A plan to update the system for regulating our media content has been running under the radar for years. Some of the agencies that do it now backed the move to one single body, but this week the government dumped it over fears it could cramp free expression online. The minister cited feedback which overwhelmingly came from supporters of two lobby groups hostile to the change.
Photo: RNZ / Angus Dreaver
This week the Department of Internal Affairs (DIA) hit the headlines over claims of special treatment for a DJ who needed a passport in hurry. DIA was already in the news for long delays in issuing passports to people.
But another story at the department went almost unreported in the media, even though it directly affects them.
"The principle of free speech is important to this coalition government and essential... in the digital world. On this basis, the Department will not be progressing work to regulate online content," Internal Affairs Minister Brooke Van Velden announced on Facebook.
"Like the now-canceled 'hate speech' proposals these concepts were ill-defined and open to interpretation," she said.
Van Velden said she will prioritise strengthening internet filtering systems which prevent child exploitation instead.
Hear the arguments for and against reform of media regulation in this weeks Mediawatch.
The push for change
In 2018 under the previous government, the DIA initiated the Media Content Regulatory Review because different agencies originally set up more than 30 years ago were doing the job.
These include the Broadcasting Standards Authority (BSA), the Advertising Standards Authority (ASA), the Media Council and the Classification Office and - in recent years - NetSafe, the agency monitoring abuse of the internet.
But these days the media which they regulate all operate online. For that reason, many comparable countries have folded these responsibilities into just one joined-up body. The UK’s communications regulator is OfCom, Ireland’s is the Commission for Communications Regulation and it's the Australian Communications and Media Authority across the Tasman.
But the DIA's review also considered whether standards for online content should now be introduced here, similar to the ones news media companies are obliged to abide by.
In 2022 the outgoing Chief Censor David Shanks said a one-stop-shop was an idea whose time had come.
The Edge of the Infodemic report found 82 percent of New Zealanders "somewhat or very concerned" about the spread of misinformation in New Zealand. A majority thought "more should be done about the problem".
A year later Internet NZ - which campaigns for "a free and open internet" - agreed.
The one-stop shop plan
Last year, after consultation with media companies and other agencies with a stake in this, the Safer Online Services and Media Platforms discussion paper (PDF) proposed one new regulator at arms-length from the government.
It would have power to fine large internet-based platforms using new rules to tackle harmful content. Online content platforms with an annual audience of more than 100,000 or 25,000 registered users here would need to hammer out a code of practice - and stick to it.
The new body could also make online platforms take down illegal content quickly.
The DIA believed this could reduce harmful content online, citing "material promoting disordered eating, adult content in video games, and violent misogynistic content" as examples.
Media services like TV and radio broadcasters and news publishers would also need to follow new codes tailored to their industry. The regulator would have the power to penalise serious breaches of that.
"News media could develop their own code under this proposal - and continue to consider complaints for breaches of their code in the first instance," the document said. That is effectively what they do now anyway.
Internet NZ called it a "once-in-a-generation opportunity to make a safer internet".
Its own research surveys indicated 61 percent of New Zealanders thought regulation of social media platforms should be stronger, 65 percent were concerned with content that was "wrong or misleading" and 74 percent were concerned about children accessing harmful content online.
While media outlets currently subject to self-regulation were wary of the move, the BSA urged the government to go ahead.
After the change of government, BSA chair Susie Staley wrote to the ministers of internal affairs and broadcasting urging them to pursue the reforms.
"Beyond the drawbacks of confusion, cost and duplication... there’s also the risk of overseas interference through online channels," she warned.
But one year the proposals surfaced, the new government has quietly dumped them.
Proposals dumped
Almost unnoticed by the media, a summary of the public responses the DIA received when the proposals were open for submission was published on the DIA website last month.
It was also emailed to stakeholders - including media companies - on April 30 and advised them submission would be made public on 31 May.
"The release of these documents will conclude the Safer Online Services and Media Platforms project," it said.
"The DIA has abandoned an ambitious initiative to force social media platforms to abide by a mandatory code of conduct to reduce online ills," The Post reported late last week.
The Post's Tom-Pullar Strecker noted the DIA's website hosting the proposals now described the project in the past tense.
Public response to the plan
Most of the public submissions during consultation were opposed to the idea, van Velden said in her low-key Facebook post this week.
"They raised concerns about limits on freedom of expression and the potential for crackdowns on content that’s upsetting but not illegal," she said.
But the vast bulk of responses came via online templates from supporters of just two groups opposed to reform.
The DIA summary of submissions said 18,978 of the 20,281 received were pro-forma responses created using templates on the Voices For Freedom or Free Speech Union websites.
The anti-Covid vaccine advocacy group Voices For Freedom hailed the demise of the plan as "yet another example of public pressure in action".
The Free Speech Union said "Kiwis [had] spoken up" and won a "victory for free speech".
"It's clear that censoring the internet would be dangerous for New Zealand and our democracy," FSU said in an earlier statement.
But 105 unique submissions from groups such as Internet NZ, the National Council of Women, Rainbow Support Collective, Save The Children and Consumer NZ painted a different picture.
More than half were positive, nearly 40 percent didn’t specify a position and the DIA classed just over 10 percent as negative to the proposal.
Tech companies, including Meta, Google, Microsoft, X Corp (formerly Twitter), Reddit, and TikTok were generally positive, as were industry groups like the Association of New Zealand Advertisers.
There were concerns raised about the wording of the proposals - particularly by traditional media companies - and many submitters said "harmful content" needed to be defined more clearly.
But there was widespread agreement that our current pre-internet regulatory framework is outdated and new rules are needed.
Click and submit
This isn't the first time special interest groups have used template submissions to amplify opposition to proposed legislation.
When the End Of Life Choice Bill went before a select committee, groups opposed to the legislation set up tools to help their supporters deliver feedback.
In an op-ed for Newshub, Act leader David Seymour - the bill's prime mover - warned against putting too much stock in copy-and-paste responses from people who'd had "the fear of God put into them".
"No doubt the people behind these efforts will claim the sheer weight of numbers proves something other than the fact that if you badger people to do something enough, many of them will do it. Nevertheless, the numbers themselves don't tell us much," he said.
Veteran political journalist Richard Harman agrees.
"This is something that we're seeing in politics more and more. It's a simple thing for a pressure group to put up a template, and with a couple of clicks... this is sent to Parliament or to the minister as a measure of public opinion," he told Mediawatch.
This week Harman said on his website Politik the huge number of responses to the Environment Committee on the Fast Track Bill could "make a mockery" of the process.
Two thousand and nine hundred people requested the right to appear before the committee. But if online responses to a discussion paper are not duplicated or fraudulent, aren't they a legitimate expression of the concern of individuals?
"That's where the politician has to actually earn their money. At the same time, you will hopefully have reasoned and clearly thought-out submissions. You've got to balance [that] against pure numbers. And in this case, it would have been good if the minister had applied that judgment," said Harman.
"You don't get a hell of a lot of this sort of thing with income tax amendment bills. It's the big headline legislation where we see these large numbers being whipped up by pressure groups... from Greenpeace across to Family First and everything in between."
"I look at those individual submissions facilitated by organisations as... simply allowing people the ability to submit, and I think that is good for the submissions process," Brooke van Velden told Mediawatch.
"I've spoken to many people in public, who do have concern about what is freedom of speech in a modern environment. And this is a concern that this government takes very seriously, and we wish to uphold freedom of speech for every Kiwi."
"Where we're talking about legal content and regulators make a determination on whether or not it should be available for people to view and to see and to engage with - I think that's a step too far for this government to take"
Harman was formerly a political editor at TVNZ, whose viewers can complain to the BSA if they spot something they think is substandard. Today, Harman’s news website Politik is only subject to the Media Council standards (along with the newspapers and major online news publishers) because he opted for that.
"I'm in favour of a one-stop shop. The media is converging and we're going to see that very clearly when the Stuff TV news programme for Three swings into action soon. What you watch on TV will be subject to the jurisdiction of the BSA. What you read or watch on the internet may not be subject to any jurisdiction.
"The government may not want one authority but journalists and the media should. The simplest and most effective way to restore trust, as many other professions have found, is to have an independent regulatory authority as a backstop."
Could extending regulation encourage people of a censorious nature to use this new body to challenge speech they didn't like?
"That's the downside. The new body would have to have a degree of common sense, and reject vexatious complaints," he said.
What is the problem with the status quo?
Broadcasting Standards Authority Chief Executive, Stacey Wood gives evidence at Parliament. Photo: VNP / Phil Smith
The BSA’s chief executive Stacey Wood was disappointed by the minister’s decision.
"Our current jurisdiction limits us to taking action on complaints that are made to us about traditional TV and radio. And that's not where the majority of harm is happening to people who are consuming media these days," Wood told Mediawatch.
"Traditional broadcasters are already signaling their intent to move to digital-only. That could happen as quickly as within the next five years. And then we are sitting on our hands, because people can’t complain about something that doesn't exist anymore."
"I'm sure some people would rather [content] was simply unregulated. People could say what they want with no consequence. If we as a society decide that that's what we're comfortable with, then that's what policymakers will decide. And we'd need to reckon with what happens as a result."
Isn't it reasonable for people to suspect a bigger, single regulator with the power to have things taken down online could end up chilling free speech?
"That concept of harm is a difficult thing to try and quantify. But freedom of expression is... the right to impart and to receive the expression that you choose. With no regulation, more and more people feel unsafe to the extent that they don't want to participate in public forums, because of the flak they're going to get back. So it actually affects our overall right to freedom of expression too.
"The proposal was not really for a regulator to be targeting individual pieces of content. It's more about getting platforms to structure their services in a way that doesn't cause harm in the way that they feed content by algorithm to consumers."
Minister rejects reform
Photo: RNZ / Angus Dreaver
Van Velden has decided not to create a one-stop shop to regulate all media. But wouldn't one agency replacing at least four overlapping out-of-date ones be the sort of efficiency the government has been calling for?
"For me, it's quite clear that this is an extension of the previous government's work on hate speech law. Regulating harmful content online poses questions of subjective opinion on what is harmful material. And I didn't see a need to progress with this work," van Velden told Mediawatch.
"I think the variety of different information, reaching all the way from media organisations and institutions right down to individual blogs and forums, is so wide that it is actually better for it to be held in individual departments through regulatory services, rather than being captured by one large regulator."
"(Broadcasting Minister) Paul Goldsmith has work underway to look at the media landscape. I would consider that very different to the regulation of all online platforms, which is extremely broad."
Goldsmith has spoken about the need to review the aging Broadcasting Act, which dates back to 1989.
"I'm unaware of the scope of his work at this point," van Velden told Mediawatch.
Last week there was controversy about a New Zealand app telling users what products and companies to "boycott" based on whether they are connected to 'Zionists'. It prompted free speech advocate Sean Plunket to ponder - on his unregulated online service The Platform - whether cases like this make a case for stronger regulation.
This week NZ First MP Tanya Unkovic pointed out that for weeks she has been alerting Facebook followers to a Facebook page impersonating her. It made the news when the impostor sent insulting messages to people questioning the party's proposed Member's Bill on public toilets.
It's the sort of online misconduct a new regulator and code of practice could counter.
"I'm very sorry to hear that she has been impersonated online," van Velden said. "My understanding is that she has gone down the legal routes that are already available to her and reached out to NetSafe and there is an investigation underway."
"However, it is not clear that there is anything that a large regulatory body that seeks to regulate all online content for harmful content would be efficient and effective."
"I understand that there is concern from some people in the community. I would ask for parents to go on to the DIA’s website where you can find access to information on how to use filtering services that ISPs already allow parents to use. But I do not believe it is the role of government to start regulating what the government considers to be harmful information online."