Contents

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

Who should be subject to the NMSA?

Eligibility

7.119Consistent with our principle of fostering media diversity, and harnessing the potential of the new media, we believe it is crucial that membership of the NMSA should be open to a broad church of media outlets.

7.120We propose the following minimal criteria. First, the entity must meet our recommended definition of “news media”, which contains the following ingredients:510
  • a significant element of their publishing activities involves the generation and/or aggregation of news, information and opinion of current value;
  • they disseminate this information to a public audience;
  • publication is regular and not occasional.

7.121Second, anyone wishing to join the NMSA must be willing to be accountable to its code of practice and complaints process, and to comply with the rulings of the NMSA.

7.122These criteria would clearly admit all mainstream media and those publications which are presently subject to the Press Council or the BSA. The criteria would also admit a range of websites of which Scoop, Yahoo!New Zealand, MSN NZ and InfoNews are examples, and some of the more prominent bloggers. Our instinct is that most bloggers would wish to stay outside the system because of the greater freedom that would give them. A few might decide to opt for membership because of the privileges and the acknowledgment of responsibility that would give them. We understand that a few bloggers have already expressed interest in joining the Press Council.511

7.123It has been said to us that such a system would potentially admit a very diverse range of publishers, which might dilute the brand associated with membership of the standards body. However, we support diversity. In such a dynamic environment it would be wrong to allow membership only to the traditional media. But we have considered whether there should be additional entry criteria for non-mainstream media such as requiring that an individual applicant must have a journalist qualification (say a Diploma of Journalism); or have been employed in a mainstream media organisation for a period of time; or have a record of compliance with the law.

7.124We are, however, reluctant to impose any such requirements. Some members of the new media contribute strongly and responsibly to public debate even though they have no journalistic training or experience. Conversely, some reporters and presenters on “mainstream” outlets, radio for example, are not trained journalists and push the boundaries as much as most bloggers. They have done so for years. We believe that the sanction of suspension or expulsion from membership which we outlined above is sufficient should new members prove unable or unwilling to comply with the required standards.

7.125When an application is made by a media outlet to join the scheme, the NMSA will have to assess the application and decide whether it meets the criteria set out above. In some cases there might be a question of whether its news content is “significant” in a qualitative rather than purely quantitative sense. (The proportion of the total content devoted to news would be only one factor to be taken into account.) Likewise, there might sometimes be a question of what “regular” publication means. The NMSA would need to make the necessary judgements on those questions, which are essentially questions of degree. It might be expected to produce a set of guidelines to assist applicants. As recommended above, the NMSA should compile a list of the media agencies and outlets subject to its jurisdiction. The list should be published on its website. We would anticipate that an organisation aggrieved by a decision to decline an application to join the NMSA could bring an action for judicial review in appropriate circumstances.512

7.126There is a growth of offshore media being consumed locally. Indeed a few New Zealand journalists publish on such sites. There would seem to be no reason why an organisation situated outside New Zealand, a substantial part of whose news content was directed at a New Zealand audience, should not be able to join the NMSA. The contract of this organisation with the NMSA would be binding, even though enforcement might present procedural difficulties. But if such an organisation were minded to join there would seem to be no sensible reason for excluding it. Its very desire to conform to standards of propriety would in itself be sufficient reason for admission.

7.127If such an organisation declined to join, it would not be subject to the NMSA, and it would be difficult to enforce New Zealand law against it. Nevertheless, the law could be more readily enforced against New Zealand residents contributing content to an overseas publication.

Aggregation and content creation

7.128We received some argument in submissions that aggregators, as opposed to content creators, should not be subject to the jurisdiction of the NMSA.513  Aggregators simply collect together items published elsewhere by others. They have no creative input. Yet there is no reason why aggregators should not be able to join if they wish to. As far as the public is concerned they are a source of news as much as any other provider. If what they publish on their site is inaccurate or harmful, the citizen suffers as much as if he or she had read it in a newspaper or seen it on television. The impact on the public is what matters.

7.129Moreover the line between aggregation and content creation is an increasingly blurred one: most newspapers now contain as much material supplied by others as content they create themselves. Indeed some believe that the future shape of the news media is likely to be a hybrid of creation and aggregation. Similar in kind are online news message boards and forums where content is generated by citizens but is published by the website host. That is simply another form of aggregation, and the host would be eligible to join the NMSA if the criteria for entry were met.

7.130However, we agree with Google’s submission that a line must be drawn somewhere. The definition of “news media” should explicitly exclude what Google calls Online Content Infrastructure Platforms (OCIPs) such as YouTube, Facebook and Twitter:514

OCIPs differ fundamentally from traditional content distributors and publishers such as television and radio. They host content that is uploaded by others, and play a minimal (if any) editorial or curatorial role in relation to the hosted content.

If the system is to be voluntary as we recommend it will not in the end matter much, but it is as well to have a definitional exclusion at the outset.

7.131We should also be explicit that the Office of the Clerk at the House of Representatives should be excluded from any definition of “news media”. The broadcasting of Parliament is a vehicle for transmitting the debates in the house. It is the channel by which the views of Members of Parliament can be conveyed to the public. What is said in Parliament is subject to Parliamentary privilege. Broadcasts are also subject to absolute privilege in defamation.515  We believe that the Office of the Clerk should not be considered a “news medium” for regulatory purposes.

Should membership be compulsory for some?

7.132In this section we reach the conclusion that membership of the NMSA should be voluntary. We shall explain our reasons for arriving at this conclusion. This will be a change from the present position where all New Zealand broadcasters are legally bound to comply with the statutory standards set down in the Broadcasting Act. They are also compelled to be subject to the adjudication of the BSA. Under our proposal they would no longer be legally bound in this way.516  Like all news publishers, their membership of the NMSA would be entirely voluntary. While we believe the incentives which attach to membership of the NMSA would be sufficient to attract responsible news media, we do need to address the risk that a major media company, including a broadcaster, could opt not to join.

7.133We first ask whether there is any compelling case for some news producers to be required to join the NMSA. If so, it will be necessary to formulate a set of criteria for defining that category of news producers, a formidable task in itself. In the past, as we have discussed, this line between statutory regulation and voluntary self-regulation was based on physical format and the qualities inherent in these different mediums. The distinction was partly based on history, and partly on the fact that the consumption of newspapers was seen to involve more personal choice and control while linear broadcasting was seen to be a more invasive, public and persuasive medium requiring higher levels of accountability.

7.134In the merged media environment these demarcations between “print” and “broadcasting” have become increasingly problematic. Instead, as the Australian reviews demonstrate, policy and law makers have looked to other content characteristics to help determine the strength of regulation required.517  Precisely which characteristics are seen as critical in determining whether regulation should be compulsory or voluntary varies depending on the underlying purpose of the intervention. As we saw in the preceding chapter, some of the most common distinctions are drawn between:
  • public service versus private providers;
  • professional or commercial versus amateur publishers;
  • audience size; and
  • linear free-to-air broadcasters versus pay TV.

As can be seen from this list, the thrust of regulation has shifted from format (alone) to a more nuanced set of characteristics which can be applied to content produced in any format and which essentially attempts to differentiate between professional mass news media and other content providers.

7.135In our Issues Paper we considered the possibility of the type of tiered model which has been recommended by the Australian Convergence Review, applying the same type of demarcations – audience size, commercial publisher – to distinguish between those who would be subject to compulsory regulation and those who would simply have the opportunity to opt in.518
7.136Submissions to the Issues Paper on this matter were divided. The majority of news media submitters proposed that membership should be voluntary, at least for a trial period. Others were not so sure. Fairfax for example signalled doubts about whether such a system would work for all but the largest media organisations, relying as it would on incentives, and Radio New Zealand thought membership should be compulsory for those media which exercise editorial control over what they publish.519  Most non-media submitters favoured a compulsory regime or a mix of compulsory and voluntary.

7.137However in the era of merged media, we see practical and philosophical difficulties with attempting to compel compliance for some sectors of the news media based on measures such as “audience size” and “commercial status”. As we discuss in chapter 3, the web is a porous publishing environment which allows for the viral dissemination of content which may initially have had a very limited audience. It also allows those with little or no capital, and with no commercial intentions, to publish to a potentially global audience. In principle we see no reason why the accountability of an individual who generates or aggregates news and other information of a factual nature for the purpose of public dissemination should be any different than the accountability of a commercial entity.

7.138We believe that in this fluid environment where there is likely to be continued convergence between new media, the mass media, internet infrastructure providers and the telecommunications sector, the goal should be to create a regulatory environment which strongly incentivises rather than compels compliance and where the focus is on environmental factors that foster these incentives to belong, rather than creating a threshold based on the size of market participants or their services which triggers compulsory membership.

7.139We also believe there is a risk that compulsory compliance could act as a barrier to news making. For some sectors of the news media, providers could seek to reduce their news activities in order to avoid mandatory compliance. We prefer a system whereby compliance is purely voluntary and there are adequate incentives operating to create sufficient buy-in.

Linear broadcasting

7.140Some argue that, even in the converged era, there continues to be a public interest in imposing statutory regulation on linear broadcasting. There are a number of rationales for this, including the argument that content that is pushed out to the public in a simultaneous broadcast has a unique potency and that the majority of citizens still rely predominantly on the essentially passive reception of this pre-packaged news. In this context, some argue, the mode of delivery – simultaneous transmission to a mass audience – does continue to have a bearing on the regulatory model.

7.141We agree that broadcast television remains a very potent medium. Our own and other research shows that despite the plethora of news sources now available, the majority of New Zealanders continue to depend on mainstream broadcasters for their news. And we have argued that this trust and dependence demands accountability. However, in our view, it is open to question whether it requires a different form of accountability simply because the information is packaged and live streamed at a scheduled time.

7.142To begin with, although this content is pushed out to the public for simultaneous reception, the reality is that the public are no longer cast as passive recipients of the “six o’clock news”. Just as they can select which news websites to visit and which audio and video content to access, they can also exert considerable choice and control over how they receive the broadcast news. They are able to view it at the time and place of their choice. They can select which parts of it they watch and which device they receive it on. In this sense the fact that it was originally live streamed at a scheduled time becomes less significant.

7.143It is also questionable whether broadcasters are in fact more influential than other news media. In New Zealand, as in Britain and Australia, newspapers’ newsrooms have tended to be better resourced than broadcast media, for whom news production accounts for only a small portion of the content they produce. As a consequence, newspapers and their associated websites have tended to set the news agenda. Although, for the reasons discussed in chapter 4, this may be changing as a result of the mounting pressures on newspaper businesses, it is arguable that newspapers and their websites continue to break the lion’s share of news in New Zealand.

7.144It is also evident that, even over the period of this review, audio-visual content, including high quality live streamed video, is becoming an increasingly important component of newspaper websites, and this is only likely to escalate with the roll out of ultra-fast broadband over the next five years. This will further challenge the idea that linear broadcasters should be subject to compulsory regulation while others providing professionally edited audio-visual news content should not.

7.145That said there is little doubt that, for the moment at least, a news story still depends on the oxygen of television exposure in order to have its full impact felt. However, as pointed out in the Finkelstein Report, there is something perverse in arguing that a particular news medium requires stronger regulation because it is such an effective disseminator of information to the public – a function we have argued is fundamental to democratic societies.520

7.146The flip side to this argument of course, is that such powerful news mediums also have the capacity to do real damage. But our analysis of New Zealand’s broadcast news media does not reveal systematic ethical breaches. There is without doubt significant variation in standards observable between different broadcasters, reflecting their different brands and market positions, but no flagrant disregard for standards. It is of course arguable that this may be a result of the stronger regulatory environment and stronger penalties to which they are subject, however, analysis of complaints does not reveal a sustained upward trend over the past decade.

7.147The Australian Convergence Review would leave the ABC and SBS outside the scope of their proposed regulator, because they operate under their own statutory charters.521  In New Zealand, Radio New Zealand operates under the statutory charter and principles set out in section 7 of the Radio New Zealand Act 1995. Those principles replicate some elements of what we would expect to be in the code of a news standards body: impartial and balanced news coverage for example. They go further, by requiring high quality contribution to intellectual, spiritual and cultural development, and the stimulation of critical thought. They do not go as far in that they omit many elements one would expect to be in a code (for example, fairness, respect for privacy). The Act sets up no complaints mechanism.
7.148We can therefore see no argument for excluding Radio New Zealand from membership of the NMSA. That would be to set it apart from its private competitors. It is presently subject to the BSA, and its submission to our Issues Paper supported the idea of a converged standards body.522  Any difference in the expectations for a public service broadcaster can be reflected in the codes applied by the NMSA.523

The risks of an incentivised but entirely voluntary model

7.149We acknowledge there are risks associated with an entirely voluntary model. These include the possibility that:

  • the benefits attached to being subject to the new standards body will not be strong enough to off-set the compliance costs;
  • stronger sanctions imposed by the new standards body will prompt news media to defect or set up alternative models;
  • the standards and compliance contracts required of the members will prove too onerous for smaller new media publishers.

7.150The dominance of a small number of news media companies in New Zealand means the effectiveness of the new standards body would be seriously undermined if one of these companies opted not to join, or baulked at the contractual agreements that they will be asked to enter into. Under our recommended body, the industry will not be able to determine the limits of its powers. This may prove too great a strain for voluntary compliance. This risk may be exacerbated by the pressures the industry is facing and the high cost of news production compared to entertainment content.

7.151From a harms perspective there is also the risk that publishers who opt not to join the NMSA would be in a position to push the boundaries around privacy and good taste and decency without any external accountability.

7.152It is also possible that new commercial alliances between different sectors of the news media would allow publishers to “free ride” on the back of media that belong to the standards body. For example, a broadcaster could opt out of the system but contract to purchase court coverage or political coverage from another media company which was a member of the NMSA. Such contracts to supply news content to competing media are already in existence in New Zealand.

7.153Finally, there is the risk that new media publishers, including bloggers, may find compliance with the new standards body too restrictive and onerous, and so the model would fail in its intention to promote higher standards and greater diversity in the news media sector.

7.154 While these risks are real, we believe that the worst fears can be effectively mitigated by the other mechanisms to which non-members of the NMSA would be subject. Gross breaches of standards of decency will be caught by the Films, Videos, and Publications Classification Act;524  and as we suggest above, the BSA (or any other body that replaces it), should in its jurisdiction over entertainment also be able to deal with such serious transgressions.525  The Privacy Commissioner will be able to deal with privacy infringements, and the new Communications Tribunal which we recommended in our Briefing Paper would have the power to deal with breaches of principle which cause real harm to people.526  And of course there is always the avenue of court action if the law is broken.

7.155However, we hope and believe that these measures will be unnecessary in relation to the big media players. As we have explained it is in their interests to join the NMSA, and we think the legal and commercial incentives should prove strong enough for them to do so. The NMSA may also be able to exert a degree of pressure on recalcitrant organisations by issuing invitations to them to join, and by naming them publicly if they decline those invitations.

Conclusion

7.156In summary, we support an entirely voluntary regime backed by strong incentives (legal, branding and otherwise) allowing accountable news media to differentiate themselves from other content providers and providing the public with a measure of quality assurance. Our reasons are as follows.

7.157First, we believe a voluntary, incentives-based regime is more consistent with the principles, factors and objectives we outline above.527  In this era of information abundance and increased consumer choice and control, regulation should be the minimum required to achieve a clear public purpose.528  With respect to news media regulation, those purposes are to provide a clear signal to the public about what content they can rely on as credible sources of news and information, and to provide effective remedies when the news media abuse their privileges and power.

7.158Second, the internet is a game changer, reducing our reliance on dominant news sources and increasing levels of choice and control individuals can exercise, weakening the case for protective regulation.

7.159Third, it is in the interests of society that there be a diverse range of providers of such information – and that the regulatory environment does not provide a disincentive to new entities nor a barrier to entry.

7.160Fourth, the print media have never been subject to compulsory regulation and although they are now increasingly engaged in “broadcast-like” activities, we do not regard format as a compelling rationale for imposing higher standards of accountability.

7.161Fifth, in the digital environment it could sometimes be difficult to enforce a compulsory regime, for example in the case of a website that went offshore to avoid capture.

7.162Finally, and conclusively, the media themselves are more likely to respect and support a standards body and abide by its requirements if they have joined it by choice because they see advantages in it, rather than being otherwise coerced into doing so.

7.163The incentives we have explained above are, we believe, strong enough to mean that it will be very much in the interests of the large media organisations to join the new standards body. Moreover New Zealand has an encouraging history of voluntary regulation. The ASA, which depends entirely on voluntary compliance, has demonstrated that it is possible to combine meaningful sanctions and voluntary compliance. Although recognised in statute, the ASA has no statutory powers, but nonetheless succeeds in gaining the compliance of a wide range of advertisers even though its decisions can result in multi-million dollar advertising campaigns being pulled from the air.

7.164All the main newspapers have joined the Press Council,529  and we are not aware of any moves by any of them to withdraw their membership. We understand that all the mainstream broadcasters have voluntarily joined OMSA, the new compliance body for the broadcasters’ online presence. There would seem to us to be no reason why these agencies would be any less willing to join the NMSA. Our consultation with both the mainstream and new media through the course of this review lends weight to our belief that a voluntary regime is viable in the New Zealand context.
7.165As far as new media are concerned, the statement of blogger Cameron Slater is of interest:530

Under this regime so long as I agree to submit to the rules, process and responsibilities as outlined then it is very simple, I will be classified as “news media”.

It does need to be voluntary though. When I was asked about this by the Law Commission and subsequently by journalists my answer has been the same. By having it voluntary bloggers can choose to seek “certification”, so to speak, and in doing so they are signalling that they are prepared to be responsible news and commentary providers. Likewise a blogger can choose to remain outside of the regime and suffer the impression of a lack of responsibility and the accompanying diminishment of the value of what they have to say. Professionalism and competition will ensure that bloggers and other new media people will voluntarily join the regime. Remaining outside will eventually marginalize those who opt to stay outside of regulation.

7.166We therefore believe that membership of the NMSA should be voluntary in the first instance and that the matter should be reviewed after a year. If it is then found not to be working satisfactorily, stronger measures might be deemed necessary. That review should be conducted by the Chief Ombudsman or her nominee.531

The position of non-members

7.167There will be a very large number of new media who will not be within the jurisdiction of the proposed new standards body, either because they do not meet the criteria for entry or because they elect not to join. There will be bloggers, website hosts, Facebook users and a myriad of others. These will continue unregulated and may continue to publish as they wish. They can be inaccurate in their facts, extreme, even outrageous, in their opinions and rude in their tone, without recrimination.

7.168However, and very importantly, they will remain subject to the law, and will be subject to possible court action if they break the law.532  Apart from that there will be truly free expression.
7.169Nor is it true to say that the law will confer no privileges on them. The privileges by which the law exempts publishers from liability for defamation, and the “fair dealing” exemptions in the Copyright Act 1994, are not, and never have been, confined to the news media, although the news media are the most frequent beneficiaries of them. These “privileges” are simply incidents of the free speech rights which belong to everyone. We repeat what we said in our Issues Paper:533

Our proposed schema would not interfere with the fundamental free speech rights of citizens and nor would it impose unnecessary constraints on private publishing activities. What it would do is provide some clarity for those publishers who wish to be considered part of the news media and who choose to be constrained by the ethical standards and accountabilities inherent in that type of speech.

510See ch 3.
511As at the date of this report, no decisions have been made by the Press Council relating to the admission of bloggers to its membership, although we understand that the Press Council has granted a three month membership to the web-based news site <www.allaboutauckland.com>. See ch 1 at n 57.
512See Stratford Racing Club Inc v Adlam [2008] NZAR 329 at [53].
513Submission of Google New Zealand Limited (14 March 2012) at 22, submission from Massey University School of Communication, Journalism and Marketing, submission of InternetNZ (12 March 2012) at [3.3.5].
514Submission of Google New Zealand Limited (14 March 2012) at 20.
515Defamation Act 1992, s 13. See also Standing Orders of the House of Representatives (2011).
516Broadcasters of news would however remain subject to the BSA’s jurisdiction specifically in relation to the following standards: good taste and decency and the protection of children. See [7.44] above.
517Convergence Review, above n 446, Classification Review, above n 457, Finkelstein Report, above n 473.
518Issues Paper, above n 438, at [43] (option two).
519See the submissions of Fairfax Media (9 March 2012); Radio New Zealand (9 March 2012).
520Finkelstein Report, above n 473, at [6.28].
521Convergence Review, above n 446, at ch 4.
522Submission of Radio New Zealand (9 March 2012).
523See above at [7.60].
524Films, Videos, and Publications Classification Act 1993, s 3, definition of “objectionable”.
525At [7.44].
526Briefing Paper, above n 507, at [60(b)]; ch 5.
527At [7.14] – [7.16].
528Convergence Review, Emerging Issues, above n 440.
529The Press Council’s Statement of Principles, footnote 4, lists the organisations and newspapers that have agreed to abide by the principles and provide financial support. The National Business Review accepts jurisdiction but does not contribute financially.
530Cameron Slater “The Law Commission Report into New Media” (Whale Oil Beef Hooked blog, 12 December 2011) <www.whaleoil.co.nz>.
531Other reviews have also suggested a review of any new arrangements and the progress of reform; see Joint Parliamentary Committee on Privacy and Injunctions, above n 447, at [187]; Convergence Review, above n 446, at 53.
532On the implementation of the recommendations in our Briefing Paper, above n 507, ch 5, they will also be subject to remedial but not punitive action if they cause significant harm to an individual by breaking the proposed law-based principles.
533Issues Paper, above n 438, at [4.173].