Chapter 6 - Regulation of the media – a new regulator

A new regulator?

A single regulator

In the last chapter we examined and compared the two current media regulators in New Zealand: the Press Council and the Broadcasting Standards Authority. We saw that there are at least three problems with the existing structure:

  • The two bodies are very different – the one statutory and the other voluntary. That distinction is at least in part based on history, and is becoming increasingly hard to justify in the new age.
  • There are presently “gaps” in coverage: some material is subject to no regulation at all even though it is generated by “traditional” media and intended for wide public consumption. The most striking example is on-demand material on broadcasters’ websites. That is truly anomalous, and a matter of confusion to the public, which sees the online material as just an extension of the broadcaster’s usual business.
  • The phenomenon of convergence which we discussed in the last chapter means that websites of broadcasters and newspapers are increasingly alike: both contain large amounts of text, and often a significant component of audio-visual material. Other news sources derive their news from both. That different standards and modes of regulation should apply to both is increasingly hard to understand, and even harder to justify. Much the same standards of accuracy, fairness, respect for privacy etc. apply across the boundaries.

If one were to retain both the existing regulators the question of how their respective jurisdictions might be extended to cover existing gaps would be fraught with difficulty. Because it is a voluntary body not defined by statute, the Press Council perhaps could extend its jurisdiction more widely but there would be real questions as to where the boundaries should be drawn. Should more news aggregators (as opposed to news generators) or bloggers have an automatic right to join? Moreover the Press Council is largely concerned with print and would have to adapt its operation to deal with audio-visual material.

If the Broadcasting Act were to be amended to redefine “broadcast” to cover online on-demand material, there would again be a question of where to draw the line. Would it cover any communication on the internet, or only communications from what might be described as the traditional broadcasters? Would the BSA’s jurisdiction extend only to audio-visual material on a website, or would it also cover all print content, or print content only so far as that was inseparable from the audio-visual component?

We do not believe that the current dual regulator model is one which can satisfactorily survive in the new age. As time passes, convergence can only increase. Common ownership of different kinds of media remains a real possibility in New Zealand as it is elsewhere in the world. Increasingly it is the content of the communication which is important rather than the platform from which it is communicated. In other words, it is the message rather than the mode.

We are of the view therefore that a single regulator is the way of the future. No doubt such a regulator may have to cope with subtle differences between print, audio-visual material, and other manifestations of modern communication technology. But different forms of communication are now so often combined in a single whole that we believe a single regulator should be entrusted with the task. Basic standards of good journalism remain the same whatever the form of communication.

What regulatory model should be adopted?

In determining what form this regulator should take and the way it should operate, we have had regard to the attributes of good quality regulation drawn by the Treasury from a number of sources, and set out in the form of best practice regulation principles and indicators.199

We have also been guided by the following principles.

  • A free press is critical to a democracy. The Bill of Rights200 guarantee of freedom of expression must lie at the basis of any media regulation. It requires that sanctions be proportionate, and that accountability rather than censorship should be the guiding principle.
  • The news media should exercise their freedom responsibly and be accountable when they fall below the appropriate standard. The privileges and exemptions conferred on the news media by law should be conditional on a guarantee that there will be responsibility and accountability.
  • Media regulation should be truly independent, both from government, and also from the industry itself.
  • Any regulatory system should foster rather than stifle diversity and new forms of publication.
  • The system of regulation should be flexible and platform neutral, although standards may need sometimes to take account of different modes of delivery or types of publisher.
  • Any system of regulation of the media should not inhibit the freedom of speech of individuals who are not part of the media. There should remain a right for individuals to speak out, however unorthodox or even wrong their views may be.

As we have seen, there are many possible regulatory models. Unfortunately the terminology used to describe them is not always consistent. “Self-regulation” and “co-regulation” in particular can mean different things in different contexts. “Self-regulation” can mean that an industry in fact regulates itself, or that the industry has set up a body which then operates independently. “Co-regulation”, as we have seen, can take a multitude of forms, from the state having considerable involvement to its having virtually no part other than requiring that the regulator be established. To avoid this confusion of terminology we prefer to refer simply to independence

The critical question is whether the new single regulator should be under the control of the state or whether it should operate independently of the state. The Broadcasting Standards Authority is presently nearer to the state-control end of the scale. Its members are appointed by the government; the standards are prescribed by statute, as are the sanctions which the Broadcasting Standards Authority can impose. However New Zealand has examples of successful regulation which are completely independent of the state. The Advertising Standards Authority and the Banking Ombudsman, for instance, both enjoy substantial confidence in both the public and the relevant industry. The university system provides other examples, in relation to both audit and course approval.201

Perhaps these industries have special features which make them amenable to regulation of this kind. Advertising takes place in a highly competitive market. An advertiser which fails to comply with a decision of the Advertising Standards Authority does so at its peril: the public may respond by not purchasing the advertised product. Banking is also competitive and a bank which is regularly before the Banking Ombudsman is likely to attract less custom.

The media context is rather different. There is a paradox. Overseas experience would suggest that the more flamboyant and sensational a publication is, the better it sells. The News of the World had a far greater circulation than the Times or the Guardian. The Media Standards Trust has said:202

The current financial and structural crises are unique and are placing intense pressure on the press to capture public attention. The need for more sensationalism and more scoops can have undesirable consequences for standards. …

Despite this, we are of the view that regulation which is independent of government and is rigorous and well-run (and those qualifications are essential) is the best model, even in the media market, for the following reasons.

First, a free press flourishes best in a climate where there is no, or limited, government control of what can be published. The danger of government regulation is that the regulator may serve, or just as seriously appear to serve, political ends, in the form either of the appointments made to it or the decisions made by those appointees. We do not suggest that the New Zealand Broadcasting Standards Authority has ever been open to those influences, but the possibility that it could be must inevitably reduce the confidence of the industry in it. A body which operates free from state control is likely to be better respected by the media themselves than a body which the government has forced on them.

Secondly, the public are likely to have less respect for an industry which has to be forced by the state to comply.

Thirdly, independent regulation costs the public less, in that industry pays for at least part of it. This however should not be a decisive factor: it can entail the disadvantage that industry may be inclined to contribute less funding than is ideally desirable. The Press Council has not been immune from that criticism.

Fourthly, the point is well made in the review of the New Zealand Press Council that independent regulation can actually be more stable and predictable than state regulation which is susceptible to variations in approach by different government administrations.203 Those variations can be responses to economic pressures, lobbying by sections of the public and even of the industry, and political agendas. It has been said that “Governments, even if freely elected, are participants in the political contest and therefore not best-suited to enforce rationality and fairness.”204

Fifthly, in line with the great majority of other jurisdictions in the free world, New Zealand’s print media have long been free from state regulation. Voluntary press councils are the norm. To move to cross-media regulation by the state would send the wrong message about this country’s media. In fact there is comment in the New Zealand Court of Appeal that it is possible to say that the New Zealand press is better behaved than some of its relations in other parts of the world.205 So, if there is to be a single regulator we prefer the independent model even though that means changing the present regime for broadcasters.206

No doubt some will prefer government regulation, and the overarching controls it can provide. Some sectors of the public may be unhappy at the introduction of what they might see as a weakening of regulation, at least as far as broadcasters are concerned. They are likely to draw attention to the British Press Complaints Commission’s failure to stamp out thoroughly objectionable conduct such as phone hacking. The Press Complaints Commission itself issued a statement in the wake of that scandal acknowledging that “it can no longer stand by its 2009 report on phone hacking and the assertions made in it”.207 It promises to review all aspects of its operation to increase public confidence. “We need to identify how the model of an independent Press Complaints Commission can be enhanced best to meet these challenges.”208

Detractors are also likely to point to the fact that in other industries and professions the tendency is the other way – towards increased state regulation. Private investigators and security personnel, real estate agents, the financial markets and the insurance industry: all have recently been subjected to tighter statutory regulation. But most of this has been a response to a former lack of regulation rather than to effective independent regulation.

Yet there will doubtless be concerns that regulation without government intervention will lead to a drop in standards: that there will be a tendency to pander to the lowest common denominator, particularly in audio-visual material; and that there might be a failure to take account of the wider public interest. Those commercial pressures are undeniable. That is why the regulator, in addition to being independent from the state, must also be substantially independent from the industry. A regulator subject to industry control, where the industry itself could dictate membership, the content of the codes of practice, and the sanctions which could be imposed, would not command public confidence. The regulator, once set up, must stand independent from the industry, and not be subject to its direction. In the next section we expand upon the concept we envisage.

For the reasons we have given we continue to believe that truly independent regulation is the best option in the media context. However, the system we propose should be trialled, on the understanding that it will be reviewed after a set period of time – we suggest three years. If it is then found to have deficiencies it should be amended and strengthened.

Peter Mumford, “Best Practice Regulation: Setting Targets and Detecting Vulnerabilities” (2011) 7(3) Policy Quarterly, at 36.

New Zealand Bill of Rights Act 1990 s 14.

The Education Act 1989 s 260 empowers the Vice-Chancellors’ Committee to exercise the powers of the New Zealand Qualifications Authority in this regard.

Media Standards Trust “Can independent self-regulation keep standards high and preserve press freedom?” A submission by the Media Standards Trust to the PCC’s review of governance (January 2010) < www.mediastandardstrust.org/wp-content/uploads/downloads/2010/08/Reforming-independent-self-regulation.pdf >.

Ian Barker and Lewis Evans Review of the New Zealand Press Council (prepared for the Press Council 2007) at 11.

The Media Self-Regulation Guidebook (Office of the Representative on Freedom of the Media, Organization for Security and Cooperation in Europe, 2008) < www.osce.org > at 11.

Lange v Atkinson [2000] 3NZLR 385 (CA) at [34].

Although deriving from a very different age it is perhaps still worth quoting the famous words of Jefferson writing to Edward Carrington in 1787: “If it were left to me to decide whether we shall have a government without newspapers or newspapers without a government I shall not hesitate a moment to prefer the latter.”

Statement from the PCC on phone hacking (6 July 2011)< www.pcc.org.uk/ >.

Ibid.