Lockdown has its benefits. For some time I have been asked whether or not I would contemplate a 5th edition of “internet.law.nz – selected issues.” After 4 editions including a revised 4th edition my inclination had been that I had written enough on the subject, but a review of the 4th edition together with a review of what I had written in other for a persuaded me that a 5th edition might be a possibility. Lockdown has given me the perfect opportunity to research and write in the comparative peace and solitude that accompanies Alert Level 4.
The approach that I propose will be different from what has gone before, although much of the material in earlier editions will be present. But the focus and the themes that I want to examine differ. I am interested in the regulatory structures that are being applied to the online environment and in particular I am interested in the area of content regulation. This involves a number of areas of law, not the least of which is media law and there is quite an overlap between the fields of media law and what could loosely be termed cyberlaw.
What I am trying to do is examine the law that it has developed, that is presently applicable and what shape it may likely have in the future. In this last objective I am often assisted by proposals that governments have put forward for discussion, or proposed legislation that is before the House.
In this piece I consider a review of content regulation. The proposal, which was announced on 8 June 2021, is extremely broad in scope and is intended to cover content regulation proposals and mechanisms in ALL media – an ambitious objective. What follows are my initial thoughts. I welcome, as always, feedback or comments in the hope that the finished product will be a vast improvement on what is presently before you.
The Proposals
A comprehensive review of content regulation in New Zealand was announced by Minister of Internal Affairs, Hon Jan Tinetti, on 8 June 2021. The review is managed by the Department of Internal Affairs, with support from the Ministry for Culture and Heritage.
The review aims to create a new modern, flexible and coherent regulatory framework to mitigate the harmful impacts of content, regardless of how it is delivered.
The framework will still need to protect and enhance important democratic freedoms, including freedom of expression and freedom of the press.
Content is described as any communicated material (for example video, audio, images and text) that is publicly available, regardless of how it is communicated.
The need for the review arises from a recognition of media convergence. The review outline states that the ongoing evolution of digital media has resulted in significant and growing potential for New Zealanders to be exposed to harmful content. This was made evident by the livestreaming and subsequent uploading of the Christchurch terror attack video.
Our existing regulatory system was designed around a traditional idea of ‘analogue publication’, such as books, magazines and free-to-air TV, and does not have the flexibility to respond to many digital media types. As a result, it addresses harm in a shrinking proportion of the content consumed by New Zealanders and provides little protection at all for digital media types which pose the greatest risk for harmful content.
The increase in the potential for New Zealanders to be exposed to harmful content is compounded by the complexity of the regulatory system. Different rules apply for content hosted across media channels. This increases difficulty for New Zealanders when deciding what content is appropriate for them and their children and creates confusion on where to report harmful content.
There is also an uneven playing field for media providers as some types of media are subject to complicated regulatory requirements and some to no regulations at all.
The introduction to the review notes that New Zealand’s current content regulatory system is made up of the Films, Videos, and Publications Classification Act 1993, the Broadcasting Act 1989 and voluntary self-regulation (including the New Zealand Media Council and Advertising Standards Authority). The Office of Film and Literature Classification and the Broadcasting Standards Authority are statutory regulators under their respective regimes.
New Zealand’s content regulatory system seeks to prevent harm from exposure to damaging or illegal content. It does this through a combination of classifications and ratings to provide consumer information, and standards to reflect community values. These tools are designed to prevent harm from people viewing unwanted or unsuitable content, while protecting freedom of expression.
What is proposed is a broad, harm minimisation-focused review of New Zealand’s media content regulatory system which will contribute to the Government’s priority of supporting a socially cohesive New Zealand, in which all people feel safe, have equal access to opportunities and have their human rights protected, including the rights to freedom from discrimination and freedom of expression.
The objective of social cohesion was one of the strong points made by the Royal Commission on the 15 March 2019 tragedy in Christchurch.
The review recognises that a broad review of the media content regulatory system has been considered by Ministers since 2008 but has never been undertaken. Instead piecemeal amendments to different frameworks within the system have been made to address discrete problems and gaps.
The problems posed by the Digital Paradigm and media convergence, coupled with the democratisation of media access has, in the view expressed in the briefing paper resulted in significant and growing potential for New Zealanders to be exposed to harmful media content. Our existing regulatory frameworks are based around the media channel or format by which content is made available and do not cover many digital media channels. This model does not reflect a contemporary approach where the same content is disseminated across many channels simultaneously. As a result, it provides protection for a decreasing proportion of media content that New Zealanders experience. This means that New Zealanders are now more easily and frequently exposed to content they might otherwise choose to avoid, including content that may pose harm to themselves, others, and society at large.
What is proposed is a harm-minimisation focused review of content regulation. This review will aim to create a new modern, flexible and coherent regulatory framework to mitigate the harmful impacts of media content, regardless of how it is delivered. The framework will still need to protect and enhance important democratic freedoms, including freedom of expression and freedom of the press. The threshold for justifying limitations on freedom of expression will remain appropriately high.
Given the emphasis on social cohesion it is not unexpected that the Review is part of the Government’s response to the March 2019 Christchurch terrorist attack, including the Christchurch Call and responding to the Royal Commission of Inquiry into the terrorist attack on Christchurch masjidain.
It is noted that in addition to the formal structures under the Films Videos and Publications Classification Act and the Broadcasting Act are voluntary self-regulatory structures such as the Media Council and the Advertising Standards Authority are the provisions of the Harmful Digital Communications Act and the Unsolicited Electronic Messages Act. These structures, it is suggested, are unable to respond to are coming from contemporary digital media content, for example social media. The internet has decentralised the production and dissemination of media content, and a significant proportion of that content is not captured by the existing regulatory system.
Examples of the harmful media content affecting New Zealanders are:
- adult content that children can access, for example online pornography, explicit language, violent and sexually explicit content
- violent extremist content, including material showing or promoting terrorism
- child sexual exploitation material
- disclosure of personal information that threatens someone’s privacy, promotion of self-harm
- mis/disinformation
- unwanted digital communication
- racism and other discriminatory content
- hate speech
What is proposed is a harm-minimisation focused review of content regulation, with the aim of creating a new modern, flexible and coherent regulatory framework to mitigate the harmful impacts of all media content. The regulatory framework will balance the need to reduce harm with protecting democratic freedoms, including freedom of expression and freedom of the press. The framework will allocate responsibilities between individuals, media content providers, and Government for reducing harm to individuals, society and institutions from interacting with media. The framework will be platform-neutral in its principles and objectives, however, it will need to enable different approaches to reaching these objectives, spanning Government, co-regulatory and self-regulatory approaches. It will also include a range of regulatory and non-regulatory responses.
The following principles are proposed to guide the review:
a. Responsibilities to ensure a safe and inclusive media content environment should be allocated between individuals, media content service providers (analogue, digital and online providers), and Government;
• Individuals should be empowered to keep themselves safe from harm when interacting with media content;
• Media content service providers should have responsibilities for minimising harms arising from their services;
• Government responses to protect individuals should be considered appropriate where the exercise of individual or corporate responsibility cannot be sufficient. For example:
• Where there is insufficient information available to consumers about the risk of harm;
• Where individuals are unable to control exposure to potentially harmful media content;
• Where there is an unacceptable risk of harm because of the nature of the media content and/or the circumstances of the interaction (e.g. children being harmed by media content interactions);
b. Interventions should be reasonable and able to be demonstrably justified in a free and democratic society. This includes:
- Freedom of expression should be constrained only where, and to the extent, necessary to avoid greater harm to society
- The freedom of the press should be protected
- The impacts of regulations and compliance measures should be proportionate to the risk of harm;
c. Interventions should be adaptive and responsive to:
• Changes in technology and media;
• Emerging harms, and changes to the scale and severity of existing harms;
• Future changes in societal values and expectations;
d. Interventions should be appropriate to t he social and cultural needs of all New Zealanders and, in particular, should be consistent with:
• Government obligations flowing from te Tiriti o Waitangi;
• Recognition of and respect forte ao Maori and tikanga; and
e. Interventions should be designed to maximise opportunities for international coordination and cooperation.
It will be noted that the proposed review and the principles guiding it are wide-ranging. It seems that the objective may be the establishment of a single content regulatory system that will allow for individual responsibility in accessing content and media responsibility for ensuring a minimisation of harm but with a level of State intervention where the steps by individuals or media providers may be insufficient. The guiding principle seems to be that of harm.
At the same time there is a recognition of the democratic values of freedom of expression and freedom of the press. The wording of section 5 of the New Zealand Bill of Rights Act is employed – that interventions should be reasonable and demonstrably justified in a free and democratic society and that responses should be proportionate to the level of harm.
It is interesting to note that the proposed interventions should be flexible and able to adapt to changes in technology and media, the nature of harm and any future changes in societal values and expectations.
Commentary
In many respects the proposals in this outline seem to be those of an overly protective State, developing broad concepts of harm and “safety” as criteria for interference with robust and often confronting expression. It is quite clear that the existing law is sufficient to address concerns about expressions such as threats of physical harm. However, the concept of harm beyond that is rather elusive. The problem was addressed in the Harmful Digital Communications Act 2015 which defines harm as “serious emotional distress”. But a broader scope seems to be applied to harm in the context of this review and that is exemplified by the concept of social cohesion. In addition are some of the categories of content that must give rise to concern and that may well create a tension between freedom of expression on one hand and elements of social cohesion on the other. One example is that of misinformation or disinformation which seems to suggest that there is but one arbiter of accuracy of content that leaves little room for balanced discussion or opposing views. The arbiter of content could describe any opposing view as misinformation and thereby demonise, criminalise and ban the opposing view on the basis that opposition to the “party line” has an impact upon social cohesion.
A matter of concern for media law specialists as this review progresses must be the cumulative impact that content regulation initiatives may have on freedom of expression. I cite as examples proposals to address so-called “hate speech” and the Chief Censor’s report “The Edge of the Infodemic: Challenging Misinformation in Aotearoa.” These proposals, if enacted, will give legislative fiat to a biased form of expression without allowing for a contrary view and demonstrates a concerning level of misunderstanding about the nature of freedom of expression (including the imparting and receiving of ideas) in a free and democratic society.
As matters stand content regulatory systems in New Zealand as discussed have some common features.
- There is an established set of principles and guidelines that govern the assessment of content.
- There is a complaints procedure that – as far as media organisations are concerned – involves an approach to the media organisation prior to making a complaint to the regulatory body
- There is a clear recognition of the importance of the freedom of expression and the role of a free press in a democratic society
- That in respect to censorship the concept of “objectionable” is appropriately limiting given first that the material may be banned or restricted and second that there may be criminal liability arising from possession or distribution of objectionable material.
- Guiding principles are based primarily upon the public interest. The Content Review focus on social cohesion is more than a mere re-expression of the public interest concept.
One thing is abundantly clear. The difficulty that regulatory systems have at the moment surrounds continuing technological innovation. To some extent the New Zealand Media Council recognises that and has adapted accordingly. Otherwise there is little wrong with the processes that are in place – at least in principle. If complaints procedures are seen to be unwieldy they can be simplified. The public interest has served as a good yardstick up until now. It has been well-considered, defined and applied. It would be unfortunate to muddy the media standards and public discourse with a standard based on social cohesiveness, whatever that may be. Fundamentally the existing regulatory structures achieve the necessary balance between freedom of expression on the one hand and the protection of the public from objectionable content on the other. Any greater interference than there is at present would be a retrograde step.