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Who guards the guardians?

by The Law Commission

This post is the second in a series authored by the Law Commission and published here as part of an exercise in facilitating broad public discussion of the Commission's Review of Regulatory Gaps and the New Media issues paper. It follows on from the post Who are the media?

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Who guards the guardians?

To qualify for the legal privileges and exemptions outlined in chapter 3 of our Issues Paper we have proposed that a publisher would need to be "accountable to a code of ethics and a complaints process.” 

Which brings us to the second leg of our terms of reference: what type of complaints process?

In New Zealand, as in many other Commonwealth countries, the print media and broadcasters have traditionally been subject to different types of regulatory oversight. 

Broadcasters, an area initially dominated by the state and utilising a scarce public resource, have been held accountable to statutorily defined and enforced standards covering matters such as fairness, accuracy, good taste and decency.

The Press, which was privately owned, remained independent of any legally prescribed standards and accountabilities, instead developing its own ethical principles backed by an industry complaints appeals process - the Press Council.

Both systems are format-based and as traditional broadcasters and print companies converge on an ever expanding array of digital platforms, this approach to regulation becomes increasingly problematic for consumers.  In chapter one of our issues paper we explain how the lack of regulatory parity between broadcasters and print companies, and between new internet-based media and traditional media, is leading to gaps and anomalies. (view para 18 of the issues paper summary document)

Our preliminary conclusion then is that neither of the existing regulators may be fit for purpose in a digital age. Instead we put forward an alternative model based on the following principles:

  • A free press is critical to a democracy. The Bill of Rights guarantee of freedom of expression must lie at the basis of any news media regulation. It requires that sanctions be proportionate, that accountability rather than censorship should be the guiding principle, and that any regulation should be free of state control.
  • Media regulation should be truly independent, both from government, and also from the industry itself.
  • Any regulatory system should foster rather than stifle diversity and growth in the generation of news and current affairs in New Zealand.
  • The system of regulation should be flexible and platform neutral, although standards may sometimes need to take account of different modes of delivery or types of publisher.
  • Any system of media regulation should not inhibit the freedom of speech of individuals who are not part of the news media. There should remain a right for individuals to speak out, however unorthodox or even wrong their views may be.

The new regulator we are proposing would have the following features:

  • It would be independent of both government and the news industry.
  • Appointments to the regulator would be by an independent panel. The regulator would comprise industry and non-industry representatives, the latter being the majority.
  • The regulator would be responsible for working with the various sectors of the industry and consulting with the wider public to devise the set of principles by which it adjudicates. As is already the case under the current broadcasting regime, we envisage there being a number of different codes based on these principles but appropriate to different news producers and publishing environments – for example bloggers may devise their own codes.

The regulator would be recognised by statute and funded by contributions from members and subsidised by the state.

Many traditional and new web-based publishers already have robust processes for responding to readers’ concerns. We are not proposing to disturb those arrangements. For the most part the new regulator would be adjudicating complaints which had not been satisfactorily resolved between the complainant and the publisher.

An effective regulator must not only be independent it must also be accessible to the public – which means it must be able to advertise its existence and promote its role.

Adequate funding is essential if it is to do this effectively and we see no reason why a mix of public and private funding should not be used to support the new body. At present the Press Council is entirely industry funded and yet manages to remain independent in its adjudications – the same should be possible for an independent regulator with respect to any state funding, provided no strings are attached.

Should membership be entirely voluntary or should some news media be compelled to join?  

We think there is a strong Bill of Rights rationale for making membership of this new independent regulator entirely voluntary. There would be benefits in belonging. Any publisher who wanted to access the legal privileges of the news media, such as exemptions from the Privacy Act, would have to belong.

We think many news media organisations would also see value for their brand in belonging to such a body. It also seems likely that other private and public institutions might use membership of the body as a way of allocating non-statutory media privileges such as rights of attendance at press conferences etc.

But are these incentives strong enough to attract the bulk of news media?

Some might argue that having access to the courts for instance is far less important to media companies today than it was a decade ago.

If the incentives are not strong enough to attract voluntary compliance is there a case for compelling some news media companies to belong?

If so what criteria would be appropriate for determining who must belong?

  • Commercial status of the publisher?
  • Audience size?

 We are interested in your views on these issues.

  • If you think it is in the public interest for the news media to continue to be subject to some form of external accountability, what is the most appropriate form of regulation? (view chapter 6).
  • Is there still a case for treating broadcasters differently from other publishers, continuing to make all broadcasters subject to Government imposed regulation, as is the case at present?
  • If you think that media convergence means there is no longer a strong case for treating newspaper publishers and broadcasters differently, then what is the most appropriate form of regulation for the news media?

– state regulation, with standards and sanctions set out in legislation?

– some form of independent regulation such as we propose where neither the government nor the news industry controls the regulator?

  • If you support the independent model we propose, do you think the incentives for membership are strong enough for the system to work on an entirely voluntary basis?
  • If not, do you think there is a case for making membership compulsory for some publishers? How would you define these?

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IMPORTANT NOTICE ABOUT THIS DISCUSSION:

This discussion is being advertised across several new media websites - guests to Public Address are very welcome but please refer to the ruleshere.

This discussion is part of the Law commission’s consultation on their issues paper “The News Media meets ‘New Media’ : rights, responsibilities and regulation in the digital age. I.E. your comments below may be taken into account when the Law Commission writes its final report on Media Regulation issues. The discussion will be moderated, however this moderation will be in accordance with the normal rules of moderation in this forum.

 Several other things follow from this:

 1. The Law Commission may participate in the discussion.  Any comments it makes in this forum should be regarded as provisional as the Commission will not finalise its policies and recommendations to government until it tables its final report which is expected at the end of 2012.

 2.  Parts or all of this discussion may be archived as part of the official record of this Issues Paper Consultation (Practically this means that  if you change your mind on something then you are encouraged to say so and explain why - otherwise your initial view may be interpreted as a kind of submission).;

3.  This discussion may be subject to the Official Information Act - and certainly any remarks made by the Law Commission will be; The Law Commission encourages all participants to also make formal submissions to the Law Commission here.  If you form an opinion on these issues as a result of reading the discussion in this thread then please share that with the Commission directly if you wish.

 - The Law Commission and Russell Brown (Host and publisher of Public Address)

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