Regulate for unimagined technologies, says InternetNZ

InternetNZ responds to Law Commission proposal for new regulatory body to govern media

Law Commission proposals for a new regulatory apparatus to accommodate developments in the media should be less specific to the current state of affairs and more "technology neutral", says InternetNZ, in response to the Commission's wide-ranging report The News Media meets 'New Media'.

The Law Commission paper recommends a unified body be set up to hold professional online publishers as well as traditional print and broadcast media accountable to a set of standards, similar to those currently applied to conventional newspaper publishers and broadcasters through the Press Council and Broadcasting Standards Authority.

In return, internet publishers would be able to avail themselves of some of the special treatment that currently protect traditional media, for example, exemption from relevant principles of the Privacy Act, accreditation to the Parliamentary Press Gallery and special privileges to attend non-public court proceedings.In trying to describe newer developments and draw a line round professional online publishers, the Law Commission uses current language such as "blogs" and "the read/write technology of the web".

Just as these technologies have, in the Law Commission's words "paved the way for novel and previously unimaginable ways of producing the 'public good' function inherent in journalism", "it is entirely possible, InternetNZ says, "that some new technologies, and societal use of such technologies, will produce further novel and currently unimaginable changes in the future.

Similarly, it can be expected that the disruptive impact of the internet will lead to a continued evolution of the business models and roles of today's newspapers and broadcasters.

"This requires any changes to laws be principles-based, technology-neutral, and relatively high-level so as to have the best chance to be fit for the future," InternetNZ says.

Some places where the term "bloggers" is used, for example, the sentence "some serious inaccuracies may not attract the attention of bloggers on the social media", would be better expressed using a broader term such as "online journalists", it says.

Publication online has made possible the "take-down order" requiring removal of offending content from a platform, as a remedy for erroneous or damaging publication.

It is InternetNZ's contention that such orders should be issued to the person or organisation that originated the content rather than involving intermediaries such as an internet service provider or hosting organisation, which would imply some responsibility on their part.

InternetNZ is concerned by references in the Lawcom paper to ISPs blocking access to websites, if takedown of content cannot be achieved. "Under no circumstances should an ISP be asked to block access to an offending website," its submission says "The avenues of communication must never be a chokepoint or used to 'exert some influence over website hosts' [a quote from the report]. Doing so undermines an open internet and potentially starts down a slippery slope of using ISPs as an arm of the state.

"The report makes the implicit assumption that the conventional media consists of companies with employees and most "new media" channels are run by individuals. Media such as Public Address or Scoop blur that dividing line, InternetNZ points out.The Law Commission brings online news aggregators under the definition of "new media". An unintended consequence of this may be to make online news aggregators the subject of complaints as publishers, InternetNZ's submission says.

"Where aggregation does not involve editorial control or opinion, it needs to be explicitly excluded from giving rise to liability."InternetNZ generally supports the formation of a unified body covering all media, but suggests it be organised as a professional association, like the Institute of Chartered Accountants, rather than a regulator.

"We believe membership of the approved journalism body should be entirely voluntary for everyone," it says.

Lawcom spokesperson on the project, Cate Brett, says the Commission has received more than 50 submissions on the new media paper and has extended the deadline, originally March 14, by "a week or two", to accommodate some already-promised late submissions. All submissions will be published on the commission's website once they have all been received and have been processed, Brett says.

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