Bottom line: I don’t like the Finkelstein inquiry’s recommendation for enforced self-regulation for news media.

But look at the current situation. As the Fink lays out (see my summary elsewhere in Crikey today) we have a crisis of public confidence in the news media, including repeated harm done to individuals and the public by failures of journalistic standards. For many people there is no meaningful recourse, and the cost is borne, not by the media but by individuals and society at large.

The chances of doing anything about this are hobbled because the proprietors, editors and many journalists are simply in denial about it. They refuse to believe the repeated findings of public opinion polls and other studies that tell the tale.

They have, over many decades, treated self-regulation with bulk rhetoric and minimum commitment. Ethics are all very well, in most newsrooms, so long as they don’t get in the way of getting the story.

If we have a choice between the Fink’s model and the present situation continuing, with all that means for democracy and public confidence in the profession I follow, then I would prefer to go with the Fink. But I hope for something different, and I think we have a chance of getting it. More on this in a little while.

The Fink’s report makes it clear that he considered a choice between backing the reform of the Australian Press Council — recommending some more resources and powers and moving it over time to cover all media — and his new News Media Council.

Who should we blame for him coming down on the side of increased regulation? Sadly, a long line of media proprietors and editors over many decades, but more particularly Fairfax Media’s Greg Hywood, who told the Fink in ringing tones, in the face of overwhelming evidence to the contrary, that he didn’t believe the Australian Press Council needed more money, and he wasn’t prepared to give it.

To be fair to Hywood, for the Fink this must have been merely confirmation that the shameful record of the industry over the years (laid out in great detail in the report) was likely to continue if nothing was done. And clearly he was also not impressed by then News Limited CEO John Hartigan’s claim that the readers wouldn’t buy the product if it was flawed. That was a simple denial of the problems that come with one of the most highly concentrated media ownership systems in the world.

Basically, the industry has blown it. It was given the chance in the 1970s, with the establishment of the Australian Press Council, to get serious about self-regulation. It failed to do so. The evidence in the report is convincing on this point, even if we could not have determined it with our own eyes and ears.

There is a point of view, represented in many of the submissions to the Fink, that the bad things about a free media are simply something we must put up with, in order not to throw out the free press baby with sh-tty bathwater of media misconduct.

That is not a stupid point of view, but for my money the costs of continuing business as usual have become too high — even given that our problems are nowhere near as severe as those revealed in Britain.

I have arguments around the edges of what the Fink recommends. For a start, he clearly knows nothing about new media.

But in the big sweep, what he recommends is a reasonable balance in the circumstances. It is not government regulation, but mandatory self-regulation with a big stick in the background, for use only if news media fail to comply with standards they set for themselves, with adjudication being by an independently appointed council.

What worries me most about his model is not the threat of government control. I think this is grossly overblown in most commentary. In our society there are many mechanisms by which independence can be maintained while on the public purse. Take the Australia Council or indeed the courts themselves. To assert that government funding MUST necessarily undermine freedom and independence is far too simplistic. The Fink has recommended a mechanism to minimise the risk. I could live with it.

What worries me most is the legalism. The Fink wants a lawyer or judge to oversee the council, and the contempt of court proceedings to be the big stick. In practice only a tiny minority of cases would probably go before the courts, but that minority would still lead to all the paraphernalia of the legal system infecting the council.  Bottom line, an editor who wanted to stand by her story — who refused to publish an apology — could go to jail. It may never happen, but the mere possibility  would hamper the ideal workings of the council, which should be robust, devoted to the idea of a responsible free press, acting with commonsense rather than adherence to legal precedent in mind, and speedy.

Of course the possibility that an editor conscientiously defending a story might be jailed is in itself obnoxious. But so too is the present situation, in which the victims of media misconduct have lives blighted with little meaningful recourse.

So why do I think we have a window of opportunity here? Australian Press Council chair Julian Disney meets with media editors this week. In his statement released last week, he makes it clear that there may yet be a chance to hold of the Fink. He said:

“The report has laid down a clear challenge for the publishers. If they wish to avoid regulation by the new body … they would need to guarantee substantially improved financial support for the Press Council. They also would need to accept measures aimed at providing the council with due independence from them and to cooperate with strengthening its powers to remedy media mistakes.”

So that’s the option.There is good reason to suspect that the will to implement the Fink report might be weak, given that the government would face opposition from the media proprietors in the lead-up to an election.

On the other hand, both Communications Minister Stephen Conroy and Prime Minister Julia Gillard have invested considerable political capital in the process so far. And the media is, as the Fink demonstrates, in a crisis of public trust.

Nevertheless, what the Fink has done is effectively given a picture of what the future is likely to look like, if the media doesn’t reverse the trend of decades and get serious about its own self-regulation. So a possible outcome of this report will be a strengthened Australian Press Council, which in time will be expanded to cover all media, probably with a change of name. That would be the best outcome. I hope to see it occur.

Some points around the edges. I was disappointed that the question of extra measures to encourage new media start-ups were canvassed but not decided by the Fink. He has hand-passed all these questions to a future Productivity Commission review. Understandable, given the ridiculous deadline the Fink had to meet. But a Productivity Commission report will take years, even if it occurs, and in the meantime the situation will get worse.

The Fink mentions a string of media start-ups in recent times, saying “Among the most important such websites that have grown up in Australia over the last decade are Inside Story, Australian Policy Online, Online Opinion, The Drum, The Conversation, and New Matilda.”

He does not seem to realise that none of these (with the probable exception of The Drum and The Conversation) are at present sustainable, resting as they do on the passion and dedication of overworked individuals and uncertain funding from philanthropists and stretched universities.

Yet they, and a raft of other start-ups, might be able to achieve sustainability if they could access hubs of skills, ideas and research on issues such as the sale of advertising and business management. Such hubs are encouraged and fostered by government in other industries. Urgent action in this area could make a real difference to media futures in Australia.

The Fink team’s lack of understanding of new media is also evident in the eye-popping suggestion that websites and bloggers that achieve more than 15,000 “hits” a year should be caught up in the regulatory regime. I assume this figure was meant to be an indication of audience size, but of course “hits” are not this.

Each web page can cause many “hits” to be recorded. But even if we assume he meant to say unique browsers or page views, it is still an extraordinary suggestion. Quite apart from the desirability of capturing just about every organisation in Australia’s web page (just about all organisations these days are, after all, media organisations in some sense) the sheer amount of work involved would swamp any council. Not to mention that monitoring the number of “hits” unique browsers or page views would be next to impossible, leading to endless debates about jurisdiction and measurement techniques.

And what about Facebook pages and Twitter feeds that give news or opinions on the news? How would they be monitored and treated? Three thousand followers and you’re in?

The only sensible way of managing bloggers and others is an opt-in or opt-out system with statutory incentives so strong that it would be stupid for serious practitioners not to join up. This was recommended in many submissions to the Fink. Under this system, those who wanted exemptions from the Privacy Act or protection of sources would have to sign up to the regulatory regime. It is not clear to me why the Fink rejected this approach.

Moving on, how likely is it that the Fink’s report will lead to improvements? There are some reasons for optimism, but the media’s own conduct over the past three days is not among them.

Judge the bias of most media reporting of the Fink from the fact that on Saturday former Australian Press Council chair David Flint got about 10 times the column centimetres than current APC chair Julian Disney. Flint, no matter what the weight of his thoughts, is a figure from the past — but he agrees with media proprietors in opposing the Fink’s recommendations. Disney was clearly influential on the Fink, and will be a key player in the aftermath of the report.

His opinions were backed by two other former APC chairs. Flint was out on his own. But Flint gets the airplay. Where have the news values gone?