Tech Liberty made a submission to the Media Regulation review run by the Law Commission. The summary of our submission is as follows:

We recognise that “big media” still has a lot of influence in New Zealand but that this influence is declining as the internet gives people the ability to:

• self-publish (“little media”)
• share and distribute self-published articles
• publicly critique the work of big media.

This change can be seen in the way that online media such as blogs used to be very reactive to work published in newspapers and TV, but now newspapers and TV are increasingly picking up stories from blogs and other forms of social media.

Much of the rest of the review was about how the media should be regulated but we believe that the need for greater media regulation has not been established.

Defining news media

The review suggests that regulation could be a trade-off for official recognition of news media, and spends a lot of time discussing who would be included in the definition of “news media”. We believe any definition would either be so broad as to be useless or so narrow that it would miss out many people and publications that arguably should be covered. This is especially true as journalism continues to develop and change in the internet age.

Special privileges for news media

The review suggests that we need a definition because some laws refer to the news media to bestow special privileges. Our preference is that these privileges should be extended to all citizens (e.g. replace the media “fair dealing” section in the Copyright Act with a more general “fair dealing/fair use” provision for all people) or should be available to all people when they are acting as a journalist.

Furthermore, any organisation that wish to include/exclude “news media” can make their own determinations as to who that is rather then relying on a government mandated definition.

External regulation

We do not believe that there is a need for an external regulator. Indeed, as the internet gives people the means to publicly criticise the output of big media, the need for a regulator is reduced compared to the days when only a very limited number of media companies could get their views out (due to limited airwaves or the need to own a printing press).

Current regulation is also generally quite ineffectual. The original message still goes out and then any correction is ignored as the issue is no longer “news”. Regulation tends to be after the fact score-keeping at best.

Any publishing company or journalist who wishes to be taken seriously has the ability to form a group and create their own code of ethics and regulator. The Press Council is an example of this and we do not see why other media groups who wish to be taken seriously could not do the same.

Finally, if there was a regulator our view was that it should be in the form of an Ombudsman with the ability to make morally rather than legally binding decisions.

Malicious speech online

The second part of the review was about harmful speech online.

We agreed that malicious speech online can be a problem just as it is when face to face Furthermore, the nature of the internet means that the malicious speech can both spread further and remain available longer.

We believe that the law is limited in what it can do about people being nasty to each other, either online or in person. Even if current law could deal with these issues, the international nature of the internet and the inevitable jurisdiction issues would mean that only a small proportion of problems could be resolved.

That said, many of the more contentious issues will be conducted by people who know each other well and probably even live in the same area. The law should be able to deal with issues of harassment using existing laws (possibly with the tweaks identified by the Commission to ensure that online communications are definitely covered).

We reject the idea that speech online should be held to a higher standard than any other form of speech.

We do support the creation of a new crime of “malicious online impersonation” with the caveat that it must be very careful not to include obvious cases of parody and other forms of non-serious impersonation.

No ISP responsibility

We oppose any attempt to make ISPs responsible for taking down or blocking information either hosted on their network or available through it. This is because ISPs typically have no visibility or control over the material that their customers might store on servers hosted with the ISP. Typically an ISP will only have one option – passing the request on to the publisher or turning off the entire site. Closing down an entire site would seem a gross over-reaction to the content of one offending post or comment.

It does seem appropriate to us that an ISP might have a responsibility to pass on a takedown message to the site owner (similar to the copyright legislation) or, upon presentation of a suitable court order, reveal the identity of the site owner so that legal action can be taken.