Chapter 4 - What distinguishes the news media and why it matters
In this chapter we have argued that in order to flourish, democratic societies need access to credible and authenticated sources of information and that the “public trust” given to such providers demands that they exercise their freedom of expression responsibly and are accountable to the public.
As is evident from the crisis that erupted in Britain in July 2011 over the ethics of a number of mass market newspapers, the notion of “public trust” in the context of at least some sectors of the news media is severely strained. This has prompted a serious re-examination of media ethics and adequacy of the controls and accountability of the news media industry in the United Kingdom and elsewhere.
At the same time the advertising-based economic model that has supported the professionalisation of journalism and the establishment of monolithic news media organisations may not survive the internet. Meanwhile, the read/write technology of the web has removed the barriers to entry which once protected the news industry, paving the way for novel and previously unimaginable ways of producing the “public good” function inherent in journalism.
However, as Timothy Balding, CEO of the World Association of Newspapers pointed out in his address to a UNESCO conference on new media in 2007, this ubiquity of publishing carries both risks and opportunities:121
The news business is becoming, happily, more and more a dialogue between the providers and receivers of information rather than an imposition of opinions and perspectives by an elite caste.
On the negative side, the Internet has opened up extraordinary new possibilities for the widespread, damaging and sometimes dangerous manipulation of information, which is difficult, if not impossible to stem.
In my view this phenomenon will increasingly place a heavy responsibility on professional journalists to maintain high standards of fact-checking, honesty and objectivity.
The very fundamentals of our societies and democracies will be lost if we are unable any longer to distinguish between true and false information.
Our provisional conclusion is that, for the moment at least, traditional media continue to play a pivotal and powerful role in generating and disseminating news and information to the public as a result of its continued dominance of mass market publishing across an ever expanding range of platforms.
Alongside these traditional publishers in New Zealand, as elsewhere, there is a rapidly expanding category of non-traditional sources of news and comment on public affairs. Some of these are becoming increasingly influential and we note a growing interdependence between new and traditional news media.
In this chapter we have attempted to describe both the functional and qualitative characteristics associated with the special type of speech which has traditionally been published by the news media. Because of its importance, this type of speech attracts special legal and non-legal privileges.
Our preliminary conclusion is that in order to qualify for these special news media privileges and exemptions, publishers122 must have the following four characteristics:
- a significant proportion of their publishing activities must involve the generation and/or aggregation of news, information and opinion of current value;
- they disseminate this information to a public audience;
- publication must be regular and not occasional; and
- the publisher must be accountable to a code of ethics and a complaints process.
In proposing this schema, which does not differ substantially from that which we proposed in our August 2011 Review of the Privacy Act, we are in no way intending to imply that publishers who do not wish to conform with such requirements should be excluded from undertaking journalistic work.123 There are a number of independent journalists working in New Zealand who, because they do not publish regularly and are not formerly affiliated with a complaints body, would fall outside these criteria.
However as Scassa discusses, it is highly likely that were such publishers to find themselves defending a defamation or privacy action, they would be able to avail themselves of the defences used by journalists provided they could meet the sort of tests the courts now apply to citizen journalism: what was the degree of public interest in the material published and how responsibly did the publisher act in gathering and publishing the material?
Furthermore, it may well be that some statutes conferring access to privileged reporting rights (say in the courts) would allow the judge or other presiding officer a discretionary power to admit reporters on an ad hoc basis even though they did not meet the criteria we have proposed. But meeting those criteria would confer a right of access.
Our proposed schema would not interfere with the fundamental free speech rights of citizens and nor would it impose unnecessary constraints on private publishing activities. What it would do is provide some clarity for those publishers who wish to be considered part of the news media and who choose to be constrained by the ethical standards and accountabilities inherent in that type of speech.
In other words those who wish to position themselves as credible and authoritative sources of news and current affairs, and to access the legal privileges and exemptions associated with these activities, will need to demonstrate their willingness to adhere to journalistic standards and will need to be accountable to a complaints body.
Crucially, it is important to understand this prescription is not intended to protect a particular set of actors or news agents, but rather a particular type of speech – whoever exercises it.
The “publisher” will usually (although not invariably) be a body corporate. Employees of such a publisher would have equivalent privileges and exemptions provide they could produce evidence of their employment status. Private individuals could also qualify provided they satisfied the statutory critera.
In our final report Review of the Privacy Act 1993: Review of the Law of Privacy Stage 4 (NZLC R123, Wellington, 2011), we recommended that for the purposes of exemption from the Act the term “news media” should be confined to media agencies which operate under a code of ethics and are subject to a complaints body.