Settling down
November 16, 2012
So Judith Collins has sensibly settled her lawsuit against Trevor Mallard and Andrew Little. Here’s the agreed statement:
The parties agree the leak of the email Ms Boag sent to the Minister and forwarded on her instructions, as the responsible minister, to the chairman and chief executive of ACC, raised an issue of serious public concern and that Messrs Mallard and Little were entitled to question who was responsible for that leak.
The parties continue to differ over whether the remarks made by Messrs Mallard and Little respectively on Radio New Zealand implied the minister falsely assured the House that neither she nor her office was responsible for the leak.
Messrs Mallard and Little have confirmed to Ms Collins that was not their intention and wish to make that clear publicly and in the event such meaning was taken, they regret it.
The parties will make no further comment on the proceeding.
I read this as a significant backdown by Judith Collins. There is really no apology here. There is apparently no costs agreement. There is only the dribbliest form of sorrow – “we regret it if someone misread what we were saying”.
We should recall that Mallard said a reliable source indicated that a leaked email from Michelle Boag came “from Collins or Collins’ office”. (He later expanded it to include the Associate Minister’s office). Little said that Collins was “the obvious suspect” and was “right in the thick of it”. (I’d better add that I have no idea one way or another about this).
Now, I think the best reading of these exchanges (in context) is that there was good reason to suspect that Collins had been involved with leaking the email (and therefore lied to the House when she denied it). That’s still defamatory, though it’s not as defamatory as outright alleging that she leaked it. It’s also much easier to prove. They only needed to bring evidence showing that there was good reason to think that Collins or her office were responsible for the leak, and not prove that she actually leaked it.
But the Labour MPs had a powerful potential defence. It was strongly arguable that they were engaging in genuine political debate and therefore were speaking on an occasion of qualified privilege. There would have been an issue about whether they were acting responsibly in the way they put forward their allegations, but given the latitude that the courts tend to give to robust political speech I am inclined to think they would have surmounted that hurdle. Nor could it be shown, I think, that they acted with statutory malice – that is, that they were predominantly motivated by ill-will towards Collins or otherwise took improper advantage of the occasion of publication.
Note that this defence does not turn on whether or not it was true that Collins or her office leaked the email. In fact, Mallard and Little didn’t even plead truth or honest opinion as defences. (The fact that they didn’t plead honest opinion was interesting. I would have thought it was open to them. But they would have had to have proved that the facts they based their opinions on were true.)
If my qualified privilege analysis is right, Collins didn’t have a powerful case. I think it was an ill-judged action. And it would have continued to be very expensive to all three, so it was smart to settle. I suppose it’s a win of sorts for her that the statement comes close to having Mallard and Little retract their allegation that Collins or her office was responsible for the leak. It strikes me as a good compromise, even if it’s somewhat disingenuous.
Topics: Defamation | No Comments »
Greg King (1969-2012)
November 5, 2012
There are two New Zealanders whose untimely deaths have left me with a profound sadness, not just for them and their families, but also for the rest of us, because we’ve been deprived of the contribution they would have continued to make. One was Rod Donald. The other is Greg King.
Most people know Greg was a fantastic lawyer. He defended people with flair and passion. His success in many of those battles is testament to his extraordinary skill. He’s the guy I would have gone to if I was charged with murder. Anyone familiar with criminal law will tell you that it takes a rare mix of talents to do it well: doggedness, strategic savviness, a shrewd eye for detail, legal smarts, an instinct for what makes people tick, the gift of the gab, a readiness to be hated, the ability to handle severe pressure for long periods of time. It’s grim work, often tedious, and less glamorous and lucrative than most people think. Greg was one of the best in the business.
Greg was admired for the reasons lawyers like to be admired: he battled for the unpopular people; he often worked pro bono, he was a great orator, he was principled.
Some brilliant trial lawyers find it difficult making the transition to arguing points of law on appeal. Not Greg. I saw him arguing an important case before the Supreme Court, and he was terrific: thoughtful, measured, knowledgeable, convincing.
As some of you will know, I worked with him on the TVNZ7 show The Court Report. He hosted it, and I was the reporter for the first seasons. That was really how I came to know him. I don’t think he had any formal training in broadcasting but he was a natural. The things that made him a great lawyer also made him a great presenter: he was a good listener, he was funny, he was self-effacing, he was a quick study, he liked people, he was a tremendous communicator, he had a wide knowledge of how the law worked, he cared about issues, and he had a good bullshit detector. He was often more interesting to listen to than the guests (and that would include me…).
I remember that he was always immaculately dressed. He had presence. Even his hair had a devoted following.
It continues to astonish me how he got on so well with the people who should, by rights, have loathed him. He was mates with Garth McVicar. He got on well with Greg O’Connor. He was on friendly terms with Sophie Elliot’s parents, even though he defended her murderer. (He was flattered when they told him he was the only one who took the time to explain to them what was going on during the trial). And there is the measure of the man: he took time for people, talked to them, joked with them, had a drink with them, shared a yarn, asked after them, passed on some gossip, debated them, charmed them.
If there’s a heaven, Greg is no doubt being a devil’s advocate. I wouldn’t bet against an acquittal.
Topics: General | 2 Comments »
Bouquet
October 29, 2012
Media Watch’s Colin Peacock did a particularly excellent job this week in holding the media’s feet to the fire about its reporting on the firestorm about bail laws.
Topics: Media ethics | No Comments »
Breaking Laws
October 18, 2012
Michael Laws has been found in breach of broadcasting standards yet again, ironically for comparing someone else to a Pit Bull.
Topics: Broadcasting Standards Authority | No Comments »
Breaking the Banks
October 17, 2012
We’ve now seen John Banks’ attempt to convince the police not to release (under the Official Information Act) information about him from their investigation into his alleged breaches of electoral law. His lawyer makes some very interesting arguments. Release would trigger “irresponsible commentary” from Banks’ “political adversaries”. It would “bring the criminal justice system into disrepute”. And:
the release of information from the investigation file would no doubt allow political adversaries of Mr Banks and media commentators alike to pore over such material and selectively highlight matters considered politically advantageous [or] ‘newsworthy’.
Marvelous. Possibly accurate, even. But there is one problem. This reasoning has nothing to do with the Official Information Act. None of these arguments constitute grounds for withholding information under the OIA. Worse than that, they run directly contrary to the principles that underscore that Act, and that have repeatedly been emphasised by the Ombudsmen. As the Danks Committee said when recommending the creation of the OIA:
The fact that the release of certain information may give rise to criticism or embarrassment of the government is not an adequate reason for withholding it from the public.
That applies equally to criticism the person happens to think might be unfounded.
In the event, the police released information but redacted big chunks of it relating to Banks and his staff and donors. Some of those deletions seem questionable. As Andrew Geddis has cogently pointed out, for example, how can privacy be invoked to protect the identity of a donor whose name the police concluded was required by law to be revealed?
The police withheld some information on grounds of privacy, confidentiality and legal professional privilege. They properly balanced these interests against the public interest in disclosure of information, and accepted that there is a high public interest. It also seems that they consulted the Ombudsmen before making the release decision.
Now, it’s not clear what, if any, influence Banks’ lawyer’s arguments had. (To be fair, I haven’t seen the full context of the arguments, so some might have been more on point). But we can only hope that the passages quoted above carried no water at all. If they did, then I’d expect the officials from the Ombudsmen’s office who are reviewing the release decision will give them short shrift.
Topics: Official Information Act | No Comments »
The operative word
October 3, 2012
How often do government Ministers tell us that they never comment on “police operational matters”? And for good reason: countries where police are at the beck and call of politicians are police states.
But in relation to the Dotcom/GCSB matter, we have our Prime Minister telling us that the police’s investigation is a “political stunt” and a “waste of time”.
What if the police take this as a not-very-veiled indication of what the Prime Minister wants the outcome to be?
What if the police conclude that no further action should be taken – won’t the public be forgiven for wondering whether they have been influenced by the PM’s comments (even if in fact they haven’t)? After all, the government holds the purse strings for the police budget and appoints the police bosses.
That’s why we have a constitutional principle that government ministers don’t comment on police operations. I think the PM should shut his cakehole about this.
Topics: General | 10 Comments »
Fifty shades unrestricted
September 27, 2012
The censor’s office has classified the international blockbusting romantic erotic novel, Fifty Shades of Grey, as unrestricted. That means, essentially, they’re saying that its availability is not injurious to the public good.
I think it’s a sensible and thoughtful decision. But then, I would: Random House engaged me to write the submissions for them.
Books like this pose a challenge for censors. They certainly deal with one of the gateways for the censor’s powers: “matters such as sex“. And how. There is quite a lot of sex, and it’s quite explicit. The book deals with BDSM. Should it be restricted?
The censor finds that there’s not really any need to. (Which is a bit lucky, since the series has sold 350,000 copies here, and it’s been voted Number 5 in Whitcoulls’ top 100 list for 2012-2013).
The censor’s decision notes that there is no force or compulsion in the book; it’s spicy, but consensual and respectful. It’s not likely to attract the interest of children. It has won mainstream acceptance. It has opened up a taboo area in a healthy way: in the censor’s words, it has “allowed women to talk about sex in a socially permissible manner”. There’s really no evidence that the 40 million copies that are out in the world at the moment have done anyone any harm. As far as I can tell, no other comparable government has censored it. There has only been one complaint about it in NZ.
For what it’s worth, I think it’s not the sex that sells this book, at least not by itself. If this was just a porn film on paper, it wouldn’t shift 40 million copies. It’s the love story that makes it resonate with the readers. Okay, that and the sex.
Topics: Censorship | 50 Comments »
Come on NZ Herald, make a clean breast of it
September 7, 2012
The Press Council has partly upheld a complaint against the NZ Herald for its inaccurate and unfair editorial on the Piri Weepu breast/bottle feeding saga. It has also upheld a complaint against the Herald on Sunday for its coverage.
Thus, the papers have had to publish a summary of the decisions. (They point out that the full decision is available at the Press Council, but link to the site rather than the decision, which seems petty). NOTE: The link was not available because the Press Council doesn’t publish the decisions until after the newspaper does.
But the inaccurate and unfair NZ Herald editorial is still up, complete with most of the errors, including the unfair photograph. There is no indication in the editorial that it was the subject of criticism by the Press Council. The same goes for one of the Herald on Sunday stories. UPDATE: The Press Council tells me it forgot to remind the Herald about this, and says that perhaps it’s unfair to be too critical of the Herald given the big relaunch of the paper and its website.
What’s more, the Press Council rulings emerged from their meeting in June. I’m not clear exactly when they were released to the parties. But I’m left wondering why it has taken so long for the papers to run their summaries of the complaints. UPDATE: The Press Council tells me the rulings were issued to the parties on 24 August. So the papers haven’t taken very long to publish the summaries. Sorry, NZ Herald and HOS. I should really have checked this before posting. But I do think it’s odd that the Press Council labels this a “June” decision.
There is nothing in the Press Council’s rules that requires papers to (a) correct their online versions of stories when complaints have been upheld, (b) include a link to the full decision – either in the online version of the story, or in the summary of the Press Council’s decision, or (c) to publish a summary promptly when a complaint is upheld. NOTE: In fact, the Press Council’s rules to require online versions of articles to be flagged when a complain is upheld: see 10(a). I overlooked this: sorry, Press Council. I should also note that the Press Council says – rightly, I think – that members routinely publish the Council’s decisions reasonably promptly, even though that requirement is not spelled out in the rules.
But these practices all go against the spirit of the rules. If papers aren’t prepared to do the decent thing, the Press Council needs to shore up its rules to maintain its credibility. UPDATE: I now think this conclusion is over-stated. But the tag on the online story need only say that the article is “subject to a Press Council decision”, and need only link to the Press Council’s website, even when the decision has been published by the Press Council. Sometimes it will be easy to find; sometimes not. I can see no reason why the gist of the Press Council’s criticism should not be required to be appended to the infringing article, or at least that a direct link to the Press Council’s decision should be required. If that means the Press Council needs to publish the decision at the same time as the newspaper, then surely that makes sense.
The Herald still hasn’t noted the upheld complaint on the bottle-feeding editorial. But looking back through other Press Council decisions involving the Herald, I have to say it has a pretty good track record. And in relation to previously upheld complaints it has done the decent thing and linked the original (infringing) article to the summary of the Press Council decision that it published.
Topics: Press Council | 46 Comments »
Defending the Law Commission again
September 7, 2012
The NZ Herald’s Chris Barton takes a swipe at the Law Commission’s proposals to create a communications tribunal and a new criminal offence of using a communications device to send grossly offensive material designed to harm someone. I think the way he makes his criticisms is a bit unfair.
He says the Commission’s new offence is illogical as a way to deal with bullying, because it only deals with cyber-bullying and not real-world bullying, which is just as harmful:
The problem with the Commission’s formulations stem from its research. Noting there was a paucity of “quantitative national data on cyber-related communication harms,” it commissioned an independent study which suggested “as many as one in ten New Zealanders has some personal experience of harmful communication on the internet.” Once again its focus is too narrow. How, for example, does that compare with actual bullying at our schools?
In fact, the Commission (after traversing extensive survey evidence on the extent of cyber-bullying of adolescents) goes right on to talk about actual bullying:
These rates were significantly lower, however, than rates of reported physical aggression. 68.3 per cent of participating students reported some form of physical aggression (the use of physical presence or indirect bodily force towards another person or their personal possessions to intentionally cause harassment, intimidation, humiliation or provocation) against them in the last year. Even higher were reported rates of relational aggression (receiving behaviour from their peers that involved disparaging and manipulating actions, embarrassing comments and disclosures, exclusion and indirect harassment) with 90.8 per cent of students reporting some form of this being used against them in the past year. [Para 2.34]
The Commission is very clear that the problem of adolescent bullying goes well beyond cyber-bullying. Cyber-bullying is a subset of bullying, it notes. The two often go together.
Before we swing in and attack the Law Commission for only solving half the problem we should bear a couple of things in mind.
First, it was only asked to tackle cyber-bullying. Its brief is about digital harms. In fact this itself is a subset of its wider terms of reference relating to digitial media generally. The government asked it to fast-track this part of its report. If anything, it’s the bit about encouraging schools to develop general policies about bullying which go beyond its remit, though given that the Commission insists that those policies should include proposals to combat cyber-bullying and seem pretty sensible, it doesn’t seem too outrageous to me. Anyway, this gives lie to Barton’s claim that “Bullying is not, as the commission would have us believe, a problem that only needs to be addressed online”.
Second, the Commission never suggests that its recommendations would end the scourge of bullying entirely. What’s more, it’s disingenous at best to claim, as Barton does, that the Law Commission says that:
Cyber bullying is bad and must be stomped out with new laws, but real bullying at school is not so bad and more research is needed.
In fact, the recommendations the Law Commission makes about new and amended offences and the creation of a communications tribunal would tackle bullying in schools, given that cyber bullying and physical bullying often go hand in hand. (And I wonder whether Chris Barton might consider refraining from suggesting that cyber-bullying isn’t “real”, even though we might see what he’s trying to get at.)
Third, the Commission spelled out in quite some detail (Chris Barton refers to some of its reasoning) why it’s desirable to have in place a special law to deal with cyber-bullying, both as a crime and as a ground for a complaint to a communications tribunal. Cyber-bullying as a method of bullying is unique: no other form of harrassment is so easy to create and distribute, so easy for others to find, so difficult to have removed, so quick to spread, so capable of coming at a youngster from all directions at once. Why not have some tools designed to deal with this particular way of bullying? If bullying at school started to be accompanied by kids bringing guns to school and shooting one another, would Chris Barton criticise the Law Commission for recommending the installation of metal detectors, on the grounds that this doesn’t solve the whole problem?
Fourth, other countries, including the UK and Australia, already have similar criminal laws, as the Commission discusses. The UK’s laws in fact are wider (but still limited to electronic communications).
Fifth, its proposals were mooted in an issues paper last year. They have attracted widespread support from submitters, including the Police, Trade Me, Netsafe, and the Privacy Commissioner.
Finally, if you’re concerned that the law draws a silly line between, for example, bullying letters and bullying texts, then one ready solution is to make the sending of bullying letters, that are grossly offensive and designed to cause significant emotional distress, an offence too. In fact, that’s pretty close to what the Harassment Act already does.
Topics: Internet issues | 4 Comments »
Gobsmacked
September 5, 2012
Episode two in my exasperated campaign to let people take notes in court (Episode one is here).
I understand that yesterday a Court of Appeal judge stopped someone from taking notes in the public gallery during the hearing of Greenpeace’s argument that it should be given charitable status.
No information in the argument was sensitive or suppressed. The argument was purely legal. The media were there. There was no good reason to stop anyone from taking any notes they like. That must surely be an obvious incident of the principle of open justice. I think taking notes in court is also part of the right to freedom of expression (which includes the right to receive information). It’s one way that observers (especially those who may not trust the mainstream media to provide full and informed descriptions of the argument) may help make the court more transparent and hold it to account.
I wasn’t there, so I’m not sure exactly what the judge said. But I understand that people in the gallery were left with the clear impression that they should not be taking notes, and that only the journalists on the press bench were permitted to do so.
If so, I think this is officious and, frankly, unlawful. I would have expected better from the Court of Appeal. It shows that even some of our senior judges aren’t practicing at a workaday level some of the most fundamental legal principles that they cheerfully criticise others for breaching.
Topics: General | 1 Comment »
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