Chapter 6 - Regulation of the media – a new regulator
The terms of reference for this review required us to focus on the gaps which have emerged in the regulatory environment for the news media: that is to say media which disseminate news, information, current affairs and commentary on those things. The new regulatory body we have proposed in this chapter would be set up to deal with unresolved complaints relating to news and current affairs.
But most of our news media do more than disseminate news. Almost all media publish advertisements. Newspapers occasionally publish poems, short stories and cartoon strips, although by far the dominant part of their content is news. But broadcasters are different. Some radio stations and television channels broadcast no news at all: in the case of radio, some stations are confined to music, some television channels are devoted entirely to films and other kinds of entertainment. Even the broadcasters which have news and commentary as a significant and important part of their enterprise also disseminate a large amount of content which is purely entertainment: films, “soaps” and drama serials, game shows, competitions, reality shows and the like. The question arises as to whether the proposed new regulator should also deal with complaints relating to entertainment content?
How entertainment content is currently regulated
Technological convergence is producing the same type of gaps and inconsistencies in the regulation of entertainment content as we have seen with respect to the news media. Entertainment content is currently subject to two different statutory regimes. Films and videos are subject to the statutory regime established by the Films, Video and Publications Classification Act 1993 which establishes the Office of Film and Literature Classification and creates the role of the Chief Censor. Entertainment content that is broadcast on radio and free-to-air or subscription television services is subject to the Broadcasting Act 1989.
Both these statutes were designed for a pre-digital era and create a regulatory regime based on increasingly problematic distinctions between the formats in which entertainment content is consumed, rather than the content itself.
The current regime relies on a mix of legislative prescriptions and classifications to achieve the critical policy objectives. The most stringent legal controls, including outright censorship, are aimed at preventing the dissemination of content that is deemed to be truly objectionable such as child pornography and graphic sexual violence. Content which is deemed to fall below this high legal threshold is subject to a classification regime, which places age restrictions on some content and provides guidance to consumers about the age-appropriateness of other content.
Programmes broadcast on free-to-air television do not have to be rated or classified but are subject to the codes and standards mandated in the Broadcasting Act 1989. As we have discussed earlier, these codes cover issues such as taste and decency and require broadcasters to ensure content that is inappropriate for young viewers is only broadcast during “adult” viewing hours. Broadcasters use advisories alerting viewers to programs which contain sexual or violent content likely to offend.
While the public has the right to complain to the BSA about entertainment content as well as news programmes, in fact complaints about entertainment content comprised only 14% of the BSA’s adjudications over the past two years, with the remaining 86% all concerned with news and current affairs.219
Complaints about news and current affairs programmes tend to be dominated by questions of fairness, accuracy and balance. However the issues which concern the public with respect to entertainment content that is broadcast on television and radio tend to focus on questions of taste and decency and the type of content that young children should be exposed to with, or without, parental supervision – in other words, the expectations viewers have of broadcasters with respect to their legal obligations to maintain programming standards.
Options for regulating entertainment content
Research suggests New Zealanders continue to have high expectations of the standards broadcasters should observe with respect to programmes which are available without restriction to the public and in particular, programmes which are likely to be seen by minors.
There are a number of options for dealing with entertainment in a system which recognises a new regulator of the type we propose.
The first is to provide that if a news medium is subject to the jurisdiction of the proposed regulator, that regulator will deal with all its content. However in the scheme we envisage, membership of the new regulator may be voluntary. If any news medium opted out, that would leave its entertainment content unregulated. In the interests of the younger viewing audience in particular, we think that would be entirely unsatisfactory. There would be no control over content unless it met the high threshold of an “objectionable publication”, in which case it would be a criminal offence.
The second possibility is to continue to draw regulatory distinctions between entertainment content that is delivered in different formats as is currently the case, tailoring the system to accommodate the new modes of delivery such as pay TV and free-to-air TV; or between live streamed programmes and on-demand programmes.
However, digital technology is having the same disruptive effects on this traditional format-based regulatory system for entertainment content as we have explored with respect to the mainstream media. And for the same reasons, we believe the current regulatory approach to entertainment requires fundamental reform.
It is beyond the scope of this review to explore in any depth the many issues confronting producers and consumers as a result of digitisation and the web, but it may be useful to outline just some of the gaps and inconsistencies which have already emerged:
a. Consumers can now bypass traditional distributors, including broadcasters, and access content directly through a variety of means for consumption at the time and place of their choice. This means traditional tools for regulating content, including watershed viewing times and age-based classification systems become less effective when the distributor is no longer the gatekeeper controlling what consumers access.
b. The Broadcasting Act as it is currently drafted leaves large gaps in what is currently regulated, including, as we have discussed, on-demand content and web-only content which has not previously been broadcast. The advent of ultra-fast broadband is likely to see an explosion in content accessed on-demand rather than through linear broadcasting.
c. The facility to repackage and repurpose entertainment content for delivery to consumers in different forms means there are growing inconsistencies and inefficiencies at the interface between the statutes regulating entertainment content. Programmes produced or accessed in one format may fall under a different regulatory regime once repurposed for consumption in another e.g. depending on whether a programme is live-streamed, down-loaded on-demand, purchased online or as a DVD, it may be subject to different regulatory requirements even though the content has not changed.
These issues point to the need for a fundamental parallel review of the regulatory environment for the entertainment industry.
One option would be to explore a single regulator with jurisdiction over all news and entertainment content. Despite the obvious attractions in the idea of a single regulator, we believe there are real difficulties in combining the regulation of news media with the regulation of entertainment content. Critically, we have argued that the state must play no role in regulating the news media, but there is an arguable case for government to play in protecting the public from exposure to objectionable material and there is in our view clearly a role for government in protecting children from exposure to disturbing and harmful content. In these areas self-regulation or market controls may not be sufficient. Hence regulating the news media and entertainment under the same body creates immediate and fundamental problems.
Our preliminary view
We believe that given the rapidly evolving digital environment the primary focus of regulatory regimes must be content rather than format or mode of delivery. Mode of delivery can be an important factor in assessing the degree of risk to the public and therefore the strength of regulatory response required. However these are questions of degree rather than a reflection of the fundamentally different policy objectives underpinning the regulation of the news media and the entertainment sector.
Our suggestion, and we welcome views on it, is that all entertainment programmes, whether they be films, or serials, or reality shows, or otherwise, which involve no element of news content, should be dealt with in the same way.
A separate piece of legislation should make provision for classification (where that can practicably and sensibly be done in advance); content warnings so that viewers have an element of choice; and reviewing time guidelines to protect younger audiences. That legislation should be administered in an office separate from the new regulator that we propose. Whether that office should be state-controlled is a matter for further consideration. But we think it should have compulsory and not voluntary jurisdiction.
We believe that entertainment should be dealt with as a separate exercise. It is not strictly within our terms of reference, and we do not explore the matter further in this Issues Paper. But it has been necessary to make reference to it in working through the jurisdiction and nature of the proposed regulator.
We note that our view in this regard is consistent with the proposals contained in a recent Issues Paper published by the Australian Law Reform Commission (ALRC), the National Classification Scheme Review Discussion Paper.220 The ALRC proposes the introduction of a new Classification of Media Content Act, which would cover classification on all media platforms: online, offline and television.
The Act excludes news and current affairs. If adopted it would establish a new National Classification Scheme overseen by a single regulator. The proposed regime applies different levels of compulsion and control to content that is freely available to the public, including entertainment that is broadcast, and content that is access restricted. Content that would have to be classified before it was sold, hired, screened or distributed in Australia would include:
- feature length films produced on a commercial basis;
- television programs produced on a commercial basis;
- computer games produced on a commercial basis and likely to be MA 15 or higher;
- all media content containing explicit adult content or that is likely to be restricted;
- only voluntary classification for all other content.
The proposed new framework envisages:
- a greater role for industry in classifying content, allowing government regulators to focus on the content that generates the most community concern, and to ensure access to adult content is properly restricted;
- content will be classified using the same categories, guidelines and markings whether viewed on television, at the cinema, on DVD or online;
- changes to classification categories, with age references to help parents choose content for their children; and
- the federal Government taking on full responsibility for administering and enforcing the new scheme.
In our view the proposed Australian scheme may provide a valuable starting point for the review of the regulation of our own entertainment sector.