Contents

Chapter 2
The News Media’s rights and responsibilities

News Media legal privileges and exemptions

2.7We begin by summarising the most important of the news media’s legal privileges and exemptions. They can be divided into two kinds: those which grant special rights of access to information, and those which facilitate the dissemination of information to the public.

Access privileges

Courts

2.8A number of statutes grant news media reporters the right to attend court hearings which other members of the public have no right to attend. This includes criminal proceedings from which the public have been excluded,61 and Family and Youth Court cases where the public have no right to attend in the first place.62 Media attendance is to enable scrutiny of the proceedings on behalf of the public to ensure that judges remain accountable. In this respect the media are the “eyes and ears” of the public. Some of the statutory provisions give the court the discretion to allow others to attend in particular cases, but the media are the only ones with a statutory right. That is a significant difference.
2.9 The media’s special status is evidenced in two further ways. First they have standing in criminal proceedings to be heard in relation to applications for suppression orders or applications to renew, vary or revoke suppression orders; and to appeal in relation to such orders.63 That is a significant right. No one else, other than the Crown or defence, has it. Second, they alone have the right to communicate electronically from the courtroom, for example by tweeting.64
2.10For a long time the relevant statutes did not define news media for these purposes, but now the Criminal Procedure Act 2011 does so in relation to criminal proceedings.65 It means media which are subject to a code of ethics and a complaints procedure. The In-Court Media Coverage Guidelines66 and the guidelines for the Family Court67 adopt a very similar definition, although it is not statutory.

Meetings

2.11In the case of local authority meetings and some other types of public meeting bona fide or “genuine” news media reporters have a right to attend as members of the public and to report proceedings.68 That is a lesser right than in the case of the courts, for the media can be required to leave any private parts of the meeting along with members of the public. However the statutory reference to reporting proceedings suggests that while they are in the public part of the meeting they have a right to report, probably a more privileged position than members of the public.

Parliamentary Press Gallery

2.12Accreditation to the Press Gallery is not regulated by statute but by Parliament’s own rules. Parliament virtually always sits in public, so accreditation does not give the media exclusive attendance rights as in the case of the courts, but it does grant privileges in respect of facilities and access to Members of Parliament and Ministers of the Crown. The criteria for membership of the Gallery are that members should be bona fide journalists, “employed by outlets that regularly publish a substantial volume of Parliamentary or political material.”69 Standards of conduct are required and can be enforced by sanctions including suspension from the Gallery.

Journalists’ sources

2.13The Evidence Act 2006 codifies what had probably become the common law position: that journalists do not have to disclose their sources in court unless the judge so orders. This is also an aspect of access to information, because sources may decline to provide material to journalists if they are afraid it might be disclosed in court.70 The Act defines both “journalist” and “news media” in such a way as to leave it open exactly who is included in those terms. Does it for example include a blogger? Overseas courts have given different answers to that question: the New Jersey Supreme Court has refused to allow a blogger to use the New Jersey Press Shield law,71 whereas an Irish Court has taken the opposite view.72
2.14In New Zealand the question may not be quite so critical, because even if a blogger or other communicator was held not to come within the protection of the section he or she might still be covered by another provision which gives the court discretion to allow evidence to be withheld on grounds of confidentiality.73 Nevertheless, the journalist protection is stronger because there is a presumption of non-disclosure. In that respect it is not unlike the court attendance privilege.

Publication privileges

2.15The other group of privileges facilitates the dissemination of information by exempting the news media from some of the legal constraints which apply to members of the public. The purpose is to enable important information to reach the public without the media being unduly constrained by the fear of litigation or other legal action.

2.16The first category consists of legislation providing that certain legal obligations do not apply to the media. Thus, newspapers and broadcasters (an old-fashioned dichotomy which reflects the age of the legislation) are not bound by an important section of the Fair Trading Act 1986: they are not liable to legal action if they engage in “misleading conduct in trade”.74 So, for example, if a news medium makes a mistake in its facts, perhaps in its financial reporting, it cannot be sued under the Fair Trading Act. Inaccuracies of that kind are best dealt with by regulators rather than by the courts.
2.17Likewise, the news media are not bound by the Information Privacy Principles in the Privacy Act 1993.75 This is not to say that they should not respect individual privacy, but rather that the provisions of the Privacy Act impose constraints of a kind that could unnecessarily inhibit news reporting. The media should operate under privacy principles more closely tailored to the media’s special needs. In fact the codes of the Broadcasting Standards Authority (BSA) and the principles of the Press Council do provide such principles.
2.18Our electoral legislation provides another example. The offence of publishing, on polling day, any statement liable to influence an elector does not constrain the publication of a party name in news relating to the election published in a newspaper or by a broadcaster.76 Finally the Human Rights Act 1993 allows newspapers and broadcasters to accurately report racist statements made by another even though the maker of the statements might have infringed the Act.77

Wider privileges

2.19We note here two other “reporting” privileges, even though the statutes creating them do not confine them to the news media: they are available to anyone communicating a report in any way. But we mention them here to show that the privileges only attach to publications which exhibit a degree of responsibility: the word “fair” is used in both the statutes which create them. Both of them allow reporters to pass on to the public words used by others.

2.20The Defamation Act 1992 has long conferred a privilege of that kind on fair and accurate reports of the proceedings of many public agencies (for example the courts and commissions of inquiry) and statements issued by public officials for public information.78 And the Copyright Act 1994 provides that it is a defence to an action for breach of copyright that there has been a fair dealing for the purpose of reporting current events by means of a sound recording, film or communication work, or in any other way.79
2.21This recognises that the dissemination of news is of necessity an urgent business, and at times the most efficient, sensible and accurate way of doing it may be to allow communicators to borrow words and images from elsewhere. However, as we have said, these two privileges go wider than just the “news media” and we would not wish to change that.80

The future

2.22We support the continuance of the existing statutory privileges and exemptions. Our challenge is to decide who, in this converged environment, should be entitled to them. There may be another question which we do not grapple with here. Should the statutory privileges and exemptions be increased in number? In the digital environment we may someday have to consider, for example, whether responsible media should be protected against unauthorised propagation of their stories by re-tweeting or pasting into blogs. Total removal of such downstream publication is sometimes virtually impossible. We can envisage a time when matters such as this may need to be reviewed.

Non-statutory privileges

2.23On a day-to-day basis, news media, and the journalists employed by them, are given preferential access in a wide range of circumstances. These privileges have no legal status and are typically conferred at the discretion of those organising, or in control of, the event.

2.24For example, police and emergency services have developed protocols for how they engage with representatives of the news media when they are reporting on an accident or police investigation. Similarly almost all major public bodies and government departments have press offices and communication teams, one of whose functions is to provide information to the news media.

2.25Politicians and other powerful figures in society are often buffered from the media by advisers who determine which media outlets (and journalists) will have access to them. Factors such as audience share, and the perceived influence of the news organisation, will often play a role in determining access.

2.26In addition there are numerous other contexts in which news media are granted special access so that they are able to report an event to the public. These include major cultural and sporting events; shareholder meetings; press conferences; notable funerals and other public ceremonies.

2.27Wherever held, even if it is a public facility such as a town hall, the organisers can grant such attendance permissions as they like. The choice of attendees is theirs. But if they want the event to be reported they are probably more likely to allow the attendance of reporters from the mainstream media than they are lesser known bloggers or Twitter users. In other words there is likely to be a coincidence between the media which have recognition for statutory purposes and those recognised informally for other purposes, although there is no inevitability about that.

2.28On one level these conventions we have described are simply an efficient organisational response to society’s dependency on the news media as an intermediary for transmitting news and information. Already “citizen journalists” are playing an increasingly important role in this process just as the government is moving to proactively push out information to the public, bypassing the news media.

2.29However, neither of these developments negates the role of a professional body whose primary task is to provide citizens with accurate and impartial reports on what is happening in society.

61Criminal Procedure Act 2011, ss 97, 198 and 199.
62Family Courts Act 1980, s 11A; Family Proceedings Act 1980, s 159; Children, Young Persons, and Their Families Act 1989, s 166; Care of Children Act 2004, s 137. See also the Social Workers Registration Act 2003, s 80 and the Health Practitioners Competence Assurance Act 2003, s 97.
63Criminal Procedure Act 2011, ss 210 and 283.
64Ministry of Justice “In-Court Media Coverage Guidelines 2012” in Media Guide to Reporting the Courts (Wellington, 2012), Appendix 1, cl 5. Leave may be granted in other cases, but not as a matter of right.
65Criminal Procedure Act 2011, s 198.
66“In-Court Media Coverage Guidelines”, above n 64, cl 3(1).
67Family Court of New Zealand “Media Guidelines” (attendance in court by “accredited” media) <www.justice.govt.nz/courts/family-court/about/media/guidelines>.
68Local Government Official Information and Meetings Act 1987, s 49; New Zealand Public Health and Disability Act 2000, sch 3, cl 34.
69Office of the Speaker “Rules of the Parliamentary Press Gallery” (2011).
70Evidence Act 2006, s 68.
71Terry Baynes “New Jersey Court Denies Blogger Shield Protection” Reuters (online ed, New York, 7 June 2011).
72Cornec v Morrice & Others [2012] IEHC 376.
73Evidence Act 2006, s 69.
74Fair Trading Act 1986, s 9. There are exceptions for certain kinds of advertising material. Some have queried whether the Fair Trading Act exemption is justified but we think it is. The media clearly thinks so, and there are equivalent exemptions in Australia: Trade Practices Act 1974 (Cth), s 65A. The purpose of the Australian exemption has been described as being “to maintain an effective and enforceable TPA. That purpose is served by releasing [the media] from undesirable inhibitions on the provision, by them, of news, information, opinion and comment …” See Australian Competition and Consumer Commission v Channel Seven Brisbane Pty Ltd [2009] HCA 19 at [42].
75Privacy Act 1993, s 2(1) definition of “agency” and “news activity”.
76Electoral Act 1993, s 197(1)(g)(i); see also the Electoral Referendum Act 2010, s 31(2)(b).
77Human Rights Act 1993, s 61(2).
78Defamation Act 1992, ss16 – 18, sch 1 pt 2.
79Copyright Act 1994, s 42.
80See John Burrows and Ursula Cheer Media Law in New Zealand (6th ed, LexisNexis, Wellington, 2010) at [4.1.3(d)].