Chapter 1

The New Zealand context

Standards and accountability in a converged environment

1.46Unlike the Leveson and Finkelstein Inquiries, our own review was not driven by a crisis of confidence in the mainstream media. Rather, it was prompted by media convergence, and a growing concern about the disparity in the ethical and legal standards and accountabilities that applied to mainstream and new media in this converged environment.

1.47From a consumer’s perspective this means broadly similar news and current affairs content accessed digitally is subject to different standards and regulatory regimes – or none at all – depending on whether it has been created by a broadcaster, a newspaper company or an online publisher.

1.48 British academic Lara Fielden, who has published widely on the challenges of standards regulation in the age of convergence, illustrated the problem in this way:46

If a single screen can provide the consumer with a blend of content from a mainstream broadcaster, an online newspaper, a video on-demand service, and an internet blogger, all at the same time, perhaps even all authored by the same journalist, then the wholly different regulatory regimes to which each element is subject begin to feel increasingly arbitrary and irrational both to consumers and providers. Nor, whether consumed separately or in combination, is the regulation transparent, and therefore meaningful, to the public. It fails to enable the public to discriminate between regulated and unregulated content, and to make informed choices and selections. Instead brand associations may be relied on which ... can be misleading and in particular fail to support younger consumers and newer providers.

In Fielden’s view, unless policy makers adopt a “first principles” approach to resolving this regulatory labyrinth “public trust across media will be put at risk.”47

The regulatory gaps and inconsistencies

1.49Historically, for reasons we explore later in this report, New Zealand’s print media have been governed by a self-regulatory body, the Press Council, which responds to public complaints and adjudicates these against a set of agreed journalistic principles. Broadcasters, on the other hand, are currently regulated by an independent Crown entity, the Broadcasting Standards Authority (BSA), a government appointed complaints body whose mandate is to enforce a series of statutorily-backed industry codes designed to maintain standards of decency, fairness, accuracy and privacy in free-to-air and subscription broadcasting services.

1.50However, significant gaps and contradictions are emerging in these parallel systems of state and self-regulation for print media and broadcasters as the channels for delivering news converge in the multi-media digital environment.

1.51 The absence of any form of regulatory oversight for some content, and the application of different standards for others, is creating problems for both consumers and producers of news. For example, under the Broadcasting Act 1989 the public are not able to complain to the BSA about the content of:

1.52Similarly, 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.

1.53Meanwhile, new web-based publishers of news and commentary on 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.

1.54On the flip side, some new publishers informed us they can face 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.

1.55Since the publication of our Issues Paper in December 2011 the major broadcasters have set up a self-regulatory complaints body, the Online Media Standards Authority (OMSA), to deal with any complaints relating to news and current affairs content that is published on broadcasters’ websites – including on-demand content that has not been previously broadcast. We discuss this and other initiatives to address the problems with the current regulatory systems in chapter 5 of this report.

1.56Foreshadowing this discussion here, we point out that while these initiatives show a strong willingness on the part of the industry to provide accountability, they do not address the fundamental problems created by convergence – a lack of regulatory parity between print and broadcasters and an absence of accountability for new media undertaking “news-like” activities.

1.57 This lack of parity between print and broadcast media is likely to become increasingly problematic over the next five years as the roll out of ultra-fast broadband (UFB) creates increased opportunity and demand for high quality video content accessed via the internet. In this environment the distinction between traditional broadcasters and other producers of streamed video content will become increasingly blurred and irrelevant to consumers.49
1.58A number of New Zealand’s major broadcasters argued in their submissions to this review that in this converged environment it was inequitable for business, and undesirable for consumers, to retain a dual regulatory model. MediaWorks argued that the current dual regulatory regime created an “asymmetric and unfair regulatory environment” for New Zealand media,50 while Television New Zealand argued that a single regulator would provide “a level playing field across all media, ensuring fairness and consistency, and promoting cost efficiencies and ensuring greater accessibility for consumers.”51

Standards and accountability for new media

1.59As Lord Justice Leveson noted in his report, the speed of technological change is creating unprecedented competitive and economic pressures on the mainstream media.52 The public no longer relies exclusively on their local press for their news: at one end of the spectrum they have access to the best journalism from around the world, much of it free, and at the other, they can mine Twitter, Facebook, YouTube and millions of blog sites for news and information. The fact that the mainstream media no longer has a monopoly on breaking and disseminating news has profound implications for almost every aspect of their business, including, in Lord Justice Leveson’s view, the maintenance of professional and ethical standards:53

All of this provides competition and, in particular, raises profound questions about the ability of any single jurisdiction to set standards which, in a free and open society, can be breached online with the click of a mouse. ...
On the other hand, that is not a reason to race to the bottom and accept lower standards which do not respect the rights and liberties of individuals.

1.60The pressure on standards, and the effects on the mainstream media of competing with new digital publishers who are not subject to journalistic codes featured as a major concern in a number of submissions to this review. BSA chair Peter Radich has been explicit about the tensions this lack of parity creates for traditional broadcasters, stating in the BSA’s 2010 Annual Report:54

We are acutely aware of the challenges involved in maintaining standards in the segment of traditional broadcasting when similar standards do not apply to Internet broadcasting. It is time for the Broadcasting Act to be reviewed.

1.61In a submission to our review Allied Press, publisher of the Otago Daily Times, emphasised what it perceived as the corrosive effects of this new breed of unregulated new media on the mainstream media:55

There seems to be developing circumstances whereby web-based and electronic media are able to flagrantly breach conventions, contempt laws and other rules without sanction, while the print media is obliged by practice, and, by formal action against individual newspapers, to observe them – to commercial disadvantage.

1.62As discussed earlier, all publishers, including bloggers and web-based media, are in fact subject to New Zealand law. This was demonstrated in September 2010 with the conviction of blogger Cameron Slater on charges relating to breaches of non-publication orders on his blog Whale Oil Beef Hooked. The prosecution followed Mr Slater’s long-running campaign against the use of suppression orders by the courts.56

1.63However, this prosecution was perceived by some as a long overdue response to a much more pervasive problem relating to the lack of standards and accountability of some web-based publishers. Allied Press’s submission encapsulates one of the important drivers behind this review: in the converged media environment mainstream publishers, who are bound by professional codes and standards, now find themselves in direct competition with unregulated newsmakers.

1.64In chapter 2 of our Issues Paper we described the broad spectrum of online entities who are now engaged, to a greater or lesser degree, in generating, curating, aggregating, and disseminating news and commentary on matters of public interest to New Zealanders. These include the traditional print and broadcast companies (who are now converging to become multi-media companies publishing on a variety of devices and platforms); web-only news and news aggregation services; and a diverse community of bloggers whose primary focus is news and current affairs.

1.65One of the key policy problems we address in this report is determining where to draw the line between those publishers who should be subject not just to the law of the land, but also to the higher ethical standards and accountabilities which have traditionally applied to news journalism.

1.66In responding to this question, we also determine which of these new publishers should have access to the legal privileges and exemptions which are granted to the news media. As we discuss in the following chapter, the news media have traditionally been accorded a special legal status in recognition of the critical function they perform in a democracy. These legal privileges and exemptions are designed to ensure the news media have access to critical institutions such as the courts and exemptions from statutes, such as the Privacy Act 1993, to ensure they can gather and disseminate the news. However, most of the statutes conferring these privileges and benefits on the news media were drafted in the pre-digital era and so do not define what is meant by the term “news media.”

1.67 Judges in our courts are sometimes now confronted with bloggers and other new media wishing to report on the proceedings of a trial or hearing. While judges have the discretion to determine whether or not to permit these activities, they also confront the question as to whether some of these new publishers might not claim a right to report alongside mainstream media.57

1.68These policy problems give rise to our terms of reference. In essence they require us to answer two dependent questions:

1.69Crucially, we are then required to recommend what form that accountability should take. Is it sufficient for one, or all, of the existing complaints bodies, the Press Council, the BSA or the newly established OMSA, to extend their jurisdiction to fill the existing gaps?

1.70Or are the changes in how news and current affairs are produced and accessed in the digital age so profound as to demand an entirely new approach?

46Lara Fielden Regulating for Trust in Journalism: Standards Regulation in the Age of Blended Media (Reuters Institute for the Study of Journalism, University of Oxford and City University London, 2011) [Regulating for Trust in Journalism] at 15.
47At 2.
48For example, see Broadcasting Standards Authority Davies and Television New Zealand Ltd 2004-207. The complainant, who found himself out of time for complaining about the original television screening of an episode of Fair Go, lodged a complaint over the online version, which was still available on-demand via the broadcaster’s website. The BSA held it could not hear the complaint.
49The New Zealand Government is investing $1.5 billion in the roll out of ultra-fast broadband (UFB) infrastructure over ten years.
50Submission of MediaWorks NZ Limited (11 April 2011) at [11].
51Submission of Television New Zealand Limited (4 April 2011) at [16].
52Leveson Report, above n 33, Executive Summary at [16].
53At [17]–[18].
54Broadcasting Standards Authority Annual Report (2010) at 4 – 5.
55Submission of Allied Press Limited (6 March 2012) at 2.
56See Police v Slater [2011] DCR 6. Mr Slater appealed to the High Court against the conviction and sentence imposed. The appeal was dismissed on 10 May 2011, but Mr Slater was subsequently granted leave to appeal to the Court of Appeal in relation to one question of law, as to whether the information or material posted on the Whale Oil blog constituted a “report” or “account” of proceedings in breach of the provisions of the Criminal Justice Act 1985.
57One relevant example brought to our attention involved the Auckland website allaboutauckland, that was asked to obtain some form of media accreditation as part of its application to video record the proceedings of an Environment Court hearing in January 2013 <>. While the site was granted a three-month Press Council membership, in the event leave to record the hearing was not granted.