Litigation

22 Dec 2011

Bloggers, Tweeters and Facebook – New Media or News Media

The Law Commission is proposing significant changes to the law affecting mainstream and new media. The issues discussed in the Law Commission's paper (released 12 December 2011) are widely relevant because the new media environment means that everyone and anyone has the potential to be a publisher. The question is, are you also "media"?

Defining and regulating news media

The rise and rise of new media means it is currently very difficult to define just who the media is. Should it include bloggers? What about posting news on Twitter or on Facebook? A workable definition of media matters because the law gives the media special privileges and exemptions. These include, for example, the right to attend court proceedings that are not open to the public and exemptions from the Privacy Act's Information Privacy Principles.

The Commission argues that if bloggers or online news sites are performing the democratic functions of the media, they should have the same protections and privileges as the traditional media: but, with protection and privilege, comes responsibilities and accountability. In addition there should be regulatory parity between mainstream news media and new digital publishers. This would clear up current anomalies such as an inability to complain about content made available on-demand on a broadcasters' website when the same story broadcast on a news programme is subject to the Broadcasting Standards Authority.

The new criteria for news media proposed by the Commission is whether:

1. a significant proportion of their publishing activities involves the generation and/or aggregation of news, information and opinion of current value;
2. they disseminate this information to a public audience;
3. publication is regular;
4. the publisher is accountable to a code of ethics and a complaints process.

If these criteria are met, the publisher would qualify as news media.

To balance the extended definition of news media, the Commission proposes a new regulator for all news media so that regulatory parity can be achieved between mainstream news media and new digital publisher. This new regulator would replace existing bodies such as the Press Council and Broadcasting Standards Authority. It would be independent of both government and the news media, and include industry and non-industry representatives appointed by an independent panel.

The new regulator would be charged with developing a code of ethics in consultation with the industry and the public. There could also be different codes appropriate to different platforms. It would also develop and run the complaints process and decide the sanctions that it could impose.

Addressing harms from online communications

The second part of the issues paper deals with the wider legal framework applying to all communications. It proposes law changes to deal more effectively with cyber-bullying, harassment, privacy invasions, defamation and impersonation that are occurring online.

Take-down

First, the Commission wants Courts to be given the power to order ISPs or website hosts to take down material if it is unlawful and harmful, and other solutions have not worked.

It also suggests changes to ensure that the current law works in the new digital environment. These include:

• review the statute book to ensure that all provisions imposing controls on communication can apply to online communication;
• consider introducing a new offence of maliciously impersonating another person;
• clarify the application of the Harassment Act 1997, Telecommunications Act 2001 and the Human Rights Act 1993 to the online context;
• consider making incitement to suicide a criminal offence.

A "super regulator"

Finally, the Commission proposes the establishment of a Communications Tribunal. The objective is to provide a quick, efficient and cheap alternative to the Courts for people who have been harmed by unlawful communications. The Tribunal would have flexibility to award a range of remedies including compensation, ordering the defendant to stop the conduct in question and issuing take-down orders against perpetrators or even website hosts or ISPs disseminating offensive material.

As an alternative to establishing a Tribunal, the Commission suggests establishing a Communications Commissioner. The Commissioner would assist people by providing information about the law, providing dispute resolution/mediation services and liaising directly with relevant authorities, websites or ISPs to try to prevent or resolve problems.

The Commission is asking for feed-back on its proposals

You can send a submission or comments to the Commission via its website (http://www.lawcom.govt.nz/), email () or mail by 12 March 2012. We can help you present your point of view or alternative proposals.

The Commission will also be hosting online discussion forums on its website in February 2012.

Once public submissions and feedback have been considered, the Commission will then issue a final report with recommendations to government. The government is not obliged to accept the Commissions' recommendations.

Please contact Willy Akel or Tracey Walker if you require further information or assistance in responding to the Commission's proposals.

Authors

William Akel

Partner - Dispute Resolution

DDI: +64 9 977 5090

Mobile: +64 21 987 058

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Tracey Walker

Partner - Dispute Resolution

DDI: +64 9 977 5088

Mobile: +64 21 273 6241

Email:

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