Regulatory gaps and the new media

The Commission undertook a review of the current regulatory environment for the news media with respect to its adequacy in catering for new and emerging forms of news media – sometimes referred to as the “new media”.

The three questions posed by the project’s terms of reference were first discussed in the Issues Paper (December 2011) and in online forums.

In May 2012, the Minister responsible for the Law Commission, the Hon Judith Collins, asked the Law Commission to expedite its recommendations relating to the third question – namely the adequacy of the sanctions and remedies available for harmful digital communication. The Commission provided a Ministerial Briefing, Harmful Digital Communications: The Adequacy of the Current Sanctions and Remedies (NZLC MB3, August 2012) containing recommendations and a proposed Bill.

The Commission then returned to the first two questions relating to the news media in its final Report The News Media Meets ‘New Media’: Rights, Responsibilities and Regulation in the Digital Age (NZLC R128, 2013).

The Report recommended a new complaints body be set up to provide New Zealanders with a consistent set of news media standards and a one-stop-shop for adjudicating complaints across all news producers.

The project was led by media law expert, Professor John Burrows. He was assisted by senior researcher and policy advisor, and former editor, Cate Honoré Brett, and other legal and policy advisers at the Commission.

1. How to define news media for the purposes of the law.
2. Whether and to what extent the jurisdiction of the Broadcasting Standards Authority and/ or the Press Council should be extended to cover currently unregulated news media and, if so, what legislative changes would be required to achieve this end.
3. Whether then existing criminal and civil remedies for wrongs such as defamation, harassment, breach of confidence and privacy are effective in the new media environment and if not whether alternative remedies may be available.

The News Media Meets ‘New Media’: Rights, Responsibilities and Regulation in the Digital Age (NZLC IP27, 2011)

The Commission's Issues Paper, The News Media Meets ‘New Media’: Rights, Responsibilities and Regulation in the Digital Age (NZLC IP27, 2011) was prepared in response to a Government request for a review of the legal and regulatory environment in which New Zealand’s news media and other communicators are operating in the digital era.

This was a preliminary paper designed to garner wide public debate and feedback on the scope of the problem and best solutions.

Harmful Digital Communications: The adequacy of the current sanctions and remedies (NZLC MB3, 2012)

In May 2012, in response to rising concerns about the impact of cyber-bullying on young people, the Minister responsible for the Law Commission, the Hon Judith Collins, asked the Law Commission to fast-track the part of the project dealing with the third leg of the terms of reference – namely the adequacy of the sanctions and remedies for dealing with harmful digital communications. The final recommendations are set out in this Ministerial Briefing Paper, accompanied by a draft bill. 

The News Media Meets ‘New Media’: Rights, Responsibilities and Regulation in the Digital Age (NZLC R128, 2013)

The Commission's Report recommends a new complaints body be set up to provide New Zealanders with a consistent set of news media standards and a one-stop-shop for adjudicating complaints across all news producers. Membership of the new body would be voluntary and open to both the traditional mainstream news media and the new media (e.g. news and current affairs bloggers and websites), provided they are willing to be accountable to the new standards body. The new body would draw on and strengthen the best features of the current platform-based complaints bodies (the Press Council, the Broadcasting Standards Authority and the Online Media Standards Authority).

The Report recommends two specific statutory amendments once the new complaints body is established:

• an amendment to the Broadcasting Act 1989, to alter the jurisdiction of the Broadcasting Standards Authority;
• amendments to the Privacy Act 1993, the Electoral Act 1993, the Human Rights Act 1993 and the Fair Trading Act 1986 (that confer specific privileges on the news media) to align these statutes with media privileges in the Criminal Procedure Act 2011 - making conferral of the privileges conditional on membership of the new complaints body. 
• An appendix to the Report contains the Commission’s Ministerial Briefing to the Hon Judith Collins: Harmful Digital Communications: The Adequacy of the Current Sanctions and Remedies (August 2012), containing recommendations and a proposed Bill. This briefing recommended a range of measures to address the problems caused by seriously harmful personal online or digital attacks, including a new criminal offence and the establishment of a Communications Tribunal.

Additionally, the Law Commission commissioned independent research into public perceptions of (a) news media standards, accountability and complaints bodies; and (b) the occurrence of online speech harms.

A Ministerial briefing was added to the work programme after the Issues Paper stage and was requested to be fast-tracked by the then Government. The briefing’s recommendations were substantially implemented in the Harmful Digital Communications Act 2015.

Four recommendations in the briefing relating to schools and the Ministry of Education taking up anti-bullying prevention were in part addressed in the cross-sector Bullying Prevention Advisory Group (BPAG) set up in 2014.

The Government did not implement recommendations in the final report related to defining “news media” and establishing an independent news media standards authority.