Contents

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

The role of the News Media

Our preliminary proposition

3.10In our Issues Paper we described how the entity we know today as the “news media” evolved haltingly over a period of several centuries, enabled by technology, but subject to a range of often conflicting social, political and economic forces. Mass circulation newspapers, and their broadcast media equivalents, gave rise to a new political force, public opinion, which was to have a profound effect on how governments behaved and democratic institutions evolved over the next 170 years.

3.11Throughout the course of the 19th and 20th centuries the idea that the press had an important role to play in the democratic process took hold, becoming a central plank in the defence of an independent and free press. An individual’s fundamental right to freedom of expression became conflated with “freedom of the press.”

3.12Although exclusively privately owned, and often highly partisan, the press itself sought legitimacy for its increasing power and influence by explicitly articulating its wider social role and obligations as illustrated in the following quotation from the famous editor of the Manchester Guardian, CP Scott:99

A newspaper has two sides to it. It is a business, like any other, and has to pay in the material sense in order to live. But it is much more than a business, it is an institution; it reflects and it influences the life of the community … it has, therefore a moral as well as a material existence, and its character and influence are in the main determined by these two forces.

3.13The expectation that even the commercial press was somehow accountable to the public for fulfilling this quasi-constitutional function was very clearly articulated in the 1949 United Kingdom Report of the Royal Commission on the Press:100

The press may be judged, first, as the chief agency for instructing the public on the main issues of the day. The importance of this function needs no emphasis ...

Democratic society, therefore, needs a clear and truthful account of events, of their background and their causes; a forum for discussion and informed criticism; and a means whereby individuals and groups can express a point of view or advocate a cause.

3.14Alongside these obligations to provide the public with reliable and accessible sources of information, the press was also charged with being the public’s “eyes and ears” and, most critically, using their privileged access to provide an independent watch-dog on the exercise of state and other seats of power. The expectation that the news media, in its varied forms, would perform these core democratic functions provided the rationale for their legal and organisational privileges and differentiated them from other purely commercial enterprises.

3.15However, the news media’s special freedoms were matched by countervailing responsibilities. Foremost among these was the requirement that the public must be able to rely on the truthfulness, or accuracy, of what they read. Fact and opinion needed to be clearly differentiated. And the public needed to be confident that the news media did not use its considerable power and influence to deliberately mislead or cause unjustifiable harm.

3.16This, in crude terms, describes the social contract which was understood to exist between mainstream news media and the public it serves, and on whom it has relied for its commercial success.

Mainstream media and disruptive technology

3.17In chapter 4 of our Issues Paper we asked how this 20th century construct aligned with the reality of mass participatory media in the digital age. We identified a number of fundamental internal and external challenges, including the following:

3.18This latter point, in theory at least, can be seen to challenge the fundamental rationale for preserving the news media as a special entity performing unique democratic functions. In an age when the barriers to mass communication have been reduced to previously unimaginably low levels, it is arguable that the public no longer depends on the news media for a clear and truthful account of events.

3.19Thanks to the internet and the World Wide Web, there are now a multiplicity of sources via which citizens can inform themselves about what is happening in the world and literally millions of forums in which they can express opinions and “advocate a cause”.

3.20In a special report on the future of news, The Economist argued that with the advent of social media, the news industry is coming “full circle”, returning to its discursive origins in the public houses and markets of the pre-industrial era where information and robust opinions were shared horizontally rather than vertically. This change, they argued, was altering the very character of news:101

News is also becoming more diverse as publishing tools become widely available, barriers to entry fall and news models become possible, as demonstrated by the astonishing rise of the Huffington Post, WikiLeaks and other newcomers in the past few years, not to mention millions of blogs. At the same time news is becoming more opinionated, polarised and partisan, as it used to be in the knockabout days of pamphleteering.

3.21In our Issues Paper we acknowledged these changes could be seen to undermine the rationales for treating the news media as a special class of publishers. Instead, some might argue, all publishers should perhaps be subject only to the minimum legal constraints on free speech which apply to everyone – and be accountable only to their readers and the market with respect to standards. We return to these arguments in the following chapter.

Our preliminary conclusion

3.22While acknowledging the step-change brought about by the digital revolution, we reached the preliminary conclusion that, for the moment at least, there remained a public interest in continuing to recognise the news media as a special class of publisher with distinguishing rights and responsibilities arising from the functions they perform.

3.23We based this conclusion on the following arguments. First, the type of communication engaged in by the news media has unique characteristics linked to its distinct purpose. These characteristics, including a commitment to accuracy, distinguish it from other types of expression. In discussing the role of new actors engaged in “news like” activities there is often a failure to recognise these distinctions. Advocacy, propaganda, public relations, activism – these are all legitimate forms of communication, but they serve a different function, and involve a different process, than the reasonably dispassionate gathering and disseminating of news of public interest. While alternative sources play an increasingly important part in the news ecosystem, for the moment at least mainstream media outlets play a critical role as primary news gatherers, and as an efficient mechanism for amplifying, verifying and making sense of the information released to the world.

3.24Second, while newspaper revenues and circulations may be in serious decline in many western-style democracies, this does not mean the news media has lost its power or influence.102 Much of the mainstream media’s power derives from its ability to coalesce mass audiences. It provides a mechanism by which citizens are given access to the same body of information, on which they can rely to make informed judgements, at roughly the same time. This allows societies to debate issues and reach consensus based on common knowledge. It is a vital role the mass media performs in a democracy. Digitisation and new communication technologies have amplified the reach and influence of mass media, allowing it to coalesce global audiences on a previously unimaginable scale. Arguments for relaxing the responsibility requirements for news media fall down in the face of these realities.

3.25Third, while the digital idealists argue that the public can now source information and news horizontally and so no longer depend on institutional news media, the facts do not yet support this democratised ideal. Despite the plethora of sources and fragmentation of audiences, there are in fact few alternative primary news gatherers and market research clearly shows that for the moment at least the public continues to rely on mainstream media sources for their news – regardless of whether it is accessed via social media or via traditional channels.

Submitters’ views

3.26The majority of submitters agreed with the proposition that in order to flourish democratic societies need access to credible and authenticated sources of information and that, for the moment at least, the news media played a key role in fulfilling that need. However there was less consensus about the extent to which the news media are in fact fulfilling these democratic functions and whether, in the future, they will be required to do so. This divergence of views often reflected a fundamental philosophical disagreement about the desirability of a centralised professionalised group acting as an intermediary and “gatekeeper” or filterer of information in society.

3.27To a large extent this dichotomy reflected the old media/new media divide as illustrated in the following excerpts from the submissions of the New Zealand Press Council and Google New Zealand. In the view of Press Council members, the advent of mass publishing and the internet had intensified the public interest in a professional news media:103

When bloggers and citizen journalists can post stories comprising a mixture of fact, opinion and bias at the push of a send button; when the increasing numbers of public relations and lobby groups are generating and circulating their spin; when politicians are increasingly of the opinion that they should be able to determine what is published about them and their policies, and that they should not be subject to scrutiny, the role of the independent professional news media is more important than ever.

3.28 In contrast Google argued that the internet has fundamentally challenged the concept of the news media as the guardian of democracy:104

The traditional media promoted and protected these ideals [democratic functions of the press] through the twentieth century. But the rise of the Internet has led to a much broader toolbox of ways to achieve these same outcomes. Letters to the editor have been supplemented with blogs and social media; political blogs research and expose State actions; and citizens enjoy a wide range of avenues through which to contact their elected representatives and make their views known. While the traditional media remains a way to “represent the public”, new media allows the public to represent themselves.

3.29Others, including Television New Zealand (TVNZ), held a more nuanced position. TVNZ suggested that while “[p]articipatory online media” was giving rise to “valuable new forms of voice”, these largely “complement” rather than displace the “dispassionate reporting of the news”.105 As evidence of the public’s continued reliance on traditional news sources TVNZ reported that One News at 6 pm reached on average a total of 950,000 viewers per night in 2011.106
3.30 Similarly APN cited Nielsen Research figures showing that The New Zealand Herald print and online editions reach on average 805,000 readers each day. APN pointed to the dependence of many new media channels on the content produced by primary news gatherers such as themselves: “[t]he proliferation of bloggers, twitter feeds and mobile services rely in great measure on this ‘source news’ and information from mainstream news providers, either in commentary or by ‘sharing’.”107
3.31 In an individual submission Victoria University media researcher, Peter Thompson, supported this view, arguing that “[d]espite the proliferation of user-generated content and the ostensible plurality of new media platforms, it is notable that news media consumption still defaults to the mainstream media sources, even if they are accessed through more complex platforms.”108

3.32However, alongside this practical acknowledgment of society’s ongoing dependence on the mainstream news media, there was some scepticism about the extent to which the commercial news media were in fact fulfilling the democratic functions attributed to it in our Issues Paper.

3.33A number of submitters argued that as a result of competitive pressures and their own resource constraints the mass media were devoting less attention to the core functions on which their legitimacy rests: fact checking, verification, providing fair and impartial coverage of the courts, Parliament and local government and undertaking public interest investigative reporting.

3.34This led some, including Thompson, to question whether the rationale for the news media’s privileged legal status remained valid because in their view the mainstream media no longer performed many of the core democratic functions which the privileges were intended to facilitate: in Peter Thompson’s words:109

Any standard political economic analysis of the news media in New Zealand would reveal a significant gap between the ideals of public interest journalism and actual news production practices. This is not generally attributable to the ethical shortcomings of individual reporters but the pressures to maximise audiences and advertiser revenue and the lack of time and resources to investigate issues in depth.

3.35This was a common theme in many of the online forums where our Issues Paper and its preliminary proposals were debated.110

The role of the news media: what we conclude

3.36We acknowledge the validity of many of the arguments put forward for questioning the future viability of the mainstream media as we know it. There can be no doubt that the traditional model for generating and disseminating news is severely strained by disruptive technology.

3.37There can be no doubt either, as Google pointed out in its submission,111 the internet and mass participatory media have empowered citizens to exercise their democratic rights in ways that were simply not possible in the pre-digital era. These new communication technologies have given citizens access to limitless sources of data, most of it free, and created networked public spheres where they can exchange information, opinions and ideas instantaneously and without recourse to intermediaries – other than those providing connectivity.

3.38This has allowed many more participants, whether amateur or expert, to participate in these activities. And in the process it has allowed citizens to challenge the mainstream media’s efficacy, and integrity, in performing these tasks and its role as gatekeeper and agenda setter.

3.39There is ample evidence of the profound and growing influence new media are having both on mainstream media’s culture and content. As we discussed in chapter 2 of our Issues Paper, there are well over 200 current affairs bloggers in New Zealand, some of which have become a rich alternative source of information and commentary. Although primarily a forum for the expression of robust opinion, a number of high profile blog sites are used to break news. Bloggers are also increasingly taking on a watch dog role over mainstream media, critiquing their performance and alerting the public to their alleged failures.

3.40The dynamic and symbiotic relationship between traditional and new media is increasingly evident in the news agenda, as news broken within the blogosphere percolates up into the mainstream media – either through strategic alliances or more organically through the use of social media and search engines.

3.41At the same time, mainstream media is moving to incorporate the values and tools of social media in their own processes and products. Readers and viewers are invited to supplement reporters’ coverage of live news events and to comment on stories. Facebook and Twitter are routinely used to interact with audiences, promote the sharing of content, source information and build brands. Most recently, Fairfax Media, publishers of Stuff, launched a separate section, Stuff Nation, allowing users to contribute their own material to the national website.

3.42But revolutionary as these changes are, they have not, in our view, eliminated the public’s need for ready access to credible and authenticated sources of information about what is happening in their communities and the world at large. Nor have they eliminated the need for primary news gatherers – people and organisations who gather information in a reasonably dispassionate manner for the express purpose of disseminating that information to the public, rather than because they gain some personal, political or organisational advantage from doing so. Nor have they eliminated the public’s need for fair and accurate reports of the activities of the private and public institutions whose decisions impact on the lives of ordinary citizens. Nor have they eliminated the need for the impartial scrutiny of Parliament, legislators and the courts.

3.43And nor have they yet produced a more efficient or reliable way of producing general interest news for general consumption. For the moment at least New Zealanders depend on a small number of corporate media companies for their daily news. Unsurprisingly, given the dominance of Australian-owned media in New Zealand, this was also the conclusion reached by the Australian Convergence Review:112

Since the 1990s, there has been a diversification in the way Australians access media. Australians have embraced smartphones and tablets to access news and entertainment. This trend will only accelerate. Despite these changes, Australians continue to get the vast majority of news and entertainment from a relatively small number of established providers.

3.44This is consistent with the findings of independent research we commissioned on the public’s perception of news media standards and accountability in New Zealand. The research targeted a representative sample of 750 New Zealanders aged 18-70 and was conducted via an online survey comprising a combination of structured and open-ended questions completed between 15 and 22 March 2012.113

3.45When asked to nominate their main source of information, 42 per cent nominated television, 25 per cent newspaper websites, and 11 per cent newspapers, with the remaining sources nominated as the main source by less than 10 per cent.

3.46Survey respondents were also asked if they received “conflicting or different reports of the same news story” in different media, which account would they be most inclined to believe. Again, and in line with its top ranking as the main information source, television far out-rated all other media sources for reliability with 48 per cent saying they would be most inclined to believe a television news report. Newspaper websites ranked second for reliability with 25 per cent support, Radio New Zealand 12 per cent, and newspapers 11 per cent. Only one per cent said they would rely on blogs, message boards, Facebook or Twitter.

3.47When asked to explain why they would rely on certain media more than others when receiving conflicting news reports, those who nominated television and newspaper websites referred to these two medium’s ability to provide live updates and live video footage. Those who preferred radio and newspapers felt the content available in these mediums was more likely to have been well researched with more attention to factual detail.

3.48Irrespective of how critics may rate the mainstream media’s performance, this research and the ratings surveys tend to reinforce the point made by Victoria University academic Peter Thompson in his submission to this review:114

The majority of people still rely on the mainstream news media to identify, process and prioritise information and news that they will use as the basis for everyday life decisions, including decisions about voting.

99CP Scott (1846-1932) The Making of the “Manchester Guardian” (F Muller, 1946) 161 as cited in The Hon R Finkelstein QC Report of the Independent Inquiry into the Media and Media Regulation (Report to the Minister for Broadband, Communications and the Digital Economy, Canberra, 2012) at [2.52] [Finkelstein Report].
100Quoted in B Berelson and M Janowitz (eds) Reader in Public Opinion and Communication (2nd ed, The Free Press, New York, 1966) at 535–536.
101Special Report: The News Industry “The people formerly known as the audience” The Economist (London, 9 July 2011).
102For example figures released by the Audit Bureau of Circulations Electronic show that leading newspaper websites in Britain and the United States are drawing between 30 and 80 million unique monthly visitors. In November 2012 Britain’s most popular news website, the Mail Online received on average 7 million daily unique browsers.
103This quotation is taken from a document prepared by members of the Press Council in response to the questions posed by the Law Commission in our Issues Paper. This supplemented the formal submission of the Press Council (March 2012) but did not represent the Council's collective view.
104Submission of Google New Zealand Limited (14 March 2012) at 10 (footnotes omitted).
105Submission of Television New Zealand (4 April 2012) at [23].
106At [22].
107Submission of APN News & Media (March 2012) at 6.
108Submission of Peter Thompson (9 March 2012) at 1.
109Thompson, above n 108, at 2.
110Law Commission “Who are the News Media?” (Public Address, 29 February 2012) <publicaddress.net/speaker/media-regulation/>; David Farrar “What Media Standards Should Apply?” (Kiwiblog, 6 March 2012) <www.kiwiblog.co.nz/2012/03/what_media_standards_should_apply>; The Law Commission “What do we mean by ‘news media’?” (Pundit, 7 March 2012) <www.pundit.co.nz/content/what-do-we-mean-by-news-media>.
111Google, above n 104, at 10 – 11.
112Australian Government Convergence Review (Final Report to the Minister for Broadband, Communications and the Digital Economy, Sydney, 2012) at viii [Convergence Review].
113Big Picture Marketing Strategy and Research Ltd Public Perception of News Media Standards and Accountability in New Zealand (summary of the online survey conducted for the Law Commission, April 2012) <www.lawcom.govt.nz/project/review-regulatory-gaps-and-new-media> [Big Picture Research].
114Thompson, above n 108, at 1 – 2.