Law Commission Review Submission by Sweet As Social Media
This submission for the Law Commission review has been primarily compiled by Jess Maher and James Williamson on behalf of Sweet As Social Media (www.sweetassocialmedia.com). Input from users and individuals online has been sought in the process of compiling this submission which has been facilitated by the various “new media” freely available online.
Part 1: Who are the news media & how should they be regulated?
1. As a society, do we still depend on the news media to provide a reliable and authoritative source of news and information about what is going on in our country? (chapter 4: What distinguishes “news media”- and why it matters)
The introduction of social media and Web 2.0 has drastically changed the way that many of us access and find news online, with many of us finding news stories through links or sharing of networks online. While the route of access may have changed, we still depend on news media being reliable and authoritative source of information about what is going on in our country.
Despite the influence of shifts in how and where we find access to such information, many still hold expectations of reliability for that provided by news media. Such considerations and expectations are important as for decades prior as goes for generations today, news media has a large part to play in creating the collective consciousness of the general public and as such has strong influence over the accepted norms and standards of our culture.
Conventional news media is often seen as a source of different kinds of news than “new media” such as blogs, forum posts, Wikipedia, Facebook, Twitter etc. The “new media” sources will often provide “breaking news” that has not made the mainstream media yet, but might turn out to be rumor or exaggeration. Readers will then turn to the websites of conventional news media sources to look for reliable confirmation of whether such rumors are true.
Often a story will be written on a conventional media source but not attract very much attention, until a link to the story is posted on social media forums and widely shared. This can be used by conventional media to advertise their stories - but sometimes conventional media has reprinted and given validity to unsubstantiated rumours on social media sites which have later turned out to be false, causing much embarrassment. Another issue is that this rapid distribution of news can exacerbate the tendency for small local issues to be represented as if they are global, world-wide problems that everyone needs to be concerned about. This can sometimes cause issues that might otherwise have stayed small and local, to be replicated worldwide.
Another key role for “new media” sources is in covering topics that are perceived to be controversial, or that the mainstream media is avoiding covering for some reason. This is perhaps more important in other countries where the mainstream media is less free and more subject to censorship, but is still often relevant to New Zealand. However this can also have negative repercussions, as social media can widely spread links to sites that the mainstream media would avoid promoting for good reasons - extremist hate speech, or fraudulent scams for example. There are cases where “news media” have had to cover certain issues highlighted by users of “new media” which may have not always been addressed; a recent example being the “KONY 2012” video from the humanitarian organisation, Invisible Children - which has been denied coverage by mainstream media mainly because of serious concerns over their financial transparency and the uses to which their charitable funds have been applied.
2. Currently our law gives the “news media” special privileges and exemptions in recognition of the important role it plays in a democracy. Is it still in the public interest to treat the news media as a special class of publisher, afforded special legal privileges? (chapter 3: The news media’s special legal status)
The news media should retain its special legal privileges, as certain aspects like the right to protect confidential sources are very important for retaining transparency in government and business. We foresee the greater issue of defining when publishers of “new media” can also expect to take advantage of these privileges and when it cannot.
3. Few of the Acts which give the news media special legal status actually define what is meant by “news media.” Do you agree with the following definition we have proposed? (chapter 4 at para 4.102)
- a significant proportion of their publishing activities must involve the generation and / or aggregation of news, information and opinion of current value, for the;
- purpose of dissemination to a public audience;
- publication must be regular;
- the publisher must be accountable to a code of ethics and a complaints process.
This definition looks good, the only point that might be problematic is the requirement that “publication be regular” - blogs for instance are often published on an irregular basis and may cease publication with no reason given by the author. It might be contemplated that someone could write a one-off expose on a controversial news topic that is clearly aimed at a public audience, cites confidential sources that might need protection, and is of such a nature that it should be accountable to regulatory authorities. Such a publication should properly be able to be included under the definition of “news media”, despite no other publications from the same author before or since.
One key aspect is likely to be the nature of the medium used - a dedicated blog page, even if only infrequently added to, is much more in the nature of a “publication” than a post on a chat forum, or on Facebook or Twitter. But at some point, it might be expected that a person posting news content every day on a social media forum would be considered to be a “news media” publisher. At this point the purpose of the publication becomes critical - but assessing the true intentions of anonymous posters on online forums is notoriously challenging.
4. Because the news media depends on public trust, and can exercise considerable power in society, it has traditionally been held accountable to higher ethical standards than other types of publishers. In the web environment, with its facility for public participation, instant feedback and moderation, is it still necessary to hold the news media accountable to some external regulator? (chapter 6: Regulation of the news media at 6.41).
The traditional news media should certainly continue to be held to a high ethical standard in terms of what and how they report. Indeed in the age of “new media” where the traditional media sources may frequently be relied upon to confirm the validity of news received from alternative sources, it is perhaps even more important that the content provided by traditional media sources be accurate and truthful.
The more important question is to what extent external regulators should be able to moderate content posted on the Internet by “new media” publishers like blogs, forums, social media sites etc, and how this can be balanced with the fundamental freedom of speech issues. There have certainly been several topics where a widely held view has been expressed in “new media” sources, that the traditional news media has been perceived to deliberately avoid reporting on these issues in order to try and sweep the story under the carpet.
One example is the Occupy series of anti-capitalist protests around the world, which was perceived to be receiving very little media coverage for many months, but eventually received detailed coverage after the protests had spread worldwide. Another example is various pieces of controversial legislation passed recently or currently being discussed (the best recent examples would be the domestic Natural Health Products Bill, and international treaties such as ACTA) where the topic has been discussed extensively on blogs and sites such as Facebook and Twitter, yet there has been very little coverage in traditional news media sources.
In situations such as this, where there has been very little coverage in traditional media sources, there would seem to be more of a need for scrutiny by the regulator of the “new media” sources, as people may not be able to conveniently fact check against an authoritative source.
Several incidents have occurred where reporting of false news on social media sites can quickly spread rumours that may have significant consequences - for instance in 2010 when a Qantas plane had engine trouble, it was reported on Twitter that it had crashed, which caused a major drop in Qantas share prices, which did not recover until the rumour was discredited by conventional media sources early the next day. What role an external regulator should have in discouraging the spreading of harmful or malicious rumours online might be a difficult question however, as would the issue of determining appropriate remedies against the initiator.
5. If you think it is in the public interest for the news media to continue to be subject to some form of external accountability, what is the most appropriate form of regulation? (chapter 6).
Is there still a case for treating broadcasters differently from other publishers, continuing to make all broadcasters subject to Government imposed regulation, as is the case at present?
The convergence of different mediums and increasing overlap in the mediums used by news media to deliver information to the public, are increasingly using various forms of multimedia. Broadcasters deliver content in all sorts of formats as well as video, and “new media” producers increasingly create content that would once have been the exclusive domain of traditional broadcasters - high quality professionally produced documentaries on important current issues are frequently published on free sites like YouTube to maximise the viewing audience, and are only screened on traditional television much later if at all. So with this blurring of the boundaries in the digital age, there is perhaps more of a case for a comprehensive regulatory body covering all relevant news sources.
i. If you think that media convergence means there is no longer a strong case for treating newspaper publishers and broadcasters differently, then what is the most appropriate form of regulation for the news media?
– State regulation, with standards and sanctions set out in legislation?
– Some form of independent regulation such as we propose where neither the government nor the news industry controls the regulator?
– If you support the independent model we propose, should membership be entirely voluntary or compulsory for some publishers?
Regulation of the media definitely has to be done by an independent body, that is separated and not susceptible to undue influence from either government or the overseas corporate owners of “big media” organisations. While this independent body probably would require statute to establish it and to define its role, it must be unbiased and transparent, so that it cannot be used inappropriately as a censorship or surveillance tool. Membership should be compulsory for some publishers - presumably those that meet the definition discussed in question 3. The regulator must above all be flexible and able to assess individual cases on their merits - a rigid and inflexible system here could easily cause more harm than good.
New media means new ways for people to make innocent mistakes - the rapper 50 Cent recently posted on Twitter about a new company he had invested in, encouraging his thousands of Twitter followers to do the same - which of course breaks insider trading laws. But it should be obvious that he should not be held accountable under these circumstances in the same way as a crooked businessman engaged in “ordinary” insider trading - the point is more how new media can open the path to problems that users may be entirely unaware of, and the regulator needs to be able to assess these factors before assuming guilt.
6. Traditionally, the standards to which the news media have been held accountable have dealt with the following matters: (chapter 4 at 4.30)
- Accuracy;
- Fairness and balance – ensuring for example that news is not deliberately distorted through the omission of important facts or view-points;
- Respect for individuals’ rights to privacy;
- A commitment to public interest rather than self-interested publishing;
- Transparency; ensuring conflicts of interest are declared;
- Good taste and decency; ensuring the general public is not offended by the gratuitous publication of offensive content.
Do you think these standards are still important?
The traditional standards that news media have been held accountable are still relevant and appropriate in a Web 2.0 context. The introduction of “new media” has enabled an interactive relationship between the public and news media, which we have not seen in the past to anywhere near the same extent. News Media traditionally were a one-way distributor of information, making the standards to which they are accountable more straight forward. Now interactions and representations of news media organisations using “new media” should see the extension of these standards more broadly to other non-traditional publishers.
7. Do the Internet and the facility for others to comment and participate in the news process change any of these standards? (chapter 6 at 6.41)
The media has always been interactive to some extent, but the barrier of writing a “letter to the editor” and not seeing it in print for weeks afterwards, is much higher than merely posting in the opinion box on the web page under the news story.
This means that a much larger proportion of people are prepared to comment - and see the results instantaneously, reinforcing further participation. One issue that can arise with such an increased degree of public participation is however that fairness and balance can sometimes become skewed, when a very large number of people support a particular viewpoint - anyone who tries to voice the opposing side may be effectively shouted down and ignored. This is where conventional media publishers might perhaps be held to have some responsibility to ensure that both sides are adequately represented.
“Good taste and decency” is also a much more amorphous concept to define in today’s globalised world - what would be considered indecent might be quite different in China, or Qatar, or even the USA, than from what is acceptable in New Zealand. It is important that the standards of taste and decency that New Zealanders are expected to abide by, are New Zealand standards, and not for instance standards pushed by conservative Christain lobbyists in the USA.
8. Should all news media be accountable to the same standards irrespective of the medium in which they publish? Or is there a distinction to be made between content which is broadcast to mass audiences simultaneously and content which is accessed by individuals on demand? (chapter 6 at 6.92)
The convergence of different mediums and increasing overlap across platforms makes this distinction increasingly meaningless. The boundaries between traditional “broadcast” media and that accessed “on demand” are intertwined and overlapping. There might be some circumstances under which content accessed on demand might be less heavily regulated than freely accessible content, footage of news stories that might be offensive or disturbing to some people for instance could perhaps be allowed on private age-restricted feeds, but be considered inappropriate for public broadcast where children would be likely to see it. However the scope of such content would likely be limited and should be the exception rather than the rule.
9. Is there a case for extending the news media’s legal privileges to non-traditional publishers, such as bloggers, who wish to undertake news reporting and commentary on public affairs? (chapter 4 at 4.80)
There are foreseeable instances where the legal privileges may be extended to non-traditional publishers such as the blogs like that of David Farrar or Cameron Slater in New Zealand political debate online. Clearly in an age where any consumer of content on the Internet can also be a content creator, it would not be appropriate to extend these special privileges to everyone who posts content online. At the same time however there needs to be a mechanism for ordinary people to take advantage of these privileges when because of their activity online, they are acting in a role that is functionally equivalent to that of the traditional news media.
10. If so, is it reasonable to expect those non-traditional publishers wishing to access these legal privileges reserved for the news media to be also be accountable to standards and an external body? (chapter 4)
If privileges are afforded to a publisher, regardless of which format the publication takes form in, then so too should the publisher be accountable to standards and any body of regulation.
Part 2: Speech harms: The adequacy of the current legal sanctions and remedies
11. How serious a problem do you think speech abuses are on the Internet? eg cyber-bullying and harassment, harms to reputation or invasions of privacy. (chapter 7)
The problem of speech abuses online is one of a very serious nature, with greater scale, sophistication and severity as a potential result. There have already been numerous incidents in New Zealand of youth suicides following incidents of cyber-bullying alone. The ability to be anonymous has the potential to fuel antisocial behaviours and the ‘distance from ones subject’ online has the tendency to see more people being unrestrained and at times, more hurtful or malicious. Harms can be instantaneous and detrimental and are often accompanied with concern and mental anguish. The scale, sophistication and severity of speech harms online can be significant. The permanence and multitude of platforms to host data online makes unwanted or malicious content difficult to eradicate while also being quickly shared and spread.
There is particular concern about the potential damages and danger of speech harms and abuses online when it comes to youth in our community. Significant aspects of teenagers lives are today located in the digital world and there is a need for greater awareness about the importance of one’s “digital footprint” and the risks of over sharing online. The replicablity of data means even if content can be removed online, there is nothing to stop other users saving or re-posting with ease. There is increasing integration of the Internet in our daily lives yet at the same time the “online world” still for the most part operates outsides the parameters of the law. For many victims of speech abuses online, they report an absence of well known process or authoritative body that leaves them helpless and distressed.
There have also been a rise in the number and frequency of speech harm cases online in recent years, with cases of defamation increasing seen as a significant issue (http://www.guardian.co.uk/media/2011/aug/26/defamation-cases-twitter-blogs).
12. How effective are the non-legislative remedies that operate within online communities, including the systems of online reporting employed by social media sites such as Facebook? (chapter 7 at 7.144)
There is an apparent lack of awareness and/or utilization amongst users of the automated systems for dealing with offensive or harmful content on online communities. Those who have made use of those reporting systems made available to them, report finding the process slow, many frustrated by a lack of response or remedy from these sites. In many instances, a number of reports have been made by numerous users and still continue to go unresolved. For the most part, users find these systems of online reporting both slow and ineffective, others appreciate the potential and benefits afforded by a collective voice.
While some sites like Facebook are cooperative with law enforcement agencies, there is still the unresolved concern that many of these speech abuses encountered online may not fulfill the criteria considered to be unlawful - but can still be very damaging to the victim, with no effective legal remedy available.
13. Do you think the law is currently able to deal adequately with these sorts of damaging speech when it occurs on the Internet? (chapter 7.60)
There is currently limited access to legal remedies reasonably available to most individual users which in effect limits the adequacy of such laws. Harmful speech online can take many forms other than those that can be covered by existing law, which is largely limited to slander or offensive speech of quite a specific nature, or hate speech targeting certain defined groups. The rapidly evolving multimedia nature of online communications also offers many new forms of harassment and abuse that may not be easy to anticipate in law beforehand.
14. Do you support the idea of an alternative tribunal able to provide speedy and efficient remedies for those who have been harmed by a criminal offense on line? (chapter 8 at 8.43)
Yes, the proposal of an Communications Tribunal to deal with criminal offenses online is both logical and reasonable. The enhanced public access to justice, speed and efficiency in design and benefit of subject matter expertise are obvious advantages. The implementation of a single, well publicized and accessible body of complaint is required to build confidence in victims of speech harms. It is hoped that user regulation and some form of “crowd sourcing” be encouraged in implementation to ensure efficiency and effectiveness.
15. Do you have any other comments on the proposals in this Issues Paper, or on its contents?
Commercial implications and potential liabilities of speech harms or abuses online is an important consideration which is not addressed in this paper.
iPAD-MAD: Three-year-old Oliver Clarke of Christchurch uses an iPad with his mother Jordana. 
