Contents

Chapter 6
The international perspective

Regulatory convergence

6.8“Regulatory convergence” refers to the extent to which areas that traditionally have been regulated separately have been brought under common oversight. In both the United Kingdom and Australia, some convergence has already taken place with Ofcom (in the United Kingdom) and the Australian Communications and Media Authority (ACMA) having statutory responsibilities in relation to both broadcasting and telecommunications. Press Councils (in the United Kingdom, the Press Complaints Commission) continue to operate in both countries on a self-regulatory basis, similar to the New Zealand Press Council.

6.9Reviews in both countries are assessing issues of further regulatory convergence. Greater convergence of media services has thrown up gaps and inconsistencies, raising questions about how oversight should be re-examined and reformulated. This is complicated by the different regulatory traditions of broadcasting (statutory regulation), the print media (self-regulation) and online media (not specifically regulated). It is also complicated by the rate of change. As the Finkelstein Report notes, “[i]n a period of transformation, such as the one being experienced currently, adjustments can occur rapidly and how the market will eventually settle is difficult to predict.”349
6.10 In New Zealand, a review of broadcasting regulation was initiated by the Ministry for Culture and Heritage and the former Ministry of Economic Development; however, the work was not progressed beyond a consultation paper following the change of government in 2008.350

Australia

Convergence Review

6.11The Convergence Review identified that the current content-specific, platform-specific and provider-specific content codes are inconsistent, confusing and inflexible. It concluded that there is no justification for news and commentary to be subject to different systems for complaints and enforcement depending on the platform on which it is delivered351  and proposed two new bodies and a tiered approach to content regulation:
(a) A communications regulator to be responsible for all compliance matters related to media content standards except for news and commentary, with new content services legislation replacing the Broadcasting Services Act 1992 (Cth) and existing classification legislation;
(b) An independent self-regulatory news standards body that would cover all platforms (print, online and television and radio) and that would ultimately absorb the functions of the Australian Press Council (APC) and the Australian Communications and Media Authority (ACMA) in relation to news and commentary. (However, the Australian Broadcasting Corporation (ABC) and the Special Broadcasting Service (SBS) would operate under their own updated statutory charters, rather than being brought under the news standards body.)

6.12There would be linkages between these two new bodies. For example, the news standards body would be able to refer persistent or serious breaches to the communications regulator. On the other hand, the communications regulator could request the news standards body to investigate potential breaches, and would have to be satisfied that the new self-regulatory arrangements were working effectively before the broadcasting codes for news standards were repealed. It would also conduct a review of the news standards body after three years, at which time it could recommend the continuation of the news standards body, legislative adjustments to improve its effectiveness, or its dissolution (should it prove ineffective) and replacement with direct statutory measures.

Finkelstein Inquiry

6.13The Finkelstein Report also recommended a single converged regulator for news producers, irrespective of delivery platform.352  The proposed News Media Council would apply a substantially uniform set of rules to all news producers (print, online, radio and television), taking over from the news and current affairs standards functions of the APC and ACMA:353

In an era of media convergence, the mandate of regulatory agencies should be defined by function rather than by medium. Where many publishers transmit the same story on different platforms it is logical that there be one regulatory regime covering them all.

6.14The report identified a number of benefits in a “one stop shop” regulatory arrangement that applies to all news producing media.354  However, the converged regulator proposed by the Finkelstein Report differed from that recommended by the Convergence Review in some respects such as membership compulsion and statutory backing, as we discuss below.

United Kingdom

Review of Communications Act

6.15The review of the Communications Act 2003 (UK) is ongoing, with a White Paper due in 2013. An industry Working Group paper contributing to the review notes that for news and information, distinctions between broadcasters, newspapers and publishers will blur as each develop new converged services comprising audio, video, text and interactive features.355  New regulatory oversight will have to deal with a world where an ever wider range of content will be available through linear and non-linear sources, and in which both will be accessed via the same devices.356  The paper therefore concludes that convergence exposes inconsistencies in the regulation of different types of media and services but that a single overarching regulatory model may not be feasible in the short term, instead recommending a flexible and pragmatic approach that can evolve over time.357
6.16In relation to news provision, the industry Working Group noted that convergence raises the argument to deregulate the rules that apply to broadcasters, but concluded that any deregulatory measures should proceed with caution as it is important not to undermine levels of trust in television news.358

Lara Fielden

6.17In her book on media regulation, Fielden advocates a period of managed transition towards a tiered framework for media regulation.359  Her proposed framework would narrow statutory regulation to baseline regulation for television and video on-demand (tier 3), complemented by independent regulation, initially of the press, but over time expanded to broadcasters, video on-demand providers and currently unregulated online providers (tier 2). Fielden also proposes another tier of statutory regulation in relation to public service content (tier 1).

Leveson Inquiry

6.18 The Leveson Inquiry was tasked with specifically investigating press practices, rather than the news media more broadly, and did not address issues of convergence. However, some submissions to the Leveson Inquiry proposed converged regulation of news providers. For example, the Media Standards Trust proposed strengthened self-regulation that could extend in the future to a range of news publishers using different platforms.360
6.19 Other proposals envisaged some degree of regulatory convergence. For example, the Media Regulation Roundtable proposed a new Media Standards Authority that would be open to any media organisation outside the statutory system of broadcast regulation, including newspapers, magazines, news websites and bloggers.361

Other jurisdictions

6.20Lara Fielden’s review of Press Council models noted that the Press Councils in Norway, Finland and Denmark cover the three print, broadcast and online media platforms.362  For example, the Danish Press Council has registered blogs and Twitter accounts as members, and the Norwegian Press Council has extended coverage to associated social media sites such as Twitter and Facebook, so that comments by journalists in the social media are covered if they are used in connection with their journalism. The Finnish Press Council has also developed rules for media websites and deals with user-generated content. Sweden has a cross-platform code, although this is administered by three different regulators.
349Finkelstein Report, above n 345, at 327. The uptake of ultra-fast broadband for example may increase the use of converged services, see Tambini, above n 343.
350Ministry for Culture and Heritage Broadcasting and New Digital Media: Future of Content Regulation, above n 344; “Briefing for the Incoming Minister of Broadcasting” (December 2011) at 8 – 9. See also Law Commission The News Media Meets the ‘New Media’: Rights, Responsibilities and Regulation in the Digital Age (NZLC IP27, 2011) at 111–114 [Issues Paper].
351Convergence Review, above n 346, at 49.
352The Inquiry received around 9600 comments calling for “the creation of one strong and independent regulator that can hold all media to the same standards of conduct.” Convergence Review, above n 346, at 49.
353Finkelstein Report, above n 345, at 8 – 9.
354At [11.34]. See ch 5 at [5.30].
355Working Group on Content Regulation, British Screen Advisory Council “BSAC Communications Bill Report” (September 2011) <www.bsac.uk.com/policy-papers> at [2].
356At [23].
357At 9 – 10.
358At [49].
359Fielden Regulating for Trust in Journalism, above n 348, ch 4.
360Media Standards Trust “A Free and Accountable Media” (submission to the Leveson Inquiry, June 2012) at 97.
361Media Regulation Roundtable “Final Proposal for Future Regulation of the Media: A Media Standards Authority” (submission to the Leveson Inquiry, 7 June 2012) at [56]. The roundtable is an independent group of academics, journalists, lawyers and others brought together by the Reuters Institute for the Study of Journalism and the Media Standards Trust to discuss issues of future media regulation.
362Fielden Regulating the Press, above n 348, at 16 – 17.