Opening the first public session of the inquiry into the culture and ethics of the British press, Lord Justice Leveson said that at the inquiry's heart was one simple question: "who guards the guardians?"
That same question is being asked by the Law Commission here, although without the star-studded roll call of witnesses and their high voltage claims of harassment and harm against the British tabloids.
A discussion paper released by the Commission just before Christmas looked into how well the regulatory framework governing the media was working, and concluded that change was needed.
New Zealand media – both print and broadcast – regulate themselves to a degree. Both have codes of practice which emphasise the need for accuracy, fairness and balance. For print journalists this is entirely voluntary; for broadcast journalists the main tenets of the code are set down in the Broadcasting Act 1989.
Complaints must be made first to the publication or broadcaster concerned. Only if the complainant is dissatisfied with the outcome is there a right of appeal to the Press Council, for print media, or to the Broadcasting Standards Authority (BSA).
But this compartmentalised approach is outdated as the demarcation between print and broadcast media no longer applies. Newspapers have websites posting video, and television and radio channels have websites posting text. In the field, print journalists film video and television journalists go back to their desks and write blogs.
It's a technological and content blur, and the regulations haven't kept up. For example a complaint about an unfair or inaccurate story on TV3 will be considered by the BSA, but the same story appearing on TV3's website will not. Material shown on the internet is outside the BSA's jurisdiction.
The Press Council has extended its jurisdiction to include audio-visual content on its members' websites but it too faces problems. Should it order the removal of potentially damaging content from web archives years after the original story's news value has passed? Should complaints be accepted beyond the normal 30-day limitation if the material is still available online? Do online stories have a different standard of fairness and balance?
Then there's a whole world of bloggers and citizen journalists who compete with, complement and often feed the traditional news stream. These "journalists" – ranging from those who look and act very like mainstream media to those who simply vent – currently answer to no one.
The Commission's solution is a new single regulator created by statute to which all complaints about "news media" would be directed. Unlike the Press Council or the BSA, the new regulator could intervene without any complaint being laid and – possibly - even before a story is published where there are concerns about the methods the journalist used to gather information.
The Commission recommends an "independent panel" to appoint members of the new body, with the majority being from outside the industry. It's not clear who would appoint this panel or that such a convoluted appointment process is required. Judges and regulators like the Commerce Commissioner are appointed by the Governor-General on the recommendation of a Minister; none have proved to be toadies.
The Commission offers up two options in relation to the new regime's coverage – one voluntary, the other compulsory.
Under the first, media outlets would elect to be subject to the new regulator in return for the privileges and exemptions granted to the news media. These privileges include access to Parliament and the courts, and special rights under the Privacy Act, the Copyright Act, the Defamation Act and the Human Rights Act.
My best guess is that online news services such as Scoop or Interest.co.nz will opt in as they operate much like regular media and there will be brand and credibility advantages in being part of the club. But for the bloggers, the benefits associated with regulation may not be so relevant and they may decide that it is not worth the bother.
The alternative, then, is compulsion. But this would require drawing a line between those media who must be regulated and those who can remain unregulated. The Commission accepts this is tricky and could well end up with the system we already have. So the voluntary regime looks likely to win out.
One flaw in the Commission's logic is that it advocates for a second regulator to manage complaints about entertainment as opposed to news and current affairs. But this glosses over the high level of convergence between the two spheres. Is an interview with the latest movie star on Close Up really news? Or an exposé about food safety on Target really entertainment?
Overall, however, the Commission's report is a thoughtful attempt to wrestle with the challenges of the new media. Submissions close in March. If you want to ensure the watchdogs are watched, then watch what happens after that.
The information in this article is for informative purposes only and should not be relied on as legal advice. Please contact Chapman Tripp for advice tailored to your situation.