Ursula Cheer, Professor of Law, University of Canterbury, Christchurch reviews the intent, scope and compromises in the Law Commission’s new one-stop-shop the News Media Standards Authority (NMSA).
News Media Standards Authority – a one-stop shop
In a final report released on 26 March (The News Media Meets ‘New Media’ LC R128, March 2013), the Law Commission has recommended that the current complex system of media regulation be replaced with one over-arching regulator known as the News Media Standards Authority (NMSA). This recommendation has the beauty of simplicity and accessibility – the one-stop shop concept which is very attractive to consumers. However, on closer examination, it is apparent the recommendations are not without difficulty and uncertainty.
The Commission faced a difficult task beating a narrow path between media strongly advocating for as much freedom and as little state interference as possible, and the public and media commentators and other parties seeking to ensure responsible and ethical media. Although the review of the regulation of NZ media was not prompted by excesses and illegal behaviour such as that displayed by media in the United Kingdom, in developing its recommendations in this report, the Commission has clearly been very conscious of the battle playing out on the other side of the world over what form media regulation might take.
Compromises; necessary but uneasy
The recommendations are therefore in many ways, uneasy compromises. Membership of NMSA is to be voluntary, but mainstream media are incentivised by being promised in return the privileges in laws such as those which give media presumptive access to courts, exemptions from the operation of the likes of the Privacy and Fair Trading Act, and access to certain defences in the Defamation Act so long as reports are fair and accurate. I remain unsure about this. What if the incentive is not enough? What would happen if significant media, like say, Sky, did not join up? It seems likely, that since such media have those privileges now, the only way they can be removed is by statute. Arguably, any statute that did this would be in breach of the NZ Bill of Rights s. 14 Freedom of Expression provision.
Membership of NSMS is to be independent of both media and government. An independent panel is to work on this. Given how small NZ is as a country, finding all the folk suitably one-step removed may be quite tricky. Perhaps only academics like myself would qualify!
Members of NMSA will fund the body, although the government will chip in with some funding for its recommended research function. The media burden might be quite costly. The Authority may well be busy as it is to cover three previously separate jurisdictions – print media, broadcasters, and online and anything between. It is also to develop a mediation service, and appeal will be into an independent body. All of this cost adds up.
NMSA will have power to make take down orders, correction orders, apologies, rights of reply and censure. These are all very sensible and appropriate. However, the members of NMSA will agree to be bound by its rulings by signing a contract. People who complain to the body are not parties to that contract. If something goes wrong – a media member decides it will not comply with an order after all, in breach of its contract, the process for the complainant to enforce the order may be long and costly. One assumes NMSA can enforce the contract. But that is not a form of enforcement that is very accessible for the ordinary Shane or Shania Bloggs who has made the original complaint, which kind of undermines the sort of system the Commission is keen to see develop.
Coverage of non-member media
What about media who decide not to join? Well, the Commission points out that they are still covered by other laws such as those relating to defamation and privacy, the Privacy Act and so on. They will also be subject to the new laws recommended by the Commission in its Briefing Paper on Cyberbullying – a criminal offence, and access to a new Communications Tribunal which will deal with speech that causes serious harm. The Commission makes clear that its recommendations in this report and in that Briefing Paper are somewhat co-dependent for the full symmetry of the review reforms to be realised. This is a plea against governmental cherry-picking, one suspects. The Cyber-bullying reforms could stand alone, but the NMSA reforms look a bit sick without them.
Entertainment media regulation anomaly – BSA retained pending review
Elsewhere in the report, the Commission’s recommendations lose symmetry as well. There is a very small last section in which it is recommended that the area of entertainment media regulation also needs to be reviewed, since the Commission’s remit did not cover this. As a result, it is recommended that, pending such a review, the BSA remain in existence and continue to deal with material relevant to good taste and decency, and to the protection of children’s interests. This will apply whether the material is news and current affairs-generated, or arises from entertainment material. One can see why this anomaly is dealt with very clumsily in this way, but the overall look is odd and rather patched. It might be possible, were the government to go ahead with the media recommendations, for media to be pinged by the BSA in the form of fines for good taste and decency and children’s interest breaches, while NMSA cannot fine for other breaches. A riposte to this apparent inconsistency might be, though, that good taste and decency and children’s interest breaches are more appropriately remedied by fines rather than the corrective remedies which will be available to NMSA.
Overall, then, this report has a feel of the Commission doing its best in the middle of a sort of minefield. The idea of an overarching regulator is a good thing, and should be workable, if the overall structure of the reforms is respected. I hope very much that the Commission’s feared cherry-picking by government in these straitened times does not occur.
Article by Ursula Cheer, Professor of Law, University of Canterbury, Christchurch