How to apply the Bill of Rights
July 27, 2012
The Broadcasting Standards Authority (in the wake of several High Court decisions, and perhaps aware of some of the criticisms I made with Claudia Geiringer) commissioned me to provide some advice on how the Bill of Rights applies to them and how they can practically integrate it into their decision-making. They have posted my paper here. I think their recent decisions are displaying a much more principled and nuanced approach to free speech issues.
I also like to think the analysis in that paper is of relevance to others who have to juggle free speech issues, most notably the censor’s office, the Press Council and Advertising Standards Authority (who are surely performing a public function, so the Bill of Rights applies) and the courts.
Topics: Advertising Standards, Broadcasting Standards Authority, Censorship, NZ Bill of Rights Act, Press Council | No Comments »
Uninsightful journalism
July 23, 2012
Maybe I’m being overly nitpicky in objecting to this headline in a story on nzherald.co.nz:
Harawira’s asset sale comments ‘insightful’ – BSA
The Broadcasting Standards Authority was rejecting a complaint from Family First over a 3 News story that mentioned John Key’s assurance that asset sale share prices would be “affordable for a lot of New Zealanders”, and Hone Harawira’s response: “bullshit”.
The BSA said this did not breach standards concerning taste and decency or children’s interests.
The BSA never used the word “insightful”. Isn’t that a good reason, right there, not to put the word in quotes?
Nor did the BSA suggest that Harawira’s comment was any sort of insightful analysis of the PM’s statement. Isn’t that what the headline and first paragraph suggest?
It’s only if you read down into the story that you realise that the BSA was saying that the use of the language offers insight into Harawira’s character:
The word “bullshit” was used by Mr Harawira to convey his opposition to a major Government policy that had been the subject of much controversy. In this respect, the comment provided viewers with information about a political response to the issue, as well as insight into the characteristics of a political figure in terms of the way he chose to express himself. We consider that this was of high value in terms of the right to freedom of expression, and we should be cautious about interfering with its broadcast and its reception.
The BSA also noted that children were unlikely to be watching the news unsupervised, and that its own research did not find high levels of objection to the word “bullshit”.
The BSA and TV3 got this one dead right, I think. This is a very good example of the Bill of Rights being used to put a thumb in the scale to reject the penalisation of a story with political significance. What I find in poor taste is the rest of the media twisting the decision to oversell its story.
Topics: Media ethics | 47 Comments »
Scott Guy Verdict: Survey reveals journalists don’t have a clue
July 12, 2012
According to a recent poll, 48% of us think it’s likely that Ewen Macdonald killed Scott Guy. Only 20% of us think it’s likely that he was not guilty.
Apparently, the Dominion Post believes that this means that:
…just 20 per cent of people surveyed agreed with Ewen Macdonald being acquitted of slaying Mr Guy outside his rural Feilding home in July 2010.
Of course, it doesn’t mean this at all, as anyone with any elementary knowledge of the justice system would realise.
What the jury found was that the murder charge had not been proved beyond reasonable doubt. That’s a lot different to the question of whether it was “likely” that Macdonald was guilty of murdering Guy.
It is entirely possible that every member of that jury thought it was likely that Ewen Macdonald killed Scott Guy. And it’s possible that they didn’t. We don’t know.
We also don’t know how many members of the public think it has been proved beyond reasonable doubt that Macdonald was guilty. It’s quite possible that most of those who told the pollster that they think Macdonald is guilty actually agree with the jury that it wasn’t proved beyond reasonable doubt.
Even if they didn’t, defence lawyer Greg King is quite right to say that the statistic would not mean much given that the public haven’t seen all the evidence.
This story somehow spins the poll into a suggestion that the jury got it wrong, or that 48% of the public public disagree with the outcome. Someone should shoot this messenger.
Topics: Media ethics | 2 Comments »
Threats! Email! Action!
June 5, 2012
Barrister and privacy whizz John Edwards has found a way to get a quick injunction when privacy protection is urgently needed. It helps that the case looks like a slam dunk. The circumstances have a familiar ring: an ACC claimant mistakenly given private details about some other claimant’s claim, including her rehabilitation, threatens by email to release them, then when contacted by ACC refuses to promise not to.
Note though, that this case is not about Bronwyn Pullar. It involves a “Mr T”. Which might be why Ronald Young J said, in his written decision:
When punks start hasslin’ decent people, I make it my bidness.
Okay, he didn’t say that. But that’s the gist. He granted the injunction, after an urgent oral ex parte application under a special process in the High Court rules. The judge required the proceedings to be served on Mr T and gave him the right to apply to have the injunction set aside. When served, Mr T returned the papers and promised he had not retained other copies. As John says, a privacy win.
Oh, and memo to ACC: what’s going on with your data security? This is getting to be a habit.
Topics: Breach of confidence, Privacy tort | 127 Comments »
Judge Harvey weighs in on anti-bullying plan
June 5, 2012
I’m flattered to see that one of Judge David Harvey’s first blog posts is a thoughtful commentary on my proposal to deal with online bullying (which is actually a variation on the Law Commission’s proposal). I think this is an important debate, not least because the government has indicated that it wants to take action on online harms, and the Law Commission is looking to finalise its recommendations in the reasonably near future.
Topics: Internet issues | No Comments »
Blogger J
June 1, 2012
New Zealand’s most tech-savvy judge, David Harvey, author of Internet.law.nz, joins the blogosphere.
I’m eagerly anticipating the flamewar with Whale Oil.
Topics: General | 3 Comments »
My plan to deal with online harassment
May 21, 2012
Is here.
Topics: General | 49 Comments »
Best headline of the year?
May 18, 2012
Stuff front-page tease for an Oddstuff story about Canadian police waiting for a thief who swallowed a $26,000 diamond to produce the evidence:
This, too, shall pass
Topics: General | No Comments »
Siemer loses again
May 14, 2012
The Court of Appeal has dismissed Vince Siemer’s appeal against being held in contempt for posting a suppressed judgment about the Urewera case. (I discussed the High Court decision here, predicting this appeal and this outcome). Of interest to trainspotters is the way the Court of Appeal has grounded the court’s ability to suppress parts of a judgment in its inherent powers (possessed by District Court judges as well as High Court judges, and allowing them to manage the proceedings to ensure fairness). That’s in contradistinction to inherent jurisdiction – extra powers possessed only by superior court judges.
Justice Harrison puts the heart of the case pithily:
Open justice is an empty concept if a Court lacks effective powers to ensure that it is able to do justice in the open.
In other words, some ability to suppress some things for some time may be needed to ensure that a fair public trial can take place. (An obvious example is that juries shouldn’t be told of the previous criminal convictions of the defendant).
Also interesting: the Court of Appeal rather confines this power, speaking only of an inherent power to postpone publication on a limited and temporary basis, and for the purpose of ensuring fairness. In the past, as the judges note, this power has been exercised in wider circumstances, including the making of permanent orders in some cases. On one reading of this judgment, that’s not open any more.
A few other points:
– I said in my earlier post that I wondered whether the extent of this suppression order (basically, the whole judgment about whether separate trials should be held, and whether they should be before juries) was necessary to do justice to the parties. I still wonder that. Presumably we’ll be able to see the judgment now that the case is over and make our own minds up about that.
– The judges said it might have been “preferable” if Justice Winkelmann had given reasons for the suppression order, but “the reason in this case was evident to an informed and objective reader”. Well, I guess that lets me out. I understand the general principle of fair trial she was aiming to protect, but I really have no idea why the whole judgment needed to be suppressed to achieve that. It seems to me that she was essentially deferring to a request by the defendants without giving much thought to open justice at all. To be fair, it was certainly significant that the defendants sought the suppression, that the judgment surely contained information that might have caused prejudice in jurors, and that working out which bits to suppress and which bits to allow might have been quite a chore.
– Still, I think the Court of Appeal makes too much of the fact that suppression was at the request of the defendants’ lawyers:
Defence counsel’s opposition to the Crown’s application to vary the suppression order… attests to [the suppression order’s] importance.
It’s fair to say that Court of Appeal judges are not always so quick to assume the importance of a defence argument from the mere fact that it was made. The Court of Appeal then concludes, with no further reasoning, that
It follows that we reject Mr Edgeler’s secondary argument that the suppression order was so excessive as to be made without jurisdiction.
– One of the reasons the judges give for departing from the English practice (which doesn’t allow these general common law suppression powers) is that it’s one of those situations where conditions in NZ justify different rules:
New Zealand courts are best placed to assess local societal conditions justifying the power to make orders.
Okay, so… what are those local societal conditions that justify NZ courts giving themselves wider inherent powers to suppress information than the English courts? The judges don’t say. I would have thought that the rapacious tabloid environment in the UK would suggest that “local societal conditions” point in the other direction.
Topics: General | 49 Comments »
Parole prisoners gagged
May 14, 2012
I see from today’s story about convicted rapist Brad Shipton that one of his parole conditions is that he give no interviews (presumably to the media).
I guess this is to protect victims from anguish caused by what he might say. But I have to say, that seems an extreme restriction on his speech rights. It seems that he could not, for example, criticise the conditions in prison, or argue that his conviction was procedurally flawed. I rather suspect that, as usual, no-one has thought hard about this, and in particular, considered whether this plain restriction on his right to freedom of expression in section 14 of the Bill of Rights Act can be demonstrably justified in a free and democratic society under section 5.
I also wonder how often this sort of parole condition is imposed.
Topics: General | 49 Comments »
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