Summary and preliminary proposals

Part 1: Who are the “news media” and how should they be regulated?

6. Underpinning these questions is the long standing presumption that the news media play a vital role in a healthy democracy and this role requires special legal protections. This is reflected in a long list of legal privileges and exemptions in the New Zealand statute book which we outline in detail in chapter 3.

7. The reporting of news and current affairs involves a strong element of public trust. There is an expectation that the news media, who are granted legal privileges and exemptions, will exercise their publishing rights responsibly. 

8. Sometimes that expectation is contained in an express legal requirement that reporting be “fair” or “fair and accurate”. Sometimes it is contained in a requirement of “accreditation”. Sometimes that requirement is justified by adherence to a code of practice and oversight by a regulatory body. At other times the expectation of responsibility is simply assumed. 

9. Another presumption underpinning the first two questions of our terms of reference is that the law, or some form of regulation, has a role to play in holding the news media accountable to the public for the exercise of their powers.

10. All publishers are subject to the law as it is enforced in the courts. As far as other forms of regulation are concerned, in New Zealand, only broadcast media are held legally accountable to standards through the Broadcasting Act 1989. Print media have traditionally been subject only to industry self-regulation through the Press Council, membership of which is voluntary. Because one of the critical functions of the news media in a democracy is to act as a watch dog on government, there is a powerful argument for ensuring the state does not have any censorship powers over the news media. Traditionally this has been the primary justification for ensuring the newspaper industry has not been subject to statutory oversight in New Zealand and many other Commonwealth countries.

 

The policy problems:

11. Before the advent of the internet there was little practical necessity to consider the question: ‘who are the news media’?  The ‘news media’ simply comprised the state-funded public service broadcasters and the large private industry which between them produced the nation’s daily newspapers, television and radio news and current affairs programmes.

12. These were the entities, most of them privately owned, entitled to access the special legal privileges set out in the statute book, and these were the entities held accountable to the legal and ethical standards associated with the exercise of this type of speech.

13. However in the era of the read/write web, the traditional news media, which we refer to in this report as the mainstream media, have lost their monopoly on the generation and dissemination of news and commentary. They must now compete with a range of new digital publishers, including news aggregators and current affairs bloggers, who are undertaking similar types of publishing as the mainstream media. In chapter 2 we provide an overview of this rapidly evolving new media landscape.

14. At the same time the digital environment is resulting in increasing convergence between formerly distinct sectors of the media and communications industry.

15. On one level this convergence is resulting in the collapse of the boundaries which have traditionally separated the print and broadcast segments of the news media. Increasingly these once discrete entities are transforming themselves into multi-media companies, capable of producing news in a rich mixture of text and audio-visual formats, disseminated on an ever expanding array of platforms and devices, and promulgated via social media.  

16. This new decentralised and democratised model for the generation and dissemination of news and current affairs is enriching public debate. It has the potential to strengthen democracy by increasing participation in public affairs; widening the sources of information available to the public; providing a greater diversity of opinion and strengthening the levels of scrutiny and public accountability.

17. However it also creates a set of policy and legal challenges, including the following two key issues which are the focus of this review:

  • a lack of clarity in law as to which types of publishers should qualify for the statutory privileges and exemptions which at the moment apply to the “news media”;
  • a lack of regulatory parity, both between different types of traditional news media (print and broadcasters) and between traditional news media and the new digital publishers.
 

18. These questions are not merely academic, but are producing real problems for consumers and producers of news. Examples of these problems include:

  • At present there are gaps in the regulation of some types of content produced by traditional news media. For example, while it is possible to complain to the Broadcasting Standards Authority about a serious inaccuracy in a news or current affairs programme that is broadcast on radio or television, it is not possible to complain about exactly the same content made available on-demand on a broadcaster’s website, or about the text in a story on a broadcaster’s website. 
  • Similarly, while the provision of audio-visual content assumes an increasing importance in the news offerings of newspaper websites, these companies are not subject to the same statutory regulation which applies to other broadcasters.
  • Meanwhile, new web-based publishers of news and current affairs, both commercial and amateur, are not currently accountable to any regulator or complaints system – other than the basic legal framework which applies to all citizens, restricting speech which defames or causes harm.
  • On the flip side, some new publishers are facing obstacles in their ability to gather news and access information or places, such as the press gallery or news conferences, because they are not always regarded as “bona fide” members of the news media.

19. Over and above such pragmatic and competitive concerns looms the much larger public interest question: how to protect and nurture the generation and dissemination of news and current affairs in this dynamic new environment?

20. These are just some of the drivers which sit behind the first two questions posed in our terms of reference. From a public policy perspective they require us to consider whether, and in what circumstances it may be in the public interest to:

  • extend the legal privileges and exemptions which currently apply to traditional news media to some new publishers; and
  • require this category of publishers to be held accountable, via some sort of regulatory regime, to the types of journalistic standards that have traditionally applied to news media.

21.In chapters 3 and 4 of this paper we provide a detailed analysis of the arguments for the existence of this system of privileges and accountabilities for the news media, and suggest why it is important both to retain this system for traditional news media, and extend it to some other publishers.

 

Part 1: A summary of our preliminary conclusions and proposals

22. With respect to the first policy question, is it in the public interest to extend the legal privileges and exemptions which currently apply to traditional news media to some new publishers, our preliminary view is “yes” - provided these privileges are matched by acceptance of the countervailing standards and accountabilities which have traditionally applied to the mainstream news media.

23. Our survey of New Zealand’s web publishing environment shows there are a number of new web-based entities taking on some of the democratic functions traditionally assigned to “the press”: providing a public watchdog on corporate and state power and facilitating the free flow of information and ideas among citizens.

24. As a matter of principle we believe the legal and regulatory environment should encourage diversity in the news media market.

25. New Zealand is an increasingly ethnically and socially diverse nation and it is critical that this diversity of view points and interests be reflected in our national debates and in the formation of public opinion.

In our view these new publishers should, in principle, enjoy the same media protections and privileges accorded traditional news media.

26. This was also the conclusion reached by the Canadian Supreme Court in 2009 when considering the scope of defences available in defamation actions. Writing for the majority, McLachlin C.J. expressly recognised and endorsed the complementary role of emerging new media:1

[t]he traditional media are rapidly being complemented by new ways of communicating on matters of public interest, many of them online, which do not involve journalists.

These new disseminators of news and information should, absent good reasons for exclusion, be subject to the same laws as established media outlets.

The second question then is how to define which publishers should benefit from the system of legal exemptions and privileges currently reserved for the “news media”?

27. As we explain in chapter 4 of this Issues Paper, these legal protections are designed to protect a special type of speech with special characteristics – including, most significantly a commitment to truthfulness and accuracy.

28. The type of speech the law affords special protection must be exercised responsibly.

29. We therefore put forward for public discussion the following set of criteria which we propose might provide a statutory definition of the “news media” for the purposes of accessing the legal privileges and exemptions.

For the purposes of the law the “news media” includes any publisher, in any medium, who meets the following criteria:

  • a significant proportion of their publishing activities must involve the generation and/or aggregation of news, information and opinion of current value;
  • they disseminate this information to a public audience;
  • publication must be regular;
  • the publisher must be accountable to a code of ethics and a complaints process.

30. It is important to note this definition is not intended to exclude others from reporting or commenting on the news. It simply proposes a set of statutory criteria to resolve the current uncertainty as to which groups and individuals qualify for the legal privileges and exemptions assigned to the media. It does not favour a particular category of publisher, traditional or new media, but rather seeks to protect a special type of speech and publication purpose.

31. The implication of this definition is that those publishers who wish to be regarded as the news media for the purposes of the law must be subject to a complaints process.

32. The second question posed by our terms of reference is to which complaints process should the currently un-regulated news media be held accountable – the Broadcasting Standards Authority (BSA) or the Press Council?

33. In chapter 5 we consider the strengths and weaknesses of these two existing regulatory bodies, the Press Council and the BSA. Gaps and inconsistencies already exist in how these two bodies cover traditional news media and our preliminary conclusion is that neither is well suited to respond to the rapidly evolving converged new media environment.

34. In New Zealand representatives of both print and broadcast media have commented on the inevitability of increased convergence and its implications for regulation, as per the following extract from a Television New Zealand response to a 2008 government consultation on regulation in the digital era:2

The traditional reasons for regulating broadcasting in the traditional ways are fast disappearing. Distinctions between broadcasting, telecommunications, print and other forms of media are becoming increasingly blurred. This calls into question the logic of maintaining separate regulatory frameworks – BSA, ASA, Press Council.

35. In chapter 6 we review the various regulatory models for news media and how they are applied in democracies around the world and note that the regulation of the news media and the wider communications sector is the subject of major reviews in a number of overseas jurisdictions, as the impacts of convergence and digital technology challenge the traditional format-based approaches.3

36.Our preliminary proposal, outlined in detail in chapter 6, is to establish a new, independent regulator for all news media, regardless of the format or delivery platform.

37.The model we put forward for discussion in this paper is underpinned by the following fundamental principles:

  • A free press is critical to a democracy. The Bill of Rights guarantee of freedom of expression must lie at the basis of any news media regulation. It requires that sanctions be proportionate, that accountability rather than censorship should be the guiding principle, and that any regulation should be free of state control.
  • 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 growth in the generation of news and current affairs in New Zealand.
  • The system of regulation should be flexible and platform neutral, although standards may sometimes need to take account of different modes of delivery or types of publisher.
  • Any system of media regulation should not inhibit the freedom of speech of individuals who are not part of the news media. There should remain a right for individuals to speak out, however unorthodox or even wrong their views may be.

The new regulator we are proposing would have the following features:

  • It would be independent of both government and the news industry.
  • Appointments to the regulator would be by an independent panel. The regulator would comprise industry and non-industry representatives, the latter being the majority.
  • The regulator would be responsible for working with the various sectors of the industry and consulting with the wider public to devise the set of principles by which it adjudicates. As is already the case under the current broadcasting regime, we envisage there being a number of different codes based on these principles but appropriate to different news producers and publishing environments – for example bloggers may devise their own codes.
  • The regulator would be recognised by statute and funded by contributions from members and subsidised by the state.

38.As is currently the case, publishers themselves would be responsible for trying to resolve complaints in the first instance, and the regulator would effectively adjudicate only those complaints which had not been satisfactorily resolved between the complainant and the publisher. Many traditional and new web-based publishers have robust processes for responding to readers’ concerns. We do not propose disturbing those arrangements.

39. Adequate resourcing is crucial for the effectiveness of our proposed regulator. However the burden of funding this body should not fall solely on news publishers.

40. It is in the public interest that as many news publishers, including small start-ups, belong to such a standards body and a lack of financial resources should not be an impediment to joining. The state and wider public have a strong interest in a robust and ethical news media and we see no reason why this body should not receive state support, provided there are no strings attached to the appropriation. There are precedents for such arrangements in other jurisdictions.4

Which publishers would be subject to the new regulator?

41. Our proposed statutory definition of “news media” outlined above, implies that all publishers who wish to access the legal privileges of the news media, such as exemptions from the Privacy Act, would have to be subject to the independent complaints body.

42. Beyond that self-selecting criterion, we seek submissions from the public and stakeholders as to whether any publisher should be compelled by statute to be subject to the body or whether it should be entirely voluntary.

43. In chapter 6 of the Issues Paper we put forward two options for consideration:

Option one:

  • Membership should be entirely voluntary. Publishers who wish to have the legal standing of news media would join, because only by being subject to this complaints body would they meet the statutory requirements of “news media”.

Option two:

  • Membership should be compulsory for some categories of news publishers who meet a proposed set of criteria including for example:

those for whom publication is undertaken as a business or commercial activity;

those who are providing broad or general news services to a wide public.

  • Membership would be voluntary for others.

44. Other criteria which may be appropriate to determine compulsory membership might include audience size and reach. We seek public views on those issues.

Entertainment

45. The new regulatory body we propose in this Issues Paper would be set up to deal with unresolved complaints relating to news and current affairs content. That was the focus of our terms of reference. 

46. However for many corporates, the generation and dissemination of news and current affairs forms only one part of their activities. The commissioning, production, purchase and distribution of entertainment content is an increasingly dominant part of the core business of most media companies.

47. In New Zealand entertainment content is currently subject to two different statutory regimes: films and videos are subject to the statutory regime set out in  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. There is some overlap between the two statutes, as broadcasters must not broadcast any films that have been banned or restricted under the censorship regime.

48. 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.

49. While it is beyond the scope of our terms of reference to explore these issues in any depth, we believe there is a strong public interest in continuing to provide regulatory controls on some types of entertainment content, most notably free to air content which is harmful to children. We note that the issue of entertainment regulation has been under active consideration by the Ministry of Culture and Heritage and the Office of the Chief Censor within the broader context of content regulation in the digital era. 

50. We also note that the Australian Law Reform Commission has recently released a report recommending radical reform of that country’s regulation of entertainment content across all platforms and those proposals may provide useful material for those considering options for New Zealand.5

Grant v Torstar Corp [2009] SCC 61.

TVNZ “Separating Roles: A proposed approach to the ‘’Future of Content Regulation’’ consultation paper (2008).

In Britain a wide ranging inquiry into news media standards and regulation is being led by Lord Justice Leveson. For the full terms of reference and supporting information see  < www.levesoninquiry.org.uk >. In Australia there are currently two reviews into media regulation underway. One, focused on the news media, is being led by Federal Court Judge Ray Finkelstein. The other, a broader review, led by the Department of Broadband, Communications and the Digital Economy, is considering the implications of the converged media and telecommunications market for a range of policy issues including licensing and regulation; spectrum allocation and management; local content requirements; media diversity, competition and market structure and community standards. The more tightly focused Finkelstein review is expected to provide its findings to the Convergence Review in early 2012.

Examples of self-regulatory media bodies that receive some funding from the state, include Finland (where half the costs of the council are funded by the state); Germany (where the Council is part funded by the state), and Quebec, (part state-funded). In Germany this funding is underpinned by statute. The stated purpose of the statute is to guarantee the independence of the complaints committee of the German Press Council. The state is barred from interfering in any way with the work of the German Press Council.

In September 2011 the Australian Law Reform Commission published its report and recommendations for a radical reform of Australia’s regime for classifying and managing offensive and restricted content. Again, these proposed reforms of the traditional media classification system for television programmes, films, videos, and computer games, are designed to provide a robust regulatory response to the new multi-platform delivery channels now available. For details see Australian Law Reform Commission National Classification Scheme Review (ALRC DP77, 2011) < www.alrc.gov.au >.