Chapter 6 - Regulation of the media – a new regulator

The issue of jurisdiction

A major question is which media agencies should be subject to the jurisdiction of the regulator that we propose. In our view there are two options, a voluntary model, or one in which a number of media are required to belong, with the membership of others being optional.

Voluntary

The first option is that it be left to members of the media, both traditional and new, to decide whether or not to join. We think it likely that the great majority of the traditional media, and some of the new, would join because of the advantages membership of the system would bring:

a. There would be a brand advantage. Membership of the system would mark them off as communicators with an assurance of responsibility and reliability. The Media Standards Trust has said:214

In an age where newspaper are competing for readers and advertising revenue with outlets which are not subject to any self-regulatory framework (such as blogs and social networking sites) a quality assurance mark can help guide readers towards publications which adhere to standards.

b. Only those members of the media who join would attract the privileges and exemptions granted to the news media by law. Statutes conferring such privileges and exemptions will be confined to those who belong to the proposed regulatory system. Steps have already been taken in this direction in the new Criminal Procedure Act, in relation to attendance at criminal proceedings in the courts;215 and a similar solution has been proposed in the Law Commission’s Review of the Privacy Act 1993 for media who are exempt from the Privacy Act.216

c. Subjection to a regulatory body can sometimes save the expense and trouble of court proceedings. A complainant who alleges he or she has been defamed, or that his or her privacy has been invaded, may opt for the cheaper and quicker mode of redress before the regulatory body rather than taking proceedings in court, as would otherwise be their entitlement.

d. The attractions of joining such a system are increased if the alternative is a form of government intervention.

e. It may well be that those bodies determining access to news conferences and other forms of meeting, formal or informal, may find membership of a complaints body a useful criterion for deciding on entry.

Members of the scheme would also be likely to induce others to join it. Those inducements might involve access to news sources, training, etc.  

It is our view that these advantages and inducements are likely to ensure that most of the media will want to belong. After all, the newspapers found it advantageous to set up their own Press Council without any legal requirement to do so. In our discussions with members of the industry in the course of this review we have been told that most members of the industry want to be known as ethical media. Brand is important.

There will remain a large number of communicators using the new forms of technology who either do not fall within the definition of news media that we are suggesting, or wish to stand outside any regulatory system.  We anticipate that many bloggers and website hosts would prefer it that way. Under this option they would be allowed to do so. Those people would have the right to say or publish anything they wish, however wrong and however extreme it may be, provided they did not cross the line of legality. They would remain subject to the law and could be prosecuted or sued in the courts if they went so far as to break the law. In the next chapter we consider whether there may be other forms of redress for those harmed by illegal conduct.  

Media not subject to the regulatory body we propose might also elect to develop their own individual methods of quality assurance. For example, in the course of our preliminary consultation we learned of discussions within some sections of the blogging community of establishing voluntary codes for bloggers.

Compulsory

On the other hand there may be concerns that the advantages of joining the regulatory system might not be enough for some of the media, which would prefer to forgo those advantages in favour of the freedom of an unregulated environment. The increased media competition from non-traditional media, which will be enhanced by the launching of ultra-fast broadband, and the prospect of diminished revenues, arguably create an environment for ethical corner-cutting. The less profitable the news media become the more they may seek to lower operational costs and diversify into forms of “infotainment” which may decrease their appetite for signing up to a regulatory body.

High concentration of media ownership connection is also a factor. If one of the large media players opted out of the regulatory system what would be the consequence? Media power is greater in the new converged environment: there is the opportunity for harmful or inaccurate content to be networked across multi-media sources. New Zealand’s weak and diminishing public service broadcasting system also has implications for standards and balance.

The second option for deciding who should belong to the proposed regulatory system is that a number of media would be required to belong, with others having the option to. The difficulty of this solution is in defining who should be required to belong.

One possibility is that the list should comprise the traditional media subject to the present regulators: the newspapers which are currently under the jurisdiction of the Press Council, and television and radio broadcasters which are currently regulated by the BSA. The difficulty with this solution is that it is backward-looking and based on the traditional delivery platforms of press and broadcasting.

Another possibility is that the “compulsory” list should consist of media which meet a set of prescribed criteria. Those criteria might be such as the following:

  • that the publication of news, and commentary on the news, is a significant part of the organisation’s enterprise;
  • that publication is to the public or a section of the public;
  • that publication is regular, rather than occasional;
  • that publication is undertaken as a business or commercial activity;
  • that the coverage of the news by the organisation is broad and general rather than confined to narrow specialisations.

    Each of these criteria contains general expressions which may require the exercise of judgement in particular cases, but in total they seem to us to reflect the characteristics of what most people recognise as a “news medium”. The last two criteria would exclude most bloggers. The last would exclude specialist publications of interest to only a small sector of the public. It seems to us arguable that the kind of publication which the public would want to be regulated is one which contains, in one place, a representative sample of the day’s news so that a reader, or listener, or viewer, can get an overall impression of the important things that “are going on in the world”.

    This way of dealing with the problem assumes that news organisations meeting listed criteria of the kind we have suggested must be subject to the regulator. Other organisations which provide news or commentary on a regular basis, but which do not meet all those criteria, would have the option of belonging or not. Bloggers and niche news sites, for instance, would fall into that latter category. They could join if they saw advantages in doing so, or remain outside the regulatory system if they preferred.

    Advantages and disadvantages

    There are advantages in both options. Voluntary membership allows more freedom for organisations, and is arguably more in accord with the ideals of freedom of expression. Partially compulsory membership involves less risk and would not be susceptible to allegations of state control, because even though membership would be compulsory for some, it would be independent of government. We seek views on the preferable option.

    Whichever option is chosen, there will be some organisations which stand outside it by choice. These would be unregulated, and could say anything they liked, provided they stayed within the boundaries of the law. They would be liable to legal sanctions in the courts if they committed legal wrongs such as defamation, contempt of court or invasion of privacy, but they would not be subject to the jurisdiction of the proposed regulator. That is not to say, however, that the regulator could not receive complaints about them. If it did, it would have no power to impose any sanctions. But there would be no reason why, if the regulator was concerned about the conduct of some elements in the unregulated media, it could not draw that conduct to public attention in a report. In that regard it would not be dissimilar to the Privacy Commissioner who has no jurisdiction to deal with complaints about the news media, but who nonetheless has power “to make public statements in relation to any matter affecting the privacy of the individual or any class of individuals”.217

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 >.

Criminal Procedure Act 2011, s198.

Law Commission, Review of the Privacy Act 1993 (NZLC R123, 2011).

Privacy Act 1993, s13(h).