7.25The danger of state control is that the authority may serve, or just as seriously appear to serve, political ends, in the form either of the appointments made to it or the decisions made by those appointees. We do not suggest that the BSA has ever been open to those influences, but the possibility that it could be must inevitably reduce the confidence of the industry in it.
We think the State has an interest in balancing the media’s rights of freedom of expression along with the responsibilities that come with these.
There is a strong case for saying it’s institutionally conflicted because competing newspapers judge each other. As a result it lacks public confidence … my starting presumption is that [the new system] should be truly independent, independent from the press, so the public will know that newspapers will never again be solely responsible for policing themselves.
7.30First, there should be a carefully devised method of making appointments to the NMSA. There should be no government involvement in these appointments. In the set-up stages the appointments should be made by an independent panel, the details of which we discuss later in this chapter. The chairperson of the NMSA should be a retired judge, or other respected, experienced and well known public figure.
7.32Second, once appointed, members should have fixed terms, and only be able to be removed for cause, and not at the instigation of the industry or anyone else. There should be power to reappoint a member for one further term.
7.34Fourth, the content of the code of practice should be formulated by the NMSA itself or a committee set up by it. The government should have no influence on the content of the code. We deal with the code below.
7.35 The NMSA’s jurisdiction should be based on the nature of the content provided to the public rather than platform delivery. It should cover linear and non-linear broadcasters, web-based publishers, and print. The NMSA would only adjudicate complaints relating to news, current affairs and news commentary.
7.36 For present purposes it will be sufficient to conflate “news” and “current affairs”. Except for the fact that current affairs tends to relate to political and governmental matters and can involve more analysis than straight news, the two are very much the same. We put them both under the rubric of “news”. The question is what that means, and how it differs from “entertainment”.
7.37Besides news and current affairs, the media publish content which is pure entertainment. In the broadcast media, this includes a variety of forms of entertainment. Yet where is the line to be drawn between “news” and “entertainment”? Sometimes news items have no purpose other than to entertain and sometimes shows which are primarily of entertainment value do contain factual material about real people (reality TV for example).
7.39The distinction between news and other forms of content certainly poses difficulties, but they are not insuperable. The difficulty is most likely to arise in relation to “factual” programming: that is to say reality shows, documentaries and the like. We believe it is justifiable to take a wide definition of “news” as including any publication which purports to provide factual information and which involves real people. This is because such publications raise the issue of journalistic standards. Are the facts presented accurate? Is any part of the publication misleading? Have individuals portrayed been unfairly treated? Has anyone’s privacy been invaded? Has information been obtained by the use of deception? If so, the individuals involved should have the right to complain to the NMSA which will apply the appropriate ethical standards.
7.41Purely fictional programmes raise issues that are more likely to involve taste and decency, and suitability for children. In our view they are not suitable for adjudication by a body whose focus is news. We believe a separate body with stronger enforcement powers should deal with them. Currently the Censor’s Office does some of this work and the BSA has jurisdiction over broadcast entertainment. In the next chapter we argue that there needs to be a separate review of this sector to achieve a coherent solution for the new converged environment.
7.42Our proposed division into “news” and “entertainment” does, however, pose two difficulties. One is simply that in a few instances (and we think they will be very few) it may be extremely difficult to decide into which category a particular publication falls. To meet that case we think the NMSA and the appropriate entertainment authority could draw up a set of protocols for deciding which of them should deal with the complaint in question.
7.43 The second difficulty is that sometimes a “factual programme” may involve serious taste and decency issues – the portrayal of sex or violence, for instance. In these cases, while a complaint might properly be made to the NMSA, it should have the option to refer it to the entertainment body so that more appropriate enforcement action can be taken. Flexibility is the key to solving issues of this kind.
7.44 Currently the BSA hears complaints about broadcast entertainment content. We envisage that even after the NMSA comes in existence and the BSA’s jurisdiction over news is transferred to it, the BSA should remain in existence to deal with broadcast entertainment content, pending the recommended review of the entertainment sector. We also recommend that during that period the BSA retain its jurisdiction over news in relation to standards of good taste and decency and protecting the interests of children.
7.45The NMSA should have the following functions:
7.46The NMSA, or an independent committee set up by it, should formulate a code of practice (or, if preferred, statements of principle) which 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 members of the public. The code should be available on the NMSA’s website.
7.48The code must be regarded as reasonable and credible by both the industry and the public. It should therefore be formulated after consultation with the industry and the public, and should capture to the fullest extent possible the traditional tenets of good journalism in a way which meets the demands of modern New Zealand society. The existing codes, including those of the Press Council, the BSA, OMSA and those used in the news media industry itself, should be consulted in the formulation of the new code.
7.49The passage of time can change expectations, and the emphasis of the standards may need to change from time to time. For example, modern codes emphasise intrusion into privacy to a greater extent than used to be the case. The code should be reviewed on a regular basis.
7.50As to the content of the code, we propose the following.
7.51First, a code should clearly recognise the right to freedom of expression, and strive to maintain an appropriate balance between this interest and other interests such as privacy. It should be clear that sometimes prima facie breaches of the code’s principles may be overridden by the public interest in publication.
7.54 Second, there is a question of whether the code should be in terms of broad flexible principle or more detailed prescription. There are advantages and disadvantages of both styles. The Press Council prefers the broad statement of principle to enable more flexibility from case to case. The BSA codes contain similar fairly broad statements of principle accompanied by more detailed guidelines which have come to take on the appearance of rules. The new OMSA Code of Standards sets out each standard in general terms, with brief guidelines in relation to some standards. But, as far as possible, the code should be free from ambiguity, so as to leave little room for argument.
7.55Third, there is also the question of whether a code should be a complete and exhaustive code, or whether it should be left open for complainants to complain about other matters which are not specified. The Press Council prefers the latter approach, and is one reason it prefers to speak of “statements of principle” rather than a code.
7.56We are uncomfortable with the notion that remedies or sanctions can be brought to bear in relation to conduct which is not proscribed by the code. Yet in this fast-moving environment it may be difficult for the framers of the code to foresee and provide for everything in advance. We suggest, therefore, that complainants should be able to complain about conduct which is unethical even though the code does not make express provision for it; but that in such a case the NMSA’s power should extend no further than to make a declaration that the conduct is undesirable. The NMSA should then proceed to amend the code. We think that careful drafting of the code in the first place should ensure that this situation does not arise often.
7.57Fourth, a code would normally be expected to contain a number of core principles which are at the heart of good journalism from whatever platform it is delivered. Those principles are age-old, and appear in journalism codes of ethics the world over. They include such things as accuracy, correction of error, separation of fact and opinion, fairness to participants, good taste and decency, the protection of privacy and the interests of children.
7.58Fifth, we believe that one of the standards in the code should require compliance with the law. The BSA’s “Law and Order” standard, or a variant of it, would be appropriate. This would allow complaints, for example, about the publication of suppressed names, or trespass by reporters on property. There is no reason why a standards body whose job is to maintain proper standards should not take cognisance of breaches of the law, and every reason why it should. Ethical standards often overlap with legal rules: for example the privacy standard presently includes cases of illegal interception and trespass.
7.59In some cases, criminal proceedings in the court might ensue as well, but their function is different: criminal proceedings result in punishment, whereas the standards body is often as much about remedy (for example a take-down order) as about sanction. Moreover in some cases of infringement of the law, prosecution does not result for whatever reason: in such a case, if the NMSA could not take action nothing would happen at all.
7.60 Sixth, in addition to those overarching principles there will need to be variations depending on the type of medium. There are different expectations of public service broadcasters than of bloggers. Film has a different impact than print. On-demand material with its element of choice is different from linear presentation. Sub-codes could and should recognise these differences. Bloggers, for example, could not always be expected to be constrained by any requirement of balance to the extent that mainstream media might, although any court reporting they did would obviously need to be balanced. But bloggers would be bound by the core principles. Those who found those too constraining would not be obliged to join up to the system.
7.62Finally, as we have indicated earlier, the government should not influence the content of the codes through statute or regulation or in any other way. They should be formulated by the NMSA as a truly independent body.
7.63A principal function of the NMSA will be to receive, investigate and determine complaints from members of the public about breaches of journalistic standards. We believe that anyone should be able to lodge a complaint even if they are not directly affected by the publication in question. The maintenance of proper media standards is an issue for everyone.
7.65Complaints should be able to be made not just about material which has been published but also about unethical or illegal news gathering practice (including trespass, harassment and deception, for example).
7.67There would need to be an ability to filter complaints and reject, without the need for an investigation, those which are trivial, vexatious, improperly motivated or outside its jurisdiction.
7.71We also consider that, in exceptional cases, the NMSA should have the power to suspend or terminate the membership of a media agency. This would obviously be a very rare occurrence, and would be appropriate only if the agency was in serious and repeated non-compliance with the code or with decisions of the NMSA. Termination, or cancellation, is a standard remedy for serious breach of contract, and this should be no exception. We have noted that membership of the NMSA will be a mark of responsibility. Serious offending diminishes the brand, and termination may be necessary to protect the reputation of the NMSA and its other members.
7.72However, the step should not be taken lightly, and we would expect that usually a number of warnings should precede the application of the sanction. Of course suspension or termination would not mean that the news agency concerned would be driven from the market or be required to cease publishing. It would continue as before, but without the benefit of the privileges accruing to membership of the standards body. The suspension or termination would also need to be proportionate to the breach and, in most cases, we would expect the media agency concerned to be able to seek reinstatement of their membership after a suitable period. We also expect that a decision to terminate or suspend membership (or to decline reinstatement) would be subject to judicial review.
7.74Monetary sanctions would need to be very significant in the case of larger organisations. A fine of say $5,000 is not likely to act as a meaningful deterrent to that sector of the media industry. More significant monetary sanctions, however, would be likely to lead to increased legalism in the handling of complaints, including the deployment of counsel and an adversarial process. It would be undesirable, in our view, to create incentives for litigious behaviour. The complaints system needs to be fast and flexible to be effective and therefore could be unduly weighed down by the spectre of financial sanctions. Our preference is for the power to impose monetary sanctions to be reserved for the courts in cases where the law has been broken.
7.77An enhanced range of sanctions such as we have recommended above should have the beneficial effect that complainants who might have a potential cause of action in the courts, say for defamation, might be encouraged to take the route of an NMSA complaint rather than expend resources and time pursuing a court action. That happens now with the Press Council and BSA. It is to everyone’s advantage.
7.78We believe that justice is better accorded to all those involved if there is a right of appeal from decisions of the NMSA. Because it will not be a state agency, that appeal could not be to a court. However, we support the concept of a media appeals body which would sit above the first instance authority. It would be similarly independent and appointments to it made by the same process. Currently decisions of the BSA can be appealed to the High Court; there is no right of appeal from the Press Council. The Advertising Standards Complaints Board is subject to appeal to an appeals authority comprising two representatives of the public and one representative of the media industry: it is this model that we advocate for the NMSA. In addition we think it likely that the decisions of the NMSA would be subject to judicial review in the High Court.
7.82However, some issues would arise in seeking to introduce a mechanism such as the Irish one. The full potential of such a system could not be realised without legislation. A plaintiff could bypass the system in the absence of statutory compulsion, and the “public interest” media defence which applies in Ireland could not be introduced here without an amendment to our Defamation Act.
7.83We consider that something could be achieved along these lines even without a statute. A non-statutory system which simply made available an expert machinery for parties to settle disputes which might otherwise escalate to court proceedings could be attractive to potential litigants. It could be an incentive for media to support the standards body that we recommend.
7.84 Rule 7.79(5) of the High Court Rules provides:
A Judge may, with the consent of the parties, make an order at any time directing the parties to attempt to settle their dispute by the form of mediation or other alternative dispute resolution (to be specified in the order) agreed to by the parties.
The ready availability of a mediation service expert in media matters could be an attractive forum for parties for the purpose of this rule. We recommend that the NMSA should provide a mediation service and clear information about using it. However, mediation is not always a cheap process. Thought will need to be given as to how costs can be kept down. The availability of some NMSA members to act as mediators might be a possibility.
7.87We also recommend that each media agency that belongs to the NMSA should be required to report each year on the complaints it has handled itself. However this obligation to report would have to be confined to formal written complaints. If it were to include every phone-call received by an editor the task would become unmanageable.
7.88 The news media sometimes adopt their own set of professional ethics and standards, such as those developed by the journalists’ union, and major newspaper companies. However, these professional codes and standards which guide journalistic practice can be difficult for the public to find. We also note that news websites do not provide obvious mechanisms by which the public can complain about content.
7.91Access to the NMSA should be as easy and straightforward as possible. There should be clear and well publicised information on how to make a complaint. It should be easy and inexpensive to do so. The complaint processes should be as informal as possible. Most cases should be dealt with on the papers without a hearing, with hearings being reserved for matters of high public importance. There should be provision for dealing quickly with urgent complaints.
7.92 The NMSA should be transparent in its operations and decisions and should take all reasonable steps to keep the public informed:
7.93In order to be effective in carrying out its functions, the NMSA will need to be adequately resourced. It will need to be funded principally by the industry. There is no other viable source. The Press Council is presently totally funded in this way. Yet this does create certain difficulties.
7.97Third, a difficulty with the funding being supplied solely by industry is that smaller organisations such as bloggers, if they are admitted to membership, are unlikely to be able to afford as much by way of subscription as their larger corporate colleagues. So those larger organisations may have bear the larger share of the funding burden, something they may be reluctant to do.
7.98Finally, if the body is totally funded by industry the public perception might be unfavourable. The NMSA might be seen as too closely tied to the industry, just as total state funding may create a perception of state control.
7.100This suggestion of a state contribution was met with suspicion and disapproval by those media who made submissions on our Issues Paper. They feared that state funding would have strings attached, and that this would open the way to a degree of state control. That need not be so, and it is certainly not our intention.
7.101It would need to be made very clear that any state contribution to the NMSA must not be accompanied by state influence. That is perfectly feasible. Judges are entirely paid by the state, and indeed are executive appointments, but there is not the slightest doubt that they are completely independent in exercising their judicial functions. In the media context, well regarded and independent news agencies such as the BBC and the ABC are entirely state funded. So we continue to support a state contribution to the funding of the new authority.
7.103It is important that these ancillary functions receive adequate funding. As noted above, we also think there is a benefit in spreading the funding burden to limit any undue increase in the contributions required from media industry participants. Requiring the media industry to fully fund the NMSA may result in the cost of membership deterring potential applicants, especially from the new media sector.
7.106The complaints regime outlined above has the potential to provide a significant level of accountability. Its success will depend in a large measure on the news media’s willingness to enter into contractual agreements to join the NMSA, comply with its rulings and to provide it with adequate resources. The quid pro quo is that those who are willing to do so will have access to a number of important benefits.
7.107 Under our recommended regime, only those entities willing to join the NMSA would be eligible to access the news media’s legal privileges and exemptions which we describe in chapter 2. This would be reflected in amendments to each of the statutes containing these media provisions. The privileges and exemptions are not insignificant. They include being able to attend a closed court, and to challenge suppression orders; and being exempt from the Privacy Act 1993, and some provisions of the Fair Trading Act 1986, the Electoral Act 1993 and the Human Rights Act 1993.
7.110 The second alternative is to give the privileges to anyone who intends to publish the information thus derived. But a line has to be drawn somewhere. It would be unworkable if any member of the public who wishes to write something about a court case should have full access privileges even when the court is closed to the public, or that anyone could opt to be exempt from Acts such as the Privacy Act that otherwise apply to the general public. Provided those news content providers who fall within a set of defined criteria have the free right to opt into the system if they wish, and thus have access to the privileges, with corresponding accountability for their responsible exercise, we cannot see that there is any constitutional difficulty.
7.111 We believe, and this has been confirmed by some of the media personnel with whom we spoke, that the fact of belonging to the NMSA would be a mark of responsibility which distinguishes a member news medium from others, and gives it a reputational advantage. There are benefits in being demonstrably part of a group of media which have bound themselves to act responsibly and are prepared to be held to account. We see this as possibly a greater incentive than the legal privileges. It may be that some, like the BBC in Britain, the ABC in Australia and Radio New Zealand in this country, might say that they do not need such a brand because they have built such a reputation themselves independently of it. That may be so, but for most media we think the brand will be significant. The media are often undervalued in New Zealand. It should improve their reputation and standing in the community if they are visibly part of a system which places a high value on responsibility.
7.112Moreover, the membership of the NMSA is likely to lead to a range of privileges beyond the strictly legal. On a day-to-day basis, news media and their journalists are given preferential access in a wide range of circumstances. This includes invitations to attend media conferences of public and private agencies, early embargoed access to media releases, invitations to meetings (such as shareholder meetings), police and emergency service media briefings, and so on. Membership might also be made a condition of membership of the Press Gallery in Parliament. Politicians and other powerful figures in society are often buffered from the media by advisers who determine which media outlets will have access to them. Most people and organisations prefer to deal with accountable media with whom there is a higher degree of trust. Membership of a regulatory system is a way of demonstrating that accountability.
… know when they are on websites, mobile apps or newspapers produced and edited by professional journalists and editors, respectful of media law and ethical standards … The professional media must separate themselves from the crowd by displaying a special obligation to credibility, fairness and independence.
We think this will be a significant inducement to join.
7.115 The Broadcasting Commission (New Zealand on Air) funds broadcasting and the production of programmes to be broadcast; it can also make funds available for on-demand transmission. The Commission must require from recipients an undertaking that the programme will be consistent with the standards specified in section 4(1) of the Broadcasting Act. The majority of the recipients of funding are production companies, but the Commission requires that they have a contract with a broadcaster.
7.117 We recommend that the Broadcasting Commission should make it a condition of funding “news” programmes that the broadcaster with whom the recipient contracts be a member of the NMSA. This would serve to assure standards. It would also act as another incentive for broadcasters to join the NMSA.
7.118As discussed above we recommend that the NMSA should provide a mediation service to enable complainants and media agencies to settle cases which might otherwise proceed to court. This would be a clear advantage to member agencies.