Uncharted waters for media freedom

Any complacency about extremism here was extinguished by the attack in Christchurch on 15 March. The media claimed this marked “the end of our innocence." We're still in the top 10 for global press freedom but our media need to be vigilant against incursions on their freedoms too.

This is an edited version of a chapter in the 2019 Asia-Pacific State of Press Freedom report available here (PDF)

New Zealand climbed one place in the latest World Press Freedom Index put together by the global group Reporters Without Borders, published on World Press Freedom Day on Friday (3 May).  

It’s good to be in the top 10 headed by Norway - and nowhere near North Korea where the government has total control of the media.

But in the months ahead our media could come into conflict with the powers-that-be here when getting to the bottom of the Christchurch mosque attacks.

One outfit already has.

Last weekend the Sunday Star Times obtained part of a secret ‘watchlist’ of more than 100 people it said were being "actively monitored" but the New Zealand Police would not comment.

Police later said the information was not “top secret” as the paper claimed but it launched an investigation into the leak.

The paper chose not to name anyone on the list or contact them “for security reasons.”

It’s not the first tough editorial call after the mosque attacks - and it won’t be the last.

The forthcoming Royal Commission is bound to uncover things various agencies want to conceal or - at the least - ‘manage.’

Investigations by the media will overlap with the official ones and could bring them into conflict with agencies citing national security needs as a reason to withhold information.

The National Party's leader has already called for wider powers for the Security Intelligence Service and the Government Communications Security Bureau.

Simon Bridges claimed they operate with “both hands tied behind their backs” and need greater powers.

The media here have good reason to worry about what they would do with freer hands and longer reach.  

“Some bureaucrats – the intelligence services come to mind – might be mindful of the maxim to ‘never waste the opportunity offered by a good crisis’,” the NBR warned earlier this month.

In 2014, the Prime Minister’s Office ordered an investigation of a leak which created a front-page story for Fairfax Media political reporter Andrea Vance.

Her scoop revealed dozens of New Zealanders were illegally spied upon by the GCSB.

The inquiry tracked her movements round Parliament and details of her phone calls from her press gallery office.

Simon Bridges also backed an internet surveillance programme canned by the previous government. Project Speargun was revealed by NSA whistleblower Edward Snowden in 2014.

Reporters with sensitive stories would be vulnerable to such potentially unlimited interception.

New Zealand’s search and surveillance laws have been misused in the past to justify the confiscation of a journalist's computers and files.

Investigative reporter and author Nicky Hager's home was raided in 2014. Police officers wanted the source of the leaked emails at the heart of his lid-lifting book Dirty Politics after the 2014 election campaign.

The police raids and breaches of his privacy were eventually deemed unlawful and followed by apologies and out-of-court settlements.  

Nicky Hager’s legal battles only came to an end in February this year when Westpac apologised for handing over private information to police.

In 2017 a new law overhauling powers of spy agencies created a new offence for people passing on classified information.

The changes made it easier to people to make a ‘protected disclosure’ to the Inspector-General of Intelligence and Security, but those who pass information to journalists may face up to five years in jail.

It will be brave person who leaks newsworthy stuff to the media on that basis. Journalists also have the added worry of possible prosecution themselves if pressed to reveal sources.

The current government is also exploring whether the law and procedures to protect whistleblowers at work need to be strengthened.

Some Australian state governments already support whistleblowers who contact journalists as a result of their "honest concerns" not being properly investigated by a relevant higher authority, but there are no such "shield laws" here.

In 2015, security guard Lydia Maoate - with the backing of her union - told the Dominion Post her employer encouraged staff to cheat in their training.

The Employment Relations Authority deemed the Dominion Post “not an appropriate authority" to receive the information and her dismissal was justified.

Exposure of activities that are illegal, corrupt or unsafe are clearly of genuine public interest, but by the end of public consultations no media organisations had argued for change to the Protected Disclosures Act.

In 2018, Australia's biggest news media companies united to fight new national security laws that could criminalise reporters and their sources.

Our media may need to be prepared to do the same.

Swift censorship as an emergency response

Some significant censorship has occurred in the wake of 15 March among the rapid responses to the unprecedented crisis.  

It was - as media commentators around the world pointed out - a massacre made to go viral that dovetailed grimly with the business model of major social media platforms.

The gunman’s live-streamed video on Facebook and his co-called ‘manifesto’ of racism and violence were both banned by the Office of the Chief Censor.

The order has exemptions whereby journalists and researchers can apply for permission to consult the 74-page document after paying a fee of $NZ102.

New Zealand's two main newspaper groups took contrasting stances on this.

“The alleged gunman is part of this story and we can't shy away from that. It doesn't give his abhorrent views a platform,” said the New Zealand Herald, which applied for permission to keep a copy for its journalists' reference.

“People are searching for answers to New Zealand's most horrific act of terrorism. They're searching for light in dark corners and this is a such a place, despite how difficult that may be,” said The Herald on Sunday.

The Herald on Sunday also reckoned exposure would be more effective in outing extremism that could contribute to further attacks.

“If the information can in any way equip authorities and experts in being alert to people with these types of ideologies — and help the public be wary — we have done our job,” the paper said.

But it will be impossible to test that or to know for sure if it was a job well done.

Stuff took a different view.

The Press in Christchurch backed the chief censor's ban in an editorial.

“(It) serves as a practical guide to what is acceptable in this country. Should a resident or visitor not completely understand where the line is, the censor has made it plain,” said the paper.

The Press said the ban may actually help police and intelligence agencies because people found to possess the manifesto open themselves to further investigation - just as they do with other forms of objectionable material like child pornography.

Stuff correspondent Charlie Mitchell was more blunt on Twitter. 

“It’s child-like nonsense. Ban it, fire every copy into the sun, it's a waste of time,” he wrote.

New Zealand’s biggest ISPs jointly blocked access to websites circulating the gunman’s digital content, including notorious forums 4Chan and 8Chan.

Some internet and media freedom activists feared legitimate use of the internet could be curbed in the future if the ISPs concur a crisis demands extraordinary intervention.

Their concern peaked when it was revealed that plans to lift the block were reversed by the ISPs after intervention by the government the week after the attack.

The government has indicated it could introduce new hate speech laws too. Some academics, broadcasters and conservative groups have warned that could limit freedom of expression - including that of the media.

"I would rather the government looked at what's already there and decide whether any of that can be improved and made to work properly," media law expert Professor Ursula Cheer told the New Zealand Herald in March.

Another law under review about which journalists have complained long and loud is our once world-leading Official Information Act.

Justice Minister Andrew Little has asked for media input before deciding how to proceed.

The current government came to power in 2017 promising reform after years of non-compliance, obstruction and delays in dealing with legitimate requests from the media.   

It appointed a new minister - Clare Curran - with overlapping responsibilities in broadcasting, digital media, technology and open government.

But this joined-up approach fell apart when the minister was forced out of her portfolios because - ironically - she had arranged off-the-books meetings with prospective appointees and Carol Hirschfeld, the then head of news at RNZ.

Ministers were put on notice by a new chief ombudsman in 2017 and last month the State Services Commission claimed 95 percent of OIA requests in late 2018 were met on time.

But as political reporter Andrea Vance found on closer inspection, two key agencies accounting for more than half of OIA requests - the Police and the New Zealand Defence Force - were excluded.

"Timeliness is not reported for NZ Police ... [who] introduced a new system for tracking OIAs. A design error, now fixed, meant it was not able to accurately report the number of requests that met the legislated time frame," said the statement.

“They receive by far more OIA requests than any other agency and are pretty notorious for mishandling them. They first refused to release any OIA timeliness data to me when I requested it, and I haven't even been able to report that to the SSC,” Andrea Vance complained.

It’s not just journalists who have noticed.

The Open Government Partnership - a coalition of government and civil society organisations - concluded that the government has not yet “made the ambitious steps towards the openness and transparency that many New Zealanders want.”

The OGP called for “full reform of the Official Information Act” and said public sector chiefs' contracts should be tied to compliance.

The frustrations of Andrea Vance and her colleagues at Stuff have been laid out starkly in an eye-opening ongoing series called Redacted.

That was launched online on 14 March.

One day after that, the terrorist attack in Christchurch turned everything upside down.

The ghastly deaths and the fallout from the attack have preoccupied the media ever since. Nothing else has seemed nearly as important.

But as journalists get to work raising awkward questions in a new environment, their freedom to report what they find out will take on a new importance.