This post from the Law Commission looks at the Review of Regulatory Gaps and the New Media issues paper. Please feel free to join the discussion
Can the term "news media" be legally defined?
If we accept that, for the moment at least, there continues to be a role for the “news media”, and that there is a public interest in conferring them with special legal privileges matched by countervailing accountabilities, the question then arises, how do we define this group?
Before the advent of the internet there was no practical necessity to provide such a definition: the news media simply comprised the collection of state-funded and private broadcasters and print companies which between them produced the lion’s share of daily news and current affairs coverage in New Zealand.
In the era of the read/write web the news media have of course lost their monopoly on the generation and dissemination of news and comment on public affairs. They now compete with a range of new digital publishers, including news aggregators and public affairs bloggers who are undertaking similar activities and performing many of the democratic functions formerly associated with "the Press".
Given the evolving and symbiotic relationship between traditional and new media in the digital environment, attempting to define where one type of speech begins and another ends is fraught with difficulty. Some may argue it is neither possible nor in the public interest to do so.
However, as discussed in chapter 4 of our Issues Paper we think there are both philosophical and practical reasons for attempting to define the term “news media”.
To begin with, New Zealand's statute book contains multiple references to the "news media" - mostly in the context of providing this class of publisher with specific legal privileges and exemptions (view chapter 3) designed to assist them in carrying out the democratic functions traditionally assigned to "the Press" – such as being the 'eyes and ears' of the public in Parliament and the courts.
These special privileges are typically matched by an expectation of 'responsible' reporting. Sometimes this is seen in an explicit requirement for 'fair and accurate' reporting. Sometimes it is expressed as a requirement of accountability to a code of practice and oversight by a regulatory body.
For example s 198 of the Criminal Procedure Act 2011, which deals with who may stay if a judge makes an order to clear a court, stipulates that for the purposes of this Act a “member of the media means—
(a) a person who is in the court for the purpose of reporting on the proceedings and who is either subject to or employed by an organisation that is subject to—
(i) a code of ethics; and
(ii) the complaints procedure of the Broadcasting Standards Authority or the Press Council; or
(b) any other person reporting on the proceedings with the permission of the court.
However the Criminal Procedure Act is unusual in providing such an explicit definition. As discussed in chapter 3 of our Issues Paper many statutes provide no definition of who or what is meant by the term “news media'’.
In chapter 4 of our Issues Paper we provide a preliminary working definition of the “news media” for the purpose of the law.
We suggest that in order to qualify for the special news media privileges and exemptions, publishers (who may be corporates or individuals) must have the following four characteristics:
• A significant proportion of their publishing activities must involve the generation and or/aggregation of news, information and opinion of current value;
• They disseminate this information to a public audience;
• Publication must be regular and not occasional; and
• The publisher must be accountable to a code of ethics and a complaints process.
It is critical to note that this proposed statutory definition would in no way interfere with or restrict any person's ability to report on news or undertake journalistic work.
Our proposed schema would not interfere with the fundamental free speech rights of citizens nor would it impose unnecessary constraints on private publishing activities. What it would do is provide some clarity for those publishers who wish to be considered part of the news media and who choose to be constrained by the ethical standards and accountabilities which are supposed to be inherent in that type of speech.
We are interested in your views on our preliminary definition of news media.
Some possible questions:
Are there problems with this proposed statutory definition of news media?
Is the requirement that publishing be regular important? Reasonable?
What about the requirement for accountability to a complaints body? Is this necessary?
Might there be ways to determine who is eligible for the legal privileges and exemptions afforded the news media other than by providing a statutory definition as we have proposed?
IMPORTANT NOTICE ABOUT THIS DISCUSSION:
This discussion is being advertised across several new media websites – guests to Pundit are very welcome but please be respectful and constructive.
This discussion is part of the Law commission’s consultation on their issues paper “The News Media meets ‘New Media’ : rights, responsibilities and regulation in the digital age - ie. your comments below may be taken into account when the Law Commission writes its final report on Media Regulation issues. The discussion will be moderated, however this moderation will be in accordance with the normal rules of moderation in this forum.
Several other things follow from this:
1. The Law Commission may participate in the discussion. Any comments it makes in this forum should be regarded as provisional as the Commission will not finalise its policies and recommendations to government until it tables its final report which is expected at the end of 2012.
2. Parts or all of this discussion may be archived as part of the official record of this Issues Paper Consultation (Practically this means that if you change your mind on something then you are encouraged to say so and explain why – otherwise your initial view may be interpreted as a kind of submission).;
3. This discussion may be subject to the Official Information Act – and certainly any remarks made by the Law Commission will be; The Law Commission encourages all participants to also make formal submissions to the Law Commission here. If you form an opinion on these issues as a result of reading the discussion in this thread then please share that with the Commission directly if you wish.
- The Law Commission and Tim Watkin (Host and publisher of Pundit)