«A Critical Analysis of the New Zealand Law Commission's Proposed News Media Regulator James Daniel Tait-Jamieson A dissertation submitted in partial ...»
REGULATING FOR DEMOCRACY
A Critical Analysis of the New Zealand Law Commission's
Proposed News Media Regulator
James Daniel Tait-Jamieson
A dissertation submitted in partial fulfilment of the degree of Bachelor of Laws
(Honours) at the University of Otago – Te Whare Wānanga o Otāgo
11 October 2013
To my supervisor, Professor Andrew Geddis, thank you for your help and patience throughout the year.
To my parents, thank you for your love and support, and for your proofreading skills.
TABLE OF CONTENTS
The traditional news media must now compete in a fractured and saturated online world where consumers expect content to be plentiful, instantaneous and free. These changes raise a difficult challenge for news media regulation: how to respond to the digital revolution, with its emphasis on openness, transparency and freedom, while protecting the core democratic functions of the news media.
In October 2010, Simon Power, the Minister of Justice, asked the New Zealand Law
Commission to look at the law's response to one aspect of the digital revolution:
technological convergence.2 Applied to the news media, convergence describes the way the digital world allows previously separate technological systems such as text, audio and video to come together online.3 Convergence challenges the traditional regulatory distinctions between print and broadcast media.
The Law Commission had to deal with a confusing three-limbed regulatory system comprised of two self-regulatory bodies, the New Zealand Press Council ("Press Council") and the Online Media Standards Authority ("OMSA"), and the statutebased Broadcasting Standards Authority ("BSA"). The Press Council was set up the
See Penny O'Donnell, David McKnight and Jonathan Este Journalism at the Speed of Bytes:
Australian Newspapers in the 21st Century (The Walkley Foundation, 2012) www.thefutureofjournalism.org.au; and Andrew Currah What's Happening to Our News?
(University of Oxford, Reuters Institute for the Study of Journalism, 2009).
Simon Power "Law Commission to review regulatory gaps around 'new media'" (press release, 14 October 2010) http://beehive.govt.nz/release/law-commission-review-regulatory-gapsaround-039new-media039. The terms of reference were narrowly framed: "How to define "news media" for the purposes of the law" and "Whether and to what extent the jurisdiction of the Broadcasting Standards Authority and/or the Press Council should be extended to cover currently unregulated news media, and if so what legislative changes would be required to achieve this." Simon Power also asked the Law Commission to consider the law's response to harmful digital communications.
Henry Jenkins in Convergence Culture: Where Old and New Media Collide (NYU Press, New York, 2008) at 2 describes convergence broadly as "the flow of content across multiple media platforms, the cooperation between multiple media industries, and the migratory behavior of media audiences who will go almost anywhere in search of the kinds of entertainment experiences they want." This dissertation is concerned with the technological aspect of convergence. For an example, see Fairfax New Zealand Ltd's combined news and information website, Stuff www.stuff.co.nz. Stuff contains text, images and video, as well as links to the wider online world.
Newspaper Publishers' Association in 1972 to provide an independent system to resolve disputes concerning print media.4 Its jurisdiction has recently been expanded to cover members' websites.5 The BSA is a government regulator set up by the Broadcasting Act 1989 with jurisdiction over all broadcast content in New Zealand.6 In response to the Law Commission's review, the broadcasting industry recently set up the OMSA. The OMSA is a self-regulatory body that covers news and current affairs content published online by its members, the seven major New Zealand broadcasters.7 The regulatory landscape has become a complicated mix of bodies with different agendas, and gaps and overlaps in membership.
The Law Commission recommended the creation of a new regulator, the News Media Standards Authority ("NMSA"), to replace the Press Council, the OMSA, and the news and current affairs jurisdiction of the BSA.8 The NMSA would be essentially self-regulatory, but would be recognised in statute for the purpose of conferring the current statutory rights and privileges of the news media on its members.
Membership would be voluntary and open to all news media organisations regardless of technology. The NMSA would become a "one stop shop" for all news and current affairs complaints in New Zealand.9 However, in September of this year, the Government decided not to take up the Law Commission's recommendations. Simon Power's replacement, the Hon Judith Collins MP, said there was "no crisis of confidence in the mainstream media" and "no pressing need for statutory or institutional change."10 The Law Commission's proposal would be kept in mind as an option for the future.
See generally Ian Barker and Lewis Evans Review of the New Zealand Press Council (2007) at 21–48 [Press Council Review]; and Jim Tully and Nadia Elsaka "Ethical Codes and Credibility:
The Challenge to Industry" in Judy McGregor and Margie Comrie (eds) What's News?
(Dunmore Press, Palmerston North, 2005) at 143–145.
Steven Price Media Minefield: a Journalist's Guide to Media Regulation in New Zealand (New Zealand Journalists Training Organisation, Wellington, 2007) at 149–153.
Broadcasting Act 1989, ss 20 and 21. See chapter II B for a discussion of the jurisdiction of the BSA. Also see Price, above n 5, at 3–6; and Hugh Rennie "Broadcasting Following Deregulation" in Margie Comrie and Judy McGregor (eds) Whose News? (Dunmore Press, Palmerston North, 1992).
OMSA Constitution (2013) hwww.omsa.co.nz/wp-content/uploads/OMSA-Constitution-Junepdf, sch 2 r 1(a) and sch 5.
Law Commission The News Media Meets 'New Media' (NZLC R128, 2013).
Ibid, at [5.30].
Judith Collins and Craig Foss "Government responds to news media report" (press release, 12 September 2013) http://www.beehive.govt.nz/release/government-responds-news-mediareport.
The challenges of convergence are not going away. If an updated regulatory system is not needed now, it will be in the future. The old technology-specific approach is archaic, confusing, and fails to take advantage of the opportunities of digital technology. The Law Commission's proposals offer a possible way forward. This dissertation will evaluate these proposals against the democratic importance of the news media.11 Firstly, I examine the news media's democratic role in society and the consequences these have for regulation. I argue that there are three crucial aspects to a democratic news media regulator: independence, diversity and public accountability. The following chapters use these three aspects as a structure from which to critique the Law Commission's proposals. Two recent independent inquiries in the United Kingdom and Australia provide a useful comparison: the Leveson Inquiry into the Culture, Practices and Ethics of the Press ("Leveson Inquiry") and the Independent Inquiry into the Media and Media Regulation ("Finkelstein Inquiry").12 These latter two inquiries were not triggered by convergence, but by ethical concerns. Nevertheless, they had to contend with the wider issue facing the Law Commission: how to protect the democratic importance of the news media in the digital age.
The Law Commission, in its Issues Paper, recognises the democratic implications of the review: The News Media Meets 'New Media' (NZLC IP27, 2011) at .
The Rt Hon Lord Justice Leveson An Inquiry into the Culture, Practices and Ethics of the Press (The Stationery Office, London, 2012) [Leveson Inquiry]; the Hon R Finkelstein QC Report of the Independent Inquiry into the Media and Media Regulation (Report to the Minister for Broadband, Communications and the Digital Economy, Canberra, 2012) [Finkelstein Inquiry].
In 2011, the Australian Government set up a Convergence Review Committee to look into the wider effects of convergence on media content and communications services. The Final Report includes a section on news and commentary which takes into account the recommendations of the Finkelstein Inquiry: Australian Government Convergence Review (Final Report to the Minister for Broadband, Communications and the Digital Economy, Sydney, 2012) [Convergence Review]. The Convergence Review explains the differences between its approach and that of the Finkelstein Inquiry at 155–156. This dissertation will focus on the independent news-specific Finkelstein Inquiry.
II Regulating for Democracy
It is widely recognised that the news media perform a crucial function in democracy.14 How we understand that function will determine the law's regulatory response. The task is not as simple as it sounds. The work of modern political science has demonstrated that our traditional understanding is limited and fails to reflect the full role of the news media in society. In this chapter, I use both the traditional arguments and the modern re-evaluation to put together a more accurate conception of the news media's democratic role. In the second half, I turn to the role of regulation and ask how it can protect and enhance that role.
A The Democratic Importance of the News Media 1 The traditional argument The traditional liberal-democratic approach views the media as an extension of the right of freedom of expression.15 Freedom of expression can be justified in various ways. The justification that attaches a special democratic importance to the news media is the argument from democracy, a subset of the argument from truth.16 The Thomas Jefferson "Letter to Colonel Edward Carrington" (16 January 1787) in Thomas Lipscomb and Andrew Bergh (eds) The Writings of Thomas Jefferson (Thomas Jefferson Memorial Association, Washington DC, 1903).
See generally James Curran Media and Power (Routledge, London, 2002); Geoff Kemp "Chapter 1: Media, Politics and Democracy" in Babak Bahador et al (eds) Politics and the Media (Pearson, Auckland, 2013); Brian McNair Journalism and Democracy (Routledge, New York, 2000); and Mark Wheeler Politics and the Mass Media (Blackwell Publishers, Oxford, 1997).
Recognised in New Zealand Bill of Rights Act 1990, s 14 and the International Covenant on Civil and Political Rights (opened for signature 16 December 1966, entered into force 23 March 1976), art 19.2.
Thomas Gibbons Regulating the Media (Sweet and Maxwell, London, 1991) at 15. For a guide to the philosophical justifications for freedom of expression, see Frederick Schauer Free Speech: a philosophical enquiry (Cambridge University Press, Cambridge, 1982). The argument from truth, generally attributed to John Stuart Mill and John Milton, assumes that truth is most likely to emerge from a competition of views.17 The only way to test that an idea is true is to hold it up against conflicting ideas. The argument reached its most eloquent judicial form in the famous dissent of Justice Oliver Wendell Holmes in Abrams v United States:18 But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good is better reached by free trade in ideas – that the best test of truth is the power of thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.
In a democracy, the people are the ultimate deciders of political truth. To make good decisions, they must have all available information and ideas before them. Alexander Meiklejohn applies the argument to the town meetings in the early days of European settlement in New England. The whole town would gather together in one hall to debate the rules that would govern them as a society:19 The final aim of the meeting is the voting of wise decisions. The voters, therefore, must be made as wise as possible. The welfare of the community requires that those who decide issues shall understand them. They must know what they are voting about.
The argument can also be illustrated with other examples of direct democracy such as the Athenian agora and, closer to home, early Māori tribal decision-making.20 In a direct democracy a news media is not necessary. The citizenry is small enough to allow everyone to come together to share their views. In a modern representative democracy, this is impossible. A news media is required to spread information and ideas between geographically and socially separated individuals. The British press, in argument from self-autonomy is another important justification for the news media. It focuses on the role that freedom of speech has in enabling personal autonomy, independence and selffulfilment. The argument does not, however, explain the news media's democratic importance.