Steven Price

My book

Media Minefield


Guide to NZ Media Law

Official Information Act

Official Information Act


Bill of Rights Act

Media law resources

Feeds (RSS)

Members

Media regulation seminar

April 18, 2012

If you’re interested in new media (and old media) regulation, mark this down in your calendar. The Legal Research Foundation has organised a seminar to discuss the issues arising from the Law Commission’s The News Media meets ‘New Media’ issues paper (which I commented on here).

It’s to be held on 1 May from 12:15 at the Pullman Hotel in Auckland. The line-up includes Professor John Burrows and Cate Brett from the Law Commission, Barry Patterson, the Chair of the Press Council, Clare Bradley from TV3, Martin Crocker from Netsafe, and yours truly. (Where’s the BSA?, one wonders).

Register here.

Topics: General | 47 Comments »

Copywrongs

April 7, 2012

It seems that pretty much all the discussion about copyright these days is about the new online infringement laws. But I want to talk about another copyright issue that I think poses, on paper anyway, a bigger threat to free speech: the surprisingly narrow reach of our fair dealing defences.

I say “on paper” because copyright gets flouted all the time and usually without any consequence whatsoever. If someone gets into the news, newspapers don’t hesitate to filch a photo from their Facebook page. If anyone complains, they offer a couple of hundred dollars. Who’s going to sue? Bloggers rip off vast chunks of text from anywhere they like or put together a mash-up lifting clips and music from other sites or write their own captions for that Hitler scene in Downfall. TV producers often grab footage with barely a thought for the copyright implications.

My impression is that the only people who really take copyright seriously are film-makers and book publishers, because if they fail to get a copyright clearance, there’s so much invested that the copyright owner has them by the short and curlies. That’s because the laws of copyright are extraordinarily far-reaching. Authors and creators hold nearly all the legal cards. Almost any work – musical, artistic, literary, photographic, typographic, and more – that has a minimal amount of creative effort put into it attracts copyright for its maker. No registration is required. Copyright lasts for the maker’s life, and then another 50 years (70 in the UK and US). The maker then has rights to use the work and to stop anyone else from using it. Anyone who takes a substantial part of that work without permission is infringing those rights. And the courts have set the threshold pretty low: a few lines from song lyrics, a couple of pages from a diary, some paragraphs from a news article.

On one level, of course, this seems fair enough. If you put in the creative work, you should be able to reap the rewards. There’s a powerful (though not undisputed) case that authors, for example, will be less likely to write and publish books if you or I could whip out, buy a copy, photocopy it, and flog off the pirated versions at whim. If that happened, the world would be a poorer place without those books. Looked at in that light, you can see copyright protections as bastions of free speech: they incentivise speech by rewarding it, and expand the diversity of speech available to the public.

Of course, looked at in another light, copyright laws are an attack on free speech. They seriously inhibit the flow of information by locking up vast quantities of material in boxes that we need copyright owners’ permission to open. One upshot is that information that might be important in the public interest – might be momentous news – might be in those boxes.

There’s one good answer to that concern. Copyright doesn’t grant ownership of the information itself. It just protects particular ways of expressing it. So while the person who uncovers and writes the first story about a corrupt politician has the right to stop anyone reproducing that story verbatim, she can’t stop anyone else from revealing the information, provided they use their own words. In fact, in one case, a judge held that this was a complete answer. As long as everyone has the right to express the idea in their own words, copyright laws don’t restrict the right to freedom of expression in s 14 of the NZ Bill of Rights Act 1990 at all:

…for what is protected there is the right to express and receive ideas and opinions. Section 14 does not provide a guarantee of a right to appropriate someone else’s form of expression. “Freedom of expression” does not mean freedom to copy the form in which authors have expressed themselves and without consent having been given. (TVNZ v Newsmonitor Services Ltd [1994] 2 NZLR 91)

I can’t see how this works. Section 14 includes the “freedom to… impart information and opinions of any kind in any form”. On the face of it, that includes the form in which it was originally written by someone else. Copyright laws might well be a demonstrably justified limitation on freedom of speech, but they are a limitation.

Why does this matter? Because sometimes, verbatim copying or the use of someone else’s photographs or footage might be necessary to tell the news story. The precise words might be news. The exact words used in a leaked memo might be much more revealing than a mere description of them. A key photograph might tell a story in a way that no words could. What’s more, even if copyrighted material isn’t essential to the news, it is often helpful in presenting it in a way that helps us understand it.

What about fair use? In New Zealand, our fair dealing defences are much narrower than the American “fair use” defence, though many don’t seem to realise that. They protect the use of extracts of copyrighted material for the purposes of reporting current events, or for criticism or review (see s 42 of the Copyright Act 1994).

That sounds fairly wide. But it’s not. Restrictions abound. Often there must be “sufficient acknowledgement” of authorship. The criticism defence only applies to criticisms of a work (and not, for example, of a person or a policy). The current events reporting defence doesn’t apply to photographs. And “current events” has been construed narrowly. Satire and parody don’t seem to be covered. The best that can be said about these limitations is that they are widely ignored. But that’s hardly satisfactory. What’s needed, I think, is an expansive interpretation of these defences, prompted by a proper understanding of the Bill of Rights issues at stake. Even better: let’s reform the Copyright Act to widen the reporting and criticism defences, and add in parody and satire too.

News, criticism and satire lie at the very heart of freedom of expression. They’re getting short shrift from our copyright laws.

First published in NZ Lawyer magazine

Topics: Copyright, Internet issues, NZ Bill of Rights Act | 48 Comments »

Thanks all the same

April 7, 2012

Apparently Paul Dacre, editor of the wildly popular but staggeringly awful British tabloid the Daily Mail, likes NZ. This from a very interesting New Yorker article on the paper:

According to one editor, Dacre is enamored with New Zealand: “He thinks it’s like Britain from the nineteen-fifties.”

Topics: General | No Comments »

New media Downstage play

April 2, 2012

This looks interesting. Downstage are putting on a play satirising the news and involving the live editing of footage and commentary supplied by the audience. Starts April 13.

Topics: General | No Comments »

Silliest statement by an Attorney-General ever?

March 27, 2012

On Sunday, former Police Minister Annette King told TVNZ’s Q and A that the Labour government ministers had merely been briefed on Operation 8, and at the last minute at that; that they were given assurances by Solicitor-General David Collins that the process was correct; and that they were dismayed by the way the police conducted the raids and what seemed like an about turn by Collins when he said later that the law was incoherent and much of the evidence inadmissable.

Yesterday, Attorney-General Chris Finlayson accused her of contempt of court. Her interview might prejudice “ongoing matters in the trials arising out of that operation”: sentencing, the possibility of an appeal, and the possibility of a re-trial.

I find it hard to see anything in Annette King’s interview that might cause serious risk of prejudice to any of those matters. On the other hand, the interview did begin to explore interesting and important questions about what the government knew, and when, and what was the quality of the advice that the government was receiving.

But the Attorney-General visits la-la land with his final sentence, which seems to have been widely and uncritically quoted:

It is inappropriate for anyone, but particularly for politicians, to comment publicly on matters that are before the Courts.

This is tosh. Of course we can talk about court cases. The only thing we can’t do is publish things that cause real risk of prejudice to the administration of justice. That’s a pretty narrow category of things.

This is the sort of tosh usually dished up by those who simply don’t want to talk about the issues arising out of particular cases.

Topics: General | 48 Comments »

Cairns v Modi judgment

March 27, 2012

Is here.

Topics: General | 48 Comments »

Doesn’t sound like a fair go to me

March 1, 2012

So the head of TVOne and Two, Jeff Latch, asks for a powwow with Fair Go staff. Labour broadcasting spokesperson Clare Curran asks whether, at that meeting, he asked them to go easy on TVNZ’s advertisers. Here’s his response:

“The key points I made at that meeting was that the heart of Fair Go for the past 20 odd years it has been on television, is that it represents the underdog and the small guy and stands up for them,” he told Parliament’s commerce select committee.

“I also made the observation we operate in a commercial environment and Fair Go, like all our programmes, need to exercise care in the way they handle stories.”

Journalists needed to make sure stories were always balanced with the views of both sides of the story, he said.

“A story that is not balanced could be something that is not really what we would want to run on that network.”

Latch said there was “nodding acceptance around the room that that made sense”.

It does make sense. So much sense, in fact, that you have to wonder why Jeff Latch had to organise a meeting with Fair Go to tell them that. Did he also mention that they should try to be accurate? Not defame people? Latch should know that Fair Go are probably the TVNZ reporters best versed in broadcasting standards and media law, since they deal with them every week. (Back in my days at Kensington Swan, I used to provide advice to them).

Asked if he was instructing Fair Go not to produce programmes that upset advertisers, he said “it wasn’t an instruction, per se.”

Not per se? This sounds weasily to me. Was it a hint, Mr Latch?

Because actually, Fair Go has a pretty good track record in its broadcasting standards complaints. It has not been listed in the BSA’s “Most complained about” shows for at least the past three years, despite the fact that it often makes serious accusations against people with the resources to sue. Likewise, there haven’t been any reported defamation cases against them in the last few years, as far as I can tell. Was there a big secret settlement recently?

If not, Mr Latch – how should I put this? – you should stay the fuck away from the Fair Go staff. It’s their job to tackle TVNZ’s advertisers when that is merited, and it’s your job to hire good journos then leave them to get on with their job.

Topics: Media ethics | 6 Comments »

Should we have a tort of intrusion?

February 28, 2012

How far does our privacy tort stretch? Does it – should it – include offensive intrusions into someone’s affairs?

It is well established now that you can sue for invasion of privacy if someone offensively publishes sensitive private facts about you and there’s no redeeming public interest. A newspaper reveals you had an abortion as a teenager. A blogger publishes pictures of you naked. Someone tweets that you have an STD. The tort of invasion of privacy, at least in theory, could provide you with an injunction or damages for these revelations. But what if there’s no publication? What if someone reads your diary, eavesdrops on your intimate conversation, improperly accesses your health or bank records, films you with a hidden camera, or sneaks a peek at your video rental history? Depending on the circumstances, you might be able to avail yourself of one of a range of legal remedies such as harassment, breach of confidence, nuisance, trespass, or the offences of intimat

e covert filming or illegal interception. The Privacy Act may provide protection: you can complain, for instance, if material about you has been gathered in a way that is unfair, unlawful or unreasonably intrusive, and you can show that you’ve suffered harm as a result.

But these avenues all have limitations, and won’t necessarily provide for an injunction or damages. The Privacy Act does not apply to newsgathering journalists.

Might the tort of invasion of privacy be stretched to include this sort of intrusion, even without publication – in fact, even if the intrusive behaviour doesn’t turn up any truly private facts? Might the tort recognise that the harm here is the offensive prying into a person’s interests in seclusion?

Yes it might. New Zealand’s leading privacy case, Hosking v Runting [2005] 1 NZLR 1, deliberately leaves this question open. “We need not decide at this time whether a tortious remedy should be available in New Zealand for unreasonable intrusion into a person’s solitude or seclusion,” say Gault P and Blanchard J. “The cause of action will evolve through future decisions as Courts assess the nature and impact of particular circumstances.”

Last month, the Court of Appeal for Ontario took this step. In Jones v Tsige (2012 ONCA 32), the judges developed the law to award $10,000 in damages against a bank employee who accessed a colleague’s bank records 174 times over four years. “Recognition of [a right to sue for intrusion upon seclusion] would amount to an incremental step that is consistent with the role of this court to develop the common law in a manner consistent with the changing needs of society,” wrote Sharpe JA for the court, citing supportive case law from Canada and elsewhere, the growing problems caused by intrusive technology, and increasing academic support for the change. The court suggested that damages should be modest and free expression rights borne in mind where relevant.

Now, if these facts were to arise in New Zealand, I’d expect the Privacy Commissioner’s office to be the first stop. It seems that the equivalent Canadian privacy legislation has more limited reach. But I also expect that our courts will be likely to follow the Court of Appeal for Ontario in expanding our tort. I say this for four main reasons.

First, this development is in line with the underlying reasons for protecting privacy: allowing us space to develop intimacy, trust, and creativeness away from the gaze of others; acknowledging our dignity; giving us control over what we allow others to see of us; and giving us room to relax, experiment and let off steam.

Second, American law already contains this strand of privacy violation. It has been picked up by our Broadcasting Standards Authority, which provides a remedy against offensive intrusions – by hidden camera, for example  –  where there’s no sufficient public interest to justify the invasiveness. The BSA has shown this remedy to be workable and flexible. (Admittedly the BSA complaints only arise in the context of complaints against material that has been published. But the BSA is not asking whether the broadcast itself was intrusive or offensive, but whether the prying that led to the broadcast was intrusive). The intrusion remedy contains many familiar elements: reasonable expectations of privacy as a touchstone, highly offensive intrusions, defences of consent and public interest. The High Court has approved this development. Cases have shown the need for it: see for example, O’Connell v TVWorks 2007-067, where Target broadcast hidden camera footage of caregivers, even though most of those caught on film were doing little that was really wrong. It doesn’t make much sense for there to be an intrusion remedy for complaints against broadcasters, but not against anyone else.

Third, this new strand of privacy violation imposes less on freedom of expression, since it does not revolve around publication. It may constrain the gathering of information, however, so the resulting restriction on free speech arguably needs to be demonstrably justified under the New Zealand Bill of Rights Act. Properly applied, I think it can be justified. The threshold of offensiveness is a high one. The public interest defence protects significant speech. The requirement of proportionality should ensure that the tort is kept in its place.

Fourth, the Ontario Court of Appeal is surely right that galloping technology is vastly expanding the opportunities for intrusions on our private affairs. The tools for invasive covert recording are often no further away than our pocket or purse, and there’s a growing willingness to use them. I’ll leave the last words to the authors of the most famous legal article in history: Samuel Warren and Louis Brandeis, arguing that the common law should recognise a tort of invasion of privacy – back in 1890.

The intensity and complexity of life, attendant upon advancing civilisation, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress far greater than could be inflicted by mere bodily injury.

(“The Right to Privacy”, 4 (5) Harvard Law Review, 193).This column was first published in NZ Lawyer magazine.

Topics: Privacy tort | 964 Comments »

Well, you would be, wouldn’t you?

February 20, 2012

Lovely NZ Herald headline:

Man critical after being set on fire

Topics: General | No Comments »

Offensive offence

February 16, 2012

A few years back, the censor banned this T-shirt (scroll down) depicting a masturbating woman and the words “Jesus is a cunt”. I questioned the ban.

Now the retailer who sold the T-shirts has been convicted for possessing them. I note that this offence also applies to everyone who owns such a T-shirt, whether they wear it or not. Are they to be prosecuted too?

Topics: Censorship, NZ Bill of Rights Act | 49 Comments »


« Previous Entries Next Entries »