Contents

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

Convergence – the policy problem

5.8 As we demonstrated in our Issues Paper, a significant problem with the current model is that the different approaches to regulating broadcast and print media are becoming increasingly difficult to justify in an age of media and technological convergence.188 Digitisation, the internet and the web have combined to produce a plethora of new ways of producing and delivering content to consumers.189  As a result the boundaries between print, broadcast media and the telecommunications sector have become increasingly blurred. It has also reduced the barriers of entry to mass publishing, allowing new entities – amateur and professional – to compete in the news market.
5.9In our Issues Paper we identified the emergence of significant gaps and contradictions in the parallel systems of state regulation for broadcasters and self-regulation for the print media.190 We described the key policy problems resulting from this convergence as:191
(a) the emergence of gaps in the regulatory framework resulting in some content being subject to no regulatory oversight at all despite being generated by mainstream media and intended for wide public consumption;192
(b) a lack of regulatory parity between print and broadcast media: all news media now produce text and audio-visual content for mass distribution but only broadcasters are subject to statutory regulation; and
(c) a lack of regulatory parity between mainstream media and the new digital publishers: websites and digital publishers undertaking news-like activities are currently unregulated.
5.10There are three possible approaches to the identified problems:193
(a) close the gaps by extending the jurisdiction of both the BSA and the Press Council to include currently web-based unregulated news content;194
(b) fill the gaps by introducing an additional body, such as the Online Media Standards Authority (OMSA),195to deal with currently unregulated web-based news content;196 or
(c) replace the existing bodies with a single standards body responsible for defining and enforcing standards across all news media irrespective of the platform on which they publish.197
5.11The first two options would leave the regulatory parity problem unresolved and require arbitrary boundaries between content regulated by statute and content subject to self-regulatory schemes.198  Our preliminary conclusion in the Issues Paper was that neither of the existing models is suited to the age of converged media and instead a new single standards body is desirable.

The response from consultation

5.12The public research we commissioned indicated that the public are very open to the idea of a single body to deal with complaints against all news media,199 with a preference for an independent authority (61 per cent), and that there is a good degree of support from the New Zealand public around a set of standards that are uniform across all media.200
5.13 The case for a single, independent body with jurisdiction over all news media also received support from a number of major news media organisations including the state broadcasters (Television New Zealand and Radio New Zealand), the Newspaper Publishers’ Association (a trade organisation which represents 28 daily and Sunday newspapers) and the journalists’ union, the Engineering, Printing and Manufacturing Union (EPMU).201
5.14 Unsurprisingly perhaps the most vigorous proponents of a converged standards body were traditional broadcasters, like TVNZ, who argued that a single body would provide “a level playing field across all news media … ensuring greater accessibility for consumers.”202 MediaWorks also expressed a principled opposition to the dual regulatory regime suggesting that it created an “asymmetric and unfair regulatory environment” for New Zealand media.203 The Media Freedom Committee, an industry group which advocates on free speech matters on behalf of all major news publishers (print and broadcasters) also suggested the time had come for a single body:204

The majority view on the MFC is that the time has probably come for the mainstream media to answer to a single regulator … Editors believe it is no longer necessary – if it ever was – for the complaints processes for print and broadcast media, along with their websites, to be different.

5.15For most mainstream media however, support for a single standards body was predicated on a non-statutory model – in other words moving towards a lighter regulatory environment for broadcasters, rather than moving print along the regulatory spectrum towards statutory regulation. However, not all were convinced that the dual regulatory system was broken to such a degree as to require the overhaul proposed in the Issues Paper.

5.16For example, while accepting that technological change, including convergence, had led to a lack of regulatory parity, Google argued that the Commission had not demonstrated that large numbers of consumers were being left without a remedy because of the lack of jurisdiction over the online content of news organisations on the one hand, and nor, it argued, had it demonstrated that the inability to complain about new media sites, such as bloggers or unregulated news websites, was creating a significant problem. Google therefore argued that without evidence of such a problem, there was:205
(a) no justification to extend any regulatory regime to new media;206and
(b) no justification for over-hauling the Press Council/BSA model.

5.17Google proposed an alternative solution to amend the Broadcasting Act 1989 to extend jurisdiction to broadcasters’ websites and on-demand content. It saw no case for forcing “new media” such as current affairs bloggers under this or any other regulatory regime. Two print submitters, magazine publishers ACP and Allied Press, publishers of the Otago Daily Times and regional television broadcasters CTV and Channel 9, also disputed the need for any change to the current regulatory system.

5.18Allied Press was strongly opposed to any change to the Press Council’s voluntary self-regulation model for newspapers and proposed that the gaps identified in the Issues Paper could be filled by extending the jurisdiction of the BSA to cover broadcasters’ websites and other internet-based websites, leaving the Press Council to cover newspapers and their websites. Allied Press was also sceptical that the model proposed in the Issues Paper would in fact be successful in moderating the behaviour of outliers:207

Any new regulations will be followed anyway only by responsible media and will fail completely in securing any form of control or co-operation of “cowboy” operators who, as previously outlined, already thumb their noses at the law, often without any real consequences.

5.19ACP pointed out that the news media are already subject to a raft of laws including defamation law, contempt, consumer law and confidentiality:208

We are concerned that the Law Commission appears to underestimate the “handbrake” effect of the threat of legal action on all publishers, treating it as though it is a remote possibility and not the very real risk it actually is.

ACP also argued that any gaps in the existing regulatory system could most efficiently be dealt with by “minor amendments to current policies or statutes.”209

Developments

5.20Since the publication of our Issues Paper we have continued to liaise with the key media stakeholders and in that process have been made aware of initiatives to address some of the problems we had identified.

5.21First, in response to the issues raised in the Issues Paper, the Newspaper Publishers’ Association (NPA) confirmed its preference to expand the remit of the existing Press Council to form a new independent self-regulatory body (the “Media Council”) that would be broad enough to include not just the print media (and related online sites), but also the wholly online media, and broadcasters – both linear and website/on-demand content – provided the broadcasters are willing to join.210

5.22The NPA proposed the new Council would have the following features and functions:

  • voluntary and open to the new media that meet the Law Commission’s recommended criteria211 and who are willing to be subject to the Council’s authority;
  • setting a Code of Standards (or codes if necessary) to encompass specific broadcast or digital needs, after public consultation;
  • chair and panel members to be appointed by an electoral college, with industry but no government input;
  • powers to direct the publication of corrections and apologies;
  • funded by the news industry with a variable funding formula to accommodate small operators;
  • encouraging members to use a qualmark on news products to signal to consumers their adherence to independent standards;
  • providing pre-publication guidance to editors about standards compliance; and
  • requiring regular publicising of complaints processes for consumers by members.
5.23Another development has been the launch of a new complaints body, the Online Media Standards Authority (OMSA), a joint initiative by the major broadcasters, including MediaWorks, Television New Zealand, Sky/Prime, The Radio Network, Māori Television and Radio New Zealand.212  This self-regulatory body (largely modelled on the Advertising Standards Authority and Press Council models) is to provide a complaints adjudication mechanism for news and current affairs published solely online. In their joint submission the broadcasters described this initiative as a “pragmatic and immediate response” to the regulatory gaps identified in the Issues Paper.213 Although limited initially to handling complaints about online news and current affairs, the broadcasters see potential for the new body to extend its jurisdiction in the future to other genres of online content.214
5.24 Membership of OMSA would be entirely voluntary. Like the current Press Council, OMSA would be entirely industry funded and its governance structures controlled by the industry, but its chair and the majority of its seven member complaints panel will all be independent of the industry. The initial chair of the complaints committee is retired Court of Appeal judge Sir Bruce Robertson. We discuss OMSA’s structure further at the end of this chapter.215

Implications of convergence

5.25These initiatives by the mainstream media to address the regulatory gaps that have emerged as a result of convergence and digitisation share many common features. Both support voluntary, industry-led self-regulation that is independent of government. Both support the application of similar standards to news and current affairs irrespective of the format in which it is published. Both are dependent on voluntary compliance and industry funding. In this respect they do not vary greatly from the type of independent media standards body we proposed in our Issues Paper.

5.26However, the OMSA initiative is industry rather than consumer-facing, and side-steps – or arguably exacerbates – the fundamental problem with the existing format-based regulation. Instead of two different standards bodies, consumers would have to negotiate three different regulatory regimes. As we saw in the research we commissioned, there is strong public support for a single news media complaints body.

5.27British academic Lara Fielden, who has published widely on the challenges of standards regulation in the age of convergence, has reached the view that unless policy makers adopt a “first principles” approach to resolving this regulatory labyrinth “public trust across media will be put at risk.”216

5.28Just such a first principles approach has been adopted by the major media and convergence reviews we have surveyed. Although the focus and scope of these reviews differ, they each grapple with the disruptive impacts of digital technology and convergence on the regulatory environment, and generally recognise that format-based regulatory models designed in a pre-digital era are no longer fit for purpose.

5.29The one review that did not address the central issue of convergence was the Leveson Inquiry.217 Overall, however, there is a clear shift in favour of converged regulation, although some reviews are still ongoing and the reviews that have been concluded remain subject to the response of the relevant government before they are progressed.218
5.30 In Australia, the Finkelstein Report saw the following advantages in a “one stop shop” regulatory arrangement applying to all news producing media, regardless of delivery platform:219
  • It is fairer that all providers of news and public affairs content be subject to a single set of standards consistently administered by the same body and with the same sanctions (allowing for some minor variations to accommodate platform-specific differences).
  • It is more satisfactory for consumers to have one body to which they may complain regardless of the platform concerned.
  • It is a more efficient use of government resources to set up and maintain a single regulator for news and current affairs reporting standards than to have different regulators for different entities.
5.31We maintain our preference for a single standards body and note that the majority of New Zealand’s major news producers also see this as the inevitable consequence of digitisation and convergence. As Fairfax Media stated in its submission, “[n]ew technologies and convergence mean all major companies have multi-media operations and adjudicating complaints separately would be a nonsense.”220

5.32Having established the case for a single converged standards body for all news media we now turn to consider what type of body this should be. We begin this exercise by examining the strengths and weaknesses of the existing complaints bodies to assist in identifying the critical attributes necessary for effective oversight of news standards.

188See also Gavin Ellis “Different Strokes for Different Folk: Regulatory Distinctions in New Zealand Media” (2005) 11 Pacific Journalism Review 63; Russell Brown and Steven Price The Future of Media Regulation in New Zealand: Is There One? (Report for Broadcasting Standards Authority, 2006). For further discussion of the issues associated with convergence, see Ministry for Culture and Heritage Broadcasting and New Digital Media: Future of Content Regulation (Consultation Paper, 2008); InternetNZ Responding to Convergence in Communications Markets (Discussion Document, 2012). 
189See Law Commission The News Media Meets ‘New Media’: Rights, Responsibilities and Regulation in the Digital Age (NZLC IP27, 2011) at chs 2 and 4 [Issues Paper].
190At [1.45].
191At 6 – 7.
192On-demand content accessed via broadcasters’ websites is one striking example. The creation of OMSA in February 2013 was in direct response to this issue.
193An alternative option is put forward in the submission of the Chief Censor (12 March 2012) at [8] – [12]. Another view expressed in the submission of TechLiberty (12 March 2012) at 3 is that accountability to an external body is no longer necessary in the web environment.
194For example, see Option 1 in submission of Jim Tucker (4 March 2012) at 5 – 6.
195See [5.23] – [5.24]. 
196For example, see the joint submission of broadcasters TVNZ, MediaWorks, ThinkTV, SKY Network Television, Radio NZ, The Radio Network, and the Radio Broadcasters’ Association (4 April 2012) at [28] – [49].
197For example, see Option 2 in submission of Jim Tucker, above n 194, at 6.
198For example text-based stories published on newspaper websites, and the same or similar content on broadcasters’ websites, would be subject to different complaints procedures.
199Big Picture Marketing and Strategy 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]: 52% definite support plus an additional 36% possible support. 
200Big Picture Research, above n 199: 92% agree that the same standard ought to apply, regardless of the mode of publication (with over 55% strongly agreeing).
201See also support for a converged approach in the submissions of David Harvey at 8, Professor Ursula Cheer at 5, Massey University Journalism Programme academics (Alan Samson, Dr Grant Hannis and Dr James Hollings) at [3.2], The Equal Justice Project (Human Rights Division of Auckland University’s Faculty of Law) at [2.1], Trade Me Limited (12 March 2012) at [20], the Screen Production and Development Association (SPADA) (29 March 2012) and the New Zealand Society of Authors (March 2012).
202Submission of TVNZ (4 April 2012) at [16]. 
203Submission of MediaWorks (11 April 2012) at [11].
204Submission of the Media Freedom Committee at [3.6]. See also the submission of Fairfax Media (9 March 2012) acknowledging that a single regulator is inevitable for the future.
205Submission of Google New Zealand Limited (14 March 2012).
206In its submission it appears that Google assumes that new media would be compelled to come under the proposed news media regulator, which is not in fact the proposal. 
207Submission of Allied Press Limited (6 March 2012) at 3.
208Submission of ACP Media Limited at [4.4].
209At [2.3].
210See Linda Clark “NZ Watchdogs Must Keep Up With Media’s Changing Face” (2012) 18 Pacific Journalism Review 46 at 48.
211Issues Paper, above n 189, at [4.169].
212OMSA was registered as an incorporated society on 17 January 2013 and publicly launched on 14 February 2013. It is due to begin operations in the second quarter of 2013.
213Joint submission, above n 196.
214See also the submission of Television New Zealand (TVNZ) (4 April 2012) confirming its support for OMSA in the short term, while supporting the establishment of a converged body in the longer term, whether as an extension of OMSA or through establishing a similar body with larger membership.
215At [5.117] – [5.125].
216Lara Fielden Regulating for Trust in Journalism: Standards Regulation in the Age of Blended Media (Reuters Institute for the Study of Journalism, University of Oxford and City University London, 2011) at 2. See ch 1 at [1.48] where we cite Fielden’s research.
217The Rt Hon Lord Justice Leveson Report of An Inquiry into the Culture, Practice and Ethics of the Press (The Stationery Office, London, 2012) [the Leveson Report].
218One aspect on which there is divergence is the timing of converged regulation and whether it should be implemented in the short to medium term, or whether there should be a more gradual process towards converged regulation. For example, see the Working Group on Content Regulation, British Screen Advisory Council “BSAC Communications Bill Report” (September 2011) <www.bsac.uk.com/policy-papers>.
219The 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 [11.34] [Finkelstein Report].
220Submission of Fairfax Media (9 March 2012) at [4].