Contents

Chapter 7
Ethical journalism – a new approach to media standards
in the digital age

How to bring the new regime into force

Independent working party

7.177 The question is how and when the NMSA should be set up. Presently the Press Council covers newspapers and newspaper websites. It has also recently assisted other websites to handle complaints – Scoop, Yahoo!New Zealand and MSN NZ for example. Being unconstrained by statute it is capable of extending its jurisdiction even further. It could for example even admit to membership small news websites and bloggers.

7.178As a response to our Issues Paper the broadcasters, both television and radio, have created a new body, OMSA, to deal with the websites of broadcasters (and perhaps others).542  The BSA remains seized of actual broadcasts. We commend the Press Council and the broadcasters for their initiative in filling some of the existing gaps. Both of their systems have similar objectives and modes of operation. The Press Council and broadcasters have been in discussion with each other to share ideas.

7.179When OMSA has bedded in there will be two parallel self-regulatory systems doing the same job in relation to different platforms of delivery. A person who is adversely affected by material published in a number of media may have to lodge complaints with two bodies (or if it has been broadcast as well, with three). They may get different outcomes from each body. The jurisdiction of each complaints body is not the same and therefore gaps will remain. That seems less than consumer friendly. Nor is it economically efficient to finance separate personnel and administrative services. We maintain the view that there should be a single standards authority with a single point of entry. Convergence of the media themselves must inevitably lead to a convergence of a standards authority.

7.180One option would be to recommend that OMSA and the Press Council should begin discussions with a view to merging their two organisations. That way there would be industry buy-in. But we conclude that this solution is not optimal. The parties may not be able to agree on all details. Moreover, such a process includes the risk that one party might be perceived as “taking over” the other. It is also past focussed and is liable to bring with it “baggage” from the former entities. We therefore consider it is necessary to focus on the establishment of a new body, albeit one which draws on the best features of the bodies which already exist.

7.181The question is how to achieve this. Obviously the media industry needs to be heavily involved in that process of creation, but we think that, to achieve unarguable neutrality and objectivity, an establishment working party needs to be set up. We believe it should be chaired by the nominee of the Chief Ombudsman. The nominee should be an eminent, independent person such as a retired judge. The rest of the group should be appointed by the chairperson after consultation with the industry. They should include representatives of the industry and representatives of the public. Ideally the working party should not exceed seven persons, with industry representatives in the minority.

7.182The working party will obviously need to consult widely. Those consultations should include the Press Council, OMSA and the BSA. It will be essential to draw on the experience of those bodies. Industry acceptance of the eventual model will also be crucial. Without wishing to be prescriptive, we envisage that the tasks of the working party would be as follows:

  • It would draw up the constitution of the NMSA, providing for both its management and its adjudication functions.
  • It would lay down the manner of, and the criteria for, appointing the members of the NMSA, in accordance with the guidelines set out earlier in this chapter. We believe that all appointments should have the involvement of the Chief Ombudsman or her nominee.
  • It would itself appoint the foundation members of the NMSA.
  • It would draw up a mechanism for industry funding of the NMSA.
  • It would draw up model forms of contract to be entered into between the NMSA and members of the news media electing to belong to it.
  • It would advise, if necessary, on the initial funding contract with government to support the NMSA’s oversight and monitoring functions.
7.183 When the NMSA has been set up it would replace the Press Council, OMSA and substantially assume the BSA’s jurisdiction over news and current affairs.543

Legislative amendments

7.184As we have indicated earlier, our hope is that this can be accomplished without any direct statutory intervention. The media will be better respected if it can. Yet, as we have said, the nature of the exercise requires at least recognition by statute, because the definition of “news media” in the various statutes confirming privileges assumes the existence of such a body.

7.185We propose a process of the following kind. An Act should be passed containing two provisions. The first would largely remove the jurisdiction of the BSA over news and current affairs.544
7.186 The second would be a section, and an accompanying schedule, amending all the Acts conferring statutory privileges specifically on the news media, by defining “news media” as organisations subject to (a) a code of ethics and (b) the complaints process of “the News Media Standards Authority”. This would be defined in such a way to make it clear that there is to be only one such body. The Defamation Act 2009 (Ireland) is a useful precedent.545
7.187But the coming into force of the Act would be delayed. A commencement section would provide that the provisions would come into force by Order in Council when the NMSA had been set up. This means that the state would not create NMSA; it would simply recognise it for the purpose of the statutory media privileges and exemptions. It would do no more than the Criminal Procedure Act already does in respect of the Press Council, and schedule 1 of the Defamation Act does in respect of a body safeguarding the standards of the press.546  Moreover the statutory recognition would itself not become operative until after NMSA had already been set up. Its setting up would be entirely independent of statute.

7.188As we indicated earlier, the setting up and operation of the converged authority should be reviewed after a period of one year. That review should be undertaken by the Chief Ombudsman or her nominee. If there were found to be inadequacies or failures, or if insufficient progress had been made, the possibility of more directive intervention would then have to be considered.

542Online Media Standards Authority (OMSA) <www.omsa.co.nz>.
543At [7.44] above, we recommend that the BSA retain its jurisdiction over news in relation to standards of good taste and decency and protecting the interests of children.
544We recommend however at [7.44] above that the BSA retain its jurisdiction over news in relation to standards of good taste and decency and protecting the interests of children.
545Defamation Act 2009 (Ireland), s 44.
546Defamation Act 1992, sch 1, Part 2, cl 7.