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

Preliminary conclusions

This leads us to a number of important preliminary conclusions. First, irrespective of who might fulfil this function, we believe society continues to depend on authoritative and disinterested sources of information about what is happening in the world.108

Our provisional conclusion is that, for the moment at least, traditional news media continue to play a pivotal and powerful role in generating and disseminating news and information to the public because of their continued dominance of mass market publishing across an ever-expanding range of platforms.

While social media and other forms of web publishing have enriched the news and public affairs arena, to date their role is to complement rather than to substitute for traditional media. In discussing the role of new actors engaged in “news like” activities there is often a failure to distinguish one form of communication from another. Advocacy, propaganda, public relations, activism – these are all legitimate forms of communication but they serve a different function and involve a different process than the disinterested gathering and disseminating of news of public interest.

No matter how imperfectly the commercial press may exercise the functions of the fourth estate with respect to fostering democracy, the underlying rationales for press freedom remain unchanged. It is only because of a free press – in this instance The Guardian newspaper – that the world discovered how badly some sections of the press in Britain had failed.

Similarly the News of the World scandal has reinforced the rationales for requiring the news media to exercise their powers responsibly and to be accountable for carrying out their news activities in accordance with professional and ethical standards.

For these reasons we conclude that despite, or indeed because of, the rich new publishing environment that has evolved in the web 2.0 era, there continues to be a public interest in recognising a distinct type of publisher, the news media, with particular rights and responsibilities arising from the nature of their activities.

We now turn to the very specific question posed by this review: is it in the public interest that this system of rights and responsibilities be extended to some new types of web publishers who are undertaking similar activities to traditional news media? And if so, what criteria should be used to decide which publishers?

With respect to the first question, our preliminary view is yes, there are a number of policy rationales for extending this system of rights and accountabilities to some types of non-traditional news media.

Our survey of New Zealand’s web publishing environment shows there are a number of new web-based entities taking on some of the democratic functions traditionally assigned to “the press“: providing a public watchdog on corporate and state power and facilitating the free flow of information and ideas among citizens.

As a matter of principle we believe the legal and regulatory environment should encourage diversity in the news media market. New Zealand is an increasingly ethnically and socially diverse nation and it is critical that this diversity of view point and interests be reflected in our national debates and in the formation of public opinion.

These new publishers should, in principle, enjoy the same media protections and privileges accorded traditional news media.

This was also the conclusion reached by the Canadian Supreme Court in 2009 when considering the scope of defences available in defamation actions. Writing for the majority McLachlin CJ expressly recognised and endorsed the complementary role of emerging new media:109

[t]he traditional media are rapidly being complemented by new ways of communicating on matters of public interest, many of them online, which do not involve journalists.

These new disseminators of news and information should, absent good reasons for exclusion, be subject to the same laws as established media outlets.

The quid pro quo, in our view, is that new players in this market who wish to position themselves as credible and reliable sources of news and current affairs should also held accountable to professional standards. Like their counterparts in the traditional news media, web publishers who seek to reach wide public audiences and influence debate on public affairs can exert significant power. Some form of accountability is a healthy check on the abuse of that power.

The question then follows: which publishers and in which contexts?

We tackle this question in the second half of this chapter. Our starting point is to ask which of these publishers would meet the common sense description of a “news activity” set out in legislation such as the Privacy Act 1993.

We then move to the more difficult and necessarily subjective assessment of the nature and characteristics of these new publishers. Here we consider questions such as whether their primary purpose is journalistic? Does the published content have the attributes of journalism we discussed earlier, such as a commitment to accuracy? Are clear distinctions drawn between fact and opinion? Between facts and rumour or gossip? Is the author independent of their subject matter? Is there any explicit commitment to ethical standards? And is there an effective means of accountability?

Disinterested news sources are those whose purpose is to disseminate information to the public and who do not have a personal interest in the information released. 

Grant v Torstar Corp [2009] SCC 61.