Muted trumpets

Responses from the media were mixed. The Newcastle Herald apologised ‘unreservedly’ for running an ad that stated, ‘There are only two genders – male and female’, while The Age ran the same ad below an editorial calling the ad an ‘unhelpful and provocative contribution to the national discussion that The Age does not endorse.’ News Corp left the commentary to Sky News, running videos from the broadcaster criticising the public backlash – and the Newcastle Herald’s response – on its website.

The decision to run the ads was no doubt commercially driven, but the company responses to the backlash show that it is not always easy to separate commercial from editorial, or indeed political, considerations.

The Age’s response – to supposedly accept all advertising from political parties without discrimination – professes a stance of editorial impartiality. This stance also underlies the traditional separation of news from opinion pages and the opening of the latter to a diversity of views that do not necessarily represent an editorial position. Similarly, in response to the potential for commercial influence over editorial content, commercial media have developed ‘Chinese walls’ between their business and editorial arms – though these are not as impermeable as the term suggests.

For some, the effective monopolies newspapers hold in many markets should give rise to a right of access for political parties seeking to run ads. While they do not go this far, obligations on broadcasters to carry certain election material, or indeed local content, are similarly justified by the ability to license broadcasting spectrum to the exclusion of others. In Australia and many other jurisdictions, both the right of access and must-carry rules are generally held to be acceptable impingements on the editorial freedom of media companies.

Yet, whether imposed by legal requirements or an expression of media freedom, an open-slather approach seems tenable only when political advertisements remain within the boundaries of public acceptability. But these boundaries are fluid, shifting with social mores as well as the political climate. Indeed, as the ABC’s Linton Besser noted in the Media Watch coverage of the affair, there are many cases of media outlets refusing to carry particular political advertisements, including an anti-Murdoch campaign from GetUp in 2013. In such cases, a stance of impartiality loses its footing.

An alternative route to impartiality is to refuse all political advertising, a stance some digital platforms have taken, including Twitter before its takeover by Elon Musk. This refusal avoids the problem in the open-slather approach of being required to make judgements about acceptability. But the limited revenue sources of commercial news media mean most are unlikely to pursue this route of their own accord. Some regulation, however, also pushes in this direction. Notably, UK political parties have been banned from advertising on television since the medium emerged, to expressly limit the influence of wealthy parties and donors. In Australia, the parliamentary inquiry into the 1987 federal election and 1988 referendum on rights and freedoms led to the report, ‘Who Pays the Piper Calls the Tune’, and ultimately to the introduction of the Political Broadcasts and Political Disclosures Act 1991. In 2013, the European Court of Human Rights found the UK Act to be a permissible restriction on freedom of expression, but a High Court challenge to the Australian legislation led – alongside a concurrent decision in Nationwide News Pty Ltd v Wills – to the recognition of an implied freedom of political communication.

In the end, it seems there is no avoiding hard decisions, and commercial media must weigh up conflicting commercial, political and editorial incentives in deciding whether to accept controversial ads. Australians are increasingly sceptical of commercial and political influence on news, and seeking firm footing in impartiality is seen by some as a disingenuous refusal to be transparent about those conflicting incentives. But a lack of firm ground does not mean there is no ground at all. Acknowledging the realities of commercial media may at least get us moving towards a more nuanced understanding of impartiality that recognises the limits of its application.