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Public Curiosity or Public Interest?
A question arising from the Senate Inquiry
into Sports Reporting

Abstract
This paper posits the need to more clearly define ‘public interest’ and to draw a distinction between ‘public curiosity’ and ‘social or civic importance’ in discussions about media rights. Debate about public interest in the context of the 2009 Senate Inquiry into the Reporting of Sports News and the Emergence of Digital Media, is used to illustrate discrepancies in public, political, professional and academic perceptions of the meaning of the term public interest. Drawing on other studies that have raised questions about the definition of ‘public interest’ in the light of debates about media coverage and privacy legislation, this paper argues that more clarity around the issue would make it easier to call for social and political support for fourth estate journalism.

In February 2009 a Senate Committee was tasked with holding an inquiry to clarify what was happening with sports reporting in Australia. The question arose because of a pre-election promise the ALP had made to Australian media organisations in the wake of a series of clashes over the right to cover some sports news. The clashes were between media companies and the rights holders of major sporting events, such as Tennis Australia, the Australian Football League (AFL), the International Rugby Board and Cricket Australia (CA). These clashes included an attempt by the International Rugby Board to limit news coverage of the 2007 World Cup; an attempt by CA to charge news organisations for accreditation for the Australia v Sri Lanka 2007-08 Test Series; and refusal by the AFL to accredit AAP photographers, forcing media organisations to buy images from the AFL’s own photographic agency.

As the Committee’s final report tactfully put it, the question arose because:

    The convergence of media technologies and the emergence of new media platforms have created new opportunities for news media organisations, sports broadcasters and sporting organisations alike. ... [And these] Changes to the media landscape have led to some conflict as all stakeholders seek to take advantage of new opportunities as they emerge.

    (2009a, p.15)

These incidents illustrate the digitally-driven evolution of sports reporting and the resultant muddying of the traditional boundaries between the commercial rights of broadcasters and the public interests served by journalists reporting sports news. As the committee’s final report stated: “The digital era has led to the emergence of a variety of new technologies. ... Consumers now expect to be able to access information in a format and at a time that is convenient to them. This has contributed to the success and popularity of both news and sport websites, and news and sporting content delivered to mobile devices” (2009a, p.9).

In its bid to determine whether government intervention was required to protect the rights of the media (and by extension the public) or the rights holders, the Committee made a public call for submissions, with particular reference to nine points formulated to elicit a balanced perspective on the issue. The nine points were:

  1. The balance of commercial and public interests in the reporting and broadcasting of sports news;
  2. The nature of sports news reporting in the digital age, and the effect of new technologies (including video streaming on the Internet, archived photo; galleries and mobile devices) on the nature of sports news reporting
  3. Whether and why sporting organisations want digital reporting of sports regulated, and what should be protected by such regulation;
  4. The appropriate balance between sporting and media organisations' respective commercial interests in the issue;
  5. The appropriate balance between regulation and commercial negotiation in ensuring that competing organisations get fair access to sporting events for reporting purposes;
  6. The appropriate balance between the public's right to access alternative sources of information using new types of digital media, and the rights of sporting organisations to control or limit access to ensure a fair commercial return or for other reasons;
  7. Should sporting organisations be able to apply frequency limitations to news reports in the digital media;
  8. The current accreditation processes for journalists and media representatives at sporting events, and the use of accreditation for controlling reporting on events; and
  9. Options other than regulation or commercial negotiation (such as industry guidelines for sports and news agencies in sports reporting, dispute resolution mechanisms and codes of practice) to manage sports news to balance commercial interests and public interests. )

(2009a, p. 1)

The Committee received 44 submissions from media organizations, sporting associations, media academics and others, and it went on to interview 49 people over four days in April and May. All of the points were discussed at length and the submissions and transcripts of the interviews, along with the committee’s final report, are all available via the Australian Parliament website. While the whole debate is rich fodder for journalism academics, this paper will tackle just one point that I raised in my submission to the Senate Inquiry that I believe has relevance to the evolution of journalism beyond the confines of sports reporting: That point being that the term public interest means different things to different people, and that the social and civic good implications of the term are often confounded with justifications to appease public curiosity.

The first point the Committee asked participants to discuss was the balance of commercial and public interests in the reporting and broadcasting of sports news. This was critical, as government intervention of any kind in this area should rightly be based on a clearly articulated point of public interest. In order for a claim of public interest to be made, a clear definition of public interest needed to be established. In my submission I drew attention to the definition of ‘public interest’ offered by the Australian Press Council in its Statement of Principles (2009) which is: “involving a matter capable of affecting the people at large so they might be legitimately interested in, or concerned about, what is going on, or what may happen to them or to others.”

But I added that before accepting this broad definition on faith it was important to remember that the Press Council is the representative body of Australia’s major print media companies and that its definition was designed to serve its members’ interests. Other definitions confined more tightly to common social good also exist, and are vigorously debated in the context of the media and its relationship with privacy legislation.

My concern about the way the term public interest was used in the discussion about sports reporting rested on the malleability of public curiosity where mass media is concerned. If there is money to be made from advertising within a sports broadcast, the media organisation involved is capable of manufacturing public curiosity. It is, however, important not to confuse pandering to manufactured public curiosity with reporting news that is in the public’s interest.

The problems that can arise from a lack of clarity about the meaning of public interest were raised by Morrison and Svennevig (2002) in a report for British media authorities that found that while the broad concept of ‘public interest’ was familiar to large proportions of the public, and it was considered a suitable defence for media intrusion of privacy under some circumstances, there did not seem to be any one firm definition of the term. Morrison and Svennevig interviewed 15 professionals from within, or related to, the media industry and ran eight community focus groups, and concluded that the “lack of a precise definition means that [public interest] can be used as a post hoc defence of practices where no real public interest is obvious.”

One of Morrison and Svennevig’s industry-based interviewees candidly stated:

    It’s not a question of confusion. This is quite deliberate. I’m not saying that there is a nasty conspiracy, but my job as a newspaper editor would be to make sure that everything I publish is justified. So, if I had the opportunity of defining and redefining public interest in the way that justifies anything that I publish then I am going to do so, because my job is to justify anything that is published which is going to sell newspapers.

    (2002, p.7)

This contrasts with the public view expressed in the focus groups that they summarized with the line:

    It is undeniable, however, that amidst the statements concerning the nature of public interest there does rest a sense of public interest referring to matters that cannot simply be of personal interest, or, where it is of personal interest, it must also be not only of interest to others, but also in their overall interest.

    (2002, p.73)

Furthering the debate about defining public interest in the interests of clarifying newsroom decision making about breaches of privacy, Pearson (2005) referred to Morrison and Svennevig’s (2002) differentiation of ‘public curiosity’ and ‘social importance’ and wrote:

    Public interest is the trump card in many of our decisions, but we need to explain why a photo of Nicole Kidman collecting her children from school is of such social importance if we are to justify our intrusion into her privacy. Perhaps it is of social importance because she has publicly criticized formal schooling, or perhaps because she has publicly claimed to be home-schooling them, or perhaps it is not of social importance but just mere curiosity and we have no right publishing this photo at all.

    (2005, p.16)

Analyzing the vested interests in sports reporting and broadcasting, as part of my submission to the committee, I suggested at the outset that a simple distinction can be made between the public interest in preserving the freedom of the press in relation to sports reporting (because freedom of the press is inherently important), and the commercial interest (that is equally deserving of protection) in sports broadcasting. While these two positions co-exist they are not doing so peacefully. The tension between them gave rise to the conflicts that sparked the Committee’s Inquiry. One solution to ending the conflict in the face of emerging technologies would entail the creation of clear categories of coverage. These could distinguish text, voice, recorded sound, recorded game or race footage, still images and video commentary. Lines could be drawn around game-in-progress coverage, and game-over coverage. Some of these forms could be tagged as sports broadcasting and some as sports reporting and different rules could apply to them. Government could protect the rights of the sports reporters and the sporting organisations could protect the rights of their clients, the sports broadcasters. This division would be a simple and practical solution, but it is unlikely that it would settle the issue for good.

The problem is that this is a battle between three enraged and wounded bulls, all claiming sweetly to have the public interest at heart. The bulls are:

  1. The international sporting organisations who, in the face of global recession are fighting to keep revenues up. They are likely to be self serving and any claim they make to be “custodians of the game on behalf of the people” need to be questioned and verified. Likewise their claims that they trickle funding down the lower levels of sport need to be empirically verified, and not taken on face value.
  2. The broadcasters who are fighting each other for shrinking audiences and shrivelling pools of advertisers.
  3. The online and print media who are also in financial pain, clawing for audiences and the advertising dollars that the eyeballs bring with them.

The potential public good associated with decisions about sports reporting and broadcasting include:

  1. Public health: Exercise is a good thing and if watching sport encourages people to play sport then it is important to get as many people watching sport as possible. The relevance of this is predicated on there being an association between sports viewing and sports participation. Ominously, the committee’s final report noted that it had been “provided with no evidence of a connection between the media profile of a sport and its participation levels.” (2009a, p.48)
  2. Media Freedom: In principle should be protected. Limitation of media freedom is a dangerous precedent, and journalism is going through a difficult enough time right now.
  3. Media Funding: If facilitating free access for sports reporters frees up newsroom funds that are then spent on quality journalism, then a public good is served. If protecting the rights of TV stations that broadcast sport enriches those organisations and the funds raised are used to support quality journalism, then again a public good is served. These funds could equally well be used to support grassroots level sports, but the point is that fiscal accountability is needed, rather than just sweet words.
  4. The health of the economy: If the flow of money from citizens to retailers/advertisers to sports broadcasters to sporting organisations makes a significant contribution to Australia’s economic health then perhaps this too is an argument for supporting the status quo.

In considering the public good in relation to these issues, it is important to contemplate alternative scenarios that may arise if the status quo breaks, as it may do given the pressure being applied by all stakeholders in the face of shrinking pools of disposable income in the pockets of sports fans.

In order to get to the point of discussing different potential configurations of interaction between sporting organisations, the media and the public, I posited that interest in sport is sufficiently deeply embedded in the Australian psyche that it does not need constant fuelling by mass media marketing. It is possible that if there was no mass media urging about which game is ‘the game’ to watch this weekend that Australians would watch games regardless. The difference is that many people would watch live games in their home states or neighbourhoods, rather than all partaking in a monoculture and all watching the same broadcast game. In the way that commercial coverage of the AFL killed off interest in the West Australian Football League (WAFL), it is possible that reduced interest in the AFL would lead to a resurgence of interest in the WAFL. My question is: What leads to better outcomes in terms of community participation in sports and the associated public health outcomes? Whereas national broadcasting works best for businesses that advertise on television, small local businesses that sponsor local neighborhood teams would be better served if local games were better attended.

Another effect of the aggregating of media audiences around broadcast games has been a reduction of the variety of sports the Australian public sees. A breakdown of this hegemony would result in new, more nich├ęd and/or hyper-local media focusing more intently on covering the range of sports available in their own localities. This shift, which could be mediated by new narrowcast technologies, may increase coverage of a wider range of sports with the potential to inspire a wider range of participants than the sports we currently see that are played by super-fit young male sport stars, who many of us can admire, but don’t dare emulate.

My input about defining public interest was picked up by the committee. In an inquiry panel interview Senator Anne McEwen said: “I am curious to know how you could ever determine the difference between what is manufactured media curiosity and public interest. Who is the arbiter of that?” Her question illustrates that the confusion Morrison and Svennevig (2002) found in their UK study is alive and well in Australia.

I was not the only respondent to raise the issue of ‘public interest’ in the senate inquiry process, but the other respondents who raised it did not question whether distinctions should be made between ‘public curiosity’ and ‘public interest’.

Ian Fullager, representing the law firm Lander and Rogers, discussed copyright and called for the rights in sporting events and performances to be defined and protected by legislation. He said:

    The exclusivity of those rights must also be protected with the consequent ability of sports rights holders to commercially exploit those rights and to take such action as necessary to protect them. Reporting sports news, however, must be maintained ... [and] the fair dealing provisions [within the Copyright Act] must be clarified to address all reporting and communication media. The fair dealing provisions do, and should continue to, allow for reporting of sports news, which we say is in the public interest. The public interest in receiving sports news is not in question. Sport clearly performs functions which serve the public interest. Again, we say sport is in the public interest. For a sport to be prejudiced by its rights to be misused or used without any return is contrary to the public interest.

    (2009b, p. 47)

Similar endorsement of the public interest element of sports reporting was offered by Kevan Gosper, International Olympic Committee Press Commission Chairman, who said in his opening statement to the Inquiry panel that:

    In line with its own charter, the IOC takes all necessary steps in order to ensure the fullest coverage by the different media and the widest possible audience in the world for an Olympic Games. The provision of press facilities and services at the Olympic Games is unconditional and the freedom of the accredited press is absolute. The IOC insists on an open and independent reporting environment of sport by the media. Any moves to exclude or limit the press from its traditional roles and responsibility of freely reporting sport is contrary to public interest and detrimental to sport itself.

    (2009b, p.3)

In saying this, he clearly states that it is good for sports (and sporting organisations such as the IOC) for sports reporting to be considered to be in the public interest. My question is whether it is good for fourth estate journalism for sports journalism to be considered to be in the public interest. This is separate from the question of whether it is good for media companies for sports news to be classified as public interest journalism.

The Inquiry Panel asked me what would happen if laws (that are already in place) were invoked over disputes between sold-rights being compromised by sporting organisations giving news media free rein to report as much as they like. This point arose because I had suggested that it would be fair enough for a company that had purchased exclusive rights to accuse a sporting organisation that was simultaneously giving those rights away of breach of contract. (For example if Tennis Australia had sold exclusive rights to broadcast a match to Channel Seven but also allowed Fairfax to video-blog to its online news sites, resulting in Channel Seven complaining of breach of contract).

Asked how application of existing laws in that context would impact on the role of the media and the interpretation of what is news, I answered:

    Let’s be clear about public interest. I think it is not particularly going to hurt anyone if they do not know who won a cricket game until after the cricket game is finished. They might be curious, but there is a difference between public curiosity and public interest. The media will say, ‘No, the public are interested in it and we have the right to report this.’ They will argue that very strongly, and they will argue that it is public interest. I think that is actually their personal commercial interest that they are speaking from, rather than it being something where the public is actually going to be damaged by not knowing this. If we are talking about government corruption, then, yes, the public is damaged by not knowing about it. Is the public actually damaged by not knowing the scores of a game? I don’t think so. I think that is where the need to be careful comes in. They need to be clear that, ‘Yes, sure, at some stage you can report who won the game.’ But whether or not you need a blow-by-blow description and whether that blow-by-blow description is actually in the public interest, I think that is a bit vague.

    (2009b, p.34)

Senator Dana Wortley then said: “So, from your point of view is reporting of sport not news?” And again I was struck by the lack of distinction between news that caters to public curiosity and news that serves a purpose that is a social or civic good. It is clearly wrong for commercial interests to impede fourth estate journalism, but clearly fair enough for commercial rights to impede reporting that is undertaken purely for commercial gain.

The Senate Committee filed its final report on May 14, 2009. The report summarised the submissions and arguments and concluded with five recommendations drawn from the inquiry process (p.vii). The committee:

  1. Urged the government to take into account the opportunities and challenges presented by digital media to sports organisations' current and future revenue prospects and options, and recommended that the current Crawford review of sports pay particular attention to the capacity of sports to invest in digital innovation.
  2. Recommended that the parliament should not amend copyright law to clarify the application of the news 'fair dealing' exception, unless future specific case law outcomes appear to warrant it.
  3. Recommended that the government consider and respond to the Copyright Law Review Committee report and its recommendations.
  4. Recommended that stakeholders negotiate media access to sporting events based on the principle that all bona fide journalists, including photojournalists and news agencies, should be able to access sporting events regardless of their technological platform.
  5. In the event that these negotiations are unsuccessful, the committee recommended that the Minister consider initiating the process for consideration of a code under Section 51AE of the Trade Practices Act.

Two points that the Committee raised in its final report are relevant to the ongoing debate about the definition of ‘public interest’ journalism. The first is that it believed “that freedom of the press includes ensuring the media have access to events and places, as well as having the freedom to report news about those events and from those places. [And that] these freedoms are important in sport” (2009b, p. 46). It said:

    Sports news is about more than match reports and the fluctuating fortunes of individual sporting stars and media consumers' favourite teams. Reporting from sporting events can include coverage of everything from disasters (such as the deaths of 95 people at Hillsborough Stadium in 1989) to events of political importance (such as the 1981 anti-apartheid protests associated with the Springbok rugby tour of New Zealand), to events in which both the media and sport themselves become the news (such as the Rugby League 'war' of the 1990s). Sports news photographs can be more important than the text of the stories with which they often appear, and can be influential well beyond the boundaries of the sport itself. One of the most notable examples is when in 1993 Age photographer Wayne Ludbey captured Nicky Winmar baring his torso to the crowd in response to racist taunts.

    (2009b, p. 46-47)

This point enables debate about whether uncomplicated match reports qualify as public interest journalism.

The second point is that the Committee acknowledged that sporting events have a strong public dimension as they have long been viewed as public events (notwithstanding that sporting organisations usually have control over ticket sales and venue access). The Report added that sometimes these events are held in facilities that are publicly-owned or have been publicly-funded or subsidized and that sporting organisations claim to be the 'custodians' of a sport on behalf of the people. It said: “For all of these reasons, the media has a particularly important role to play in reporting on these public events, particularly for those who cannot attend the event themselves” (p.47). These last two points suggest that there is still much work to be done in clearly defining what constitutes public interest, in the interest of articulating why journalism is worthy of ongoing financial and legislative support.

References:

Australian Press Council. (2009). Statement of Principles. Retrieved on August 26, 2009, from: http://www.presscouncil.org.au/pcsite/complaints/sop.html

Morrison, D. & Svennevig, M. (2002). The Public Interest, the Media and Privacy. Retrieved on August 26, 2009, from: http://www.bbc.co.uk/guidelines/editorialguidelines/assets/research/pubint.pdf

Pearson, M. (2005). The Privacy Mandala: Towards a newsroom checklist for ethical decisions. Retrieved on August 26, 2009, from: http://epublications.bond.edu.au/cgi/viewcontent.cgi?article=1263&context=hss_pubs

Senate Standing Committee on Environment, Communications and the Arts. (2009a). The reporting of sports news and the emergence of digital media. Retrieved on August 26, 2009, from: http://www.aph.gov.au/SEnate/committee/eca_ctte/sports_news/report/index.htm

Senate Standing Committee on Environment, Communications and the Arts. (2009b). Proof Committee Hansard. Wednesday, 29 April 2009. Retrieved on August 26, 2009, from: http://www.aph.gov.au/SEnate/committee/eca_ctte/sports_news/transcripts/290409.pdf

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