Media Standards, Regulatory Frameworks, and Source Protection

BSA and Media Council Accuracy Standards

  • Case Study: Martin Devlin on TalkBack Radio
    • In a previous discussion on the accuracy standard, it was noted that the Broadcasting Standards Authority (BSA) often categorizes assertions of fact as exceptions falling under "statements clearly distinguishable as analysis, comment, or opinion."
    • The Incident: Martin Devlin discussed Team New Zealand (ETNZETNZ) and the departure of a chief designer during a sports morning program. His exact words were:
      • "I wonder when Team New Zealand are going to tell us that one of their chief designers quit a couple of weeks ago. That hasn't come out yet, has it? Because you know how they wanted their salaries to keep all their designers and stuff, but one of their main designers is up and walked. They haven't mentioned that one yet, have they? I don't think that one's coming out yet, is it?"
    • The Context: ETNZETNZ was seeking more money for salaries while a designer had allegedly quit, a fact not yet public.
    • The BSA Ruling: The BSA found this did not amount to an "unqualified statement of fact" subject to accuracy standards. They argued listeners would interpret it as "speculation or gossip" rather than authoritative information because:
      • The host repeatedly questioned if the story had "come out yet."
      • The impression was that Devlin had heard rumors not corroborated by ETNZETNZ itself.
      • The producer's reaction—saying they would "wait for that story to break"—indicated the story was unconfirmed.
    • The Conclusion: This highlights a significant "gray area" where statements that seem factual are categorized as opinion/speculation to avoid triggering accuracy breaches.

The New Zealand Media Council

  • History and Structure

    • Origins: Established by the industry in 19741974 as the "Press Council" following newspaper scandals. Its creation was a strategic move by the print media to ward off government regulation (the creation of a statutory body similar to the BSA).
    • Status: It is not created by statute or government; it is a voluntary, industry-funded contract system.
    • Constitution: Its stated goals are to resolve complaints, promote press freedom, and maintain standards.
    • Membership: Consists of 1111 members:
      • 66 public members (pillars of the community without media expertise/journalism backgrounds).
      • 55 working journalists.
      • The group is chaired by a judge, currently Justice Asher (retired).
    • Voting: While non-media members outnumber media members, the council typically operates by consensus and rarely splits along "media vs. non-media" lines.

  • Principles and Procedures

    • Statement of Principles: Functions as a code of ethics, similar to the BSA code but less detailed. It includes a general requirement to uphold the "highest professional standards of journalism."
    • Waiver of Legal Rights: To use the Media Council, complainants must sign away their right to sue (e.g., for defamation). There is ongoing legal debate regarding whether this requirement is lawful or void as a matter of public policy.
    • Process:
      • The Chair can "weed out" fruitless or wasteful complaints before they are considered.
      • The Executive Director (formerly Mary Major) may attempt to mediate between the complainant and the editor.
      • Cases are mostly decided "on the papers" with one round of correspondence.
      • There is no right of appeal.

  • Remedies and Powers

    • If a complaint is upheld, the publication must publish the decision (or a summary) with "fair prominence."
    • Online articles found to be inaccurate must be "tagged" so readers are aware of the decision.
    • The Council can order a retraction, correction, or (rarely) a right of reply.
    • In extreme cases, they can issue a "power of censure," though this is rarely used.
    • The Council has a generally higher uphold rate compared to the BSA.

  • Comparison of Standards

    • Accuracy: Minor errors are not breaches. Opinions are exempt unless the "foundational facts" of the opinion are incorrect. Corrections should be placed where the mistake occurred (hard copy and online).
    • Reasonable Reliance: No breach occurs if the publisher relied on an authoritative, reputable, and neutral source that turned out to be wrong. However, failure to correct once the error is pointed out may be a separate ground for complaint.
    • Balance: Required only for sufficiently serious or long-running issues (e.g., the Treaty of Waitangi or Climate). It is not required for opinion pieces or if other media outlets provide the missing perspective.
    • Fairness: A "grab bag" standard covering the failure to keep promises, deceiving sources, or breaching embargoes (agreements not to publish info before a set time).
    • Social Media: It is not considered unfair to use photos or info sourced online (though copyright issues may exist), but republishing unverified online rumors from unreliable sources can lead to breaches of fairness, accuracy, or balance.
    • Privacy: Follows the Hosking and Runting standard—protecting sensitive private facts about an identifiable person where there is a reasonable expectation of privacy, unless the matter is of public interest or the person voluntarily entered the limelight.

  • Jurisdictional Limits

    • The Media Council does not have investigative powers (cannot order the surrender of field tapes like the BSA).
    • It cannot resolve direct conflicts of evidence (e.g., "he said/she said" regarding off-the-record conversations).
    • It does not handle defamation, copyright, or name suppression.
    • It has no jurisdiction over "editorial choices" such as the placement of a story, the angle chosen, or the refusal to publish letters to the editor.

Professional Guidance for Journalists and Complainants

  • Off the Record Conversations

    • There is no universal definition of "off the record."
    • Some journalists interpret it as "not for attribution" (cannot use the name but can use the info).
    • Some may use the info to confirm it elsewhere independently.
    • Advice: Always clarify exactly what "off the record" means before speaking. Get explicit agreement; a journalist might retrospectively claim they never agreed to the confidential terms.

  • Conflict of Interest

    • Conflicts should lead to the journalist not writing the story, or at minimum, a full disclosure (e.g., travel junkets paid for by a company).

  • Complaining Strategy

    • Refer explicitly to the Statement of Principles.
    • "Play the ball": Focus on the impact and issues, not personal abuse.
    • Win the "moral story": Frame your client as the victim of harm or injustice early in the proceedings.
    • Provide authoritative evidence for accuracy claims.

The "Super Regulator" Debate

  • There is a proposal to merge the BSA into the Media Council to create a single regulator for all media.
  • Arguments For:
    • Simplifies an anachronistic system where two bodies have different standards and uphold rates.
    • Resolves "double jeopardy" or conflicting rulings on content posted both on TV and online.
  • Arguments Against:
    • Concerns about creating a "massive power center" that restricts free speech.
    • The complexity of including/excluding social media platforms like Meta and Twitter/X.
    • Politicians often argue consumers can simply "turn it off," though this ignores the harm done to those being reported on.
  • Notable Historical Breaches (Why Regulation Exists):
    • TVNZ: Reported on a fake cancer cure called Lipronol.
    • Triangle Television: Broadcast a call for gay people to be executed.
    • Alt TV: Broadcast illicit "screen crawls" during music festivals.
    • General: Editing interviews to remove crucial context or revealing paternity test results live to a child.

Source Protection

  • Core Concept

    • Journalists must promise confidentiality to sources to receive info in the public interest. If they were forced to disclose sources, the flow of info would stop, harming the public’s right to know.
    • Discovery: In general law, parties must swap all relevant documents. Source protection is the specific exception to this rule.

  • Evidence Act 2006, Section 68

    • The Rule: A journalist who promises confidentiality to an informant for publication in a news medium does not have to disclose the source unless a High Court judge orders it.
    • Definitions:
      • Journalist: A person who, in the normal course of work, gathers info for a news medium.
      • Informant: A person who gives info expecting publication.
      • News Medium: A medium for public news or observations on news (the status of partisan bloggers as "news media" is a contested legal point).

  • The Balancing Test (Section 68 Criteria)

    • The judge weighs two sides of the "scale":
    • Side A (Public Interest in Disclosure):
      • How important is the info to resolving the specific case?
      • The gravity of the case (e.g., a murder trial is more important than a shoplifting case).
      • The defendant’s right to present an effective defense.
    • Side B (Public Interest in Protection):
      • Potential harm to the specific source (loss of job, safety).
      • The "chilling effect": Harm to the general process of whistleblowers coming forward to the media.

  • Other Provisions

    • Section 69: A general, weaker discretion for courts to permit non-disclosure of confidential material (not limited to journalists).
    • Rule 34.1: Allows pretrial discovery to find the identity of a person to sue them (e.g., tracking a social media user).

Case Study: Police v Campbell (20102010)

  • The Event: Thieves stole 9,000,0009,000,000 worth of medals from the Waiouru Army Base. John Campbell interviewed a thief on air after verifying his identity with a secret question.
  • The Controversy: TV3 used an actor to voice the thief's words without informing the public initially.
  • The Legal Issue: The police wanted John Campbell to confirm the identity of the person in the interview to match CCTV footage from the Duxton Hotel in Auckland (info leaked by Carol Hirschfeld).
  • The Arguments:
    • TV3/John Campbell: Claimed the interview offered unique insight into the thief's mind and warned of a "chilling effect" on investigative journalism.
    • Expert Evidence: The speaker provided social science evidence suggesting the supply of confidential sources remains consistent regardless of whether courts occasionally order disclosure.
  • Journalistic Ethics on Burning Sources: While most journalists say they would "never" betray a source, many admit to exceptions in extreme cases, such as:
    • Preventing death or a serious crime (e.g., blowing up a bridge).
    • Preventing the conviction of an innocent person.
    • If the source lied to the journalist.

Questions & Discussion

  • Question: If you give up the right to sue for the Media Council, does that include suing for defamation, copyright, etc.?

  • Answer: Yes, it includes anything related to the specific complaint you are bringing to the Council.

  • Question: If you are talking to a journalist and say it is "off the record," can they use it?

  • Answer: Some journalists might use it but without your name (not for attribution), or use the facts to confirm the story elsewhere. Always clarify the terms for safety.

  • Question: Do you think it is a good idea to get rid of the BSA?

  • Answer: The government wants to transfer the BSA to the Media Council. Arguments include accessibility vs. cost of courts. A "super regulator" might be more consistent, but there are fears of centralized power. The speaker predicts that if regulation becomes too voluntary (like the Media Council), a future reporting disaster will eventually force the government to reinvent a strict standards regime.