A good media regulation for the digital age model

David Harvey writes:

The decision of the BSA regarding the Platform has once again raised the issue of the relevance of the BSA in the Digital Paradigm but if the BSA is to go there must be some form of replacement.

There are a number of models available. That proposed by the Safer Online Services and Web Platforms paper issued by the Department of Internal Affairs was a heavy-handed and invasive model. Similar models are present in the Australian Online Safety Act and the UK Online Safety Act, both of which are invasive.

What I propose in this article is a light handed and less invasive model that advocates voluntary compliance which attracts a number of advantages and legal protections.

I agree the BSA must go, and any replacement should be light handed and where possible voluntary.

The current regime is:

The Harmful Digital Communications Act 2015 (HDCA) — a reactive, complaints-based mechanism for individual harmful digital communications, administered by Netsafe as the approved agency and the District Court.

The Broadcasting Standards Authority (BSA) — a quasi-judicial body exercising jurisdiction over broadcasting standards under the Broadcasting Act 1989, limited to linear broadcast services and expressly excluding on-demand content.

The New Zealand Media Council (NZMC) — a voluntary self-regulatory body for news publishers, with a complaints adjudication function but no statutory powers.

The Office of Film and Literature Classification — administering the prior restraint classification regime under the Films, Videos and Publications Classification Act 1993.

A proposed definition of harm is:

For the purposes of platform regulation, “harm” means a demonstrable adverse effect — more than trivial and supported by empirical, clinical, or reasonably inferable evidence — on the physical safety, mental health, wellbeing, dignity, or fundamental rights of an individual or identifiable group. Mere offence, discomfort, disagreement, or exposure to controversial or unpopular ideas does not constitute harm. In the platform regulation context, harm extends to adverse effects arising from platform design, algorithmic amplification, and recommender system failures, not only from individual items of content.

That definition would be far far better than the current one.

In the first instance, a large degree of responsibility is vested in industry, which develops codes of practice or conduct that set standards for the prevention of online harms. The substantive content of codes is determined by industry participants or industry associations. …

No government department has any involvement in developing the content of codes other than the ability to make submissions as part of a public submission round. This ensures a strict separation between the State and the regulatory process. Any suggestion of state involvement, especially in any area that might involve an interference with or restriction of the freedom of expression, must be avoided, lest the integrity of the process be compromised and the regulatory authority be seen as a quasi-censorship arm of the State.

Industry self-regulation, rather than state regulation.

Unification is not amalgamation of the regulatory regimes. The three divisions operate under distinct statutory mandates, distinct codes, and distinct membership or participation frameworks. A news publisher that is a member of Division 1 is not subject to Division 2 codes. A social media platform subject to Division 3 platform duties does not become a ‘news media organisation’ by reason of operating within the same regulatory authority.

The MCA does not have a single complaints process applying to all regulated entities. Each division maintains its own complaints pathway, its own codes, and its own standards adjudication. What is shared is the governing board, the administrative infrastructure, the legal framework, the Communications Tribunal interface, and the foundational principles.

This is what I like about the proposal – one agency, but different codes and membership for different entities. I am currently a member of the Media Council so would just slot into the Division 1 code.

I can’t do justice to the proposal here, so recommended people read it fully. I think it should be embraced by Parliament as the way forward.

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