Chapter 4 - What distinguishes the news media and why it matters
Where to draw the line?
A two pronged test?
Having established that there is an arguable public interest in extending the news media’s system of rights and accountabilities to some non-traditional web publishers, we now turn to the question of which publishers this extension should apply to, and in which contexts it should operate?
We begin with the relatively straightforward descriptive test to help identify “news activities” and then turn to the more difficult task of assessing whether such activities constitute journalism.
These are largely unchartered waters given that until the advent of the internet and web 2.0 there was little need to draw sharp demarcations defining news media. Much of New Zealand’s statute law predates the digital era and so reflects that less complicated reality.
As discussed in the previous chapter, our statute book contains many examples of laws which use of the phrase “accredited news media reporter” when indicating to whom the particular provision applies. In most instances the Act provides no further definition of what is meant by the phrase.110
Hence the multiple references to the “news media” contained in legislation provide little assistance in determining which types of new publisher might be covered by the particular provision.
The Privacy Act 1993 does however provide what was in 1993 a practical working definition of the news media – a category excluded from the provisions of that Act for reasons discussed in the preceding chapter. The Act employs two concepts: that of a “news agent” and “news activity“
A “news activity” is defined in the Act as:111
(a) the gathering of news, or the preparation or compiling of articles or programmes of or concerning news, observations on news, or current affairs, for the purposes of dissemination to the public or any section of the public:
(b) the dissemination, to the public or any section of the public, of any article or programme of or concerning:
(ii) observations on news;
(iii) current affairs.
And for the purposes of the Act a “news medium” means:
any agency whose business, or part of whose business, consists of a news activity; but, in relation to principles 6 and 7, does not include Radio New Zealand Limited or Television New Zealand Limited.
The Act’s broad definition of a “news activity” continues to be appropriate in the current context. Crucially, the definition makes clear that in order to qualify as a “news activity” the purpose behind the gathering of information must be the public dissemination of that information.
The Act also makes clear that comment and opinion on news meets the definition of a “news activity”.
However the second leg of the test, which requires that the medium excluded from the Act must be an “agency whose business, or part of whose business, consists of a news activity” introduces a commercial requirement which does not necessarily suit the web 2.0 era where “news activities” may be carried out by individuals with no commercial driver.
As we have discussed, since the advent of the web, news dissemination has been uncoupled from the traditional agencies making it more difficult to draw bright line distinctions between different types of publishing activities and mediums.
This issue suggests that instead of focusing on the agent ( a news organisation) or even the actor (whether the author is a qualified journalist, for example) in determining whether a publication qualifies as a “news activity” for the purposes of the law, it may be more helpful to focus instead on the quality and characteristics of the content itself.
Canadian information law specialist Teresa Scassa makes this case in a paper examining the ways in which a number of jurisdictions are grappling with how to apply journalistic privileges, exemptions and defences in the web era.112
With respect to Canada’s privacy laws Scassa notes that the exemptions for the media are not confined to established news organisations or journalists but rather apply to “any individual who collects, uses or discloses personal information exclusively for journalistic purposes.”
Scassa discusses the approaches courts in a number of different jurisdictions have taken in defining “journalistic purpose”, noting that with respect to Quebec privacy law “journalistic purpose has little to do with the credentials of the person disseminating the information or the media in which the information is disseminated. It turns instead on the quality of the information itself and the public interest in access to that information.”113
She notes, however, that the courts have adopted different approaches depending on the legal question under consideration. Who should benefit from privacy law exemptions? Who should benefit from qualified privilege or “responsible journalism” defences in defamation actions? Who should benefit from the journalist-confidential source privilege?
Scassa identifies some of the characteristics that courts in different jurisdictions have considered potentially relevant in assessing whether or not the privileges and exemptions should apply to a particular publication in a specific context. These included:
- whether the purpose of the publication was the gathering and dissemination of “news” or matters of “public interest”;
- whether the publication purported to provide a neutral report;
- whether publication was regular;
- the quality of the information disseminated and the public interest in accessing it;
- whether publication involved the application of transformative editorial skills; and
- whether the publication, and the manner in which the information was gathered, conformed with journalistic norms and standards.
On analysis, not all of these markers proved useful. For example, with respect to the neutrality requirement, Scassa commented that “any definition of journalistic purposes that includes objectivity as a criterion could embroil judges and adjudicators in an exercise fraught with difficulty – one that may ultimately be detrimental to the values of freedom of expression.”114
In the context of defamation actions, Scassa outlines a significant development in Canadian defamation law as a result of a 2009 Canadian Supreme Court decision which created a new defence of “responsible communication on matters of public interest”. This allows defendants in libel cases where statements of fact are disputed to escape liability if they can show they “acted responsibly reporting on a matter of public interest”. The defence is available to bloggers and other non-journalist publishers provided they can establish two elements:
- that the publication is on a matter of public interest; and
- that the publication was responsible, in that the defendant was diligent in trying to verify the allegation.
Scassa also explores the connection between the concept of “responsible” publishing and adherence to accepted journalistic norms or codes of ethics against which the actions of the publisher could be assessed:115
The defamation cases and the Quebec approach to invasion of privacy and the media both rely on a qualitative assessment of the journalistic material that is at issue. This assessment is made in part by evaluating the public interest in the subject matter, and in part by assessing the level of care taken by the reporter – that is by considering ethics.
Thus adherence to certain norms or standards is more important than the identity or credentials of the person disseminating the information.
This Canadian development mirrors developments elsewhere. The United Kingdom courts have also developed a “public interest” defence which, likewise, only applies if the journalism has been responsible. Among the factors to be taken into account are the steps taken to verify the information, whether the publication contains the gist of the plaintiff’s side of the story, and tone. Similarly the New Zealand courts have recognised a privilege primarily for discussion of political and governmental matters, although its exact extent is still not clear. This privilege is lost if “improper advantage” has been taken of the occasion of publication. The Court of Appeal has said that this involves asking “whether the defendant has exercised the degree of responsibility which the occasion required”.116
In conclusion Scassa suggests that as the courts and law makers consider how to apply the legal privileges and defences designed for traditional media, it will be increasingly important to recognise that in the future “journalistic purposes may be served by a growing range of information intermediaries”. And that as a result:117
The focus should not be on the nature of the actor, but rather on whether the purposes are journalistic. Another important consideration may be the regularity of the information dissemination activity.
While not necessarily determinative, regular publication (no matter the form or media) may suggest a sustained general purpose. Yet by the same token, regularity of publication may carry with it a greater onus on the author and publisher to be aware of the ethical boundaries of such activity.
In a sense Scassa’s conclusions move away from the traditional organisational and professional claims on statutory rights towards a “first principles” public interest approach which simply asks: is it in the public interest for these types of publications to attract the privileges formerly reserved for traditional news media? And, if so, how should they be held accountable?
See for example the Adoption Act 1955, s 22; Family Courts Act 1980, s 11A; Protection of Personal and Property Rights 1988, s 79; Care of Children Act 2004, s 137; Domestic Violence Act 1995, s 83; Family Proceedings Act 1980, s 159; Court Martial Act 2007; Children, Young Persons and their Families Act 1989, s 166; Crimes Act 1961, s 375A; Summary Proceedings Act 1957, s 185C; Armed Forces Discipline Act 1971, s 139; Social Workers Registration Act 2003, s 80; Health Practitioners Competence Assurance Act 2003, s 97.