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DIA Media Regulation Overhaul Shows Promise, But Deserves Rigorous Public Scrutiny

The Brainbox Institute welcomed the release of the “Safer Online Services and Media Platforms” discussion document by The Department of Internal Affairs (DIA) yesterday, which proposes a new content regulation framework for Aotearoa New Zealand.

The details of the discussion document have been long-awaited by the organisation, following its involvement in stakeholder consultation in June 2022, and its ongoing domestic and international activities investigating content regulatory frameworks.

Director of The Brainbox Institute, Tom Barraclough, says there are many promising aspects of the discussion document, including a legally independent and accountable regulator, a multi-stakeholder approach, and steps to ensure codes of practice genuinely reflect community input.

“The inclusion of independent audits and an approach based on systems rather than content are particularly encouraging features. Officials seem to have taken cues from the European Union’s recently implemented Digital Services Act, which is widely regarded as a pioneering example of social media regulation, despite some flaws.”

“DIA’s proposal does not seek to expand the categories of illegal content. Instead, it focuses on taking greater action against existing illegal content, including threats to kill and similar offences. DIA has clearly understood real concerns about the Government’s role in moderating individual items of lawful content.”

“We think DIA’s proposed co-regulatory approach based on independent codes of practice is the right way to go here. Codes can and should be rejected if they don’t incorporate adequate community input, and there are substantial benefits to keeping content decisions at arms-length from politicians. An independent regulator would be subject to judicial review, and presumably rights of review and appeal.”

However, Barraclough says there are some elements of the proposal that are a cause for concern, and deserve greater scrutiny.

“There are complications that flow from lumping traditional and social media together. Clearly social media companies are the target, and it’s not clear what the problem is with existing traditional media regulation.”

“It’s also strange the Harmful Digital Communications Act has been excluded, when it’s the main legislation that regulates communications between people online – the primary point of difference between social media and traditional media.”

Barraclough says it’s critical that any regulatory frameworks that are developed are extraordinarily clear and transparent, in order to ensure maximum accountability.

“While the regulator won’t make content moderation decisions, it will have a say on whether traditional media and social media are moderating “harmful content” to an acceptable level. That does give it some role in influencing editorial decisions by traditional and social media. The regulator should face enhanced transparency obligations that go beyond the OIA to justify public trust in how it’s operating.”

“The Brainbox Institute believes it's really important that this discussion document receives rigorous scrutiny from the public, but it’s also important to be clear about what the proposal does and doesn’t suggest. The burden of meaningful engagement with this work is significant, and the decision by DIA to release discussion documents to some groups in advance of others will already have done substantial damage to public trust and confidence among some groups.”

“We encourage people to make a submission by the July 31 deadline, and will be making resources available in the coming weeks to support people to reach their own conclusions.”

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