I must start by shooing the elephants back to the waiting room: There is nothing in last week’s Media Reform discussion paper that will help to sustain New Zealand journalism, nor battle the scourge of transnational social media and search platforms.
I am not dismissing the pachyderms. Far from it, the survival – let alone its sustainability – of principled journalism in this country will confront politicians (and the communities they represent) much sooner than they realise. The looming crisis must be addressed. So, too, must the impact of the Facebooks and Googles of this world.
The Fair Digital News Bargaining Bill (a flawed attempt to extract some money from the platforms for news media) gets only a passing mention in the discussion paper and is clearly not intended to be part of its feedback loop. In any case, it is on hold and faces the wrath of the empowered tech oligarchs of the Trump Administration if resurrected.
So, for the moment, I will direct my attention to the content of the discussion paper released by Media and Communications Minister Paul Goldsmith last Wednesday. It was an invitation for the public to have their say on a range of proposals affecting the wider media sector. You can access the discussion paper here .
Some of the proposals impact on news media, even if none of them actually addresses the core problems facing that portion of the sector. Each of the proposals in the paper is described as “high level” and the Coalition Government has yet to decide whether to implement any of them.
The discussion paper is devoted primarily to audio-video production and distribution. In many respects, it is a sensible response to increasingly anachronistic structures and regulation that were a product of the age of broadcasting.
There are five proposals in the paper.
The first is a ‘must-carry’ requirement that all smart TV sets must have New Zealand TV services pre-installed and displayed on home screens. This would include streaming services such as TVNZ+, ThreeNow, the Freeview app, and Māori+. The proposal mirrors similar laws already enacted by Australia, the United Kingdom, and the European Union. It is, of course, a no-brainer.
The second proposal is music to ears of the New Zealand screen production industry. It would require global streaming platforms to invest a portion of annual NZ revenue in the creation or purchase of local content…and to promote it on screen. For years, SPADA has been lobbying for this sort of regulation. It is no surprise that its president, Irene Gardiner, has welcomed the move.
The discussion paper appears to dismiss the option of a levy on platforms to support local production – something SPADA has favoured – because “the content supported by a levy may not appear on streaming platforms”. This recognises either that platforms would agree only if they were beneficiaries, or that the word ‘levy’ would have President Donald Trump screaming “tariffs”. There are also implications for the paper’s fifth proposal, which I will address shortly. Nonetheless, the ability of New Zealanders to see more of themselves onscreen is to be applauded.
I must concede that my reason for also calling the third proposal a no-brainer is suffused with self-interest. As my hearing deteriorates, I am finding it harder to hear what is being said on our television. The proposal would require implementing progressive levels of captioning and audio description (CAD) to increase the level of programming with aids for the hearing and sight impaired. It can’t come soon enough for me. Personally, I would also like to see a requirement for easy, remote-key access to CAD. The facility on the new Sky Box – like so much else on it – is a dog. It is an exercise in frustration.
All of the plans in the discussion paper to this point meet with my general approval, so indulge me as I also bring forward the fifth proposal which involves “streamlining Crown content funders”. That means merging NZ on Air and the Film Commission and, in principle, I am in favour.
As the paper correctly points out, technology has blurred to the point of absurdity the distinction between broadcast and film production. Content we once saw on an antenna-connected tv channel is now streamed, I seldom need to go to the cinema, and radio broadcasts have morphed into podcasts. Everything is on my laptop and cellphone.
However, I have several concerns.
The first is that this proposal merges not only structures but cultures – the Film Commission’s is openly economic while NZ on Air’s is cultural – and there is a danger that one will dominate. That must not be allowed to happen. Any combined organisation must have the structure and power base to ensure that the equitable distribution of funds under each existing organisations continues under any new regime. No-one should lose out through a merger. That could be achieved in part by clearly setting out obligations in legislation.
My second concern is that the local production funding requirements on streaming platforms may lead to joint-funding – platform plus Crown – that skews programming in directions that owe more to the wishes of transnationals than public good and culturally significant outcomes for New Zealanders. There would need to be clearly stated obligations to meet social and cultural objectives.
It is my third concern that causes me the greatest worry. The funding of journalism – and of public service media which I assume are included in the amorphous ‘platform funding’ referred to in the paper – is mentioned but has no priority. It would be disastrous if a merger saw journalism support and the funding of RNZ, Whakaata Māori etc pass out of the centralised oversight of NZ on Air and into the hands of “other entities or Ministries” without its institutional knowledge and imperatives. Could we see, for example, dispensing of journalism funds subject to ministerial sign-off?
I can only hope that submissions on the discussion paper and the subsequent deliberations give significantly more weight to this aspect of the merger proposal than currently appears to be the case. Journalism needs more support, not relegation. Our public service media need both certainty of funding and the independence to spend it in the public interest.
Let me return to the fourth proposal, the title of which had me brimming with anticipation: Modernising professional media regulation. My expectation was short-lived.
What is proposed would add another layer to media regulation, rather than consolidate and modernise existing systems. Nor, unlike the proposed funding merger, would it bring film into the fold.
And it would issue a hospital pass to the most egregious offenders against civil society – social media. The regulator would exercise control over “professional media”, but specifically excludes from that definition “online platforms that primarily host user-generated content or provide access to others’ content, such as social media (like Facebook and TicTok) and search engines (like Google)”.
In stark contrast, the proposal would revise the role of the Broadcasting Standards Authority and vastly increase its reach by giving it review powers over newspapers, magazines and online text-based media. That means it would have oversight of the currently autonomous New Zealand Media Council and overturn the hard-fought concept of a press unfettered by government controls. As an astronaut once succinctly put it: Houston, we have a problem.
Under the proposal, the public would continue to first make complaints to the media organisation concerned and, if dissatisfied with the response, could then complain to “industry self-regulatory bodies (such as the Media Council…)”. The new regulator would be empowered to review those decisions – either at the behest of dissatisfied complainants or of its own volition.
The discussion paper is silent on where complaints about broadcasters would be referred. As the new regulator would be responsible for reviewing and considering appeals on decisions by the likes of the Media Council, it can hardly continue the BSA’s current role. It would effectively be reviewing its own decisions.
The BSA is not an “industry self-regulatory bodies”. It is a statutory authority that imposes compulsory regulation on broadcasters. They do not have the equivalent of an industry body like the publishers’ Media Council, although some broadcasters are already council members in order to cover off their online activity. They defer to the BSA to resolve public complaints about their broadcasts that they can’t satisfy in-house. Would all broadcasters be expected to become members of the Media Council to allow complainants the level of redress currently provided by the BSA? If so, it would be a new ball game. The council’s resources would require major expansion to handle tv and radio complaints.
Of even greater significance, the proposal would overturn a concept that has governed the Media Council since its inception. It has always required complainants to sign a waiver to ensure the Media Council is “the only form of formal action to be taken…”. In other words, complainants waive their right to appeal council decisions to another authority. This proposal would give complainants not only a right of appeal decisions to the new regulator but also beyond it to the High Court. That, to put it mildly, will not sit well with publishers.
What has also been left out of consideration is the make-up of any new regulatory body. Given that it would have increased power and effective reach over all of the nation’s news media, one might have thought it would have devoted some space to statutory independence and the make-up of any adjudicating body to insulate it from political influence.
The need for a complete rethink of media regulation in New Zealand has been self-evident for years. To say it is overdue is an understatement: The Law Commission issued an authoritative report on the matter more than a decade ago.
The discussion paper offers sensible solutions to some things. However, it should send its proposals on regulation to sit in the waiting room with the elephants. Those proposals are a long way short of what is needed to create a regulatory system that comprehensively meets our needs in a digital environment which has (to quote Sir Peter Gluckman when he was the Prime Minister’s Chief Scientist) “brought about the most profound change in how humans communicate since our species first acquired speech.”