Contents

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

Current regulatory models

5.33Our current regulatory arrangements, based on traditional distinctions between print and broadcast media, are similar to those in the jurisdictions to which New Zealand traditionally compares itself – the United Kingdom, Australia and most of the provinces of Canada.221 As we discuss in the following chapter, these historical regulatory measures for the news media have been the subject of a number of reviews in the United Kingdom and Australia.
5.34In this section we compare and contrast some of the primary features of the Press Council and the BSA, before assessing their overall strengths and weaknesses. Because of their different positions on the regulatory spectrum, the two bodies differ in significant ways with respect to their governance, functions, jurisdiction and powers. In chapter 2, we provide an overview of the background to the establishment of the BSA and the Press Council respectively,222 and in chapter 4 we provide some analysis of the level of complaints to each body.223

5.35The third complaints body, OMSA, has not commenced operation as at the date of this report. We have not therefore included OMSA in this analysis, although we outline some of its features at the end of this chapter.

Nature and sanctions

5.36The Press Council is a self-regulatory body which depends on the voluntary co-operation and compliance of its member organisations.224 It has no statutory power to enforce decisions or impose sanctions but creates an expectation that each member of the Press Council will publish an adjudication upheld against it.
5.37In contrast, the BSA is a Crown entity established by statute and operates within a co-regulatory content regulation environment. Complaints are only referred to the BSA if the complainant is dissatisfied with the handling of their complaint by the broadcaster.225 All broadcasters are covered by its jurisdiction and it is able to apply a range of sanctions including compensatory damages in privacy cases,226  and other commercial penalties such as forcing a broadcaster to forego advertising revenue by broadcasting commercial-free for up to 24 hours.227 The BSA can also order publication of an approved statement where it finds a complaint is justified228 (unlike the Press Council), and it can make costs awards.229 Failure to comply with a BSA order is an offence carrying a fine of up to $100,000.230

Functions

BSA

5.38The functions of the BSA are set out in section 21 of the Broadcasting Act and include:

(a) receiving and determining complaints;
(b) publicising its procedures in relation to complaints;
(c) issuing advisory opinions;
(d) encouraging the development of, and approving, codes of practice; and
(e) conducting research on matters relating to standards in broadcasting.

Press Council

5.39 The objects of the New Zealand Press Council Incorporated are set out in clause 3 of its Constitution and “are to provide the public with an independent forum for resolving complaints against the print media, and to promote press freedom and to maintain the press in accordance with the highest professional standards”. The complaints function is delegated to the Council.231

Freedom of expression and other interests

5.40In theory, the two adjudicating bodies have different approaches to balancing freedom of expression against other important interests. The BSA (a body subject to the New Zealand Bill of Rights Act 1990) states its purpose is to:232

... oversee New Zealand’s broadcasting standards regime so that it is fair to all New Zealanders, by balancing the broadcasters’ right to freedom of expression with their obligation to avoid harm to individuals and society.

The Press Council gives primary consideration in dealing with complaints to freedom of expression and the public interest in publication.233
5.41We have not observed that the theoretical difference in approach makes any difference in practical terms to the decisions of the two bodies. But it is worth noting the view of Gavin Ellis in his 2005 article that the different expressions of the advocacy function have influenced each body’s direction:234

The Press Council’s constitution requires it to uphold the principles of freedom of speech and of the press but deals with objectives only in general terms. Section 21 of the Broadcasting Act 1989 gives the BSA not only authority for the maintenance of standards but a strong catalytic role in their creation. The Act prescribes the areas in which that advocacy should lie and, unlike the Press Council’s mandate in favour of free expression, is predicated on an assumption of the need for public safeguards against what might be seen as injurious publication.

Principles and standards

5.42The Press Council and the BSA take different approaches to how they define and apply standards. The standards applied to the print media are more open-ended than those applied to broadcasters. The Press Council has a set of principles which are intended to provide guidance to the public and publishers with respect to ethical journalism:235

The Press Council’s “Statement of Principles” contains a less detailed and far-reaching set of constraints for print publishers than the equivalent broadcasting codes. For example, the rules about what constitutes an invasion of privacy, or breach of the fairness and balance standards, are much clearer in the broadcasting codes, and the Statement of Principles does not contain rules about taste and decency, law and order, alarming material, or the reliability of sources (though complainants may complain to the Press Council about matters not contained in the Statement of Principles).

5.43 In contrast the BSA must apply standards laid down in primary legislation and work with industry to translate these into specific codes of practice which are used to assess complaints. There are four codes (free-to-air television, pay television, radio and election programmes). These codes contain the standards to be followed by broadcasters as well as guidelines to assist in interpreting the standards. The BSA has also developed 12 practice notes to explain the likely approach the BSA takes to particular issues about standards.236 It has a developed a significant body of media jurisprudence particularly in the area of privacy.237

Funding and resourcing

5.44The Press Council is entirely dependent on funding from its member organisations for its annual budget of $237,000. It has one full time staff person and adjudicated 60 complaints in 2011.238
5.45The BSA’s 2011/12 revenue was $1.443 million, of which $787,282 came from the industry levy and $609,000 from the Crown. It has a full time chief executive, two legal advisers, an administrator and two part-time support staff. It contracts its financial services from NZ on Air who it is co-located with. In 2011/12 the BSA released 162 decisions (236 decisions in 2010/11),239 67 per cent of which concerned news, current affairs and factual programming (68 per cent in 2011).240

Appointments

5.46Industry members of the Press Council are appointed by representatives of their respective sectors and the public representatives by an appointments panel comprising nominees of the Newspaper Publishers’ Association (NPA) and the EPMU, the chief Ombudsman and the current chair.241 The chair, who must be independent of the press, is appointed by industry stakeholders.

5.47In contrast, the BSA’s chair and board members are all appointed by the Governor-General on the advice of the Minister of Broadcasting.

Complaints process

5.48Access to the complaints processes of both the Press Council and the BSA is contingent on a complaint first being made to the publisher or broadcaster. If the complainant is not satisfied with the initial handling of the complaint, it may then be referred to the Press Council or to the BSA.242
5.49 The Press Council and the BSA each have a mechanism for filtering complaints and declining to consider them further. The Press Council’s constitution confers discretion to decline a complaint if the circumstances make it inappropriate for resolution by the Council243 and from time to time a gatekeeper committee (comprising the chair, a public member and an industry member) will consider whether or not a particular complaint should be referred to the full Council for adjudication. The BSA may decline to determine a complaint if it is frivolous, vexatious or trivial. 244 A complainant to the Press Council must waive their rights to bring legal action in relation to their complaint.245
5.50The option of mediation, with the agreement of the publication and the complainant, is offered by the Press Council, but this is not available in relation to BSA complaints. There is a right of appeal from a decision of the BSA to the High Court, but there is no appeal from a Press Council decision.246
5.51As a statutory body the BSA has the power to compel parties to disclose information and to appear before the Authority to give evidence. The Press Council has no such powers to conduct its own inquiries into a complaint, although its complaint procedures indicate that it may request further information from the parties in appropriate circumstances in accordance with natural justice.247
5.52Because it is not a statutory body, the Press Council has been free to determine its own response to the internet without any legislative amendments or the consent of any external agency.248 The Council has extended its jurisdiction to all content published on its members’ websites – including audio-visual content. When requested, it has also taken on a role as adviser and occasional mediator in relation to complaints arising from content published on non-traditional media websites.249
5.53The BSA, in enforcing statutorily backed industry codes, has not been able to extend its complaints jurisdiction to online content without statutory amendment. The BSA’s chair has acknowledged the challenges involved in maintaining standards in relation to traditional broadcasting when similar standards do not apply to internet broadcasting and the increasing recognition that the Broadcasting Act needs review or replacement.250

5.54A final point to note is that neither the BSA nor the Press Council is currently able to initiate investigations into significant breaches of standards by media organisations but rather must rely on receiving a complaint from a member of the public before doing so.

Developments

5.55Since the publication of our Issues Paper, we are aware that the BSA has begun consulting with broadcasters about the broadcasting codes with a view to developing a modernised, user-friendly, single code in the form of a handbook that would highlight freedom of expression, and include commentary on the purpose of each standard, as well as guidance extracted from past decisions. Rather than continuing with different codes for different platforms, the concept is to develop a single set of standards, the application of which would be dependent on context and medium.251
5.56We are also aware of a proposal by the Press Council to strengthen its independence and authority by introducing binding contracts with its members which would allow it to improve its effectiveness across a range of measures, including the strength and enforcement of sanctions for serious ethical breaches. The Press Council has sought publisher agreement to giving greater prominence to its decisions.252
221See Issues Paper, above n 189, at ch 5, for further discussion of the regulatory spectrum including the approaches in other jurisdictions.
222Ch 2 at [2.40] – [2.53]. See also Issues Paperabove n 189, at ch 5.
223Ch 4 at [4.88] – [4.100].
224See Issues Paperabove n 189, at [6.15] – [6.33] for a discussion of self-regulation as a regulatory model. See also Ministry of Economic Development, above n 187, at 72 – 73, 85; Finkelstein Report, above n 219, at [10.24] – [10.25]; Advertising Standards Authority Submission (March 2012); Advertising Standards Authority “Bugger … it’s ok: the Case for Advertising Self-Regulation” at 12 – 13; Working Group on Content Regulation, above n 218.
225Broadcasting Standards Authority Statement of Intent 2012-2015 at 6. See Issues Paperabove n 189, at [6.10] – [6.14] for a discussion of state regulation and [6.34] – [6.40] for a discussion of co-regulation as regulatory models. See also Ministry of Economic Development, above n 187, at 77; Finkelstein Report, above n 219, at ch 10.
226Broadcasting Act 1989, s 13(1)(d).
227Section 13(1)(b). However, this power has only been used once: see Broadcasting Standards Authority Diocese of Dunedin and 12 others and TV3 Network Services Ltd-1999-125-137 (order for suspension of advertising for 2.5 hour period). In extremely rare cases broadcasting can be suspended for up to 24 hours. This power has only been used once: see Broadcasting Standards Authority Barnes and ALT TV Ltd-2007-029 (order for suspension of broadcasting for a five hour period).
228Broadcasting Act 1989, s 13(1)(a).
229Section 16.
230Section 14.
231New Zealand Press Council Incorporated Constitution (2011) cl 10.1. See Ian Barker and Lewis Evans Review of the Press Council (2007) at 76 [Barker-Evans Review].
232Broadcasting Standards Authority Statement of Intent, above n 225, at 4.
233New Zealand Press Council Statement of Principles at the preamble. It is not altogether clear whether the Press Council is subject to the New Zealand Bill of Rights Act, as a body carrying out a public function “conferred by law” for purposes of s 3. The preamble declares “The Press Council endorses the principles and spirit of the Treaty of Waitangi and the Bill of Rights, without sacrificing the imperative of publishing news and reports that are in the public interest.”
234Ellis, above n 188, at 68 – 69.
235Brown and Price, above n 188, at 33.
236The practice notes from the Broadcasting Standards Authority include: Costs Awards in Favour of Complainants (2012), Privacy Principle 1 (2011) and Privacy Principle 4 (2011), Controversial Issues – Viewpoints (Balance) as a Broadcasting Standard in Television (2010), and Controversial Issues – Viewpoints (Balance) as a Broadcasting Standard in Radio (2009).
237See John Burrows and Ursula Cheer Media Law in New Zealand (6th ed, LexisNexis, Wellington, 2010) at [6.3]; Ellis, above n 188, at 71 – 73.
238New Zealand Press Council Annual Report (2011).
239A number of decisions in the 2010/11 year involved multiple complaints about the same programme: see Broadcasting Standards Authority Annual Report (2011).
240Broadcasting Standards Authority Annual Report (2012).
241Jim Tucker points out, in his submission, above n 194, an unusual aspect of the New Zealand Press Council is that, unlike the United Kingdom, its lay membership can outvote the industry representatives.
242For an overview of each complaints process, see Burrows and Cheer, above n 237, at ch 14.
243Constitution of the New Zealand Press Council, above n 231, cl 10.4.
244Broadcasting Act 1989, s 11.
245New Zealand Press Council “Complaints Procedure” <www.presscouncil.org.nz/complain.php> at [12]. The Barker-Evans Review, above n 231, at 54, found that few complaints that are made to the Press Council would be able to be pursued through the courts and the number of complainants asked to sign waivers was low.
246On the lack of an appeal right from decisions of the Press Council, see Ellis, above n 188, at 74 – 75.
247New Zealand Press Council “Complaints Procedure”, above n 245, at [7].
248The Barker-Evans Review, above n 231, at 78, recommended that the “principles and practices of the Press Council might be applied to the electronic print publication both for members of the Press Council and non-members, providing the latter can be feasibly funded.”
249See Issues Paperabove n 189, at [5.43] – [5.47] for an overview of the type of complaints and inquiries to the Press Council relating to online content.
250Broadcasting Standards Authority Annual Report (2010) at 4; Annual Report (2012) at 4.
251See Broadcasting Standards Authority Statement of Intent, above n 225, at 7, 12 and 27 – 28; Broadcasting Standards Authority Annual Report (2012) at 19.
252For example, in the case of print media, the proposal is that if a complaint against an article published on pages 1 to 3 is upheld, and the Press Council’s decision is not published on the equivalent page, there should at least be a pointer on that page to direct readers to where the decision can be found; and if the brief form of the decision is published, it should point to the full decision on the Press Council website.
In the case of the online media, the proposal is that if a complaint against an article is upheld, it should be annotated to read “A complaint to the Press Council against this article has been upheld on the grounds of [inaccuracy/lack of balance/etc.]”; and there should be a link to the decision on the Press Council website. If an article has been altered because of story development, the annotation should take the following form: “An earlier version of this story stated [details of story]. This version was found to have breached Press Council principles”; and should provide a link to the Press Council’s decision.