Chapter 5 - Regulating news media: strengths and weaknesses of the current approaches
Strengths and weaknesses of the two models
Although both the BSA and the Press Council function as complaints appeal bodies, there are important differences between the two.
The Press Council is a self-regulatory body which depends on the voluntary co-operation and compliance of its member organisations. It has no statutory power to enforce decisions or impose sanctions. In contrast, the BSA is a Crown entity established by statute. All broadcasters are covered by its jurisdiction and it is able to apply a range of sanctions including compensatory damages in privacy cases, and other commercial penalties such as forcing a broadcaster to forego advertising revenue by broadcasting commercial-free for a period, or, in extreme cases suspending broadcasting for up to 24 hours.
The Press Council has a set of principles which are intended to provide guidance to the public and publishers with respect to ethical journalism. In contrast the BSA must apply standards laid down in primary legislation and work with industry to translate these into specific codes of practice which are used to assess complaints. It has a developed a significant body of media jurisprudence particularly in the area of privacy.
The Press Council is entirely dependent on funding from its member organisations for its annual budget of $237,000.143 It has one full time staff person and adjudicated 65 complaints in 2010. A further 10 complaints were resolved through informal mediation. The BSA’s 2010 revenue was $1.4 million, $762,241 of which came from the industry levy and $609,000 from the Crown. It has a full time chief executive, three legal advisers, an administrator and three part time support staff. In 2010 the BSA adjudicated 193 complaints, 77% of which concerned news, current affairs and factual programming.144
Industry members of the Press Council are appointed by representatives of their respective sectors and the public representatives by an appointment’s panel comprising nominees of the Newspaper Publishers’ Association (NPA) and the EPMU, the chief Ombudsman and the current chair. The chair, who must be independent of the press, is appointed by the stakeholders. In contrast, the BSA’s chair and board members are all appointed by the Governor-General on the advice of the Minister of Broadcasting.
In the following discussion we consider the strengths and weaknesses of the two regulatory approaches. This is a preliminary assessment only, and does not pretend to provide a detailed cost benefit analysis of the two models, but rather a framework for further discussion.
In chapter 4 we discussed the pivotal role the news media play in a democracy as a check on power. The 2007 Barker-Evans review of the Press Council made explicit reference to the need to preserve the Council’s independence from the state in order to ensure the press could fulfil its functions as “an important leg of the constitution of a democratic country”.145
Although government agencies play no role in the BSA’s complaints procedures, or in setting industry codes of practice, as noted above the BSA’s chair and board members are appointed by the Governor-General on the advice of the Minister of Broadcasting. This leaves room for, at the very least, a perception of politicisation.
However, as the Barker-Evans review pointed out self-regulation is not a guarantee of independence as there is always the potential for any form of industry self-regulation to be “affected by controlling interests”.146 And, as historian James Curran points out in his analysis of media power in Britain, state power is only one of the sources of power the press should be monitoring, and from which it needs to maintain its independence.147 Corporatized media is a major seat of economic and political power, raising legitimate questions as to how effective an industry-controlled complaints body can be when asked to be a guardian of itself.
The Barker-Evans review made a number of important recommendations about the Press Council’s level of independence from the industry, including a recommendation that it become a separate legal entity rather than a body that could be dissolved at the whim of the industry. In response to this recommendation, at the time of writing the Press Council is in the process of being established as an incorporated society.
The reviewers were also concerned at the possible conflict between the Press Council’s dual functions as a public complaints body and a body committed to the promotion of freedom of speech and freedom of the press in New Zealand. They felt the press freedom advocacy role did not sit comfortably with the “objectivity needed for the discharge of the Press Council’s complaint role”.148 Instead they recommended the council adopt the wording of the Australian Press Council objective which is to promote “freedom of speech through a responsible and independent print media and adherence to high journalistic and editorial standards.”149 A final point to note is that neither the BSA nor the Press Council is currently able to initiate investigations into significant breaches of standards by media organisations but rather must rely on receiving a complaint from a member of the public before doing so.
A key indicator of the success of any consumer complaints system must be the ease with which members of the public can access it. The primary requirement is that the public be aware of the complaints system and how it works. Broadcasters are legally obliged to publicise information about how to go about making a complaint about a programme and are alerted to the broadcasting codes of practice. Newspapers are under no such obligation with respect to the Press Council’s complaints procedures. A number of newspapers do publish information advising readers how to go about having mistakes corrected in the news pages but few provide readers with ready access to their publication’s codes of ethics or alert them to the existence of the Press Council.
The Barker-Evans review concluded that public awareness of the Press Council was lower than for other industry complaints bodies and recommended that all publications under the Council’s jurisdiction should be obliged to regularly include information about the public’s right to complain to the Press Council in print and on news websites. We are informed by the Press Council that response to this request has been “patchy”.
Another important tool for increasing public awareness of the complaints procedures, and the standards the public can expect of the news media, is the publication of important decisions. Both the BSA and the Press Council make their decisions available online through their respective websites.
In cases of serious breaches the BSA can require a broadcaster to broadcast a statement and sometimes an apology. The BSA also issues press releases summarising decisions that it considers significant or likely to be of public interest. The Press Council requires members to publish decisions when a complaint is upheld but has little control over how and where the decision is published. It does not issue press releases alerting other media to significant rulings.
Efficacy and powers
Any assessment of the efficacy of these two bodies at maintaining standards necessarily involves value judgements about the competing interests both bodies are constantly attempting to reconcile. The standards and principles underpinning these regulators’ adjudications require them to constantly review the meaning of ethical journalism. This involves weighing the fundamental public interest in free speech against countervailing interests in rights such as privacy, and the responsible and fair exercise of the media’s powers.
On one view the BSA’s use of industry standards, guidelines and practice notes, provides both broadcasters and the public with some clarity about what responsible journalism looks like. In contrast the Press Council’s principles are deliberately broad, reflecting the Council’s view that editors and their employers are responsible for making publishing decisions and determining the boundaries of responsible journalism, not a complaints body.
Both approaches are open to criticism. Some broadcasters believe the BSA fails to give sufficient weight to the Bill of Rights free speech provisions and that overly prescriptive standards can have a chilling effect on news gathering activities. They also claim inconsistency in decision making has resulted in confusion around the practical application of standards such as privacy. On the other hand, the Barker review pointed to the fact that the Press Council is unusual in relying on loose principles without any specific standards and recommended that these principles undergo urgent review.150
In recent times broadcasters have also been concerned by what they regard as a unilateral shift in the BSA’s interpretation of “good taste and decency standards”. In April 2011 in an unprecedented joint action, Television New Zealand and TVWorks (TV3 and C4) appealed two BSA decency decisions in the High Court at Auckland.151
What this demonstrates is that there is an inevitable tension between the regulators and the regulated with respect to the standards applied when determining complaints. Arguably though, the Press Council, with its objective of promoting press freedom, is far less prescriptive in its approach to standard setting than the BSA.
As a statutory body the BSA has the power to compel parties to disclose information and to appear before the Authority to give evidence. The Press Council has no such powers to conduct its own inquiries into a complaint. The BSA has a broad range of sanctions available to it including the ability to recover costs for the Crown, award damages in privacy cases and, in the most severe breaches, order a broadcaster off-air for up to 24 hours. The only sanction available to the Press Council is the requirement that editors publish the adjudication, giving it fair prominence.152
The Barker-Evans review rejected the idea of giving the Press Council the ability to impose financial penalties suggesting it would need statutory backing and so would undermine the self-regulatory model. The report cited the traditional view that an “upheld” decision was regarded as a serious professional embarrassment by editors and this constituted an effective sanction.
However the Press Council’s 2010 Annual Report noted some push-back from some editors with respect to the publication of unfavourable Press Council decisions. It noted that in a few cases editors had sought to “modify or weaken the effect of the adjudication by critically commenting on it.”153 However marginal a problem, this may indicate a shift in perception of the Press Council’s authority in the new media environment.
Similarly, in the course of our preliminary consultation we heard from a highly regarded former broadcast journalist who suggested that unfavourable BSA decisions had little or no impact on their working life and indeed in some cases they had been unaware that the BSA had upheld complaints involving their own work, suggesting this was not regarded as an important performance benchmark by the employer.
Both the BSA and the Press Council operate on relatively small budgets with minimal staffing levels. As a self-regulatory body the Press Council relies on good will of members supplemented by board fees and minimal expenses. The volume of complaints to the BSA is significantly higher than those received by the Press Council.154 Arguably the Press Council is able to function in its current form because the level of complaints it has to adjudicate remains relatively low. Any extension of jurisdiction – or increase in the volume of complaints – would have significant implications for resourcing levels.
As demonstrated with respect to the two bodies’ response to the internet, the self-regulatory model also allows for flexibility not always available to a body bound by statute. However, as yet the Press Council has not dealt with any significant body of complaints with respect to internet content, and none involving audio-visual content, and it remains a moot point how it might deal with an increase in the volume and complexity of internet related complaints given its current resourcing constraints.
It is arguable that from a consumer’s perspective the BSA provides a more robust and meaningful remedy for serious breaches of media standards than does the Press Council. Its processes are however more costly and legalistic.
However, alongside the need for effective remedies for serious breaches of media standards, it is vital to consider the impact of regulatory models on the freedom and independence of the press. On this count, there are legitimate concerns about the perception that there might be potential for the politicisation of a Crown entity such as the BSA.
Similarly, public consultation undertaken by the Barker-Evans review found significant levels of concern at the independence of the Press Council from the news industry.
In our view the fundamental weakness of both the Press Council and the BSA is the fact that both were designed to operate in a traditional media environment which no longer exists. In other words, neither was designed for the digital era. We discuss the basis for this assessment below.
The objectives of the newly incorporated Press Council are to “provide the public with an independent forum for resolving complaints against the print media, and to promote press freedom and to maintain the press in accordance with the highest professional standards…”
In this case the court upheld TVNZ’s appeal but dismissed TV3’s. The court also noted that BSA was entitled to depart from its own precedents. See Television New Zealand Limited and another v West and another (High Court Auckland CIV-2010-485-2007, 21 April 2011).