Regulate What?

  • Russell Brown,

    Justice Minister Simon Power has asked the Law Commission to review the regulation of internet content. But does he even know what he's talking about?

    Auckland • Since Nov 2006 • 19116 posts Report Reply

40 Responses

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  • Russell Brown,

    Me first.

    You know, it's very hard to consider yesterday's comments from the minister and not conclude that he doesn't know what he's talking about.

    The review, he says:

    … will focus on whether either of the two existing industry watchdogs – the Broadcasting Standards Authority and the Press Council - could provide a suitable vehicle for regulating unregulated forms of new media.

    Let's start with the Press Council. The Press Council is not a statutory body. It has no official powers, and it cannot compel even conventional print publications to be subject to its findings. If I recall correctly, the National Business Review does not make itself subject to the Press Council. It's a complete non-starter as a vehicle for statutory regulation. Why it would appears so prominently in the terms of reference, I don't know.

    The Broadcasting Standards Authority does better fit the bill. But Steven Price and I wrote a paper on the future of media regulation several years ago for the BSA, and we concluded (me more strongly than Steven, to be fair) that it would be difficult and probably unworkable to ask the BSA to regulate internet content.

    The BSA deals with a limited pool of players – a few dozen broadcasters – and, indeed, the basis of its statutory power is the idea that broadcast spectrum is a limited resource. The internet isn't – there are tens of thousands of active bloggers in New Zealand. It's not hard to imagine the trouble that might ensue if a complaints-based system was to be applied to such an environment. If nothing else, you could expect a flood of vexatious complaints as a form of protest.

    We also need to think about exactly what problem is being addressed here. The minister said:

    “It’s a bit of a Wild West out there in cyberspace at the moment, because bloggers and online publishers are not subject to any form of regulation or professional or ethical standards.

    This is true. And it's an anomaly that the same audio-visual content that might constitute a breach of broadcasting standards has no standards applied against it on the internet.

    But the internet is not the "Wild West". As Rick Shera points out:

    “Laws that have always applied to any form of discourse – copyright and trademarks, defamation, privacy, harassment, suppression as was seen in the Whaleoil case, prohibition on objectionable material, privacy – all apply equally online.”

    The suppression issue is clearly a hot one at the moment – and in its recent paper on that topic, the Law Commission pondered applying a filter on inbound internet traffic to try and block information suppressed by the courts before it could be viewed by New Zealanders. If you want an example of a cure that would be worse than the disease, this is it.

    And how many of these errant bloggers are really a problem? How many are more of a problem than, say, the contributors to the forums at Trade Me? What binding regulation, over and above the many applicable laws, would you apply to those people?

    On the other hand, a review of this type isn't a bad idea in principle. It's encouraging that the leader of the review, John Burrows QC, will be advised by a former newspaper editor, Cate Brett.

    It is also evident that many online publications can be seen as news media, as the minister suggests. But I'm not clear on what difference an official declaration to that end would make. What statutory rights do "real" news media enjoy alongside their responsibilities?

    My view is that the practical solutions would tend to be voluntary and advisory in nature. I might be willing to consider associating myself with a code of conduct, and I think advice for online publishers would be useful. I suppose you could look at a self-regulatory body. But, then: see "cats", herding of.

    We're going to have plenty of time to look at this one: the commission isn't even expected to deliver an issues paper until December next year. But for now, it appears that once again the Minister of Justice has burst forth with what he thinks he ought to say, and process be damned.

    Auckland • Since Nov 2006 • 19116 posts Report Reply

  • Thomas Beagle,

    Good summary of some of the problems.

    One of the things that disturbs me most about the announced review, was that there was no mention of freedom of expression and freedom of the press. They could have at least done a hand-wave about "balancing off freedom and responsibility" but couldn't even manage that.

    I also note that there are currently no bodies that regulate political posters, pamphleteers, book publishers, and public ranters.

    The Internet enables more people to post more opinions about more topics. Personally I think this is wonderful for our democracy and is something that we should be protecting, not hindering.

    Note re suppression: the Law Commission has recommended (and the government has indicated that they accept) that ISPs will be responsible for blocking information hosted on their servers that breaches suppression orders. This is not as easy as it sounds, when you consider that many ISPs are just hosting servers that they have no control over - apart from being able to disconnect them.

    Even worse, the ISPs will be in the position of having to decide whether a particular piece of information is in breach of an order or not. In other words, we're trying to turn the ISPs into judge, jury and executioner, just like the failed s92a of the Copyright Act.

    Read more here: http://techliberty.org.nz/government-to-turn-isps-into-censors/

    New Zealand • Since Nov 2007 • 39 posts Report Reply

  • DeepRed,

    If Minister Power gets it wrong, this will probably turn into Trevor Rogers 2.0.

    The southernmost capital … • Since Nov 2006 • 4431 posts Report Reply

  • Sacha,

    What statutory rights do "real" news media enjoy alongside their responsibilities?

    A central question. I thought copyright and defamation were affected at least.

    Ak • Since May 2008 • 16996 posts Report Reply

  • Russell Brown,

    A central question. I thought copyright and defamation were affected at least.

    Nope. The proper news media enjoy no special rights in either case there.

    Auckland • Since Nov 2006 • 19116 posts Report Reply

  • Graeme Edgeler,

    Nope. The proper news media enjoy no special rights in either case there.

    Some provisions of the Defamation Act only apply to newspapers and/or news media (although they're not terribly important ones).

    Copyright Act too (some of the limited Fair Dealing provisions, for example).

    Perhaps more important are the right of an accredited reporter to be present in court during a criminal trial even when the public is excluded, and rights relating to the protection of sources in the Evidence Act.

    Wellington, New Zealand • Since Nov 2006 • 3012 posts Report Reply

  • Andre Alessi,

    I assume one of the central scenarios that will need to be addressed by this review is: what happens when a newspaper publisher decides to abandon hardcopy entirely and only publish online? Are there any legal implications there for who a "journalist" is? And is there value in creating a definition of "professional reporting" that can distinguish someone working on a newspaper that is only published online vs a moderately successful blogger?

    Devonport, New Zealand • Since Nov 2006 • 864 posts Report Reply

  • BenWilson,

    If I was a blogger, I don't think I'd want to sign up for any rules that said I had to be balanced and fair.

    Auckland • Since Nov 2006 • 8737 posts Report Reply

  • Russell Brown,

    Perhaps more important are the right of an accredited reporter to be present in court during a criminal trial even when the public is excluded, and rights relating to the protection of sources in the Evidence Act.

    Thanks, Graeme. IIRC, the Law Commission has pondered that one in the past too.

    Auckland • Since Nov 2006 • 19116 posts Report Reply

  • Sacha,

    Loving this concise solution from Andrew Geddis in the Dimpost comments:

    Wouldn’t it just be easier to pass a law banning Cameron Slater?

    Ak • Since May 2008 • 16996 posts Report Reply

  • Graeme Edgeler,

    IIRC, the Law Commission has pondered that one in the past too.

    Yep. The new Evidence Act, including the protection for journalists' sources, followed on from an extensive Law Commission report.

    Wellington, New Zealand • Since Nov 2006 • 3012 posts Report Reply

  • Geoff Lealand,

    Let's start with the Press Council. The Press Council is not a statutory body.

    Quite so. The Press Council is a limp rag. I registered a formal complaint with them earlier this year about a series of paid-for 'advertisements' by an ACT loon in a local free weekly, which were essentially inflammatory and racist opinion pieces. I argued that to call such content 'advertising' was stretching things too far. To make matters worse, this loon then starting slagging off such complaints in his next contribution. The Press Council said this was 'unfortunate' but couldn't do anything about it.

    It has always puzzled me why certain sectors of the media (TV, radio) have formal regulatory structures (the BSA) and other sectors (newspapers, magazines ) don't. I have never heard a convincing rationale for this inconsistency.

    Screen & Media Studies, U… • Since Oct 2007 • 2345 posts Report Reply

  • Graeme Edgeler,

    I have never heard a convincing rationale for this inconsistency.

    The standard one is that one uses the public airwaves - a limited resource - and the other does not. Historically, there's only been space for a limited number of broadcasters, who get to use frequencies that mean that no-one can; this just doesn't apply to newspapers. This is certainly the reason why the FCC gets to regulate the heck out of broadcast TV in the States, despite what everyone might assume would be the over-riding status of the First Amendment.

    Wellington, New Zealand • Since Nov 2006 • 3012 posts Report Reply

  • Robyn Gallagher,

    I have a theory that because politicians and people who work in politics tend to be massive political nerds, they tend to only read political blogs and therefore have the idea that most blogs are political.

    While it could be argued that politics informs every aspect of our lives, that fact is that most blogs are not overtly political and do not contain inflammatory content about sensitive issues.

    I've been blogging for over 14 years and have never (knowingly) incurred the wrath of an MP. It's not hard to avoid.

    This all suggests that Simon Power needs to expand the range of blogs in his feed reader.

    Raglan • Since Nov 2006 • 1878 posts Report Reply

  • Joanna,

    This all suggests that Simon Power needs to expand the range of blogs in his feed reader.

    Maybe we should come up with a list of sites he should be reading for him. Obviously The Wellingtonista and Hubris are good starting points...

    Wellington • Since Nov 2006 • 729 posts Report Reply

  • Alastair Thompson,

    Hi,

    A further piece of information which may or may not be relevant relating to the Press Council in particular - and internet standards.

    Some months ago Scoop applied to join the Media Freedom Committee - i.e. we wrote to them and asked if we could join. We did so because the MFC was being consulted with over liquor and OIA reform and we felt it might be useful to be included.

    Anyway the MFC at a meeting considered our request and Tim Murphy wrote back saying (and I paraphrase) that the committee felt that perhaps it wasn't appropriate because unlike their members - Scoop - as a member of the online media wasn't subject to any ethical standards.

    I subsequently discussed this with Tim Pankhurst and the upshot is that we are actively considering volunteering to join the Press Council - provided I think that it doesn't cost us anything. Our preliminary view is that we certainly try to operate by ethical standards and we would greatly prefer Press Council supervision to any from a statutory authority.

    And we are not averse to being subject to formal criticism. Press Council membership as I understand it basically requires willingness to respond to complaints followed by willingness to publish the findings. We don't necessarily have to agree with them.

    Perhaps more significantly the upside of consenting to Press Council jurisdiction is that the complainant agrees at the outset not to pursue any other remedies.

    So in terms of the two options in the ministers release:

    - I think for the reasons explained by Russell the BSA is an inappropriate vehicle for internet media supervision.

    - I think that the internet is inherently unregulate-able in the manner that may be being sought by some (consider the cases of Vince Seimer and Cameron Slater for starters - and then wikileaks as a followup).

    - I think that some kind of online media supervision/defamation avoidance scheme is possibly desirable and the Press Council is possibly the best organisation suited to the task. An organisation to which membership is voluntary also makes some sense given the inherent unenforceability of most things online.

    al

    P.S. So far as Mr Slater is concerned I am increasingly concerned that some elements within the "Mainstream Media", MSM or perhaps "Old School Media" would like to equate his activties with online media as a whole. For reasons which we will understand that is not the case.

    P.P.S. The Press Council is not a limp rag. I expect it is the reason that North & South lost its editor recently - though I am willing to stand corrected. The timing of the departure was most certainly immediately following one of their most damning indictments. So far as most complainants are concerned all media supervision bodies appear limp-wristed. And that is as it should be. That's why we have free speech.

    Wellington • Since Nov 2006 • 182 posts Report Reply

  • Sacha,

    Maybe we should come up with a list of sites he should be reading for him. Obviously The Wellingtonista and Hubris are good starting points...

    Only if you want him to ban drinking next

    Ak • Since May 2008 • 16996 posts Report Reply

  • Donald Matheson,

    I don't think the model of journalism is a good one for regulating blogging (or discussion fora or social networking sites or Twitter posts from cellphones or whatever). Most blogger codes of ethics sound like they're written by people wanting to be journalists, and many of the more interesting and valuable blogs are good precisely because they go beyond journalism's ideas of how to do public knowledge. So that's setting any regulation up for failure or at least enormous conflict.

    It gets really difficult too because most of these media cross over between people's very private talk and more public-oriented stuff. Would be like regulating the content of telephone calls.

    Seems to me the best approach, especially as the actual media that people do this talk in are changing all the time, is to rely on (and fine tune) general legal frameworks on free speech, hate speech, defamation, suppression, and all the rest, which have been catching up with the likes of WhaleOil, CYFSWatch (that Google got there first and took the site down, from memory).

    Christchurch • Since Mar 2007 • 8 posts Report Reply

  • Alastair Thompson,

    Perhaps more important are the right of an accredited reporter to be present in court during a criminal trial even when the public is excluded, and rights relating to the protection of sources in the Evidence Act.

    For clarity the definition of an "accredited" reporter is basically anyone that the registra says is one - the definition prorbably requires them to be nominated by a "recognised" media outlet or something like that.

    Graeme may be able to nail it down a bit more closely than that - i.e. is a judge able to decide whether a particular journalist should be accredited or not. They are most certainly able to find journalists (accredited our otherwise) in contempt and if they desire throw them in jail so far as I know.

    Accreditation is not therefore controlled by anyone in any formal manner.

    Wellington • Since Nov 2006 • 182 posts Report Reply

  • Russell Brown,

    P.P.S. The Press Council is not a limp rag. I expect it is the reason that North & South lost its editor recently - though I am willing to stand corrected. The timing of the departure was most certainly immediately following one of their most damning indictments. So far as most complainants are concerned all media supervision bodies appear limp-wristed. And that is as it should be. That's why we have free speech.

    No, but the PC doesn't have the statutory powers that the BSA does. And it took N&S a long time and some contrivance -- like pretending they weren't going to have an editor at all any more -- to get Robyn Langwell to go.

    Thanks for the comment, Al. That's fascinating.

    Auckland • Since Nov 2006 • 19116 posts Report Reply

  • Bernard Hickey,

    Alastair/Russell

    What are the risks of blogs/sites like ours joining the Press Council?
    Is it simply to avoid the sourges of the BCA and/or the devil we don't known in any new Internet regulator?

    Do we risk allowing the mainstream media to reverse-engineer standards/activities online?

    Do we risk being dependent on the old guys to be part of the 'club'?

    Or is this just the price we all have to pay for the excesses of Cameron and co?

    cheers
    Bernard

    Since May 2008 • 12 posts Report Reply

  • Graeme Edgeler,

    Perhaps more significantly the upside of consenting to Press Council jurisdiction is that the complainant agrees at the outset not to pursue any other remedies.

    I thought they got rid of that. Particularly after the 2007 review by Ian Barker and Lew Evans noted:

    The Press Council often requires complainants to sign a waiver against bringing legal proceedings against the publication before a complaint will be considered. In New Zealand, complainants are asked to sign the waiver only if there is a possibility of legal action. Some 59% do not sign. We note that the APC has a similar requirement. We were told by the APC that nobody had ever tried to institute proceedings after having signed such a waiver. We heard impressive legal opinion to the effect that such a waiver would be likely to be held useless because it violates public policy.

    It's not listed in their process for complaining, noting the contrast with the process on the site of the Australian Press Council (which is similar in many respects).

    If I recall correctly, the National Business Review does not make itself subject to the Press Council.

    The Press Council disagrees, while noting The NBR * Accepts jurisdiction but does not contribute financially.

    Graeme may be able to nail it down a bit more closely than that - i.e. is a judge able to decide whether a particular journalist should be accredited or not.

    It is very much my understanding that it is informal - if you have a business card they'll probably let you (I believe Salient reporters have court reported on occasion) - but I note that DPF has been accredited on a number of occasions - including to the extent of live blogging, etc.

    Wellington, New Zealand • Since Nov 2006 • 3012 posts Report Reply

  • ScottY,

    I've been blogging for over 14 years and have never (knowingly) incurred the wrath of an MP.

    You can't be doing it right! :)

    This review is pretty much standard stuff from Simon Power. He's reacting to a couple of cases - in this case probably the Slater case.

    When the Waihopai trio were acquitted he rushed about demanding reports and law changes to prevent a further spate of vandal priests damaging intrastructure.

    And after the Weatherson case he rushed through changes to the law on provocation.

    Power seems like a man in a hurry. Never a good thing in a politician in my book.

    Yorke of The Atatu • Since Feb 2009 • 791 posts Report Reply

  • Ewan Morris,

    Graeme:

    It's not listed in their process for complaining

    Yes it is:

    12.In those cases where the circumstances suggest that the complainant may have a legally actionable issue, the complainant will be required to provide a written undertaking that s/he will not take or continue proceedings against the publication or journalist concerned.

    Since Nov 2006 • 31 posts Report Reply

  • Graeme Edgeler,

    Graeme ... Yes it is.

    Yes it is.

    Wellington, New Zealand • Since Nov 2006 • 3012 posts Report Reply

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