Contents

Chapter 5
Convergence – the case for reforming oversight of news standards

Assessment of strengths and weaknesses

5.57Our next step is to consider the strengths and weaknesses of the current regulatory models that apply to the press and to broadcasters. We have taken account of the principles of good regulation developed by the Treasury as a tool for assessing existing regulatory regimes,253 and note in particular the regulatory objectives of proportionality,254 certainty,255 flexibility,256 durability,257 transparency and accountability.258
5.58We have also noted the principles of effective regulation formulated by the Office of Communications (Ofcom), the United Kingdom communications and media regulator, from its experience of regulating a number of sectors and working with a variety of statutory, co-regulatory and self-regulatory bodies in the media and electronic communications sectors. Ofcom suggests that there are some core principles shared by effective regulation. These relate both to the governance and accountability of the regulatory body that establish independence and safeguard against undue influence, and to the operational independence and capability of the regulatory body to ensure public confidence, credibility and, over time, help to build public trust.259
5.59 Draft criteria for a regulatory solution were developed for module 4 (potential press regulatory solutions) of the Leveson Inquiry as follows:260
(a) Effectiveness – any solution must be perceived as effective and credible by the press as an industry and by the public, including recognising the importance of a free press in a democracy, and a press which acts responsibly and in the public interest, and ensuring durability and sufficient flexibility to work for future markets and technology, and be capable of universal application.
(b) Fairness and objectivity of standards – a credible and sufficiently independent statement of standards that is driven by the public interest.
(c) Independence and transparency of enforcement and compliance – enforcement of ethical standards including the appointments process to be sufficiently independent to command public respect.
(d) Powers and remedies – to provide credible remedies and include effective powers, and support compliance by the industry both directly and indirectly.
(e) Cost – the solution must be sufficiently reliably financed to allow for reasonable operational independence and appropriate scope, but without placing a disproportionate burden on either the industry, complainants or the taxpayer.
5.60In light of those principles and criteria, we now consider the aspects of the two regulatory approaches in the areas we identified in the Issues Paper as being key: independence, accessibility and transparency, effectiveness, the approach to standards and principles, sanctions and remedies, and the issues of appeals and waivers.261

5.61This assessment includes reporting on the submissions we received to the Issues Paper. We received a range of responses to the current regulatory approach. Some questioned its effectiveness. Others, however, expressed satisfaction with the current arrangements which were regarded as well-established.

Independence

5.62The importance to our democracy of a free press that holds other sectors accountable and acts as a check on power requires that any regulation of the news media be truly independent. The different structures of the BSA and the Press Council mean a consideration of the extent of their independence raises different issues. In the case of the BSA, the issue is whether this statutory body is sufficiently independent of government, while in the case of the Press Council, the question is whether this self-regulatory body is sufficiently independent of the media industry.

5.63As Gavin Ellis described the problem in his 2005 article:262

No matter how well-intentioned state appointees may be, a statutory system is open to allegations of ‘stacking’ to reflect the government’s own leanings … For their part, the media acting as their own judge and jury leads understandably to charges that they are self-serving … The solution must be a system that is not open to either charge and which embodies both transparency and efficacy.

5.64 Submissions to the Issues Paper from media academics Ursula Cheer and Peter Thompson argue that both the state (BSA) and industry (Press Council) models are flawed and that genuine independence from both is an absolute requirement of any media standards body. Thompson felt that “neither the government nor the market should be the primary locus of regulation.”263 Cheer identified issues with both industry and state funding models:264

If either industry or government can withdraw or reduce funding, the integrity and status of the regulator will be affected. Neither state funding or industry funding can have strings attached or be withdrawn at a whim. Neither funding source should be able to affect composition and operation.

BSA

5.65 Government agencies do not necessarily play a role in the BSA’s complaints procedures, or in setting industry codes of practice; however, under the present structure, the state is a force in the setting of standards.265 The Broadcasting Act lays down standards that broadcasters are expected to comply with in the areas of good taste and decency, the maintenance of law and order, the privacy of the individual and providing a reasonable opportunity to present significant points of view on controversial issues of public importance.266
5.66The Act also requires the BSA to encourage the development and observance by broadcasters of codes of practice (or to issue such codes itself) in relation to the protection of children, the portrayal of violence, fair and accurate programmes and correction and redress procedures, safeguards against denigration and discrimination, restrictions on the promotion of liquor, appropriate classification warnings, and the privacy of the individual.267 In addition, the BSA’s chair and board members are appointed by the Governor-General on the advice of the Minister of Broadcasting. This leaves room for, at the very least, a perception of politicisation.268
5.67Media Works reported its belief that the current regime is damaged by perceptions of lack of independence:269

We stress we are talking about perceptions – we are not alleging that the current members of the BSA lack integrity in the manner in which they approach their work but the fact remains that:

  • The regime is set up by statute
  • The BSA is a Crown entity
  • It is partly government funded
  • Appointments are political (i.e. made by government ministers of the moment) and there is no transparency regarding the appointment process
  • Broadcast media has never had anyone it suggested appointed as the industry representative

5.68Overall, broadcaster and academic submitters supported the proposal for an independent model, arguing that any state involvement in news media oversight is antithetical to one of the news media’s core functions in a democracy – to act as a watchdog on the exercise of political power.

5.69The BSA noted its status as an independent Crown entity which means that the government cannot direct or seek to influence it in its work,270 and expressed concern about removing the state “backbone” from news media oversight:271

We think the State has an interest in balancing the media’s rights of freedom of expression along with the responsibilities that come with these. ...

We think it is too easy to assume that the involvement of the State as a regulator of the media is contrary to the best interests of the society served by the media. …

We would expect that a proposal for the State to withdraw from regulatory involvement will be contentious.

Press Council

5.70The 2007 Barker-Evans Review of the Press Council made explicit reference to the need to preserve the Council’s independence from the state in order to ensure the press could fulfill its functions as “a critically important leg of the constitution of a democratic country”. 272 That review made a number of important recommendations about the Press Council’s level of independence from the industry, responding to criticisms made to it that the Press Council is perceived not to be independent of the publishers, and that underfunding is symptomatic of its lack of independence, underscored by its reliance on an informal funding mechanism:273

The perception of independence of the Press Council from the print media interests, is, in our view, paramount to greater public acceptance of the Press Council and greater use of its services. Various submitters perceived the Press Council as lacking in independence because of its alleged limited funding from and close association with the NPA, which had the power to change the structure of the scheme or even abandon it. Survey respondents adopted similar concerns. One suspects that some of these critics were unaware of the exact composition and modus operandi of the Press Council. Yet, the perception of lack of independence is fairly widespread.

5.71The review recommended that the Press Council become a separate legal entity to enhance its independence rather than a body that could be dissolved at the whim of the industry. Responding to this recommendation, the Press Council was registered as an incorporated society on 20 December 2011.

5.72 The Press Council advised that during the term of the current members there has not been any attempt by the controlling interests to affect decisions of the Council.274 The Council cites this and the fact that incorporation means that it cannot be dissolved at the whim of the industry, in response to concerns about adequate independence.275
5.73 While the independence of the Press Council’s adjudications is not in question, there is a residual issue, however, in relation to the Press Council’s governance. As noted above, as well as independence and transparency of enforcement and compliance, independent governance is also a critical attribute. In Lara Fielden’s review of Press Councils, she notes:276

The governance structure of a Press Council, including the composition of its board, is central to the question of whether it considers itself an ‘independent regulator’. However, the simple arithmetic of whether Council board members are independent public representatives or industry appointees tells only part of the story. The composition of related panels, including management boards, appointment panels, funding bodies, and code committees is also revealing in any consideration of the issue of independence … In some countries considered here an industry-only, or industry-majority, management board sits alongside the more public-facing council and is responsible for the Press Council’s funding, constitution, code of practice, and/or appointments to the Press Council itself.

5.74We consider that independent governance is a fundamental factor to consider in relation to our stated objective of ensuring that media regulation is truly independent, both from government and from the industry itself. As suggested by the former Ministry of Economic Development, one characteristic of an effective self-regulatory regime is that consumers and other outsiders are represented on the governing board of the regime.277
5.75The Press Council’s constitution provides that:278

The Society shall be administered, managed and controlled by the Executive, which shall be accountable to the members of the Society for the implementation of policies of the Society as approved by annual general meeting.

The Executive comprises a member appointed by each of APN, Fairfax, and the NPA, as well as the chairperson of the Council who is a non-voting member of the Executive ex-officio.279 The Executive of the Press Council is therefore controlled by the industry.280 This is in contrast to the Council itself, where five members represent the public, three are appointed by the industry and two are appointed by the EPMU, and the chairperson is to be independent.

5.76In practical terms, this means that industry interests exert a measure of control over any steps the Press Council may wish to take to update its policies and procedures, or to alter any other structural matters. For example, consideration of the expansion of the range of sanctions available to the Press Council, as recommended by the Barker-Evans Review, requires consultation with industry members.

Accessibility and Transparency

Public awareness of complaints bodies

5.77A key indicator of the success of any consumer complaints system must be the ease with which members of the public can access it. The primary requirement is that the public be aware of the complaints system and how it works. Broadcasters are legally obliged to publicise information about how to go about making a complaint about a programme.281 Newspapers are under no such obligation with respect to the Press Council’s complaints procedures.
5.78Research we commissioned for this review indicated that less than half of the New Zealand public know where to go in order to make a complaint about news media standards.282 Even once they know where to go, people can be unsure about the process. One person commenting on the Public Address forum reported his experience as follows:

It was about 5 months after I finally found the Press Complaints form … and I also wasn’t confident my complaints were sound enough to be carried through (plus it felt there was an added complexity regarding internet articles and the archiving of the various versions). The initial “damage” had been done anyway; I felt a bit helpless regarding the whole situation.

5.79 The BSA is the better known avenue of complaint (76 per cent), with a further 12 per cent stating they would go directly to the media source. The BSA also has far greater prompted awareness than the Press Council with 93 per cent of respondents having heard of the BSA, but only 26 per cent having heard of the Press Council.283
5.80The Barker-Evans Review concluded that public awareness of the Press Council was lower than for other industry complaints bodies and its targeted survey revealed that individuals had low awareness of the Press Council and its functions.284 The review recommended a range of actions to lift awareness of its activities, including that all publications under the Council’s jurisdiction should be obliged to regularly include information about the public’s right to complain to the Press Council in print and on news websites.
5.81We are informed by the Press Council that response to this request has been “patchy”. The Press Council notes that the number of complaints has increased over the last 18 months which may suggest growing public awareness. It also proposes that publications under its jurisdiction be obliged by contract to regularly publicise the Press Council’s complaint procedures.285

Public awareness of standards or principles

5.82In our commissioned research, 39 per cent of people responding were aware of any news media standards, although this level rose to 60 per cent after prompting. Of those with any awareness, less than half (42 per cent) knew where to find these standards.286
5.83A number of newspapers do publish information advising readers how to go about having mistakes corrected in the news pages but few provide readers with ready access to their publication’s codes of ethics or alert them to the existence of the Press Council. This was reflected in our commissioned research which found that of those who could recall publicity being given to news standards, the large majority (82 per cent) cited television advertising.287

Publicity about decisions

5.84Another important tool for increasing public awareness of the complaints procedures, and the standards the public can expect of the news media, is the publication of important decisions. Both the BSA and the Press Council make their decisions available online through their respective websites. The BSA identifies its website as the first point of contact for complainants and a critical tool for searching decisions and enabling users to understand the broadcasting regime, and an upgrade of the website is a current focus.288
5.85In cases of serious breaches, the BSA can require a broadcaster to broadcast a statement (in a form approved by the BSA), in the manner and within the timeframe specified in the BSA’s order,289 and sometimes an apology.290 The BSA also issues press releases summarising decisions that it considers significant or likely to be of public interest.

5.86The Press Council requires members to publish decisions when a complaint is upheld but has little control over how and where the decision is published. It does not issue press releases alerting other media to significant rulings.

Effectiveness

5.87Both the BSA and the Press Council operate on relatively small budgets with minimal staffing levels. As a self-regulatory body the Press Council relies on the goodwill of members supplemented by board fees and minimal expenses. The print editors believe that the Press Council has served the public well: “[i]t is funded by the industry and has proved to be an inexpensive, effective and timely means of giving redress to those who feel they have been unfairly treated.”291
5.88However, a submission from the Massey School of Communication, Journalism and Marketing suggests that Press Council weaknesses relate to poor resourcing:292

rendering it impotent in some of its recommended functions, such as publication of research and comment on topical media issues; taking on a wider mediation role; liaison with industry and public on press freedom issues; and the absence of an appeal process. Poor resourcing also impinges on members’ ability and availability to produce thorough judgments and take part in mediation.

5.89 The volume of complaints to the BSA is significantly higher than those received by the Press Council.293 A 2009 survey of broadcasters found that for the most part, broadcasters were satisfied with how the BSA manages the complaints process, although the overall time taken was an issue for some.294

Standards and Principles

5.90Any assessment of the efficacy of these two bodies at maintaining standards necessarily involves value judgements about the competing interests both bodies are constantly attempting to reconcile. The standards and principles underpinning these adjudications require them to constantly review the meaning of ethical journalism. This involves weighing the fundamental public interest in free speech against countervailing interests in rights such as privacy, and the responsible and fair exercise of the media’s power.295

BSA

5.91On one view the BSA’s use of industry standards, guidelines and practice notes, provides both broadcasters and the public with some clarity about what responsible journalism looks like. Radio New Zealand submitted that the system of developing a Code of Practice that is subsequently approved by the BSA has worked well and that reviews have been conducted efficiently and effectively. A 2009 survey of 10 broadcasters who had been subject to a formal complaint in 2007 and 2008, found that the BSA’s final decisions were perceived to be fair.296
5.92 Some broadcasters believe the BSA fails to give sufficient weight to freedom of expression, affirmed by section 14 of the New Zealand Bill of Rights Act, and that overly prescriptive standards can have a chilling effect on news gathering activities. The BSA counters that it has started to incorporate a more considered and thorough freedom of expression analysis into its decisions.297 The BSA also commissioned media academic Steven Price to review its approach to the Bill of Rights Act in its decisions who found that generally the BSA does a very good job of justifying its decisions.298
5.93Broadcasters also claim inconsistency in decision-making has resulted in confusion around the practical application of standards such as privacy299  and express concern about the BSA’s interpretation of “good taste and decency standards.”300
5.94In April 2011, in an unprecedented joint action, Television New Zealand and TVWorks (TV3 and C4) appealed two BSA decency decisions in the High Court at Auckland, with TVNZ’s appeal being upheld, and TV3’s being dismissed.301 A further appeal by TVNZ against a BSA decision on good taste and decency in a current affairs programme was upheld in October 2011.302 These determinations provide the BSA with further judicial guidance in applying the good taste and decency standard in the case of news and current affairs which may assuage the broadcasters’ concerns.303

Press Council

5.95The Press Council’s principles are deliberately broader, reflecting the Council’s view that editors and their employers are responsible for making publishing decisions and determining the boundaries of responsible journalism, not a complaints body.

5.96The Barker-Evans Review pointed to the fact that the Press Council is unusual in relying on broad principles without any specific standards and recommended that these principles undergo urgent review. A review was undertaken and the Statement of Principles has been revised, adding some additional detail but not to a significant degree.304 The review did not address all the issues raised in the Barker-Evans Review such as providing detailed guidance in relation to the interests of children and young people, more specific principles in relation to privacy, and generally tightening up the principles.305
5.97The Press Council put forward a tentative view that the Statement of Principles gives it greater flexibility than a Code of Practice, and that if the Statement of Principles was converted to a Code, it suspects fewer complaints would be upheld.306 The NPA submitted that fairness and balance in particular may depend on the context, that great care needs to be taken in defining such standards, and that they need to be left reasonably flexible.307 Fairfax’s submission expressed the hope that the existing Press Council codes would be the basis for the consideration of any new codes.308

Sanctions and remedies

BSA

5.98The BSA has a broad range of sanctions available to it including the ability to recover costs for the Crown, award damages in privacy cases and, in the most severe breaches, order a broadcaster off-air for up to 24 hours.309
5.99The Privacy Commissioner commented on the level of compensation that can be awarded by the BSA in relation to privacy complaints, regarding the current $5,000 maximum limit as unduly low, unfair and potentially distorting the compensation process.310
5.100TVNZ however did not want to see any increase in compensation payments, and expressed concern about costs orders as being contrary to the scheme of a prompt and informal complaints system.311
5.101Colin Peacock’s 2009 assessment of 40 BSA decisions was largely uncritical of the BSA’s range of penalties:312

Costs are almost always modest sums, and awards to the Crown are usually well under the NZ$5,000 upper limit, even for what the Authority describes as “serious departures” from the standards.

However, for a broadcaster, it still feels like getting fined by a court, particularly when it comes on top of the cost and time it can take to defend a complaint. Sometimes broadcasters resent the fact that complaints can be made by individuals, companies or government organisations with substantial resources which can include their own legal teams.

However, some broadcasters will also acknowledge that if the Authority didn’t exist they might be fighting more legal battles in which the costs and financial penalties could be much greater.

Journalists and broadcasters will appreciate that when a complaint is upheld, the only penalty may be the publication of the decision itself.

Many complainants request an apology in their submissions on orders, but these are rarely ordered by the Authority. None was granted in any of the decisions I consulted for this report. Journalists will welcome this because issuing public apologies would imply that the entire broadcast was deficient – or that the individual ‘apologee’ had been unfairly targeted by the broadcaster. Arranging justice for aggrieved parties is not the Authority’s main job – that’s a matter for the courts.

Press Council

5.102The only sanction available to the Press Council is the requirement that editors publish the adjudication, giving it fair prominence.313 Some submissions to the Issues Paper felt that the Press Council’s sanctions are inadequate and lack teeth. An individual submitter had the following view:314

Rightly or wrongly, the Press Council is not seen (in the business world in particular) as a body that has teeth or will do anything more than provide (to use a colloquial term) a slap over the wrist with a wet bus ticket. The complainant thus may feel that it is not worth it – buying a fight with the press may not be good for business. Conversely the offended party may feel that the best option is to take legal action rather than to go through a Press Council process.

5.103This submitter had a number of suggestions for improvements to the Press Council’s processes including the power to order publication of a retraction or apology on the same page as the offending article, the power to have the newspaper make a donation as part of a successful complaint, and the discretion to criticise the media if necessary.

5.104In her submission, Professor Ursula Cheer said:315

Sanctions indeed must mean something. The Press Council has never overcome the limits of its sanctions. It has lacked effectiveness and standing from the public and the media’s point of view. ...

A power to grant modest compensation is a good idea, as are costs … On balance, I don’t think monetary penalties are necessary. They would bring the jurisdiction closer to a criminal regulatory one, which is inappropriate. If there has been such harm as might justify a monetary penalty, the behaviour is likely to be serious and covered by some other relevant form of action, such as an actual criminal offence or a civil claim of some sort.

5.105The Barker-Evans Review recommended a new scale of decision to replace the current “upheld/not upheld” distinction.316 The proposal was for a range from ‘Rejected’ (when there is little chance a complaint will be accepted), ‘Not Upheld’ (where the publisher is considered to have behaved properly), ‘Partially Upheld’ (where some but not all parts of a complaint are justified), ‘Upheld’ (when a publisher has acted improperly but not irresponsibly) and ‘Censured’ (when the complaint is upheld and a rebuke is warranted). Fairfax’s submission on our Issues Paper supported a scale along these lines as it felt the present ‘uphold’ or ‘not uphold’ adjudication of the Press Council is inadequate and can be confusing.
5.106In its submission to the Issues Paper, the Press Council accepted that it should have more powers317 and that the following additional powers may be appropriately created by contract with industry members:318
  • the power to direct an offending article be taken down from a website;
  • the power to require publication of an apology, correction or retraction;
  • possibly the power to order that a complainant be given a right of reply; and
  • the power to direct where in a publication details of its adjudication should appear and the form of the publication of the adjudication.

Appeals and waivers

5.107 The Press Council and the BSA take different approaches to the issue of concurrent jurisdiction and appeals. The Press Council requires complainants to waive the right to bring legal proceedings in the courts as a condition of making a complaint,319 and there is no right of appeal from a Press Council adjudication. However the BSA does not require a waiver of legal rights, and there is a right of appeal from a BSA determination to the High Court.320
5.108Some submissions preferred the option of a right of appeal to another body other than a court.321 The Screen Production and Development Association (SPADA) suggested an appeals board, similar to the current practice of the Advertising Standards Authority (ASA), with prescriptive grounds for appeal.
5.109The BSA registered its concern about any removal of appeals from the High Court:322

We think that it is a very serious step to place bodies such as these outside the supervision of the Courts. These bodies will be developing important jurisprudence and in our view what they do should be the subject of supervision and review by the Courts.

The BSA’s considered view is that issues of broadcasting standards should ultimately be reviewable through the state’s independent judicial or tribunals system as serious jurisprudential, moral and public policy issues sometimes arise.323

Conclusion

5.110We now summarise our assessment of the two regulatory bodies. This assessment is based substantially on submissions, comment and opinion, the reviews commissioned by the BSA on aspects of its performance and operations, and the Barker-Evans Review of the Press Council. Apart from these reviews we note that there is an absence of systematic review and feedback providing empirical data.324

Independence

5.111 The perception of potential politicisation arises in relation to the BSA primarily due to the process of government appointments of board members. Conversely, the Press Council remains under the structural control of the news media industry, although its complaints function is exercised under an independent chair and public member majority. In our assessment, neither body meets our stated objective of truly independent regulation, both from the government and from the industry itself.325

Accessibility and Transparency

5.112Public awareness of the BSA as a complaints body is high, however, public awareness of the Press Council is concerningly low. Awareness of the standards and principles in relation to news and current affairs (e.g. accuracy, fairness and balance) leave room for improvement in relation to both the BSA and the Press Council. The Press Council’s feedback and reporting mechanisms are not as well developed as the BSA’s. Overall, the transparency and accountability of the BSA as a statutory body is higher than the Press Council.326

Effectiveness

5.113A capability review would be necessary to assess definitively the capability of the Press Council and the BSA. It is arguable that from a consumer’s perspective, the BSA provides a more robust and meaningful remedy for serious breaches of media standards than the Press Council. Our impression is that both bodies demonstrate effectiveness within their relatively small budgets; however, as yet the Press Council has not dealt with any significant body of complaints with respect to internet content, and the BSA none at all. It remains a moot point how the current bodies might deal with an increase in the volume and complexity of internet related complaints. The Press Council may be circumscribed by its much smaller budget.

Standards and Principles

5.114The Press Council’s Statement of Principles is expressed at a greater level of generality than the BSA’s set of codes. Overall we think that the balance between flexibility and certainty is better reflected in the BSA’s codes of practice. As we noted in the Issues Paper, we believe that greater detail is required in the Press Council’s Statement of Principles, as recommended by the Barker-Evans Review.327 Adequate detail is necessary to ensure appropriate responsibility and accountability on the part of the news media who abide by the principles. As we acknowledge in chapter 7 however, there are advantages and disadvantages in either flexible principle or more detailed prescription.328

Powers and sanctions

5.115The decisions of a media standards body must mean something. In our assessment, the Press Council’s range of sanctions is too limited and requires expansion, at least along the lines set out in the Barker-Evans Review. On the other hand, the BSA’s power to award compensation for invasions of privacy but nothing else is an anomaly.

Appeals and waivers

5.116We believe that justice requires a right of appeal and that the current lack of any appeal right from an adjudication of the Press Council is an issue which should be addressed. On the issue of waivers required of complainants by the Press Council, we endorse the Barker-Evans Review recommendation that absolute waivers be replaced with more limited waivers that cover the complaints determination process.329

OMSA – a third complaints body

5.117 As noted above, as at the date of this report, the Online Media Standards Authority (OMSA) has been created but has not commenced operation. We are not therefore in a position to carry out any performance analysis; however, we outline some of its features as apparent from its core documents and some of the issues its creation raises in relation to this review.

5.118OMSA has adopted the mode of industry self-regulation utilised by the Press Council and the ASA. As noted above, the Press Council model does not meet the stated objective of truly independent regulation, due to the level of industry control of its governance. In following this model, OMSA has also been established under the ultimate control of the broadcasting industry.330
5.119The makeup of the OMSA Complaints Committee is designed to have an independent majority. The method of appointments may benefit from greater independence from OMSA however. Members of the Complaints Committee, including the chairman, are appointed on the recommendation of OMSA’s Appointments Panel.331 The Appointments Panel in turn comprises OMSA’s chairman and deputy chairman (industry appointments), the chairperson of the Complaints Committee and an independent person. The Appointments Panel differs from the Press Council’s in that it does not include the Chief Ombudsman.332
5.120In terms of membership admission to OMSA, any media proprietor, whether an individual or an organisation, which carries on activities aimed at a public audience online, is eligible for membership, subject to paying the required subscription. OMSA has the power to decline any application if it considers the applicant unable to meet the its listed objects.333 It remains to be seen whether OMSA will attract and admit a variety of online content providers.
5.121OMSA’s constitution does not require its members to enter into binding contracts, and any member may resign on giving six months’ notice.334 As noted above, the Press Council are considering introducing binding membership contracts to improve its overall effectiveness. Contracts would also provide a greater degree of funding certainty.
5.122OMSA has been established without any legislative change, the broadcasters’ stated objective being to advance a self-regulatory solution without requiring recourse to Parliament.335 However a wholly non-legislative option does not address the issue we discuss in chapter 3, namely which news content creators and providers should have the benefit of the various privileges and exemptions that are currently enjoyed by the mainstream news media. Without addressing that question, there may not be adequate incentives in place to encourage non-mainstream news media to become members of OMSA, leaving it the preserve of the mainstream broadcasters.
5.123The creation of OMSA itself raises the issue of whether a consequential amendment to section 198(2)(a)(ii) of the Criminal Procedure Act 2011 should be considered. That section includes organisations that are subject to the BSA or Press Council complaints procedures as “members of the media” for the purpose of orders clearing the court.336

5.124Lastly, although OMSA will provide an avenue for complaint in relation to the online news content of its members, its creation runs counter to the currents of convergence in that it sets up a further platform-based complaints body and represents proliferation rather than regulatory convergence.

5.125 While OMSA provides an avenue for complaint about content that is not currently covered by existing processes, it introduces additional complexities for the public in determining which complaints body to approach, on what basis and within which timeframe. A complainant may need to make multiple complaints in relation to identical content that appears on a variety of platforms. The running of three different complaints bodies, each with different sets of standards or principles, interpretations and decisions introduces a higher risk of inconsistency. This may undermine the ability of complainants with multiple complaints about the same content to obtain appropriate remedies. We also note that the breadth of each body’s jurisdiction is not identical and may mean that gaps remain in certain scenarios, potentially still leaving some complainants without access to a complaints mechanism, although the gap is smaller than previously.

253The Treasury The Best Practice Regulation Model: Principles and Assessments (2012).
254Proportionality – the burden of rules and their enforcement should be proportionate to the benefits that are expected to result. 
255Certainty – the regulatory system should be predictable to provide certainty to regulated entities and be consistent with other policies. One indicator is that there is consistency between multiple regulatory regimes that impact on single regulated entities where appropriate. 
256Flexibility – regulated entities should have scope to adopt least cost and innovative approaches to meeting legal obligations. A regulatory regime is flexible if the underlying regulatory approach is principles or performance-based, and policies and procedures are in place to ensure that it is administered flexibly, and non-regulatory measures, including self-regulation, are used wherever possible.
257Durability – the regulatory system has the capacity to evolve to respond to new information and changing circumstances. Indicators of durability include feedback systems to assess how the law is working in practice including well-developed performance measurement and clear reporting, and that the regulatory regime is up to date with technological and market change, and evolving social expectations.
258Transparency and Accountability – in essence, regulators must be able to justify decisions and be subject to public scrutiny.
259Office of Communications (Ofcom) Submission to the Leveson Inquiry on the Future of Press Regulation (2 April 2012) at 5 – 6. See also Ofcom, written evidence to the House of Lords Communications Committee’s inquiry into media convergence and its public policy impact (published 19 October 2012), annex, Principles of Effective Regulation.
260See also Finkelstein Report, above n 219, at [10.29]. The report notes features that should be present in any regulatory system, including clearly-specified objectives; an organisational structure involving suitable personnel; adequate ongoing funding (and transparency of funding); transparency and objectivity in decision-making processes; appropriate mechanisms for implementation and enforcement of decisions; visibility to the public, by promotion and explanation of its role and functions; periodic reviews of performance; and appropriate accountability mechanisms.
261Issues Paperabove n 189, at ch 6.
262Ellis, above n 188, at 81.
263Submission of Peter Thompson (9 March 2012) at 5.
264Submission of Professor Ursula Cheer at 3.
265Submission of the Broadcasting Standards Authority (BSA) (12 March 2012).
266Broadcasting Act 1989, s 4(1).
267Section 21(1).
268See for example the submissions of Peter Thompson, above n 263, and SPADA, above n 201. SPADA submitted that this perception may be exacerbated by the BSA having only 4 members and suggests a panel of 12 to 16 members, of which 9 would be a quorum, consisting of a chairperson (retired High Court Judge or QC), a lay deputy chairperson, media representatives, and six lay members.
269Submission of MediaWorks, above n 203, at [11].
270Broadcasting Standards Authority Statement of Intent above n 225, at 6, 20. See also Broadcasting Act 1989 s 21(5): “Except as provided otherwise in this or any other Act, the Authority must act independently in performing its statutory functions and duties and exercising its statutory powers …”
271Submission of the BSA, above n 265, at [30], [31] and [38].
272Barker-Evans Review, above n 231, at 9.
273At 76. See also Ellis, above n 188, at 75; and Press Complaints Commission (UK) The Governance of the Press Complaints Commission: an Independent Review (2010), which includes recommendations for increasing the influence of lay members to enhance independence of the PCC from industry.
274Submission of the Press Council (March 2012). See also submission of Massey University Journalism Programme, above n 201: “suggestions of partiality in adjudications are also misstated – decision-making demonstrably does not occur in voting blocs, nor are the adjudicators one-sidedly “pro-newspaper”; and submission of Jim Tucker, above n 194: “when adjudications come to a vote, the ballot is rarely split along lay-industry lines.” The perception of an individual submitter, however, was that the Press Council appears to favour the media complained about, and to be “little more than a rubber stamp for bad behaviour by the media.”
275See also the submissions of Fairfax Media, above n 204, and the Newspaper Publishers’ Association (NPA) (March 2012).
276Lara Fielden Regulating the Press: a Comparative Study of International Press Councils (Reuters Institute for the Study of Journalism, University of Oxford, 2012) at 26 [Regulating the Press].
277Above n 187, at 75.
278New Zealand Press Council Constitution, above n 231, cl 23.1.
279At cl 19.1.
280See also at cl 31.2, the Executive has a level of control of the Council’s finances as the budget is subject to the approval of the Executive.
281Broadcasting Act 1989, s 6(1). A compliance audit found nearly all broadcasters to be compliant with the Act, with improved compliance from the previous audit: Broadcasting Standards Authority Annual Report (2012) at 19.
282Big Picture Research, above n 199.
283Big Picture Research, above n 199. Knowledge of the two bodies increases with age, with those in the 50 to 70 age bracket having the highest awareness of the BSA (96%) and the Press Council (37%). Women are slightly more likely to have heard of the BSA (95% vs 91% of men) while men are more likely to have heard of the Press Council (32% vs 20% of women).
284Barker-Evans Review, above n 231, at 78 – 79.
285Submission of the Press Council, above n 274, at 4.
286Big Picture Research, above n 199. The BSA’s own commissioned research indicated that New Zealanders are most aware of standards around offensive or obscene language (45%) or around sexual or lewd conduct (35%), with balance and fairness issues considerably less likely to come spontaneously to mind than more overt issues such as language – see ACNielsen, above n 283.
287Big Picture Research, above n 199.
288Broadcasting Standards Authority Statement of Intent, above n 225, at 12.
289Broadcasting Act 1989, s 13(1)(a).
290See Burrows and Cheer, above n 237, at 204.
291Submission of the NPA, above n 275, at [1.19]. See also the submissions of the Media Freedom Committee and Jim Tucker, above n 194.
292Submission of Massey University Journalism Programme, above n 201, at [3.4].
293See however the submission of the Press Council, above n 274, at 4, noting that the Council has adjudicated on 125 complaints over the last two years, roughly the same number as in the previous three years combined.
294Nielsen Broadcaster Complaints Process: Satisfaction Survey (report for Broadcasting Standards Authority, 2009). Submission of TVNZ, above n 214, at [40] suggested greater filtering of unmeritorious complaints as it believes too much time and resource is being spent on such claims by broadcasters and the BSA. SPADA, in its submission, above n 201, at [7.1] also suggested a filtering process by a sub-panel for vexatious or trivial complaints.
295For example, see the purpose of the BSA in Broadcasting Standards Authority Statement of Intent, above n 225, at 4, 6, and 9 – 11.
296Five out of nine broadcasters considered the BSA’s decisions to be “fair” or “very fair”, and only one rating the BSA’s decision as “unfair”: Nielsen Satisfaction Survey, above n 294. The BSA’s target for the 2012-2013 year is that 80% of broadcasters rank BSA processes and working relationships as good or very good on a five-point scale: Broadcasting Standards Authority Statement of Intent, above n 225at 29.
297Broadcasting Standards Authority Annual Report (2012) at 15-17. The BSA suggests it may be possible that the reduced number of appeals (only 2 in the 2012 reporting period) is due to its renewed focus on freedom of expression.
298Steven Price The BSA and the Bill of Rights (report for Broadcasting Standards Authority, 2012). See also JF Burrows Assessment of Broadcasting Standards Authority Decisions (report for Broadcasting Standards Authority, 2006) at 16–19; Burrows and Cheer, above n 237, at [14.2.4].
299For example, see the submission of SPADA, above n 201. To verify these comments, an assessment of the BSA’s decisions would be required, for example see Burrows Assessment of Broadcasting Standards Authority Decisions, above n 298, at 10–12. In that review, Professor Burrows emphasized the importance of consistent decision-making and concluded that overall the BSA’s decisions for 2005 were self-consistent, subject to an anomaly in the case of covert filming.
300Submission of TVNZ, above n 214, at [62.3]. See also the submission of Vienna Richards (March 2012) at 6, with the view that sometimes the BSA comes across as being weighted in favour of the industry in some decisions.
301See Television New Zealand Limited v West [2011] 3 NZLR 825.
302Television New Zealand Limited v Freeman HC Wellington CIV 2011-485-840, 26 October 2011.
303One of the BSA’s key deliverables is to commission independent focus groups to litmus test its decisions against community attitudes to standards: see Broadcasting Standards Authority Statement of Intent, above n 225, at 23. The latest survey was carried out in May 2012 and focused on the good taste and decency standard, but did not include decisions relating to news and current affairs.
304However a new principle dealing with conflicts of interest was introduced.
305Barker-Evans Review, above n 231, at 73.
306Submission of the Press Council, above n 274, at 4.
307Submissions of the Press Council, above n 274, and the NPA, above n 275.
308Submission of Fairfax Media n 204.
309This power has only been used once: see above n 227.
310Submission of the Privacy Commissioner (20 March 2012) at 4.
311Submission of TVNZ, above n 214, at [50]. SPADA, above n 201, also does not favour the current system of the BSA awarding costs.
312Colin Peacock Principles and Pragmatism: An Assessment of Broadcasting Standards Authority Decisions from a Journalist’s Perspective (review for Broadcasting Standards Authority, 2009) at 10.
313New Zealand Press Council Annual Report (2011) at 6. The Press Council has noted that on occasion editors have sought to modify or weaken the effect of an adjudication by critically commenting on it. While the Council’s Statement of Principles does not prevent this, the Council notes that such action risks undermining the public’s confidence in the self-regulatory complaints system. See New Zealand Press Council Annual Report (2010) at 8.
314Submission no. 50.
315Submission of Professor Ursula Cheer at 3.
316Barker-Evans Review, above n 231, at 68 – 69. At 79, the review found that the Press Council’s remedies were not considered prompt or effective by the legal profession, and few lawyers knew of the complaint option.
317The proposal to enhance the powers of the Press Council was also the preferred option put forward in APN’s submission (March 2012).
318Submission of the Press Council, above n 274, at 5.
319Barker-Evans Review, above n 231, at 70 recommended the abolition of the waiver of future action against a publication as being of doubtful legal validity and finding it to be an impediment to the use of the Press Council. It suggested instead a requirement that complainants agree not to commence legal proceedings while the complaint is before the Press Council.
320Broadcasting Act 1989, s 18.
321See submissions of TVNZ, above n 214; SPADA, above n 201; and Kiwis for Balanced Reporting on the Middle East (21 February 2012).
322Submission of the BSA, above n 265, at [41].
323Broadcasting Standards Authority Annual Report (2012) at 5.
324While the BSA reviews aspects of its operations periodically, providing a measure of information, less information is available in respect of the Press Council, other than the formal Barker-Evans Review in 2007 which conducted surveys of the public, organisations, complainants and media organisations.
325Issues Paperabove n 189, at [37].
326See ch 7 at [7.88] – [7.92] for further discussion of access and transparency. See Fielden Regulating the Press, above n 276, at 117 for a summary of the Australian Press Council’s reforms in relation to transparency. See also Richard Sambrook Delivering Trust: Impartiality and Objectivity in the Digital Age (Reuters Institute for the Study of Journalism, University of Oxford, 2012).
327See submission of Professor Ursula Cheer at 3:
“As to Codes, I actually think the process around the BSA codes is better than a set of principles, even if the latter was the Press Council principles beefed up. I think although the media don’t like the BSA codes, they do have input into them and can claim some ownership. The BSA codes have been altered over the years in a way that favours media in some cases and the public in others. Media complain that general laws are often vague and uncertain. The BSA codes are more precise than the Press Council principles. I think that the regulator should formulate the codes after a consultative process.”
328At [7.54].
329Barker-Evans Review, above n 231.
330Online Media Standards Authority Constitution cl 10, provides for the powers of the Authority to be vested in the Management Board, the members of which comprise the Authority chairman and deputy chairman and at least one other member, all of whom are industry appointed.
331At cl 12.
332New Zealand Press Council Incorporated Constitution cl 9.
333Online Media Standards Authority Constitution at cl 5.
334At cl 6.
335Joint submission, above n 196, at [27].
336Current members of OMSA are subject to the BSA complaints procedure and are therefore eligible to be considered “members of the media” for purposes of the Criminal Procedure Act. However any non-BSA members that are admitted to OMSA will not be eligible without a statutory amendment and would have to rely on judicial discretion to avoid exclusion from the court.