Embracing our mantra, “We’re ready for what’s next,” our team stays abreast of evolving laws, proposed bills, and government reviews in New Zealand. This allows us to provide strategic, proactive legal advice to clients, guiding you through the complexities of the ever-changing legal landscape. With a particular interest in social and media-related issues as they intersect with law, Consultant Richard Osborne has been following the Department of Internal Affairs’ new discussion paper, Safer Online Services and Media Platforms. Public consultation is now open on a proposed approach to government regulation of online services and media platforms in New Zealand. Richard’s article, below, offers a summary of where the Review has got to thus far. Richard identifies some of the obstacles the proposal must wrangle with, including its cross-over with the Bill of Rights Act, allowances for freedom of speech and the legal definition of “safety”.
Safer Online Services and Media Platforms
The Department of Internal Affairs has just issued a Discussion Paper, Safer Online Services and Media Platforms, June 2023. It is based on commissioned research. The research demonstrated harm suffered by New Zealanders from media content (especially that delivered online). It also summarised comparable country responses to that harm, mainly through centralised regulation (Australia, Canada, and Ireland).
The stated aim of the Review is to design and implement a new approach to content regulation that minimises the risk of harm caused by content to New Zealanders. Current regulation of these matters exists, through voluntary compliance (eg NZ Media Council), state organisations (eg NZ Police) and legislation (eg Crimes Act 1961, Harmful Digital Communications Act 2015, Privacy Act 2020).
The Review argues that these tools are inadequate, have gaps, and are reactive i.e. rely on complaints made. A particular focus of the review is on social media and similar platforms, including blogs and podcasts. The Review considers them as currently unregulated. Therefore, depending on their content they could be potentially harmful, especially to children.
The Review emphasises that current definitions of what is legal or illegal would not be changed and observes that these already deal with objectionable material. However, the Review recommends that one regulator, separate from Government, should have responsibility for creating legally enforceable codes of practice designed to protect consumers from harm, and therefore keep them safe. The codes are to be created through industry consultation. They would apply in particular to larger or high-risk platforms.
Definitions
But safety – “from what” – is the question? The Review itself notes (paragraph 10) that, “Being harmed is distinct from being offended (although content that is harmful will often also cause offence)”. That identifies part of the problem. Extreme violence or obvious sexual predation might be easily identifiable as raising safety issues (and dealt with under existing law) but what about uncomfortable opinions? From that perspective, how are “harm”, “safety” and “content” to be defined in the proposed, industry-created codes of practice? As they would be legally enforceable, presumably they would sit alongside existing law so that a breach of “safety” would be illegal.
Bill of Rights Act 1990
And where would the Bill of Rights Act 1990 fit? The Review mentions freedom of speech peripherally (e.g. pp 9,13,19, 20, 57, 154, and 83). The Review does state that any regulation must be consistent with freedom of expression, non-discrimination, and privacy rights (paragraphs 21 and 22). It also refers explicitly to the Bill of Rights Act in Appendix C and notes that the “balance between freedom of expression and consumer safety is central to this work”. However, that balance and centrality is not explored to any significant extent in the Review.
The Bill of Rights Act has recently been strengthened. Judicially identified breaches of its provisions must now be explicitly dealt with in Parliament. It is observable that New Zealand’s diversity, by definition, includes difference of strongly held opinions, many not palatable to mainstream views. As a result, the Act is being increasingly used to challenge apparent consensus (the many Covid-related cases being but one example).
The Central Scrutinizer
On this critical issue of freedom of speech in a free society, the Review leaves one with a sense of gaps, unease and echoes from Frank Zappa’s symphonic Joe’s Garage where The Central Scrutinizer, in attempting to ban “the horrible force called music” said, “It is my responsibility to enforce all the laws, That haven’t been passed yet”, the “horrible force” being “so dangerous to society at large that laws, Are being drawn up at this very moment to stop it forever!”
