February 1927, establishing the Federal Radio Commission to define the AM broadcast band, standardise channel designation by frequency and other technical and licensing matters. The Act conferred on the new Commissioners powers to make decisions “as public convenience, interest, or necessity requires”, the so-called PICON Standard. The US Communications Act of 1934 in turn established the Federal Communications Commission (FCC) to undertake regulatory responsibility for allocation of radio frequency spectrum and licensing of commercial radio services on the primary justification of scarcity of frequency and the need to take into account “public interest, convenience and necessity” to achieve the common good (10).

One US Judge has said of this standard “It would be difficult, if not impossible, to formulate a precise and comprehensive definition of the term ‘public interest, convenience, or necessity’, and it has been often said and properly by the courts that the facts of each case must be examined [by the Commission] and must govern its determination” (11).

While at the outset the preoccupation of the US regulators was with frequency allocation, the PICON Standard gave it wide ranging discretion to rule on other matters than the purely technical.

Patricia Aufderheide in her recent book “Communications Policy and the Public Interest” has observed that in the USA: “the term public interest is grounded in a notion of governmental responsibility to create conditions for a healthy business that can serve a range of consumers… [The] 1934 Communications Act was part of a larger process of institutionalising ‘corporate liberalism’. Corporate liberalism is a set of regulatory and legal arrangements that makes possible stable, large-scale businesses and complex markets. The creation of monopolies, cartels and sectors typified by substantial market power was seen as having powerful benefits” (12). Perhaps the most telling comment of the US regulator’s dilemma in enforcing the “public interest” test was that of the former FCC Chairman Reed Hundt who said on the eve of his retirement in 1997:

“The primary job of the FCC Chairman historically was to give licences to the airwaves to a limited group of folk and to rig markets so none would ever do poorly. The good reason was to permit the firms to do well economically; the bad effect was a closed ologopolized market with little diversity of viewpoint. The primary job now ought to be the opposite: introduce risk and reward to all sectors of the communication business. The problem then is how to promote non-commercial purposes, such as conducting civic debate about political issues or educating kids, without simply relying on a cosy partnership between government and a tiny group of media magnates.” (13)

At this point it is worth noting the perceived view in the USA that the Commissioners interpretation of the public interest has too often aligned with the perceived interests of the commercial broadcasters (14).

This charge of regulatory capture is one which all communications industry regulators around the world face and must confront.

In Canada the 1913 Radiotelegraph Act gave the Canadian federal government the power to license use of radio frequency. A dispute in 1928 between a number of Canadian radio stations operated by rival church and religious groups led the Canadian Minister for Marine and Fisheries, the relevant licensing authority, to reallocate entitlements to use of some radio frequencies in Canada, resulting in the shutdown of four stations operated by the Bible Students. The resulting public furore led to a declaration by Marine Minister P.J.A. Cardin, that the Canadian Government would adopt “a policy of national broadcasting along the lines adopted…. by the British Government” (15).

The ensuing debate raised the core issues of property rights in radio frequency, competition, censorship, state ownership, local content and foreign control which run as leitmotifs through most discussions of broadcasting policy in Britain, Canada and Australia from the 1920s to the present day. However, a fundamental threshold issue was the scarcity of the spectrum and the need for an ordered way of dealing with it and allocating it in order to avoid chaos. Minister Cardin stated that “the use of the air has never been free, and so far as radio is concerned, the use of the air cannot be free, because if it were open to anyone to use the few channels of communication that we have in the radio service, the result would be chaos” (16).

The result of this debate was the establishment in late 1928 of a Royal Commission into Canadian broadcasting chaired by Sir John Aird. Whilst my Canadian audience will be entirely familiar with the subsequent five year history which led to the passage of Canada’s Radio Broadcasting Act of 1932, for me one of the pleasures of this task I am today undertaking has been to learn so much about Canadian broadcasting and about the remarkable role played by the late Graham Spry and his Canadian Radio League in the settlement of the foundations of all subsequent Canadian broadcasting policy. Most of this I will refer to later. In this part of my paper I want to touch only on the fact that the outcome of the debate was the establishing of the Canadian Radio Broadcasting Commission as a government-appointed body of three commissioners who would both regulate broadcasting and carry on the business of broadcasting in Canada (17).

I note that Graham Spry himself opposed the establishment of a commission so appointed rather than through a corporation, because “the type of men attracted to a position on the Commission would be quite inferior to the type that would respond to the challenge of promoting positively a great national network” (18). I leave to others an assessment of whether Mr Spry’s fears have proved justified. At this point, what is important is to note that Prime Minister R.B. Bennett in introducing the Bill to the Canadian House of Commons on 18 May 1932, cited as the third reason for putting this legislation forward to create a combined regulator/service provider for Canadian broadcasting was:

The use of the air … that lies over the soil or land of Canada is a national resource over which we have complete jurisdiction under the recent decisions of the privy council … I cannot think that any government would be warranted in leaving the air to private exploitation and not reserving it for development for the use of the people. It well may be that at some future time, when science has made greater achievements … it may be desirable to make other or different arrangements (19).

Thus, at least one of the key reasons for putting in place the system of regulation of broadcasting in Canada was the scarcity of the radio frequency spectrum and the need to deal with the public asset of the airwaves, including its orderly allocation.

In Australia, the first regulations for broadcasting were introduced on 1 August 1923 followed by a second set of regulations issues on 17 July 1924, providing for the licensing by the Post Office of commercial radio broadcasters able to carry advertising.

This took place under the Commonwealth of Australia’s constitutional powers in respect of posts and telecommunications (20). Difficulties with the introduction of broadcasting following from these regulations led to the appointment of a Royal Commission into wireless broadcasting in Australian, established on 28 January 1927. Following on from this Royal Commission, the Australian Government decided upon a two-tiered approach to Australian broadcasting services:

  • a publicly owned National Service
  • private sector licensed services known as the Commercial service (21)

The regulation of the newly named Commercial Service remained with the Wireless Committee of the Post Office until 1948. The Commercial Radio Industry at its 6thAnnual Convention in 1936 urged the Commonwealth Government to establish a board to regulate commercial broadcasting to deal with licensing and allocation of frequencies. The concept of regulation of broadcasting in Australia thus was firmly grounded in the notion of the scarcity of radiofrequency spectrum and the need to coordinate and manage it and license services to use it. However, when the Commonwealth Parliament finally enacted the Broadcasting Act 1942, it simply provided that “the Minister shall appoint in each State a Broadcasting Advisory Committee” whose functions would be to: 

“advise the Minister in relation to all or any matters connected with broadcasting programs or the exercise of any powers, duties, functions, conferred or imposed by this Act or the regulations upon the [Australian Broadcasting] Commission or the licensees of a commercial broadcasting station” (22).

The only specific function provided in the Act for the advisory committees was a requirement for the committees to submit a report to the Minister with regard to any matter broadcast, from a National or commercial station, alleged to have been blasphemous, indecent or obscene (23). Clearly by 1942, in Australia the concept of broadcasting regulation had thus widened beyond dealing with the issue of radio frequency as a public good or chattel. Once again, these other reasons will be considered later.

There is thus a clear common thread between Canada, Australia and the USA that at least one of the fundamental justifications of broadcasting regulation in the early days in radio, at least, was the notion that the radio frequency, airwaves or ether was a publicly owned asset that needed to be made best use of by an orderly process of allocation and the licensing of new services. Bearing in mind the almost prophetic prediction of Canadian Prime Minister Bennett in 1932 that “… at some future time, when science has made greater achievements … it may be desirable to make other or different arrangements” for broadcasting, it is necessary to consider the extent to which this notion of spectrum scarcity and the need to avoid chaos in its use was ever the sole or fundamental justification for broadcasting regulation. If it was and remains the sole justification for broadcasting regulation, then surely the days predicted by Prime Minister Bennett are not too many years distant – an era of digital broadcasting, channel richness and the end of spectrum scarcity.

However, for the time being at least, spectrum scarcity remains an issue. For example, in Italy, where a period of deregulation lead to the creation of something like 600 ‘private’ television broadcasters around the country, they have so far identified only four channels for digital broadcasting. These are to be used to provide national and regional coverage by the major national and regional broadcasters, but the ‘private’ broadcasters, if they are to be catered for at all in the digital world, will have to await the end of analog broadcasting.

Closer to home, in Australia, while each of the current five television networks are to be given a channel with the capacity to broadcast high definition television, few extra channels are proving able to be found to allow for datacasting or new television broadcasters.

Notwithstanding this, I have no hesitation in saying, that spectrum scarcity and the need to deal with the allocation of spectrum as a rare public chattel or good was never the real or sole basis of broadcasting regulation and that from the outset or very early after the outset in countries such as Canada, Australia and the United Kingdom, broadcasting was deemed to have a particular quality or character which required it to be dealt with in a manner different to other information outlets such as newspapers. In examining what those rationales were, and considering their current validity we will be able to consider the applicability of those principles to new media such as the Internet.

5 – Public Interest Purposes for Regulating Broadcasting – National Culture and Protection of the Home and Family

Beyond the moment of bringing order out of chaos in broadcasting industries in Europe, North America and Australia, the truth is that the underpinnings of broadcasting regulation have always been for larger reasons than simply dealing with the orderly allocation of a public asset. Whilst the model adopted for broadcasting in the United Kingdom in the 1920s was not universally admired or emulated around the world, the thinking that has occurred in the United Kingdom about the role of broadcasting and the way in which governments need to deal with it from a regulatory point of view has, I believe, been critically influential in many countries, not least Canada and Australia. When we examine that history, I believe we come close to understanding what has motivated and underpinned broadcasting policy and regulation for the past seventy years. At the heart of that process lie issues completely different to the bald technical necessity of frequency allocation. The rationales are the public interest in national culture and the integrity of the home as center of family life and the need to protect and nurture that life in a way quite different to that considered appropriate for the press or other media. If we can understand what these wider public interest underpinnings have been we will be better able to consider their ongoing relevance in an online and channel rich world of communications abundance.

In considering these issues I should acknowledge the existence of at least two different views about public interest and the audiovisual media. Michael Tracey has clearly articulated these two views in “Public Services Broadcasting”:

“The debate is between two opposed models of how choices should be made for the development of the audio-visual media and the kinds of programs they will make available to the public-as-audience. The models invoke different conceptions of democratic rights and freedoms, different views of the relationship between culture and economics. One model suggests that to sustain the general well- being of this society and its culture the state (perhaps the ‘body politic’ is a better phrase) has not just a right but a duty to make strategic decisions and interventions through its nominated institutions. In broadcasting those interventions are to guarantee a range, depth, quality, and independence of program output which other arrangements would simply not supply. Those arrangements have been carried out in many countries through the model of public service broadcasting.”

Against this is set a very different model in which ‘regulation’ through public policy is held to be neither right nor necessary. The theory defining this alternative model suggests that in a democratic society the state has no right to make choices for its citizens in the audio-visual area any more than it has a right to tell them which books to write or read. To use a by now well-worn phrase, what matters is ‘consumer sovereignty’. Democratic rights, moreover, are now made more feasible by enormous advances in the physical capacity to communicate through broadband cable systems and satellite communications. The difference is between the individual as part of the collective, and the individual as just that, an individual.

Here then are two models between which the audience-as-citizen is being asked to choose: policy guided by the hand of ‘public’ regulation, employing ‘public’ values, serving the ‘public’ interest; and policy as the ad hoc result of a myriad individual choices with the collective good and interest in effect being what the public, using economic judgements, say they are. In country after country one can see a collision between a ‘cultural’ or civic model for the development of broadcasting and the ‘economic’ or circus model for the larger construction of a culture of communications of which television and radio are one part (24).

I must make clear at this point that I believe, together with such great figures as John Reith in the United Kingdom and Graham Spry in Canada, that it is the former view which originally inspired broadcasting policy in our countries and that it remains the view which should prevail. Citizens can choose governments but they cannot choose their media moguls.

In the United Kingdom, the British Broadcasting Company was licensed as the sole private commercial operator by the Post Office on 18 January 1923, drawing together a consortium of receiver manufacturers. Owners of receivers were to pay a licence fee to the Post Office. The Managing Director of the company was John Reith. The immediate financial difficulties of this private corporation led Parliament to appoint the Sykes Committee in April 1923. The Sykes Committee concluded in August 1923 by reporting that “broadcasting holds social and political possibilities as great as any attainment of our generation” and that “for these reasons we consider that the control of such a potential power over public opinion and the life of the nation ought to remain with the State, and that the operation of so important a national service ought not to be allowed to become an unrestricted commercial monopoly” (25). The Sykes Committee recommended that the public corporation should be independent of government. The subsequent Crawford Committee recommendations in 1925 led to the Charter and Licence which created the BBC and authorised it to broadcast for ten years from 1 January 1927 as a monopoly financed by annual fees on radio receivers and administered by an independent public corporation and with John Reith as the first Director-General (26). The Crawford Committee noted that the public property in the airwaves was a valuable national asset which should be used in the general public interest and not for the benefit of powerful or rich interest groups (27).

The Crawford Committee recommended that the new Corporation should “act as Trustee for the national interest and that its status and duties should correspond with those of a public service, and the purposes of such a service was not simply to entertain but also to inform and educate. The subjects covered were to be wide, the standards of presentation high, and controversial matters were to be treated impartially. The programs were to be made available to a vast majority of the population.” (28).

I believe we have here the key to understanding the subsequent history of broadcasting in the UK, Canada and Australia – concepts of trusteeship, national interest, entertainment, information and education, quality content, impartiality and wide audience reach. It has been said that the “information, education and entertainment phrase in the BBC Charter is somewhat the British equivalent of American broadcasting’s famous ‘public convenience, interest or necessity’ clause as a source of policy guidance”(29). I observe here that the British words seem somewhat clearer than the American words in terms of guiding decision-makers in the best use of their discretion. From the establishment of the BBC until now, the national broadcaster in the UK has been both the broadcaster and the regulator of its own affairs under its Royal Charter. The Television Act of 1954 established the Independent Television Authority which was empowered to set up the first commercial television service in the UK. In 1972 this became the Independent Broadcasting Authority, with the task of “providing” television and local sound broadcasting services, additional in each case to those of the British Broadcasting Corporation and of high quality, both as to the transmission and as to the matter transmitted” (30). This body was for the commercial sector both the planning body, the broadcaster and the regulator of commercial broadcasters services in the UK. The 1962 Pilkington Report, while praising the BBC, was also highly critical of the Independent Television Authority for not being “in effective control of Independent Television” (31). The Pilkington Report’s criticism of commercial television programming and its view that the ITA was not keeping itself sufficiently informed of public reaction to commercial television programming led to amendments to UK laws requiring the ITA to ascertain “the state of public opinion concerning the programs (including advertisements)” (32).

Reviewing the resulting changes in broadcasting 15 years later, the Annan Report drew the following conclusion about broadcasting: 

“What is there in broadcasting which makes it unique and different from other forms of communication and is its nature likely to change in the period under review? The simple answer is that at the heart of broadcasting is the mass audience. Radio, as well as television, possesses the unique quality of addressing simultaneously the greater part of the population in their 19 million homes. Other methods of communication like the press, the postal and telephone services, which people receive in their homes, cannot do so. Broadcasting can bring an event to a large audience not only simultaneously but immediately it happens. We can all watch the Cup Final or see men landing on the moon. There are other forms of communication, such as theaters, films or public meetings, which certainly address sizeable numbers of people at the same time. But they do not address them in their homes and – compared with broadcasting – the numbers they address are tiny. Broadcasting can communicate with smaller numbers, as it does in local radio; but even so, its audience is larger than those of other forms of simultaneous communication. At a time when people worry that society is fragmenting, broadcasting welds it together. It links people, gives the mass audience common topics of conversation, makes them realize that in experiencing similar emotions, they all belong to the same nation”(33).

The Annan Report in 1977 endorsed the 1962 views of the Pilkington report comparing “the effect of broadcasting on society to that of water dripping on a stone [concluding] that, until there was unmistakable proof to the contrary, there must be a presumption that television would have a considerable influence on the moral standards of our society” (34). The Annan Report noted that “it seems to us that Governments and Broadcasting Authorities are bound to take note of the facts that many people assume that because broadcasting services are seen and heard in nearly every home, broadcasting is an all-pervading and powerful medium of communication having a direct effect on people’s attitudes and behaviour….”(35). The Annan Report endorsed the objectives for broadcasters of providing entertainment, information and education for large audiences” but proposed an additional one, that of enrichment: “to enlarge people’s interests, to convey to them new choices and possibilities in life, this is what broadcasting ought to try to achieve” (36).

The Annan Report concluded that:

“in the end someone has to have the responsibility for deciding which aspects of the public interest should prevail and what can be broadcast in particular circumstances at any given time. In our view, the ultimate responsibility should rest with the [broadcasting] authorities, as the mediators between the professional broadcasters and the public. The Authorities are themselves accountable to Parliament for their decisions, and the services they provide, and Parliament itself is accountable to the electorate. This pragmatic solution to a complex problem has stood the test of fifty years of operation, and we consider should be maintained in its essentials. We therefore recommend that broadcasting authorities should continue to be responsible for all broadcasting services and that they should be independent of Government in the day to day conduct of their business” (37).

This statement contains ingredients of what remains at the heart of broadcasting regulation in the UK, Canada and Australia today – the public interest test in reference to education, information, entertainment, quality content and independent regulatory oversight accountable to Parliament, which itself is accountable to the people into whose homes broadcasting intrudes. The missing ingredient was the separation of the regulatory function from the broadcasting function in the UK, which did not come at least for commercial broadcasting until the creation of the Independent Television Commission in 1990.

The UK Conservative Party’s election Manifesto of 1987 included proposals for a new Broadcasting Bill to “enable the broadcasters to take full advantage of the opportunities presented by technological advances and to broaden the choice of viewing and listening.” (38). However, this Manifesto also promised that there would be “stronger and more effective arrangements” to reflect perceived public concern over the portrayal of sex and violence in television and radio programs received in the UK(39).

The new Conservative Government led by Margaret Thatcher took the first step to implement this by establishing the Broadcasting Standards Council on 16 May 1988, with a remit to draw up a code on standards of taste, decency and the portrayal of sex and violence in UK broadcasting programs; to monitor program standards in these areas, to consider complaints from the public and to initiate research into public attitudes (40).

On 7 November 1988 the Conservative Government released its White Paper “Broadcasting in the ‘90s: Competition, Choice and Quality. The Government’s plans for broadcasting legislation”. Amongst the stated objects for the proposed new independent broadcasting regime were the introduction of a new national fifth channel, and statutory positive program requirements including regional programming, high quality national and international news and current affairs, a diverse program service, a minimum of 25 percent of original programming from independent producers and a proper proportion of program material of EC origin. These were thus the key public interest considerations. The most significant change from a regulatory point of view was the recommendation that a new Independent Television Commission (ITC) would replace the IBA to license and supervise all parts of a liberalized commercial television sector. This body would have a capacity to impose tough sanctions, including the power to suspend or cancel licenses, but was intended to operate with a lighter touch than had the IBA. The White Paper also recommended that the new Broadcasting Standards Council should be placed on a statutory footing (41).

The resulting Bill received Royal Assent on 1 November 1990. The key public interest objectives of the ITC are set out at s.2 (2) which provides for the ITC to discharge its functions in the manner which the ITC considers to be best calculated to:

“ensure a wide range of broadcasting services available throughout the UK.
ensure fair and effective competition in the provision of those services.”
“ensure the promotion of such services which taken as a whole are of high quality and offer a wide range of programmes calculated to appeal to audiences of tastes and interests” (42).

Further objectives for the ITC are laid down in s.6 which requires the ITC to do all that it can to assure that every licensed service complies with requirements, inter alia:

“to avoid offending good taste or decency”
“to ensure news is provided with accuracy and impartiality”
“that current affairs is provided impartially”
“that religious programs avoid abusive treatment of the religious views and beliefs of any religion “(43).

The ITC is given responsibility for the development of program codes and advertising codes. In addition to its powers to suspend or cancel a license, the ITC has the power to impose heavy fines for breaches of program requirements. The most extreme case to be dealt with by the ITC since 1990 was in 1998 when it imposed a £2 million fine on Central Television for broadcasting a documentary called “The Connection” which had turned out to be largely fabricated (44).

If the public interest considerations of this new UK regulatory framework for broadcasting are encapsulated in the words “competition, choice and quality”, it may be also true to say that the fragmentation of regulatory functions for broadcasting in the UK must contribute to it being difficult and confusing for the public to access and take advantage of their public interest entitlements in the broadcasting sector.

In Canada, as you are all well aware, the history of broadcasting has very much involved issues of national culture and identity. Professor Marc Raboy’s splendid book “Missed Opportunities” outlines the history of Canada’s broadcasting policies since the 1920s. The Aird Royal Commission in the late 1920s received many submissions which urged that public interest considerations should guide the direction of Canadian broadcasting (45). The Aird Commission reported that Canadian broadcasting should be an instrument of education “in the broad sense, not only as it is conducted in the schools and colleges, but in providing entertainment and of informing the public on questions of national interest” and concluded that in order to achieve this goal there was a need for “some form of public ownership, operation and control behind which is the national power and prestige of the whole public of the Dominion of Canada” (46).

In the subsequent debate in Canada the late Graham Spry was the most significant citizen voice to be heard through the Canadian Radio League. His view was that the issue of broadcasting was a question of freedom: “Let the air remain as the prerogative of commercial interests and subject to commercial control, and how free will be the voice, the heart of democracy. The maintenance, the enlargement of freedom, the progress, the purity of education, require the responsibility of broadcasting to the popular will. There can be no liberty complete, no democracy supreme, if the commercial interests dominate the vast, majestic resource of broadcasting” (47). One of the constant questions for us seventy years later is where does this vision of Graham Spry sit and fit. I believe it retains its place, nowhere more so than in relation to the ongoing need for healthy, well-funded independent public broadcasters. It has its ongoing role, as well, in reference to the larger purposes for which both the public and private sector ought to dedicate their use of the public asset of the airwaves, or indeed of cable capacity.

When Canadian Prime Minister R.B. Bennett, on 18 May 1932, gave his second reading speech on the Radio Broadcasting Bill 1932 which had emerged from this national debate, he emphasized the national cultural, social and political role of broadcasting for Canada:

“First of all, this country must be assured of complete Canadian control of broadcasting from Canadian sources, free from foreign interference and influence. Without such control radio broadcasting can never become a great agency for the communication of matters of national concern and for the diffusion of national thoughts and ideals, and without such control it can never be the agency by which national consciousness may be fostered and sustained and national unity still further strengthened.” (48)

Whatever the history of Canadian broadcasting in the next 30 years, there is no doubt that by the mid 1960s the public interest issue of national cohesion remained a dominant feature of Canadian broadcasting policy. The 1966 White Paper on Broadcasting stated “The determination to develop and maintain a national system of radio and television broadcasting in Canada is an essential part of the continuing resolve for Canadian identity and cultural unity” (49).

The White Paper led to the Broadcasting Act of 1968 which established a new independent statutory regulatory authority the Canadian Radio-Television Commission (CRTC). This agency in 1976 acquired responsibility for telecommunications as well as broadcasting and became the Canadian Radio-Television and Telecommunications Commission. The 1968 Act set out a series of objects amongst them being that the “Canadian national broadcasting service should … contribute to the development of national unity and provide for a continuing expression of Canadian identity” (50). This was to be the dominant public interest consideration required of the national broadcaster, but the Act did not give any other guidance as to how it was to fulfil this role or indeed what national unity might mean.

One of the battlegrounds of national broadcasting policy after 1968 was between the CRTC, the regulator, and Canadian Broadcasting Corporation, the national broadcaster, over who was to be the prime arbiter or guardian of the meaning of the public interest provision in respect of national unity.

In relation to its role in establishing the framework for cable broadcasting in Canada, the CRTC took the view that its duty was not to protect any particular sector of the broadcasting industry but to promote an economic strategy for the entire broadcasting system (51). In relation to service provisions, the CRTC took a strong consumer protection perspective, saying: “Persons licensed in the public interest should hardly need to be reminded of their obligation to the public they are licensed to serve” (52).

However, the CRTC could not avoid the accusation, made of the FCC and other broadcasting regulators, that it had become the compliant captive of the industry it was regulating. In evidence at the June 1975 Cable television hearings D.R. Graham of the Canadian Cable Television Association said to the CRTC, “Your problem … is to give the outward appearance of satisfying the public that their interests have been looked after and you don’t like perhaps to say to the public that we are perhaps more competent to make this evaluation than you, an average citizen” (53). An Ontario government Royal Commission on Violence in the Communications Industry reported in 1976 suggesting that the Canadian broadcasting system, including the regulator, was insensitive to the needs of the public and made proposals for its radical democratization “to make it more responsive to viewers and their real social imperatives” (54).

If one of the main public interest roles for the whole of Canadian broadcasting was the issue of Canadian cultural identity and national bonding, then the Applebaum-Hébert Federal Cultural Policy Review of 1982 highlighted that the CRTC was having problems delivering on its role in this field.

This report “considered that [CRTC’s] main instrument for implementing cultural objectives, Canadian content requirements, had not worked. The CRTC … had been reluctant to use its power to make and enforce strong regulations because of their possible impact on the economic viability of private broadcasters. ‘The inherent conflict here, as in many other areas of cultural policy, is between an industrial and a cultural strategy’, and here too, industrial strategy seemed to have the upper hand” (55). The report recommended “that broadcasting regulation in Canada should remain exclusively in the hands of a single federal agency, the CRTC which ‘should continue to license provincially and municipally based broadcasting undertakings’. But the report also saw the CRTC as the ultimate guardian of the public interest in broadcasting “and recommended that to help it better understand the public’s view of the public interest the CRTC should establish advisory committees in each province “to assist in performance evaluation of licensees and to provide advice and reaction from a local perspective on all broadcast activities” (56).

These remarks, I believe, highlight an ongoing dilemma in the struggle for effective delivery of the public interest role by broadcasting regulators. I might say at this point I believe that strong public interest voices are required which can represent issues to the broadcasting regulator as part of the decision-making process.

The 1991 Broadcasting Act of Canada set out a clear declaration of the public interest objectives in its statement at s.3 of “Broadcasting Policy for Canada”, providing, inter alia:

“Canadian ownership and control of Canadian Broadcasting systems.”
“use of Broadcasting frequencies that are public property and provide through its programming a public service essential to the maintenance and enhancement of national identity and cultural sovereignty.”
“Use of Canadian Broadcasting to safeguard, enrich and strengthen the cultural, political, social and economic fabric of Canada” (57).

The 1991 Act provides at s.5 for the Radio Television and Telecommunications Commission to regulate the Canadian broadcasting system in a flexible manner that:

  • is readily adaptable to the different characteristics of English and French language broadcasting
  • takes into account regional needs and concerns
  • is readily adaptable to scientific and technological change
  • facilitates the provision of broadcasting to Canadians
  • facilitates the provision of Canadian programs to Canadians
  • does not inhibit the development of information technologies and their application or the delivery of resultant services to Canadians
  • is sensitive to the administrative burden that, as a consequence of such regulation and supervision, may be imposed on persons carrying on broadcasting undertakings (58).

The public interest objectives of the legislation both in terms of overall broadcasting policy and in terms of the conduct of the regulator are thus clearly laid out rather than left to a vague reference to “the public interest”.

6 – New regulatory Options for Communications

During the 1980s the traditional approach to broadcasting regulation in some countries came under review, with options often being considered for allowing the now mature broadcasting industries some role in the regulation of their own industries. Perhaps the first major development of this kind was in Canadian broadcasting regulation with CRTC’s 1986-1987 restructure of the regulatory framework to allow for significant measures of industry self-regulation which the CRTC itself described as “industry recognition of its responsibilities to the Canadian public” (59). I should say at this point that this form of self-regulation is in fact more accurately described as co-regulation, since the self-regulatory regime sits within an overarching framework of legislatively emplaced regulatory oversight. If the self-regulatory system fails, then there is an immediate capacity for the regulator to intervene to ensure the overall public interest objectives can be protected.

The Australian move in this direction is dealt with in the next part of this paper. The accepted place of self-regulation or co-regulation as a significant method for dealing with communications industries was recognised by Commissioner Marcelino Oreja of the European Commission at the Seminar on Self-Regulation in the Media at Saarbrücken on 20 April 1999.

Commissioner Oreja argued well, and I believe correctly, the case for ongoing regulation of the media, notably broadcasting and the Internet, and for the place of self-regulation or co-regulation in that regulatory landscape which seeks to deal with channel rich capacity in the digital era of globalisation:

“The truth is, we do not know what the media markets of the future will look like. The future is not determined by technology alone, but by a whole range of cultural, social and economic factors. We should therefore proceed step-by-step into the future, adapting our regulatory tools to take account of our new developments and changes in the media landscape, as and when they occur.”

It is becoming increasingly clear that self-regulation mechanisms can and should play an important role in this respect. This is an important principle with regard to the “who” question, as it implies a higher degree of involvement of the industry itself and a lesser degree of public intervention.

Indeed, this is why today’s initiative on the part of the German Presidency is so timely and so welcome and why the Commission supports it.

I know that one of the goals of the Presidency in undertaking this exercise was to clarify the notion of self-regulation itself. I should therefore like to make, if I may, a small contribution in this respect.

I should like first to make clear what I think self-regulation is not.

Self-regulation is not simply the absence of regulation. Neither should it be seen – as it sometimes is – as an end in itself, as something inherently superior and therefore more desirable than regulation or legislation.

To me, self-regulation is simply a means to an end, and one of several, at our disposal.

In this sense, another possibility, which is not excluded, is the need for regulatory bodies for the audiovisual sector which are independent of political power. They should be part of the answer to the “who” question.

I am convinced that one of the prime tasks of regulatory bodies today is to ensure pluralism in broadcasting and to ensure compliance with rules on content by all audiovisual practitioners.

It is clear that what has been called “self-regulation” can provide a flexible evolutionary supplement to basic regulation. The German experience gives us once again a valuable example with the television Councils, whose members are drawn from all groups within German society. But let me come back to the topic of self-regulation.

Broadly speaking, I would say that there are two main types of self-regulation: First, there is self-regulation where the operators and other interested parties in a sector agree among themselves on certain behavioural rules. This is generally done on the basis of codes on conduct. The essential aim of such action is often to obviate the need for government regulation. An example of this type of self-regulation is the Press Code in the United Kingdom. Here the “who” is mainly the industry itself and the public (which can have recourse to a complaints mechanism).

Secondly, there is self-regulation that fits in with a legal framework or has a basis laid down in law. This was referred to as “regulated self-regulation” at the Birmingham Audiovisual Conference. In this case, the public authorities generally lay down a set of objectives to be achieved – and perhaps some general behavioural rules – but leave it up to the operators and other interested parties to establish, implement and sometimes monitor the more detailed rules whereby these objectives are achieved. Sometimes, the legal framework provides for back-up action on the part of the public authorities should self-regulation fail. An example of this approach is the German “multimedia law,” and in particular its provisions on youth protection. The “who” here is a partnership between the public authorities and the industry, sometimes called “co-regulation.

It should be stressed, however, that both types of self-regulation inter-link with some form of regulation. (60)

The range of regulatory options for the communications sector ranges from no regulation at all through industry self-regulation, to co-regulation where the regulatory function is shared between a regulator and industry associations to complete heavy handed government regulation. It is the co-regulatory model which both Australia and Canada are pursuing and it is the Australian approach to this which I now wish to explore.

7 – From no regulation to co-regulation – Australian Broadcasting Regulation 1923 – 2000

7.1 – The History of the Australian Broadcasting Regulation to 1992

Broadcasting in Australia is governed by s.51 (v) of the Australian Constitution which gives the Commonwealth Government power to make laws relating to “postal, telegraphic, telephonic and other like services.” The High Court of Australia in Jones v. Commonwealth (1966) 112 CLR 206 at 226, said:

The power under s.51 (v) is not confined to providing for the establishment, maintenance or operation of telegraphic, telephonic or other services, but relates to the choice of the persons who may make use of such a service either to send or receive communications, to the conditions upon which persons may use it, and to every aspect of the use and advantage they may have from it.

Broadcasting in Australia began officially on 23 November 1923. In 1932 the Australian Broadcasting Commission Act was passed, establishing the National Broadcasting System as a publicly owned operation known as the Australian Broadcasting Commission, in addition to the commercial radio sector. In 1942, the Joint Parliamentary Committee on Wireless Broadcasting (the Gibson Committee) expressed the need for broadcasting to ensure that its powerful influence was used for the good of society. In the Committee’s view, there was a need to regulate “for at least some measure of public control of programs in the general interests of the community, not only to prevent the service from being used for improper purposes, but to ensure that it will exercise a positive influence for good on the individual and national character” (61).

Following the Gibson Report in 1942, the Australian Broadcasting Act was passed, and in 1948 that Act was amended to provide for the establishment of the Australian Broadcasting Control Board (ABCB) to take over the regulatory functions of the Postmaster-General’s Department with respect to commercial broadcasting (62).

The role of the new Board was, inter alia:

  • To ensure that the provision of radio, television and facsimile stations was in accordance with plans approved by the Postmaster-General.
  • To ensure the adequacy of technical standards, procedures and equipment.
  • To ensure the provision of “adequate and comprehensive programs”
  • To ensure the provision of political programs in an “equitable manner”.
  • To make recommendations to the Minister for Communications in relation to the licensing of commercial radio [and later] television stations.

The 1954 Royal Commission on Television in Australia held that in relation to the presentation of good taste through positive program standards, these regulatory provisions were necessary “in order to provide not only for the entertainment and enjoyment of viewers, but also for their education…and enlightenment. The use of this new medium of communication must, in our views be regarded, by commercial as well as national stations, as in the nature of a public trust for the benefit of all members of society” (63).

In 1956 the 1942 Act was amended to become the Broadcasting and Television Act which provided for the ABCB to apply to commercial television the same licensing systems as for commercial radio, with the modification that there must now be a public inquiry by the Board prior to the grant, renewal or termination of any licence. Provisions were also introduced which specifically enhanced the role of the ABCB:

  • To make decisions in relation to the Australian content to be included in commercial programming.
  • To oversee new limitations on ownership and control of television stations in Australian state capital cities; the “two-station” rule.
  • To oversee new foreign ownership rules.

The 1956 amendments removed the national broadcaster, the ABC, from the ABCB’s supervision in respect of program content. Perceived weakness by the ABCB in relation to these Australian content powers led to the 1963 Senate Committee on the Encouragement of Australian Production for Television; led by Senator J.G. Vincent, which recommended that the Broadcasting and Television Act be amended to clarify the programming powers of the ABCB in relation to Australian content (64).

In 1976 the Commonwealth Government decided to abolish the ABCB and to replace it on 1 January 1977 by the Australian Broadcasting Tribunal (ABT). The ABT became an independent statutory body with a legally independent power in relation to licensing, ownership and control matters. Licences were to be normally renewed for periods of three years after a public inquiry had been held into the matter by the ABT.

One of the first tasks which the ABT undertook was the holding of an inquiry into the whether commercial broadcasters should be allowed to regulate themselves in certain areas. This “self-regulation” inquiry concluded that broadcasters should not be expected to immediately regulate themselves in areas such as children’s programmes, Australian content and advertising where the broadcasters’ commercial interests conflicted significantly with the public interest. Other content areas were considered amenable to regulation by means of industry codes. This measure of self-regulation was not implemented at the time, and instead, the ABT undertook to review all of the existing content rules. However, the most significant conclusion of the self-regulation inquiry, that broadcasters become more accountable to the public, was implemented. The ABT placed an emphasis on the need to assess the performance of stations and licence renewal hearings, against the needs of the community. Not only were broadcasters to become more responsible and responsive to the interests of the public with an emphasis on public hearings, but the ABT itself placed great emphasis on public processes in the performance of its functions, including the development of new program standards. In the nineties, these standards were to form the basis of industry codes covering areas such as taste, decency, accuracy and fairness in news and current affairs.

Those standards which have had a decisive influence on Australian television ever since were:

  • Australian Content in Program Standard – 1990
  • Children’s Television Standards – 1984.
  • Australian Content in Advertising Standard – 1992.

These rules, which cover some of the most contentious area of broadcasting regulation have remained very much as they were originally determined under the ABA. They are considered responsible for the Australian character of Australian television and the strength of the local television production industry, including children’s television. Indeed, Australia has become somewhat of a model for the regulation of children’s television in order to achieve the public interest in this sector.

While the various discretionary provisions of the Broadcasting and Television Act 1942 as subsequently amended did not always refer to the role of broadcasting regulation in relation to protection of the public interest, the ABT did itself seek to refer to the public interest in the exercise of its duties and powers. In the case of R v. Australian Broadcasting Tribunal; ex parte 2HD 144 CLR 1979-1980 45 the Australian High Court affirmed a decision by the ABT that it would refuse to consent to the transfer of a broadcasting license on the grounds that the transfer would be contrary to the interests of the public in the Newcastle area, even though the relevant provision of the Act did not refer to the “public interest”. The High Court declared:

When the purpose of the statute is to promote and protect the public interest [in relation to broadcasting] the Statutory discretion [of the regulator], if not relevantly confined, should be read as enabling the Tribunal to protect the public against the possibility of prejudice or detriment. The Tribunal was rightly concerned with the possibility of influence that might arise from the concentration of ownership which it found to exist as a matter relevant to the public interest. (54)

This case highlighted the power of the ABT to take account of public interest considerations, even where the governing Act did not specifically refer to them. But it also highlighted the need for the Australian legislation to be clearer about the sorts of matters which ought to guide the Tribunal in considering public interest issues. The Tribunal itself, as the 1980s progressed, became mired in controversy over its ever-recurring cycle of license hearing renewals which attracted almost obsessive media interest and gave rise to the notion of the ABT as being litigation-oriented. The interventionist and prescriptive regulatory framework came under increasing pressure for reform with the rise of the new mantra of de-regulation and competition policy. By the early 1990s there was a desire from industry and government for a new direction in broadcasting regulation with a clearer set of public interest guidelines for the regulator and the industry. With the possibility of many new services, to an extent resulting from technological progress and the pressure for greater market competition, the time for a greater degree of industry self governance had arrived.

7.2 – Co-regulation of Broadcasting – The new Australian approach
The Broadcasting Services Act 1992 and the establishment of the Australian Broadcasting Authority

In 1991 the Minister for Communications announced a review of Australia’s Broadcasting Regulations to consider how best to move from the heavy-handed regulatory regime administered by the ABT.

The January 1993 Edition of the Broadcast Reform paper titled ‘A New Approach to Regulation’ gives an overview of the then Government’s reforms objectives.‘The review of broadcasting regulation, foreshadowed as part of the Government’s 1987 micro-economic reform agenda, culminated in the proclamation of the Broadcasting Services Act 1992 on 5 October 1992. The review was prompted by widespread disquiet about the complexity and inefficiency of the Broadcasting Act 1942, especially in its ability to deal with emerging technologies and services. Consistent with Government’s wider reform objectives, the review set out to:

  • develop broadcasting legislation to serve Australia into the next century, and complement the landmark reforms in telecommunications;
  • move away from the closely prescriptive approach of the Broadcasting Act 1942;
  • provide a framework which would accommodate the future and which promoted an industry that could adapt to new commercial and technological realities;
  • produce regulatory arrangements that were consistent and predictable and which did not unnecessarily impede commercial activity;
  • provide opportunities for public consultation in transparent and accountable decision-making processes; and,
  • provide a regulatory framework which was, to the greatest extent possible, consistent with the wider commercial law.

The Broadcasting Services Act 1992 replaced the fifty year old litigation-prone and over-amended Broadcasting Act 1942. The Broadcasting Services Act 1992 established a new regulatory agency, the Australian Broadcasting Authority (the ABA), to replace the much maligned Australian Broadcasting Tribunal as the body responsible for overseeing the new regulatory regime for the Australian radio and television broadcasting industry. I believe that the Broadcasting Services Act 1992 has to a significant extent achieved the twin objectives of flexibility and certainty and has set down an effective framework within which the Australian broadcasting industry has been able to move forward and develop.

In proposing a new broadcasting regime in 1992 the then Australian Government had the clear intention for the Broadcasting Services Act 1992 to establish an appropriate regulatory framework for the broadcasting industry that would serve Australia well into the Twenty First Century.

Senator Collins, during the Second Reading Speech in June 1992, outlined the main goals of this regulatory regime:

The final form of the Bill balances the diverse, and often conflicting, aspirations of those interested in the broadcasting industry to develop a regulatory framework that serves the public interest in all its dimensions – social, cultural and economic – while also meeting the needs of a changing and growing industry.

We need new legislation capable of allowing the broadcasting industry to respond to both the complexities of the modern market place and the opportunities created by technological developments.

Underpinning the whole framework is the intention that different levels of regulatory control apply across the range of broadcasting services according to the degree of influence that such services are able to exert.

The Bill incorporates objectives and policy guidelines. It sets out the categories of service, describing them by their nature rather than by their technical means of delivery…It provides for: new types and greater public access to the regulatory processes; a continuation of obligations on broadcasters in relation to program standards; and ensures that Parliament’s objectives about diversity of ownership are effectively delivered. It provides for far more accountability, while retaining a suitable measure of statutory independence for the regulatory agency.

The underpinning feature of the legislative framework is its ‘light touch’ and ‘co-regulatory’ approach to regulation. As Senator Collins made clear, it was the Australian Government’s clear intention that different levels of regulatory control should apply across the range of broadcasting services according to the degree of influence that such services are able to exert. The Broadcasting Services Act 1992 sought to achieve this through not defining services by their technical means of delivery but rather by their nature, for example, commercial television broadcasting, community radio broadcasting or subscription narrowcasting.

In this way the Broadcasting Services Act 1992 aimed to facilitate new types and greater numbers of services to emerge; ensure greater public access to the regulatory processes; achieve a continuation of obligations on commercial television broadcasters in relation to Australian content and children’s television standards; and ensure that Parliament’s objectives about diversity of ownership were effectively delivered.

The then Australian Government was particularly keen that the regulation of broadcasting move away from the litigation-prone regime administered by the Australian Broadcasting Tribunal to a more cooperative and mutually responsible scheme of regulation driven by market forces where a key role of the regulator was to ensure that community interests were met in areas where the market might fail to do so.

The Australian Government had a number of clear public interest and industry outcomes it wanted to achieve in relation to broadcasting. These are set out in the objects of the Broadcasting Services Act 1992. Yet the Government recognised that there would be some inherent tensions between the different objects. The Government thought that rather than try to solve these tensions on the face of the Broadcasting Services Act 1992 it would leave this task to the new regulatory body, the Australian Broadcasting Authority, to respond to issues on a case by case basis.

Clear Public Interest Objects

One of the greatest achievements of the Broadcasting Services Act 1992, which I believe has survived the test of time, are the objects laid down in Section 3. These outline the key public interest objectives for broadcasting regulation in Australia from 1992 onwards. It is worth running through these objects in detail because they underpin the entire decision-making processes of the Australian Broadcasting Authority. These are:

  • To promote the availability to audiences throughout Australia of a diverse range of radio and television services offering entertainment, education and information; and
  • To provide a regulatory environment that will facilitate the development of a broadcasting industry in Australia that is efficient, competitive and responsive to audience needs; and
  • To encourage diversity in control of the more influential broadcasting services; and
  • To ensure that Australians have effective control of the more influential broadcasting services; and
  • To promote the role of broadcasting services in developing and reflecting a sense of Australian identity, character and cultural diversity; and
  • To promote the provision of high quality and innovative programming by providers of broadcasting services; and
  • To encourage providers of commercial and community broadcasting services to be responsive to the need for a fair and accurate coverage of matters of public interest and for an appropriate coverage of matters of local significance; and
  • To encourage providers of broadcasting services to respect community standards in the provision of program material; and
  • To encourage the provision of means for addressing complaints about broadcasting services; and
  • To ensure that providers of broadcasting services place a high priority on the protection of children from exposure to program material which may be harmful to them.

One sees in these objects resonances which have recurred again and again in broadcasting regulatory policy in the UK, Canada and Australia since the 1920s.

The Australian Broadcasting Authority has particularly considered these objects in its License Area Planning processes and in its Australian Content and Children’s Television Standard processes. The Australian Broadcasting Authority has found these principles enormously valuable and they deserve to find ongoing life wherever the regulation of broadcasting and on-line services in Australia heads.

Gauging the Public Interest – Public Consultation and Research

As I have previously stated, it is clearly desirable that any regulator seeking to achieve the public interest needs to engage in dialogue with the public to try to gauge its views on the various matters with which the regulation is dealing. The principle means for doing this is by open processes of public consultation. One of the outstanding successes both of the Broadcasting Services Act 1992 and the Australian Broadcasting Authority has been in providing for and carrying out a high level of public and industry consultation on a wide range of issues. Section 27 of the Broadcasting Services Act 1992 provides that in performing its spectrum planning functions the Australian Broadcasting Authority must make provision for wide public consultation. It is inherent in these provisions that any variation to priorities or plans must also involve wide public consultation (ss.24 (2), 25 (2), 26 (2) and 27 (1)).

The provisions in s.123 regarding the development of industry sector codes of practice also refer to the need to consider community standards and concerns on a range of issues (s.123 (2) (a), (c), (l)). In developing codes of practice in relation to certain matters, it is important to note that community attitudes must be taken into account on a range of issues (s.123 (3)). The Australian Broadcasting Authority can only register industry codes of practice if it is satisfied, inter alia, that the code is endorsed by a majority of the broadcasters in that industry (s.123 (4) (b) (ii)), and that members of the public have been given an adequate opportunity to comment on the draft code (s.123 (4) (b) (iii)). The Australian Broadcasting Authority must (s.126), before determining, varying or revoking such standards as those relating to Australian content and children’s television (s.122), seek public comment on the proposed standard or any variation or revocation thereof. When informing itself on any matter relevant to its functions the Australian Broadcasting Authority may (s.168 (l)):

  1. consult with such persons, bodies and groups as it thinks fit, and may form consultative committees for that purpose;
  2. conduct investigations and hold hearings; and
  3. may otherwise inform itself in any manner it thinks fit.

When the Australian Broadcasting Authority is publishing a report it must (s.180) give persons adversely affected by that report an opportunity to comment on it before it is published.

Any hearings conducted by the Australian Broadcasting Authority must take place in public other than in exceptional circumstances which require the preservation of confidentiality (s.187). The clear direction of the Broadcasting Services Act 1992 to the Australian Broadcasting Authority through these provisions was to be as open and consultative to and of the public as possible.

Consultation is the key to the organizational and operational style of the Australian Broadcasting Authority. This does come at a price – in terms of time consumed in the process and resources expended. However, it seems to me that the results are there to support the effort in the generally favourable reception accorded to findings of the Australian Broadcasting Authority in its various reporting processes.

Industry Codes

One of the great successes of the Broadcasting Services Act 1992 has been the development of a co-regulatory approach to the various sectors of the industry through the requirement for development and administration of industry sector codes of practice.

It was the original intention of the drafters of the Broadcasting Services Act 1992 to move the broadcasting industry to a fully self-regulatory platform, but following public consultation, a very successful model of co-regulation was incorporated into the Broadcasting Services Act 1992. The role of consultation which is formally built into the legislation has been a significant part of the success of this model and ensures that the codes are responsible and responsive to community needs and expectations.

The model of the Broadcasting Services Act 1992 requires industry to regulate itself on a sector by sector basis but recognizes the need for the overseeing of this process by a government regulatory agency, namely the Australian Broadcasting Authority, which must approve industry codes and be responsible for ensuring that public concerns are addressed by licensees and industry bodies. It has meant that the Australian Broadcasting Authority and the industry sectors have had to develop a relationship that is workable and mutually beneficial. Like all healthy relationships, from time to time, the Australian Broadcasting Authority has its differences with industry and industry players but overall a greater climate of trust and understanding has been fostered.

Amongst the key features of this approach are:

  • consultation between the Australian Broadcasting Authority and relevant industry players at an early stage;
  • providing guidelines pursuant to the Broadcasting Services Act 1992 upon which industry can develop appropriate schemes of self-regulation;
  • the commissioning of research by the Australian Broadcasting Authority on community standards to ensure the ABA is aware of current community concerns;
  • providing opportunities for wide public and industry comment in formal processes such as inquiries on television standards and prior to registration of the codes;
  • publication of Australian Broadcasting Authority guidelines on decision-making processes;
  • opportunities for feedback from the industry and the public on Australian Broadcasting Authority decisions; and
  • clear articulation by the Australian Broadcasting Authority of reasons for its decisions.

The existence of this cooperative model of regulation has led to very positive relations between the Australian Broadcasting Authority and industry. An example of the benefit to be gained from the more cooperative and less confrontational relationship has been the development of a voluntary compliance regime with the spirit of the licence condition for expenditure by pay TV drama channels on ‘new’ Australian drama. (Broadcasting Services Act s.102 & s.215 (2)).

Here, where the legislation had not anticipated the way the pay TV industry would develop, the requirement for mandatory levels of expenditure on new Australian drama on drama channels was not enforceable. The environment in which the Australian Broadcasting Authority and pay TV operators consulted, however, allowed for voluntary compliance by industry with the intention of the Broadcasting Services Act 1992.

This is quite an achievement both for industry and the Australian Broadcasting Authority. The voluntary compliance did not just happen but is a reflection of the consultative approach that both the Australian Broadcasting Authority and the industry have taken to addressing issues arising in connection with codes, standards and conditions.

Of course, there are those who say this has resulted in too cosy a relationship between the Australian Broadcasting Authority and industry. I understand this view but do not share it. It is in the public interest for the Australian Broadcasting Authority to be able to work with industry to secure positive outcomes for broadcasting which avoid unnecessary confrontation and litigation and to ensure that the broad objects of the Broadcasting Services Act 1992 are achieved. I can cite ample evidence that where the Australian Broadcasting Authority has needed to oppose the position taken by industry sectors or licensees in order to achieve the public interest it has done so without hesitation. The strengthening of the Australian content transmission quota, the introduction of the documentary quota and the strengthening of the Australian Children’s program quota in the 1994-1995 Review of the Australian Content Standard are all evidence of this. The 1997 finding by the Australian Broadcasting Authority of a breach of foreign control provisions of the Broadcasting Services Act 1992 by CanWest is yet further evidence of this in relation to an individual company.

The recent release of the Draft License Area Plan for the Sydney metropolitan Region on 9 July 1999, proposing several additional commercial services in Australia’s most lucrative radio market, is another clear indication of this. A further example is the calling of the public inquiry on 19 October 1999 into the activities of on-air presenters on Radio 2UE and others in relation to “cash for comment” allegations.

Another example was the 1998 imposition of a condition on the new commercial television licensee in remote and regional Western Australia to ensure that all parts of that area should be covered by the new service and not just the most commercially attractive parts of it.

I can certainly say that I have never seen any evidence of the Australian Broadcasting Authority succumbing to pressure from industry sectors. It has at all times striven to be objective and impartial, to assess all of the information before it and to use that information to achieve one end alone, and that is compliance with the Broadcasting Services Act 1992 as guided by the objects which the Act so clearly sets out. Yet in doing all of this the Australian Broadcasting Authority has also been conscious that it does not have sole responsibility for regulating the broadcasting industry, but does so in cooperation with each sector of that industry under this scheme of co-regulation.

Umpire of the self-regulatory process – codes registration and complaints handling by the ABA

One of the fundamental needs of any self-regulatory system is that there be some umpire to oversee and ensure industry’s compliance with its obligations to the public interest self-regulatory scheme.

The Australian co-regulatory approach requires the broadcasting industry to assume its responsibilities to the public and effectively maintain those responsibilities by working in cooperation with the Australian Broadcasting Authority. The ABA is thus the umpire of the self-regulatory scheme for broadcasting in Australia.

The Broadcasting Service Act 1992 in s.123 places the obligation of determining and developing appropriate industry and community sector codes of practice upon the broadcasting industry. When the Act was first passed in 31 January 1992, the Australian Broadcasting Authority worked side-by-side with industry to assist it in assuming its newly legislated responsibility of developing and implementing industry codes of practice in line with the objects of the Act. The main commercial broadcasting bodies, the Federation of Australian Commercial Television Services (FACTS) and the Federation of Australian Radio Broadcasters (FARB), registered their codes by 1993, followed by the two national broadcasters, the Australian Broadcasting Corporation (ABC) and the Special Broadcasting Service (SBS). By 1997 the broadcasting industry had registered the last industry codes, those for community broadcasting (1995) and subscription and narrowcast sectors. The revised FACTS code was registered by the ABA in 1999 and a draft revised FARB code is presently before the ABA for consideration.

The co-regulatory approach emphasizes broadcasters responsibility to deal effectively with public complaints and remedy public concerns themselves. The Broadcasting Services Act 1992 provides in s.123 (2) (h) and s.148 that broadcasters themselves handle their public complaints by the standards determined with the community as codes of practice. If the public is not satisfied with the broadcaster’s response, or if the broadcaster is in breach of a licensing condition, the co-regulatory system provides recourse to the ABA (s.147). The presence of the government regulator therefore becomes a stable form of intervention and legal recourse for, at present, roughly 100 to 130 complaints each year. Of these, the ABA finds about 30 each year to be in breach of industry codes or licensing conditions.

Placing the onus of rectifying justifiable concerns over content upon broadcasters is not a punitive approach. Rather, the complaints process is designed for broadcasters to deal responsibly with their public obligation and use it as a valuable and direct means of public feedback. Part of that process is for the ABA to ensure that broadcasters deal promptly with complaints. I believe that commercial and national broadcasters should also consider formalizing swift “on air” corrections and apologies as soon as possible after a specific episode. The ABA recognizes that broadcasters are often inclined to use the legalistic argument about potential litigation from possible defamation actions to delay an otherwise quick response to a complaint, especially when an almost immediate on-air response often satisfied the complainant, such as when their reputation has been unfairly sullied.

While in Australia co-regulation is a complaints-based system, a significant feature of that framework is the ABA’s charge by the Act to monitor the compliance to standards which the industry has set as codes of practice and to intervene in regulation if it feels those standards are breached and the Act’s objects are not maintained (ss. 158 (i) (j)). The Act further charges the ABA to take necessary enforcement under the act by suspending or cancelling licenses (ss.158 (c) (f)). In this respect, the ABA’s role of an umpire or ombudsman for public concerns is also performed directly and need not be initiated by public complaint.
Exercising its role as an umpire of the co-regulatory system, the ABA recently called an inquiry for October 1999 into allegations that the commercial radio station 2UE and its presenters John Laws and Alan Jones made comments of an editorial nature for which a fee or other valuable consideration was received. The Australian Broadcasting Authority examined the arrangement entered into by the two presenters in order to determine whether they and the station failed to comply with the standard of conduct required by the Commercial Radio Codes of Practice relating to “News and current affairs programs” and “Advertising”. Part of the inquiry will determine whether the current codes provide adequate community safeguards in respect of the alleged matters, and if not, how these matters might be addressed.

7.3 – The challenges ahead for Australian Broadcasting

The reforms to broadcasting industry regulation in Australia have generally been regarded as successful, balancing the needs of industry with the public interest. Putting industry in charge of oversighting and scrutinising its own day to day activities, and using the industry’s own associations and codes, places responsibility first and foremost with the operators. And that is where it belongs.

However, this co-regulatory approach requires a mature acceptance by industry of its responsibilities to the public. This in turn involves dedication of effort and resources on its part to make sure that the scheme works. Co-regulation does not mean no regulation. Nor does it mean no cost to industry. We believe in Australia that this approach provides a sound basis for government to work with industry on converging broadcasting, on-line and telecommunications issues as we advance confidently into the digital age.

I would like to conclude this part of my paper by identifying what I see as being a few of the key challenges which lie ahead for policy makers in this area of communications in Australia and overseas. They are:

  • to have industry, the public and government each understanding and accepting of their role in co-regulatory arrangements for the governance of communications industries;
  • for self-regulatory and co-regulatory schemes to maximize the capacity of industry to evolve, develop and change whilst addressing competition and consumer concerns;
  • to address real community concerns about illegal and harmful content on existing and new services such as the Internet and to do this through effective co-regulatory codes and content labeling and rating schemes;
  • to encourage the generation of new, interesting, intelligent and quality content for broadcasting and on-line services;
  • to maximize the capacity of all citizens to be able to access the emerging array of communications services.

8 – The Relevance of Co-Regulation/Self Regulation and Public Interest Principles for the Future of Broadcasting

After six years at the Australian Broadcasting Authority, four of those as General Manager and two as Deputy Chairman, I have drawn the following conclusions about the state of broadcasting in Australia:

  • Co-regulation is a sound approach to take with a mature industry such as broadcasting.
  • There is a tendency by both the commercial and the public broadcasters to take self-regulation to mean either no regulation or no cost regulation and it requires periodic jolts from an independent statutory regulator to remind them of their obligations under the co-regulatory framework.
  • It is essential that any self-regulatory process should have an umpire or ombudsman who ensures that the self-regulatory codes are being adhered to and allows final appeal from the public for complaints about licensees or service-providers.
  • Public interest considerations are all too likely to be sidelined when pressure is on in particular issues and regulators and industry bodies alike need to be reminded of those public interest consideration.
  • Organizations which provide an outlet for the public voice on public interest issues are therefore important components of a healthy co-regulatory environment and deserve to be supported.
  • The individual citizen must be active in the co-regulatory scheme, as a complainant about program problems and as a proponent in public inquiries into issues such as Australian Content or the Radio 2UE inquiry or license area planning processes.
  • Healthy well-funded public or national broadcasters are an absolutely essential ingredient in the national broadcasting environment of modern democracies.
  • Independent national broadcasters must, however, be subject to the same sorts of regulatory oversight as the commercial sector.
  • The focus on nurturing and protecting children and young people from illegal and harmful material and to ensure the provision to them of positive and supportive program content has rightly emerged in the 1980s and 1990s as one of the driving imperatives of broadcasting regulatory frameworks.
  • Local content rules are essential public interest requirements for countries such as Australia and Canada which wish to maintain separate national cultural identities or to nurture national cohesion.
  • New broadcasting sectors such as cable and pay television should be subject to similar regulatory regimes to those which apply to the long-established commercial sectors, as the public interest is just as great in the use of that part of the public domain as it is in relation to free to air television. This is particularly so in relation to local content rules, and in this regard there is a real imbalance in the regulatory regime in Australia which I believe is inappropriate and unfair to the commercial free to air television services.
  • There is a need for some form of regular review of the performance of licensees rather than simply allowing their licenses to be automatically renewed forever, as is now the case in Australia. Ultimately the greatest power a broadcasting regulator has is to suspend or cancel or refuse to renew a license. The use of the airwaves constitutes a use of a valuable public asset and the public interest genuinely requires that there be some form of stocktake of whether a licensee deserves the ongoing use of that part of the spectrum. I would be happy to see this take place each 10 years, rather than each 5 years, and would be happy for the processes to be more low key than those practiced by the Australian Broadcasting Tribunal in the 1980s. However commercial, pay and community broadcasters in Australia should all have to face some moment of public scrutiny.
  • One of the major public interest issues for broadcasting/communications regulators at the present time of major technological transition from analog to digital is to ensure that the community interest is protected and continuity of service is preserved during transition phases.
  • Above all, regulators must resist the siren call of industry capture and be seen to be fearless champions of the real public interest.

I remain absolutely of the view that at the end of the Twentieth Century, and after eighty years of broadcasting, the original public interest issues which were seen to be implicit in the use of the broadcasting spectrum remain largely unchanged, though our way of expressing them may require some restatement. As Herbert Hoover said in 1924, “[broadcasting] is a public concern impressed with the public trust and to be considered primarily from the standpoint of public interest…”

As Mr Marcelino Oreja, the former European Commissioner said at the Seminar on Self-Regulation in the Media at Saarbrücken in April of this year:

The role of the media goes much further than simply providing information about events and issues; media also play a formative role in society … they are largely responsible for forming the concepts, belief systems and even the languages … which citizens use to make sense of, and to interpret the world in which they live … In other words, media play a major role in forming our cultural identity (65).

These words echo the remarks in 1997 of the Annan Report set out at p.19 of this paper, which I believe remain seriously relevant to our current circumstances. Mr Oreja’s Saarbrücken speech argues well the case for ongoing relevance of regulatory frameworks for broadcasting to ensure the attainment of the broader public interest objectives:

There are a certain number of public interest objectives which should be preserved in our societies, and which have a European dimension. In my opinion these would be summarised as follows:

  • ensuring plurality of ownership;
  • ensuring fair and effective co-regulation;
  • ensuring diversity of content;
  • protecting individual rights to privacy, free speech, etc;
  • protecting intellectual property rights;
  • maximizing individual consumer choice and access to information, and very importantly
  • ensuring a high level of protection of minors and human dignity.

… It would be mistaken to argue that public interest objectives – what are, after all, laid down by democratically elected institutions – somehow become irrelevant or invalid as a result of technological change.

I believe those to be a fair summary of the key public interest considerations for broadcasting policy, to which I would add for countries such as Australia and Canada the issue of national cultural identity, sovereignty and social cohesion. I note also the statement in the 1995 Irish Green Paper on Broadcasting: “In the tradition of Western European democratic theory and practice, modes of public communications are situated at the heart of the democratic process. The public interest is to broaden and deepen democracy by providing each citizen with opportunities for equal and affordable access to mediated public debate and to the fully diverse sources of information needed for participation in social life” (66).

9 – Relevance of Co-Regulation of Broadcasting to New Media such as the Internet

9.1 Public Interest Issues for the Internet

I am convinced that many of the original public interest perceptions which were considered applicable in the spectrum scarce era of broadcasting remain just as appropriate in the new era of digital broadcasting and the Internet. To begin with, all forms of communication use airwaves or cable capacity which are not private property but public resources even when their operation is allowed into private hands. The population of the world is far greater today than it was in the 1920s and the present environment of “channel richness” for broadcasting is nowhere near as much so as when compared with the population/spectrum equation of eighty years ago. Herbert Hoover’s words of 1925 “the ether is a public medium, and its use must be for a public benefit” is as true today as it was then. In relation to the Internet the cyber-anarchists have argued the case for a frontier-less world of cyberspace beyond the control of law-makers. This was always a fantasy flying in the face of the very reality of the space they sought to roam free in. It is now well known that cyberspace was always being trawled and monitored by western intelligence services and indeed owes its inception to the very needs of the US intelligence services (67). The fact is that computers and the people who use them exist within national boundaries except when they are sailing the high seas or international airspace. They are and must remain susceptible to the rule of law as every other action of civilised humankind does. It is my fundamental thesis that at this stage in human existence national parliaments remain the principle outlet for the individual citizen to exercise their right to a voice in the formal governance of human affairs because it is only national parliaments which have legitimate entitlement to make laws in the public interest within national boundaries. As this has been for broadcasting, so it must be for the Internet at least to the extent that it provides content services of a kind comparable to those provided by broadcasting. I note that email and chat services do not come within this category. Of course, even broadcasting has become an increasingly international medium. The Internet is a burgeoning means of instantaneous communication both within and between nations. Any rules which seek to govern it and still maintain its capacity to effectively traverse national boundaries must proceed in tandem at a national and international level. Wise legislators will therefore not seek to place their country too far out of kilter with developments in other countries which are major users of the Internet. Yet national legislators must act because they are elected by citizens to represent their interests and concerns, and the evidence clearly points to significant public concerns about some aspects of Internet Content. A recent research report by the Allensbach Foundation showed high levels of public concern in the USA, Germany and Australia about Internet Content (68). If one considers several of the core public interest rationales for the regulation of broadcasting since the 1920s one finds that they have ongoing resonance and relevance for the Internet:

  • use of public airwaves or cable capacity
  • intrusion of the medium into the home
  • increasing use of the medium for more communications both in terms of content and in the means of access
  • education information and entertainment content needs
  • national cultural identity and sovereignty
  • protection of children from illegal or harmful content
  • diversity of voice
  • competition
  • privacy

In addition to these, if industry self-regulation is the path down which Internet content goes, then there is a clear need for the existence of an umpire or ombudsman for the self-regulatory process, and the need to provide industry-neutral complaints hotlines.

Balancing Freedom of Expression Rights with other Public Interest Objects

Everywhere we look in the Internet one finds issues of governance which demand some form of regulatory intervention whether at a government, industry or consumer level – domain names, technical standards, encryption, privacy, intellectual copyright. Why should Internet content alone remain isolated from such notions of governance. The answer is that it cannot. A significant reason for the dispute which rages in this area lies in the struggle between the single-minded proponents of the paramountcy of the US First Amendment Free Speech right and those who argue that the issue of free speech is an important right in any democratic society, but that it is simply one right amongst many which the public interest demands be balanced to procure good government, order stability, protection of private or human rights and the like. The 1997 Graham Spry Memorial Lecture by Dr Robert McChesney contains a significant commentary on the misuse of the US First Amendment cause in recent years:

… the First Amendment to the US Constitution has been appropriated over the past 30 years as a tool, both legal and ideological, for the commercial media and advertising interests. As a result, the First Amendment’s connection to democracy is at times so faint as to scarcely exist at all. Nor is this a concern merely for those who live in the United States. This neoliberal First Amendment, if you will, underlies much of the thinking about commercial media implicit in global trade agreements like NAFTA and GATT. It states, in essence, corporate media über alles. In my view, this transformation of the First Amendment represents a grotesque, Orwellian twist, by which the media system sanctifies outcomes more appropriate for a world led by the edicts of Goebels than a world committed to the traditional concerns of liberal democracy (69).

I admit unashamedly to being a champion of the balance case. I value freedom of expression enormously and I dislike intensely finding my own freedom to express myself being curtailed. However as a parent and a grandparent I value just as highly my right to ensure that my family is protected from undesirable influences when children are in their formative years. No greater obligation falls upon us in life whether as parents, grandparents, teachers or communicators than the care and nurture of our future citizens. We are the custodians of the civilization we have inherited and we are obliged to do the best we can to prepare another generation to carry that evolving civilization forward. The Internet is perhaps the most remarkable new medium of this millennial age to help equip us to do that – but we will have failed if we allow it to be a lawless Sargasso sea of sewage in which children are to be the victims of cyber-porno-pirates and in which parents and educators are to be hapless helpless audiences to the cyber-abduction of those entrusted to their care.

The Munich Memorandum and Recommendations on Internet Content Self-Regulation
I am therefore absolutely convinced that national parliaments and industry bodies must work together on schemes of self-regulation and co-regulation for the Internet which sit within a broader framework of international cooperation. I am delighted this year to have been a member of the Bertelsmann Foundation’s International Network of Experts on Internet Content Self-Regulation. At the World Summit on Internet Content in Munich from 9 – 11 September 1999 the following important principles were recognized:

  • Mechanisms have to be developed that deal with the potentially harmful aspects of the Internet whilst preserving those aspects which offer extraordinary scope for enhancing the way we now live.
  • Any such mechanisms should be based on the dynamic communication between the public, industry and government to achieve a practicable framework for the industry’s self-regulation with a distinctly international scope but which is able to deal effectively with national and regional concerns.
  • Codes of conduct should be developed and adopted to ensure that the Internet industry is accountable to community concerns for social responsibility and service quality.
  • The responsibility for ensuring that codes of conduct are effective should also be shared by the Internet industry. These Codes must be enforced by self-regulatory agencies that are broadly representative and accessible, and actively involved in consumer and citizen consultation to deliver the standards they promise.
  • Realizing the practical limits of Internet self-regulation, governments should support self-regulation agencies enforce their codes of conduct, both relating to criminal prosecution and in raising the public awareness, through education, that self-regulatory mechanisms exist and are easily accessible through such means as hotlines, and that individual mechanisms to filter and block Internet content are available to interested users.
  • The development of filtering technology shares the responsibility of Internet content regulation, distributing it solely from the realm of government, regulatory agencies and supervisors to that of concerned individuals.
  • The design of successful filtering technology must respect the values of free speech.
  • To ensure that users can respond effectively to problematic and often illegal content on the Internet, a system of confidential communication must be developed to evaluate the legality of a specific concern. Such a system, through hotlines, for example, requires an operational structure that shields them from criminal or civil liability incurred in the conduct of their business (a “safe harbour”).
  • By committing to mutual notification between hotlines, and agreeing on minimum standards for handling content concerns, a network of international cooperation can be developed to act against content where it is located.
  • The legal regulatory framework of each country must place realistic limits on the types of liability incurred by users and providers alike. The framework should ensure that there is no criminal responsibility for mere access to Internet content and that network providers are not responsible for illegal content transmissions taking place in real-time on their networks, or for illegal content stored on their sites without their knowledge.
  • Technically able law enforcement bodies are necessary to combat computer crime and illegal content such as child pornography on the Internet.
  • Self-regulation relies upon the Internet industry to develop a system of education and constant evaluation from its users. Part of this is a continuous effort to provide awareness both on and off-line, of the legal and self-regulatory mechanisms available to the public in the form of filtering systems and hotlines.

I strongly endorse the broad thrust of the views in the Munich Memorandum. I take comfort from a document which Patricia Aufderheide has reproduced in her book “Communications and the Public Interest”. The document is entitled “Technorealism” and records as its third basic principle for new technologies:

Contrary to some claims, cyberspace is not formally a place or jurisdiction separate from earth. While governments should respect the rules and customs that have arisen in cyberspace, and should not stifle this new world with inefficient regulation or censorship, it is foolish to say that the public has no sovereignty over what an errant citizen or fraudulent corporation does online. As the representative of the people and the guardian of democratic values, the state has the right and responsibility to help integrate cyberspace and conventional society (70).

9.2 Australia’s Scheme for Online Content Co-Regulation

Within two years of the Australian Broadcasting Authority being established under the new broadcasting regulatory legislation in 1992, there were already calls to subject the rapidly expanding growth of the Internet to some form of regulatory control in Australia. In July 1995, in response to concerns being raised regarding the content available through the Internet, the then Minister for Communications and the Arts directed the ABA to conduct an investigation into the content of online information and entertainment services, including services in the Internet.

In conducting this investigation, the ABA placed a high priority on understanding the technology and services underpinning the Internet, and the manner in which online services are being introduced into homes and schools. The ABA sought to ensure that any proposals for the development of a regulatory framework for online services were practical and appropriate to the online environment and addressed identifiable community needs.

To achieve this, the ABA consulted widely with representatives of the online community, including online service providers, content providers and users, businesses, government departments, academics, educational and community organizations and individuals.

The ABA presented its report to the Minister in June 1996. The report recognized that different approaches were needed in relation to online content that is illegal versus online content that, while not illegal, might be unsuitable for children. The three key recommendations from the report were:

  • the development of codes of practice for service providers.
  • establishment of an online labeling taskforce to consider the role of a content labeling scheme to protect children in the online environment; and
  • development of community education strategies.

In July 1997, the new Minister for Communications and the Arts, Senator the Hon. Richard Alston, and the Australian Attorney-General jointly released the ‘Principles for a Regulatory Framework for Online Services’ for public comment. It was the Government’s intention that the regulatory model proposed for online content be no more restrictive than models already in place for television and film.

Under the principles, the Commonwealth of Australia would have responsibility for regulating Internet Service Providers while the States and Territories would have responsibilities for content providers.

In August 1997, the Minister for Communications and the Arts directed the ABA to conduct an investigation into matters relating to future regulatory arrangements for the content of online services.

In undertaking its second investigation, the ABA continued its liaison with the online industry, relevant government agencies, education and community organizations within Australia and internationally. In February 1998, the ABA established the Children and Content Online Task Force (the Task Force) to assist in consideration of issues relating to the protection of children in the online environment. This Task Force comprised a range of individuals with experience in service and content provision, libraries, industry associations, community groups, children and media, and film and video classification. The ABA was also involved in a working group that considered the feasibility of a reporting hotline for illegal content found online within Australia. The ABA continued working at the international level through participation in the Internet Content Rating Alliance and its predecessors and in a number of international conferences and other fora, including UNESCO. The ABA also contributed to the realization of national education strategies to ensure that Australians accessing services online use these services in the most effective and productive manner by developing the web site Australian Families Guide to the Internet.

The ABA provided its final report to the Minister in December 1998. Following the presentation of that report, the Minister for Communications, Information and the Arts introduced the Broadcasting Services Amendment (Online Services) Bill 1999 into the House of Representatives. After vigorous public and parliamentary debate and following some amendments resulting from industry consultation, the new legislation became law in mid 1999.
The legislation seeks to bring to the Internet industry in Australia similar forms of co-regulation to those which apply to the broadcasting industry. The Australian Broadcasting Authority is given the task of being the independent regulatory body charged with working with industry and the community to establish the new co-regulatory regime.

The co-regulatory scheme established by the Broadcasting Services Amendment (Online Services) Act 1999 addresses risks associated with illegal content and with content that is unsuitable for children, and does so through a range of regulatory responses. The scheme is based on the development of codes of practice by industry and the operation of a complaints hotline by the ABA.

The legislation adds three new public interest objectives to those set out in s.3 of the Broadcasting Services Act:

  • to provide a means of addressing complaints about certain Internet content;
  • to restrict access to certain Internet content that is likely to cause offence to a reasonable adult;
  • to protect children from exposure to Internet content that is unsuitable for children.

In performing its role, the ABA is to be guided by the principles laid down in the legislation of minimizing the financial and administrative burdens on industry and encouraging the supply of Internet carriage services at performance standards that meet community needs: s.4 (3) provides:

The Australian Parliament also intends that Internet content hosted in Australia, and Internet carriage services supplied to end-users in Australia, be regulated in a manner that:

(a) enables public interest considerations to be addressed in a way that does not impose unnecessary financial and administrative burdens on Internet content hosts and Internet service providers; and

(b) will readily accommodate technological change; and

(c) encourages:

(i)the development of Internet technologies and their application; and

(ii)The provision of services made practicable by those technologies to the Australian community; and

(iii)The supply of Internet carriage services at performance standards that reasonably meet the social, industrial and commercial needs of the Australian community.

The scheme applies to the activities of Internet Service Providers and Internet content hosts (ICHs) only. The Government has stated that it will be encouraging the States and Territories to develop uniform legislation that will complement the Commonwealth legislation and cover the activities of users and content creators. I note that South Australia and the Australian Capital Territory have released draft model legislation for public content.

The regime of co-regulation is complaints-based – it establishes a framework in which people who are concerned about particular Internet content can make a complaint and have that complaint investigated. The ABA will operate a complaints hotline from 1 January 2000 and will commence investigating complaints from that date.

The ABA is not required to proactively search for and deal with all Internet content that may be prohibited.

The Act defines prohibited content as material that has been classified RC (Refused Classification, i.e. material that is illegal in any medium) or X (i.e. sexually explicit material) by the National Classification Board of Australia. Content hosted in Australia that has been classified R (i.e. material considered unsuitable for people under 18 years of age because of violence, language, sexual content, adult themes or for some other reason) but does not have an adult verification mechanism to restrict access, will also be prohibited.

Action to be taken in relation to prohibited content that is subject to complaint differs depending on whether the content is hosted in Australia or hosted overseas. If it is hosted in Australia, the ABA is required to issue take-down notices to the content host. If it is hosted overseas, the ABA will notify ISPs who are to take action in accordance with their codes of practice (more on this later). If it is hosted overseas and is also sufficiently serious (e.g. illegal material such as child pornography), the ABA will refer the material to the appropriate law enforcement agency.

It is important to note at this point that ABA decisions under the regulatory scheme are subject to administrative and judicial review processes, e.g. Administrative Appeals Tribunal review and judicial review by the Federal Government.

It is also important to note that while industry bears the costs of compliance it does not bear the costs of having material classified as a result of the complaints process.

A key component and example of the co-regulatory nature of the scheme is the development of industry codes of practice to govern the activities of ISPs and ICHs. Industry is required to consult with the community in the development of these codes. The ABA registers these codes if it is satisfied that industry has undertaken appropriate community consultation and that the codes contain appropriate community safeguards.

The ABA is now in discussion with industry associations about the implementation of the new and challenging scheme, In doing so, it must bear in mind both the specific public interest objects of the BSA but also the wider and more general public interest brief which the ABA holds.

10 – Summary and Conclusions

I believe that this overview of broadcasting regulation and public interest issues since the 1920s notably in the USA, Canada, the UK and Australia highlights that even in an age of supposed “channel richness” the same fundamentals remain for broadcasting at the end of the Twentieth Century as they did in the 1920s and the decades immediately thereafter. Broadcasting and now the Internet make use of public property, the airwaves and bandwidth. Broadcasting remains, and the Internet is clearly emerging as a means of mass communication of a particularly intrusive nature. They enter our homes and workplaces, exercise important influences on public life and national cultures. Their content has been and, the latest research confirms in relation to the Internet, remains a matter of considerable concern to the public who wish to see national cultures preserved and enriched and to see young people protected from inappropriate material.

It is essential for policy makers and legislators, as they review existing and prepare new rules for broadcasting and the Internet, to revisit and restate the public interest objectives they believe should apply to those industries and their governance. Sweeping references to “the public interest” may be less effective than a clear articulation of the process concerns that legislators are seeking to advance.

National parliaments in democratic systems such as those of Australia, the UK, and Canada provide the one legitimate constitutional outlet for public concerns and it is entirely appropriate that, even in an age of increasing internationalization of broadcasting and now the Internet, it be national parliaments which set the rules for the regulation of these matters within national borders. However, it is equally clear that activities such as the Internet which are heavily transborder in scope must be governed by rules which reflect major developments taking place elsewhere in the world. International discussions are needed, and are occurring right now, to allow governments, industries, users and communities to help shape suitable rules for new media such as the Internet.

Co-regulatory or self-regulatory schemes for dealing with these issues seem to require the existence of an umpire to oversee the efficient and effective working of these schemes and to deal with public complaints. It is appropriate for such umpires to be given discretion to interpret the public interest objectives of such schemes to decide their application to particular circumstances. Such bodies will be assisted by the clear articulation of the legislature’s public interest objectives to guide the regulator in its efforts to allow the public good in specific cases.

In relation both to broadcasting, a highly mature industry, and the Internet whose usage is so diffuse, it is apparent that the most appropriate means for dealing with governance issues is through the healthy consultative interaction of governments, regulators, industry and the community in schemes of self-regulation or co-regulation. While legislators may well see industry self-regulation as the sensible direction for communication industry governance to take, it is difficult to see how such schemes will be genuinely effective without some provision for industry umpires and for the safety valve of public complaints processes. Whereas in the United States the US Constitution First Amendment allows the free speech lobby to dominate discussion about self-regulation, other countries with healthy democratic systems and vibrant processes of open expression are able to seek a more appropriate balance between the right to free expression and the right of communities to nurture national and local cultures and to protect children from harmful content. There is no one right way for any nation to approach the manner in which we move forward in these issues. In Australia we are now endeavoring to place online services on the same footing as broadcasting and are applying a co-regulatory framework governed by important public interest considerations. I believe this has much to commend it. Other nations will make their own decisions on what best meets community and industry needs for this activity. However, I am absolutely convinced that at the end of the Twentieth Century it is time for all of us who care about these issues to reaffirm our faith in the overriding importance of the public interest to ensure that healthy vibrant communications industries are conducted for the public good.

(1)Vaclav Havel quoted in Jacob Heilbrunn “Why Sovereignty is overrated: Borderline Insanity.” New Republic, 28 juin 1999:33.
(2)Bernard Manin. “On Legitimacy and political deliberation”. New French Thought. Mark Lilla (ed) (Princeton, New Jersey: Princeton University Press, 1994): 193-194.
(3)Jean-Jacques Rousseau. Du Contrat Social.(Geneva, Editions du Cheval Ailé, 1947) 4:2, 441 et 2:3, 371.
(4)Rousseau. 2:3, 371.
(5)”Virginia Declaration of Rights” The Annals of America . Mortimer Adler (ed) (Chicago: University of Chicago, 1968) 2:432
(6)Government of the Commonwealth of Australia. Broadcasting Services Act 1992 s.4 (2).
(7)Herbert Hoover quoted at http://www.benton.org/PIAC/intro.html
(8)Frank W. Peers. The Politics of Canadian Broadcasting 1920-1951. (Toronto: University of Toronto Press, 1969): 11
(9)Sydney Head, Christopher H Sterling and Lemuel B Schofield. Broadcasting in America. (Boston: Houghton Mifflin, 1994):41
(10)W. Hoffman-Rien. Regulating Media . (New York, London: The Guilford Press, 1996): 15
(11)Head, Sterling et Schofield. 463
(12)Patricia Aufderheide. Communications Policy and the Public Interest.   The Telecommunications Act of 1996. (New-York, London: The Guilford Press, 1999):104
(13)Aufderheide. 104-105.
(14)Vincent Mosco. Broadcasting in the US. (Norwood, New Jersey: Ablex Publishing Company, 1979): 14-15.
(15)Peers. 31
(16)Peers. 33
(17)Government of Canada. Canadian Radio Broadcasting Act 1932 ss.8 et 9.
(18)Peers. 91
(19)quoted from Canadian Parliamentary Debates May 18, 1932: 3035-6 by Frank Peers. 102
(20)Government of the Commonwealth of Australia. Australian Constitution. Article 51 (v).
(21)B.G. Cole. “The Australian Broadcasting Control Board and the regulation of Commercial Radio in Australia since 1948” PhD. Thesis, Sydney University, 1967; Ann Arbor, Michigan, Xerox Microform , 21.
(22)Cole. 28
(23)Cole. 28
(24)Michael Tracey. Public Service Broadcasting. (Oxford: Oxford University Press, 1998): 11.
(25)Sykes Report quoted in Burton Paulu. Television and Radio in the United Kingdom (London: Macmillan, 1981): 8.
(26)Paulu. 9.
(27)Lord Annan. Parliament of the United Kingdom. Report of the Committee on the Future of Broadcasting.
(28)Annan. 9.
(29)Paulu. 29.
(30)Paulu. 64.
(31)Paulu. 82.
(32)Paulu. 65.
(33)Annan. 19.
(34)Annan. 26.
(35)Annan. 26.
(36)Annan. 27.
(37)Annan. 39.
(38)Paul Bonner et Lesley Aston, Independent Television in Britain: Volume 5 ITV and IBA 1981-1992. (London: Macmillan, 1998): 351.
(39)Bonner et Aston. 351.
(40)Bonner et Aston. 351.
(41)Bonner et Aston. 372.
(42)Government of the United Kingdom. ‘Broadcasting Act 1990’.
(43)Government of the United Kingdom. ‘Broadcasting Act 1990’.
(44)ITC Annual Report, 1998, Chairman’s Introduction.
(45)Marc Raboy. Missed Opportunities: The Story of Canada’s Broadcasting Policy. (Montréal: McGill Queen’s University Press, 1990): 25.
(46)Raboy. 28
(47)Raboy 36.
(48)Raboy. 45-46.
(49)Raboy. 171.
(50)Government of Canada. Broadcasting Act 1968 s.2((g)iv).
(51)Raboy. 241.
(52)Raboy. 241-242.
(53)Raboy. 243.
(54)quoted by Raboy op. cit. p. 245.
(55)quoted by Raboy op. cit. p. 283.
(56)Raboy, 283.
(57)Government of Canada. Broadcasting Act 1991. s.3.
(58)Government of Canada. Broadcasting Act 1991. s.5.
(59)Raboy. 311-312.
(60)Marcelino Oreja, Member of the European Commission. Speech delivered at the Seminar on Self-Regulation in the Media, Saarbrücken, 19-21 April 1999.
(61)quoted in Robert Alban et Franco Papandrea. Media Regulation in Australia and the Public Interest. (Melbourne: Institute of Public Affairs, 1998): 3.
(62)Durie et Catterns. Broadcasting Law and Practice. (Sydney: Law Book Company, 1987) 1: 316-319.
(63)quoted by Alban et Papandrea. 3.
(64)Durie et Catterns. 1:323.
(65)Marcelino Oreja, Member of the European Commission. Speech delivered at the Seminar on Self-Regulation in the Media, Saarbrücken, 19-21 April 1999.
(66)Government of Ireland. Active or Passive? Broadcasting in the Future Tense: The Irish Green Paper on Broadcasting. Dublin: Government of Ireland Printer, 1995: 144.
(67)Geoffrey Barker. “Europe lifts the lid on Australian intelligence” The Australian Financial Review, 14 mai 1999; and European Parliament. An Appraisal of the Technologies of Political Control: STOA Interim Study Executive Summary September 1998, Available on
(68)Machill, Marcell and Jens Waltermann. “Risk-Assessment and Opinions concerning the Control of Misuse on the Internet” Protecting our Children on the Internet: Towards a new culture of responsibility. Gütersloh: Berterlsmann Foundations Publishers, 1999.
(69)Robert W. McChesney. “The Mythology of Commercial Broadcasting and the Contemporary Crisis of Public Broadcasting” The 1997 Spry Memorial Lecture. Montreal, 2 December 1997, 3-4. Available on
(70)Aufderheide. annexe F. 258.

Adler, Mortimer (ed). “Virginia Declaration of Rights” The Annals of America. Chicago: Encyclopedia Britannica, Inc, 1968.

Alban, Robert and Franco Papandrea. Media Regulation in Australia and the Public Interest. Melbourne: Institute of Public Affairs Press, 1998.

Lord Annan. Parliament of the United Kingdom. Report of the Committee on the Future of Broadcasting. March 1977.

Aufderheide, Patricia. Communications Policy and the Public Interest: The Telecommunications Act of 1996. New York, London: The Guilford Press, 1999.

Government of the Commonwealth of Australia. Australian Broadcasting Services Act 1992. 31 January 1998.

Government of the Commonwealth of Australia. The Australian Constitution.

Barker, Geoffrey. “Europe lifts the lid on Australian intelligence” The Australian Financial Review, 14 May 1999

Bonner, Paul and Lesley Aston. Independent Television in Britain: Volume 5 ITV and IBA 1981 – 1992. London: Macmillan,1998.

Government of Canada. Broadcasting Act of Canada 1991. Available on http://www.crtc.gc.ca/ENG/LEGAL/BROAD_E.HTM

Cole, B.G. “The Australian Broadcasting Control Board and the regulation of Commercial Radio in Australia since 1948” Ph.D. Thesis, Sydney University, 1967; Ann Arbor, Michigan. Xerox Microform.

Durie and Catterns. Broadcasting Law and Practice. Sydney: Law Book Company, 1987.

European Parliament. An Appraisal of the Technologies of Political Control: STOA Interim Study Executive Summary September 1998 Available fromhttp://www.europarl.eu.int/dg4/stoa/en/publi/166499/execsum.htm

Head, Sydney, Christopher H Sterling and Lemuel B Schofield. Broadcasting in America. Boston: Houghton Mifflin, 1994.

Heilbrunn, Jacob. “Why Sovereignty is overrated: Borderline Insanity.” New Republic. 28 June 1999.

Hoffman-Rien, W. Regulating Media: the licensing and supervision of Broadcasting in 6 countries. New York, London: The Guilford Press, 1996.

Hoover, Herbert. quoted at http://www.benton.org/PIAC/intro.html

Government of Ireland. Active or Passive? Broadcasting in the Future Tense: The Irish Green Paper on Broadcasting. Dublin: Government of Ireland Printer, 1995.

Independent Television Commission of the United Kingdom. ITC Annual Report 1998, London, 1998.

Machill, Marcell and Jens Waltermann. Self-regulation of Internet Content. Gütersloh: Bertelsmann Foundation Publishers, 1999.

(eds) “Risk-Assessment and Opinions concerning the Control of Misuse on the Internet” Protecting our Children on the Internet: Towards a new culture of responsibility. Gütersloh: Bertelsmann Foundations Publishers, 1999

Manin, Bernard. “On Legitimacy and Political Deliberation” New French Thought. Mark Lilla, ed. Princeton, New Jersey: Princeton University Press, 1994.

McChesney, Robert. “The Mythology of Commercial Broadcasting and the Contemporary Crisis of Public Broadcasting” The 1997 Spry Memorial Lecture. Montreal, 2 December 1997. Available on http://www.fas.umontreal.ca/COM/spry/spry-rm-e.html

Mosco, Vincent. Broadcasting in the United States: Innovative Challenge and Organizational Control. Norwood, New Jersey: Ablex Publishing Company, 1979.

“The Regulation of Broadcasting in the United States: A Comparative Analysis” Ph.D Thesis, Harvard University, 1975. Cambridge, Mass: Harvard University Press.

Oreja, Marcelino. Member of the European Commission, Speech at the Seminar on Self-Regulation in the Media, Saarbrücken, 19-21 April 1999.

Paulu, Burton. Television and Radio in the United Kingdom. London: Macmillan Press, 1981.

Peers, Frank W. The Politics of Canadian Broadcasting 1920 – 1951. Toronto: University of Toronto Press, 1969.

Raboy, Mark. Missed Opportunities: The Story of Canada’s Broadcasting Policy. Montreal: McGill-Queen’s University Press, 1990.

Rousseau, Jean-Jacques. Du Contrat Social. Geneva: Editions du Cheval Aile, 1947.

Tracey, Michael. The Decline and Fall of Public Service Broadcasting. Oxford: Oxford University Press, 1998.

Public Service Broadcasting. Oxford, Oxford University Press, 1998.

Government of the United Kingdom. Broadcasting Act 1990. 1 November 1990. Available on http://www.hmso.gov.uk/acts/summary/01990042.htm

Gareth Grainger

Mr. Gareth Grainger is Deputy Chairman of the Australian Broadcasting Authority (ABA) and Chairman of the International Committee of the Research Forum on Children and Media. He is also Chairman of the On-Line, Policy and Strategy, Codes and Standards and Legal and Enforcement Committees of the ABA as well as Associate Member of the Australian Communications Authority.

From 1993 to 1997 Mr. Grainger was General Manager, Policy and Programs, at the ABA. He was previously a senior executive of the Special Broadcasting Service (SBS), Australia’s second public broadcaster. He has a Master of Laws degree with Honours in International Law and has been a visiting Associate Professor at the Bond University School of Law.

Mr. Grainger has represented the ABA at major national and international forums and has been instrumental in developing close relationships between the ABA and other national broadcasting regulators and policy makers in Australia and overseas. His extensive experience in broadcasting regulation will provide a rich perspective on the challenges facing broadcasting on the eve of the new millennium.

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