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We don’t need no stinking press regulation

By Steven | December 6, 2012

The Herald’s lawyer, Alan Ringwood, argues that we don’t need any statutory press regulation in NZ. Don’t listen to Levenson, he says. We don’t need to go there. (Full article here).

I guess it’s not a news flash that the Herald’s lawyer would oppose statutory restrictions on the Herald. But I’m interested in his argument. It’s just not very convincing.

I’m not the only one who thinks so. Check out the comments. I don’t think there’s one person in 30 who agrees with him. They seem to be reacting to this:

It is, however, too easy in New Zealand to take the freedom of the press for granted. It is not unusual to hear politicians, judges, commentators, friends and colleagues bemoan the quality of news reporting, despair at the content of news programmes, criticise the standards of newspapers, and generally treat the press as something common and a little distasteful.

This attitude to the press seems to overlook two important things. The first is that to be a free press, the press must be free to publish what it wants to publish. Freedom of the press means that as well as reporting the proceedings of Parliament and the utterances of politicians, newspapers can also report petty disputes between neighbours and stories about lost pets.

In addition to reporting the proceedings of the courts, newspapers can criticise sentences which appear inadequate, decisions which seem wrong, and judges whose decisions appear inane. In addition to reporting the outcome of international sporting fixtures, newspapers can report the drunken antics or criminal behaviour of sports stars off the sports field.

If celebrities walk our streets or play on our beaches you can see the pictures in the paper. If there are difficulties in the romantic lives of celebrities you can read about that in the magazines. Freedom is the freedom to publish gossip as well as serious investigative journalism.

The second thing that critics of the content of newspapers seem to overlook is that newspapers are a business, and they are largely a paper business in a world that is increasingly digital.

If newspapers are to stay in business then they have no option but to publish what the public wants to read, ie, content that “sells newspapers”; and criticism of the content of newspapers is really therefore just criticism of the tastes of the general public.

People who sniff at the publications of the free press really don’t know how lucky they are. No one but the sworn enemies of western liberal democracy should want the alternative- a press which is not free; not free to criticise the government; not free to embarrass politicians; not free to lampoon the pompous and identify the fools; not free to criticise the courts or judges; not free to campaign for justice; not free to expose wrongdoing, corruption or hypocrisy; not free to take any side in public debates; not free to say what needs to be said on any subject; not free to express any editorial opinion; not free to publish all aspects of the minutiae of daily life in New Zealand no matter how seemingly trivial; not free to publish photographs of celebrities; not free to publish gossip; not free sometimes to be wrong.

Here’s the thing. The people who bemoan the standards of the press do not forget that free speech includes the freedom to publish gossip, or that the media generally has business imperatives (though – hello RNZ – it’s not all a business). Nor do these critics – does this really need to be said? – think that a not-free press would be better. They would just like the press to be more accurate and balanced, focus seriously on issues a little more often, and do a bit of investigative journalism once in a while.

If Ringwood is lauding the press’s freedom to “say what needs to be said on any subject”, then why doesn’t it do it?

Ringwood suggests that Leveson has recommended a new independent regulator that is “established by statute” and “imposed on the industry”. This is what Ringwood opposes for NZ.

But that’s not quite right. Leveson has recommended that the industry set up the regulator itself. It would then be “recognised” in statute. And membership would be voluntary. That statutory recognition would be important, Leveson says, because law changes would be needed largely to confer legal benefits on those who opted to join. Those would include costs awards against those who litigate in court instead of taking advantage of the fast-track arbitral tribunal that he recommends.

This is not a bull’s roar away from what our own Law Commission has recommended. Presumably, this is what Alan Ringwood is taking aim at, though he doesn’t mention it.

I hope that readers of this blog will realise that I’m generally a strong supporter of free speech, but I have to say, I don’t understand the bile and loathing that spews forth whenever someone mentions the prospect of statutory regulation of the press. These proposals, remember, are as light-touch as light-touch regulation gets. In both cases, the primary recommendation is that a regulator be created that is independent of government and the media, and is effective. There are powerful design features aimed at ensuring that independence. In both cases, the statutory recognition is only to bed in the independent regulator, not to control it in any way.

Anyway, why are we supposed to think that any form of statutory regulation will be the death of free speech? The Broadcasting Standards Authority has been “regulating” our broadcast media for 20 years now (as has Ofcom in the UK). Has it killed news reporting? I’ve read a lot of BSA decisions, and I think they are plainly more respectful of free speech considerations than the Press Council is. Partly as a result, they are currently upholding a smaller proportion of complaints than the Press Council. Their decisions are more rigorous. They use their penalties judiciously. Their decisions are challengeable in the courts. They do not require you to sign away your right to sue, as the Press Council does. (I should note that I think the Press Council’s recent approach has been pretty good).

Ringwood doesn’t mention any of this either. His argument: we don’t appreciate free speech (and our media) enough; any restriction that has anything to do with a statute must be warded off like Baal. Like I say, I don’t find it very convincing.

Ringwood’s last point is that the media are under legal siege anyway, so we shouldn’t add to their burden. I hear this a bit and don’t believe it either. Let’s go through his evidence:

We had state interference in media coverage of the last general election when police officers entered newsrooms in the closing stages of the campaign to seize copies of the “teapot tapes”.

Well, true. But how this “interfered” with the coverage, I can’t fathom. It’s not as if the police were arresting journalists or ripping out computers. There was no threat to any confidential source. There were grounds to believe a crime had been committed. Is Ringwood suggesting that evidence should never be required from media outlets? This is, anyway, extremely rare.

We had New Zealand Herald journalists banned from Parliament for 10 days following the publication on the Herald website of a photograph of a man who tried to jump from the public gallery into the debating chamber.

Yes, but the Herald was blatantly flouting the rules. I agree with Ringwood that those rules are silly and unjustified. It’s Parliament being precious. But the modern movement has been toward opening up coverage of Parliament, including with cameras. And this restriction isn’t a big deal in the scheme of things.

We have expansionist privacy laws elbowing freedom of expression aside.

As far as I know, there have been fewer than a dozen privacy actions since this tort was dreamed up in 1986. They have not all been against the media. When they have, the media has usually won. I don’t think damages have ever been awarded against the media for breach of the privacy tort. On the other hand, the media has been stopped from publishing the fact that a well-known person (not on the public payroll) may have attempted suicide a long time ago, and they have been stopped from publishing the name of the student embroiled in the incident with Darren Hughes. In the BSA (which enforces similar rules), a broadcaster was penalised for airing a reality TV show with explicit footage of a woman’s breast augmentation treatment, without properly confirming her consent.

I’m inclined to think that privacy protections are justified and there should be remedies in the rare cases where the media seriously oversteps the line. The changes have been incremental, and have emphasised the need to bear free speech rights in mind. It’s hard to see free expression being “elbowed aside”.

Oh, and the media is exempt from the Privacy Act, when engaged in news gathering.

Our defamation law has not kept up with developments in other common law jurisdictions, with the result that it has a chilling effect beyond that which is inappropriate in the modern age.

I agree that our defamation laws are antiquated and beset with technicalities. They are obscure and expensive to enforce. Often, though, that favours the media. Defamation lawsuits are fairly rare. And, as Ursula Cheer’s research found, serious defamation threats are also relatively rare, and are usually dealt with quickly, often without any payment of damages. She found little evidence of stories not being told because of defamation fears. The chill effect is overstated.

As for the law, recent movements have been in the media’s favour too. In particular, the recently expanded defence of qualified privilege is a boon for our media. We started expanding this defence about the same time as Australia and the UK. Canada has only just got there. Ringwood may be concerned at the limited scope of our defence: on one reading it only protects comments about elected officials. But it is very likely to be extended beyond that, and there’s a NZ High Court case that has done so already. In some ways, our new defence is more media-friendly than the UK’s.

Suppression orders are regularly being made by courts and tribunals in circumstances which do not satisfy the proper criteria for such orders. And it can often then be difficult or impossible to ascertain what exactly has been suppressed.

True. And yes, it’s unjustified. But we should put this in context. Name suppression orders (which are the vast bulk of suppression orders) are given only in about 1 percent of criminal cases. Most of those are temporary. Many of the rest are imposed to protect child witnesses or sex crime victims. Recent legislation has been passed aiming to make suppression orders harder to get, and to make them easier for the media to challenge.

We have controversial restrictions on what can be reported about suicides.

True again. But the media may be its own worst enemy here. The restrictions may well not be as narrow as the media portrays them, and journalists can seek consent for publishing suicide details – but it seems that they almost never do.

We even still – in the 21st century – have a blasphemy crime on our statute books, and it is punishable by a year’s imprisonment, so I would literally risk being jailed for elaborating freely on what I think about that.

True. And the last prosecution for blasphemy was in 1922. The Attorney-General’s consent is required for a prosecution and it seems unrealistic to suppose it will ever be given. Yes, we should dump this law, but it’s hardly interfering with anyone’s free speech. Go on, Alan, say what you think about blasphemy. I’ll defend you for free.

We have seen New Zealand drop out of the top 10 ranked countries for media freedom.

There are two main organisations that measure press freedom, Reporters Without Borders and Press House. We have never been outside the top 20 countries in either of those rankings. As recently as 2010 we were in 8th place in the RWB index. For 2011 and 2009 we were 13th. In 2006 we were 19th. In 2004, we were 9th. I don’t think much has changed in NZ in those years. Maybe other countries have improved markedly. Maybe the data is not very sophisticated. Anyway, this is hardly evidence that our press freedom is in such jeopardy that a statutory-based regulator would bring the sky down.

Like I say, not very convincing.

And he’s somehow forgotten to mention all the recent improvements in press freedom. The Fairfax case has made prosecutions for contempt much less likely in future; the Evidence Act 2006 contains new source protection rules; the Bill of Rights Act is starting to have a notable effect in reshaping the law in the media’s favour; we have one of the best freedom of information regimes in the world; we have bedded in rules permitted cameras in court; we have much better rights of access to court records under new rules; and the “teapotgate” prosecution against a cameraman did not proceed.

I’m not saying everything’s rosy for the media. But it’s not as bleak as Alan Ringwood would have it.

Topics: Broadcasting Standards Authority, Cameras in Court, Censorship, Confidential sources, Contempt of Court, Court records, Defamation, General, Name suppression, NZ Bill of Rights Act, Official Information Act, Press Council, Privacy Act, Privacy tort, Suppression orders | 16 Comments »

16 Responses to “We don’t need no stinking press regulation”

  1. pohutu Says:
    December 8th, 2012 at 11:24 am

    I agree. I’ve read a good chunk of Leveson (who could read it all?) and I found this quote from the exec summary interesting: “There is no organised profession, trade or industry in which the serious failings of the few are overlooked because of the good done by the many.” (5)
    I think part of what’s going on is that the media is more and more having to use its noble “public interest” defence to prop up its less noble focus on “whatever interests the public”. Ringwood essentially does that, saying if you want the public interest stuff, you have to suck up the whatever-interests-the-public stuff. (Or, perhaps more accurately, whatever the media outlet decides interests the public.) That same public appears to be growing increasingly dissatisfied with all this noble principled talk in the face of so little noble action.

  2. pohutu Says:
    December 8th, 2012 at 11:36 am

    p.s. And thinking about that a wee bit more, I wonder if a case could be made that using this “public interest” (pillar of democracy etc. etc.) defence both in the face of such press failings and against ANY moves to provide victims of media invasions with possible avenues of redress short of suing won’t ultimately undermine that defence – Chicken Little style.

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