MEDIA FREEDOM COMMITTEE RESPONSE TO NZLC PAPER, News Media meets “New Media” 1. Introduction 1.1 The Media Freedom Committee (MFC) is the only organisation in New Zealand that represents the mainstream media on media freedom and other media-related matters. 1.2 Its membership includes the editors of the country’s daily and weekend papers, the major broadcasters, weekly magazines, and their websites, as well as their industry organisations, including the Newspaper Publishers Association and ThinkTV, the industry organisation for TV in New Zealand. 1.3. A list of the MFC membership is attached as Appendix I. 2 2. Background: 2.1 The MFC appreciates the opportunity to comment on the Law Commission’s issues paper, The News Media Meets New Media. If the Government accepts the Commission’s subsequent recommendations, they will have major implications for the MFC membership. 2.2 The Committee applauds the Commission’s recognition of the importance of a free and independent media to a democracy. 2.3 The Committee acknowledges that traditional media boundaries and definitions no longer apply. 2.4 We, as editors, agreed with former justice minister Simon Power, therefore, that it was timely to review the current landscape and consider the challenges that face us all. 2.5 Some MFC members regard it as unfortunate, however, that the release of the Commission report has coincided with inquiries into the behaviour of the media in Britain and in Australia. 2.6 Though New Zealand has its share of journalistic miscreants, they are easily identifiable and few in number, chiefly because the highly competitive, partisan nature of the press in both countries is nothing like as febrile here. 2.7 An executive summary of this submission follows on pages 3-4. 2.8 It is followed by answers to the questions the MFC feels are most relevant to its members. They are on pages 5-6. 3 3. Executive Summary 3.1 The MFC is gratified by the many references in the Issues Paper to the importance of a free and independent media in a democracy such as New Zealand’s. 3.2 The Committee cannot but agree. 3.3 At the same time, it is worth asking what problem the Law Commission is trying to fix, bearing in mind that Britain’s feverishly competitive media environment – and its consequences – as well as the highly partisan nature of the Australian press are not replicated here. 3.4 However, given those events abroad and the ubiquity of the blogosphere and social media – notably, Facebook and Twitter – editors accept that a review of the existing regulatory framework is timely. 3.5 Print editors believe that the New Zealand Press Council works well and might be improved by some tweaking along the lines of that recommended by the Barker/Evans review. 3.6 The majority view on the MFC is that the time has probably come for the mainstream media to answer to a single regulator, its operations based broadly on the self-regulatory framework forged by both the NZPC and the Advertising Standards Authority. Editors believe it is no longer necessary – if it ever was – for the complaints processes for print and broadcast media, along with their websites, to be different. 3.7 Editors agree that the public needs a simple and cheap complaints mechanism when they believe that they, or an issue in which they are involved, have been treated badly by members of the mainstream media. The Press Council provides just such a mechanism. 3.8 If a single regulator were to be established, editors believe membership should be voluntary; that bloggers who wish to be covered – thus giving greater credibility to their “brand” – should contribute to the cost of its operations (ie, have some skin in the game); that its membership should be chosen by a panel that includes the Chief Ombudsman; and that any new regulator be kept at arm’s length from media owners and politicians. 3.9 The MFC consensus is that state regulation is both unnecessary and unwelcome. 3.10 It endorses a comment by The Economist in a February 4-10, 2010, editorial: “The government should not directly regulate the press – that would be an invasion of free speech. Nor should it set up a statutory body [that] all journalists would be forced to join. Journalism cannot be regulated as medicine and law can: anybody must be free to report, comment and criticise”. 4 3.11 In other words, the MFC believes the Law Commission and/or the Government should not be be swayed by the recommendation of the Finkelstein Inquiry in Australia that a state body be created, to be funded by taxpayers, to regulate the news media in that country. 3.12 If the New Zealand Government were to opt for a legislated regulatory framework – something most members of the mainstream media here would oppose – it would need to be “MP-proofed” so that politicians could not influence its operations, its funding, or its membership 3.13 Any such legislation should do no more than stipulate in law that a media council be set up, with a majority of lay, not industry, members, and have responsibility for handling complaints from the public. 3.14 Again, if the Government were to opt for such a legislative basis for a new media council, it could support that practically by – in Year 1 only – providing “seeding finance” by diverting the cash that otherwise would have been voted to partially fund the Broadcasting Standards Authority to that new media council. 3.15 Thereafter, media outlets that have volunteer to be part of such a complaints regime would fund its operations themselves by contributing at least what they were paying at the time the legislation was enacted. 5 4. Reply to Relevant Questions Question 2: Currently our 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 privileges? (see chapter 3: the news media’s special legal status) A: The MFC unanimously believes that it is in the public interest to treat the mainstream media as a special class of publisher with special legal privileges. At the same time, editors also accept that such privileges and exemptions must be used responsibly. Question 3: Few of the Acts which give the news media special legal status actually define what is meant by “news media”. Do you agree with the following definition we (the Law Commission) have proposed? (chapter 4, paragraph 4.102) • a significant proportion of their publishing activities must involve the generation and/or aggregation of news, information and opinion of current value, for the: • purpose of dissemination to a public audience; • publication must be regular; • the publisher must be accountable to a code of ethics and a complaints process. A: We wholly agree with this definition. It is important, MFC members believe, that there be a clear distinction between the generators of news, information and comment, and the aggregation of news, information and comment. News generators exercise editorial control over the information they gather and publish. News aggregators do not. Question 5: If you think it is in the public interest for the news media to continue to be subject to some form of external accountability, what is the most appropriate form of regulation? (chapter 6). • Is there still a case for treating broadcasters differently from other publishers, continuing to make all broadcasters subject to government-imposed regulation, as is the case at present? • If you think that media convergence means there is no longer a strong case for treating newspaper publishers and broadcasters differently, then what is the most appropriate form of regulation for the news media? - State regulation, with standards and sanctions set out in legislation? - Some form of independent regulation such as we propose, where neither the government nor the news industry controls the regulator? - If you support the independent model we propose, should membership be entirely voluntary or compulsory for some publishers? A: As outlined earlier, print-based news outlets favour the Press Council model. It is cheap, relatively quick and keeps government agencies at bay – unless, of course, they are the complainant. Some members of the broadcast membership are more comfortable with a statutory regime. 6 The majority view is, however, that all members of the mainstream media should be treated equally by way of a single media council, based on the self-regulatory model of the Press Council and the Advertising Standards Authority. Question 8: Should all news media be accountable to the same standards irrespective of the medium in which they publish? Or is there a distinction to be made between content which is broadcast to mass audiences simultaneously and content which is accessed by individuals on demand? (chapter 6 at 6.92) A: All news media should be accountable to the same standards – notably, accuracy and fairness. Question 9: Is there a case for extending the news media’s legal privileges to non- traditional publishers, such as bloggers, who wish to undertake news reporting and commentary on public affairs? (chapter 4 at 4.80) A: The MFC membership would oppose any move to weaken the mainstream media’s legitimacy. If members of the blogosphere wish to have extended to them the legal privileges and exemptions, the MFC believes that they must join – and pay to join – any new media council and accept the standards of reporting, especially accuracy and fairness, that the mainstream media accepts. Question 10: If so, is it reasonable to expect those non-traditional publishers wishing to access these legal privileges reserved for the news media to also be accountable to standards and an external body? (chapter 4) A: Absolutely.