1.2Using hand-held internet-connected devices such as smart phones and tablets, citizens can simultaneously surf the internet, conduct face-to-face conversations with friends or colleagues across the world, trade shares, access a plethora of news and entertainment, and create and distribute their own multi-media content to a potentially global audience using platforms such as YouTube and Twitter.
1.4These new communication technologies are also having profound impacts on the mainstream news media. Old format-based distinctions between print and broadcasting are dissolving as news media companies create and distribute content in a variety of formats and channels for access via an array of devices. And increasingly, mainstream media are harnessing the power of social media and user-generated content to source, promote and distribute their own content.
1.6This review is about the laws and standards which apply to different types of communication in this converged media environment.
1.7All those who publish in New Zealand, whether as individuals or as entities such as news media companies, are subject to the basic legal constraints designed to protect citizens’ interests in their reputation, privacy, personal safety and right to a fair trial. Within these minimal constraints, citizens are free to exercise their freedom of expression, including publishing views which are extreme, false, misleading and/or offensive to some.
1.9The terms of reference for our review span two separate but overlapping sets of issues: the first of these relate to the news media and require us to consider who should be subject to the regime of special privileges and countervailing responsibilities which have traditionally applied to the news media now that anyone can break news and disseminate information to a potentially mass audience.
1.10 Specifically, our terms of reference required us to address two questions relating to the news media. First:
1.11 The other issue we were required to address concerns the rights and responsibilities of ordinary citizens who are not part of the “news media” – no matter how broadly that term might be defined. While not subject to the type of standards and accountabilities associated with the news media, all digital communicators will however remain subject to the law. The terms of reference required us to consider whether these universal laws are in fact fit for purpose in the digital age. Specifically:
1.13These proposals included changes to existing legislation relating to speech offences and the establishment of two new bodies for adjudicating complaints – one for the news media and another to deal with harmful communications involving private citizens.
1.16In May 2012, in response to this public concern, the Minister responsible for the Law Commission, the Hon Judith Collins, asked us to fast track our final recommendations with respect to the third leg of our original terms of reference – the adequacy of the current legal framework for dealing with harmful communications in the digital era.
1.17This work took the form of a Ministerial Briefing Paper, titled Harmful Digital Communications: The Adequacy of the Current Sanctions and Remedies, which was delivered to the Minister in August 2012. The Briefing Paper and accompanying draft bill have been included as Appendix A to this final report.
1.18Our Ministerial Briefing Paper focused on what we described as "harmful digital communication". It proposed a package of legal and enforcement reforms designed to provide a graduated response to the types of harms which can result from the misuse of new communication technologies. These included amendments to existing statutes to ensure they can be applied in the digital environment, a new electronic communications offence and the establishment of a specialist Communications Tribunal able to provide citizens who have suffered significant harms with speedy and effective remedies such as take-down orders.
1.19In this report we return to the other focus of our review: the legal and organisational rights and responsibilities which have traditionally applied to the news media in New Zealand.
1.20From a public policy perspective we were required to consider whether, and in what circumstances it may be in the public interest to:
1.21These questions arise because of the paradigm shift which has occurred as a result of the internet and the digitisation of information. In this revolutionary new media environment where anyone is able to publish to the world, the mainstream media have lost their monopoly on the generation and mass dissemination of news.
1.22This has given rise to fundamental questions about the ongoing viability and legitimacy of the news media as a special class of publisher with access to legal rights, and subject to countervailing responsibilities, which do not apply to ordinary citizens. It has forced us to adopt a first principles approach to the policy questions underpinning our terms of reference.
1.23Our own review has been conducted in parallel with two major inquiries into news media standards and accountability in Britain and Australia. In Britain, the phone hacking scandal which enveloped Rupert Murdoch’s publishing conglomerate, News International, gave rise to a two-part independent inquiry into the “culture, practices and ethics of the press” led by Lord Justice Leveson.
1.24Unlike our own review, the Leveson Inquiry did not directly confront the issue of convergence and what it means for regulatory models in the digital era. Instead its focus was firmly on the British newspaper industry.
The evidence placed before the Inquiry has demonstrated, beyond any doubt, that there have been far too many occasions over the last decade and more (itself said to have been better than previous decades) when these responsibilities, on which the public so heavily rely, have simply been ignored. There have been too many times when, chasing the story, parts of the press have acted as if its own code, which it wrote, simply did not exist. This has caused real hardship and, on occasion, wreaked havoc with the lives of innocent people whose rights and liberties have been disdained. This is not just the famous but ordinary members of the public, caught up in events (many of them, truly tragic) far larger than they could cope with but made much, much worse by press behaviour that, at times, can only be described as outrageous.
There is no organised profession, trade or industry in which the serious failings of the few are overlooked because of the good done by the many. Indeed, the press would be the very first to expose such practices, to challenge and campaign in support of those whose legitimate rights and interests are being ignored and who are left with no real recourse.
1.30In recommending how these deficiencies might be addressed, Lord Justice Leveson confronted the same fundamental challenge all policy and law-makers face when considering how to attain effective public accountability without curbing the freedom of the news media.
1.31Lord Justice Leveson’s solution relies on establishing a set of benefits for those choosing to sign up to the new regulator, and potentially costly penalties for those who opt to remain outside the body, but who later find themselves defending a court action.
1.32We discuss Lord Justice Leveson’s proposals in greater detail in chapter 5. While it will be apparent that there are many similarities between his broad approach and our own, there are also important differences. In part these reflect the very different contexts within which these policy responses have arisen.
1.34Although there was no evidence of illegality or systemic abuse of media power on the scale alleged in Britain, the Finkelstein Inquiry was driven by a combination of political concern about perceived media bias, the intense concentration of media ownership in Australia, and declining public trust in traditional news media.
1.35The 467 page report, published in February 2012, included detailed analysis of the structure and profitability of Australia’s newspaper sector, the impact of the internet and convergence on competition, and the efficacy of the existing regulators for press and broadcast media. In assessing the news media’s performance and compliance with its own codes of ethics, the inquiry drew on a detailed meta-analysis of 21 surveys, spanning four decades, which examined public perceptions of media trust, performance, bias, power and ethics.
1.39He recommended the current print and broadcast regulators be replaced by a single converged regulator, responsible for enforcing standards across all news media, regardless of format.
1.40Alongside these two high-profile inquiries there have also been two major Australian reviews focused on the implications of media and technological convergence for regulatory frameworks.
1.42Although the focus and scope of these three Australian reviews differ, they each grapple with the disruptive impacts of digital technology and convergence on the regulatory environment. In the pre-digital era identifying the target of media regulation and determining the boundaries of intervention were relatively straightforward matters. However, determining what to regulate and how to calibrate, target, and enforce that regulation has now become far more complex as bright line distinctions between media formats and genres, creators, consumers and distributors become increasingly blurred.
1.43This has forced reviewers and policy makers to re-examine the fundamental justification for regulatory intervention, whether it be the traditional classification and censorship schemes applied to entertainment, or the imposition of statutory requirements for balance and fairness for news media broadcasters.
1.45However, it is important to emphasise that our proposals are a response to the specific problems we were asked to address and reflect our own unique context