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The NZ Herald’s weird response to the Law Commission

By Steven | March 28, 2013

The NZ Herald has editorialised about the Law Commission’s proposal to set up a new News Media Standards Authority.

It seems to veer between cautiously welcoming the report, and suggesting that the system ain’t broke. (No mention of the increasing absurdity of having different standards and complaints processes applying  to what is essentially identical material, or the problem of working out who should receive the legal privileges bestowed upon the media. Or the troubling fact, unearthed by a Law Commission survey, that three quarters of us have never even heard of the Press Council, the complaints body you could take your NZ Herald complaint to.)

The Herald’s main theme is that media self-regulation is essential. We don’t need government involvement. (Where have we heard this before? Oh yes, the Herald).

The Herald concludes that

Press freedom is not abused in this country, New Zealanders do not pay for unreliable news.

The NZ Herald, of course, is “reliable news”, that New Zealanders do pay for. (Any bets on how much longer this will last? Do falling circulations mean its reliability is declining too?).

I wonder whether it’s worth complaining to the Press Council about the statement that “Press freedom is not abused in this country.” It’s plainly inaccurate. The Herald itself had to make a front  page apology for its misleading campaign against the Electoral Finance Bill, for example. Anyone who believes the media doesn’t abuse its freedoms in NZ could spend a profitable hour or two at the websites of the Press Council and the Broadcasting Standards Authority.

It’s surely also wrong to say that we don’t pay for unreliable news. I can think of several patently unreliable magazines that are still in the bookstores. Unethically gathered and presented news and commentary is often more popular than “reliable” journalism.

But it’s surely fair to say that our mainstream media is generally pretty ethical, and perhaps that’s all – with some rhetorical licence – the Herald meant.

That’s no excuse for the other inaccuracies in the editorial, though.

The Herald says:

The Law Commission’s final suggestions for media regulation were tabled in Parliament yesterday and they are a good deal better than its proposal of 15 months ago. Crucially, there is now no suggestion that a new adjudication panel for public complaints will be a created by statute.

This is artfully misleading. The Law Commission never recommended a new complaints panel “created by statute”. It put forward two options: a complaints system where membership was voluntary, and one in which it was compulsory (at least for big media). “We seek views on the preferable option,” it wrote.

It said both of these options would require statutory backing. The first would require a little more, since membership could only be made compulsory by statute. In fact, the Law Commission’s final proposal also requires statutory backing. But whichever option was selected, it is clear that the Law Commission did not have in mind a complaints body created by statute, in the sense that the Act would spell out the complaints process and the standards and provide for government appointments. The models it looked at – whichever option was chosen – were about “a regulatory system operating quite independently of the state.” Even if membership was to be made compulsory, all the important design features of the system would be drawn up independently of the government.

The Herald says the new NMSA

would assess complaints against a code of practice agreed with the industry and members…

Nope. NMSA would draw up the code itself – after consultation with industry and the public. There’s a significant difference here. The media get no veto right over content.

The Herald says:

Only those who submitted to the new authority would enjoy the “privileges” of recording proceedings of Parliament and the courts…

Wrong again. The Law Commission didn’t make recommendations about recording proceedings in Parliament or the courts. One of the privileges is about access to court proceedings when a courtroom is closed to the public, but it’s very likely that a judge would have the power to allow in others (such as the editor of a legal magazine not published to the public).

The Herald says bloggers are unlikely to join so that:

Many of them might remain answerable to no authority except the common law – if it can find them.

Yes. And the criminal law too, let’s not forget, and civil obligations under statute. So that’s name suppression laws, threats, harrassment, criminal trespass, illegal interception, the Privacy Act and quite a lot more. Or does the Herald think that’s part of the common law? You know, I think it probably does.

But putting all that aside, surely it’s significant that the blogger who doesn’t sign up to NMSA will be – as the Law Commission points out – subject to the Communications Tribunal it recommended in December to deal with online harrassment. So perhaps there’s a little more incentive than the Herald is suggesting for a news blogger to join NMSA and a stronger laws for that blogger to navigate if she or he doesn’t .

Helpfully, the Herald also says:

Those receiving the commission’s report might need reminding that no serious problem exists.

Compared with the outrageous press abuses such as phone hacking and bribery of police that triggered the Leveson inquiry, this is undoubtedly true. But those receiving the Law Commission’s report will not need reminding of it. The Law Commission makes precisely that point, several times. In fact, on the front page of its press release, it says:

It is important to understand that unlike Britain’s Leveson Inquiry, the Commissions’ review was not driven by a crisis in confidence in the mainstream media.

And it’s not true that no serious problem exists. The problem is digital convergence. And if the Herald doesn’t like the Law Commission’s solution, which is pretty similar to the regime its own industry set up, then I’m sure we’d all be interested in what it suggests instead…

Topics: Broadcasting Standards Authority, Press Council | 41 Comments »

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