These notes were prepared in June 2009. They are intended as general information not specific legal advice. If you want legal advice about a particular problem, you can contact me here.
What is it?
The Press Council hears complaints against newspapers and magazines with a reasonably substantial New Zealand readership, and their associated websites. It is set up through self-regulation, though it contains a majority of law members, including its chair, who is traditionally a retired judge. (The Press Council has just undergone a major review, which may result in changes to its structure and operations.
Complaints must be in writing, sent to the publisher at first instance within three months of publication. Complainants dissatisfied with the publication’s response to the complaint can refer their complaints (“promptly”) to the Press Council.
Is there a code of ethics or set of written standards?
Complainants can draw upon the Press Council’s “Statement of Principles” which is an industry code of ethics of sorts, though other issues can be raised too.
What’s the complaints process?
Complaints are usually dealt with by an exchange of correspondence. The parties can ask to be heard in person. Complainants have to waive the right to take legal action in connection with the subject-matter of the complaint, though it is doubtful whether this waiver is enforceable.
The Press Council will consider complaints relating to third parties who are not complaining (such as privacy complaints), but may require that person’s consent.
How often does it uphold complaints?
The Press Council upholds about 20% of complaints.
What penalties can it award?
The Press Council’s only substantive penalty occurs automatically if it upholds a complaint: the publication must publish the “essence” of the Press Council’s ruling “giving it fair prominence”. Short of this, it may criticise the behaviour of a publication, and even issue a reprimand, without upholding the complaint. It cannot award damages.
Can it award costs?
The Press Council doesn’t award costs.
Where can I find its decisions?
The Press Council’s decisions are available here.
What approach does it take to dealing with complaints?
The Press Council’s approach is more holistic than the BSA’s. It tends to ask whether the publication’s coverage is sufficiently unethical in the round to warrant upholding the complaint.
Again, a comprehensive review of the rules and principles that emerge from these decisions is contained in Media Minefield. Here is an overview of its approach to some significant issues.
In dealing with accuracy complaints, the Press Council tends to ask whether the publication took “an appropriate amount of care” in the circumstances. So, when the publication has faithfully relied on an apparently authoritative (and attributed) source such as the police, who turn out to be mistaken, the Press Council may well not uphold the complaint. Minor errors are also likely to be excused, as are matters of interpretation or characterisation. On the other hand, complaints against serious mistakes, gross exaggerations, and misleading impressions, summaries, omissions or juxtapositions may well be upheld. Opinion columns are given wide latitude, but the Press Council has said that the material facts upon which the opinions are based must be accurate. Partial re-writes of quotes seem to be allowable, as long as the meaning is not changed.
Headlines should not mislead readers about the contents of the article, for example by making claims that are not borne out in the article.
Balance will only be needed when it is relevant to the thrust of the coverage, rather than every little point raised. The Press Council will examine the overall coverage, including letters to the editor, to see whether balance has been properly supplied. It is particularly important to provide a balancing response, promptly and prominently, when serious allegations are made about an individual or organisation. When more general issues are explored, balance requires the airing of a range of opinion, though publications are given more leeway to choose whose views to include. The balance standard does not prevent publications (particularly magazines) from adopting a campaigning role, though they should alert readers to the range of views. Opinion pieces do not require balance.
Fairness relates to a range of issues. Journalists should keep promises. They should not engage in deception without a clear public interest justification. They should generally comply with embargoes. They should ensure that any examples they use to illustrate issues are genuinely relevant to the issue. They shouldn’t publish criticisms founded on errors of fact. They should not limit political coverage to candidates who pay for advertising space. Where the publication, journalist or columnist has an interest that is relevant to the topic of coverage, this should be disclosed. Biases of sources should also be disclosed. On the other hand, an opinion piece would have to be extreme or abusive to be considered unfair. Political coverage is generally allowed to be robust (it is not unfair to publish “report cards” on the performance of politicians, for example).
In general, where sensitive facts are published about an identifiable person who could reasonably expect them to be kept private, a privacy complaint may be upheld. This won’t usually include photographs taken in public places, information in the public domain or about the public lives of public figures, or material that is otherwise of public interest. Nor will it usually include the names of those involved in newsworthy events or the addresses and photographs of their houses or businesses. Publications should take care not to exacerbate the distress and trauma of victims of crimes and accidents, and should take particular care with children and young people.
Letters to the editor
The Press Council receives many complaints about the treatment of letters to the editor, but upholds few. In general, correspondents do not have a “right” to have their letters published unless they have been “vitally affected” by the coverage. Letters can be edited, though their meaning should be preserved.
Advice to complainants
- The Press Council is unlikely to uphold complaints against editorial choices about what stories to cover, where to place them, what angles to take, what opinion pieces to publish, what stance to take in editorials, and whether or not to publish a letter to the editor. It very seldom upholds complaints about taste and decency, discrimination or general bias, or the weighting of balance (though it may uphold complaints when there is no balance at all). It has great faith in letters to the editor as a remedial measure for lack of balance of fairness, and sometimes inaccuracies.
- Refer to the Statement of Principles where relevant to support your complaint. Explain why it has been breached.
- Keep the complaint focused on the issues. Play the ball, not the man.
- Don’t go on for pages and pages.
- Don’t expect the Press Council to be able to resolve issues of disputed fact (he said-she said situations, or scientific or technical questions such as climate change).
- Provide authoritative evidence to support any allegations of inaccuracy.
- Be aware that the Press Council does not do its own independent investigations, so can only decide complaints on the basis of the material before it.
- Consider the full range of the publication’s coverage over a reasonable period before complaining of lack of balance.
- Only complain about editorial changes to your letter to the editor or opinion piece if the changes make a real difference to its meaning.
- The Press Council will not determine complaints about breaches of name suppression and other criminal matters, or about defamation.
Advice to publications responding to complaints
- Generally offer a letter to the editor as a remedy.
- Don’t ignore complaints. The Press Council gets grumpy when, surprisingly frequently, it finds that the publication hasn’t bothered to respond to the complaint.
- If a complaint seems justified, take steps to address it immediately. Include balancing or accurate material in upcoming coverage. This may suffice to end the complaint, or at least satisfy the Press Council.
- Deal with the issues, not the personalities.
- For important cases, consider making Bill of Rights arguments (see discussion above under BSA). The Press Council is very probably performing a public function under section 3 of the New Zealand Bill of Rights Act, and therefore any restrictions on freedom of expression must be demonstrably justified under section 5.