Submission Re: Consultation Paper: “Broadcasting and New Digital Media: Future of Content Regulation”
Ministry of Culture & Heritage January 2008
Society’s responses to Ministry Questions submitted 11 April 2008
Q 1 What concerns are appropriate to be addressed through content regulation.
These concerns should include all content that could be considered “objectionable” and/or “injurious to the public good” …. all the matters covered under Sections 3(1), 3(2), 3(3), 3(3)(A) and 3(3)(B) of the Films, Videos, and Publications Classification Act (1993), which was amended in 2005. Concern should also include all matters related to issues of fairness, accuracy, balance and personal privacy, as well as others currently dealt with in Section 4(1) of the Broadcasting Act (1989). Consideration also needs to be given to the current set of principles established by the Press Council as well as matters dealt with in s. 21 of the Human Rights Act 1993 relating to the treatment of classes of persons.
Q 2 Should a single regulatory regime apply to all broadcasting-like content no matter how it is distributed? Yes/No
Yes. Because the definition of the term “broadcast” in s. 2 of the Broadcasting Act (1989) has become problematic, in the light of rapidly changing broadcast platforms (internet, mobile phones, etc). A single detailed and comprehensive regulatory regime governing all such content would be more effective in balancing two objectives: (1) preventing injury to the public good – thereby limiting social harm and (2) ensuring freedom of expression. In addition, a fairer and more impartial assessment of content matter would be achieved when decisions are issued from a single body charged with upholding these objectives across all “broadcast” and “broadcast-like content”. This change to a single entity would require a legal clarification of the definition of “broadcast” in legislation and of problematic terms such as “on demand”.
Q 3. Should the same general regime apply, but with a less strict or detailed code for content received on the demand of individuals than for content broadcast conventionally? Yes/No.
No. The present Broadcasting Code of standards – providing a general regime of self-regulatory principles, avenues of complaint to broadcasters and an appeal process – is completely inadequate for much of the content that is currently broadcast by conventional means (transmission of content to an audience on a one-to-many basis). The standards are vague and ill-defined leading to inconsistent and controversial decisions being issued by the BSA and Advertising Standards. The decisions appear to many to make a mockery of the very standards that the majority of the public want upheld. The standards regime should be just as robust for content accessed from providers where it is not provided on a one-to many basis. The distinctions between such broadcast formats (conventional versus non-conventional) are becoming more blurred with time with the advancement of digital technology and the ‘hybridization’ of formats.
Q 4 Publicly-owned broadcasters have special mandates to set standards of quality (such as the Charters of TVNZ and Radio New Zealand or the legislation of Maori Television). Should their content be regulated differently from the content of private-sector broadcasters or the same? Differently/The same
They should be regulated the same way with respect to all content that ‘comes through’ (or can ‘fitted into’) one or more of the five censorship gateways of sex, horror, crime, cruelty, or violence, found in s. 3(1) of the Films, Videos, and Publications Classification Act 1993 and or deal with matters covered under ss. 3A and 3B of the Act. A distinction needs to be drawn between the two (public versus private broadcasts) when it comes to some issues of journalistic balance on controversial topics. For example, a privately owned broadcaster may wish to seriously critique a particular scientific view such as global-warming and promote an alternative. It would be quite absurd that freedom of expression could be curtailed to such a broadcaster by a regulatory censorship body of any kind. However, if a state-owned broadcaster, funded by tax-payers, constantly promoted a highly controversial scientific theory without ever attempting to provide any balance by way of alternative theories, it would be unfair that a subscriber to free-to-air broadcast had no avenue to take up their complaint with the broadcaster and seek balance. The sorts of contextual matters dealt with in s. 3(4) of the FVPC Act 193 should be taken into consideration when publicly funded broadcasts become the subject of public complaints regarding objectionable content.
Q 5 Should broadcasting-like content provided to audiences from overseas be subject to New Zealand’s regime for content regulation? Yes/No
Yes, although the mechanism for doing this requires a different strategy compared to that used for any homegrown product. For years the Society has campaigned for Internet Service Providers (ISPs) to be required by legislation to put in place a system that screens out highly objectionable Internet content as defined in s. 3(2) of the FVPC Act. A trial of this kind involving a number of ISPs is currently underway in New Zealand. The Society believes that the same dedication and commitment given by censorship officials in the locating and prosecuting of paedophiles who commit crimes using the internet (accessing and trading in objectionable material), should also be applied to other forms of objectionable content listed in s. 3(2), easily accessed on the internet.
Q6 If you answered yes, what form should regulation take, and who should regulate such content.
Definitely NOT the chief censor Bill Hastings or his Deputy Ms Nicola McCully or any agency headed by them. These two censors, who hold the only two statutory positions in the Office of Film and Literature Classification, have for many years allowed a tidal wave of moral filth into New Zealand – including explicit sexual material (DVDs, videos, films) that utterly degrade, dehumanise and demean women. Those who regulate such content should be individuals of sound moral and personal character who have a determination to uphold the public good and protect children and young persons in particular from corrupting, vile, and toxic content matter.
Q7 (a) Should there continue to be a state agency available in New Zealand to operate a system of content regulation? Yes/No
Yes. The body must truly reflect New Zealand community family values and be answerable to the public by way of an open review process, as well as answerable to a governing board with community representatives and to the Minister.
b) Should broadcasters be able to regulate themselves, within the requirements of legislation? Yes/No
Yes but in tandem with legislative controls. A self-governing body should exist to ensure that ALL members adhere to the legislation, share methods and technology that assists in the maintenance of the public good, and be fully referenced to an outside review body that can assist them.
Q 8: (a) Are the current arrangement for monitoring public broadcasting and the broadcasting environment adequate? Yes/No.
No. Standards of decency in particular are rapidly being eroded to an alarming degree – grossly offensive expletive-filled programmes that flaunt sexual promiscuity, deviancy and graphic violence are too often being defended by the Broadcasting Standards Authority. This Society has lost faith in the competency of this body. The BSA is a tired, worn out agency – a dinosaur that serves only to prop up a failed monitoring regime.
(b) Are there any gaps in the current arrangement? Yes/No.
Yes. The manner in which the BSA approaches complaints relating to standards of “good taste and decency” is seriously flawed and completely inadequate. It needs a major overhaul. Its decisions are often so bizarre and out of touch with the real needs of a decent society that one wonders why New Zealanders continue to waste time lodging complaints with this agency. The jurisdiction of the current regime (BSA, ASA) is limited under the Broadcasting Act based on the definition of what constitutes “broadcasting” found in section 2 of the Act (“Interpretation”). The BSA Decision 2004-2007 Kevin Davies v. Television NZ (dated 31 March 2005) established that downloads “on demand” from the TVNZ website, or for that matter any NZ-based website, where visual material is “NOT constantly streaming”, fall outside the jurisdiction of the agency. The development of this digital technology opens up new horizons for the dissemination of potentially objectionable and/or problematic content. Because Internet service providers in New Zealand currently operate without a code of practice, the opportunities are there for rogue websites to foist all manner of offensive content into the public arena. Given the appalling track record of the Chief Censor’s Office to put the breaks on the inflow of grossly offensive sexual content (DVDs and videos) into the home ‘entertainment’ market, we cannot rely on this Crown entity to safeguard the public good when it comes to objectionable and morally repugnant, corrosive and toxic home-grown (NZ) website content.
Q 9 If you believe that there are gaps in the current arrangement, would such an agency play a useful role? Yes/No
No. An entirely different structure is required. Time does not permit full discussion. Suffice to say, the Society wants major public input at all stages in the review process of complaints, a detailed clarification of what constitutes “standards of decency” under any Code of Practice.
Q 10 Do you favour a stronger role for a state agency in encouraging media literacy. Yes/No.
Yes.
Q 11. Yes.
Q 12 Yes
Q13 Yes
Q14 Yes. But specifics are required. See above.
Q 15 (a) Yes (b) Yes (c) Yes. As covered above.
Q 16 No. Both required.
Q 17 Yes
Q 18 Yes
Q 19 (a) – (c). An achievable and desirable goal for all good public broadcasters.
Q 20. No
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