The good news, for the Law Commission: the government thinks the Commission’s report on media regulation – recommending the establishment of a one-stop media complaints body serving print, broadcast and online platforms – is “excellent”. The bad news: the government has rejected that recommendation.
I summarised the Commission’s proposal in an earlier post. In short, the idea was for the creation of an independent media regulator – the News Media Standards Authority – that could draw up codes of ethics and receive complaints about news media misbehaviour. There would be a single port of call for complainants whatever the delivery platform, replacing the increasingly unsustainable mishmash of existing complaints bodies – one for broadcasting, one for print, and a new one for online broadcasters.
Membership would be voluntary. Anyone regularly delivering news or news commentary to a public audience could join (including some bloggers). They would then receive various legal privileges, such as rights of access when courts were closed, and source protection under the Evidence Act.
This proposal was generally reasonably warmly received by the media.
Why did the government reject it? It gives a series of reasons. There’s no crisis of confidence in the media here. The proposal would require “extensive legislative change”. Some media might not join. It would still leave the problematic category of “entertainment” programmes. Are we really ready to let go of statutory control of broadcasting? ”Careful consideration” is needed before stripping non-members of rights such as immunity from the Privacy Act. We’re regulating about harmful cyber communications shortly – let’s see how that works out. And let’s wait and see what other countries do.
There’s room for some disagreement here. In particular, the government several times talks about careful consideration being needed before significant changes are made. This is rather insulting to the Law Commission, whose report contained oodles of careful consideration of the changes they recommended.
What’s more it’s not entirely clear that the government itself has carefully considered the Commission’s recommendations. Twice the government says that the Commission proposed doing away with the balance standard. It didn’t (though it did suggest that balance was a standard which may not be needed for some news formats, such as blogging).
And the legislative changes recommended (essentially some tweaks to the definition of news media where it appears on the statute book, and the repeal of a big chunk of the Broadcasting Act) are not particularly extensive ones. It’s true that if some of the big media organisations did not join the NMSA, then the regime would probably be doomed. But given that it’s essentially a self-regulatory regime, and would be likely to be replaced with a full-blown statutory one if it didn’t work out, this would involve some spectacular foot-shooting by the media.
Finally, the Commission spends some time making the case that the distinction between news and entertainment, while tricky (consider, for example, reality television), is ultimately workable.
But my main objection to the government’s response is how short-sighted it is. Our existing patchwork system is rapidly passing its use-by date.
At the moment, it’s really not clear who counts as the news media for the purposes, for example, of the Privacy Act, the Evidence Act, and court access privileges. That’s likely to lead to inconsistencies and confusion and probably litigation. Why not clear up now whether reality TV producers are subject to the Privacy Act. Why not clarify who gets exemptions from Fair Trading Act obligations concerning misleading and deceptive conduct? One pothole waiting for an unwary traveller: the fact that the Fair Trading Act’s exemption for the media may not apply to online publications (is Stuff a “periodical publication published at intervals not exceeding 40 days”?), and plainly doesn’t apply to downloaded news clips and programmes – because these are not “broadcasts” under the Broadcasting Act.
Are the Press Council’s rules really geared to the increasing amount of video newspapers publish online? There’s no power to order a takedown of, for example, footage of a child being bullied.
That raises another point. The Press Council’s standards differ from the Broadcasting Standards Authority’s ones. The Online Media Standards Authority’s differ again. If identical videos are posted on a newspaper’s website, a broadcaster’s website, and broadcast on television, complainants may have to go to different bodies, make different arguments, and receive different outcomes and remedies. That seems insane.
Still, it now seems that the media will be subject to the new cyber-harrassment regime. The Commission had proposed that NMSA members be excluded. Being subject to that regime may come as a shock to the media. But perhaps they will be exempted if they belong to one or more of the existing regimes.
We also have the rather silly situation where Sky TV is subject to a significantly more lenient set of standards in its news and current affairs shows than TVNZ or TV3.
What about the role of the Bill of Rights? NMSA would presumably have led to a fairly rigorous and standardised approach to free expression issues. At the moment, the BSA’s approach differs markedly from the Press Council’s.
The complaints procedures differ too. For instance, you can’t appeal a Press Council decision, but you can appeal a BSA decision to the courts, and OMSA has its own appeal body. The Press Council can insist that you forego your right to sue as a precondition for hearing your complaint. The BSA can’t. The Press Council now conducts informal attempts to mediate complaints. The BSA doesn’t.
And currently, there is no standards regime for bloggers to sign up to.
What about mobile phones? When streaming news and current affairs content, they are probably vehicles for broadcasts. Should the originators of such content be subject to broadcasting standards?
In short, the proliferation of platforms is set to create more and more problems for complainants, and the differences between them look increasingly unjustified, confusing, or just silly. But the government hasn’t mentioned any of this in its response to the Law Commission. Instead, it has passed up an opportunity to fix up what even the media agrees is an untenable system. That strikes me as irresponsible.
Steven Price is a Wellington barrister specialising in media law. He is the author of Media Minefield, a guide to media regulation in NZ
This post was originally published on the Media Law Journal blog and is reproduced with permission and thanks