Chapter 6 - Regulation of the media – a new regulator
The requirements of effective media regulation
In our view, the following are the requirements of effective media regulation.
The regulator must be independent. As we have said, it must be clear that it is not subject to the control or direction of either the government or industry.
There are a number of facets of independence: membership, form, and funding. In terms of membership, there should be a rigorous appointments process undertaken in the set-up stages by an independent panel, and later, in relation to replacement members, by the authority itself. A majority of the members should be from outside the industry and be representatives of the public. But there should be some industry representation. The panel needs to be informed about how the industry works, and the very real pressures of time, resource and expertise it faces. The industry members should contain representatives of both proprietors and journalists. Once appointed, members should have fixed terms and only be able to be removed for cause, and not at the instigation of either the industry or the government.
As to form, the regulator should have its own independent existence, preferably in the shape of an incorporated society. As a result of a recommendation in the recent review, the New Zealand Press Council is in the process of becoming an incorporated society.
Independence requires that funding should be adequate and secure, not able to be reduced at industry whim. Lack of resources inevitably results in the cutting of corners. It can lead to a failure to encourage complaints, and to a tendency to deal with those it receives less thoroughly than is desirable. It can mean a failure to undertake other essential functions such as education and reviews. The failure of several press councils internationally is in part explicable by inadequate funding. While the industry should contribute the major part of the funding, we think there is a role for a state contribution as well. The state has an interest in a responsible media. But it is critical that state funding has “no strings attached”, and that it does not give the state the power to influence the composition or operation of the regulator.
The regulatory body must be able to be easily accessed by members of the public. Its existence, and the mode of making complaints, should be clearly and regularly publicised both online and in the traditional media outlets. Complaints should be free, or at the very least inexpensive. The authority’s processes should be well publicised, efficient and quick. Complaints without obvious merit should be filtered at the outset by a subcommittee or executive. That is currently done by the Press Council; the BSA is handicapped by lack of such a process. The complaints which proceed should be dealt with as efficiently as possible. Ponderous legalistic process is to be avoided.
It is also good practice for the regulator to act as an appeals body. Complaints should be directed in the first instance to the media organisation complained against, and should only proceed to the regulator if the media organisation’s resolution of the complaint does not satisfy the complainant. This will ensure the number of complaints dealt with by the regulator remains manageable. The public will also have more respect for a media organisation that is seen to deal appropriately with complaints against it.
Transparency requires that codes of practice, decisions and the reasons for them should be made available not just to the complainant but also to the public on the regulatory body’s website. Every year they should be summarised in tabular or other easy-to-understand form in the annual report.
The body must be manifestly seen to be effective. Its effectiveness should be demonstrated in the resulting quality of the media. Decisions should be tough enough to give the public confidence, while nevertheless maintaining proper balance and respect for freedom of the media. A regulator which upholds only a minute percentage of complaints does not inspire confidence.
A regulatory body is more effective if its function extends beyond simply hearing complaints. It should proactively monitor the media and take action against conduct which it deems unworthy. Complaints present a partial and fragmented picture. They are dependent on a member of the public having the energy, time and will to complain. There is no guarantee that there will be enough self-appointed media monitors to ensure that most of the ground is covered. It would be preferable for the regulatory body itself to be able to keep an eye out for undesirable practice, particularly in relation to practices leading up to publication as opposed to the content of publication: investigatory practices are often less visible to the public. Currently neither the Press Council nor the BSA have a clear monitoring role of this kind: they act on complaints, although the BSA is by its act empowered to issue advisory opinions as well.
We do not see any conflict between these “adjudication” and “policing” roles. Other regulators have them. It is more economical and effective to locate them both in one body.
The Media Standards Trust in the United Kingdom is strongly of the view that an effective regulator should be able to act without receiving a complaint:209
… the public expects a press self-regulator to monitor standards within the industry, [and] proactively investigate possible breaches of the code. … The PCC should have an obligation to investigate possible breaches of the editorial code of practice (the code) regardless of whether or not it has received a complaint.
We believe that justice is better done to all those involved if there is a right of appeal, and we therefore support the concept of a media appeals body which would sit above the first instance regulator of which we have been speaking. It would be similarly independent. Currently decisions of the BSA can be appealed to the High Court; there is no right of appeal from the Press Council. The Advertising Complaints Board is subject to appeal to an appeals authority.
Those constituting the regulatory body must keep abreast with developments in regulation in other sectors, and internationally. Relationships should be maintained with media regulators in other countries. While local needs may not be identical with those in other jurisdictions, much can be learned from developments, successes and failures elsewhere. The media regulatory body should also maintain relationships with other agencies whose work may impact on or inform its own, such as the Advertising Standards Authority and internet bodies like Internet New Zealand and NetSafe.
It is obvious that decisions of a media regulator must mean something. They must be such that the media are induced to comply with them. The only sanction that the New Zealand Press Council can currently impose is a requirement agreed to by its member media organisations that they will publish decisions against them. That is not a negligible sanction, provided the publication of the decision is prominent and adequate. A requirement to publish an adverse decision should remain one of the sanctions of the new regulatory body we envisage. It should be published in all versions of the medium in question: online as well as hard copy or broadcast.
We do not propose that statute should prescribe the sanctions that the regulator can impose. But it is not impossible for agreed sanctions to go well beyond required publication of adverse findings. Media organisations which join the system can be bound by contract and it is not beyond the bounds of contractual undertakings for media organisations to be obliged to take down an offending publication from their website when so directed. This would seem to us to be a necessary sanction. There is not much point in apologising for a publication if the content of it remains readily accessible. No doubt the power to order such a remedy would need to be exercised with care, and in proper balance with the Bill of Rights Act guarantee of freedom of expression. We understand that advertisers whose advertisements are found by the Advertising Standards Authority to be non-compliant invariably take them out of circulation.
We also consider that the power to require publication of an apology, correction or retraction should form part of the armoury of sanctions, as should the granting of a right of reply to an aggrieved citizen.
Whether there should be power to order compensation to an affected person is a more moot point. An agreed settlement involving such a payment is one thing: power to order it is another. The BSA currently has such a power in relation to invasions of privacy but nothing else; the Press Council does not have it at all. Any power to grant compensation should set a relatively modest maximum.
Monetary penalties are even more problematic. Once again the contract entered into by those joining the system could probably provide for such monetary obligations, but unless they were very significant they might have little impact on a large media corporation, and, conversely, have a disproportionately adverse effect on smaller organisations. They might create more ill-will than they are worth. They would raise issues of legal representation, and engender an undesirable adversarial approach. For these reasons we do not currently favour this sanction.
However it may be worth considering an order to pay costs. This would serve in part as a sanction, but would also contribute to the funding of the regulatory body. The BSA has such a power at the moment. The maximum quantum should not be such as to cause adverse effects similar to those discussed in the context of fines.
It has not been customary in decisions of either the Press Council or the Broadcasting Standards Authority to name the journalist or other media employee who has been guilty of the transgression. That reticence is understandable in most cases but we do believe that in serious cases a decision may acquire added force if the transgressor is named. Even if that is not done, one would expect the media agency to at least inform the responsible employee of the decision and to take steps to ensure the conduct is not repeated. We understand that this does not always happen at the moment.
Another essential feature of good media regulation is the existence of a code of practice. Education, both in journalism training schools and on the job, is an essential feature of good regulation, so the code must be well-known by those employed in the industry.
The Broadcasting Standards Authority has, in consultation with broadcasters, formulated a set of codes. The Press Council has a statement of principles which serve the same function as a code but are expressed at a greater level of generality. The journalists union likewise has a code of ethics.210 As we saw in an earlier chapter, certain recurrent features are common to all of these: for example, the emphasis on accuracy, correction of mistakes, fairness, balance, respect for privacy, and concern for the interests of children. There are a number of questions to consider.
How and by whom should the codes be prepared? Independence, the heart of a free press, is best assured if the government plays no part in the formulation of codes. Rather they should be formulated by the regulatory authority itself or an equivalent body composed of industry representatives and members of the public. It is important that industry members who understand the operational requirements of their trade be involved, but members of the public must also be able to communicate and address the concerns which affect them. There should be wide consultation on draft codes, both in industry and the general public.
We believe that surveys of the public should be undertaken to find out what citizens expect of the media in this modern age. Do the current standards still reflect what we expect of our media? Are there different expectations of content accessed on-demand and that which is live streamed, and between free-to-air television and pay television? If so, do those expectations relate to any more than standards of decency? Are there different expectations as to accuracy between a once-a-day print newspaper and its on-line version which can be updated and changed on a constant basis? How important is balance in a single news provider given the range of views available in other media? News media codes should reflect the public sentiment on such matters. Careful consideration should also be given to the implications for a code of the new forms of media. To what extent should the traditional media utilise material from the social media or from “citizen journalists”? Does the rise of blogging affect our traditional view of the line between opinion and fact?
The second issue is where a code should sit on the scale between general principle and more detailed description. Generality allows more discretion and therefore flexibility for both the media and the regulatory body, but provides less certainty and more room for differences in interpretation. On the other hand, detailed codes provide more certain guidance, but do not allow the same flexibility in marginal cases and may not be comprehensive in their coverage: some matters may not be covered at all.
Current models differ very substantially. As noted, the Press Council relies on broad statements of principle. The BSA codes rely on a combination of general principles and guidelines as to their application, but the guidelines have in some instances hardened into something more like rules. Some overseas examples are more detailed than either – for example the British Broadcasting Commission’s Editorial Guidelines.211 The right balance may be somewhere in the middle. Currently we prefer something more detailed than the Press Council’s principles. The Review of the Press Council expressed a similar view.212
Finally there is the question of content. The essential elements are the principles of good journalism to which we have already alluded. In our view the bar should be set quite high to maintain public confidence.
Each society has its own particular sensitivities. Codes should recognise these, and not follow international models slavishly. There may need to be distinctions drawn between the treatment of public figures and private persons. Subtle distinctions may also be necessary as to how central concepts are applied to different platforms of delivery. The goal should be convergence, not uniformity. The differing circumstances of the different kinds of media need to be reflected. Both pictures and words can have permanent existence and their combined operation can create effects far beyond what was the case 50 years ago. But the impact of pictures can still be greater than that of words, and extended footage of sensitive material or grieving persons can be more intrusive than written descriptions of the same material.
It will also need to be decided whether pay TV and free-to-air TV need to be differentiated in the codes, the one allowing more freedom of choice than the other. The codes should also regulate not just what is published, but also how information is obtained. Deceptive and unfair information-gathering practices must be controlled. Presently the BSA can hear complaints about such practices only if there has been a broadcast. We would not wish to see a new regulator’s jurisdiction so confined.
Finally, it is important that codes be regularly revised. New issues emerge, technologies change, and expectations can change too, over time.
Our conclusions are in line with those of Gavin Ellis, who wrote in 2004 advocating a model of regulation based on the Advertising Standards Authority:213
An all-media standards body could be formed … so long as it had a significant majority of public members, a transparent appointment process utilising the Office of the Ombudsman, a former member of the judiciary at its head, a mediation service as an intermediate stage between initial complaint to a media operator and formal complaint, plus meaningful powers of redress.
Removing the state from regulation of legitimate free expression is a laudable aim. So, too, is the creation of a body with jurisdiction over both electronic and print media. It would not only account for convergence but also remove the current double standard over standards.
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 >.