A decade ago this month, the Law Commission produced a fit-for-purpose blueprint for regulation of New Zealand news media by a single body. The News Media Standards Authority did not happen and today we are no closer to changing oversight that is well past its use-by date.
The commission’s recommendations were set out in a report titled The News Media Meets ‘New Media’: Rights, responsibilities, and regulation in the digital age, produced by a team led by eminent media law expert Professor John Burrows.
The foreword to the report stated it was about how the law should respond to a challenge that had been articulated by then Chief Government Scientist, Sir Peter Gluckman. In an address on the impact of technology on adolescents, Sir Peter had expressed the view that the internet and digital technology have brought about the most profound change in how humans communicate since our species first acquired speech.
One might have thought that his perspective, and the report’s call for fundamental changes to media regulation, would have been an urgent wake-up call.
Far from it: The National-led government sat on the report for six months before throwing it out.
In the meantime, broadcasters had taken defensive action and set up the Online Media Standards Authority (OMSA) to sweep up the digital parts of their operation not covered by the Broadcasting Standards Authority (limited to over-the-air content).
In rejecting the unitary authority, then Justice Minister Judith Collins said that, unlike Leveson Inquiry in the United Kingdom and the Finkelstein Inquiry in Australia, the Law Commission’s report “was not driven by a crisis of confidence in the mainstream media” and the establishment of OMSA meant there was “no pressing need for statutory or institutional change.
So, New Zealand’s approach to media convergence – with all mainstream media producing text, audio, and video – was not to replace separate print and broadcasting complaints bodies with a single regulator but, instead, to add a third.
Within five years OMSA was absorbed into newspaper industry’s standards overseer, the Press Council. It changed its name to the New Zealand Media Council to recognise the fact that its jurisdiction included broadcasters’ online content. We were back to two bodies but with no resolution to the bifurcated approach of having to decide whether to complain to the BSA or the Media Council over the same content disseminated by different means.
And successive governments have continued to enquire and review.
Two years after the law Commission report, the Ministry for Culture and Heritage launched a new review with a discussion paper titled Content Regulation in a Converged World (which drew 50 submissions) and combined with the Ministry of Business, Innovation and Employment to produce an ancillary paper Explaining Digital Convergence.
That initiative does not appear to have resulted in any structural change. Nor, to date, has the protracted Department of Internal Affairs’ Content Regulatory Review which, since 2021, has been investigating control of harmful content across the media spectrum.
And I can only guess at the regulatory implications of the policy review of the Māori media sector that was adopted by a Cabinet committee last August. That review included both promotion of Māori language and protection of Māori content that contains mātauranga Māori (Māori knowledge).
It is time to stop the enquiring and actually do something. The fastest – and, to my mind, the best – way to achieve that would be to dust off the Law Commission report, audit and update it to ensure its recommendations can cope with developments in the intervening years, then use it as the starting point for a new regulatory body.
Ten years is a long time in digital terms but the Law Commission recommendations have the virtue of a structure that is based on core principles. With the benefit of John Burrows’ wise counsel, they achieved two things: First they created a single structure that met the challenges of an environment in which legacy media and digital platforms co-existed and, secondly, they provided an innovative solution to fears of state regulation.
Within the 386-page report there were 34 recommendations that comprehensively set out how the News Media Standards Authority should be structured and operated.
- It would enforce standards across all publishers of news.
- Membership would be voluntary and based on regular production and public dissemination of news and current affairs.
- NMSA would be recognised in law through amendments to legislation such as the Privacy Act and the Human Rights Act, and its members would have recognised legal status.
- State funding of news and current affairs content should be limited to NMSA members.
- It would be “genuinely independent” of both government and the news media industry, with a chair (likely a retired judge) appointed by the Chief Ombudsman and a majority of members having no media connections.
- It should function as an incorporated society, and its governance must not be dominated by media representatives.
- A code of practice should be formulated in consultation with the public, as well as industry, and should include medium specific sub-codes.
- Complaints panels, with a majority of public members, should be appointed for fixed terms and should include at least one member with media or digital expertise.
- It would have the power to:
- Direct the prominence and positioning of adverse decisions on complaints.
- Require take-down of digital material.
- Require corrections and apologies.
- Censure and suspend members.
- An appeals body would be established.
- Establish a mediation service as an alternative to court action.
- It would monitor media trends and survey public opinion.
Where the Law Commission Report came up short was in limiting its scope to news and current affairs. It did recommend a review of the regulation of entertainment content but, in the meantime, saw the Broadcasting Standards Authority maintaining that role along with continuing to be responsible for standards of good taste and decency in broadcast news. Personally, I see no reasons why all media content could not be rolled into the new body.
There is a danger in conflating regulatory functions into a single body – the aggregation of power. Britain’s Ofcom represents the ultimate this sort of consolidated control. It is responsible for broadband and phone regulation, radio and television complaints, regulation of the postal service, and management of radio spectrum used by everything from broadcasting to doorbells.
Nothing in the Law Commission report suggests that breadth of control, but there is a good argument for consolidated oversight of content now that dissemination is multi-platformed. That can be achieved without creating a regulatory monster.
Communications require different forms of regulation for different purposes and there is no need to create a catch-all agency like Ofcom. Likewise, content in all forms of media is multi-faceted and the harms and grounds for redress vary by type and degree. Some matters should be the province of industry regulation while some serious infractions are quite properly the province of the state through law enforcement and the courts. Surely, by now, we have a reasonably good idea of where the various boundaries lie.
The objectives of the Law Commission’s reforms were to recognise and protect the special status of the news media. In return, they would ensure that recognised news media were held accountable for exercising their power ethically and responsibly. They would also provide citizens with an effective and meaningful means of redress when those standards are breached, and signal to the public which publishers they could rely on as sources of news and information.
These are fundamental objectives. Yet a decade on from the commission’s investigation we are materially no further ahead. Frankly, we’ve had enough talk and it is time to shut up and do something.
For time-poor creatives
The Advertising Standards Authority has produced two quick-fire guides to keep the creators of advertisements within the guidelines, if not on the straight-and-narrow.
The infographic and short video guides are also a useful check for media executives who keep an eye on the pay-your-wages side of things. You can see them here.