47Our preference is for the new standards body to come into existence without any statutory underpinning to that body’s creation. We think it is preferable in the first instance for an independent standards body to be set up without any form of state coercion.
48However, we do consider it to be in the public interest for there to be an independent person appointed by the Chief Ombudsman to facilitate the formation of the new body and to oversee its establishment. We are aware that there are a number of initiatives underway within the industry to address the gaps we have identified during our review. These are commendable and will no doubt assist in bringing together the new converged body. However, they do not address the convergence problem from a consumer’s perspective.
49We also recommend that the Chief Ombudsman conduct a review of the new complaints body against the criteria we have recommended to assess its effectiveness after a year. If for example the incentives we have outlined are not sufficient to attract the major media companies, or if the strengthened powers we propose lead to some companies leaving the standards body, or if for any other reason the NMSA is not working as it should, the option of another form of regulation may have to be reconsidered.
50There are two consequential statutory amendments, however, that will be required to bring about the new model we recommend. It will be necessary to amend the Broadcasting Act 1989 to restrict the news jurisdiction of the BSA that will be assumed by the new standards body. The BSA is a statutory body and its jurisdiction can only be changed by statute.
51The other will be required to achieve the recognition we wish to give to news media that are subject to the new standards body. As already indicated, this will involve amending the existing statutes which confer privileges and exemptions specifically on the news media so that they apply to those individuals and entities which belong to the new standards body and subscribe to its code of practice.
52As noted earlier, this report is focused on resolving two questions: how to determine which publishers should be party to the system of privileges and accountabilities which have traditionally applied to the news media, and what form should that accountability take. We have endeavoured to provide a solution that recognises the fundamental changes which have occurred in the ways in which citizens exercise their freedom of expression in the digital age, is proportionate to the problem, and fosters a robust, independent and diverse news media.
53We also recognise though that the majority of individuals using digital communication technologies, including many bloggers, will choose to sit outside our proposed new complaints body and will not be covered by its standards. However, they will be subject to the law of New Zealand and also the various measures we have recommended in our earlier Ministerial Briefing Paper to combat communication harms. These include a new criminal offence covering highly offensive communications; changes to the Harassment Act to ensure it can be readily applied to digital publishing; and a new Communications Tribunal capable of providing speedy and efficient remedies, including take down orders, in instances where digital publishing has resulted in serious harm to an individual.
54The dependencies between the two packages of reforms are intentional and together they are intended to provide a flexible and proportionate response, suited to the converged digital environment.