Contents

Summary

The purpose of our review

1This report is about the different rights and responsibilities which apply to communicators in an era when anyone with an internet connection has the potential to broadcast to the world.

2All those who publish in New Zealand, whether as individuals or as entities such as news media companies, are subject to the basic legal constraints which protect citizens’ interests in their reputation, privacy, personal safety, and right to a fair trial. Within these legal constraints, citizens are free to exercise their freedom of expression, including publishing views which are extreme, false, misleading and/or offensive to some.

3The news media, however, have additional rights and responsibilities, reflecting the vital role they have played as a conduit of reliable information about what is happening in the world and as a means of holding power to account.

4To facilitate the news media in carrying out these core democratic functions, the law grants these publishers certain legal privileges and exemptions not available to ordinary citizens. For example under the Criminal Procedure Act 2011 the news media have a statutory right to remain in a closed court and to appeal suppression orders. They alone have the right to communicate electronically from the court.2 The news media are specifically exempt from the information privacy principles in the Privacy Act 1993, and certain provisions of the Electoral Act 1993, the Human Rights Act 1993 the Fair Trading Act 1986.
5In turn, the news media are subject to additional standards, some enshrined in law, others by self-imposed professional and ethical codes, designed to ensure their privileges and exemptions are exercised responsibly; that the information they disseminate conforms to basic standards of accuracy and fairness; and that they are held accountable for any abuse of their power.3

6However, this system of statutory privileges, matched by countervailing responsibilities, evolved in an era when the public was largely dependent on the mainstream media as their only source of reliable news and information. It also developed at a time when “print” and “broadcast” media were two distinct entities, subject to different standards and forms of accountability based on the formats in which they distributed their news.

7Neither of these assumptions holds true today. New Zealanders now have access to a plethora of news sources ranging from global media brands through to the spectrum of “new media” providers generating, aggregating, and commenting on news. Most significantly, the public are now able to generate, debate and distribute news and opinion themselves, without reliance on the mainstream media.

8At the same time the bright line distinctions between traditional broadcast and print media are becoming increasingly blurred as commercial media companies converge online, producing a rich mix of text and video accessed via a variety of different channels and devices. This blurring of boundaries between professional and amateur, print and broadcast, moderated and un-moderated, corporate and social media is a defining characteristic of the new converged media landscape. It also gives rise to a number of policy problems and is the key driver behind this review.

9Currently news and current affairs is subject to different standards and complaints procedures – or none at all – depending on who created it and the format and channel via which it is distributed. For example, broadcast news is subject to statutory standards and complaints processes but broadcasters’ content accessed via an app or on-demand is not necessarily subject to these same standards.4 News accessed via a website may or may not be subject to standards and a complaints process, depending on whether it has been produced by a mainstream media company or a new generation digital news publisher.5

10In response to these gaps New Zealand broadcasters recently established a new self-regulatory complaints body, the Online Media Standards Authority (OMSA), to deal with complaints relating to news and current affairs content that is published on mainstream broadcasters’ websites – including on-demand content that has not been previously broadcast.

11In chapter 5, we discuss this and other initiatives to address the problems with the current regulatory systems. We note here that while such initiatives show a strong willingness on the part of the industry to provide accountability, they do not address the fundamental problems created by convergence – a lack of regulatory parity between print and broadcasters and an absence of accountability for new media undertaking “news-like” activities.

12This lack of parity between print and broadcast media is likely to become increasingly problematic over the next five years as the roll out of ultra-fast broadband (UFB) creates increased opportunity and demand for high quality video content accessed via the internet.6 In this environment the distinction between traditional broadcasters and the producers of streamed video and audio content will become increasingly blurred. From a news producer’s point of view, it also creates an uneven playing field.

13More critically, from a news consumer’s point of view, the proliferation of different bodies responsible for enforcing different standards for the same or similar news content is likely to become increasingly problematic as the pace of convergence continues.

14Addressing these gaps and inconsistencies in the standards and accountabilities which apply to news content in a converged media environment is a key objective of this review. It requires us to address the following three central questions:7

15Alongside these questions relating to the news media we were also asked to consider whether the laws and remedies which are available to ordinary citizens with respect to harmful communication are fit for purpose in the digital age.

16This latter part of our review was fast-tracked at the request of the Minister Responsible for the Law Commission, the Hon Judith Collins. In August 2012 we delivered a Ministerial Briefing Paper, recommending a package of legal and enforcement reforms designed to offer a graduated response to the types of harms which can result from the misuse of new communication technologies.8 These included amendments to existing statutes to ensure they can be applied in the digital environment, a new electronic communications offence and the establishment of a specialist Communications Tribunal able to provide citizens who have suffered significant harms with speedy and effective remedies such as take down orders. The briefing paper is reproduced as Appendix A to this report.

17In this report we return to the other focus of our review:

International context

18Our own review has been conducted in parallel with two major inquiries into news media standards and accountability in Britain and Australia. In Britain, the phone hacking scandal which enveloped Rupert Murdoch’s publishing conglomerate, News International, gave rise to a two-part independent inquiry into the “culture, practices and ethics of the press” led by Lord Justice Leveson. The Leveson Report, published in November 2012, focused primarily on the adequacy of press regulation and did not directly address the broader context of media convergence.9 It recommended the establishment of an independent self-regulatory body with an enhanced role in enforcing standards and significantly greater powers and sanctions than the pre-existing Press Complaints Commission. At the time of writing the British Government had yet to finalise its response to the Report’s recommendations.

19Unlike the Leveson Inquiry, Australia’s Independent Inquiry into the Media and Media Regulation, led by former Federal Court Judge, the Hon R Finkelstein QC, was explicitly required to examine the ways in which technology was impacting on the news business model, the quality of journalism, and the effectiveness of accountability mechanisms.

20The Finkelstein Report, published in February 2012, highlighted a wide range of issues including an erosion of public confidence in news media and a persistent recurrence of standards failures.10 The Report concluded that the current regulatory mechanisms were “not sufficient to achieve the degree of accountability desirable in a democracy.”11 It recommended the current print and broadcast regulators be replaced by a single converged standards body, responsible for enforcing standards across all news media, regardless of format.
21Alongside these two high-profile inquiries there have also been two major Australian reviews focused on the implications of media and technological convergence for regulatory frameworks. The first was an Australian Law Reform Commission review of Australia’s censorship and content classification system;12 the second a multi-faceted convergence review, considering the implications of the converged media and telecommunications market for a range of policy issues including licensing and regulation, spectrum allocation and management, local content requirements, media diversity, competition and market structure and community standards.13

22The cross-fertilisation of ideas between these various international reviews has been invaluable to us and it will be evident that we have drawn on many of the principles and proposals put forward in these various reports. However, it is important to note that our proposals are a response to the specific problems we were asked to address and reflect our own unique context: they draw on research and analysis of New Zealand’s media environment, the views of submitters, and our own assessment of how best to balance New Zealanders’ interest in a strong, independent and accountable news media in the digital era.

23In the following section we summarise the major conclusions and recommendations contained in this report. For more detailed explanations of the principles and rationales underpinning our recommendations we encourage readers to refer to the relevant chapters of the report.

2See ch 2 at [2.9].
3See chs 2 and 5 for discussion of the various statutory and self-regulatory complaints bodies currently responsible for upholding media standards in New Zealand.
4See ch 1 at [1.51], fn 48.
5See ch 2 at [2.54] – [2.63].
6See ch 1 at [1.57].
7See ch 3 for discussion of the rationale for preserving the news media’s legal status.
8Law Commission Harmful Digital Communications: the Adequacy of the Current Sanctions and Remedies (Ministerial Briefing Paper, 2012). The Briefing Paper and accompanying draft bill are attached as Appendix A.
9The Rt Hon Lord Justice Leveson An Inquiry into the Culture, Practices and Ethics of the Press (The Stationery Office, London, 2012) [The Leveson Report].
10The Hon R Finkelstein QC Report of the Independent Inquiry into the Media and Media Regulation (Report to the Minister for Broadband, Communications and the Digital Economy, Canberra, 2012) at 103 – 124 [Finkelstein Report].
11At 8.
12Australian Law Reform Commission Classification – Content Regulation and Convergent Media (ALRC R 118, 2012) [Classification Review].
13Australian Government Convergence Review (Final Report to the Minister of Broadband, Communications and the Digital Economy, 2012) [Convergence Review]. This review drew on the recommendations of both the Finkelstein Report and the Classification Review.