Alan Ringwood: Crucial to protect press freedom

32 comments

We do not need any additional regulation of newspapers in New Zealand.

Lord Justice Leveson's report recommends a new regulatory body be established to monitor the press.  Photo / AP
Lord Justice Leveson's report recommends a new regulatory body be established to monitor the press. Photo / AP

After nine months of hearings and more than 300 witnesses Lord Justice Leveson has released his long-awaited Report on the Culture, Practice and Ethics of the Press, and announced his recommendations for the future governance and regulation of the press.

The key recommendation is that a new regulatory body be established, which would be independent of the press and the Government, and which would promote high standards of journalism and protect the public interest and the rights of individuals. In order to ensure the independence of this body it would not include any serving editor or politician.

Such a body would be self-regulatory, and would be empowered to set and enforce standards, hear complaints, and provide a quick and inexpensive arbitration service to deal with civil law claims. Newspapers would have the option of becoming members.

The operation of the new body would be monitored by an existing regulator such as Ofcom (the independent regulator and competition authority for the UK communications industry).

Lord Justice Leveson warned, however, that if newspapers were not prepared to join the new body it would then be necessary for Ofcom to act as a regulator of the press.

Mindful of England's 300-year heritage of press freedom, he took care to describe the proposed new regime as "self-regulation" by the press, rather than statutory regulation of the press; but given that the new body would be established by statute, imposed on the industry, and be entirely independent of the press, the British media have unsurprisingly not seen it in quite the same way, and have not been mollified by the separate recommendation to enact a new legal duty on the Government to protect the freedom of the press.

Like England, New Zealand has a free press, as that term is generally understood. Under s.14 of the NZ Bill of Rights Act everyone in New Zealand has the right to freedom of expression; and by virtue of s.5 that freedom should be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

This freedom, even though only relatively recently guaranteed by statute, is the legacy of many battles fought over many centuries in the western liberal democracies to extricate the press from control, censorship, licensing, taxation and other forms of interference by the state and the church.

It is, however, too easy in New Zealand to take the freedom of the press for granted. It is not unusual to hear politicians, judges, commentators, friends and colleagues bemoan the quality of news reporting, despair at the content of news programmes, criticise the standards of newspapers, and generally treat the press as something common and a little distasteful.

This attitude to the press seems to overlook two important things. The first is that to be a free press, the press must be free to publish what it wants to publish. Freedom of the press means that as well as reporting the proceedings of Parliament and the utterances of politicians, newspapers can also report petty disputes between neighbours and stories about lost pets.

In addition to reporting the proceedings of the courts, newspapers can criticise sentences which appear inadequate, decisions which seem wrong, and judges whose decisions appear inane. In addition to reporting the outcome of international sporting fixtures, newspapers can report the drunken antics or criminal behaviour of sports stars off the sports field.

If celebrities walk our streets or play on our beaches you can see the pictures in the paper. If there are difficulties in the romantic lives of celebrities you can read about that in the magazines. Freedom is the freedom to publish gossip as well as serious investigative journalism.

The second thing that critics of the content of newspapers seem to overlook is that newspapers are a business, and they are largely a paper business in a world that is increasingly digital.

If newspapers are to stay in business then they have no option but to publish what the public wants to read, ie, content that "sells newspapers"; and criticism of the content of newspapers is really therefore just criticism of the tastes of the general public.

People who sniff at the publications of the free press really don't know how lucky they are. No one but the sworn enemies of western liberal democracy should want the alternative- a press which is not free; not free to criticise the government; not free to embarrass politicians; not free to lampoon the pompous and identify the fools; not free to criticise the courts or judges; not free to campaign for justice; not free to expose wrongdoing, corruption or hypocrisy; not free to take any side in public debates; not free to say what needs to be said on any subject; not free to express any editorial opinion; not free to publish all aspects of the minutiae of daily life in New Zealand no matter how seemingly trivial; not free to publish photographs of celebrities; not free to publish gossip; not free sometimes to be wrong.

It is very easy, after an affair of the proportions of the British phone hacking scandal, to conclude that the press is rather too free, is a touch feral, is out of control and needs to be ruled and regulated, overseen and controlled.

But, awful though the phone hacking affair undoubtedly was, this is not the right conclusion to draw from it. It is important to remember that the activities carried out by News of the World journalists were completely unlawful and could have occurred under any regulatory regime. Some of them have already been punished. Many others are being prosecuted for their roles in the affair.

Many of the people whose privacy was infringed have sued and recovered substantial damages. It was a newspaper, the Guardian, that broke the story of the full extent of the hacking, when the police had decided that it would be better not to alert all of the victims. Lord Justice Leveson knows very well the importance of the freedom of the press - he quoted John Milton's 1643 line "Give me the liberty to know and to utter and to argue freely according to conscience, above all liberties", and also Thomas Jefferson's "Where the press is free and every man able to read, all is safe".

This is no doubt why he felt it necessary to downplay the nature of his proposed new regulator, and to try to sweeten the deal with a statutory duty to protect the freedom of the press. Even so, the British Government rejected the proposals so immediately following their release that there could hardly have been time to read them.

Here in New Zealand there are continuing impediments to freedom of expression, and still battles to be fought and won for the freedom of the press. We had state interference in media coverage of the last general election when police officers entered newsrooms in the closing stages of the campaign to seize copies of the "teapot tapes".

We had New Zealand Herald journalists banned from Parliament for 10 days following the publication on the Herald website of a photograph of a man who tried to jump from the public gallery into the debating chamber.

We have expansionist privacy laws elbowing freedom of expression aside. Our defamation law has not kept up with developments in other common law jurisdictions, with the result that it has a chilling effect beyond that which is inappropriate in the modern age.

Suppression orders are regularly being made by courts and tribunals in circumstances which do not satisfy the proper criteria for such orders. And it can often then be difficult or impossible to ascertain what exactly has been suppressed. We have controversial restrictions on what can be reported about suicides.

We even still - in the 21st century - have a blasphemy crime on our statute books, and it is punishable by a year's imprisonment, so I would literally risk being jailed for elaborating freely on what I think about that.

We have seen New Zealand drop out of the top 10 ranked countries for media freedom. With all this and more to contend with when considering what can safely be published, we certainly do not need any additional regulation of the press in New Zealand of the sort recommended by Lord Justice Leveson for the UK.

Alan Ringwood, a partner with Bell Gully, is the Herald's legal adviser. This is an edited version of an article that appears on the Bell Gully website http://tinyurl.com/cswl7l4

- NZ Herald

Have your say

We aim to have healthy debate. But we won't publish comments that abuse others. View commenting guidelines.

1200 characters left

Sort by
  • Oldest

© Copyright 2014, APN New Zealand Limited

Assembled by: (static) on red akl_a2 at 31 Jul 2014 07:31:23 Processing Time: 594ms