The media and freedom of expression

Freedom of expression as it relates to the news media has been assiduously defended and promoted for centuries by both the public and the press itself. For example, the media’s concern was summed up in an editorial on World Press Freedom Day. The Dominion Post said:

The cumulative chilling effect of defamation laws, privacy czars, race relations legislation and government agencies, or MPs who would limit the media’s ability to report opinion and news events, can result in slow death by a thousand pin pricks (p.14).

There is a long-established democratic principle that the news be independent, and be seen as independent, from the State. This principle applies even when the media are State-owned. David Innes of the Radio Broadcasters’ Association said media industries have two reasons for desiring a high level of free expression: democratically, a range of opinions is important in newsgathering and talkback radio; and commercially, for ‘selfish’ or personal interest in terms of audience ratings.

Limitations on the media’s right to freedom of expression

Legislation

A number of statutes limit the media’s right to freedom of expression in New Zealand. One of the most significant is the Broadcasting Act 1989, which provides for the maintenance of programme standards and covers state-owned Radio New Zealand and Television New Zealand, privately-owned television such as CanWest’s TV3 and its radio stations, other privately-owned radio, subscription television such as Sky, and Maori broadcasting (including iwi radio and the Maori Television Service).

Section 4 of the Broadcasting Act refers to the broadcaster’s responsibility for maintaining, in its programmes and their presentation, standards that are consistent with:

• the observation of good taste and decency
• the maintenance of law and order
• the privacy of the individual
• the principle of balance when controversial issues of public importance are discussed
• any approved code of broadcasting practice applying to programmes.

The Act establishes a complaints regime by which broadcasters themselves take responsibility for their own codes of practice, which are signed off by the regulator, the Broadcasting Standards Authority (BSA). Members of the public who believe a broadcast has breached one of the codes must first complain formally in writing to the broadcaster within 20 days of the broadcast. Only if the complainant is dissatisfied with the broadcaster’s decision or action can the matter be referred to the BSA. Under section 21(e) of the Act, the BSA has the function of encouraging broadcasters to develop codes of practice that cover:

• the protection of children
• the portrayal of violence
• fair and accurate programmes
• safeguards against the portrayal of people in a manner that encourages denigration of, or discrimination against, sections of the community on account of sex, race, age, disability, or occupational status, or as a consequence of legitimate expression of religious, cultural or political beliefs
• restrictions on liquor promotion
• appropriate warnings and classifications.

A similar high threshold to section 61 of the HRA, that of encouraging denigration or discrimination, is contained in the Broadcasting Act. However, the broadcasting statute has widened the categories to include religion. Religion is also addressed in Article 19 of ICCPR, which refers to legislation that restricts incitement to religious discrimination and violence (Rishworth, forthcoming).

Because of some high profile decisions, such as upheld complaints against the Rock radio station on grounds of good taste and decency, and against TV3 in respect of fairness and balance in the Corngate case, the BSA has recently been criticised by broadcasters who would prefer to self-regulate. Clare Bradley, legal counsel for TV3, suggests that any upholding by the BSA of a breach of broadcasting standards introduces a ‘very real chilling effect on news production’. David Edmunds, TVNZ’s complaints manager, believes the BSA decisions contribute to a risk-averse news environment. He says it is part of his job to be there for journalists who want to check points with him. News workers come in and say,

the BSA did something or rather so many months ago and now I want to do this, can I do it? Obviously they're feeling inhibited in what they can do.

Media law expert Ursula Cheer sees it differently.

I think [the BSA]’s absolutely essential. Of course the media don’t agree with that, they hate it … I believe in freedom of expression with responsibility. I think any freedom goes hand-in-hand with responsibility; it’s the flipside of the coin. So I do think it’s compatible within a Bill of Rights and a rights-based legal system that you have a balancing exercise.

A group examining television violence in New Zealand that included broadcasters, regulators, academic and viewers’ representatives among its members concluded that the level of violence on New Zealand television had increased. In addition to the overall high inclusion of violent content, there were some disturbing violent promotional trailers for upcoming programmes (Report to the Minister of Broadcasting of the Working Group: TV Violence Project, 2004). The emerging roles of women as both perpetrators and victims of violence, and children as victims of violence, were of concern. The group proposed a model of precautionary risk management to reduce television violence. The model envisages more attention given to those groups vulnerable to the influence of television violence, strategies to allow viewers to monitor the amount of violence experienced, and investigation into ways of reducing the role that television violence plays in promoting antisocial and violent behaviour. The report proposed extending the responsibility of the BSA to give it an educative function that will complement its existing quasi-judicial role. Broadcasters gave the report a lukewarm reception, but the industry is looking further at the issue.

Self-regulation

By contrast with broadcasting, the print news media are self-regulating, through their own ethics body, the Press Council. The Press Council places great importance on the need to protect free expression, arguing that:

Freedom of expression and freedom of the media are inextricably bound. The print media is jealous in guarding freedom of expression not just for publishers’ sake, but, more importantly, in the public interest (cited in Tully & Elsaka, 2002, p.153)

However, while the industry identifies the Press Council as an upholder of the best journalistic standards and ethics (e.g., Taken for granted, 2003), it has been criticised for superficial consideration of the responsibilities that accompany free expression. The Council’s long-awaited statement of principles is variously described as inadequate, superficial and ambiguous in the way it deals with reporting children and diversity (Tully & Elsaka, 2002). The Council has also been accused of inconsistency in the way it uses ‘free expression’ as a justification for rejecting complaints. In a commentary on the Mediawatch programme, it was noted that the Press Council upholds only about seven percent of the complaints it receives, leading to the observation that ‘the Press Council is doing a fine job of upholding the freedom of the press. The trouble is, it’s not much chop at upholding complaints’ (Complaints to the Press Council, 2002). Urging the Press Council to be more proactive, Tully and Elsaka (2002) state:

Effective self-regulation requires a genuine commitment to balancing freedom and responsibility, the will to monitor and respond to changes in journalism practice and the media environment, and a proactive policy toward initiating reform rather than merely reacting to political pressure (p.151).

Contemporary views on the media’s right to freedom of expression

Perhaps inevitably, journalists and broadcasters believe more than other commentators that the right to freedom of expression in New Zealand is under threat.

Gavin Ellis, editor of the New Zealand Herald and chair of the Press Freedom Committee, says there is no single overriding threat but ‘an erosion of freedom by a multiplicity of small steps’. Regulation is only part of the problem, he believes:

There is also a growing sense that there are some areas that are no-go areas. Now these are not governed by any form of regulation but by social convention and as a result people are loath to enter into discussion or debate on those issues. Such things as the Holocaust … I don’t for one moment agree with those people who deny the Holocaust but by the same token I disagree with those who say that you can have no other view than the accepted, ‘official’ view on the Holocaust.

However, three journalism educators are more comfortable with the balance between freedom of expression and self-imposed or regulatory limitations. Former editor and academic Jim Tucker thinks New Zealand has struck a good balance between free expression and regulation, and doesn’t believe press freedom is under any real threat:

I think the media can look after itself. I tell my students I don’t believe there’s any piece of legislation that prevents them from doing their job, if they do it properly. We’re in a healthy position. I think that we have equally powerful forces that play this out.

Canterbury University’s Jim Tully is also fairly comfortable with the existing balance, but believes there has been a lessening of the media’s ability to fulfil their democratic function since State sector reform in the mid 1980s, when many former public organisations in various sectors such as health, electricity and ports were open to media accountability. Journalists have had to use the Official Information Act more frequently to penetrate the resultant climate of secrecy, which has resulted in ‘the public and the media being increasingly excluded from that watchdog and scrutinising role,’ Tully says.

Like others, Paul Norris, who heads New Zealand’s School of Broadcasting, does not see defamation as a significant curb on free expression:

I start from the view that freedom of expression is not absolute. There will have to be, in any civilised society, some restraints on freedom of expression and defamation seems to me to be one legitimate restraint, as indeed is contempt. Privacy is a bit more complicated.

Norris sees the Official Information Act as a vital tool and says the Ombudsmen’s decisions need to be carefully monitored to check whether the Act is delivering on the promise of open government. However, he believes New Zealand has a strong international reputation for freedom of the press.

Media law Professor John Burrows identifies four challenges for the media in terms of the right to freedom of expression:

• whether journalistic protection in terms of defamation established in the Lange cases extends beyond politicians to other public figures
• privacy rules need to be very tightly defined and there needs to be clarity about what interests are being served – TV3’s Clare Bradley goes further and identifies the threat of celebrity ‘brand protection’ where celebrities like the All Blacks control their photographs and images in a way that avoids news media scrutiny, as a future challenge
• the trend towards companies and government departments pleading commercial sensitivity in a bid to cover up issues
• if the internet is abused and boundaries pushed the Government may be forced to regulate, in a move that could affect all media.

The issue of internet regulation is unresolved worldwide, because the medium is seen as ‘anarchic’ and because it defies national boundaries. Its speed of distribution, the potential for anonymity of sourcing and its irrecoverable nature make it inherently unsuited for post-publication regulation. Internet Safety Group Director Liz Butterfield sees the ability of internet users to manage their risk of being exposed to offensive or harmful material as an issue important in terms of freedom of expression. She lists the ways children, in particular, can be harmed through unsolicited email, cyber-bullying, hate speech sites, invasion of privacy and pornography. Both Butterfield and Peter Macauley of Internet NZ support well-resourced education for parents and children, the development of ‘social codes’ to govern behaviour on the internet, and international consensus for action on pornography.

There was general agreement among stakeholders that there is a lack of public discussion about the right to freedom of expression in New Zealand. Gavin Ellis says that the media are a strong avenue but on the whole do not do a good job. Newspapers could do more, talkback radio is good in principle (but does not always provide rational debate) and television is woefully inadequate, he believes. Catherine Austin of the OFLC suspects that the public perception is one of limited accountability, of public powerlessness, linked to confusion over concurrent jurisdictions, the time and money it takes to complain about issues, and the lack of guaranteed outcomes from inquiries and complaints. Media lawyer Ursula Cheer believes one result of the BoRA is that New Zealanders are getting better at debating the issues. Jim Tully suggests that new technologies such as the internet might prompt consistent and ongoing debate because of the challenges they pose.

Privacy

Privacy rights are important and diverse, but only a brief discussion of how they intersect with freedom of expression and the media is possible in the context of this paper.

Four interrelated developments are impacting on privacy. They are:

• technologies such as long lens photography, digital manipulation, and audio and video surveillance mean intrusion is possible in both private and public realms without trespass
• the boundaries between public and private life have all but collapsed, and those with a public status or celebrities who court publicity are deemed to have less reasonable expectation of privacy
• increasing media aggression corresponds with global commercialism and market competition and manifests itself in boundary-pushing journalism
• the State, broadcasters and the public have a degree of consensus that children are in a special position, and their vulnerability should be a prime concern.

There is no express right to privacy in the NZ Bill of Rights Act 1990 despite Article 17 of ICCPR, which states: ‘No one shall be subjected to arbitrary or unlawful interference with his privacy, family home or correspondence, nor to unlawful attacks on his honour or reputation. Everyone has the right to the protection of the law against such interference and attacks.’ The same right of privacy is specifically applied to children in the United Nations Convention on the Rights of the Child (UNCROC).

When a celebrity broadcaster sought unsuccessfully to restrict publication of photographs of his baby children, the Court of Appeal President, Justice Gault, said: ‘we do not accept the omission from the Bill of Rights Act can be taken as legislative rejection of privacy as an internationally recognised fundamental right.’ [12]

The Privacy Act 1993 exempts the news media from its operations when information is collected for news activities, including editorial opinion and current affairs. Tucker (1997) suggests society and the media have an odd pact over privacy:

Journalists are ‘allowed’ to intrude on individuals’ private lives, so long as the benefits for everyone are apparent. When they’re not, society reacts by withdrawing part of the traditional sanction. Television, with its spectacular capacity for showing distress and indignity, has never been fully trusted with the sanction (p.17).

Broadcasters are not exempt from all privacy restrictions in their reporting. Section 4 of the Broadcasting Act states that every broadcaster is responsible for maintaining standards consistent with the ‘privacy of the individual’. The Act itself is silent on what constitutes privacy, but a series of privacy principles have been drawn up. These include:

• the protection of privacy against public disclosure of private facts, where the facts disclosed are highly offensive and objectionable to a reasonable person of ordinary sensibilities
• some kinds of public facts can become private again because of the passage of time
• protection against intentional interference in the nature of prying with an individual’s solitude or seclusion. This does not cover photographs taken in a public place
• protection against a broadcaster using the airwaves to deal with a private dispute
• protection against broadcaster disclosure, without consent, of names, addresses and telephone numbers of identifiable people (subject to the ‘public interest’ defence)
• the idea that someone who has consented to an invasion of privacy cannot later claim a breach of privacy.

The principles also state that ‘children’s vulnerability must be of prime concern to broadcasters. When consent is given by the child, or by a parent or someone in loco parentis, broadcasters shall satisfy themselves that the broadcast is in the best interests of the child.’

There is now a growing body of decisions from the BSA, as the regulator, relating to privacy and children’s interests. In a recent case involving a television documentary about child prostitution in Fiji, the Judge said:

TV3’s absolutist stance – that freedom of expression trumps all – is simply not right. A balancing of interests is required. The restriction on freedom of speech effected by the Authority’s [BSA’s] decision is minor compared with the competing need for protection of children. [13]

In the Hosking case, however, the Commonwealth Press Union submitted that while freedom of expression was an important right guaranteed under BoRA, by contrast there was no express right to privacy in BoRA. Freedom of expression should not therefore be restrained unless the exercise of that freedom threatens the very conscience of a citizen, and his or her ability to move freely within the community and be safe from harm.

“5000-7000 people got on the street a couple of weekends ago and protested against the war. That’s a right to speak, no-one closed us down”
Māori female focus group participant

In general, the media oppose privacy restrictions because they believe the issues involved are best dealt with by education and self-regulation, that they impose their own ethical judgements and guidelines, and because the public good generally outweighs an individual’s rights. Privacy legislation is seen as creating a culture that inhibits the media’s watchdog role and therefore disadvantages the public.

Currently in New Zealand, privacy is emerging as a common law tort through a series of High Court and Court of Appeal cases. The Court of Appeal in the Hoskingcase suggests this evolving process should not be interrupted. Justices Gault and Blanchard said there was a case for a right of action for breach of privacy through publicising private and personal information, on the basis that:

• it was consistent with New Zealand’s ICCPR and UNCROC obligations
• the BSA had demonstrated its workability
• it allowed for the accommodation of children’s interests
• it allowed for competing values to be reconciled.

Privacy protection is in transition, and this is likely to accommodate technological development, changes in media behaviour, societal attitudes, values and practices. Reconciling the right to freedom of expression and the right to protection of privacy remains a significant challenge.

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