Proposed overhaul of New Zealand's media and online content regulation
DIA proposes a familiar, flexible approach to online content regulation - but will the proof be in the penalties?
New Zealand's Department of Internal Affairs (DIA) has announced the next stage of its holistic review of media and online content regulation, asking for submissions on its discussion document: Safer Online Services and Media Platforms Consultation by 31 July 2023.
The review was initiated in 2021 with the intention of streamlining the current content regulatory environment to produce a modern, flexible, and simple framework, fit for the ever-evolving media and online content industry.
The current framework, anchored by the Films, Videos, and Publications Classification Act 1993 and the Broadcasting Act 1989, was designed in the late 1980s and early 1990s and took a siloed approach to regulation based on traditional categories of analogue media and content including books, magazines, free to air tv and radio. Unsurprisingly, it is no longer fit for purpose in a media landscape dominated by global, digital platforms.
What does the DIA's discussion document propose?
The current regulatory system includes various overlapping statutes, and numerous regulatory bodies (including the Broadcasting Standards Authority, the Classifications Office, the Advertising Standards Authority and the New Zealand Media Council). Some are independent regulators established under statute, while others are industry-based organisations reliant on voluntary compliance. This fragmented approach makes it hard to navigate for content providers, and also for consumers, which is a significant limitation in a reactive regulatory framework that is reliant on consumer complaints.
In 2019, the live-streaming and subsequent sharing of a recording of the Christchurch terrorist attacks on Facebook demonstrated that the current system is inadequate to protect the most vulnerable communities and does not provide regulators with appropriate tools to deal with unsafe and illegal content. In 2022, the Films, Videos, and Publications Classification Act 1993 was amended to allow for urgent interim classifications of content and give the authorities the power to issue take-down notices for objectionable online content. However, this was effectively a band-aid to plug a gap while the media and online content regulatory regime was being reviewed.
To provide a more coherent, fit for purpose regulatory environment, the DIA is proposing a single, technology-neutral framework covering social and traditional media. The new framework would contain a mix of strict legal obligations, consumer education objectives and industry-specific codes of practice establishing standards for how “larger or riskier” content platforms that “should achieve high level safety objectives”. The proposed approach focuses on reducing the risk of consumer exposure to harmful content, while also providing adequate tools to respond when harm does occur.
The DIA's proposal is based on four key elements:
- an “industry regulation model” under which primary legislation establishes high-level consumer safety objectives and industry-developed codes of practice for large platforms, setting out more detailed standards and processes to managing consumer safety risks, such as processes for dealing with consumer complaints and removing harmful content;
- a new regulator, independent from the government and the industry, with responsibility for overseeing and approving codes of practice, monitoring compliance, directing non-compliant platforms to take remedial action, and issuing fines for significant non-compliance;
- continue and expand the current take-down notice regime to require platforms to remove or block access to other types of illegal material beyond just objectionable content; and
- invest in consumer awareness and education to ensure consumers can make informed decisions about their content consumption and media choices.
But will this be an effective approach?
Obviously, it is difficult to predict the success of the proposed regulatory regime, especially at this early stage in the review. However, this principles-based, industry regulation approach is common in New Zealand, due to its relative size and power in an increasingly globalised market.
While there are existing regimes with similar principles (including the Privacy Act 2020 and the product stewardship schemes under the Waste Minimisation Act 2008) that we can look to for examples of the are pros and cons of a flexible, industry regulated approach, in our view, the efficacy of these types of regimes often comes down to the availability of clear guidance from the regulator, proactive enforcement and proportionate penalties.
Clear guidance and enforcement
Flexible regulations are inherently ambiguous. Without detailed guidance from regulators and proactive enforcement, it is difficult for businesses to understand their obligations, how they can be implemented, and how they will be enforced in practice. Enforcement action sets a practical expectation for compliance and elucidates how the regulator and the courts interpret the legislative requirements.
Guidance would ideally provide a range of realistic examples and the regulator's expectations in relation to the application of the legislation and codes (not just clear-cut examples of compliant and non-compliant actions, which do little to assist in assessing how the law would apply to 'grey areas').
The proposal recommends scalable enforcement measures to ensure that the compliance of smaller platforms can also be enforced. But scalable penalties will also be important to successful regulation at the other end of the spectrum; penalties need to be scaled to ensure they are an adequate deterrent for larger, more powerful platforms. If larger players are incentivised to comply, smaller, local operations are more likely to follow suit.
That having been said, in our view, a regulator that works with industry to co-develop appropriate rules and a practical approach to enforcement will be more successful in effecting meaningful change. Penalties should always be the last resort.
How can you provide feedback?
The DIA is seeking feedback from the industry and consumers on its proposed approach, including the adequacy and workability of key elements of the framework. The discussion document sets out a number of questions for respondents to consider. Responses can be emailed to firstname.lastname@example.org, posted to Safer Onlien Services and Media Platforms Consultation, Department of Internal Affairs, PO Box 805, Wellington 6140, or submitted online by via the submission form or the feedback tool on the consultation website. The deadline for responses is Monday, 31 July 2023.
If you would like to make a submission, please get in touch with one of our experienced media lawyers to assist.