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Home > Vol 19, No 1 (2013) > Barrett

New Zealand’s proposed extension of media legal privileges to Web 2.0 media

Jonathan Barrett

Associate Professor
School of Business, Open Polytechnic, New Zealand 

Jonathan.barrett@openpolytechnic.ac.nz

© 2013 Jonathan Barrett
First published in the Web Journal of Current Legal Issues
Citation: Barret J., New Zealand’s proposed extension of media legal privileges to Web 2.0 media, (2013) 19(1) Web JCLI

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Abstract

Following certain bloggers’ flagrant challenges to the judicial power to suppress trial information, New Zealand’s Minister of Justice described cyberspace as “something of a Wild West” and charged the New Zealand Law Commission (NZLC) with investigating the regulation of media in the Web 2.0 era. The NZLC has released an issues paper proposing changes that include a general extension of traditional media privileges to qualifying Web 2.0 media. Given the standing of the NZLC, the depth of its analysis and involvement of interested parties, it is expected that these recommendations will be legislated. Focusing on media privileges in relation to court access, this comment outlines the background to the NZLC’s recommendations and discusses their implications in tandem with related statutory amendments. It is concluded that, while the recommendations represent a step towards a broader acceptance of the role of bloggers and other Web 2.0 media in civil society, few people are likely to be affected. Furthermore, if the New Zealand sector of cyberspace really is a “Wild West”, the recommendations will do little to tame it.

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Contents

1. Introduction

2. Discussion

2.1 Accreditation

2.2 Public interest

3. Likely effect

4. Conclusion

Bibliography

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1. Introduction

The so-called Web 2.0 technology that underpins websites such as Facebook, Wikipedia and Twitter enables users to become participants in online activities, rather than passive consumers of information (see, generally, O’Reilly 2012). In particular, blogging tools allow individuals to become producers of media outputs that historically were the preserve of state or public media corporations. The emergence of Web 2.0 media consequently presents challenges for the administration of justice. On the one hand, certain new media, having gained credibility on a par with traditional media, may reasonably expect privileges extended to traditional media, such as access to closed courts. On the other hand, without professional oversight or codes of ethics, bloggers may undermine the judicial process. Over an extended period, two prominent New Zealand bloggers flagrantly challenged the courts’ power to suppress information in the interests of a fair trial. Under the “Whale Oil Beef Hooked” masthead, Cameron Slater published information that enabled the identification of people whose names were suppressed by judicial order. Blogging as “kiwifirst”, Vincent Siemer published online documents that included a suppressed preliminary judgment relating to a highly contentious possession of weapons trial. Slater was eventually convicted on eight counts of breaching name suppression orders under the Criminal Justice Act 1985 (CJA 1985) s 140(5) (Police v Slater DC Auckland CRN 004028329-9833, 25 August 2010, upheld on appeal in Slater v Police HC Auckland CRI-2010-404-379, 10 May 2011; 8 July 2011). After he was fined NZ$750 plus NZ$130 court costs for each conviction, a total roughly equivalent to £1,000, Slater dismissed the punishment as akin to being flogged “with a wet bus ticket” (Francis 2010). Siemer, however, was imprisoned for six weeks for common law contempt of court (Solicitor-General v Siemer HC Wellington CIV-2010-404-8559, 2 September 2011). It seems likely that the publicity given, in particular, to Slater’s conviction and his response to it prompted Simon Power, then Minister of Justice, to charge the New Zealand Law Commission (NZLC) with reviewing the adequacy of the regulatory environment in which news media operate in the digital era. Issues to be considered included: how to define “news media” for the purposes of the law; the role of existing media regulation bodies; and the effectiveness of “existing criminal and civil remedies for wrongs such as defamation, harassment, breach of confidence and privacy” (NZLC 2011, p 3). After a year’s investigation, in December 2011, the NZLC published a wide ranging issues paper. Public consultation, including online discussions arranged in collaboration with the Public Address blog community, closed on 30 March 2012. A briefing paper and draft legislation was sent to the Minister in July 2012 and a final report is immanent (NZLC 2012, p 4).  The recommendations included in the issues paper supplement recently enacted changes to the conduct of criminal trials under the Criminal Procedure Act 2011 (CPA 2011), including provisions relating to name suppression orders. (CPA 2011 generally superseded CJA 1985 from 5 March 2012.) Among its major recommendations, the NZLC proposed that the term “news media”, for the purposes of legal privileges, should include anyone who engages in news media activity, subscribes to a code of ethics and is answerable under a complaints process. Under this model, a person who, say, regularly aggregates news through Twitter feeds could qualify for media legal privileges in the same way as Television New Zealand. Currently, broadcast media are regulated by the statutory Broadcasting Standards Authority (BSA) and print media by the voluntary industry body, the Press Council.  A new, independent regulator would be established for all news media, although medium-appropriate codes, based on common principles would be established. The NZLC left open for discussion the questions of how the regulator should be funded and whether membership should be compulsory.  

2. Discussion

The NZLC recommendations follow paths New Zealand has already started along. The first is accreditation of media qualifying for statutory privileges, such as presence in a closed court. The second is the widening of the scope of public interest with regard to source privilege, and defences to the torts of defamation and breach of privacy.  

2.1 Accreditation

New Zealand adheres to the principle of open justice (New Zealand Bill of Rights Act 1990 (NZBRA 1990) s 25(a)), so that, as a starting point, “[e]very hearing is open to the public” (CPA 2011 s 196). Nevertheless, a judge has the power to clear a court under certain circumstances (CPA 2011 s 197). However, members of the media may only be excluded on the grounds of the security or defence of New Zealand (CPA 2011 s 198(1), read with s 197(2)(a)(ii)). A “member of the media” is defined by reference to their function (reporting on the proceedings), adherence to a code of ethics, and accountability (under the BSA’s or Press Council’s complaints procedures). However, “any other person reporting on the proceedings with the permission of the court” also qualifies as a member of the media. This may be compared with the corresponding provision of CJA 1985 s 138(3), which granted the privilege to remain in a cleared court to an (undefined) “accredited news media reporter”. In the absence of clarifying case law, Burrows and Cheer (2010, p 443) observe that it was unclear whether “accredited” meant “attached to a particular newspaper or broadcasting corporation” or “recognised”. (1) Whichever interpretation was the more plausible, no formal accreditation procedure existed.  The Family Court, which is closed to the public, but open to “accredited news media reporters” (Care of Children Act 2004 s 137(1)(g)) treats a news organisation as “accredited” if it is subject to a code of ethics or professional standards and a complaints procedure. (The reporters, as contemplated in the legislation must be employees or commissioned writers of the media organisation.) An application for accreditation must be made to the General Manager, District Courts (Ministry of Justice 2012) although this appears to be an administrative procedure, rather than a review of the merits of the application. (Incidentally, concerns are not evident that accreditation of journalists in this way might conflict with the right to freedom of expression under the NZBRA 1990: cf the Zimbabwean case Association of Independent Journalists v The Minister of State for information and Publicity in the President’s Office [2004] ZWSC 140.) Freelance media and others, such as researchers, must seek permission from the presiding judge to be present, on a case by case basis (NZLC 2009). While, as noted, the same grounds for media recognition have been applied to the mainstream courts by CPA 2011, accreditation, as such, continues to apply only to the Family Court (Ministry of Justice 2012). If the NZLC’s recommendations are followed, it seems that formal accreditation of news media – presumably by the new regulator – will be highly desirable if not necessary. Accreditation would facilitate news media qualifying for all journalists’ statutory privileges. Currently, numerous different formulations of “media” or “journalist” are provided by statute. Information privacy is an area of the law which would particularly benefit from a clear identification of news media. Under the Privacy Act 1993, a person who collects information about an identifiable individual must comply with 12 information privacy principles.  A “news medium” engaging in “news activity” is, however, excluded (Privacy Act 1993 s 2).  “News activity” in relation to a journalist is defined as “the gathering of news, or the preparation or compiling of articles or programmes of or concerning news, observations on news, or current affairs, for the purposes of dissemination to the public or any section of the public”. An intention of the part of the journalist to disseminate information collected is critical (Burrows and Cheer 2010). A “news medium” is “any agency whose business … consists of a news activity” (Privacy Act 1993 s 2). While certain bloggers might engage in defined “news activity” the majority of online publications, other than offshoots of traditional media, would probably not qualify for the news media exception “because they are not in business” (NZLC 2010, p 131 fn omitted). Indeed, the common foundation of all manifestations of non-traditional media is amateurism (Atton 2008). A generally applicable definition of news media, as recommended by the NZLC, would bring a desirable coherence to statutory privileges. An additional requirement of accreditation would enable all agencies to readily ascertain whether, say, a blogger enjoys a particular legal privilege.

2.2 Public interest

Defences and privileges based on overriding public interest may currently be claimable by de facto journalists, such as bloggers. Following Reynolds v Times Newspapers Ltd [1998] EWCA Civ 1172, [1999] All ER 609, the responsible journalism defence to libel has been broadly adopted in Commonwealth common law jurisdictions, including, albeit to a limited extent, New Zealand: see Lange v Atkinson [2000] NZCA 95, [2000] 3 NZLR 385. However, in Grant v Torstar Corp 2009 SCC 61, [2009] 3 SCR 640 the Supreme Court of Canada, while noting the attractive pithiness of “a responsible journalism test”, considered it unduly specific in the digital era. Chief Justice McLachlan said (at [96]):

“… the traditional media are rapidly being complemented by new ways of communicating on matters of public interest, many of them online, which do not involve journalists. These new disseminators of news and information, should, absent good reasons for exclusion, be subject to the same laws as established media outlets.”

New Zealand’s Defamation Act 1992, clarifies certain points of law and provides for the statutory defences of truth and honest opinion (ss 8 and 9), but is not a code. Consequently, common law qualified privilege remains the most significant defamation defence for media. New Zealand law is not, however, well developed in this area. Nevertheless, Burrows and Cheer (2010, p 127) conclude “indications are that the [qualified privilege] defence has the potential to grow into a true public interest defence”. Although a New Zealand court has not yet considered Torstar, its informing principle broadly influenced the NZLC’s thinking. Furthermore, NZBRA 1990 s 14 specifies that the right to freedom of expression includes “the freedom to seek, receive, and impart information and opinions of any kind and in any form”.  Focus on the recipients of information and the nature of that information, rather than the character of the gatherer or disseminator of the information, is consistent with freedom of expression jurisprudence in New Zealand (see, for example, Lewis v Wilson & Horton Ltd [2000] NZCA 175, [2000] 3 NZLR 546). The critical point here is that certain information may be of such public interest that whoever publishes it deserves legal immunity. If public interest is the principal consideration, qualified privilege should not be restricted to traditional media.Public interest is also a critical consideration in relation to source anonymity. In New Zealand, journalists’ sources are broadly protected in civil and criminal trials (Evidence Act 2006 s 68(1)). However, that protection is subject to the presiding judge’s assessment of public interest, including “the public interest in the communication of facts and opinion to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts” (s 68(2)). This provision has not yet been tested in relation to Web 2.0 media, but certain bloggers might qualify as de facto journalists. Following the NZLC’s recommendations, all news media should qualify.  A further area where a public interest defence is acutely relevant is the developing tort of invasion of privacy (see Tobin, 2010 for a discussion). In Hosking v Runting [2004] NZCA 34, [2005] 1 NZLR 1, a majority of the Court of Appeal held that a right of action for wrongful publication of private information, separate from that for breach of confidence, exists at common law in New Zealand. Two requirements must be satisfied for an action to succeed. First, “private facts” (facts in respect of which the plaintiff has a reasonable expectation of privacy) must be at stake. Second, the publicity given to those private facts must be of a kind that an objective, reasonable person would consider highly offensive (at [117]). However, as Justice McGrath for Supreme Court noted in Rogers v Television New Zealand [2007] NZSC 91, [2008] 2 NZLR 277 (at [98]) “if the information in question is a matter of legitimate public concern that justifies its publication, this will provide a defence to any claim”. Justice Blanchard (at [54]) explained that “the media, representing the public interest … should have all the relevant facts available”. Following the Torstar principle, the responsible bloggers should be protected in the same way as responsible journalists, but, without a coherent formulation of news media, there is no certainty they would be. 

3. Likely effect

The ubiquity of Web 2.0 technology suggests the possibility of many online writers qualifying as news media under the NZLC proposals. More than 80 per cent of New Zealand’s 4.4 million people are regular Internet users (Smith et al 2010) and, according to Bell et al (2008), ten per cent of them keep their own blogs. Users rate the Internet as a more important source for news and information than television, newspapers and radio (Smith et al 2010). These statistics suggests that blogs and other Web 2.0 media might play a critical informative role, indeed, may have supplanted traditional media. However, the reality may be significantly different. New Zealand’s five most visited websites include the Stuff website of Fairfax media, the country’s predominant newspaper group, and Television New Zealand (Netcraft 2012). Only one journalist features among New Zealand 25 most influential tweeters (wefollow 2011). The precise number of bloggers who might qualify as news media is, therefore,  difficult to quantify. Kiwiology (2011), a comprehensive register, lists 60 blogs in its current affairs and news category, but does not, for example, include Slater’s Whale Oil. Conversely, certain blogs are included that constitute nothing more than personal musings. NZLC (2011) cited the Tumeke! (2009) ranking of 203 current affairs blogs, but, once more, certain personal puff blogs are included, whereas comments indicate notable omissions. While caution should be exercised in drawing conclusions from overseas research, it seems likely that the Technorati (2011) survey findings on blogging in the United States broadly reflect experience in stable democracies. Thus the “backbone of the blogosphere” comprises hobbyists who “blog for fun”, do not report any income and prefer to express their “personal musings” when blogging” (Ibid). In short, the overwhelming majority of bloggers are unlikely to perform the most basic journalistic function of gathering news for public dissemination. To reiterate, the NZLC’s proposed definition of news media incorporates the three elements of journalistic function, ethical commitment and accountability. So, how many Web 2.0 actually “do journalism”? Lenhart and Fox (2006) report that one-third of surveyed bloggers considered their blogs to be a form of journalism. However, when questioned about  “whether they engage in practices generally associated with journalism: directly quoting sources, fact checking, posting corrections, receiving permission to post copyright material and linking to original source materials outside of the blog” a significant disconnection between self-description and actual practice was manifest. Very few respondents could plausibly be considered de facto journalists: for example, only 11 per cent regularly published corrections (Ibid). Even is Web 2.0 media do perform a journalistic function, they may not do ethical journalism. Ward (2008, p 298 fn omitted) observes that in terms of traditional codes of ethics, journalists:

“… have a duty to publish the most accurate and comprehensive truth on matter of public interest, and to report independently without fear or favor. “Seek truth and report it” and “act independently” are primary pro-active principles of most Western codes of ethics. Restraining principles call on journalists to use this freedom to publish in a responsible manner. Restraining principles include the duty to “minimize harm” to vulnerable subjects of stories, such as children or traumatized persons, and the duty to be accountable to the public for editorial decisions.”

In contrast to traditional media’s ideal privileging of objectivity, Atton (2008, p 272) argues that “alternative media practices challenge it”, indeed: 

The normative ideal professionalized journalism emphasises the factual nature of news. It is based on the empiricist assumption that there exist “facts” in the world and that it is possible to identify these facts accurately and without bias (the journalistic norm of detachment). The normative ideal of alternative journalism argues the opposite: that reporting is always bound up with values (personal, professional, institutional) and that it is therefore never possible to separate facts from values.

It is debatable whether the bulk of bloggers really do rationalise in this way and enunciate such conveniently post-modern sensibilities or are simply careless with the facts. Whichever is the more plausible practice, Web 2.0 media wishing to qualify as news media will need to adhere to traditional codes of ethical journalism. While any such prediction holds the potential for being proved wrong, it seems likely that very few bloggers will, in practice, qualify or choose to become news media. A second aspect of likely effect lies with whether the alleged “Wild West” might be tamed by the NZLC’s proposals. Announcing his mandate to the NZLC, Power (2010) said “[i]t’s a bit of a Wild West out there in cyberspace at the moment, because bloggers and online publishers are not subject to any form of regulation or professional or ethical standards.”  Describing the New Zealand sector of cyberspace as a “Wild West” is an exercise in hyperbole reliant on an outmoded cliché (Hetcher et al 2004). As MacKinnon (2012, p 198) observes, such a neo-Hobbesian approach claims to save people from chaos and crimes presents a “false binary choice between [government’s] preferred solutions on the one hand and an anarchic state of nature in cyberspace on the other without allowing for any alternatives”. While Slater’s punishment may have been disproportionately light relative to the contempt he showed for the criminal justice system, under CPA 2011 s 211(4)(a), he would face up to six months imprisonment on conviction for committing similar offences. It is reasonable to assume he would not risk that penalty. The combination of significant sanction and the real possibility of conviction is inconsistent with a “Wild West”. Siemer, in contrast, can be situated in a long line of principled actors, however incongruent their principles may be with social norms, who are prepared to sacrifice personal liberty to oppose the law. His chosen medium of publication has recently emerged, but Siemer may be compared to historical pamphleteers, such as John Wilkes, who have risked imprisonment in order to publish at will. The exceptional defiance of one person prepared to engage in numerous court actions and even to go to prison to promote his conception of freedom, does not indicate anomie; rather, his defiance appears egregiously exceptional because compliance with the law is normal. Certainly, there are numerous examples of name suppression orders being breached through social media (see Elvidge 2008 for examples) but, as the authorities proved with Slater and Siemer, if the prosecutorial will exists, breaches are enforceable. Few people will risk imprisonment for the sake of gossip-mongering, whereas sanctions in a democratic society are unlikely to be sufficient to deter cause-martyrs. The point here is not to belabour the Minister’s exaggeration, which the NZLC tactfully ignored, but rather to highlight the issue of social mischief and legislative remedy. If Web 2.0 media were made subject to regulation or standards, it was implied, cyberspace would no longer be a “Wild West”. That was an unrealistic expectation.

4. Conclusion

An investigation into the role of New Zealand media in the Web 2.0 era is timely and coincides with more wide-ranging inquiries into the role of the media in Australia (Finkelstein Inquiry) and the United Kingdom (Leveson Inquiry). The NZLC does not propose a radical shift in the way journalism and the media are essentially conceived; rather, through a formulation of news media based on journalistic function, ethics and accountability, it presents the opportunity to those Web 2.0 media, who are de facto journalists, to enjoy the legal privileges extended to traditional journalists but also to formally assume their responsibilities.  The overwhelming majority of Web 2.0 media do not engage in journalism.  For others, anonymity and the potential for breaching social niceties are cyberspace’s principal attractions. Even if they were doing journalism, they would have no desire to submit to any code of conduct other than their own, and would not trade in that freedom for journalist privilege. The number of online de facto journalists, who will benefit from the proposals, is, therefore, likely to be small. Nevertheless, the NZLC’s recommendations are sensible and should be welcomed.

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