Media Reform Proposals: Regulation Part 2
In which suggestions for a regulatory framework are put forward and discussed
This is the second part of my examination of the proposals for Media Regulation contained in the Ministry for Culture and Heritage paper on Media Reform.
This second part commences with a discussion of what amounts to broadcasting and goes on to consider the jurisdiction of the Broadcasting Standards Authority (BSA)
I propose a definition for Professional Media (a term referred to by unsatisfactorily defined in the Media Reform Paper) and examine earlier proposals for media regulation. It may not be widely known that the current issues were examined over ten years ago by the Law Commission.
I move on to consider the various regulatory options proposed, critique the reasons for regulatory extension and move to discuss and exemplify anomalies arising from the proposals along with potential unintended consequences including a broadening of the “Fourth Estate”
I conclude the narrative discussion with some proposals and observations on a reformed regulatory structure.
The final section of this article reproduces the questions posed in the Media Reform Paper (the Bureaucracy seems to prefer this way of doing things – it allows them to frame and direct the discussion in a particular way that limits detailed and informed discourse) along with my answers.
Broadcasting
The Broadcasting Act 1989 is the principal piece of legislation regulating broadcasting.
Broadcasting is defined in the Act as
“any transmission of programmes, whether or not encrypted, by radio waves or other means of telecommunication for reception by the public by means of broadcasting receiving apparatus but does not include any such transmission of programmes—
(a) made on the demand of a particular person for reception only by that person; or
(b) made solely for performance or display in a public place”
The elements of broadcasting are
1. Transmission of programmes (whether or not encrypted)
2. By radio waves or other means of telecommunication
3. For reception by the public by means of broadcasting receiving apparatus
Broadcasting does NOT include transmission of programmes made on the demand of a particular person for reception by that person
Or
Programmes that are made solely for performance or display in a public place
The technological model envisages programmes transmitted in a certain way for reception by the public using broadcasting receiving apparatus. Transmission may be by radio waves or other means of telecommunication.
Telecommunication is not defined but transmit on demand is defined as meaning
“the transmission of content, by any means, made on the demand of a particular person for reception by that person”
Broadcasting envisages a public audience equipped with a receiving device like a radio or TV set. It is a one-to-many model of content distribution.
On demand content is different. The consumer decides whether he or she wishes to access the content. It does not require radio waves although an Internet connection could possibly involve telecommunications.
The user decides whether or not to access the content. With broadcasting the only way this could be achieved is by station selection or turning the reception device on or off.
Current Jurisdiction of the BSA
The proposed role and scope of the jurisdiction of the Broadcasting Standards Authority (BSA) are as follows:
Jurisdiction:
The BSA has jurisdiction over entertainment content, including all non-news and non-current affairs programming.
The BSA's jurisdiction covers all forms of linear broadcasting, but excludes non-linear platforms.
The BSA should has concurrent jurisdiction with the NZMC over news and current affairs in relation to the standards of good taste and decency, and the protection of children.
Functions:
The BSA enforces standards for entertainment content, ensuring that it meets community expectations and complies with relevant codes of practice.
The BSA handles complaints related to entertainment content, providing a mechanism for the public to raise concerns and seek redress.
Complaints Process:
Complaints about entertainment content are first be directed to the broadcaster, with recourse to the BSA if the complaint is not resolved to the complainant's satisfaction.
The BSA has the authority to investigate complaints, make determinations, and require remedial action.
Standards and Codes of Practice:
The BSA develops and maintains codes of practice for entertainment content, in consultation with the industry and the public.
These codes cover issues such as decency, fairness, accuracy, and the protection of children.
Powers:
The BSA has the power to require broadcasters to take corrective actions, such as broadcasting apologies, corrections, or right of reply.
Independence and Accountability:
The BSA operates independently of both the government and the broadcasting industry, ensuring impartiality and public trust.
The BSA is transparent in its operations, publishing its decisions, annual reports, and other relevant information.
Funding:
The BSA is funded by the State and by the broadcasting industry, with contributions from broadcasters based on their revenue or other appropriate metrics.
I have embarked upon this discussion because it demonstrates the scope of regulation as it applies to broadcasting content only. This is helpful also in determining the scope and shape, as well as the applicability, of any future regulatory model
A Proposed Definition for Professional Media
The time has now arrived to settle a definition for “professional media” that would be subject to a regulatory model.
I shall first list the elements all of which must be satisfied:
A body corporate or other business entity carrying on business and domiciled in New Zealand.
A body corporate that provides content to a New Zealand audience but does not include:
a. A news media organization which has 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 New Zealand Media Council (NZMC).
b. A provider of a social media platform
c. A provider of a messaging platform
d. A provider of a search engine
A body corporate that has a minimum before tax income of $2 million and that has an audience of 100,000 people by subscription or otherwise.(If the model is to be compulsory)
A body corporate whose means of providing content is by way of broadcasting, on line streaming or on demand services.
A body corporate or individual who voluntarily wishes to subscribe to the regulatory model proposed.
I shall now proceed to consider the issue of the regulatory model itself. The discussion commences with an overview of earlier proposals and then proceeds to a consideration of the options advanced in the Discussion Paper.
Earlier Proposals for Regulation
The Law Commission carried out a detailed examination of the regulation of news media in the Digital Paradigm in its paper “News Media meets ‘New Media’: Rights, Responsibilities and Regulation in the Digital Age” (NZLC R128, 2013). Associated with this study the Law Commission issued a Ministerial Briefing Paper in answer to a request from the Minister entitled “Harmful Digital Communications: The adequacy of the current sanctions and remedies” (NZLC MB3 2012
This latter paper led to the enactment of the Harmful Digital Communications Act 2015. Because of the unique way that the legislation is structured to provide remedies for publication of content online where no remedy exists in the “real world” the Act is an example of internet exceptionalism.
Other legislation that addresses issues of content availability are the Films, Videos and Publications Classification Act 1993 and the provisions of the Customs and Excise Act 2018.
Another recent regulatory model as proposed by the Department of Internal Affairs under a discussion paper entitled “Safer Online Services and Media Platforms.” The objective of this work was to improve the regulation of online services and media platforms to boost consumer safety for all New Zealanders, with a particular focus on minimising content harms for children and young people.
It was abandoned in 2024.
Regulatory Options Considered
The IRIS proposes three sets of regulatory choices for a potential new regime for professional media:
Regulatory Coverage:
Option A1: Counterfactual (Broadcasting Only): Maintain the status quo, limiting regulation to broadcast media only.
Option A2: Expand Coverage to New Zealand Professional Media: Broaden the remit to include all New Zealand-owned/operated professional media, regardless of form or distribution method.
Option A3: Expand to Professional Media Platforms Operating in New Zealand: Further expand the remit to include both New Zealand-based and overseas-based professional media companies with a business presence in New Zealand.
Role of the Regulator:
Option B1: Counterfactual: The regulator retains existing functions, including standards, research, advisory opinions, and complaints unresolved by the relevant media organisation.
Option B2: Proactive Regulator: The regulator would be available as a 'first port of call' for complainants and could initiate inquiries into potential compliance issues.
Option B3: Backstop Regulator: Industry self-regulatory bodies handle complaints at first instance, with the regulator acting as a 'last resort' for unresolved complaints.
Option B4: Authorising Regulator: The regulator focuses on compliance with complaints processes and does not determine complaints about content, leaving this to industry bodies.
Appeal Rights:
Option C1: Counterfactual (Appeals from Regulator Only): Maintain the current legislative settings, allowing appeals only from the regulator's decisions to the High Court.
Option C2: Appeals to Regulator (and then High Court): Allow complainants to appeal decisions of self-regulatory industry bodies to the regulator, and then further to the High Court, subject to appropriate grounds.
I shall offer my proposals for a regulatory model later in this commentary. The problem with the IRIS proposals is that they are all premised on a modified BSA model which is effectively a way to strait-jacket paradigmatically new technologies into a old framework – a classic example of McLuhan’s comment “‘We look at the present through a rear-view mirror, so that we march backwards into the future”
Critiquing the Reasons for Regulatory Extension
I shall now proceed to a critique of the rationale for regulatory extension which lacks a thorough consideration of the reasons for and scope of regulation and especially is developed without a clearly defined target for regulation.
It is hoped that the proposed definition advanced above clarifies this absence and provides some context for my critique.
I have taken the elements set out and my responses are noted in red italics. I begin with some introductory observations.
The underlying theme for these reasons is that “traditional broadcasting” remains as a regulated source of information whereas “new media” and streaming sources are not.
As noted the State has long had an interest in ensuring a level of control over the content of broadcast media. Because of the decline in broadcast media, and the migration of audiences to other platforms, the State sees content and quality control slipping asway from it.
This effort to widen the scope of media regulation can be seen as a form of “Safer Online Services Lite” and an effort to extend regulatory control over a large swathe of Internet based content that has long been the desire of Governments the world over. Some, like China and some Middle-Eastern States have met with a measure of success.
But in reviewing those governments that have been successful there must be an understanding of the context of their regulation and the fact that those states are authoritarian/totalitarian States with little or no understanding of the importance of freedom of expression in a liberal democracy.
Inconsistent Coverage: The current broadcasting standards regime provides inconsistent and increasingly limited coverage of the media that New Zealanders engage with, particularly as audience preferences shift towards online and on-demand content.
This reason seems to assume that there is a case for regulating any content delivery system that New Zealanders wish to access. The State does not have the traditional role with “new media” that it had with broadcasting, and a strong case would have to be developed to justify State intrusion into the new media environment
Regulatory Disadvantage: Linear television and radio are at a regulatory and financial disadvantage compared to online and on-demand platforms, which are not subject to the same regulations.
There is no regulatory disadvantage because the State has had a traditional role in the regulation of broadcasting. Until 1972 when the then Labour Government floated the idea of newspaper content regulation which resulted in the formation of the voluntary Press Council (now the New Zealand Media Council) there was no concerted effort at press regulation other than issues surrounding foreign ownership of media companies.
The State has no traditional interest in online and on-demand platforms and this was made clear by the specific exception contained in the definition of broadcasting contained in the Broadcasting Act 1989.
Fragmentation: The existing system is fragmented, with different regulatory focuses and coverage creating gaps and duplication, impacting both media and audiences seeking to raise concerns.
Fragmentation (so-called) is an element of the disruptive nature of the Digital Paradigm. Because the change is paradigmatic in nature and impacts upon and influences the behaviour of audiences, regulatory adjustments are retrospective, hearkening to an earlier paradigm that is no longer relevant.
If audiences are concerned about content they need not subscribe to the service in question and there is always the off switch. Audiences are not compelled to watch or listen.
Changing Audience Preferences: There is a significant shift in audience preferences towards digital audiovisual media, reducing the reach and effectiveness of the current broadcasting standards regime.
One has to ask why this is so. In my view it has little to do with novelty but with convenience and content quality. Online and on demand services enable the audience to consume content at their convenience. The appointment viewing model of linear TV (for example) is redundant.
The other issue is the variety and quality of content. Broadcasters in New Zealand to recapture their audiences need to make it worth their while content-wise. The constant diet of cooking shows, house and garden shows, “relationship shows” and other reality type programmes must pall after time and drive audiences to other sources which have a greater variety of content.
Declining Revenue: Broadcasters' revenue is diminishing due to changing audience preferences, impacting the Broadcasting Standards Authority's (BSA) operating budget, which is partially funded by a levy on broadcasters.
This may be a problem that impacts upon the BSA, but boosting BSA revenues is hardly a justification for expanding the scope of a regulatory model. As to declining revenue, perhaps broadcasters should look to competing with online and on demand services. Some already are by offering an on-demand alternative.
Global Comparisons: Other jurisdictions are also grappling with content regulation in an age of media globalisation and convergence, and declining trust in media content and organisations.
Just because other jurisdictions are facing the same issues of content regulation seems to assume a justification for content regulation rather than establishing a rationale for content regulation.
In an environment where the Internet has enable the democratisation of information there must be a compelling rational for State interference with “new media”
Opportunity for Coherent Regulation: Extending the regulatory environment provides an opportunity to ensure a regulator has a more coherent remit to administer potential regulation in respect of 'new' media, including online and on-demand platforms.
Once again the rationale for regulation is assumed rather than justified. Where is the need for a regulator have a more extensive remit beyond that already enjoyed? Why should the State and a State regulator involve itself in “new media” above and beyond what may or may not be objectionable? This has not been properly nor persuasively articulated
Industry and Audience Interests: A platform-neutral approach to media regulation would increase consistency and durability as technologies continue to converge and change, supporting audience interests and ensuring quality and trusted content.
Once again this assumes the importance of a regulatory model rather than providing a reason for regulatory extension
Fiscal Sustainability: The BSA's reducing levy revenue puts pressure on the government to top up its budget, and extending the regulatory environment could help address this issue.
Regulating additional platforms should not be a rationale for extending State interference with communications technologies – in this respect see my comments on item 5.
Stakeholder Support: There is broad agreement among industry and regulator feedback that modernising media regulation is necessary and overdue, with support for a more unified and updated regulatory approach.
There can be no doubt that media regulation needs to be modified but this is no modification proposal – it is a significant extension of State power and interference in new digital media.
Rather than require a regulatory model that essentially involves the State in monitoring and dictating how media organisation do business the market place should decide.
By all means continue the existing regulatory models to broadcast and news media. That will provide a basis for those who want the protections afforded to journalists and will provide a foundation for re-establishing media trust
Anomalies and Unintended Consequences
The proposals in the Discussion Document and the IRIS will, if adopted, present a number of anomalies in the news media ecosystem and could, if adopted, vastly expand the cohort of those who are considered journalists.
These anomalies can be mitigated or removed if news media are excluded from the operation of the regulatory model proposed.
Journalists and Journalistic Privilege
The question of who or what is a journalist is impacted by these proposals. Currently reporters who are employed by a newspaper or similar publication that is a member of the New Zealand Media Council as well as a broadcast reporter whose organization is automatically subject to the Broadcasting Standards Authority are considered a “member of the media” for certain official purposes.
Members of the media are entitled to sit in a closed court and may not be excluded unless certain limited conditions are fulfilled.
A member of the media is defined in section 198(2) of the Criminal Procedure Act 2011 as
(a) a person who is in the court for the purpose of reporting on the proceedings and who is either subject to or employed by an organisation that is subject to—
(i) a code of ethics; and
(ii) the complaints procedure of the Broadcasting Standards Authority or the Press Council; or
(b) any other person reporting on the proceedings with the permission of the court.
The issue of defining a journalist was considered by Asher J in Slater v Blomfield [2014] 3 NZLR 835. The issue was the availability of the protection of the provisions of section 68 of the Evidence Act 2006 which protected journalists from compelled disclosure of their sources.
The case defined a journalist as a person who, in the normal course of their work, might be given information by informants with the expectation that the information may be published in a news medium.
This definition focuses on the function of gathering and disseminating news rather than the form of presentation or employment status.
It includes bloggers who regularly disseminate news to a significant audience, provided they meet the criteria of regularity, consistency, and the application of journalistic skills.
The case held that to claim protection under section 68 a journalist must meet the following criteria:
Promise of Confidentiality: The journalist must have promised the informant not to disclose their identity.
Medium of Dissemination: The medium used by the journalist must disseminate information to the public or a section of the public.
Content of Dissemination: The disseminated content must be news and observations on news.
Journalistic Work: The person claiming to be a journalist must, in the normal course of their work, receive information from informants with the expectation that it will be published in a news medium.
Another helpful aspect of the case of Slater v Blomfield lies in the approach that was adopted to the definition of a news medium as a medium for the dissemination to the public or a section of the public of news and observations on news.
This definition includes various forms of media, such as traditional newspapers, television, radio, and blog sites, provided they regularly disseminate news and observations on news to the public.
The focus is on the regular function of disseminating new or recent information of public interest, rather than the specific format or quality of the medium.
This approach could well be of assistance in considering the definition of “professional media.”
The case of Hager v Attorney-General [2016] 2 NZLR 523 is also instructive. The key issues in that case involved the validity of a search warrant given that it was not disclosed in the application that the information sought might be subject to journalistic privilege under section 68 of the Evidence Act.
The case defined a journalist by referencing section 68 of the Evidence Act. In the context of the case a journalist was a person who, in the normal course of their work, may be given information by an informant with the expectation that the information may be published in a news medium.
The definition of news medium echoes that adopted by Asher J as a medium for the dissemination to the public or a section of the public of news and observations on news.
This definition underscores the role of various platforms and channels used to distribute news and related commentary to the public.
Neither of the cases contain any significant reference to the works of the journalist as a profession or calling other than the phrase “in the course of their work”. Perhaps that should be a factor to be considered in the distilling of a definition of professional media.
The Unique Role of the Fourth Estate
Associated with the issue of journalists, their protections and the role that they play is the issue of the Fourth Estate.
In essence the Media Council and the BSA have regulated the activities of the Fourth Estate as well as some of the “entertainment” aspects of broadcasting. In this section I consider the unique role of the Fourth Estate in the context of the Media Reform Proposals and the regulatory structure discussed.
For a considerable part of New Zealand’s media history, elements of mainstream media have been the subject of some form of regulatory intervention.
For example in 1965 the New Media Ownership Act restricted ownership of News Media in an effort to keep overseas interests controlling New Zealand newspapers.
The purpose of the Act was to make provision for control by persons domiciled in New Zealand of companies engaged in the dissemination of news in New Zealand. It was introduced by the then National Government. The 1965 Act was repealed by the News Media Ownership Repeal Act 1975 introduced by the Labour Government.
Radio and television have been the subject of State intervention under successive iterations of broadcasting legislation. Radio and television are still under a degree of State control by means of the requirement for broadcasters to have a licence to do so.
Provision was first made for the licensing of private radio and television stations in New Zealand by the Broadcasting Act 1976, although the first private television channel didn't launch until 1989.
News media have been referred to as the Fourth Estate. This term refers to the press and news media both in explicit capacity of advocacy and implicit ability to frame political issues.
The Fourth Estate and its members enjoy certain privileges that are not available to “citizen journalists.” They are able to claim privilege in respect of confidential sources. They can, upon compliance with the provisions of the Criminal Procedure Act, sit in on closed as well as open Court hearings although their ability to report those proceedings may be the subject of non-publication orders. They are entitled to membership of the Press Gallery and to report on the proceedings of Parliament and attend press conferences called by Members of Parliament. I have discussed this in the preceding section.
The News media are subject to regulatory controls. I have referred to the BSA and the New Zealand Media Council. These organisations ensure the integrity and reliability of news reporting and dissemination undertaken by the Fourth Estate.
The importance of the Fourth Estate as a reliable and trustworthy source of information was underlined during the course of the Covid crisis by the establishment of the Public Interest Journalism Fund which was designed to support New Zealand’s media to continue to produce stories that keep New Zealanders informed and engaged, and support a healthy democracy.
These factors distinguish the Fourth Estate – often described as Mainstream Media or MSM – from bloggers and other types of content creators.
The unique position of MSM surrounded by specialist regulatory mechanisms designed to maintain the quality and reliability of the information conveyed means that it is not susceptible to being joined in with other forms of content providers. Although the proposed regulatory framework refers to professional media, I suggest that the proposal intrudes where the State has not travelled before in that compliance would be monitored (and enforced) by the Regulator rather than by a truly independent body.
There is no justification offered for such a wide-ranging and sweeping approach to news media platforms and their content along with other content creators and without clear justification for interference with the Fourth Estate there seems to be little reason for incorporating it in the Regulatory framework.
Resolving Anomalies
Under the present regulatory system, TVNZ, Sky and TV Three operate traditional broadcast services which are subject to the BSA as well as streaming services which are not.
Thus content which appears on the streaming service that is not broadcast via the traditional service is not subject to the BSA complaints process. However it is subject to the NZMC complaints process.
This anomaly provides some assistance in defining “professional media” that is not as wide in scope as that envisaged in some of the options put forward.
Thus professional media should cover a traditional broadcaster which, in addition to broadcasting within the provisions of the Broadcasting Act also provides streamed or on-demand content.
That would not capture content providers who only stream or offer on-demand content this maintaining the integrity of the original purview of the Broadcasting Act.
To do otherwise would be to unreasonably extend State interference in the dissemination of information.
It is clear from the IRIS that this Media Reform Proposal is a stripped own version of the Safer Online Services work that was halted in 2024 and is evidence of a continued and intrusive State involvement and interference in the dissemination of content and information.
Proposals for a Reformed Regulatory Structure
Bringing the various themes together which have been discussed in this paper I propose the following elements for a reformed regulatory structure.
There are two major models that can be considered.
Both models would have the same elements.
The first model proposed is a self-regulatory one akin to the NZMC, membership of which would be voluntary.
The second model is a hybrid one, containing elements of the current BSA model with modifications.
Given that the media landscape has changed so dramatically with the onset of the Digital Paradigm, it is my argument that the interest of the State – based as it was on control of the means of broadcasting – has diminished to the point that it should disengage from media regulation.
In the same way that the Press Council made unnecessary a Government establishment of a body to regulate the Press, the time may now have arrived to discard the BSA model and replace it with a self-regulatory model.
This would achieve a number of objectives, not the least of which would be to disengage media from any suggestion of State control or interference and hopefully provide a basis for renewed public confidence in media independence.
1. The name of the regulator – the name Broadcasting Standards Authority does not aptly encapsulate the new regulatory proposals. A name that properly describes the new regulator could be The Online and Broadcast Media Standards Authority (OBMSA). This name could apply to the self-regulatory approach or the hybrid approach
2. The Scope of Regulation – Entities
A body corporate or other business entity carrying on business and domiciled in New Zealand.
A body corporate that provides content to a New Zealand audience but does not include:
i. A news media organization which has 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 New Zealand Media Council (NZMC).
ii. A provider of a social media platform
iii. A provider of a messaging platform
iv. A provider of a search engine
A body corporate that has a minimum before tax income of $2 million and that has an audience of 170,000 people by subscription or otherwise. (For the hybrid model)
A body corporate whose means of providing content is by way of broadcasting, on line streaming or on demand services.
A body corporate or individual who voluntarily wishes to subscribe to the regulatory model proposed.
3. The Scope of Regulation – Content
Any suggestion of content control by the regulator must immediately be put aside. Control of content suggests censorship.
Rather than content the focus should be upon the manner of content delivery and whether that accords with Standards set by the regulator.
Naturally content should comply with standards akin to those adopted by the NZMC but adapted for non-news content.
4. The Method of Regulation – Standards and Complaints
The regulator should develop standards to guide in content delivery expectations and to assist in dealing with complaint.
The regulator should also establish a complaints process and procedure.
The regulatory options envisage a possible appeal process. This is unnecessary. The complaints process – especially in a self-regulatory model – should be summary and should in the main be determined “on the papers”.
Furthermore the introduction of an appeal process adds a level of legal formality which is not consistent with the speed with which information moves in the digital paradigm. Decision regarding content online have to be made with a speed and simplicity of process that reflects the qualities of information in the Digital Paradigm.
Conclusion - Answering the Questions
Modernising Professional Media Regulation
Question 14) Do you agree with the proposal? Why/why not?
I do not agree with the proposal. My reasons can be found in my accompanying detailed submission. See especially the sections dealing with the Digital Paradigm, the issues to be considered for regulatory measures for online content, the section on definitional problems, the anomalies raised by the present structure and the proposals for a regulatory structure
Question 15) Do you prefer another option to address this issue?
Yes. See the detailed submission above and particularly the sections on the purpose of regulation, the definition of “Professional Media” and the proposals for a reformed regulatory structure.
Question 16) Do you agree with the intended parameters of ‘professional media’ used in this proposal? Why/why not, and what would you recommend as well or instead?
The definition of “professional media” in the materials provided is vague and incomplete.
As the documents recognise this is very much a work in progress. Care must be taken not to intrude into “semi-professional” content creators and distributors. Care must also be taken to ensure that the definition of professional media does not widen the scope of those who may be properly described as journalists.
For detail in the submission see the section on definitional problems.
Question 17) Do you agree with the functions identified in the proposal for the regulator? Why/why not, and what would you recommend as well or instead?
No I do not. My proposals for the regulatory model are in the above detailed submission. I refer especially to the entire submission and especially the proposals for a reformed regulatory structure.