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


7.1The primary objective of this review is to determine which publishers of news content should be entitled to the legal rights and subject to the countervailing responsibilities which have traditionally applied to the news media in New Zealand. In the preceding chapters we describe the difficulties of this task now that everyone has the potential to break and disseminate news. Despite these challenges, we argue there is still a public interest in recognising the news media as a special type of communicator with access to certain legal privileges and exemptions and in continuing to hold them accountable to ethical standards.

7.2In chapter 3 we propose a way to define this special type of communicator for the purpose of the law. A core criterion for eligibility is that the communicator be subject to an ethical code and an independent complaints body. In our view, a commitment to basic ethical standards, such as accuracy and fairness, is fundamental to the type of communication the law intended to privilege. We also argue that it is in the public’s interest to ensure all those who wish to fulfil the news media’s functions, and are prepared to accept the associated responsibilities, be entitled to do so, rather than confining these privileges to those who meet certain organisational requirements, such as audience size or commercial purpose.

7.3Our terms of reference asked us to consider which, if either of the two existing news media complaints bodies, the Press Council or the Broadcasting Standards Authority (BSA), is best positioned to provide the mechanism by which the currently unregulated news media be held accountable.436  Because of the paradigm shift brought about by the internet, we have adopted a first principles approach to this question. In chapter 4 we re-examine the case for any type of regulatory intervention, before turning to the specific challenges of regulating the news media. In chapter 5 we examine the strengths and weaknesses of the Press Council and BSA in the dynamic environment of convergence.

7.4We have reached two major conclusions in relation to the Press Council and the BSA:

Our preliminary view, discussed in chapter 5, is that the newly established Online Media Standards Authority (OMSA), does not resolve these problems.439

7.5As discussed in the preceding chapter, a number of other significant overseas media reviews have reached a similar conclusion about the implications of convergence, recommending various new approaches to the specific regulatory challenges they have been asked to tackle. This cross-fertilisation of ideas has been invaluable and it will be evident that we have drawn on many of the principles and proposals put forward in these various reports.

7.6However, our recommendations are a response to the specific problems we were asked to address and reflect our own unique context: they draw on research and analysis of New Zealand’s media environment, the views of submitters to our Issues Paper, and our own assessment of how best to balance the interests of New Zealand citizens in a strong, independent and accountable news media in the digital era.

7.7In this chapter we detail our recommendation to establish a new independent media complaints body, which we have provisionally called the News Media Standards Authority (NMSA). The body we are proposing would be responsible for maintaining standards across all types of news publishers, irrespective of the format or distribution channel. It would combine the best features of the two existing bodies: it would be flexible and adaptable like the Press Council, but would have greater powers and more meaningful sanctions, like the BSA. Crucially, it would be genuinely independent of both government and the news media industry.

7.8The NMSA would have the functions of setting codes of practice; adjudicating on breaches of those codes, with a range of effective sanctions available to it; and monitoring trends in media practice. We also believe it should offer a mediation service for cases which might otherwise go to court.

7.9For reasons we will explain below, we recommend that it be entirely discretionary whether or not a publisher of news content wishes to contract into this scheme. However, under our recommended scheme, only those who are willing to be held contractually accountable to the NMSA will be able to access the news media’s legal privileges.

7.10In essence, our scheme formalises the unwritten social contract which has traditionally existed between the news media and the public they serve. It does this by cementing the connection between the rights and freedoms of the media and their corresponding responsibilities.

7.11We are also recommending that other important benefits be reserved for those willing to opt into this system – including access to public funding for the production of news and current affairs programmes, and access to mediation services to avert defamation proceedings. However the greatest benefit of all, in our view, will be the brand advantage that will attach to those willing to be held publicly accountable for the standards by which they operate and the reliability of their journalism. Demonstrable accountability can be expected to contribute to increased levels of public trust, with a positive impact on circulation and audience retention.

7.12We begin in this chapter by briefly re-stating the principles and policy objectives underpinning our new standards body, followed by a description of the detail of how it would be structured, including its functions and powers. We then consider the risks and benefits of our recommendation that membership of the NMSA be voluntary and describe how the new scheme should be brought into being and monitored.

436See ch 1 at [1.10] – [1.11] for an outline of the terms of reference.
437Ch 5 at [5.111].
438Ch 5 at [5.127]; Law Commission The News Media Meets the ‘New Media’: Rights, Responsibilities and Regulation in the Digital Age (NZLC IP27, Wellington, 2011) at [5.77] [Issues Paper].
439Ch 5 at [5.117] – [5.125].