The Law Commission has publicly released today its report on legal and other issues around new media such as blogs. I was one of those interviewed by them in initial consultation phase in formulating this issues paper. It is open for public comment until 12 March 2012.
I think the report is an excellent one, and I am enthusiastically supportive of their proposed model of media regulation in the digital age. There are some risks around the model proposed, but these can be mitigated. Balanced against those risks are considerable opportunities for “new media”.
News media have special protections under the law. The Law Commission recommends “news media” be defined as a publisher in any medium who
- has a significant proportion of their publishing activities being the generation and/or aggregation of news, information and opinion of current value
- disseminates this information to a public audience
- regularly publishes
- is accountable to a code of ethics and a complaints process
Kiwiblog (not that this is my main concern) would clearly qualify under points 1 to 3, so would need the accountability and complaints process to qualify. Whether or not this is worthwhile, will depend on the details.
A key point made by the Law Commission is:
It is important to note this definition is not intended to exclude others from reporting or commenting on the news. It simply proposes a set of statutory criteria to resolve the current uncertainty as to which groups and individuals qualify for the legal privileges and exemptions assigned to the media.
This is quite crucial, and one of the risk areas of a new definition. At present bloggers are allowed to report on court proceedings, attend Treasury lockups etc. This should continue to occur, even if a blogger does not qualify under the proposed definition. The definition is for qualifying for legal privileges, and should not be used to block genuine access for online publishers.
The key aspect of the Law Commission paper is an independent regulator for all news media regardless of format or delivery platform. This would replace the Govt appointed BSA for broadcasters and the Press Council for print media. There are significant anomalies in the current system, with an example being:
- A video broadcast by a broadcaster is subject to the BSA
- A video placed on a broadcaster’s website is not subject to any regulation
- A video placed on a newspaper’s website is subject to the Press Council
The Commission proposes the following features for a new regulator
- Independent of both government and the news industry
- Appointments to the regulator would be by an independent panel
- Regulator would work with industry on different codes, so bloggers might have their own code (for example accuracy required, but possibly not fairness)
- Recognised by statute and part-funded by industry and subsidised by the state
I think the independence from Government is crucial. Without that it becomes a path through which the Government could censor the media and I would be against. The details in these areas will be vital.
The subsidy is also a necessary evil. Bloggers are generally non-commercial and you can’t charge a blogger $10,000 a year to come under such a regulator. Likewise, I can’t see APN and Fairfax wanting to pay on behalf of bloggers. The Commission says:
It is in the public interest that as many news publishers, including small startups, belong to such a standards body and a lack of financial resources should not be an impediment to joining. The state and wider public have a strong interest in a robust and ethical news media and we see no reason why this body should not receive state support, provided there are no strings attached to the appropriation.
One of the issues in the paper would be whether membership of the regulator would be entirely voluntary for everyone, or whether commercial media should be required to join.
I believe it should be voluntary for everyone. The incentive to gain the legal protections of being news media should be enough. A key issue will also be what are the powers of the regulator. If they have the power to (for example) suspend a newspaper, then newspapers would not want to join. If the power is to require publication of a finding, and low level fines, then perhaps less of an issue. The print media are the ones who potentially lose a wee bit of freedom in this model, while broadcasters would end up with greater freedom. In a converged world, all media should be on the same level, and so long as the regulator is not Govt controlled I think that is a good model.
The Commission notes:
The large majority of New Zealanders publishing on the internet would not come within the ambit of the new regulatory system we propose. In essence they will be able to exercise complete freedom of speech. They can, without fear of any regulator, be inaccurate in their facts, unbalanced in their coverage and extreme in their opinions. The public can rely on them, or not, as they see fit. They would not be recognised as “news media” for the purposes of the statutory privileges.
They also note that such publishers are still liable to the laws of defamation, copyright, contempt of court etc.
There are other interesting issues the Commission looks at in its paper
- consider introducing a new offence of maliciously impersonating another person
- amend the Harassment Act 1997 to explicitly include cyber-bullying
But rather than have these go to court, which would be over-kill, they float a model of a Communications Tribunal “which could administer speedy, efficient and relatively cheap justice to those who have been significantly damaged by unlawful communications”
I think this aspect is more problematic, while well-intentioned. They do say:
The Tribunal would only deal with cases which it judges would have met the threshold of a breach of the law. It should not be a port of call for those with insubstantial complaints.
My suspicion is it would become exactly that. For such a model to work, it will need considerable safeguards against malicious and trivial complaints designed to (ironically) harass the person complained about.
The Tribunal would not have the ability to impose any criminal sanction they say:
Sanctions and remedies available to the Tribunal would include the ability to award monetary compensation up to a prescribed level; to order publication of an apology or correction; to order that a right of reply be granted; to order that the defendant cease the conduct in question (a type of injunction); and to make takedown orders against either the perpetrator or an innocent avenue of communication such as an ISP. It might also make a declaration that statements made about the victim are untrue. Failure to comply with an order would be an offence.
I do like the notion of the Tribunal being able to make a declaration that statements about a victim are untrue. Defamation is rarely viable for those who have false things said about them online. And victims of lies and slander often just want the truth affirmed, not damages. I do see considerable merit in the concept of the Tribunal. My concerns are around the small number of nutters out there would would try to use it as a form of harassment in itself.
Two safeguards against this might simply be requiring complainants to use their real names to complain. Those who post under an alias can not claim they have been harmed by speech against them when no one knows who they are. A further safeguard would be a requirement to pay a filing fee. This is the most effective way to stop serial complainers.
An alternate option they put forward is a Communications Commissioner as part of the Human Rights Commission. I don’t think this would be a good fit for the HRC, and in fact could distract them from their primary focus.
The paper is (as expected) very well researched, and shows great understanding of the online environment. I encourage people to read it, or at least the summary paper, and give your feedback. It is my understanding that there are likely to be some sort of forums organised where people can attend and discuss and debate the issues and proposals. I’ll blog details of these as they are known.
Finally it is worth noting this is an issues paper, not a final paper recommending action to the Government. That means this is the best time to influence it.