Chapter 3 - The news media's special legal status
All the publishers surveyed in the preceding chapter are subject to the legal constraints which apply to anyone exercising their free speech rights in New Zealand. None is entitled to defame others or breach court orders or invade a person’s privacy or breach their copyright.
However only one category of publishers, the mainstream media, is currently subject to the regulatory regimes (statutory and self-regulatory) which apply to the news media – despite the fact that many publishers included in our survey are clearly in the business of generating and commenting on news and current affairs.
Similarly, only the mainstream media is normally able to take advantage of the special privileges and exemptions which the law grants news organisations in recognition of the critical role those who gather and disseminate news to the public play in a democracy.
One of the central questions our Issues Paper addresses is whether there is a case for extending the system of legal privileges and countervailing regulatory accountabilities which currently applies to traditional news media to some of these new publishers.
In the next chapter we attempt to analyse more closely the arguments for such an extension, and ask what it is that characterises this special type of speech which requires legal protection and accountability.
But first we set out the nature of the legal privileges and exemptions which apply to the news media and explain why these privileges exist, and the conventional expectations about how the news media will exercise these privileges.
Rights of attendance
A number of statutes provide that news media reporters may attend proceedings in courts even when other members of the public are not permitted to attend. Our criminal courts, including courts martial, normally sit in public, but statutes provide that when certain grounds exist the public can be excluded. With one rare exception, that power of exclusion cannot be used to exclude “accredited news media reporters”.52 Those reporters also have the right to attend sittings of the Family Court and the Youth Court, and some disciplinary tribunals, even though the general public have no right of admission. In these situations they may sometimes be able to report what goes on in the public’s absence. At other times that reporting right may be curtailed or even removed, but the reporters are still entitled to be present, as observers if nothing else.53 In this capacity they are the eyes and ears of the public and serve as an assurance that the judiciary are subject to scrutiny and thus accountable.
The rules about allowing cameras and audio recorders in court are not statutory, but are contained in a set of guidelines which supplement the court’s inherent jurisdiction.54 Application must be made to a judge for permission. If the application is allowed, the guidelines provide for a standard set of conditions which govern what can be filmed or recorded and what cannot. The judge can vary those conditions, or add to them, in the particular case. It is usually only the mainstream media who apply for permission.
Parliament confers privileges on those members of the media who are accredited to the Press Gallery.55 This privilege is rather different from that which applies in the courts because Parliament virtually always sits in public, so the privilege does not give exclusive attendance rights. Rather, the Press Gallery is granted privileges in respect of access and facilities to assist in the objective of accurate and responsible reporting of the proceedings of Parliament and the business of ministers and other members of Parliament.
In respect of other kinds of meetings equivalent allowances are not made. In the case of local authority meetings the relevant legislation simply provides that “bona fide” members of the media have a right to attend as members of the public, and to report the proceedings.56 But if the public are excluded the media can be excluded as well, and usually are. In that sense they have no more rights than anyone else. However the express reference to a right to report does suggest that while in attendance they are in a more privileged position than other members of the public.
The significance of the expression “bona fide member” is not clear, but it could be interpreted as requiring a connection with an established media organisation. It suggests an expectation of responsibility. The New Zealand Public Health and Disability Act 2000 has a similar provision in relation to board meetings, except that the phrase “bona fide” is replaced by “genuine”.57
It is the court attendance privileges which deserve most discussion. The relevant statutes almost all confer the privilege on “accredited” news media reporters. The word “accredited” has no statutory definition. Nor does the term “news media”. So the question is raised squarely of whether members of the “new” media – bloggers or website hosts for instance – have standing to attend when the general public cannot.
The purposes of allowing the media to remain in court are twofold. The first is, unless reporting is restricted for any reason, to provide the public with a fair and accurate account of the proceedings. Fairness and accuracy are the hallmarks of court reporting: reports which lack those attributes may be defamatory, and even in contempt of court. The second purpose is to ensure that there is scrutiny of the proceedings on behalf of the public to ensure that judges remain accountable. Both of these purposes assume that the representatives of the media allowed to remain in court will maintain acceptable standards of reporting, and that they will act responsibly. False, distorted, or prohibited accounts are not in the public interest. As White J said in the Slater name suppression case: “the right to report fairly and accurately carries with it a significant responsibility to ensure balanced reporting …”.58
For reasons such as these, the Ministry of Justice has issued guidelines as to how it “accredits” news media for the purpose of attendance in the Family Court:59
The Ministry will accredit a news media organisation if it is subject to a code of ethics or professional standards and has a relevant complaints procedure. This is both to encourage a professional standard of reporting and to ensure that there is an appropriate process for dealing with complaints about inaccurate or unbalanced reporting.
The Criminal Procedure Act 2011 contains very similar criteria for accreditation to attend and report criminal proceedings when the public are excluded.60 (At the time of writing these provisions have been passed but are not yet in force.)
In both Family Court and criminal proceedings the judge retains a discretion in a particular case to allow attendance by a person who is not “accredited”.
So it is clear that these court attendance exemptions are viewed as carrying with them an obligation of responsibility.
As far as the guidelines for in-court cameras and audio recording are concerned, the application forms which accompany them assume that it is only the mainstream media who are going to apply for permission to film, photograph or record proceedings. However the judge’s inherent powers to control his or her own court could no doubt enable him or her to grant permission to others on such conditions as deemed appropriate.
The criteria for membership of the Press Gallery are that members must be “bona fide journalists employed by outlets that regularly publish a substantial volume of parliamentary or political material”.61 Applicants are scrutinised by the Gallery chairperson who may ask for recent examples of the applicant’s work before making a recommendation to the Speaker. Membership of the Press Gallery is granted following the Speaker’s approval of an application. The door is not open to all who engage in the activity of communication. For instance, they must not be involved in political lobbying. Certain standards of conduct are required and sanctions such as suspension from the Gallery may follow if those standards are not met.62
Exemptions from obligations
Other Acts provide that the media are exempt from certain obligations which fall on others. The Fair Trading Act 1986 imposes liability for misleading statements made “in trade”.63 The court can grant a number of remedies, including compensation for loss suffered. Broadcasters and newspapers are, with certain exceptions relating to advertising, exempt from that requirement.64 The result is effectively that if a news medium makes a mistake in its facts, perhaps in financial or general news reporting, it cannot be sued under the Fair Trading Act: the wording of the Act’s provisions might otherwise be interpreted to allow that. The provision recognises that while accuracy is an important quality in our media, it is best addressed outside the courts. The urgency and volume of news publication is such that the occasional error is inevitable, and legal liability in the courts entailing possible financial consequences could have a chilling effect which would impede freedom of expression. The Fair Trading Act exemption is currently confined to the mainstream media – newspapers and broadcasters. There may be a question whether it should be broadened to include other media.
The news media are also exempt from the principles of the Privacy Act 1993 so long as they are engaging in “news activities”, which is defined as gathering and disseminating news and current affairs.65 Some find the media’s exclusion from the Privacy Act difficult to understand. But there is a reason for it. Of course the news media should respect privacy. However the Privacy Act is about privacy in a special sense. It relates to the way information is collected, the way it is held, rights of access to it, and the use that can be made of it. It is in fact a data protection statute and many of its provisions are incapable of sensible application to the media’s business. The media’s obligation to respect privacy should be defined in a different way which recognises the public interest in freedom of information. The codes and principles applied by the Broadcasting Standards Authority and the Press Council, which we discuss later in this chapter, do this. So does the new tort of invasion of privacy. This raises the important question, which the Law Commission discusses in its report on the Privacy Act,66 whether the news media exemption should be confined to media organisations which are subject to a code of practice and oversight by a regulator.
Our electoral legislation is another example. It creates offences such as publishing or distributing or broadcasting on polling day any statement likely to influence an elector. Its focus is to stop campaigning, and other sorts of communication activity, which might deflect an elector from the objective decision-making which is necessary on the day of an election. Again there is a limitation on this prohibition to ensure that nothing in it is to restrict the publication of a party name in news relating to the election published in a newspaper or by broadcasting.67 The purpose is to ensure that the media can provide information on a matter of national importance without being constrained in an artificial way: provided they are engaging in the provision of news, without the motive of influencing voting.
A similar provision is to be found in the Electoral Referendum Act 2010 which restricts referendum advertisements. But “referendum advertisement” does not include the editorial content of a periodical, a radio or television programme, or a publication on a “news media internet site”.68
The Copyright Act 1994 makes it a civil wrong to publish or disseminate copyright material without the consent of the copyright holder.69 But there is an exception in the case of a “fair dealing” for the purpose of “reporting current events by means of a sound recording, film or communication work”, and also in a newspaper.70 “Communication work” was inserted in 2008, with the clear intent of extending the protection beyond newspapers and broadcasting. This is a recognition that the dissemination of news is of necessity an urgent business, and at times the most efficient and sensible way of doing it may be to allow the media to borrow words and images from elsewhere. Case law has emphasised that the purpose of using the other work is all important: it must be for the purpose of reporting current events and not for the purpose of competing with the original. And the use of the material must be “fair”. There must, for example, not be overlong direct quotes.71
The fair reporting privileges in the Defamation Act 1992 also protect the media.72 Fair and accurate reports and summaries of many types of proceeding, including court cases, Parliamentary proceedings and the proceedings of meetings, are privileged even though some of the material being conveyed may be defamatory. This protects the messenger rather than the original content, and is recognition that the public need to be fairly and properly informed of what is happening in our governmental institutions, both national and local. It would be a constraint on free speech if the media were to pay the price for any defamatory material in the information which it is their job to pass on to the public. Although these provisions have been in force for a long time – indeed many existed at common law – they are not confined to the mainstream media. In fact, they are not confined to the “media” at all. They cover anyone who publishes a report of the various kinds of proceedings. But the key qualification is that the report must be “fair and accurate”. In other words acceptable standards of reporting must be observed.
Another “accurate report” privilege is set out in section 61(2) of the Human Rights Act 1993. It provides it is not a breach of the unlawful racial disharmony provisions of section 61(1) to publish in a newspaper periodical or magazine, or to broadcast by radio or television, a report that someone else has used words infringing section 61(1) “if the report … accurately conveys the intention” of the person who used the words. In other words the generator of the words commits a wrongful act, but the media reporting them do not. But the report must be accurate.
Finally, we note the provisions in some of our finance and securities legislation which exempt “journalists” from the need to comply with the disclosure and other obligations of financial and securities advisers.73 The reason for this is simple. Journalists do not hold themselves out as experts in such matters, and the public know that. It is only those whose main business is financial advising who are caught by the requirements. But, once again, a consequence of the exemption is that the media can safely report on financial matters without fear of adverse consequences. Freedom of information is thus facilitated. The term “journalist” is not defined. Perhaps it does not need to be.
Protection of sources
The confidentiality of journalists’ sources has been a much debated topic. If journalists are to have access to important information they may sometimes need to assure their sources that they will not be named. That confidentiality has to some extent been recognised by the legal system for a long time, but subject to the overriding requirement that if, in the interests of a fair trial, a judge decides that the identity of a source should be disclosed, he or she can so require. The Evidence Act 2006 codifies that position, although it stops short of describing the journalist’s protection as a “privilege”.74 (There is a not dissimilar provision in the Privacy Act 1993 which provides that, alone among the news media, TVNZ and Radio NZ must allow a person access to information about him or herself held by that news medium. But they do not have to disclose the source of that information.)75
The Evidence Act defines “journalist” as:76
a person who in the normal course of that person’s work may be given information by an informant in the expectation that the information may be published in a news medium.
“News medium” is defined to mean:77
a medium for the dissemination to the public or a section of the public of news and observations on news.
That definition may be wide enough to encompass a blog or other website, but there is a significant express statutory acknowledgment that one of the factors the court must weigh in the balance in deciding whether to require disclosure is:78
the public interest in the communication of facts and opinion to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts.
Whether our courts will be prepared to hold that the protection extends beyond the mainstream media remains to be seen.
We note that the New Jersey Supreme Court recently refused to allow a blogger to use the New Jersey “Press Shield” law which protects members of the news media from revealing confidential sources. The court noted that were it otherwise, anyone with a Facebook account could claim the journalist privilege.79 However the New Zealand provision does not confer a privilege: it is rather a codification of the established law of confidentiality, and it may be that the court’s power to override confidentiality may render the question a less significant one than it is in the United States.
On a day-to-day basis, news media, and the journalists employed by them, are given preferential access in a wide range of circumstances. These privileges have no legal status and are typically conferred at the discretion of those organising, or in control of the event.
For example, police and emergency services have developed protocols for how they engage with representatives of the news media when they are reporting on an accident or police investigation. Similarly almost all major public bodies and government departments have press offices and communication teams, one of whose functions is to provide information to the news media.
Politicians and other powerful figures in society are often buffered from the media by advisers who determine which media outlets (and journalists) will have access to them. Factors such as audience share, and the perceived influence of the news organisation, will often play a role in determining access.
In addition there are numerous other contexts in which news media are granted special access so that they are able to report an event to the public. These include major cultural and sporting events; shareholder meetings; press conferences; notable funerals and other public ceremonies.
Wherever held, even if it is a public facility such as a town hall, the organisers can grant such attendance permissions as they like. The choice of attendees is theirs. But if they want the event to be reported they are probably more likely to allow the attendance of reporters from the mainstream media than they are lesser known bloggers or Twitter users. In other words there is likely to be a coincidence between the media which have recognition for statutory purposes and those recognised informally for other purposes, although there is no inevitability about that.
On one level these conventions we have described are simply an efficient organisational response to society’s dependency on the news media as an intermediary for transmitting news and information. Already “citizen journalists” are playing an increasingly important role in this process just as the government is moving to proactively push out information to the public, bypassing the news media.
However neither of these developments negates the role of a professional body whose primary task is to provide citizens with accurate and impartial reports on what is happening in society.
A vital question for this project is which of the news media should be able to take advantage of the statutory exemptions and privileges. In a few cases, the legislation is quite express about it.80 In other instances the media exemptions are broadly construed.81 But in the case of the Privacy Act exemption, and all the court attendance privileges, the exemption is phrased in terms simply of the “news media”, or “accredited” news media.
Many of these Acts pre-date the digital era and the advent of citizen journalism and the blogosphere. The inconsistencies and imprecision in how the news media’s traditional statutory exemptions and privileges should be applied, and to whom, clearly need to be addressed. The reasons for the privileges and exemptions and the principles underlying them need to be examined in making decisions about where the boundaries should be drawn.
More importantly, the rationale of these privileges and exemptions are relevant to our inquiry as to what the “news media” are, and what their societal function is. The discussion in this chapter suggests that at least the following concepts underlie some or all of these privileges and exemptions:
a.The media’s functions of providing news to the public, and ensuring that public officials are held accountable, are so important in a democracy that the law should not unduly impede their exercise of those functions.
b.There is an expectation that the media who have privileges and exemptions will exercise them responsibly. Sometimes that expectation is contained in an express requirement that reporting be “fair” or “fair and accurate”. Sometimes it is contained in a requirement of “accreditation”; sometimes that requirement is justified by adherence to a code of practice and oversight by a regulatory body; sometimes it is not defined. At other times the expectation of responsibility is simply assumed.
While the media must provide us with news, and indeed we depend on them to do so, they cannot be expected to be experts in all matters they communicate to us. Given the speed with which they must act, the volumes of material with which they must deal, and the limitations of length within which they must work, perfection is not to be expected. The flow of information should not be impeded, or “chilled”, by too rigorous legal restrictions.
All this points to the conclusion that the law assumes the existence of a “news media” which is essential to the flow of information in a democracy, and which is trusted to provide that information in a responsible manner. Citizens rely on it for the information they need to exercise their rights, and governments and agencies of state rely on it for the dissemination of information about their activities. We shall pursue this concept further in the next chapter.
Criminal Justice Act 1985 s138(3); Crimes Act 1961 s375A; Summary Proceedings Act 1957 s185C; Court Martial Act 2007 s39(30; Armed Forces Discipline Act 1971 s139. The Criminal Procedure Act 2011 will replace most of these provisions. The exception is in rare cases where matters of security or defence arise – Criminal Justice Act 1985 s138(2)(c).
Family Courts Act 1980 s11A; Family Proceedings Act 1980 s159; Children Young Persons and Their Families Act 1989 s166; Care of Children Act 2004 s137. See also the Social Workers Registration Act 2003 s80 and the Health Practitioners Competence Assurance Act 2003 s97.
The Speaker recently suspended the NZ Herald from covering politics from its Press Gallery Office for two weeks for a breach of Parliament’s rules about photography in the House: “Speaker bans Herald for 10 days over photo in Parliament” The New Zealand Herald (New Zealand, 18 October 2011).
The Electoral Act 1993 exemption, for example, applies just to information published in a newspaper or other periodical, or in a radio or television broadcast (s197(1)(g). So do the exemptions in the Fair Trading Act 1986.
For example the fair dealing exemption in the Copyright Act 1994, while referring to newspapers and broadcasters, extends the coverage to any “communication work” which as defined goes beyond the mainstream media. Similarly, the Electoral Referendum Act 2010 takes the concept beyond the traditional media by referring to a “news media website” but leaves open what exactly is meant by a “news media website”.