Contents

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

Our proposed statutory definition of “news media”

3.63In order to access the statutory exemptions and privileges available to the news media we proposed that the entity would have to meet the following criteria:116

Submitters’ views

3.64Our proposal to introduce a statutory definition of the news media that would in effect discriminate between different publishers based on their willingness to be held accountable to a code of ethics and a complaints process met with a mixed response from submitters.

3.65While the majority of submitters supported the broad thrust of this definition, others expressed concerns, including:

Opposition in principle to special legal status for news media

3.66Just as some submitters argued that the public no longer depends on the mainstream media, some also argued that there was no longer any rationale for reserving legal privileges and exemptions for “news media” – however liberally defined. They argued this system of privileges was devised at a time when the public needed the news media to act as their “ears and eyes” and to provide a conduit for information. Thanks to the revolution in communication technologies this era had passed and with it the dependence on the news media as an intermediary and information gatekeeper.

3.67Auckland District Court Judge David Harvey, submitting in a personal capacity, made this point in the preamble to his submission:117

… I wonder if the time has come, with the increased opportunities for “citizen journalism” to dispense with special treatment for MSM [mainstream media] and make what have been privileges for MSM open to all.

3.68Others however pointed out that this system of rights and privileges was designed to promote a particular public interest rather than a commercial entity. APN, publishers of The New Zealand Herald noted:118

The rights are as representatives of the public, not commercial advantages or concessions to the owners of news media companies. If we are to act as a Fourth Estate, the eyes and ears of others who cannot be within the settings of power and decision-making, the news media will need the access and protections our democracy has afforded us.

3.69A number of submitters also emphasised the fact that there was a social contract implicit in the media’s special privileges. This contract required those accessing the privileges to exercise them responsibly and to provide the public with dispassionate, fair and accurate reporting. There would be no practical way of enforcing this contract if the privileges were extended to all citizens.

Concern at dilution of news media’s legitimacy

3.70Others were concerned that extending the media’s legal status to other publishers for whom “dispassionate news gathering” was not core business, risked diluting the news media’s credibility and legitimacy.

3.71 Radio New Zealand, a state-owned company which is subject to a statutory requirement to provide the public with impartial news coverage, questioned why bloggers and others, for whom news gathering was a discretionary activity, should enjoy the same legal privileges and exemptions.119
3.72It argued there was a fundamental distinction to be drawn between the role of journalists, as primary news gatherers, and that of bloggers or other commentators. The public depended on organisations like Radio New Zealand to provide factual and dispassionate information: “[n]o case can be made out for those expressing opinions in the form of blogs to obtain the same status as primary news gatherers.”120
3.73Similarly, the Newspaper Publishers’ Association was concerned at any “weakening of its members’ legitimacy” which may result from an indiscriminate extension of news media privileges:121

Although the internet has blurred boundaries and virtually eliminated barriers to publishing, non-traditional publishers such as bloggers need to earn any legitimacy they crave.

Many already piggyback on mainstream media, lifting and sourcing content without attribution, and they cannot automatically assume legal rights and privileges extended to the established news media.

3.74However, in his submission prominent blogger David Farrar argued that while there was merit – and practical advantage – in preserving the system of privileges and exemptions for “news media”, he did not believe this should be used to exclude others who did not meet the statutory definition:122

… it will be difficult for some media to perform their role if they do not have the legal privileges they currently have such as Privacy Act exemptions, ability to stay in closed court etc. It is impractical to extend these privileges to all citizens.

But having said that, whenever possible the privileges and exemptions given to news media, should be made available to those who do not qualify as news media, or choose not to seek formal recognition. Any legal definition of news media should be seen as the minimum group of citizens who should have this right. It should not be used to take rights or privileges away from other citizens.

3.75Others saw merit in extending privileges to new media provided this extension was tied to a requirement to comply with ethical standards. The Post Primary Teachers’ Association saw this as a way of lifting standards and accountability:123

All New Zealanders would be better served if the requirement to report truthfully and accurately were extended to the new media. Higher levels of accountability might also better serve democracy by encouraging more broad and thoughtful analysis of issues in contrast to the focus on simplistic, sensationalist, and often abusive, adversarial positions that currently prevails.

3.76Similarly, in supporting the extension of legal privileges to non-traditional news media “who wish to position themselves as credible and authoritative sources of news and current affairs”, New Zealand Police suggested the “application of known standards and accountabilities will provide predictability around measures to be applied to the ‘new media’ and how breaches are to be treated.”124

Chilling effect

3.77Others, however, argued that there were serious risks in attempting to give the term “news media” a statutory definition. Journalism lecturer Jim Tucker’s view was that the definition would result in a type of formal accreditation or registration of journalists which would be an anathema to press freedom.125 He argued that building a requirement of accountability to a complaints body into a statutory definition of “news media” would effectively place the complaints body in the position of “gatekeeper”, making decisions about who was and was not bone fide “news media”:126

By implication, that means someone gets to control what is reported and by whom, thus weakening the principle of monitoring and scrutinising government to which journalists have traditionally hewn.

3.78We address these concerns in chapter 7 of this report, where we describe our proposed new complaints body and the criteria for membership.

Need for narrower definition of “news media”

3.79A number of companies argued that our proposed definition of news media was too broad and failed to capture critical distinctions between those who created content and those who aggregated, hosted or facilitated its dissemination.

3.80In its submission Google argued that if the Commission concluded that it was in fact necessary to define the term “news media” then the proposed definition should explicitly exclude what it called “online content infrastructure platforms” (OCIPs) such as YouTube, Facebook and Twitter:127

… OCIPs differ fundamentally from traditional content distributors and publishers such as television and radio. They host content that is uploaded by others and play a minimal (if any) editorial or curatorial role in relation to the hosted content.

3.81Google argued that for a similar reason aggregators, such as Google News, should not be caught by the definition because its processes were “entirely automated” and involved “no human editors selecting stories or deciding which ones deserve top placement.”128
3.82Google argued this lack of editorial input and control meant there could be no basis for requiring OCIPs and aggregators to be accountable to standards or a complaints body. To give effect to this distinction it proposed amending the proposed definition of news media to explicitly exclude aggregators and include a requirement that the publisher “apply transformative editorial skills” before they would meet the threshold of “news media.”129
3.83Both Trade Me and InternetNZ also emphasised the importance of clearly distinguishing between the different functions, and therefore responsibilities or liabilities, of different agents in the publishing continuum.130
3.84Approaching the issues from a different perspective, state broadcaster Radio New Zealand also wished to see the definition of news media tightened, arguing that the legal privileges attached to this definition were intended to protect dispassionate news gathering for public dissemination:131

Radio New Zealand’s position is that it is imperative that a distinction is made between the generation of news and information, the aggregation of news and information, and thirdly, the generation of opinion of current value …

Aggregation and newsgathering are inherently different activities and the level of responsibility and privilege attached to each activity should reflect that ...

Our conclusion: defining “news media” for the purposes of the law

3.85The disruptive impact of technological change on the media landscape is likely to continue for decades. At this point it is not possible to accurately predict where convergence will end, nor what impact it will have on how news will be produced and distributed in the future and by whom.

3.86As this chapter has illustrated, submissions to this review reflect the ongoing and fundamental debate about whether in this age of mass participatory media it is necessary, or desirable, to retain this idea of the news media as a special class of publisher and to enshrine this in law.

3.87This dichotomy is reflected in submitters’ various concerns about giving news media a statutory definition: on the one hand some in the mainstream media are concerned that our definition is too loose, and does not sufficiently distinguish between the professional and amateur. Others, however, are concerned that any definition risks constraining the newly democratised media landscape.

3.88In our view, in this fluid environment of merged media content and providers, there remains a powerful public interest in explicitly recognising and protecting the type of communication whose purpose is to provide the public with a reliable and dispassionate source of information about what is happening in the world.

3.89However, we are clear that this public interest does not lie in preserving an institution or entity – the mainstream media – but rather in protecting and promoting the core functions assigned to the fourth estate in a liberal democracy, irrespective of whether those functions are performed by established media, independent freelance journalists or citizen bloggers.

3.90For this reason our recommended definition of “news media” contains no reference to business activities or audience size. In our view these characteristics are not core, in a principle sense, to the public interest the law is designed to promote. In practice it is likely that those undertaking the type of regular, dispassionate reporting of the courts and other public institutions will either be public service media or aligned to some commercial operation. However, in the digital era this is not axiomatic.

3.91In recommending that the legal privileges and exemptions be extended beyond the established institutional media, we are therefore recognising the public interest in fostering a diverse, resilient and truly independent news media. However we do not believe that our liberal definition will undermine the legitimacy of mainstream media as some submitters fear.

3.92Anyone wishing to access the news media’s privileges and exemptions under our proposed definition would be required to be accountable to a code of ethics and a complaints process. As discussed in chapter 2, these codes of ethics encapsulate the essence of journalistic practice, ensuring compliance with the universal principles of fairness and accuracy. By implication, only entities willing to be held accountable to these core principles will be able to satisfy the statutory criteria we are proposing.

3.93This provision, in our view, provides a simple mechanism for tying the privileges and exemptions to the purposes for which they were intended: a way, for example, to ensure that those seeking to access the news media’s exclusive right to report on certain kinds of court proceedings, do so in a way that is consistent with the requirement for impartial, accurate and balanced media reporting.

3.94Some submitters were concerned that by hard wiring this ethical requirement into the definition of “news media” we were in effect discriminating against amateur and citizen journalists and thus having a chilling effect on debate or diversity of news sources.

3.95We reject that argument for two reasons. First, nothing in our definition interferes with the rights of any citizen to exercise their freedom of expression. Never before have the barriers to exercising those freedoms been so low. Nothing we are recommending will alter that fact.

3.96By removing any commercial or audience size requirement we have ensured that any individual who wishes to position themselves in this way will be able to do so.

3.97But by requiring that anyone claiming the title “news media” should also be accountable to a code of ethics and a complaints process, we are also seeking to recognise and protect the public trust involved in any enterprise which purports to provide reliable and accurate news and information to the public.

The question of news aggregators

3.98Some submitters argued it was inappropriate to bring news aggregators within the statutory definition of news media because they did not create content and so would not need to access media privileges. We accept that news aggregation websites are unlikely to need to access media privileges but we are not persuaded that they should not be accountable for the content they publish. As far as the public is concerned they are a source of news as much as any other provider. If what they publish on their site is inaccurate or harmful, the citizen suffers as much as if he or she had read it in a newspaper or seen it on television. The impact on the public is what matters. Moreover the line between aggregation and content creation is an increasingly blurred one: most news websites now contain as much material supplied by others as content they create themselves.

3.99However we agree with Google that a line must be drawn somewhere. The definition of news media should perhaps explicitly exclude OCIPs such as YouTube, Facebook and Twitter. If the system is to be voluntary as we recommend it will not in the end matter much, but it is as well to have a definitional exclusion at the outset.

3.100We should also be explicit that the Office of the Clerk at the House of Representatives should be excluded from any definition of news media. The broadcasting of Parliament is a vehicle for transmitting the debates in the House. It is the channel by which the views of Members of Parliament can be conveyed to the public. What is said in Parliament is subject to Parliamentary privilege. Broadcasts are also subject to absolute privilege in defamation. We believe that the Office of the Clerk should not be counted as a news medium for regulatory purposes.

A statutory definition of “news media”

3.101 Taking these points into consideration, we conclude that in order to be eligible for the statutory exemptions and privileges available to the news media, an entity or individual would have to meet the following criteria:
(a) a significant element of their publishing activities involves the generation and/or aggregation of news, information and opinion of current value;
(b) they disseminate this information to a public audience;
(c) publication is regular and not occasional; and
(d) the publisher is accountable to a code of ethics and a complaints process.
3.102For reasons explained in chapter 7, we are not recommending that a definition of the “news media” be created in a standalone statute. Instead we recommend that the key statutes which employ the term “news media” be amended to reflect the new definition.132

3.103In the next chapter we ask what form the news media’s accountability should take.

116Issues Paper, above n 98, at [30].
117Submission of David Harvey at 5.
118APN News & Media, above n 107, at 6.
119Submission of Radio New Zealand (9 March 2012) at 2.
120At 2.
121Submission of the Newspaper Publishers’ Association (March 2012) at 7.
122Submission of David Farrar at 1.
123Submission of the New Zealand Post Primary Teachers’ Association (March 2012) at 3.
124Submission of New Zealand Police (March 2012) at 2.
125Submission of Jim Tucker (4 March 2012) at 3.
126At 3.
127Google, above n 104, at 20.
128At 22.
129At 5.
130Submission of Trade Me Ltd (12 March 2012) at [25]–[26]; Submission of InternetNZ (12 March 2012) at [3.3.4] – [3.3.6].
131Radio New Zealand, above n 119, at 3.
132Ch 7 at [7.186]; R28.