Contents

Chapter 2
The News Media’s rights and responsibilities

News Media responsibilities

2.30As we have noted, public trust requires that the news media’s privileges and exemptions are exercised responsibly. One judge has said in relation to court reporting that “the right to report fairly and accurately carries with it a significant responsibility to ensure balanced reporting”.81 A submitter to our review said “[s]imply having privileges is not enough. It’s knowing how to exercise oneself responsibly with those privileges.”82

2.31If there are to be news media exemptions from the general laws relating to privacy and accurate reporting, as provided for under the Privacy Act and the Fair Trading Act, for example, then the public interest requires that there are strong regulatory assurances of accountability to appropriate standards as a proxy for the legal rules.

2.32That expectation of responsibility appears explicitly in some of the statutory provisions. The Human Rights Act requires an “accurate” report. The local government legislation and Press Gallery reporting privileges use the expression “bona fide”; the Defamation Act refers to “fair and accurate” reporting. Most importantly, however, the court privileges are now showing a trend (whether statutory or in guidelines) that the media to whom those privileges are available should be responsible to a code of ethics and complaints procedures of a recognised media regulator.

2.33In the following section we provide a brief overview of the journalistic codes to which New Zealand news media generally subscribe and a description of the bodies responsible for enforcing these codes and standards.83

Ethical codes and standards

2.34 The fundamental requirements of ethical journalistic practice have been enunciated in codes and standards for well over a century. A comparative study of the codes adopted by individual news companies, journalists’ organisations and media complaints bodies in the United States, the United Kingdom, Canada, Australia, Ireland and New Zealand has found remarkable consistency in the underlying principles.84 The study, by former New Zealand Herald editor in chief, Dr Gavin Ellis, identified 18 common principles governing what he described as “Anglo-American” journalism. Foremost among these was a “universal belief in the principle of accuracy, with its attendant principles of error correction and right of reply.”85 Alongside the requirement for accuracy, virtually all news organisations also recognised the requirement for fairness, respect for privacy, and the protection of confidential sources.86
2.35The common commitment to ethical journalistic practice can be seen in the editorial codes adopted by New Zealand’s two leading print media companies, Fairfax Media and APN News & Media. The Fairfax Code stipulates that staff must strive to be “accurate, fair and independent” and goes on to describe the behaviours it expects from staff in pursuit of these goals. This includes a requirement that staff will:87
2.36APN News & Media’s editorial code of ethics covers a similar range of issues including accuracy, balance, independence, prejudice, privacy, and treatment of sources.88 It provides a detailed guide to the types of behaviour it expects from its editors and journalists in order to comply with the requirements of ethical journalism. For example, on the need for balance the code specifies:
2.37State broadcaster Radio New Zealand has also developed a comprehensive charter of editorial practice spanning both its legislative and ethical or professional obligations.89 This 80 page document provides detailed guidance on a wide range of issues including taste and decency, fair dealing with the public, covert and surreptitious methods, and the treatment of online content.
2.38Alongside the codes of ethics developed by individual media organisations the Engineering, Printing and Manufacturing Union (EPMU), the union which represents journalists, has also developed a code of ethics for its members. It summarises the core values which it considers should underpin journalistic practice:90

Respect for truth and the public’s right to information are overriding principles for all journalists. In pursuance of these principles, journalists commit themselves to ethical and professional standards. All members of the Union engaged in gathering, transmitting, disseminating and commenting on news and information shall … (a) … report and interpret the news with scrupulous honesty by striving to disclose all essential facts and by not suppressing relevant available facts or distorting by wrong or improper emphasis.

2.39The extent to which these common principles influence a news organisation and what it publishes or broadcasts is of course highly variable, reflecting the different histories, cultures and commercial and competitive pressures that characterise individual news organisations. Ellis points to the gross ethical breaches uncovered in the course of the Leveson Inquiry in the United Kingdom as an example of the type of culture which can develop in an intensely competitive environment. However he argues that while the News International scandal has led to an exhaustive re-examination of how journalists and news organisations are held to account, they are unlikely to lead to a fundamental re-definition of the underlying journalistic standards and principles:91

The standards themselves will go unchallenged because the protection they provide has a strong foundation, stretching back a century, in which philosophical principles and practical applications were fused together early in the process.

Complaints bodies

2.40 To be meaningful there must be some way of enforcing such codes and holding the news media to account for serious breaches. In New Zealand, as in Britain and Australia, the strength of these codes and the mechanisms by which they are enforced differ for print and broadcast media.

2.41Here we provide an overview of New Zealand’s two operational complaints bodies, the Press Council and the Broadcasting Standards Authority (BSA), and the principles and standards against which they adjudicate. In chapter 5 we evaluate the effectiveness of these two bodies and the extent to which they continue to be fit for purpose in the era of converged media.

The Broadcasting Standards Authority

2.42In New Zealand as in Britain, both television and radio were initially tightly controlled by the state. Although private individuals pioneered early radio broadcasting in the 1920s, by 1932 the government had effectively taken control of broadcasting. The first private radio licences were not issued in New Zealand until 1970 and the first private television broadcaster was not issued with a warrant until 1989 with the launch of TV3.

2.43That said, it was in response to pressure by private operators, including the pirate radio station Radio Hauraki, which broadcast from international waters in the mid-1960s, that the Government enacted the Broadcasting Authority Act 1968. The Authority’s primary functions were to rule on applications for broadcasting warrants and to ensure warrant holders complied with the conditions attached to their warrants.

2.44New Zealand’s tightly regulated broadcasting environment underwent radical reforms in 1989 and the radio spectrum was put up for commercial tender under a property-rights system which continues today. However, despite opening broadcasting up to free market competition, the state continued to require all broadcasters to comply with statutorily prescribed standards.

2.45These standards were spelt out in the Broadcasting Act 1989 which made broadcasters individually responsible for maintaining standards that were consistent with:92
2.46The Act also established the BSA as a complaints body, whose primary functions were to determine complaints, where the relevant broadcaster had been unable to do so itself, and to work with industry to devise agreed broadcasting codes of practice in line with the standards set out in the Act.93 The BSA has developed four codes, covering free-to-air television, pay television, radio and election programmes. The codes contain standards which all broadcasters must follow when broadcasting programmes in New Zealand.

2.47The rationale underpinning this system of statutory standards, backed by a complaints appeal body, was the orthodox view that while the radio spectrum was to be freed up for competition, access remained conditional on adherence to basic standards and accountabilities. Television in particular was perceived as a powerful, all pervasive medium with a unique ability to impact on audiences. Use of spectrum required a licence, and, failure to comply with an order of the BSA could, in some circumstances, lead to a broadcaster being found to be in breach of their licence.

The Press Council

2.48The Press Council is a self-regulatory body whose jurisdiction extends to New Zealand’s daily newspapers, and the publications produced by members of the New Zealand Community Newspapers’ Association, the Magazine Publishers Association and the journalists’ union, the EPMU.

2.49The Council came into being in 1972 as the result of a joint venture by the then Newspaper Proprietors’ Association (which would become the Newspaper Publishers’ Association of today) and the New Zealand Journalists’ Association, which at that time represented the country’s journalists (now the EPMU). The explicit motivation behind its establishment was to avert plans by the Labour Party to establish a statutory Press Council if it became the Government.

2.50The Council is currently made up of 11 members: a chairperson (so far always a retired judge), five persons representing the public and five industry representatives. It is dependent on its industry members for its funding. Its primary function is to decide on complaints made against its members. Unlike the BSA, which has statutory powers, the Press Council depends on the voluntary co-operation and compliance of its member organisations.

2.51Just as those with a complaint about a radio or television programme must first try to resolve the complaint with the relevant broadcaster before appealing to the BSA, so too those complaining about a print publication must first attempt to resolve the issue with the editor of the publication. Only if this fails, will the Press Council become involved, and even then the complaint may be dealt with through mediation rather than go to a hearing of the full Council.

2.52Instead of statutory codes, the Press Council adjudicates complaints against a set of agreed principles intended to provide guidance to the public and publishers with respect to ethical journalism. These principles cover core requirements around matters such as accuracy, fairness and balance, balancing privacy rights against other public interests, the protection of children, confidentiality, conflicts of interest and corrections.

2.53 We discuss the Press Council’s structure and role in greater depth in chapter 5.

81Slater v Police HC Auckland CRI-2010-404-379, 16 May 2011 at [45] per White J.
82Submission of Andrew Bonallack Capital Community Newspapers (11 March 2012).
83At present the voluntary industry-led body, the Press Council, is responsible for overseeing standards for newspapers and their websites while broadcasters are subject to the statutory complaints body, the BSA. In February 2013 another voluntary industry-led complaints body, the Online Media Standards Authority (OMSA), was established to deal with complaints about online content on broadcasters’ websites, but has not yet commenced operation. See ch 5 at [5.23] – [5.24]; [5.117] – [5.125].
84Gavin Ellis “Journalism’s Road Codes: The Enduring Nature of Common Ethical Standards” (2012) 18 Pacific Journalism Review 112.
85At 115.
86At 115.
87Fairfax Media “Fairfax Media New Zealand Journalism Charter” (31 August 2011) <www.fairfaxmedia.co.nz/dotAsset/36730.pdf>.
88APN News & Media Editorial Code of Ethics (July 2011) <www.apn.com.au/apn/assets/File/APN_Editorial_Code of Ethics_29_07_11.pdf>.
89Radio New Zealand “Editorial Policies” (2007) <www.radionz.co.nz/assets/cms_uploads/000/000/003/Editorial_Policy_May_2007.pdf>.
90Engineering, Printing and Manufacturing Union “Journalist Code of Ethics” <www.epmu.org.nz/journalist-code-of-ethics/>.
91Ellis, above n 84, at 119.
92Broadcasting Act 1989, s 4.
93Section 21.