Chapter 6 - Regulation of the media – a new regulator
Should there be a statute?
The final question is whether the regulatory system that we propose should have statutory authorisation and recognition.
If there is to be an element of compulsion about joining the scheme there would have to be a statute. It is not unknown, nor is it inconsistent, for a statute to require the setting up of a regulatory system which will then operate quite independently of the state. The New Zealand Institute of Chartered Accountants Act 1996 effectively does so. It requires the Institute to draw up its own professional rules and set up a disciplinary body to enforce them. The Act simply provides, in section 5, that the functions of the Institute include: “(b) to promote, control and regulate the profession of accountancy and its members in New Zealand.” By section 6, the Institute must have rules that provide for a Professional Conduct Committee and a Discipline Committee. By section 7 “the Institute must always have a code of ethics that governs the professional conduct of its members”. Variants are also found in the Electricity Industry Act 2010 and the Financial Advisers Act 2008. Likewise, the Education Act 1989 provides that the universities will establish their own system of accreditation and course approval.
It would however be less usual to require by statute the setting up of a system of independent regulation which no-one is legally obliged to join. That is in fact the type of regulation we put forward in our first option above. Under that option the media would have the option to join the system or not.
Even on that scenario, we nevertheless advocate a statutory basis for four reasons:
a. As has been indicated, the various acts conferring privileges and exemptions on the media would define the news media entitled to those privileges and exemptions as those subject to a regulatory system. There would therefore need to be a statutory definition of what that regulatory system was.
b. The present Broadcasting Standards Authority, being a statutory body, would need to be dismantled by a statute, which should preferably outline the system which is to replace it.
c. The new authorising statute which we propose could be made subject to a requirement of review after a period of three years. That would enable an assessment of how well the self-regulatory system was working.
d. The state itself has an interest in a responsible media. It cannot be assured of accurate reporting of its constitutional organs – for example courts, parliament and the executive – without it. This is not just an argument for statutory authorisation. It is also an argument for state contribution to funding as we foreshadowed earlier in this chapter. Russell Brown and Steven Price have said:218
There is a case to be made (and it’s made, for example, by Ellen Goodman and C. Edwin Baker) for public investment in media services that strive to be objective, balanced and accurate, that focus on issues of public concern, that clearly differentiate between fact and comment and between news and advertising, and that offer a range of viewpoints – because democracy cannot function properly without this. And because the market may not provide it by itself. A standards regime is crucial to maintaining and guaranteeing the standards of such media services, even if it applies to relatively few media outlets.
So, even if membership of the regulatory system is to be voluntary, we believe it should be recognised by statute.
This kind of statutory recognition of a media regulatory body is not without precedent internationally. As we demonstrated in the last chapter, a number of press councils throughout the world do have statutory backing, although in some of those cases the relationship of the state with the regulator is closer than we would wish. Ireland has the kind of model we would advocate. There the Defamation Act 2009 confers statutory recognition on a press council. Section 44 provides:
44. (1) The Minister may by order declare that such body as is specified in the order shall be recognised for the purposes of this Act, and a body standing so recognised, for the time being, shall be known, and in this Act is referred to, as the “Press Council”.
(2) Not more than one body shall stand recognised under this section for the time being.
(3) No body (other than a body that stands recognised under this section for the time being) shall be known as, or describe itself as, the Press Council.