Chapter 5 - Regulating news media: strengths and weaknesses of the current approaches

 

The problem

Regulatory gaps: Broadcasting

The current approach

In New Zealand as in Britain, both television and radio were initially tightly controlled by the state. Although private individuals pioneered early radio broadcasting in the 1920s, by 1932 the government had effectively taken control of broadcasting. The first private radio licences were not issued in New Zealand until 1970 and the first private television broadcaster was not issued with a warrant until 1989 with the launch of TV3.124 That said, it was in response to pressure by private operators, including the pirate radio station Radio Hauraki, which broadcast from international waters in the mid-1960s, that the Government enacted the Broadcasting Authority Act 1968. The Authority’s primary functions were to rule on applications for broadcasting warrants and to ensure warrant holders complied with the conditions attached to their warrants.

Significantly, the 1968 legislation also made explicit reference to the standards which were to be observed by all broadcasters, whether public or private. The Broadcasting Authority was to use its powers, to ensure that:125

(a) Nothing is included in programmes which offends against good taste and decency or is likely to incite to crime or to lead to disorder or to be offensive to public feeling:

(b) Programmes maintain a proper balance in their subject-matter and a high general standard of quality:

(c) News given in programme (in whatever form) is presented with due accuracy and impartiality and with due regard to public interest.

Similar provisions were included in the Broadcasting Act 1976, requiring both state and private broadcasters to conduct their businesses in such a way as to ensure:126

[T]hat programmes reflect and develop New Zealand’s identity and culture; and that programmes are produced and presented with due regard to the need for good taste, balance, accuracy, and impartiality, and the privacy of individuals:

The 1976 Act established a Broadcasting Tribunal, one of whose functions was to adjudicate complaints about alleged breaches of standards where the complaint had not been satisfactorily resolved by the broadcaster. Complainants taking a case to the tribunal were forced to first sign a declaration that they would not pursue any legal action with respect to the subject matter of their complaint.127

New Zealand’s tightly regulated broadcasting environment underwent radical reforms in 1989 and radio spectrum was put up for commercial tender under a property-rights system which continues today.

However, despite opening broadcasting up to free market competition, the state continued to require all broadcasters to comply with statutorily prescribed standards. These standards were spelt out in the Broadcasting Act 1989 which made broadcasters individually responsible for maintaining standards that were consistent with:128

  1. the observance of good taste and decency; and
  2. the maintenance of law and order; and
  3. the privacy of the individual; and
  4. the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest; and
  5. any approved code of broadcasting practice applying to the programmes.

The Act also established a complaints body, the Broadcasting Standards Authority (BSA), whose primary functions were to determine complaints, where the relevant broadcaster had been unable to do so itself, and to work with industry to devise agreed broadcasting codes of practice in line with the standards set out in the Act. The BSA has developed four codes, covering free-to-air television, pay television, radio and election programmes. The codes contain standards which all broadcasters must follow when broadcasting programmes in New Zealand.

The BSA was constituted as a Crown entity and its chair and board members were appointed by the Governor-General on the advice of the Minister of Broadcasting.

The rationale underpinning this system of statutory standards, backed by a complaints appeal body, was the orthodox view that while the radio spectrum was to be freed up for competition, access remained conditional on adherence to basic standards and accountabilities. Television in particular was perceived as a powerful, all pervasive medium with a unique ability to impact on audiences. Use of spectrum required a licence, and, failure to comply with an order of the BSA could, in some circumstances, lead to a broadcaster being found to be in breach of their licence.

The broader reforms were intended to open the broadcasting sector to competition and to create clearer demarcations between the public sector broadcasters, Television New Zealand’s TV One and Radio New Zealand, and their commercial competitors. The reformers could not of course have anticipated a time, just two decades hence, when competition would come from the internet and when the content itself would be uncoupled from the traditional linear broadcasting model.

Today the model of scheduled linear broadcasting to mass audiences is only one of a variety of delivery options available to the public. Consumers can now download or live stream content from an infinite variety of sources; and they can time-shift content that has been broadcast previously using set-top devices such as My Sky or via websites offering “on-demand” replay functions. They can also bypass traditional broadcasters altogether by using a range of file sharing software applications, such as Bit Torrent, which allow the exchange of music and video files among networked computers.129

As we outlined in chapter 2, traditional broadcasters have responded to these technological advances by developing their own web portals through which audiences can access programmes that have been previously broadcast on-demand. They can also access web only content that has not been previously broadcast, including extended interviews and content specifically produced for the internet. These websites also feature regular news updates and stories, often accompanied by short videos.

Applying the Broadcasting Act in the Web 2.0 era

Although the Broadcasting Act was not drafted with the internet in mind, the definitions of what constitutes a “programme” and “broadcasting” for the purposes of the Act are sufficiently broad as to encompass content transmitted via the internet.130 However the Act specifically excludes from coverage the transmission of two particular categories of programs, namely, those:

  1. made on the demand of a particular person for reception only by that person or;
  2. made solely for performance or display in a public place.

The intention of the legislators would appear to have been to ensure private individuals viewing home movies would not be forced to comply with the standards regime and, similarly, films offered for public viewing in theatres and other such venues which were already covered by the Films, Videos and Publications Classification Act 1993 were not subject to the broadcasting regime.

However, despite the fact that sub clause (a) was drafted long before the advent of “on-demand” television, the BSA’s position has been that clause (a) means they do not have jurisdiction over any “on-demand” content available online.131

These definitional problems are translating into real problems for consumers. In the course of our preliminary consultation for example we were told by one broadcaster that members of the public wishing to complain about content on their website were informed the sites were not covered by the Broadcasting Act.

This is borne out in a November 2010 complaint against a Television New Zealand One News item which was then appealed to the BSA. The complainant was outside the 20 day limitation for complaints but argued that as the content was still available for download on the broadcasters’ website it should still be possible to lodge a complaint on that basis. The BSA declined to hear the appeal on the grounds that the on-demand version was outside its jurisdiction. In its decision it noted that the broadcaster’s response to the complainant had been to inform them that “the material shown on the internet was not subject to the Broadcasting Act 1989, and therefore it declined to accept the complaint.”132

The precedent for this response was a 2005 case, Davies and Television New Zealand Ltd-2004-207 when a complainant who found himself out of time for complaining about the original television screening of an episode of Fair Go, lodged a complaint over the online version which was still available on-demand via the broadcaster’s website. The BSA held it could not hear the complaint.

Similarly the BSA’s jurisdiction is not currently regarded as extending to any other audio-visual content made available only on a broadcaster’s website or on-demand via another platform. Nor is it possible for consumers to complain about any written content, including news stories, published on a broadcaster’s website.

The BSA does however accept jurisdiction over content that is streamed live over the internet because this is regarded as analogous to traditional public transmissions that were being “pushed out” to wide audiences simultaneously, as distinct from content that is “pulled” to the individual viewer on their demand.

Just as these gaps have opened in the BSA’s jurisdiction over traditional broadcasters, similar gaps now exist with respect to the BSA’s ability to regulate the content of other publishers who make audio-visual content available on-demand to the public on news websites and blog sites. So for example, audio-visual content published on sites like Yahoo!New Zealand or other news websites is not subject to the broadcasting legislation. Nor does the BSA have jurisdiction over user-generated audio-visual content published on social media sites such as YouTube.

 

Solutions

The regulatory gaps identified above have been considered in the context of a number of internal and external reviews over the past five years. The most comprehensive of these took place in 2006-2008 within the broader context of the then Labour government’s response to the advent of digital broadcasting and the imminent arrival of ultrafast broadband in New Zealand. As part of this review the Ministries of Culture and Heritage and Economic Development produced a number of research papers exploring the implications of convergence and digital technology on a broad range of issues including spectrum management and media regulation.133 In tandem with this review the BSA commissioned research on the regulatory challenges facing broadcasters. One paper, co-authored by lawyer Steven Price and journalist Russell Brown, focused on the architecture of the internet itself and the implications for content regulators.134 The second paper reviewed international approaches to content regulation and their relevance to New Zealand.135

The Labour-initiated review came to a halt with the change of government but the pressure for regulatory reform of the broadcasting environment has not abated with various initiatives underway within the Ministry of Culture and Heritage, and the BSA itself calling for a review of the Act in its 2010 Annual Report.136 Broadcasting Minister Jonathan Coleman concurred with this assessment in a statement to NZPA in November 2010.137

Amending the Broadcasting Act 1989

There has been on-going discussion about the merits of amending the Broadcasting Act 1989 to extend its jurisdiction at least as far as the content available to the public on broadcasters’ websites.

Such an amendment would be consistent with moves by recent governments to give statutory recognition and support to the new digital broadcasting environment. For example in 2007 the then Labour government passed the Broadcasting Amendment Bill which enabled funding agencies to support the development of digital broadcasting including the funding of video-on-demand, interactivity between broadcaster and audience, and the “reversioning” of content for non-broadcast platforms (such as the internet or mobile phones). Similarly, the Television New Zealand Amendment Bill was designed to assist Television New Zealand reposition itself as a “multi-media” content provider.138

In our view logic and public expectation favour extending the BSA’s jurisdiction to cover content accessed in these new ways. It makes little sense to say that the same or similar content made publicly available by the same broadcaster is within BSA jurisdiction if it is accessed via traditional television, but not if it is accessed via the internet.

The ‘on-demand’ distinction, while important in some contexts, seems less relevant when applied to content that has been produced with the purpose of broad public dissemination, irrespective of whether this dissemination occurs during scheduled broadcast or at a time elected by the viewer. Public availability is surely the key.

Whether the standards and codes that apply to web only content accessed on-demand should be different from those which apply to content that is streamed or pushed out in scheduled programming is a question we return to in chapter 7.

But beyond this relatively straightforward extension of the BSA’s jurisdiction lie two more difficult questions: who should regulate the written content on broadcasters’ websites and in what circumstances should the BSA’s jurisdiction extend to the audio-visual content of non-traditional news websites ?

We return to these questions below, when we consider the impact of convergence on the approach to regulation.

The Press Council

The Press Council is a self-regulatory body whose jurisdiction extends to New Zealand’s daily newspapers, and the publications produced by members of the New Zealand Community Newspapers’ Association, the Magazine Publishers Association and the journalists’ union, the Engineering Printing and Manufacturing Union (EPMU).

The Council came into being in 1972 as the result of a joint venture by the then Newspaper Proprietors’ Association (which would become the Newspaper Publishers’ Association of today) and the New Zealand Journalist’s Association, which at that time represented the country’s journalists (now the EPMU). The explicit motivation behind its establishment was to avert plans by the Labour Party to establish a statutory Press Council if it became the Government.139

The council is currently made up of 11 members: a chairperson (so far always a retired judge), five persons representing the public and five industry representatives. It is dependent on its industry members for its funding. Its primary function is to decide on complaints made against its members.

Just as those with a complaint about a radio or television programme must first try to resolve the complaint with the relevant broadcaster before appealing to the BSA, so too those complaining about a print publication must first attempt to resolve the issue with the editor of the publication. Only if this fails, will the Press Council become involved, and even then the complaint may be dealt with through mediation rather than go to a hearing of the full council.

The Press Council underwent its first independent, first principles review in 2007 when retired High Court Judge Sir Ian Barker and Victoria University Professor Lewis Evans were asked to determine “whether the basic concept of self-regulation on which the council was founded” continues to be an “appropriate basis for a Council of this kind, independent of government.”140

We will consider the review’s key findings and recommendations below but first focus on how the Press Council has dealt with the regulatory gaps which have emerged as a result of web publishing.

Press Council’s response to the web

Because it is not a statutory body, the Press Council has been free to determine its own response to the internet without any legislative amendments or the consent of any external agency. In its 2007 report the Barker review recommended that the “principles and practices of the Press Council might be applied to the electronic print publication both for members of the Press Council and non-members, providing the latter can be feasibly funded.”141

The Council has extended its jurisdiction to all content published on its members’ websites – including audio-visual content. When requested, it has also taken on a role as adviser and occasional mediator in relation to complaints arising from content published on non-traditional media websites.

The Press Council’s Executive Director provided us with an overview of the type of complaints and inquiries the council was fielding with respect to online content.142 Because the council operates as an appeals body, only those complaints which had not been resolved satisfactorily with the newspapers’ web editors came before the council.

Most cases involved content that was available both online and in hardcopy, although in the past three years the Council had heard five complaints against the Fairfax news website, Stuff (none of which were upheld.)

Among the issues the Council has had to consider as a result of complaints or inquiries from the public are:

  • the appropriate standards and level of control web editors should apply to reader comments on news websites (this was in relation to allegedly offensive comments posted on a news story announcing the resignation from Parliament of Greens MP Sue Bradford);
  • how to respond to complaints relating to accuracy when the original website story which had prompted the complaint was subsequently amended (this was in relation to a news story, supplemented by video, on Hone Harawira’s comments on TVNZ’s Te Karere programme regarding the killing of Osama bin Laden);
  • how to respond to requests for the removal of potentially damaging content from website archives years after the story’s original news value has passed;
  • how the long term availability of content on websites affects the current 30 day limitation on initiating complaints against publishers;
  • how requirements for fairness, balance and accuracy in reporting court proceedings can be met when online coverage may only extend to a single, stand-alone story covering the prosecution’s opening address;
  • how to interpret the requirement that publishers maintain distinctions between fact and opinion, given the lack of separation online between commentary and news reporting on some websites;
  • how to deal with complaints involving content that is published behind a pay wall and withheld from the complainant; and
  • in what circumstances is the news media justified in reproducing photographs published on social media sites.

Alongside these issues relating to content on traditional print websites, the Press Council has also been approached by members of the public for assistance in dealing with non-traditional websites, including responding to a small number of written complaints against Kiwiblog, Yahoo!New Zealand, television websites, Trade Me and Unlimited.

Although these cases were regarded as outside the Press Council’s jurisdiction, its Executive Director advised the individuals as to how to direct their concerns to the website’s editor and in some cases liaised directly with the relevant body to help facilitate a resolution.

The first private commercial broadcasting licences were issued to Radio Hauraki and Radio i in 1970.

Broadcasting Authority Act 1968, s 10 (1).

Broadcasting Act 1976, s 3 (c).

Broadcasting Act 1976, s 67 (4).

Broadcasting Act 1989, s 4 (1).

Under the provisions of New Zealand’s Copyright (Infringing File Sharing) Amendment Act 2011 individuals illegally sharing copyrighted files over the internet face an escalating infringement regime which ultimately could result in a person losing their internet account for up to six months.

Under section 2 of the Broadcasting Act 1989 broadcasting  means “any transmission of programmes, whether or not encrypted, by radio waves or other means of telecommunication for reception by the public by means of broadcasting receiving apparatus”.  Programme means:(a) sounds or visual images, or a combination of sounds and visual images, intended—(i) to inform, enlighten, or entertain; or (ii) to promote the interests of any person; or (iii) to promote any product or service; but (b) does not include visual images, whether or not combined with sounds, that consist predominantly of alphanumeric text.

The BSA identifies three different ways in which viewers can currently access content online:

Video material that must be downloaded to the user’s computer before it can be viewed. Such material is downloaded in whatever order will allow the download to occur in the shortest possible time.

Video material that is “streamed”. Such video material can be played at the click of a button without the user having to first download the video to his/her computer for playback. The video is downloaded in small chunks, in sequence, as it plays.

Video material that is “live streamed”. Such video material does not allow a user to watch that content “on demand” at a time of their choosing. Such material plays continuously, independent of demand.

The BSA’s position is that only this latter category, live streamed content, is currently covered by the Act.

Johnson and Television New Zealand Ltd - 2010-152 < www.bsa.govt.nz >.

Ministry of Culture and Heritage Digital Broadcasting: Review of Regulation: The implications for regulatory policy of the convergence between broadcasting, telecommunications and the internet, Volume one (2008); Digital Broadcasting: Review of Regulation: Discussion Paper Volume two (2008) Broadcasting and New Digital Media: Future of Content Regulation (2008).

Russell Brown and Steven Price The Future of Media Regulation in New Zealand: Is there One? (Prepared for the Broadcasting Standards Authority, May 2006).

Millwood Hargreave et al Issues Facing Broadcast Content Regulation (2006).

In the foreword to the BSA’s Annual Report 2010 chair Peter Raddich noted “We are acutely aware of the challenges involved in maintaining standards in the segment of traditional broadcasting when similar standards do not apply to internet broadcasting. It is time for the Broadcasting Act to be reviewed.”

NZPA “Broadcasting Act to be reviewed for relevance in the internet age” 17 November 2010.

(23 March 2010) 661 NZPD 9733.

Benedict Kingsbury “Complaints Against the Media: A Comparative Study” (1980-1982) 1 Canterbury Law Review 155 at [157].

Ian Barker and Lewis Evans Review of the New Zealand Press Council (prepared for the Press Council 2007).

Ibid, at 78.

Email from Press Council Executive Director Mary Major to Law Commission regarding internet complaints (2 August 2011).