Who are the NZ news media and how should they be regulated?

By the New Zealand Law Commission

OPINION: Who are the news media and how should they be regulated? This rather ambitious question encapsulates the first two limbs of the terms of reference given to us by the former Minister of Justice, Simon Power, in October 2010, when he asked the Law Commission to review the gaps which were emerging in the regulatory system for news media in New Zealand.

At first glance it is clear a couple of important, and arguable, assumptions underpin this question, and indeed our terms of reference.

The first is the assumption that the “news media” comprise a class of publisher (we use this term in its broadest sense to encompass all channels and formats of communication) still capable of being distinguished in a meaningful way from others exercising their speech rights. Secondly, the question assumes this type of publisher requires some type of special regulatory control.

Both of these assumptions are of course open to debate in the era of the read/write web, where anyone can break news and comment on public affairs. In chapter 2 of our Issues Paper we describe this rich new media landscape and the growing interdependence between new and mainstream media.

So why attempt to perpetuate this old-world distinction between “news media” and other publishers? And why make them accountable to anything other than the minimum legal constraints which apply to all citizens exercising their free speech rights?

In chapter 4 of our Issues Paper we attempt to answer these questions by posing another, more fundamental, question: what is the function of the news media? What is it that distinguishes the news media from other types of publishers?

Divergent literature
These questions are the subject of a very large and divergent academic literature which we cannot traverse here. But it may be worth re-stating the orthodox view that suggests the key functions of the “Press” in a liberal democracy are to:

* act as an independent watchdog on government and other seats of power;

* represent the public (for example in Parliament and the courts );

* disseminate information to the public;

* provide a forum for debate and the formation and expression of public opinion.

Democratic societies all over the world have acknowledged the importance of these functions by affording the news media special legal and non-legal privileges ( we summarise these in chapter 3 of our Issues Paper) to ensure they have adequate protections and have access to the places, people, and information necessary to do their job.

However it has largely been left to the free market to deliver this “public good” and as British academic James Curran argues, public interest journalism comprises only a small – and diminishing – fraction of the content produced by modern media companies. As Curran and others point out, in the West the call for “press freedom” may sometimes be interpreted more as a call for a freedom to maximise profits rather than to hold governments to account.

Role of social media
At the same time, many would now argue that citizens are no longer dependent on this corporatised news media to fulfil the democratic functions assigned to the traditional “Press”. Instead the networked society provides everyone with the tools to report the news, to participate in debates, and to collectively arrive at an accurate account of matters of public interest and importance. The advent of WikiLeaks and the role of social media in the Arab Spring provide two examples of this democratised process for the dissemination of news and information.

So why hold onto the concept of the news media? And why continue to afford them special status and hold them accountable to higher standards than other publishers?

We argue that rather than holding onto the concept of the news media as a privileged entity, we need to hold onto the activity, or underlying purpose, of the news media – an activity we argue must continue to attract certain legal privileges and accountabilites, irrespective of who carries it out or in what medium.

In chapter 4 we explain why we have reached this view. In particular we set out some of the defining characteristics of the news media, which, in theory, if not always in practice, distinguish journalism from other forms of publishing, such as polemic or propaganda.

Foremost among these have been:

    a commitment to accuracy;
    a commitment to distinguishing between facts and opinions;
    a commitment to serving the needs of readers over that of parties with an interest in disseminating particular information or points of view;
    a commitment to fairness and transparency in how news and information is gathered and presented.

Codes of ethics
Although inevitably subjective and notoriously difficult to achieve and measure, these principles are reflected with remarkable consistency in the codes of ethics of journalists around the globe.

Trustworthiness, as American newsmen Kovach and Rosenstiel note, is the cornerstone of news reporting: ”The desire that information be truthful is elemental. Since news is the material that people use to learn and think about the world beyond themselves, the most important quality is that it be useful and reliable.”

We argue that the need for authenticated and credible sources of news and information is as important today, in the age of ubiquitous publishing, as at any time previous.

But we are not suggesting that the old providers and methods of gathering and disseminating news should take precedence over the new. Instead we argue that whoever fulfils the democratic function of the “Press” should have access to the statutory and non-statutory privileges that have in the past been reserved for traditional news media.

More controversially perhaps, we argue that those who engage in this type of publishing must exercise their powers responsibly, and be accountable to the public on whose trust they rely.

We are very interested in people’s views on these issues and to the specific questions raised in our Issues paper, including:

Do you agree with our position regarding the on-going importance to society of a free and critical “Press”, committed to providing credible and disinterested accounts of the important news and issues of the day?

Do you think the qualities which have traditionally been seen to distinguish journalism from other forms of communication remain relevant in the digital era when anyone can receive and impart information from a multiplicity of sources?

For the reasons outlined above, the law gives the “news media” special privileges and exemptions in recognition of the important role it plays in a democracy. Is it still in the public interest to treat the news media as a special class of publisher, afforded special legal (and functional) privileges?

1. Rights and Responsibilities: If we accept that for the moment at least there is still a role for the news media, the question then arises as to whether this class of publisher should continue to have special legal recognition – and he held accountable to the public.

If so, is there a public interest in extending this system of rights and responsibilities to new publishers who wish to position themselves as credible sources of news and information. Does our proposed statutory definition of news media work?

2. What type of regulator: if we accept the need for some form of accountability for the news media, what form should it take? Voluntary or compulsory and are the incentives sufficient?

Joint the debate on Public Address

This work is licensed under a Creative Commons Attribution-NonCommercial 3.0 New Zealand Licence.