Contents

Summary

Key conclusions

Principles & policy objectives

24The 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. Accordingly, we endorse the position adopted by both the Australian Convergence Review and the Australian Law Reform Commission’s Classification Review, which determined that for reasons of principle and practicality in this new era of information abundance, the scope of any regulatory intervention must be limited to the minimum required to achieve the policy objectives.14

25The policy objectives of our recommended reforms are to:

26In line with the Australian reviews we recognise the need for any new system of accountability to take into account the profound changes in the media environment brought about by the internet. These include a recognition that the internet and web 2.0 technologies have empowered media consumers to make active choices, lessening the case for “protectionist” regulation. Like the Leveson and Finkelstein Inquiries, we recognise that in this dynamic new publishing environment there remains an overriding public interest in ensuring the survival of a robust news media, unfettered by political interference.

27However, as these Inquiries also recognised, the news media continues to be 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 capable of derailing the administration of justice, and causing significant financial, emotional and reputational harm. 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.

28But 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. In other words our mechanism for influencing organisational behaviour is via accountability rather than any type of prior constraint. This is a critical distinction which is sometimes lost in the rhetoric around “regulation” of the news media.

29Finally, there is a strong public interest in ensuring that any accountability mechanisms for the news media encourages rather than stifles diversity. It must therefore provide a level playing field for all those carrying out the functions of the fourth estate, irrespective of their size, commercial status, or the format in which they publish or distribute their content. In other words it must be technology neutral focusing on content and context rather than the format or delivery platform.

Policy conclusions

30Based on these principles and core propositions, we reach a number of conclusions about the way in which the law should define the term “news media” when conferring statutory privileges and exemptions, and how those accessing these privileges should be held accountable.

31First, for reasons we outline in chapter 3, we conclude that there is a strong public interest in adopting a broad-church definition of “news media” reflecting the need to nurture a diverse and robust fourth estate during a time of unprecedented commercial and technological disruption. This conclusion is based on an acknowledgment that the commercial model which has funded primary news gathering is under threat and that the institutional news media may not survive the paradigm shift brought about by the internet. At the same time the virtual elimination of barriers to publishing now makes it possible for any individual or organisation to undertake the core democratic functions assigned to the news media. This has the potential to strengthen democracy and increase the accountability of Parliament and the courts, and other powerful public and private institutions.

32For this reason we conclude it is important to extend the news media’s special legal status to other publishers who are engaged in generating and disseminating news and commentary and in performing the other functions of the fourth estate – provided these entities are willing to be accountable to an independent standards body to ensure these privileges are exercised responsibly.

33Second, from a consumer’s point of view we see no justification for retaining the current format-based news media complaints bodies which are largely based on outmoded distinctions between print and broadcast media. Within the next decade it is conceivable that there will be few if any printed daily newspapers. Over the same time period there is likely to be an exponential increase in the amount of audio-visual content accessed on-demand via mobile and other devices. In this converged environment consumers must be confident that consistent standards apply to similar types of content irrespective of the format or platform by which it is accessed.

34It is significant in our view that many of New Zealand’s mainstream media, including Television New Zealand, Radio New Zealand and the Newspaper Publishers’ Association, accept that a single standards body for all news media is the logical consequence of convergence. As Fairfax Media stated in its submission to this review: “[n]ew technologies and convergence mean all major companies have multi-media operations and adjudicating complaints separately would be a nonsense”.15
35Independent research commissioned for this review also indicates that the New Zealand public sees merit in a single media complaints body: 52 per cent of respondents to an online survey said they would “definitely support” the establishment of such a body and a further 36 per cent said they were open to the idea.16

36The final question we address is whether this new converged standards body should have statutory jurisdiction over all New Zealand news media, as the Broadcasting Standards Authority currently has over broadcasters, or whether instead it should be a non-statutory body, like the Press Council, OMSA and the Advertising Standards Authority, whose members choose to be subject to their authority.

37Our review has not found any evidence to challenge the mainstream media’s own assertion that New Zealand has an ethical and trustworthy news media. Although the Big Picture Research indicates some concern over the accuracy of the New Zealand media, it did not reveal a wholesale loss of confidence.

38For this and for other reasons we discuss in chapter 7, we conclude that it is not in the public interest to impose statutory regulation on the New Zealand news media. Instead, in line with the principles outlined above, we believe accountability to an external standards body should be entirely voluntary.17 However, as we outline in the following section, membership of our proposed new body will bring with it advantages which in our view will be of considerable value to those willing to be subject to its jurisdiction.
14See ch 1 at [1.80] – [1.81], fn 60.
15Submission of Fairfax Media (9 March 2012) at [4].
16Big Picture Marketing Strategy and Research Ltd Public Perception of News Media Standards and Accountability in New Zealand (summary of the online survey conducted for the Law Commission, April 2012) <www.lawcom.govt.nz/project/review-regulatory-gaps-and-new-media> [Big Picture Research].
17See ch 4.