Chapter 4
What form of accountability?


4.1In the preceding chapter we set out the functions assigned the news media in a liberal democracy. We argued that despite the democratisation and decentralisation of these functions enabled by the internet, there continued to be a compelling public interest in continuing to recognise “news media” as a distinct class of communicator and in according them special legal status.

4.2We also concluded that it was important that anyone entitled to the news media’s legal privileges and exemptions should be accountable to basic journalistic standards. The question we now turn to is what form should this accountability take?

4.3As we discuss in the introductory chapter, this question arises because of the gaps and inconsistencies which have emerged in the current regulatory systems as a result of digitisation and convergence.

4.4 Currently web-based news sites and current affairs bloggers are subject only to the minimum legal requirements which apply to all communicators. Broadcasters are subject to statutory regulation with respect to the content they live stream, but content made available on-demand, and the content published on their websites, falls outside this regulatory framework.133  Newspapers, and their affiliated websites, meanwhile, are self-regulated and accountable to the industry-established Press Council.

4.5Whether this lack of regulatory parity between different types of publishers continues to be justified in the digital era is one of the fundamental questions we must address in this review.

4.6But some argue that in an era when information and spectrum scarcity have been replaced by digital abundance, the rationale for targeted media regulation must be reassessed. The need for a “first principles” approach was emphasised in Google’s submission to the Australian Law Reform Commission’s review of Australia’s entertainment classification system:134

Today’s media landscape is very different. The ‘audience’ of passive recipients of content has been replaced by citizen creators and citizen journalists engaging interactively with media platforms/services such as YouTube, Facebook, Yahoo!7 and ninemsn, to create and distribute content. Vertical media silos have been replaced by a horizontal, converged landscape of platforms, content providers and users, facilitated by communications networks ... In this changed environment, how we determine the appropriate policy approach to regulation of content needs to be fundamentally reconsidered.

4.7We accept, as did the Australian Law Reform Commission, the Finkelstein Inquiry and Australia’s Convergence Review, that such a first principles approach is required given the profound effects of technological and content convergence. In the preceding chapter we identify what we regard as a clear public interest in ensuring that the news media remain accountable to certain minimum ethical standards governing how they gather and communicate news and current affairs.

4.8In this chapter we draw on the views of submitters, the findings of the Australian and British reviews and inquiries and our own research to assess what form that accountability should take.

133Since the publication of our Issues Paper, The News Media Meets ‘New Media’: Rights, Responsibilities and Regulation in the Digital Age (NZLC IP27, Wellington, 2011) [Issues Paper], the mainstream broadcasters have set up a new self-regulatory complaints body, the Online Media Standards Authority (OMSA), to deal with any complaints relating to news and current affairs content that is published on their websites – including on-demand content that has not been previously broadcast. At the time of writing, OMSA’s complaints committee had yet to become operational.
134Australian Law Reform Commission Classification – Content Regulation and Convergent Media (ALRC R118, 2012) at [2.64] [Classification Review].