Chapter 3
Defining “news media” for the purposes of the law

Defining “news media”

Our preliminary proposition

Who should have access to media privileges?

3.49Having established what we regard as a clear public interest in continuing to recognise the news media as a special type of publisher, entitled to certain legal and organisational privileges, the next question we were required to address was how to define this special type of publisher for the purposes of the law.

3.50As discussed in our introduction to this chapter, 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 public service broadcasters and corporates which between them produced the nation’s daily newspapers, television and radio news and current affairs programmes. With the advent of the internet the news media lost their monopoly on the generation and dissemination of news, requiring us to reconsider the fundamental public interests in treating them as a special class of publisher with respect to the law.

3.51In our Issues Paper we argued that the special legal status accorded the news media was not intended to advantage or protect the media as an institution, but rather to facilitate and safeguard the functions traditionally performed by the fourth estate. But as we have discussed above, the mainstream media are not the only ones now able to perform these functions – moreover, the mainstream media’s capacity to fulfil these functions is under increasing pressure as a result of the disruptive impact of new technology on their business model.

3.52Given this fluid and uncertain media landscape we argued it was necessary to adopt a first principles approach to the question of media privileges and identify the public interests at stake in determining who accesses them, and in what circumstances.

3.53In our view there were two important public interests which needed to be recognised and promoted in any scheme which assigns special legal privileges to certain publishers. First, any scheme must take full account of the fundamental changes in communication technology brought about by the internet. The removal of barriers to publishing has created the potential for a much more diverse and robust news environment and allows for new ways of performing the media’s democratic functions. There is a strong public interest in ensuring that in determining how legal privileges and exemptions are allocated, the law enables rather than stifles such diversity.

3.54Second, any move towards greater media diversity must not undermine the core characteristics which distinguish journalism from other types of communication and expression. The rationale for continuing to recognise the news media as a distinct class of publisher with special freedoms is based on the public’s dependence on a reliable source of information about what is happening in the world. This reliability derives from the fact that the information has been gathered reasonably dispassionately, subjected to some form of verification, and reported accurately and fairly.

3.55These distinctions are, in our view, critical features of the type of communication media law is interested in privileging. There must therefore be some way of ensuring accountability to these standards by those wishing to access the media’s legal privileges and exemptions.

3.56As we note in chapter 2, most of the statutes conferring special privileges or exemptions on the news media do not define what is meant by the term. The two notable exceptions to this are the Privacy Act 1993 and the Criminal Procedure Act 2011. For reasons explained in the preceding chapter, the news media are excluded from the provisions of the Privacy Act and so it was imperative that the term be precisely defined in this legislation. The Act employs two concepts: that of a “news medium” and “news activity”. The Act defines a “news activity” as:115
(a) the gathering of news, or the preparation or compiling of articles or programmes of or concerning news, observations on news, or current affairs, for the purposes of dissemination to the public or any section of the public:
(b) the dissemination, to the public or any section of the public, of any article or programme of or concerning:
(i) news;
(ii) observations on news;
(iii) current affairs.

3.57A “news medium” is defined as “any agency whose business, or part of whose business, consists of a news activity”. To qualify for the exclusion, an entity must both be undertaking a “news activity” and meet the definition of a “news medium”.

3.58In our preliminary view the Act’s definition of a “news activity” captures a number of the important elements we identified as being fundamental to the role of the press. In particular, we noted that “dissemination to the public” or a “section of the public” had to be the purpose for which the information was gathered or compiled.

3.59However, for the reasons outlined above, we concluded that the statutory definition of “news media” should not be constrained by considerations of whether or not a publisher was engaged in a commercial operation, or whether they attracted a certain audience size, but rather by their willingness to hold themselves accountable to the standards and professional codes which differentiate news media from other communicators.

3.60We argued that instead of focusing on the agency (a news organisation) or even the actor (whether the author is a qualified journalist, for example) in determining whether a publication qualifies as a “news activity” for the purposes of the law, it may be more helpful to focus as well on the quality and characteristics of the content itself. We pointed out that these qualities are in fact already well defined in the standards and professional codes to which New Zealand’s news media are already held accountable – either by statute or by voluntary adoption.

3.61For example the New Zealand journalists’ code of ethics drawn up by the Engineering, Printing and Manufacturing Union (to which many journalists belong), summarises these core values which are supposed to underpin journalistic practice:

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 … 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.

3.62It was our preliminary view that such codes of ethics encapsulate the essential characteristics of the type of speech democratic governments around the world intended to protect in granting the news media special legal privileges. For this reason we proposed that accountability to such a code of ethics should be hard-wired into the statutory definition of the news media.

115Privacy Act 1993, s 2(1).