Chapter 4 - What distinguishes the news media and why it matters

Applying the tests in the New Zealand context

Is it a news activity? Is it journalism?

Web-based news sites

Our brief overview of web publishing in New Zealand outlined in chapter 2 describes a broad spectrum of publishers with varied purposes including social and political activism and advocacy, public relations, and individual self-expression.

Alongside these there is a readily identifiable category of publishers who quite clearly would meet the “news activity” test set up in the Privacy Act 1993 and whose activities are clearly “journalistic” in purpose.

The dissemination of news and current affairs commentary is without doubt the primary purpose behind online publishers like Scoop, Interest.co.nz, Voxy and subscription services such as the Newsroom and BusinessDesk. These publishers devote resources to the generation of news and comment on matters of public interest; update their websites and news feeds constantly and exercise editorial control over the content they publish.

Similarly, news aggregators, such as Yahoo!New Zealand, while relying on news feeds from other content generators, curate this content and retains oversight of what is published on its site.

Many of the current affairs bloggers described in the chapter 2 would also meet the Privacy Act’s “news activity” test.

The second, and more difficult, question relates to the underlying qualities and characteristics of the publications themselves. Is the purpose of the publication dissemination of news and information of public interest to a wide audience? Is publication regular? Does the publisher purport to provide a neutral and accurate account? Has the publication involved transformative editorial skills? Have the publication, and the manner in which the information was gathered, conformed to journalistic norms and standards?

This list of questions posed by Scassa and others does not pretend to be exhaustive. It does however provide some important indicators which might help differentiate between the type of speech we have argued requires special protection, and accountability, and other types of speech which need only be subject to the minimal constraints to which all speech is subject.

It is not necessary or possible to reach any definitive conclusions about how these qualitative, and invariably subjective, tests might apply to both the traditional and new publishers surveyed in chapter 2. However some preliminary observations may be useful.

News websites and services

A number of the new web-based general and specialist news sites and news services surveyed in chapter 2 are clearly journalistic. Sites like Scoop and interest.co.nz and the business wire services are all positioned as credible sources of news and information. They publish regularly, generate their own content using transformative editorial skills and exert editorial control over their content to ensure it conforms to journalistic norms such as accuracy.

Other websites contained in the survey appear to be operating more as repositories for unedited material provided by sources who may or may not have a direct interest in the information they are supplying. Some of these sites do not appear to exert any editorial oversight or control and do not accept responsibility for the accuracy or reliability of information carried on the site. Still others are clearly identified as advocacy or public relations sites and do not purport to be providing disinterested information.

While none of these sites are currently accountable to a complaints body, as discussed in chapter 2, many publish their own standards and are accountable to their readers/subscribers for the quality and reliability of their content. Their commercial success is dependent on their credibility, which is of itself a demanding form of accountability.

However because these sites are not accountable to any complaints body any person who has been harmed by an inaccurate or false report or whose privacy has been breached has no recourse to redress other than through a formal legal process.

 

Bloggers

It seems evident that a number of the 203 “political and news blogs” included in Tumeke’s 2009 rankings are intent on attracting large audiences and care about their “ratings” and influence and are adept at maximising their “voice” and visibility. In other words, their purpose includes the dissemination of information and commentary to a potentially wide public audience.

Blogging is a regular activity for these publishers and while most focus on commenting on, rather than generating, news, many will incorporate original source material or links to new information in the context of their posts. Many are expert commentators and highly skilled writers and thinkers whose work clearly involves the application of “transformative editorial skills”.

Although few, if any of these bloggers are able to support themselves financially from their publishing activities, a number of the sites carry paid advertising.

Some, such as blogger David Farrar, have also ventured into occasional court reporting – an area formerly reserved for traditional news media.118

Blogs are, by their nature, robust and opinionated and while some blogs written by subject experts can clearly be regarded as disinterested, many others are overtly partisan or ideological. Indeed it is the norm for blog sites to categorise other bloggers as “right” “centre” or “left” when ordering their links to these sites.

While it may be tempting to draw an analogy between bloggers and the columnists who traditionally occupied the “opinion pages” of newspapers, this fails to capture the multifaceted nature of blogging – and its unique place in the news ecosystem.

In the course of a 24 hour news cycle a blog may encompass a uniquely broad range of functions and purposes. It may break news or leak a report; it may provide followers with links to new scientific research or unsubstantiated gossip; it may advance a pet political or personal cause or launch an attack on another commentator. It may also promote an event or a product. It will almost certainly have engaged in some way with the arguments and views of its readers.

This blurring of purpose creates difficulties when attempting to apply traditional journalistic standards.

Like the websites described above, news and current affairs blog sites are not currently covered by any common code of ethics or rules, and nor are bloggers accountable to either of the news media complaints bodies.

So, for example, accredited media reporting on court proceedings are bound by a set of rules which attempt to balance the principles of open justice with the need for a fair trial and the interests and concerns of victims and witnesses. These rules are explicit about the importance of fair and balanced court reporting in meeting these needs.

Non-traditional media, such as bloggers, are not necessarily conversant with or formally accountable to these rules.119

Traditional news media are held accountable to standards of accuracy, balance and fairness, with respect to their news reporting activities but these standards do not apply to bloggers.

However, given bloggers are primarily concerned with commentary and analysis, rather than generating original news, it is arguable that Kovach and Rosenstiel’s requirement for objectivity and independence from the subjects they cover is an inappropriate standard.

More significant might be the extent to which bloggers achieve transparency by publishing under their real names and making accessible clear and full disclosures of political and professional relationships.

It is also noteworthy that while bloggers may not be formally accountable for the accuracy of what they publish, the “culture of verification” which Kovach and Rosenstiel highlight as critical to journalistic endeavours, is in effect “hardwired” into the architecture of many blogs as expert commentators provide instant scrutiny of the publishers’ assertions.

A countervailing concern however is that anonymity is also deeply embedded in the culture of the internet and while this characteristic is often celebrated as a facilitator of freedom of expression – particularly in the context of non-democratic and oppressive regimes – it also makes verification of information particularly problematic as evidenced by a number of well publicised instances where high profile bloggers have been revealed as frauds.120

Of course the mainstream media are not immune from the risks of fabrication and misrepresentation, and some would argue that bloggers frequently achieve a level of transparency not matched by mainstream media through the practice of “linking” which provides readers with instant access to source material and other information relied upon by the blogger.

It is also evident that bloggers frequently exert strong editorial control over the content on their website and over what user-generated content they permit others to post. In this respect they are no more or less accountable to their readers than traditional newspaper editors who exercise total discretion as to which if any contributions to the letters pages to accept for publication.

A significant difference however exists between bloggers and the editors of a newspaper or other traditional broadcasters with respect to complaints.

Currently the public has no redress of any sort, short of taking legal action, if they are harmed by content posted on a blog. The decision to remove injurious content is purely at the discretion of the blog’s author or webhost.

No doubt in theory a person targeted by a blogger has ample opportunity to respond by way of defence and counter-attack. But given the uneven power balance between that aggrieved person and the author of the blog, it is often unrealistic or even counter-productive for the individual who has been harmed to engage in an online dispute with the blogger. There is currently no avenue of complaint and no way to correct damaging and untrue content unless that content meets the high threshold to bring a civil action against the publisher.

Social media

What then of social media and the tens of thousands who are posting on publicly Facebook walls; contributing to Trade Me community discussion threads; posting short videos to or tweeting?

As with the blogosphere, the use of social media platforms to publish information covers an infinitely wide range of publishers and purposes.

It is also important to distinguish between conduits, such as Twitter, which is increasingly used to break news, and sites such as YouTube which is a destination publishing site and which exerts some form of oversight and control over the content users upload.

The focus therefore needs to be on the intent of the content creators who use these platforms to publish information rather than on the channels themselves.

So, for example, a politician who uses Facebook or Twitter to announce policy or comment on matters of public interest is using these platforms as a means of communicating with their constituency or the wider public in much the same way as they might have previously done by issuing a press release to mainstream media. Their purpose is to inform and possibly influence public opinion. They have a direct interest in the information being released and their purpose is not journalistic.

Nor can individuals who use Twitter to disseminate unsubstantiated gossip or to express personal opinions on events in the public arena be considered journalistic in their purpose. Although the information they tweet may be disseminated to a potentially wide audience, there will often be no expectation that the tweeter is personally accountable for the accuracy of the information. Often the purpose of the tweet will simply be to alert others to content published by traditional and non- traditional news media.

However, channels such as Twitter are increasingly being used for clearly journalistic purposes by both traditional and non-traditional news media. Journalists working for mainstream media organisations are encouraged to use these mediums to break news and drive traffic to websites.

It is reasonable to assume news organisations publishing on these platforms are accountable for applying the same journalistic standards for publications in these social medium as on their websites or traditional platforms. In effect they are using Twitter as an unmediated news wire service.

Individuals who are not formally attached to traditional news organisations may also use these new mediums for journalistic purposes – i.e. to disseminate news and commentary on current affairs to a public audience. In some contexts, depending on the public interest in the content broadcast, it may be appropriate that such an individual would have access to journalistic defences in a defamation action for example. It is less clear that such an individual should be caught by the broader systems of privileges and accountabilities that apply to those for whom the gathering and dissemination of news is their primary purpose in publishing.

In August 2010 blogger Cameron Slater made an application to Judge David Harvey to “live blog” or “Tweet” the proceedings of his own trial for offences against the Criminal Justice Act. Judge Harvey refused to allow live blogging because it did not comply with the ten minute time delay required of all those reporting on live court proceedings. However he indicated Slater was free to broadcast by whatever means he chose. Interestingly Judge Harvey also permitted broadcast media to post running reports of the trial direct to their websites, provided publication respected the ten minute delay. 

In March 2003 David Farrar, author of Kiwiblog, applied to the registrar of the Supreme Court to cover an application for leave to appeal a decision of the Court of Appeal involving contempt charges against Vincent Siemer. Farrar was given approval to cover the case without any constraints. His live blog of the full bench hearing contained a mix of personal observation, commentary and reportage. 

In July 2010 Farrar blogged from the initial hearing of the Judicial Conduct Panel hearing complaints against Justice Bill Wilson. His blog  post opened by noting that a “media benchmate” had informed him of a requirement that live reporting must be delayed by 10 minutes.

Media Guide for Reporting the Courts (2 ed, 2008) < www.justice.govt.nz >.

For example in June 2011 it was revealed that a much feted Syrian blogger, writing under the pseudonym “Amina” was not in fact “A gay Girl in Damascus”, as the blog was titled, but rather a married, middle-aged man living in Scotland. For background on this case and the issues surrounding anonymity on the internet see Ethan Zuckerman’s blog “Understanding Amina” < www.ethanzuckerman.com >.