gazetteNew Zealand has been looking at new proposals for media regulation which address the digital revolution … Unlike Australia and the UK, the NZ Law Commission’s media reform plans have met with minimal resistance … Barrister Steven Price investigates

The New Zealand Law Commission has been drawing up plans for some urban renewal in the media law landscape.

Last month, the commission released its final proposal to bulldoze the Press Council, the Broadcasting Standards Authority and the new Online Media Standards Authority, and replace them with a flash new one-stop legal edifice for regulating the news media, to be called the News Media Standards Authority, NMSA.

imageAnd recently, the government agreed to the Law Commission’s plan to renovate some of the law dealing with cyber harassment, recasting existing laws to more clearly encompass online and electronic behaviour, and approving development of some of the internet’s wild west territory to create new legal remedies – including take-down orders – for victims of cyber-bullying.

Certainly, some of our media laws were looking increasingly dilapidated.

Why have separate rules and complaints processes for the broadcast media, the broadcast media’s websites, and the print media?

When a statute confers privileges on the “news media”, might that include news bloggers? When intensely private of abusive behaviour is captured by a cellphone and posted online, should victims be forced to finance a lawsuit to have it removed?

And is the courts’ deep reluctance to grant injunctions when free speech is in play still appropriate in such cases?

The commission’s proposals address these problems. And they seem to have met with a lot less resistance than similar plans for media regulation in the UK and Australia. The commission must be doing something right.

These two new regulatory regimes are best thought of as separate and complementary.

NMSA is, more or less, for mainstream media, though the notion of mainstream media is redefined.

It would cover anyone who is regularly publishing news or current affairs content or opinions to a public audience. Yes, that includes bloggers. But joining is voluntary.

Any person or organisation that joins would get the statutory privileges and exemptions of the news media, such as access to closed court hearings, exemption from the strictures of the Privacy Act (1993) and confidential source protection rights. But members would be subject to a new standards and complaints regime.

On the other hand, they would not be subject to the cyber-harassment regime. That’s for everyone else.

It’s intended to give the public cheaper and more effective protection against a range of types of digital harassment: false accusations, denigration, threats, publication of sensitive private material, and the like.

So if a media outlet invades your privacy on its website (or elsewhere), you use the NMSA system, which will revolve around a code of ethics and a complaints body that is independent of government and the media industry.

If your neighbour invades your privacy on her website, you use the digital harassment regime, which revolves around a set of statutory principles, an agency designed to help resolve disputes, and ultimately, District Court judges.

In either case, you could also choose to use existing civil law court remedies instead.

Both regimes will require you to contact the infringer first before turning to the complaints body. Maybe you can resolve things without the need for further action.

NMSA would work pretty much like the Press Council and BSA. It’s intended to be fairly informal. A complaints panel would assess complaints against ethical standards, such as accuracy, balance, fairness and privacy.

It will be able to order apologies, rights of reply and take-down orders. It wouldn’t be able to order damages. (The Law Commission doesn’t mention costs). There would be a right of appeal.

The code of ethics may be geared to apply slightly differently to different media.

imageComplainants using NMSA would not have to sign away their rights to sue in court, but there would be a mediation system for serious complaints that might otherwise be destined for the courts.

The harassment regime works differently. An agency – perhaps Netsafe – will be designated and funded to assist people who think they’ve been harmed by online and electronic communications.

It can provide information, try to negotiate solutions, liaise with organisations like Facebook, and – if necessary – certify a case as appropriate to go before a District Court judge.

To get a remedy, you’ll have to convince the judge that one of the principles was breached (eg the respondent was threatening or intimidating, disclosed sensitive private facts, was grossly offensive, or incited suicide); the victim has suffered significant emotional distress; and that a remedy is justified in light of (a) free speech rights and (b) contextual factors such as public interest, the vulnerability of the complainant, the truth or falsity of the communication, its circulation and its purpose.

Remedies will include takedown orders, corrections, and apologies, but not damages.

The government is predicting that only a hundred cases a year will hit the courts, and expecting that those cases will be assigned to judges with appropriate tech-savvy and free speech expertise.

Given that there will be no filing fee, and cases will often be urgent, both of these assumptions may be optimistic.

For those who doubt the need for these new regimes, I’d recommend a perusal of the Law Commission’s reports and papers.

The commissioners, headed in each case by the godfather of New Zealand media law, John Burrows QC, take a hard look at the evidence of cyber-harassment and the workings of our existing complaints systems.

Their reasoning is alive to the importance of free speech. They look at what’s worked, and what’s been recommended, overseas. But in the end, they focus squarely on what’s needed in modern New Zealand.

And if they think urban renewal is needed, it’s mostly because our communications environment has already been upended by the digital revolution.

Steven Price is a New Zealand barrister specialising in media law. He writes the Media Law Journal blog.

This post originally appeared in the Gazette of Law and Journalism– Australia’s leading online media law journal.