Is the Media Council’s legal waiver requirement lawful?
By Steven | May 26, 2026
- I was recently asked to prepare a brief opinion on the issue of the legality of the Media Council’s waiver. The client has consented to having me post this. I invite discussion! You can email me at steven.price@vuw.ac.nz.
- My research was limited. I found that the legal position is not entirely clear, in part because the relevant authorities are not directly on point. But I concluded that that the waiver is likely to be found void if the issue were tested in court.
The waiver
- Complainants to the Media Council are required to tick a box agreeing to “waive any right [they] may have… to take (or continue) other proceedings in any way related to the complaint, against the publisher, broadcaster, journalist, in any other jurisdiction or forum.”
- They are also required to waive “any right [they] may have to take proceedings against the Media Council in any jurisdiction or forum.”
- This is a precondition to submitting a complaint. Unless the complainant waives the rights, the Media Council will not hear the complaint.
The rationale
- The Media Council’s complaint procedure (at para 7) explains the reason for the waiver requirement:
“The purpose of the waiver is to ensure that a complaint to the NZ Media Council is the only form of formal action that will be taken in relation to the article that is the subject of the complaint. The NZ Media Council provides the public access to a free, quick and simple complaints service which is unconstrained by the existence of other proceedings and where publishers can respond openly and admit fault if necessary. The summary nature of the process and the publishers’ co-operation with the process would be compromised if a publisher had to worry about damaging their position in court proceedings about the same issue.”
The law on ouster
- There is a general principle at common law that contracts that purport to oust the jurisdiction of the courts are void at common law as being against public policy. (See for example, Burrows, Finn and Todd on the Law of Contract in NZ (7ed, 2022) at 13.3.2; Chitty on Contracts (36ed, 2025) at 18-088-18-091, and the cases they cite; see in particular, the Lord Chancellor’s judgment in the widely cited House of Lords case, Scott v Avery [1856] 7 WLUK).
- That common law rule is preserved in the Contract and Commercial Law Act 2017 at section 84(1)(b), which acknowledges the rule about ouster of jurisdiction in the context of illegal contracts, but says that the Act doesn’t apply to them. Thus, the Act’s substantive and remedial provisions can’t be used. But the Act must be taken to have reaffirmed the common law rule (South Pacific Tyres v Powerland [2009] NZRMA 58 at [29]).
- The problem is, the case law tends to arise in particular situations that are not directly relevant to the Media Council’s waiver. Two groups of cases commonly arise.
- One set concerns arbitration. It is clear that parties are free to agree to arbitrate their disputes without falling foul of the rule. They can even agree to postpone any legal recourse until after the arbitrator has ruled (Scott v Avery). But it is clear from the cases I have seen that what is forbidden is ousting the jurisdiction of the court to challenge the arbitrator’s decision, particularly on questions of law. That’s what cannot be taken away from the courts (see, for example, Lee v Showmen’s Guild of Great Britain [1952] 2 QB 329, 342-3).
- Applied narrowly to these circumstances, it would mean that the Media Council’s decision itself could be challenged in court (at least, after it was rendered). That is, a disappointed complainant could bring a judicial review.
- That conclusion may be based on the fact that the arbitrator and the courts would be ruling on exactly the same question. Again, that’s not quite the position here. The Media Council’s standards don’t line up with legal rules. They are in some respects wider (eg balance and fairness) and in some respects narrower (they don’t cover name suppression or contempt, for example).
- Incidentally, this means that the Media Council’s second waiver requirement, set out at para 4 above, where complaints must agree not the challenge the Media Council’s decision in any other forum, is almost certainly void as an ouster of the court’s jurisdiction. I don’t know why the Media Council thought it could possibly be valid. If your client’s issue ever comes before a court, the fact that the second half of the waiver is patently unlawful will not be very helpful to the Media Council.
- Still, the arbitration cases also point up other interests in play. The Courts tend to lean toward protecting the parties’ choices of how to resolve their disputes, particularly where they involve specialist tribunals determining questions of fact. That has its limits, however. They won’t allow an ouster of the courts’ jurisdiction in its entirety, and in particular they reserve to themselves their right to construe the scope of the contract and correct legal errors in any process (Charnikow & Co v Roth, Schmit & Co [1922] All ER Rep 45). On the other hand, the Courts are suspicious of clauses involving “manifest inequality of bargaining power or exploitation of a monopoly trade position or the like, so that one party is virtually forced to submit to an ouster or waiver clause.” (CBI NZ Ltd v Badger Chiyoda [1989] 2 NZLR 669, 679 (CA)).
- Both of those interests are relevant, though they tend to push in different directions.
- The second set of cases involve matrimonial agreements, whereby (usually) a husband persuades a former spouse not to seek a statutory remedy such as maintenance payments or Family Protection claims under a Will. This tends to be resolved by interpretation of the relevant statute. Was it intended to preclude such agreements? Again, that is not really on point here.
- I have looked at whether there is a general right to access the courts on the statute books. Somewhat to my surprise, there doesn’t seem to be. The District Courts and Senior Courts Acts bestow jurisdiction on courts at particular levels. The NZ Bill of Rights Act grants a right to natural justice and, perhaps pertinently: “Every person has the right to bring civil proceedings against, and to defend civil proceedings brought by, the Crown, and to have those proceedings heard, according to law, in the same way as civil proceedings between individuals.” These laws may be said to create a right of access to courts to resolve disputes, but I am not sure they add much to the general common law principle.
Expert views
- Various experts have suggested that the waiver is unlawful, including the Press Council’s own review in 2007, which said: “We heard impressive legal opinion to the effect that such a waiver would be likely to be held useless because it violates public policy” and found it of “doubtful legality.” It recommended the abolition of the waiver. (Barker and Evans, Review of the NZ Press Council, 2007), 61, 69-70.
- As far back as 1983, high-profile UK media lawyer Geoffrey Robertson also seemed to reach this conclusion, in his book “People Against the Press” (Quartet Books), 28-31. He also recommended abolition.
- Before that, the UK’s Annan Committee on the Future of Broadcasting (Cmnd 6733 (1977) Ch 6, para 18) and the UK’s Royal Commission on the Press (Cmnd 8199 (1962) paras 43-49) also doubted the legality of the waiver.
Policy and principle
- These conclusions are buttressed by a range of arguments of policy and principle that I think a court would find compelling:
a. The Press Council’s 2007 review found most Press Councils around the world do not require it. It noted that the Broadcasting Standards Authority and Advertising Standards Authority do not either. Submitters from New Zealand and Australia questioned its sustainability. More than three quarters said it was unreasonable. New Zealand defamation lawyers said the waiver was an impediment to complainants. The review authors doubted that it really made publishers reluctant to engage freely, saying the objections were “more perceptual than real” and finding the waiver “of doubtful legality” and “of little benefit to the Press Council process.”
b. Geoffrey Robertson also concluded that the concerns about double-jeopardy were overstated. He noted that court discovery processes would require disclosure of adverse material in any event. A Press Council ruling would not be admissible in a court proceeding, but its existence might be relevant at the stage of assessing damages – that is, to reduce them, because the complainant has already had a measure of vindication. His main objection was that a Press Council’s job is to uphold press standards, and that has little to do with the content or policy of the law, which is about compensation for wrongs. Legal claims can be settled confidentially; breaches of press standards ought to be publicly condemned. He said: “It would be unconscionable if a court were to debar a plaintiff from recovering money due and owing, or for obtaining compensation for plagiarism, simply because the Press Council had been asked to criticise the ethics (as distinct from the legalities) of an editor’s behaviour.” (p 31).
c. The Royal Commission reached a similar conclusion, rejecting findings of an earlier Report of the Committee on Privacy (Cmnd 5012, 1972, para 154). The Privacy Committee said the waiver was “obnoxious” but “unavoidable” because (a) the complainant consents to the waiver; (b) the complainant can complain after court proceedings; (c) publishers may be deterred from participating in Press Council proceedings because they may need to disclose their legal defence; and (d) Press Council proceedings might be used as a stalking horse for legal proceedings and used to increase damages. The Royal Commission felt that all of the these reasons displayed a “misunderstanding of the true role of the Press Council”. It made the same point as Robertson above. It also pointed out that someone other than the person affected can complain; that damages were not imposed; and that anyone facing concurrent criminal and civil (and perhaps disciplinary) complaints faces parallel proceedings.
d. It seems to me that the waiver can lead to a range of undesirable or peculiar outcomes, which may tell against its legality:
i. Complainants are usually not legally represented. They are unlikely to understand what rights they are forgoing.
ii. They may complain about something for which there is no Media Council remedy – a case concerning, or even peripherally involving, a breach of copyright, for example – and they would have no legal resource when the Media Council ruled it had no power to uphold the complaint.
iii. In fact, the Media Council sometimes expressly says it has no power to apply the general law – defamation, contempt, name suppression – which must be dealt with by the courts. But the waiver seeks to prevent that.
iv. Some of the standards have a large overlap with the common law. An example is privacy. In that situation, the Media Council may develop or apply its privacy principle in a way that is entirely antithetical to the law, and there would be no way to challenge it. This bears some similarity to the concern of the courts that there must be room to challenge an arbitrator for legal error.
v. The width of the waiver – claims that are “in any way related” to the complaint – is very broad, and may be held to catch things the complainant had not realised they were closing off legal remedies for.
vi. It would foreclose remedy for matters that the complainant only learned of in the course of the Media Council proceedings. That may include things that would lead to a tenable cause of action that was not obvious earlier, or things (like evidence of malice or a wider publication than was initially apparent) that might make an obvious cause of action much worse.
vii. The Media Council has discretion to hear complaints about non-members. Those publishers would not be bound by the decision. For example, they would not need to publish any adverse determination. But on its face, the waiver would still apply.
viii. Someone who is not the complainant (another affected party, for example) will still have the ability to bring a legal action, which will circumvent the waiver in circumstances that are likely to be arbitrary.
ix. The Media Council is made of (nearly) half industry members. It does not have the same independence as the courts.
x. The waiver cannot apply to criminal offences: see South Pacific Tyres NZ Ltd v Powerland [44]. Thus, if a complainant complained about breach of privacy in relation to the breach of a suppression order, the waiver would not insulate the publisher from a criminal complaint laid by the complainant, or a private prosecution – though the waiver (unlawfully) purports to head off such claims. Likewise, criminal harassment, or deliberate infliction of serious online harm under the Harmful Digital Communications Act.
xi. The Media Council seldom holds hearings, and when it does they are very informal. It is not bound by precedent. Its members (besides, usually, its chair) do not have legal expertise. They are volunteers. It has only one staff member, part time, I think. When it issues a rogue decision, there is no way to challenge it or pursue any other remedy.
Conclusion
- The position seems to be that there’s a general principle against ouster, and a series of cases that illustrate it in action, none of which quite resolves our issue. However, a range of expert opinion supports the conclusion that the general principle applies to the Media Council waiver. In turn, that opinion is powerfully supported by a range of reasons of policy and principle.
- I conclude that a court is likely to find the Media Council’s waiver void for reasons of public policy.
Topics: General | Comments Off on Is the Media Council’s legal waiver requirement lawful?