(Image: Private Media)

This article is part of a series about a legal threat sent to Crikey by Lachlan Murdoch, over an article Crikey published about the January 6 riots in the US. For the series introduction go here, and for the full series go here.

The case for curbing the power of News Corp in Australia can be told with a few simple facts. It controls around two-thirds of the nation’s newspapers. It is the nation’s dominant subscription television platform. It owns a quarter of the nation’s top 20 news sites. Other media outlets, especially the notionally independent ABC, readily follow its editorial lead each day. That alone justifies its break-up.

But worse, the nature of that dominant role in Australia’s already highly concentrated media environment is toxic. It openly supports one political party, by the admission of its most senior and experienced political commentator. It is “an absolute threat to our democracy”, according to former Liberal prime minister Malcolm Turnbull. He describes News Corp as the nation’s most powerful political actor, but one that acts with no accountability. Its climate denialism, Turnbull says, “is just staggering and has done enormous damage to the world”. Even James Murdoch has lamented “the ongoing [climate] denial among the news outlets in Australia given obvious evidence to the contrary”.

How then could policymakers — should they so wish — curb the malignant power of the Murdoch empire?

Traditionally, media regulation in relation to the abuse of media power in Australia has revolved around two ideas: ownership restrictions and some kind of suitability test for broadcasters.

Ownership limits have mostly been abolished now but in the past they’ve been used to prevent over-concentration of media: we’ve limited the reach of broadcasters, or the ownership of multiple forms of traditional media (TV, radio, newspapers); or had a “share of voice” test. Secondarily, there is also competition law, via which the Australian Competition and Consumer Commission might intervene in transactions that substantially lessen competition — although for the media that’s always been about competition in specific economic markets like advertising.

Alternatively, on the basis that broadcasting was recognised as delivering substantial influence, we used to have requirements that broadcasting licence holders satisfy tests such as being a fit and proper person to hold a licence, or to be “suitable”, as the current Broadcasting Services Act put its. The current suitability requirements, however, have been so heavily watered down as to be near-meaningless.

Both of these approaches could be revived to force the break-up of the Murdoch empire. While it’s technically more difficult to regulate newspapers than broadcasting licences, newspapers are already included in existing “minimum voice” rules via the Commonwealth’s power to regulate corporations. News Corp could be forced to reduce its ownership of tabloids to one or two cities, or dump its national newspaper, or hive off its subscription television licence.

In a straitened media environment, however, there’s a real question about whether those assets would be viable once they’ve been fragmented.

A strengthened suitability test could also be applied that would enable the broadcasting regulator to assess the impact of the Murdoch family on Australia and determine whether it was in Australia’s national interest that their company continue to be allowed to control a subscription television licence.

Both of these approaches are clunky and have proved unsatisfactory in practice. Fortunately, however, the Murdochs themselves have furnished us with another, better tool.

The News Media Bargaining Code, which was a News Corp creation handed to, and implemented by, then-treasurer Josh Frydenberg, threw out the window generations of media policy in Australia — even as it continued the great tradition of media proprietors dictating policy — in favour of a completely new approach. Once-fundamental distinctions between broadcasting, newspapers and online platforms were abandoned. The government simply gave itself the power to regulate news media business and digital platforms, creating a new category of legal entity “news sources”, which could be a newspaper, TV or radio broadcaster, website or video clip online, and digital platforms, which were simply designated as such by the government.

The rationale for this completely new approach to media regulation was, according to the explanatory memorandum for the legislation, that “government intervention is necessary because of the public benefit provided by the production and dissemination of news, and the importance of a strong independent media in a well-functioning democracy”.

Using that rationale, and the new categories of “news source” and “digital platform”, the government could simply order the break-up of a dominant or damaging news source — and both would apply to News Corp. The very tool created by the Murdochs could be easily used to curb their influence.

The real impediment is political, not legal or constitutional. After decades of being mauled by News Corp, Labor is too traumatised to be able to think clearly about either its own interests or the public interest when it comes to media regulation. It has accepted the dominant media company in Australia actively and constantly campaigning against it as a fact of life and is too scared to contemplate a different world. It won’t even tolerate the idea of an inquiry into our profoundly damaged media environment.

It’s yet another example of why major party politics as usual badly needs disrupting in Australia.