Contents

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

Recommendations

A new converged standards body

R1 A news media standards body (the News Media Standards Authority or NMSA) should be established to enforce standards across all publishers of news, including linear and non-linear broadcasters, web-based publishers and the print media.

R2 The NMSA should assume the functions of the Press Council, the Broadcasting Standards Authority (BSA) and the Online Media Standards Authority (OMSA) with respect to news and current affairs.

R3 “News” should be interpreted broadly to include news, current affairs, news commentary and content which purports to provide the public with a factual account and involves real people.

Eligibility

R4 Membership of the NMSA should be available to any person or entity (whether within New Zealand or elsewhere) that meets the following criteria:
(a) a significant element of their publishing activities involves the generation and/or aggregation of news, information and opinion of current value;
(b) they disseminate this information to a public audience; and
(c) publication is regular and not occasional.

R5 The following entities should not be considered to be carrying out an activity that meets the criteria set out in R4:
(a) Online Content Infrastructure Platforms (OCIPs);
(b) The Office of the Clerk of the House of Representatives.

Membership

R6 Membership of the NMSA should be voluntary.

R7 Any person or entity that the NMSA determines to be eligible for membership shall become a member by entering into a contract with the NMSA.

R8 Contracts between the NMSA and its members should include:
(a) the complaints process by which the members will be bound;
(b) the powers of the NMSA, with members being bound to comply with the exercise of any such powers;
(c) the annual financial contribution to be paid by each member to the NMSA;
(d) the obligation on members to regularly publicise the NMSA’s code of practice or statement of principles, the NMSA’s complaints process and their own complaints handling process.

R9 Contracts between the NMSA and its members should have a term of at least five years and should allow only limited rights for the member to terminate the contract before its expiry such as insolvency or corporate merger. In its discretion the NMSA should be able to enter into membership contracts for shorter terms with individuals.

The “news media” – a legal definition

R10 The various statutes which currently confer privileges or exemptions specifically on the news media should be amended to ensure that in each instance the term “news media” is consistently defined as meaning entities which meet the following statutory criteria:
(a) a significant element of their publishing activities involves the generation and/or aggregation of news, information and opinion of current value;
(b) they disseminate this information to a public audience;
(c) publication is regular and not occasional; and
(d) the publisher must be accountable to a code of ethics and to the NMSA.

Independent structure and governance

R11 The NSMA should be genuinely independent of both the government and the news media industry, both in relation to the adjudication of complaints, and in relation to its governance and management:
(a) The chairperson should be a retired judge or other respected, experienced and well known public figure, appointed by the Chief Ombudsman.
(b) A majority of complaints panel members should be representatives of the public who are not from the media industry, with a minority having industry experience who are representative of both proprietors and journalists, but not including currently serving editors.
(c) One complaints panel member at least should have expertise in new media and digital communications technology.
(d) Complaints panel members and the chairperson should be appointed for fixed terms.
(e) The NMSA should have separate legal existence, preferably in the form of an incorporated society. Should the structuring of the NMSA include a governance or management board or panel, that board or panel should not be controlled by media industry appointments.

R12 The NMSA should have the following functions:
(a) to formulate a code of practice;
(b) to adjudicate complaints about breaches of the code;
(c) to monitor and report on trends in media practice and audience satisfaction; and
(d) to mediate disputes about matters which otherwise might proceed to court.

R13 The NMSA’s constitution should expressly recognise and require the NMSA to act in accordance with the guarantee of freedom of expression in the New Zealand Bill of Rights Act 1990.

Code of Practice

R14 The code of practice should clearly set out the standards against which the conduct of the news media is to be judged and which will form the basis of complaints from the public:
(a) The content of the code should be formulated by the NMSA or by a committee set up by the NMSA, with no government influence on its content.
(b) The code should be formulated after consultation with the industry and the public.
(c) The code should capture to the fullest extent possible the traditional tenets of good journalism (including accuracy, correction of error, separation of fact and opinion, fairness to participants, good taste and decency, compliance with the law, the protection of privacy and the interests of children, and principles about news gathering practices) in a way which meets the demands of modern New Zealand society.
(d) The code should expressly recognise the guarantee of freedom of expression in the New Zealand Bill of Rights Act 1990 as a guiding principle and strive to maintain an appropriate balance between this interest and other important interests such as privacy, while making clear that the code’s principles may be overridden by the public interest in publication. Guidance should be provided on what the “public interest” means.
(e) Sub-codes should provide for the differing public expectations of different publishing mediums.
(f) The code should be available on the NMSA’s website. It should be reviewed on a regular basis.

Complaints process

R15 The complaints process should include the following features:
(a) Anyone should be able to lodge a complaint that a standard or principle has been breached, even if they are not directly affected by the breach. Complaints about unethical conduct should also be accepted for adjudication even if the code does not contain any express provision about such conduct.
(b) Complaints should first be directed to the media agency that is the subject of the complaint for resolution, with recourse to the NMSA if the complainant is not satisfied with the outcome.
(c) Complaints may be referred directly to the NMSA if there is good reason for not first approaching the media agency that is the subject of the complaint.
(d) Complaints may be made about breaches of standards or principles relating to both publication and news gathering practices.
(e) The NMSA should decline to consider complaints it considers to be trivial, vexatious, improperly motivated or outside its jurisdiction.
(f) Access to the NMSA should be as easy and straightforward as possible for members of the public. The NMSA should provide clear information on how to make a complaint.
(g) Complaint processes should be as informal as possible.
(h) Complaints should generally be dealt with on the papers, with hearings being reserved for matters of high public importance.
(i) There should be provision for dealing quickly with urgent complaints.
(j) Decisions on complaints should be published online, and be readily available.

R16 Each member of the NMSA should report annually to the NMSA on its own handling of formal complaints.

Powers

R17 The powers of the NMSA should include:
(a) a requirement to publish an adverse decision in the relevant medium, with the NMSA having the power to direct the prominence and positioning of the publication (including placement on a website and period of display);
(b) a requirement to take down specified material from a website;
(c) a requirement that incorrect material be corrected;
(d) a requirement that a right of reply be granted to a person;
(e) a requirement to publish an apology;
(f) a censure; and
(g) a power to terminate a member’s contract and suspend or terminate membership in the case of persistent or serious non-compliance with the standards or with the decisions of the NMSA.

R18 In relation to complaints about unethical conduct for which the code makes no express provision, the powers of the NMSA should be limited to issuing a declaration that such conduct is undesirable.

Oversight and Monitoring

R19 The functions of the NMSA should include monitoring trends, undertaking research and conducting public surveys to assess and publicise any developments or practices which could detrimentally affect news media standards as well as issuing reports and advisory opinions. The results of the exercise of this function should be published promptly and be available to the public on the NMSA’s website.

Mediation

R20 The NMSA should establish a mediation service to which cases could be referred as an alternative to court action and should provide clear information about using the mediation service.

Appeals

R21 A media appeals body should be established to hear appeals from decisions of the NMSA about complaints. The appeals body should comprise two representatives of the public and one representative of the media industry, though not a currently serving editor. The NMSA should provide clear information about the appeals process.

Funding

R22 The NMSA (including the appeals body and any other related boards, panels or committees of the NMSA) should be funded by members.

R23 In addition, state funding should be provided to the NMSA specifically and only for the purpose of meeting the function set out in R19. The NMSA should enter into a funding contract with the relevant government department to carry out this function on terms that negate any perception of state influence over the operation of the NMSA. The contract should be for an initial term of at least five years.

Transparency

R24 The NMSA should be transparent in its operations and decisions and to achieve this should take all reasonable steps to keep the public informed. As well as publishing the membership criteria, the code of practice or statement of principles and guidance, information about its complaints process (including appeals) and mediation service, its decisions and the results of its research and public surveys carried out under its monitoring function, the NMSA should make available on its website (and keep updated):
(a) its constitution and any other corporate documents that are required to establish and maintain the NMSA;
(b) its Annual Report (including financial statements) and annual complaints statistics;
(c) a list of its complaints panel and appeal body members and the members of any other governance, funding or other panels or committees;
(d) a list of members;
(e) its contracts with members;
(f) its funding contract with the relevant government department to carry out its monitoring function; and
(g) any memorandum of understanding between the NMSA and the BSA in relation to their concurrent jurisdiction.

Transition and consequential amendments

R25 An establishment working party should be set up, chaired by an eminent independent person nominated by the Chief Ombudsman. The rest of the working party should be appointed by the chairperson, after consultation with the news media industry. Industry representatives should be in the minority. The working party should not exceed seven members.

R26 The working party should consult widely, including with the BSA, the Press Council and OMSA.

R27 The tasks of the working party should include:
(a) drawing up the constitution of the NMSA, providing for both its management and adjudication functions;
(b) laying down the manner of, and the criteria for, appointing panel members of the NMSA in accordance with R11 and ensuring that the Chief Ombudsman or her nominee has an involvement in the appointment process;
(c) appointing the foundation panel members of the NMSA, including foundation members of the complaints panel and the appeals panel;
(d) drawing up a mechanism for industry funding of the NMSA;
(e) drawing up model forms of contract to be entered into between the NMSA and members of the news media electing to belong to it; and
(f) advising, if necessary, on the initial funding contract with government to support the NMSA’s oversight and monitoring functions.

R28 An amendment act should come into force once the NMSA has been established to clarify that the benefit of the media privileges contained in the Privacy Act 1993, the Fair Trading Act 1986, the Electoral Act 1993, the Human Rights Act 1993 and the courts legislation is conferred on those members of the news media that are members of the NMSA.
R29 Public funding of news and current affairs through the Broadcasting Commission should be subject to a condition imposed by the Commission that the disseminator of any resulting production be a member of the NMSA.
R30 The BSA should retain its jurisdiction over news and current affairs with respect to the good taste and decency and protection of children standards only. It would have concurrent jurisdiction with the NMSA over those standards.
R31 The Broadcasting Act 1989 should be amended to alter the jurisdiction of the BSA with respect to news and current affairs in accordance with R2 and R30, with such amendment taking effect once the NMSA has been established.
R32 The operation of the NMSA should be reviewed by the Chief Ombudsman or her nominee after it has been in existence for 12 months.