This post from the Law Commission looks at the Review of Regulatory Gaps and the New Media issues paper.  Please feel free to join the discussion

Can the term "news media" be legally defined?

If we accept that, for the moment at least, there continues to be a role for the “news media”, and that there is a public interest in conferring them with special legal privileges matched by countervailing accountabilities, the question then arises, how do we define this group?
Before the advent of the internet there was no practical necessity to provide such a definition: the news media simply comprised the collection of state-funded and private broadcasters and print companies which between them produced the lion’s share of daily news and current affairs coverage in New Zealand.
In the era of the read/write web the news media have of course lost their monopoly on the generation and dissemination of news and comment on public affairs. They now compete with a range of new digital publishers, including news aggregators and public affairs bloggers who are undertaking similar activities and performing many of the democratic functions formerly associated with "the Press".
Given the evolving and symbiotic relationship between traditional and new media in the digital environment, attempting to define where one type of speech begins and another ends is fraught with difficulty.  Some may argue it is neither possible nor in the public interest to do so.
However, as discussed in chapter 4 of our Issues Paper we think there are both philosophical and practical reasons for attempting to define the term “news media”.
To begin with, New Zealand's statute book contains multiple references to the "news media" - mostly in the context of providing this class of publisher with specific legal privileges and exemptions (view chapter 3) designed to assist them in carrying out the democratic functions traditionally assigned to "the Press" – such as being the 'eyes and ears' of the public in Parliament and the courts.
These special privileges are typically matched by an expectation of 'responsible' reporting. Sometimes this is seen in an explicit requirement for 'fair and accurate' reporting. Sometimes it is expressed as a requirement of accountability to a code of practice and oversight by a regulatory body.
For example s 198 of the Criminal Procedure Act 2011, which deals with who may stay if a judge makes an order to clear a court, stipulates that for the purposes of this Act a “member of the media means—
(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.
However the Criminal Procedure Act is unusual in providing such an explicit definition. As discussed in chapter 3 of our Issues Paper many statutes provide no definition of who or what is meant by the term “news media'’.
In chapter 4 of our Issues Paper we provide a preliminary working definition of the “news media” for the purpose of the law.
We suggest that in order to qualify for the special news media privileges and exemptions, publishers (who may be corporates or individuals) must have the following four characteristics:
    •    A significant proportion of their publishing activities must involve the generation and or/aggregation of news, information and opinion of current value;
    •    They disseminate this information to a public audience;
    •    Publication must be regular and not occasional; and
    •    The publisher must be accountable to a code of ethics and a complaints process.
It is critical to note that this proposed statutory definition would in no way interfere with or restrict any person's ability to report on news or undertake journalistic work.
 Our proposed schema would not interfere with the fundamental free speech rights of citizens nor would it impose unnecessary constraints on private publishing activities. What it would do is provide some clarity for those publishers who wish to be considered part of the news media and who choose to be constrained by the ethical standards and accountabilities which are supposed to be inherent in that type of speech.
We are interested in your views on our preliminary definition of news media.
Some possible questions:
Are there problems with this proposed statutory definition of news media?
Is the requirement that publishing be regular important? Reasonable?
What about the requirement for accountability to a complaints body? Is this necessary?
Might there be ways to determine who is eligible for the legal privileges and exemptions afforded the news media other than by providing a statutory definition as we have proposed? 


IMPORTANT NOTICE ABOUT THIS DISCUSSION:

This discussion is being advertised across several new media websites – guests to Pundit are very welcome but please be respectful and constructive.

This discussion is part of the Law commission’s consultation on their issues paper “The News Media meets ‘New Media’ : rights, responsibilities and regulation in the digital age - ie. your comments below may be taken into account when the Law Commission writes its final report on Media Regulation issues. The discussion will be moderated, however this moderation will be in accordance with the normal rules of moderation in this forum.

 Several other things follow from this:

 1. The Law Commission may participate in the discussion.  Any comments it makes in this forum should be regarded as provisional as the Commission will not finalise its policies and recommendations to government until it tables its final report which is expected at the end of 2012.

 2.  Parts or all of this discussion may be archived as part of the official record of this Issues Paper Consultation (Practically this means that  if you change your mind on something then you are encouraged to say so and explain why – otherwise your initial view may be interpreted as a kind of submission).;

3.  This discussion may be subject to the Official Information Act – and certainly any remarks made by the Law Commission will be; The Law Commission encourages all participants to also make formal submissions to the Law Commission here.  If you form an opinion on these issues as a result of reading the discussion in this thread then please share that with the Commission directly if you wish.

 - The Law Commission and Tim Watkin (Host and publisher of Pundit)

Comments (9)

by Alastair on March 07, 2012
Alastair

A starter for 10 addressing each of these lines I can see some issues. Some of these may be covered in the report which I should have another read of.

•    A significant proportion of their publishing activities must involve the generation and or/aggregation of news, information and opinion of current value;

This definition does not apply to a person so much as a publisher. It is relatively easy to identify a publisher as being media - or someone working for a publisher. Where it is tricky is with individuals. And what is happening to the media at present is very much a case of atomisation - regular people are becoming the media. And as they do so they probably do not consider themselves publishers - even though in a sense they are.

Leaving that aside for a moment - assuming we are now talking about which publishers are media - then "the generation and or/aggregation of news, information and opinion of current value"  seems ok at first glance to me.  I am not so sure about aggregators being media however, if that is all they do. I say this realising that Scoop is an aggregator of press releases - that said we also write some news of our own. I suspect that on some level Scoop becomes media because of the later - not because of the former.

At this point the phrase " A significant proportion" could also be problematic - for an aggregator like Scoop - if agggregation were removed from the definition. A publisher that does a lot of fictional content for example but also has a small sideline in non-fiction and news would still me media. I do not think the proportion of activity involved is very relevant.

    •    They disseminate this information to a public audience;


I assme this includes a select group of subscribers which begs the question what is a public audience. Any audience contains members of the public. If someone produced news from the Mason's or the Union Movement is that still public. I would argue that it is but it is not altogether clear. 

    •    Publication must be regular and not occasional; and

 

This I disagree with. And at this point perhaps the issue of "organisational" classification vs individual classification comes into relief. I agree that for an organisation to have rights of media attached to people it appoints as reporters then regular publication ought generally (but perhaps not always) be required. E.G. what about a special purpose documentary team - clearly that is media  - but pubication is not regular it probably in fact will only be once. And yet its employees should be regarded as media.

With individuals it gets harder - especially if you wonder how regular is regular. Once a month. Once a year. An individual who has published news in the past - perhaps some time ago - should in my view be able to take up the pen and report on a trial for a blog. In fact it is desirable that they do so. And this is allowable under the Criminal Procedure Act at the discretion of the Judge. (I note also that this is a discretionary provision which Scoop has used to get accreditation to cover trials on a couple of occasions - as you know we are not subject to the BSA or the Press Council. In bothe cases the individuals were effectively granted "organisational" accreditation based on a request from me and a promise to supervise.) However I think that an appropriately skilled freelancer (i.e. member of the public) should also be able to get accreditation if they can convince a judge - and at present they can.


    •    The publisher must be accountable to a code of ethics and a complaints process.


This seems on its face to include an internally constructed one.  I do not think the definition should require adherence or membership of any particular body. Especially if that body is able to decide who is and who isn't a member.

I.E. in the event that we get a single media regulator then consent to being governed by that regulator should not be a qualifying factor in being considered News Media. 

Conclusion.

This is hard. I am in too minds about this I almost think that it is appropriate to allow a subjective determination based on the quality of the information which claims to be news to be used to determine who news media are. I.E. if what they do is news - "news, information and opinion of current value;"  then they are News Media. Regular or occasional. To a public or private group and whether subject to a code of ethics or not.

I appreciate that this is highly undesirable in many ways as how can you determine that in advance of publication and make decisions about whether someone qualifies for some priviledge or not. However this need to determine in advance does not necessarily apply to all use cases of the definition.

SUGGESTION:

Perhaps the solution is to add a catch all provision to the definition that allows judicial discretion whenever considering the definition.

... or anyone else organisation or individual who on the basis of subjective factors can be identified as News Media.

Alastair Thompson

Editor

Scoop.co.nz

 


by Graeme Edgeler on March 07, 2012
Graeme Edgeler

Is a significant proportion of what TVNZ does "involve the generation and or/aggregation of news, information and opinion of current value"?

They have six channels. Most never air news, information and opinion of current value (I assume of current value applies to each of new, information, and opinion, but it should be made clear). One airs quite a bit of news (especially if you include BBC World overnight), but it's well under half for that channel, so probably maybe somewhere near 10-15% over their business as a whole. Is this significant enough?

Al: And this is allowable under the Criminal Procedure Act at the discretion of the Judge. (I note also that this is a discretionary provision which Scoop has used to get accreditation to cover trials on a couple of occasions - as you know we are not subject to the BSA or the Press Council. In bothe cases the individuals were effectively granted "organisational" accreditation based on a request from me and a promise to supervise.)

It isn't yet in force, so I find this unlikely, but I'm still glad I got them to add it :-)

by Graeme Edgeler on March 07, 2012
Graeme Edgeler

Further on the "significant proportion" bit. I find it difficult to conceive of why a newspaper bought by a massive puublishing house, but which is the only newspaper they own, should be precluded from the definition of news media, but that same newspaper, if owned by someone else would be covered.

I said it elsewhere, but all journalism should be protected, and be entitled to rely on the privileges (if any) we accord journalists. I do not see how proportion, or regularity should have anything to do with it?

by Scott Chris on March 07, 2012
Scott Chris

Can the term "news media" be legally defined?

Presumably what you mean by 'legally define' is coming up with a definition which is understandable and seemingly accurate to the greatest number of people possible.

Accordingly, I'd say that if you primarily make your living providing a narrative of current events, then you are part of the news media, as is the business that pays you.

by Alastair on March 07, 2012
Alastair

I don't think professional media are the only media.

Media is increasingly amateur and amateur media can as good or better than professional media. News Media is for the most part professional - but there are many examples of poeple who are clearly media who do not primarily make a living from their media activities.

Many of the contributors to this blog may be in this category and yet unquestionably personally and individually members of the News Media.

Or to take another example David Farrar who was fairly recently named one of the most influential members of the News Media. 

by Alastair on March 07, 2012
Alastair

@Graeme - So the Criminal Procedure Act has been changed but is not in force.

by Graeme Edgeler on March 08, 2012
Graeme Edgeler

@Alistair, actually, I've mislead you, whilst most of the Criminal Procedure Act is not yet in force, the bits we're talking about are. It only happened on Monday, however, so I suspect I'm still pretty safe in saying your reporters probably haven't relied on it yet.

I would also note that the Criminal Procedure Act is a new law, not an amended one. It replaces large parts of the Crimes Act and Summary Proceedings Act, making them a lot simpler (for the most part, and once we all get used to them), and more consistent. This has been needed for a long time, but there remain a number of fishhooks.

by Scott Chris on March 08, 2012
Scott Chris

Many of the contributors to this blog may be in this category and yet unquestionably personally and individually members of the News Media.

Alistair, I think its an easier distinction to make between professionals and non-professionals than it is to try to include anyone who simply conveys news. The second you type something or open your mouth in a public forum you are part of the news media by your definition. (brings to mind Bowie's 'all the young dudes', except most of us ain't so young these days)

Regarding partisan cheerleaders such as David Farrar and Anthony Watts, wouldn't you at least have to pretend to be objective in order to qualify to be part of the news media? Perhaps I should add that to my proposed definition. 

by Alastair on March 08, 2012
Alastair

Objectivity is definitely not a characteristic of all media I would suggest.

And in my mind the objective here is not so much about making easy distinctions as it is about making distinctions which are in the public interest.

There are a class of citizen journalists who do not do so professionally - but who nevertheless do do real journalism. But journalism in itself is not the only for of news - and arguably some things which are not journalism are still news. Some Partisan cheerleaders for example also convey a fairly large amount of news.

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