Media Reform Proposals; Regulation - Part 1
The Regulatory Landscape Considered
This discussion of the proposals for Media Regulation is complex. For that reason my detailed article on the matter is divided into two parts.
The material in these two articles has been taken from my full submission to the Ministry of Culture and Heritage. The submissions on Media Reform closed on Sunday 23 March.
This is a complex and highly nuanced issue. The question that must be asked and answered is what business does the State have in expanding its regulatory activities into areas where it has no active interest. As will be seen in the article, the State had an interest in broadcasting because it controlled broadcasting for many years. Incrementally those controls were loosened.
Now the State is considering moving into areas where it has had no similar interest and the question must be asked – why.
This first article will introduce the issues and provide some background information. It will then move to a discussion of the difficulties associated with rulemaking in the Digital Paradigm, problems of definition and the nature of such rule-making. Much of this section of the article draws on Chapter 2 of my book “Collisions in the Digital Paradigm: Law and Rule-making in the Internet Age.”
I then go on to discuss regulatory measures that have been attempted in the past and consider the issue of the purpose for media regulation, what and who is to be regulated and then turn to the proposals themselves and discuss the definitional problems posed by the Media Reform document which suggests and answer in search of a question.
The conclusion of the second article will suggest that if there is to be a regulatory structure for media it should be a voluntary and self-regulatory model rather like the New Zealand Media Council. Given that there seems to be a recognition of the fact that the Broadcasting Standards Authority is no longer fit for purpose, that element of the broadcasting regulatory ecosystem could be closed. Other aspects such as licensing and spectrum could remain.
Introduction
The Reform Proposals regarding media regulation are based on the assumption that the provisions of the Broadcasting Act 1989 and the regulatory structures developed under that legislation are no longer fit for purpose.
The Act was premised on the presumption that broadcasters had certain responsibilities particularly relating to complaints about content.
It was enacted when broadcasting was limited to radio and television and a monolithic centralized business model where content was distributed by one to an audience of many.
The State has long had an interest in the control of broadcast media. The following timeline is indicative of the assumption of State control
1925: The government established the Radio Broadcasting Company (RBC), which had exclusive control over New Zealand’s radio stations.
1936: The first full state control was implemented when the National Broadcasting Service (NBS) was established under the first Labour government.
1953: The New Zealand Broadcasting Service (NZBS) was created, consolidating radio under government control.
1960: New Zealand Broadcasting Corporation (NZBC) was formed, which later expanded to include television broadcasting.
1972: Newspaper publishers form the Press Council as a voluntary regular to forestall Government moves to establish a regulatory framework for the Press.
1975: NZBC was split into three separate state-owned entities, including Television One and Television Two (which later merged to form Television New Zealand (TVNZ) in 1980).
1989: TVNZ was restructured as a state-owned enterprise, shifting towards a more commercial model while remaining government-owned.
New Zealand gradually moved towards a more liberalized media environment, especially in the 1980s and 1990s, with the introduction of private radio and television stations. However, state-owned broadcasters like TVNZ and Radio New Zealand (RNZ) continue to operate today.
Broadcasting and its regulation are covered by the Broadcasting Act 1989 and the Broadcasting Standards Authority. Traditional news media were subject to the voluntary regulation model of the Press Council which has been succeeded by the New Zealand Media Council. Traditional news media have been joined in the voluntary scheme by a number of online agencies.
This commentary addresses the proposals for professional media regulation.
The issue of “fitness for purpose” of the current regulatory regime can only be properly considered if the nature of paradigmatic change is considered and the regulatory challenges that this poses.
I shall commence therefore with a discussion about the nature of the Digital Paradigm and the problems of rule-making within that paradigm.
If there are to be changes to the regulatory structures and scope it is necessary to consider the issue of definition. This has been referred to in the Discussion Document and the Regulatory Impact Statement but is currently vague and ill-defined.
Until the target of regulation is properly defined the regulatory proposals are a solution in search of a problem.
The second part of the commentary deals with definitional issues and considers some of the approaches that have been considered in earlier regulatory proposals.
The third part of the commentary will consider some of the earlier proposals that have been put forward for media regulation, primarily by the Law Commission in the “News Media Meets News Media” paper of 2013.
The fourth part will consider the regulatory options proposed and will consider the reasons for extending the regulatory model
The fifth part will suggest that care must be taken in crafting the scope of the regulatory model lest unintended consequences and anomalies arise. The role of the journalist will be discussed along with related issues.
The sixth part of the commentary will suggest proposals for a reformed regulatory structure. The scope of that structure is more limited than that suggested in the Discussion Paper but sufficient to recognize some of the regulatory objectives and the difficulties posed by the Digital Paradigm.
The final part of the paper will note the questions that are posed about regulation and provide answers with cross references to the relevant parts of this commentary to provide a rationale, background or context for the Answers
The Digital Paradigm and the Nature of Convergence
In its issues paper “The News Media Meets ‘New Media’: rights, responsibilities and regulation in the digital age” the New Zealand Law Commission identified the traditional business model of news publishing and dissemination. Radio, television and newspapers who fell within the model were referred to as mainstream media or MSM.
In today’s paradigm they could be termed “Legacy Media”.
Digital Paradigm Disruption
Digital technologies and Internet platforms have disrupted and challenged this traditional model. The Law Commission adopted generic term “new media” to describe information disseminators who fell outside the traditional model and who utilised digital platforms as their mean of communication.
The rise of the citizen journalist, the use of social media as an alternative to traditional news release or press conferences, the development of multiple platforms that can be deployed by both new media and MSM, continuing disruptive change and the fact that innovation in communications platforms – both underlying qualities of the digital paradigm - develops without the need for regulatory permissions or authorisation and collectively have resulted in a revolution in the news media environment.
Permissionless innovation is a term that I use to embrace the ability of any Internet user to “bolt” a platform on to the Internet backbone and set up business. It is a constant feature of the Digital Paradigm.
Problems of Definition
An example of the disruptive effect of the Digital Paradigm lies in the area of definition. In the pre-Internet space the “news media” were instantly recognisable.
News media included state funded broadcasters and large private corporates who distributed information via print or broadcast content and generally served a dual objective of providing entertainment and current affairs information.
An additional role which news media have assumed over the centuries is to act as a public watchdog on government and public affairs to the extent that the news media have been referred to as the Fourth Estate. A democratic society recognises this important function that news media fulfils.
As a result regulatory models are generally light handed to avoid any suggestion of censorship. Indeed, print media may voluntarily submit to the Press Council and only broadcast media are held legally accountable to standards pursuant to the provisions of the Broadcasting Act 1989.
The advent of the Digital Paradigm has had two major implications for news media. The first is that traditional boundaries between print, broadcast (radio) and broadcast (TV) have blurred.
It has been said that the Internet enables everyone to be a publisher. The various different platforms for information dissemination easily enable different types of content to be made available by the one distributor.
No longer does a newspaper have an exclusive hold on printed information. No longer does a distributor require a television channel to publish video content. The Internet has enabled the various forms of content distribution to converge with significant implications for established media roles and regulatory models.
The second major implication is that mainstream media no longer holds a monopoly over the dissemination of news, commentary and entertainment content. A new media landscape has evolved which includes web-only news disseminators, news aggregators, public relations sites, bloggers and the vast social media ecosystem along with content streaming and on demand services.
One of the concerns that was expressed in 2010 by the then Minister of Justice was how this chaotic assemblage of communications platforms should be regulated which led to the Law Commission investigations into the news media and the new media.
The issue was that that with an Internet connection anyone had the ability for to be a publisher. Thus, would traditional MSM be the subject of a new regulatory framework that was attuned to the digital paradigm or would a wider net be cast.
It appears that the questions posed fifteen years ago remain unanswered.
The reality is that new communications technologies contain certain properties which have an impact upon the way in which we react and assess the information that is communicated.
Although information may of itself be static, the way in which it may be presented by a particular communications technology affects the way in which we deal with and react to it and may colour our expectations of information.
Rule making in the Digital Paradigm
New information technology paradigms subtly influence our perceptions of information, our intellectual approach to information and our use of information.
The properties apparent in one paradigm may not be present in another. That means that assumptions made about information in an earlier paradigm may not necessarily translate into a new paradigm
A problem arises where we have become inured to the properties of one paradigm and consider that they apply mutatis mutandis to another without recognising that paradigmatic change introduces concepts that are so utterly different from a former paradigm that our responses, reactions to and assumptions about information may be invalid.
This is particularly so when one comes to consider regulatory structures and policies which may be applicable to developments that occurred under one paradigm and that may not comfortably translate to a new one.
It is suggested that it is necessary to examine the qualities of different information technologies to ascertain whether or not continuing assumptions about the nature information and its communication are still valid, or whether they must be revisited in the light of the new technology which may have significantly different properties from the old.
When we examine the properties of information communication technologies such as the printing press alongside new digital technologies including computer-based and internet accessible information, it becomes necessary to re-evaluate our responses to and our assumptions of information that is available within the digital paradigm.
Some of the ways in which the properties of the new paradigm challenge old models are in the way in which the almost infinite storage capacity of digital systems means that “all the news that fits,” to paraphrase the New York Times masthead, becomes all the news – period. No longer is it necessary for editors to weigh up one meritorious story against another for a limited number of column inches.
Medium specificity has gone as a result of the challenge of technological convergence. This means that news and information dissemination becomes an exercise in multimedia.
The defining line between say television with its audio\visual influence and print which is a somewhat more deliberative medium for the consumer becomes blurred as text, audio and video may all for part of the one posting.
The constant availability of information on online systems from a multitude of sources means that the journalistic shoe leather of bygone years has been replaced with “walking” fingers and search engines.
The MSM digital journalist’s first port of call for background information on a person is Facebook, Instagram or Twitter and “vox pops” are replaced by a stream of tweets.
This constant flood of information and the quality of information immediacy means that the so-called “news cycle” based on edition or broadcast timing has become a constant flow. The competition is not only for the story but for the best telling of it.
Digital technologies enable new channels and tributaries for news content. No longer is the “breaking story” the sole domain of MSM.
An example may be seen in the case of Keith Ng who in 2012 published a story about a computer vulnerability in kiosks at the offices of the Ministry of Social Development on the Public Address blog. At the same time as a result of donations that were made on a Givealittle site he became the highest paid journalist in New Zealand. By the time the story was picked up by MSM the real story was about how a blogger had scooped the mainstream.
Online streaming media and on demand content means that “appointment viewing” or “listening” has become a thing of the past. As Lord Neuberger said of the on-demand facility offered by the UK Supreme Court – “justice may be seen to be done at a time that suits you.” So it is with virtually all digital as information persistence and the permanence of content on the Internet asserts itself.
These characteristics emphasise the need for care to ensure that our policies are not based on assumptions deriving from the “old technology”. A different set of assumptions based upon information derived from the digital paradigm must be developed that recognise and reflect its properties. A tension necessarily arises between our print paradigm expectations and those that are apparent within the digital paradigm.
Yet there remains a path where the core values that have developed within the print paradigm may still be reconciled with information derived from the digital paradigm.
Marshall McLuhan made (among many) two observations pertinent to this discussion. When he said “the medium is the message” – a somewhat obscure remark – he was emphasising that when we deal with communications technologies the content that is delivered is secondary - the way in which the message is delivered is more important. He emphasised this rather crudely when he said that the "content" of a medium was a juicy piece of meat carried by the burglar to distract the watchdog of the mind.
This means that we tend to focus on the obvious, which is the content, but in the process, we largely miss the structural changes in our affairs that are introduced subtly, or over long periods of time.
As society's values, norms and ways of doing things change because of the technology, it is then we realize the social implications of the medium. These range from cultural or religious issues and historical precedents, through interplay with existing conditions, to the secondary or tertiary effects in a cascade of interactions of which we may be unaware.
This is reflected in the second comment that McLuhan made – “We shape our tools and thereafter our tools shape us”. In this case the tools are new communications technologies and they have been and still are changing our behaviours and our expectations of what technology can do – especially in the communication of information. In many respects the tools have shaped what has become the new, converged media landscape
What the technology has done is that it has dramatically changed many of our previously conceived ideas and understandings of information. Our responses illustrate this.
The Minister’s remarks when he made his reference to the Law Commission provide an example. Putting to one side the emotive references to “the Wild West” which are anachronistic and inaccurate, the subtext of the Minister’s comments amount to the following:
a) People are doing things with information and information systems that they were unable to do before (or could do, but with difficulty)
b) Some of these actions challenge the rules and the framework of rules that have been set up to regulate information delivery systems
c) There must be some way by which the actions which challenge the rules are brought within the existing rule structure or framework
Another way of interpreting proposition (c) is to ask how we can put the future within the constraints of the past. In many respects we find that the behaviour of individuals can be addressed within existing rules. The cases of R v Garrett [2001] DCR 955; (No 2) [2001] DCR 912 and Police v Slater (District Court Auckland; 14 September 2015 CRN 004028329 - 9833 Harvey DCJ) are examples.
This position becomes more complex when the focus shifts to what may be termed “institutions” such as the news media. The history of press, radio and television are continuing stories of State involvement with the media to one extent or another, be it at the level of content licensing following the Statute of 1662 (print), state ownership and control of radio broadcasting as was the situation up until the early 1970’s or television channel licensing as is the case today. In addition there are the regulatory structures of the Press Council and the Broadcasting Standards authority.
Regulatory Measures for Online Content
The OMSA Experience
An interesting foray into the monitoring of online content came shortly before the Law Commission released its report “The News Media Meets ‘New ‘Media: Rights, Responsibilities and Regulation in the Digital Age.” That report recommended the formation of a single regulator, conflating the roles of the Press Council, the Broadcasting Standards Authority and the Advertising Standards Authority.
By and large membership would be compulsory for MSM organisations but would be voluntary for bloggers or citizen journalists thus entitling them to some of the privileges of journalists.
However, in anticipation of the report in February of 2013 the Online Media Standards Authority (OMSA) was created following talks between TVNZ, Sky/Prime, MediaWorks TV, Maori Television, Radio New Zealand, The Radio Network and MediaWorks Radio. OMSA was industry funded and a self-regulatory body designed to oversee online news and current affairs content standards.
Some bloggers such as David Farrar of Kiwiblog and Cameron Slater of Whaleoil joined although Slater later parted company with OMSA.
Almost four years after it was established OMSA members announced that all online publications over which they had editorial control would be under the jurisdiction of Press Council, renamed The New Zealand Media Council. It has been suggested that there was insufficient work to justify the existence of a separate online regulator.
Converged Media
A converged media calls for a revised approach to regulatory structures. Separate organisations can hardly be justified, based on the medium of distribution of content. A single regulator would recognise the fundamental change in the way news is produced, disseminated and accessed in the paradigm of technological convergence. The question is whether this should be by way of industry regulation as is the case with OMSA and the Press Council or a body established by the State.
What must be remembered is that the new technologies involving radio and television came on stream the State was very swift to attempt to assert some sort of control over their operation and output.
In New Zealand it would be cynical to suggest that there is a political motive for this, although the curious situation where the Labour Party, which then favoured state control, supported the passage of the News Media Ownership Bill which would have released the stranglehold of newspaper ownership then present in New Zealand and which Labour perceived was right-wing, gives some support that within the political sub-conscious there is a media control agenda.
Of course, various levels and intensity of control are possible with monolithic, centralised and capital hungry organisations. In the pre-digital paradigm the costs of setting up a newspaper, radio or TV channel were and still are very high, even without regulatory approval. This what could be termed the centralised or monolithic distribution model.
The digital paradigm challenges that model. As has been observed, it enables everyone to become a publisher. It is not unexpected that news media should rise to the challenge and we find ourselves in a situation where there is a convergence between broadcast and print media in print media websites, and the use by broadcast media of the various communications protocols enabled by the Internet to provide live streaming of content and content on-demand.
But we must remember that the regulatory structures that have been put in place were all pre-digital and with the monolithic model in mind. And furthermore we must remember that the digital revolution (so called) is in fact evolutionary in effect.
It may well be that the on-line convergence models utilised by MSM will not be around in 10 years time – and one need only look at the development of Social Media to understand the difference that Internet platforms may prompt in terms of behavioural norms and values.
It may well be, for example, that MSM will fulfil a different news provision facility, focussing entirely upon factual information and stepping away from opinion and analysis, leaving that present function of MSM to citizen journalists – some of whom may be endorsed or who may write op-ed pieces on a freelance basis although it is acknowledged that this happens now.
A possible future is the fragmentation of MSM into a defined and specialist role – again enabled by the new technologies and possible future protocols that may ride on the backbone of the Internet – although it would require a culture shift for some journals to break free of a “tabloid” model and return to a more “intelligent” one.
The question that must be asked over and above the issue of the nature of content regulation is whether the model proposed is appropriate for the new technology.
The basic model of control of “acceptable” content be it heresy, treason or pornography has not changed significantly since the Constitutions of Oxford 1407 which were designed to address the Lollard heresy.
The model is labour intensive and has struggled to deal with increasing volumes of content made possible by technology. It was originally designed to censor manuscript materials. It struggled with the volume generated by print.
Perhaps societal changes and attitudes about indecent content have liberalised to the extent that a very limited definition of “objectionable” reduces the volume, but, having said that every film needs to be viewed and classified and the censors struggle under the volume of content that is contained in video games.
If we wish to maintain a content control model or a model that responds to content issues do we wish to maintain a variation of the existing model or should we consider adopting a new one? The current proposals suggest adapting and expanding the former even although content control is neither an overarching feature of the BSA or NZMC stabdards.
With the greatest respect, this seems to be a rear-view mirror approach to an upcoming and continuing problem. Rather than make behaviours driven by a new technology an uncomfortable fit with a model from a different paradigm, might it not be preferable to address the new paradigm and design a model that recognises it. This, of course, assumes that there is a justification for regulation in the first place.
This then leaves the issue of the special treatment accorded to MSM. Has the time has come, with the increased opportunities for “citizen journalism” to dispense with special treatment for MSM and make what have been privileges for MSM open to all?
This may sound somewhat “Jeffersonian”, overly democratic or introducing an element of chaos into an otherwise reasonably ordered and moderately predictable environment.
On the other hand in a world where everyone may be a publisher, a possible future is that MSM, at least as we recognise it now, may wither and either pass into history like the scribes in the monasteries or transform into some other form of information dissemination model.
Whilst acknowledging that the suggestion of making MSM privileges open to all is radical it must be remembered that the new paradigm with the various protocols that underlie Twitter, Instant Messaging, SMS and the various other models that will appear (and further change WILL come) radically alter our attitudes, approach to and expectations of information.
Edward Kennedy adapted the words of the Serpent in Shaw’s Back to Methuselah as an epitaph for his brother Robert F Kennedy “Some men see things as they are and say why? I dream things that never were and say why not?” In today’s age of democratisation, continued questioning and challenging of established systems and within an environment of dramatic innovation, New Media adherents may well ask “Why not?”
For MSM to have any credibility and respect they will need to have an answer. To say “it has always been this way” simply does not cut it in the digital paradigm because the opportunities that the paradigm offers means that it doesn’t have to be “this way”.
Simply extending the scope of the catchment by including previously excluded platforms such as streaming and on-demand services is not a proper answer because it assumes the validity of a pre-digital regulatory model based on a specific technology that had been a matter of State interest for some time.
One of the realities of the new paradigm is that of the democratisation of information. More information is available than ever before, enhanced by the utility of search engines. In addition information is further democratised by virtue of the fact that with interactive sites everyone can become a publisher and may put a point of view online to an audience that may or may not be interested in it.
To attempt to develop a structure for the consideration of media regulation I suggest the following questions need to be asked and answered.
The answers will then inform the definition of “Professional Media” and indeed whether that term should be retained, and provide signposts for the direction of regulatory development.
The Issues to be Considered
What is the purpose of regulation of media
The answer to this question is assisted by considering earlier work in this area.
In its News Media meets New Media report the Law Commission settled on this outline of the purpose of media regulation. My comments are in red italics.
The purpose of the regulation of media is to mitigate harm caused to individuals by electronic communications, such as cyber-bullying and harassment, and to provide a safe environment, especially for vulnerable groups like adolescents.
This element is already the subject of the Harmful Digital Communications Act (HDCA) and need not concern us.
It aims to ensure that the media operates ethically, responsibly, and accountably, maintaining standards of accuracy, fairness, and decency.
This element is largely present in the standards that have been set by the New Zealand Media Council and the BSA
Regulation also seeks to protect the public from harmful content, safeguard individuals' rights to privacy and reputation, and ensure that the media does not abuse its power.
Harmful content is addressed by the HDCA and the Films Videos and Publications Classification Act. A censorship regime is not envisaged within the scope of the Discussion Document
The other elements are covered to an extent by the Privacy Act and the Common Law. Media abuse of power is an appropriate element for oversight
Additionally, it aims to balance the protection of individuals with the importance of freedom of expression and to foster a diverse and robust media environment that supports democratic processes by providing reliable information and holding power to account.
This element recognizes the importance of the media in a liberal democratic society and emphasizes the significance of the Fourth Estate (to be discussed below)
Further granularity is assessing the purpose of regulation can be derived from a consideration of the purposes of the Broadcasting Standards Regime which can be summarized as follows:
Protecting the Public Interest
Ensures content is appropriate for different audiences, including children.
Protects against offensive, harmful, or misleading material.
Maintaining Accuracy & Fairness
Prevents misinformation and misleading content, especially in news and current affairs.
Requires fair treatment of individuals and organizations in media reports.
Upholding Free Speech While Preventing Harm
Balances freedom of expression with societal standards.
Prevents incitement to violence, discrimination, or undue offense.
Regulating Content for Different Audiences
Enforces classifications, warnings, and watershed periods for age-appropriate content.
Protects children from exposure to harmful material.
Addressing Complaints & Accountability
Provides a framework for public complaints about breaches of broadcasting standards.
Holds broadcasters accountable through the Broadcasting Standards Authority (BSA).
Thus the BSA focusses upon the suitability of content, especially for children, ensuring accuracy and fairness as well as adopting a balanced approach to freedom of expression whilst preventing serious harm and dealing with complaints. The BSA publishes various standards which underpin these broad purposes.
A Purpose for Regulation
From these examples the purpose of regulation may be stated as:
· Recognising that there is a public interest in ensuring that the delivery of media content adheres to certain minimum standards
· Ensuring that media organizations, and especially news media organisations operate ethically, responsibly, and accountably, maintaining standards of accuracy, fairness, and decency.
· Balancing protection of freedom of expression against incitements to harm
· Holding those regulated to account by means of a Complaints process and enforcing classifications, warnings and watershed periods for age-appropriate content
· Recommending proper standards for content delivery which recognizes the interests of various audiences including children while at the same time ensuring that the freedom to express views via content as well as receive views via content
What is it that is to be regulated?
Because broadcasting was the subject of significant State control, there was a concurrent duty on the State to address issues of content quality. This theory was transferred to the Broadcasting Act 1989 and underpinned the Broadcasting Standards Authority.
An important element in the way that content is provided per medium of broadcasting is its availability to the public at large through State supervised communications protocols.
Provision of content on demand or by way of streaming lacks this quality. This is because delivery via Internet protocols, based on the concept of permissionless innovation and development, has never been subject to State control.
Thus, care must be taken in expanding what it is that is to be regulated. A conservative approach that retains some relationship to existing elements should be preferred lest the scope of what is to be regulated is excessive and intrudes upon areas where the State has little or no legitimate interest.
A very widely scoped starting point is to consider delivery of content that may be provided by broadcast, online or on demand.
There is an argument to exclude delivery of content such as news, current affairs, comment and opinion or entertainment given where that is the content provider’s principal business purpose.
The reason for this is that news media are already subject to a voluntary regulatory scheme – the New Zealand Media Council (NZMC).
Furthermore the content should not include material provided by social media platforms or search engines. The reason for this is that social media content is largely created by users for a limited audience. Search engines aggregate content.
To further limit the scope of the regulatory target, the focus should be on those who are in the business of providing content, maintaining the focus on those providers who were subject to the Broadcasting Standards Authority and extending the scope, in a limited way, to other providers.
That leads to the next question.
Who is to be regulated?
Regulation should be directed at corporate bodies or organisations that are in the business of providing content either by broadcast, online or on demand subject to the exceptions for news media, social media and search engines.
The business must have principal business operations and a permanent place of business in New Zealand. I suggest this limitation because if there is an extraterritorial element it raises jurisdictional issues that would complicate the framework. If a provider has a physical business presence in New Zealand then jurisdiction does not become an issue.
Furthermore regulation should not be imposed upon a provider merely because the content provided comes from off-shore but targets a New Zealand audience by way of geo-discrimination.
Thresholds?
In a mandatory regulatory system there is a case to set thresholds for a business to attract the attention of a regulatory scheme
To ensure that major content providers are the subject of regulation there should be an income threshold of $NZ 2 million to engage compulsory regulation. The Safe Online Services proposals were based on audience reach or subscribers in New Zealand. An income threshold focusses attention upon the business of content provision.
In that regard there is an argument that can be mounted that there should be some audience reach or threshold. That threshold should be sufficiently large to reflect the “availability to the public” that was an inherent element that underpinned broadcasting.
Otherwise submission to or participation in the regulatory framework should be voluntary.
Alternatively the regulatory model may be self-regulatory in nature, akin to NZMC with voluntary membership
What is the scope of regulation and the “who” to be regulated?
By now the scope of regulation should have become clear. News providers are not included. Social media, messaging and search engines are not included. In addition content that boosts or seek commercial engagement, for example business websites or commercial websites or similar platforms should not be included.
This reduces the scope to content that has an entertainment or informative/educative aspect that is not associated with a strictly news dissemination business
The answers to the questions posed provide an insight into settling upon a definition of “Professional Media” – the term used in the Discussion Document – although it may well be that another term may be more appropriate.
I shall now turn to the definitional problems that have been raised in the Discussion Document and once that has been considered I shall propose a settled definition of the media bodies that may be the subject of the regulatory framework.
Definitional Problems – What is “Professional Media”
Ostensibly the proposals in the Discussion Document extend to cover “professional media”
The Interim Regulatory Impact Statement does not provide a precise definition of "professional media" but outlines the intent and scope for further work to determine its parameters. The intent at this stage is to exclude social media and other online platforms hosting user-generated and non-curated content. The document suggests that "professional media" would encompass:
New Zealand Organisations: Media organisations that commission, produce, or directly pay for media content and distribute it as their primary business.
Exclusion of User-Generated Content: Platforms that host or provide access to others' content, with no editorial or substantive curation functions, such as search engines and social media, would not be included.
Global Streaming Platforms: Under one of the options considered, it would also include overseas-based media companies with a business presence in New Zealand, such as global streaming platforms like Netflix.
The IRIS indicates that further work and consultation will be required to define the exact scope of "professional media."
It will be clear from the discussion of the purposes for regulation above that global streaming platforms should not be included. Jurisdictional problems alone introduce a level of complexity that would complicate the regulatory model.
A further reason for excluding global platforms is that the New Zealand public has adopted Netflix, Amazon Prime, Apple TV and Disney + (among others) as alternative sources of entertainment.
An intrusive regulatory framework could well work as a disincentive to these organisations to make their content available in New Zealand.
It should be noted that much of the content provided by global streaming platforms is geo-specific. Content that is available on Netflix for US audiences, for example, may not be available to New Zealand audiences. There are content licensing issues that accompany these restrictions.
Thus withdrawing from the New Zealand market – subject to resolution of user contract issues – would not be a complex matter for global streaming platforms.
That said, from a consumer perspective access to a discontinued platform or indeed to streaming platforms that at not geo-targeted to New Zealand can be access using Virtual Private Networks (VPN) or other geo-targeting circumvention devices.
For those reasons I favour a focus upon New Zealand based entities.
In some respects the proposals seem to be putting the cart before the horse and emphasise the inevitable conclusion that a widely scoped content control or regulatory model is proposed.
It will be clear that some of the issues that I have raised in my questions about regulation bring into sharp focus some of the definitional shortcomings in the Discussion Document.
I have suggested above that news media should be excluded from consideration of an entity to be regulated. I shall discuss the definition of news media which may be used in a wider consideration of a proper definition of “professional media” – if indeed that term is to be used.
News Media
Defining News Media
Of assistance in considering this question is the Law Commission Report 128 “The News Media Meets “New Media”
The proposed statutory definition of "news media" in that report includes entities that meet the following criteria:
· A significant element of their publishing activities involves the generation and/or aggregation of news, information, and opinion of current value.
· They disseminate this information to a public audience.
· Publication is regular and not occasional.
· The publisher must be accountable to a code of ethics and to the News Media Standards Authority (NMSA).
This definition was developed in the context of the other recommendations that the Law Commission developed for news media regulation.
The reference to a News Media Standards Authority is no longer relevant although the New Zealand Media Standards Committee has assumed the role of news media regulator.