Help! Help! I’m being regulated

The Report of the Independent Inquiry into the Media and Media Regulation by Ray Finkelstein (which I shall henceforth refer to as RIIMMR, more enthusiastically had it come in holographic form) was released about 3 weeks ago ^[1]I’m a bit late to the party, but the wheels of government do turn rather slowly..

One of its more interesting recommendations appeared to be that blog sites having 15,000 hits per year or more would fall under the jurisdiction of the hypothetical News Media Council. This has a personal interest for me, because Dave’s Archives would be caught in this net (along with, I imagine, thousands of other small blogs). The NMC does not yet exist, but according to RIIMMR it would:

…set journalistic standards for the news media in consultation with the industry, and handle complaints made by the public when those standards are breached.

Now, the Internet, having largely been a bastion of libertarianism ever since its inception, tends to Really Hate this sort of thing. Libertarians tend to rally against any sort of regulation, no matter what context it may occur in.

To be fair to them, 15,000 hits is a very low threshold indeed, and doesn’t sound particularly workable. To be fair to RIIMMR, however, that’s not quite the whole story. The actual text says this (paragraph 11.67):

There are practical reasons for excluding from the definition of ‘news media’ publishers who do not have a sufficiently large audience. If a publisher distributes more than 3000 copies of print per issue or a news internet site has a minimum of 15 000 hits per annum it should be subject to the jurisdiction of the News Media Council, but not otherwise. These numbers are arbitrary, but a line must be drawn somewhere.

The implications of that last sentence (my emphasis) are rather missing from the analysis so far (as far as I can tell). Although clumsily-worded and with insufficient consideration, RIIMMR is clearly not proposing a threshold of 15,000 hits; that figure is merely an example. To compare, 3,000 copies per issue for a weekly print publication would come to 156,000 physical copies per year (and each of those is much more substantial unit of exposure than a mere “hit”). It is unlikely the authors intended these numbers to be taken seriously at all. They are are plainly leaving any deliberation on the actual criteria to whoever comes next.

I fancy I can hear the echoes of the aftermath of the Andrew Bolt racial discrimination case. Then, so much of the edifice of our democracy seemed to hinge, for reasons unknown, on Bolt’s inalienable right to launch vicious, unprincipled and unprovoked attacks in a major newspaper on a group of perfectly respectable individuals. All our freedoms were at risk, it seemed, when it turned out that Bolt had to pay the ultimate penalty: a public apology for being an arseclown.

So, without jumping to conclusions, let’s just sit back for a moment and work through the issue.

My first major criticism is that RIIMMR does not appear to establish any solid, explicit reason for extending the regulatory process to blogs. Perhaps the case could be made, but RIIMMR does not really make it; blogs seem somewhat incidental to the main focus. RIIMMR does point out (paragraphs 5.106-5.110) that “defamation is not an effective check on journalistic excesses” due to long delays, costs, and complexities, but this is an argument for overall media regulation in general. RIIMMR also points out (paragraph 4.17) that people don’t trust blogs nearly as much as news sites anyway. Presumably, then, issuing corrections on blogs is not quite as crucial as for professional news organisations. I also personally hold hopes that, in the long run, projects like Hypothes.is will succeed. If they do, they may prove more workable than any government-backed media regulator.

Nonetheless, let’s say for the sake of the argument that we do have a good reason to regulate blogs. What practical problems, if any, might there be with regulating blog sites in the manner proposed by RIIMMR?

To keep things in perspective, we’re not talking about punitive measures to silence dissent for political ends. The News Media Council would be government-funded, but otherwise independent ^[2]Cynicism and paranoia notwithstanding, there are various existing government-funded institutions in Australia that aptly and routinely demonstrate their independence from the political considerations … Continue reading. Its powers would be as follows (paragraph 11.74):

• To require publication of a correction.
• To require withdrawal of a particular article from continued publication (via the internet or otherwise).
• To require a media outlet to publish a reply by a complainant or other relevant person.
• To require publication of the News Media Council’s decision or determination;
• To direct when and where publications should appear.

And the NMC would not be able to fine you (paragraph 11.76).

There should be no power to impose fines or award compensation. Powers of this kind are likely to involve constitutional difficulties. In any event, inevitably they will make the complaints-handling process more complex and time-consuming. One of the main advantages of the proposed News Media Council will be lost. The incentive to resolve a complaint quickly will also be lost.

The proposed remedies do not strike me as inherently Orwellian in themselves. They are not punishments. It would not be especially difficult for anyone running a WordPress blog (like this one), for instance, to perform any of the actions mentioned.

That said, there are practical problems to overcome in administration. How would the NMC actually contact a blogger? Owners of small sites often do not list any contact details on the site itself suitable for official/legal correspondence. If the blogger holds a .au domain name, the details are there for the taking from the domain name registrar. Web hosting companies within Australia could also probably be compelled to divulge a blogger’s postal address. However, any blog with a non-.au domain and hosted outside Australia is potentially beyond reach, even if all the content is Australian (whatever you consider that to mean) and the blogger lives and works in Australia. This is the case for any blog hosted at wordpress.com or other such sites providing ready-to-go blogs, and anything posted on most social media sites.

RIIMMR declares (in paragraph 11.69) that:

…if an internet news publisher has more than a tenuous connection with Australia then carefully drawn legislation could enable the News Media Council to exercise jurisdiction over it.

This seems rather optimistic. In reality, bloggers would need much more than a “tenuous” Australian connection to be subject to regulation, no matter how the legislation is written. (We’ve had similar arguments before, such as back in 2001 over our ability or lack thereof to ban child pornography on the Internet.)

A related problem occurs in trying to determine whether a blog is “big enough” to fall within NMC jurisdiction. If one criterion is a threshold number of hits per year, then the NMC first needs to acquire that data. Australian hosting companies might be forced to report it, but any foreign hosting company won’t have to. Thus, NMC jurisdiction will be impossible to determine in many cases. Where contact details are available, could the NMC compel an Australian blogger to reveal their own traffic statistics? That opens a whole other can of worms. What if a blogger doesn’t collect those statistics, or doesn’t know how to find them, or simply makes them up? And in any case, what if a potential complainant realises that they can cause a blog to be subject to media regulation simply by reloading the page a few thousand times (with or without a script)?

Nonetheless, suppose the NMC can contact bloggers as needed, and suppose we can resolve jurisdiction issues. Most bloggers write for free in their spare time, and many probably do not have the time or energy to comply with formal regulatory and legal processes. Many more may find the regulatory process intimidating, and overcompensate for the complaint received by ceasing to blog altogether. Further, if the regulatory process imposes hard deadlines on responses to complaints (as it would probably have to), casual bloggers might find themselves in legal hot water simply by forgetting to check their mail for a few days.

You could perhaps devise a more sophisticated set of criteria to distinguish between high-volume blogs that ought to be equipped to deal with complaints and smaller blogs that aren’t. I don’t know what this would look like, and it would require a great deal of thought.

There are also countermeasures that a small blog can take if the blogger is inconvenienced by or philosophically opposed to regulation. The simplest option is to move the site to an off-shore hosting company, to hide traffic statistics and contact details. This would only work as a pre-emptive measure, prior to the blog itself being brought to the attention of the NMC, before the NMC can acquire the details it needs.

But there is another, more dangerous consequence that may apply if the NMC attempts to exercise its power to “require withdrawal of a particular article from continued publication”. Censorship is a hot button issue for the online community. The interest generated by anything perceived to be censorship can lead to much wider dissemination of the material in question, and possibly active retaliation. I don’t agree with this mentality in many cases (because there are good reasons to not publish certain information that have nothing to do with manipulating the public), but we can’t ignore its existence. If the material in question is indeed something that is not in the public interest, then trying to have it removed might perversely cause more harm than good. Opponents of regulation may look to actively facilitate precisely this sort of event, and so any small-time blogger may be capable of triggering a privacy/defamation nightmare.

This perhaps isn’t a problem where large organisations are concerned, because people are naturally less sympathetic towards them. We are used to the idea that they should be held to account. However, the NMC ought to be extremely cautious when wielding that particular power where bloggers are concerned. Its other powers (e.g. to “require publication of a correction”), while perhaps still not greatly appreciated by the blogger, might avoid the same level of discontent and retaliation.

You might think, if you agree with me so far, that I’ve raised enough problems to comprehensively damn the notion of regulating blogs. However, I’m reluctant to say it can’t be done, given enough forethought. I don’t think I would suffer for it, in principle.

Yet, the notion of regulating online articles may be overtaken by other events, described in my previous post. If Hypothes.is can produce a working prototype — a peer review system for the Internet — and if it can attract a critical mass of users, then the News Media Council may be obsolete.