Regulation with a nudge: ACMA learns its pressure points

By Stephen Easton

March 4, 2015

The hallmark of a good regulatory framework is predictability, according to Australian Communications and Media Authority chief Chris Chapman, and that comes from a consistent approach to interpreting the regulations.

For ACMA, which administers nine different broadcast industry codes, deep thought has gone into what words like “fairness” and “impartiality” really mean in the course of investigating code breaches over the years. As part of a drive to become a more effective, lighter-touch regulator, the media watchdog has produced a series of papers explaining how it has interpreted these concepts in actual cases over the years.

The first paper covered fairness, impartiality and what constitutes a distinct viewpoint in the context of balanced reporting; the second focused on accuracy. The third and final paper will explore ACMA’s understanding of “generally accepted standards of decency”, which a certain Kyle Sandilands demonstrated is not shared by everyone in the media.

The regulator decided to produce the papers off its own bat to help broadcasters get on the same page. The chairman says nobody has “taken issue” with anything they’ve written so far. “There was nothing else in the market that has this depth of analysis or this thematic cut of what we do, so I think it’s been very well received,” Chapman told The Mandarin.

Times change, and for regulators to stay relevant their legislative and regulatory frameworks really need to keep up with the world around them. ACMA, perhaps more than any other, finds the industry landscape around it changing rapidly as old pillars crumble and the fresh upstarts rapidly disrupt the information trade.

“The premise is that the boundaries between sectors that we regulate are melting,” Chapman said. “There’s a lot more offshore influences; in other words, your sovereignty is no longer as exclusive as you would have liked. There’s real pressure on resources. There’s enormous disruptions going on in media and communications, and this has always been a highly contested space, in any event.”

“All regulators are going to have to reassess how they approach their jobs because all regulators’ challenges are increasing …” 

For years now, he adds, ACMA has accepted “the pace of change in media and communications is outrunning the legislative framework” and decided the answer is “to evolve into a different style of regulator”. The standard levers or “access points” for regulators to intervene in their particular sector are becoming less effective; Chapman sees the answer in “leading debate, ‘nudging’ as some like to say, exerting pressure at nodes in the networked society, mandated of course, but not, perhaps, via the usual route of legislation with attached subordinate legislation and conventional sanctions”.

“All regulators are going to have to reassess how they approach their jobs because all regulators’ challenges are increasing and resources are diminishing,” Chapman said. “So you’ve got to work smarter, you’ve got to attack problems, you’ve got to have fit-for-purpose outcomes, and I do accept the proposition that you’ve got to be as light-touch as possible for whatever the particular circumstances.

“So what we’ve tried to do over the last few years, instead of just being a regulator, we’ve sought to be firstly a much stronger communicator, and secondly a facilitator of outcomes. And then we quite provocatively say — self-deprecatingly, if you like — that if all else fails, then we’ll regulate.”

While commercial radio and television are still hugely influential, and so will be subject to the regulations for many years to come, the ACMA chief expects the agency’s “fit-for-purpose regulatory interventions to suit the times” won’t last forever.

“I’m predicting … that these ‘work-around’ mechanisms will themselves come under strain, as the gap between the legacy legislative architecture and the complex networked environment that now characterises media and communications continues to widen,” he said.

“However, the ACMA is not the government — we do not make the legislation. The Minister and the Department of Communications have primary responsibility for policy development; policy overhaul. But what we can do, and have done, is attempt to provide unremitting, relevant thought leadership to ‘nudge’ that along.”

In future, he sees a need to bring all the different areas of the rapidly converging and convulsing media and communications industry under the oversight of a single regulatory agency “with a broad remit, empowered with a scalable set of powers, operating with a culture that allows it to operate flexibly in a range of modes and pervasive relationships”.

“Over the horizon,” he said, “I see an enhanced, strengthened and dramatically more agile ACMA playing an important, indeed pivotal role as a future regulatory centre point, one that is prolific, timely and cut-through in its communications; that is informed, pro-active and pragmatic in its facilitation; and is reasoned, measured and proportional in its ‘fit for purpose’ regulatory determinations.”

More at The Mandarin: ACMA on world-beating path in converged media future

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