Chapter 4
What form of accountability?

The regulatory spectrum

The challenges and ambiguities of the regulatory environment for news media

4.9Few, if any, of the mainstream media who made submissions to this review disputed the need for some form of external accountability. APN, publishers of The New Zealand Herald, argued that any organisation which routinely held others to account, should itself be willing to submit to external scrutiny:135

A vigorous news media should relish rigorous standards and rigorous scrutiny on behalf of the substantial public audiences relying on its journalism.

4.10However, just as the Finkelstein and Leveson inquiries discovered, there was considerably less agreement among submitters about the strength of the required accountability, the mechanisms for achieving it, and who should be subject to it.

4.11In our Issues Paper we described the spectrum of regulatory options available when looking to influence organisational behaviour. At one end of that spectrum is government regulation. Typically this involves the state setting the legislative or regulatory rules, monitoring compliance and enforcing sanctions. At the other end of the spectrum is self-regulation. Here the rules governing market behaviour are developed, administered and enforced by the people whose behaviour is to be governed, rather than by the state. Between these two bright lines is a range of mechanisms which may combine elements of both. For example the state may establish the legislative basis for the system but leave the industry to determine the rules and standards and to administer the scheme. This is often referred to as co-regulation. Often co-regulation involves compulsory coverage, for some, if not for all sections of the industry.

4.12The choice of regulatory models is typically influenced by a matrix of factors, including the severity of the potential and actual harms to individuals and society, the characteristics of the market itself (for example its competitiveness) and the leverage available to the regulator. While some of these assessments may involve weighing empirical evidence, others will reflect changing social and political values and priorities.

4.13The question of media regulation raises additional complex, and sometimes anomalous, sets of issues. Most western-style democracies proceed from the basis that a free press flourishes best in a climate where there is no, or very limited, government control over what can be published. For this reason, as we outlined in our Issues Paper, in many of these countries the newspaper industry has been left to self-regulate. As we outline in chapter 2, this typically takes the form of professional and corporate codes, backed by a complaints body such as the New Zealand Press Council.136
4.14 However, many of these same countries have adopted a far more interventionist approach to broadcasters, subjecting them to statutory rules and sanctions.137  One of the rationales put forward for this heavier regulatory approach is the perception that this medium is more pervasive and exerts a more powerful influence in society. One inference that could be drawn from this is that the more influential the media the stronger the regulatory oversight deemed necessary by policy makers.138

4.15A more persuasive explanation for the different regulatory approaches to the press and broadcasters probably lies in the different leverage available to the state with respect to these two media. Broadcasters required access to radio spectrum, a scarce public resource subject to a competitive licensing regime. In contrast, newspaper companies were entirely privately owned, providing little regulatory leverage.

4.16Historically too, the commercial press has typically responded to threats of regulatory reform by appealing to their constitutional rights to “freedom of the press,” a term often conflated with “freedom of speech” and “freedom of expression.”

4.17However these terms do not have precisely the same meaning. “Freedom of expression” is an individual right, not a right belonging to corporate news media or the “owners of the press.”139  The individual right to freedom of expression became conflated with the “free press” in the American Constitution at a time when the industrial press was in fact the only mechanism by which individuals could exercise their speech rights (although as many commentators have pointed out the only individuals who were guaranteed that right were those who owned and controlled the presses).

4.18But since the advent of broadcasting, and now the internet, “the press” is only one means of mass communication, making it difficult to justify why one sector of the news industry should be advantaged by lighter regulation simply by virtue of the fact they continue to publish newspapers.

4.19There are of course, other, compelling public interests in an unfettered news media and for conferring special communication rights and privileges (of the sort outlined in chapter 2) on all those engaged in the production and dissemination of news. As discussed in the preceding chapter these arguments rest on the role the news media have traditionally played in ensuring the public is reliably informed on matters of public importance and in ensuring those exercising power are held accountable. These functions require the news media to be free of compromising or inappropriate business or political interference.

4.20But given the public trust and influence vested in those performing these democratic functions, there is also a vital public interest in ensuring the guardians are themselves held to account. For media academic Damian Tambini, this dichotomy has been powerfully underscored by the evidence heard during the Leveson Inquiry:140

The media and journalism are arguably one of the key guarantors of good political governance in serving accountability and playing a watchdog role. But they can also undermine good governance. The Leveson Inquiry has heard evidence that policy favours have been traded for, or adjusted, in return for favourable coverage. And it has heard evidence that media have abused the privileges available to them in pursuit of stories that have no public interest justification.

4.21In New Zealand we have not seen the sort of systemic abuse or perversion of power alleged in Britain. Indeed many media submitters to our review were at pains to point out that New Zealand has not experienced the crisis in public trust which has fuelled media reviews in other parts of the world. An indication, some suggest, of the New Zealand media’s more responsible and ethical approach.

4.22However, while it is true that this review has not been prompted by scandal or allegations of unethical behaviour on the part of the mainstream media, it is also clear from submissions that there is a perception among some that shrinking journalistic resources and the competitive pressures stemming from the internet and social media risk eroding some of the media’s core capabilities – including the task of primary news gathering, and the verification of information.

4.23While regulatory oversight cannot directly address these issues, it can provide an environment which fosters ethical news media, reinforces standards, and supports those engaged in public interest journalism. It must also safeguard the two critical public interests we have identified – genuine independence of the news media and genuine accountability to the public.

4.24The paramount need to protect the news media’s right to publish freely, without any form of prior censorship or constraint, and free from commercial or political interference, demands that any intervention be restricted to two things: ensuring media practices and processes comply with the industry’s own ethical codes, and ensuring that there are effective remedies when these codes are breached and unjustified harm is caused.

4.25Determining what type of mechanism is needed to achieve those outcomes – for example, whether it requires a body with statutory powers, like the Broadcasting Standards Authority (BSA), or whether a self-regulatory body is to be preferred – requires an assessment of the following:

  • the structure and nature of the news media in New Zealand and the environment in which they are operating;
  • the potential and actual harms resulting from ethical failings or abuses of media power; and
  • the effectiveness of the existing forms of accountability including the regulatory bodies, Press Council and the BSA.

4.26In the following discussion, we consider the first two points. In the following chapter, we examine the effectiveness of the existing media standards bodies. Throughout the course of this assessment we pay particular attention to how the internet and new media are impacting on the mainstream media’s position and influence in society. We also draw on the findings and conclusions of the Leveson and Finkelstein Reports.

4.27We begin by describing the conventional rationales put forward for any regulatory intervention in a market and assessing the extent to which these rationales apply to the production and consumption of news in this country.

135Submission of APN News & Media (March 2012) at 7.
136A large number of Press Councils are self-regulatory, and operate without any state support or involvement. Examples include Press Councils in Australia, Canada (Alberta, the Atlantic Provinces, British Columbia, Manitoba and Ontario – Quebec operates with some state funding, as we will discuss below), the Netherlands, Norway, Sweden, Switzerland, the United Kingdom and New Zealand. These self-regulatory models do not necessarily apply only to the regulation of print media: the Press Councils in Norway, Switzerland and the Netherlands regulate broadcasting as well as print.
137In the United Kingdom, broadcasting and telecommunications are regulated by the United Kingdom Office of Communications (Ofcom), a statutory body established under the Communications Act 2003 (UK). Ofcom is required under that Act and under the Broadcasting Act 1996 (UK) to draw up a code for television and radio, covering standards in programmes, sponsorship, and product placement in television programmes, fairness and privacy. The Code must secure standards objectives set out in the Communications Act, and also gives effect to a number of requirements relating to television laid down in European Union directives. The Code is a set of principles and rules, and includes practices to be followed in relation to matters of fairness and privacy.
138See for example, 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 [6.25] – [6.28] [Finkelstein Report]; and Australian Government Convergence Review (Final Report to the Minister for Broadband, Communications and the Digital Economy, Sydney, 2012) at 6 [Convergence Review]. Both the Finkelstein Report and the Convergence Review examine the various rationales put forward to justify the different regulatory approach to broadcast media.
139For example, see a discussion of the distinctions between speech rights and media freedom in Onora O’Neill Regulating for Communication - Policy Brief: Regulation, Regulators and the Crisis of Law and Government (The Foundation for Law, Justice and Society, Oxford, 2012).
140Damian Tambini The End of Press Freedom - Policy Brief: Regulation, Regulators and the Crisis of Law and Government (The Foundation for Law, Justice and Society, Oxford 2012) at 5.