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

Principles and policy objectives

7.13As discussed in chapter 1, our review is concerned with a small but vital sub-set of communicators – those who purport to provide the public with reliable and reasonably dispassionate accounts of what is happening in the world. A key driver behind our review has been the emergence of the new media, some of whom are undertaking functions traditionally performed by the mainstream media, including holding the various branches of government to account.

7.14 In considering how best to approach the question of news media rights and responsibilities in this dynamic new environment, we, like other convergence reviews, have recognised the need to take cognisance of the following critical factors:440
(a) The public continues to rely on the news media as an important source of information on which to base decisions, including decisions about how to exercise their democratic rights. For this reason there is an overriding public interest in ensuring New Zealand has a robust news media.
(b) The news media is a powerful institution in its own right. As well as facilitating the democratic process it is also potentially capable of distorting it through unfair, selective or misleading reporting. It is therefore in the public’s interest that there is an effective mechanism for holding the news media to account for the exercise of its power.
(c) The internet has created a step-change in the way in which individuals are able to exercise their right to freedom of expression. Protecting this right is of fundamental importance. There is a strong public interest in ensuring that any regulatory scheme for the news media encourages rather than stifles diversity.
(d) In the era of technological and media convergence any regulatory regime must focus on content rather than format or delivery platform.
(e) “News and current affairs” is a special type of content that requires a different regulatory approach because of its fundamental importance to a healthy democracy.
7.15As noted by the Australian Convergence Review, the scope of any intervention should be limited to the “minimum required to achieve a clear public purpose”.441  We must also take account of the profound changes in how we access and use information in the digital age – including, crucially, the increased choice and control which individuals can exercise in this interactive media environment.442
7.16 We set out the policy objectives of our reforms in chapter 1,443  and repeat them here. These objectives are to:
(a) recognise and protect the special status of the news media, ensuring all entities carrying out the legitimate functions of the fourth estate, regardless of their size or commercial status, are able to access the legal privileges and exemptions available to these publishers;
(b) ensure that those entities accessing the news media’s special legal status are held accountable for exercising their power ethically and responsibly;
(c) provide citizens with an effective and meaningful means of redress when those standards are breached; and
(d) signal to the public which publishers they can rely on as sources of news and information.

The core characteristics of our recommended standards body

7.17As we discuss in chapter 4, the policy challenge lies in balancing these competing public interests in a free, but ethical, news media.

7.18We consider that this can be achieved by ensuring the regulatory focus is on providing a mechanism for effective accountability rather than any form of publishing constraint. The news media must be free to publish as they see fit – the purpose of any standards body is to provide public accountability and a proportionate remedy when that publishing breaches important ethical standards. Our recommended mechanism for influencing organisational behaviour via accountability rather than any type of prior constraint is a critical distinction which is sometimes lost in the rhetoric around “regulation” of the news media.444

7.19In this respect the NMSA would function in a similar fashion to the existing complaints bodies (the BSA, the Press Council and now OMSA), adjudicating cases which have not been resolved successfully by the publisher. However, it would differ in a number of important respects from these bodies to ensure that it has the independence, transparency, accessibility, flexibility, durability, resources and powers required to be an effective regulatory body in the era of converged media.

7.20In chapter 5 we conclude that both the existing models are inherently deficient in some respects, particularly with regard to independence. Crucially too we conclude that because the two models are positioned differently on the regulatory spectrum, it is not possible to simply extend their respective jurisdictions to bridge the regulatory gaps and inconsistencies which have emerged in the digital publishing environment. To do so would result in entrenching the existing regulatory inequalities in the current environment and would fail to provide the type of durability and consistency required to achieve our objectives. We argue that the new standards body we recommend needs to combine the best of both the existing models: the flexibility, adaptability and non-legalistic processes of the Press Council with the more effective remedies of the BSA.

7.21 In summary, we take the view that a single converged standards body should deal with all news, current affairs and news commentary.445  Its jurisdiction should be based on content provision rather than platform of delivery. Independence must be a hallmark in order to ensure its effectiveness and sufficient public trust, and that means independence from both government and the media industry. It 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.

7.22The remainder of this chapter will deal with the nature of this regulator, which of the news media should belong to it, and the means (statutory or otherwise) by which it will be created.

440See Australian Government Convergence Review: Emerging Issues (discussion paper, 2011) at 8 – 10 [Convergence Review, Emerging Issues]; Australian Law Reform Commission Classification Review – Content Regulation and Convergent Media (ALRC R118, 2012) at 13 [Classification Review].
441Convergence Review, Emerging Issues, above n 440, at 8, principle 1: “Citizens and organisations should be able to communicate freely and where regulation is required, it should be the minimum needed to achieve a clear public purpose”.
442See Convergence Review, Emerging Issues, above n 440, at 8, principle 2: “Australians should have access to and opportunities for participation in a diverse mix of services, voices, views and information.”
443Ch 1 at [1.82].
444See Ian Cruse and Sarah Tudor “Leveson Report: Reaction” (House of Lords Library Note LLN 2012/041); Editorial “Censoring the Media” (The Press, 3 December 2012); Editorial “Crucial to Protect Press Freedom” (The New Zealand Herald, 5 December 2012); Steven Price “We Don’t Need No Stinking Press Regulation” (Media Law Journal, 6 December 2012).
445The category of “news” and “current affairs” would include content which purports to provide the public with a factual account: see [7.35] – [7.44] below.