No declaration after tea
November 23, 2011
Winkelmann J has declined to grant a declaration that the famous Epsom cuppa was not a private conversation.
Does that mean it was a private conversation? No, it just means that she’s declined to rule on the issue right now.
She gives several reasons. First, there are still facts in dispute, and she wan’t sure she had adequate evidence to determine them. She says this despite watching footage from the four (!) TV3 cameras at the event, and receiving a lengthy description of events from Ambrose and another from the PM’s chief of staff. There don’t seem to be many facts actually in dispute, and Winkelmann J barely mentions any. She does say that TV3 and Ambrose seem to be at odds about what the media were told before the event, but this seems fairly inconsequential. She also notes that she hasn’t heard from many of the witnesses to the cuppa, who may well have something to add to the video evidence. She says the police haven’t finished gathering evidence. She didn’t want to “conduct a mini-trial” to sort out factual issues… this is a far cry, she says, from a ruling on the interpretation of a statute when the facts are clear.
Second, she doesn’t want to gazump the police investigation. Ambrose’s lawyer seems to have submitted that (a) this case has nothing to do with the police investigation and (b) that if the declaration was granted, it would save the police time (presumably because they could end the investigation, one element of the crime having been definitively disproved). Winkelmann decided it would be inappropriate for a civil court to influence – and perhaps end – a criminal police investigation and consequent prosecution decisions. (Surely everyone in the courtroom must have realised that a declaration from her would have effectively ended the investigation).
Ambrose and the media strongly urged her to consider the public interest in the taped material, with the election looming. Ambrose and the media need clarity about what can be published. That’s a reason for exercising her power to issue a declaration, they argued. But the judge disagreed. Any declaration would have to be so hedged about with qualifiers (“on the basis of the evidence that was before me” etc) that it would still leave confusion about what could be published. (I’m really not so sure about that. A judicial indication – even a hedged one – would be a licence to the media to publish, because the police could hardly prove, after that, that the media knew the material was illegally intercepted.)
None of this is really a surprise. I don’t think the judge can be criticised for the ruling, even if another judge may have taken a bolder approach.
What I was really interested in was any hint from the judge that there’s at least serious doubt about whether the conversation was private. If she’d dropped that hint, the media could probably have published. Again: if a judge says it’s a hard call, or indicates a leaning toward considering the conversation public, then it’s hard to see a prosecution against the media for publishing it.
I suppose you can try to draw out some indication in this judgment that the issue is seriously contested. That there’s doubt. But it’s hard. The judge scrupulously avoids making any finding. She explicitly says she hasn’t formed a view about whether the conversation is private. If that indicates some doubt – it also indicates the possibility of criminality.
So I can’t see anything that helps the media here. In fact, the opposite may be the case, because in traversing the evidence for each side, the judge describes factors that point toward the private nature of the conversation:
— The Chief of Staff says, after the public bit, “Thanks guys, why don’t we just leave them to have a chat?”
— Key says “Have a chat, yeah, thank you. Get yourselves a cup of tea, enjoy the moment”.
— Mr Ambrose accepts that he heard the instruction to leave.
— The Chief of Staff saw a mic on the table and said “Ah, we’re not leaving microphones here, thank you”.
— Diplomatic protection squad members seem positioned to create a sort of cordon.
It’s looking less and less likely that the actual content of the tea tape will see the light of day before the election.
Topics: General | 51 Comments »
Focusing on the issues
November 21, 2011
I know I’m straying from media law stuff again. Let’s call it general media ethics. But I’m staggered that we can have an election campaign without discussing the ideas in two recent and significant New Zealand books: Nicky Hager’s “Other People’s Wars”, which accuses successive governments of being much more deeply involved in the conflicts in Iraq and Afghanistan than we were told, and Roger Brooking’s “Flying Blind”, which exposes our current approach to penal policy as hopelessly ineffective and cogently explains that if we don’t take serious steps to address the drug, alcohol and literacy problems of our offenders, crime will just keep cycling along.
Topics: Media ethics | 1 Comment »
The worm returns
November 21, 2011
I see TV3 plan to use the worm again on tonight’s debate. Sigh. Here’s a column I wrote opposing the worm back in 2005. I think it still holds true.
Topics: General | 1 Comment »
Memo to John Key
November 21, 2011
Stop talking about Winston Peters. At all. The 5% of New Zealand who might vote for him are not amenable to rational persuasion. They vote for him if they are reminded about him because he is in the news.
Topics: General | 1 Comment »
Hosking lays down the law
November 20, 2011
At the end of his interview about cuppagate on RNZ’s MediaWatch programme today, Mike Hosking tells us that
I think I have a pretty good appreciation of privacy law in this country.
If he means, he’s got a pretty good understanding of those laws, I think the rest of the interview demonstrates that he’s wrong.
Here’s how he describes the relevant Crimes Act provisions:
The rule is very clear and the law is very clear. Unless you have an understanding that you’re being recorded then it’s illegal to record you – that’s all part of the Crimes Act… if you go and record somebody without them knowing it, that’s against the law, and if you go and publish it without their consent, that’s against the law as well. And so the fact that there are a lot of people standing outside the window staring at you doesn’t negate your right to privacy to have what you would believe to be a private conversation…
It’s not a very accurate summary of the law. The application of the law isn’t especially clear – Andrew Geddis, Dean Knight and I have been arguing about it all week. It’s not “illegal to record” someone who doesn’t know they’re being recorded. For a start, a party to the conversation can secretly record it and not breach the Crimes Act. More relevantly, that recording must be intentional. That’s very much a live issue here, since Bradley Ambrose adamantly denies it.
In addition, it’s not illegal to publish without consent. It must be proved that the publisher knew that it was illegally intercepted. If it was unintentional, the recording was legal and anyone can disclose it without breaching the Crimes Act. If the publisher genuinely thinks the cameraman didn’t intend to intercept it, it’s hard to see how the publisher can be convicted.
Finally, much of the debate turns on whether Key and Banks ought reasonably to have expected that no-one could overhear them. The answer to that is not straightforward, whatever Hosking thinks. I still tend toward Hosking’s view – that it’s possible that the two could have reasonably expected particular parts of their conversation not to be overheard. But there are several other lawyers who disagree. At best, it’s arguable.
So when Hosking goes on to say that he’s not concerned about the media search warrants because “it’s against the law”, it doesn’t make much sense to me. Especially after he says “let’s assume the cameraman did it accidentally”. If that’s so, then there’s no crime. End of story. What’s more, anyone can publish the tape. But no, Hosking says that the editor should have told Ambrose to erase the tape “because you recorded it illegally”. Nope. Not if we’re relying on your assumption that it was accidental. Nor was it against the law if a court ultimately finds that there was a reasonable doubt about whether the parties to the conversation ought not to reasonably expect that it could be intercepted.
The search warrants are presumably being used to look for evidence of Ambrose’s intent. Some of that evidence may have been confidential statements Ambrose made to radio and television producers. Does that concern Hosking?
Hosking is very concerned about the precedent that’s created. But again, if it’s an accidental recording, it’s not a very dangerous precedent. It’s not going to happen often. And there’s still the tort of privacy, broadcasting standards and Press Council principles in the background. If it wasn’t an accidental recording and the media were to decide to publish because, after diligent inquiry, they thought it was accidental then that’s not such a terrible precedent either. That could easily have happened last Sunday.
Hosking goes on to note that the law hasn’t yet been broken. But on his argument, it had. He’d just told us that the law was clear and the recording was illegal. Perhaps he means that the media haven’t broken the law. But if Winston Peters accurately summarised what was on the tape, then there’s an argument that both he and the media (in publishing Peters’ comments) broke the law by knowingly publishing an illegally intercepted communication. (An argument. I put it no higher than that because, as we’ve seen, it would have to be proved that Winston and the media knew that the tape recording was illegal, and it’s not even clear that it was).
[Update: Hosking also said that he wouldn’t have broadcast the tape unless it showed that some law had been broken. There are several problems with that. First, that’s not a defence. To be fair, I think Hosking appreciated that; he was saying there are just times when you have to publish and be damned. Second, it’s not always going to be very clear whether a conversation is evidence of a breach of the law. What if Key was describing actions that may or may not amount to a breach of our electoral spending laws? Does Hosking get to decide? Finally, I note this distinction justifies the broadcast of an illegally recorded teacup conversation in which a minor politician says she once smoked dope, but not a conversation in which the PM says he is lying to the public about his asset sales policy.]
Hosking also praises Ambrose for going to court because “you’ll get some sort of ruling on whether it’s a public or a private conversation.” In fact, there’s no guarantee that a High Court judge will exercise his or her discretion to grant a declaration, as Dean Knight has explained.
I’m concerned that the police have taken a similar attitude. In a statement to Radio NZ, the police said:
Police considered that as the conversation had been unlawfully recorded it was necessary to advise the media at the earliest opportunity that to disclose a private conversation is potentially an offence under s 216C of the Crimes Act 1961.
This seems to suggest the police have made up their minds. I don’t think they have. The advice they gave to the media only talks of a potential offence, as does the statement I’ve quoted in an earlier paragraph. Still, it’s very sloppy language. The whole point of an investigation is to determine whether the recording was unlawful.
Topics: Journalism and criminal law, Media ethics | 26,305 Comments »
Huh?
November 20, 2011
Michael Laws, SST column today:
And it counterpoints what all Kiwis know: that there exists a uniform inability within the Fourth Estate to understand proportion and excess.
Michael Laws, on Talkback earlier this week:
If I had a gun, I’d shoot them [teagate journalists] – because they have gone rabid and they may infect others… Have you noticed… the Herald on Sunday, for example, which is rabid all the time… no idea why somebody hasn’t taken the shotgun there and just cleaned out the entire newsroom.
Topics: Media ethics | 52 Comments »
Chief Electoral Officer: VFC claims are “factually incorrect, and misleading”
November 18, 2011
I see I’m not alone in my concern that the anti-MMP group Vote For Change’s campaign is misleading when it emphasises that the alternative voting systems “could work with 99 MPs”.
Robert Peden, the Chief Electoral Office, has seen the need to put out a press release about it:
“The Vote for Change organisation is free to campaign for a reduction in the number of MPs, but to promote that view in a way that a implies a link between a vote for change, and a change in the number of MPs is factually incorrect, and misleading.”
The release explains, as I did in my complaint, that:
The Electoral Referendum Act 2010 specifies that each voting system to be considered in the referendum will have 120 MPs.
You might recall that this wasn’t something that caused the ASA to find VFC’s advertising misleading.
The Chief Electoral Commissioner goes one further than me. He points out that it’s also wrong for VFC to state that “MMP requires 120 MPs”:
Mr Peden also points out that if the debate was about the size of the House of Representatives, rather than the voting system, then it is factually incorrect to say that MMP requires 120 MPs. MMP could operate effectively with 99 MPs.
“The Commission’s view,” Mr Peden adds, “is supported by independent expert opinion.”
Topics: Advertising Standards | 49 Comments »
Contemptuous cuppa?
November 18, 2011
Is it a contempt of court to discuss cuppagate now that it’s heading to court? John Banks and Steven Joyce seem to be suggesting that now that the issue is heading to court they are somehow precluded from commenting.
Wrong. It can be a contempt to cause prejudice to an upcoming trial – especially a criminal trial, and most especially a criminal jury trial – by supporting one side, criticising a witness, revealing previous convictions, evaluating the evidence, etc. But this doesn’t come near that. In particular, there’s nothing in the law of contempt to stop Banks and Key from talking about what they said in the conversation, or answering questions about what they think of Brash’s leadership or elderly voters.
If the politicians really want to be scrupulous about it, they probably shouldn’t talk about how they regard the conversation as private – since that’s the very issue for the court to determine. But even on that point, it’s mostly a legal question, and it’s for a judge alone – not a jury – to rule on (or not) in the declaration application.
Topics: Contempt of Court | 1,272 Comments »
Dean reads the tea leaves
November 18, 2011
Dean Knight has posted on cuppagate. He’s particularly interested in the declaration application. He explains the hurdles faced by the applicant (judicial reluctance to grant declarations when issues are still in dispute and where criminal proceedings can sort things out), and says he thinks the judge should grant one anyway (to protect the integrity of the election).
By the by, he also thinks the parties to the conversation couldn’t reasonably expect not to be overheard.
Topics: Journalism and criminal law | 10 Comments »
VFC press release even more misleading than their ad
November 17, 2011
My complaint
As I’ve mentioned, I complained to the Advertising Standards Authority against anti-MMP group Vote for Change’s advertising. I thought it was misleading.
VFC changes its advertising
Also, as I’ve mentioned, VFC fairly quickly changed its advertisting to address some of its misleading statements. In particular, it added an arrow on its diagram to demonstrate that voters who opt to keep MMP also get to vote on which alternative system they most prefer. Without that arrow, the ad could only be read as suggesting that, if you vote to keep MMP, you’ve got to stop there.
Advertising Standards Authority issues its decision
The ASA has now issued its decision on the whole complaint. My main complaint was “settled”, which happens when the advertiser backs down and agrees to make a change, so it’s not necessary for the ASA to uphold the complaint. My other complaints were dismissed, though one – my argument that it’s misleading to say that under MMP “the minor parties decide who is PM” was a majority decision. The minority found that it was likely to mislead or deceive people. The majority said that, “given the provision for liberal interpretation in the advocacy principles” and “taking into account the provision for robust advocacy”, it wasn’t badly enough wrong to breach the threshold of the rule requiring truthful presentation.
I’m not very surprised about this. The ASA very rarely upholds complaints about political advertising, and for good reasons. Still, I thought as least some of the VFC’s errors were so misleading that a complaint might stand, and even if it was rejected, it might at least prompt debate about some of their shonky arguments. (I’m not saying they’re all shonky).
VFC issues press release
In response, VFC has put out a press release entitled “Political establishment target Vote for Change”.
Yep, that’s me. The political establishment. The press release doesn’t even name me -apparently it’s better for VFC to see themselves as victims of some shadowy powerful establishment.
Let me confess that I did sign up for the pro-MMP crowd’s mailing list and did offer to help them if they wanted help complaining about if there was any misleading advertising about the referendum. But then I saw Graeme Edgeler’s post excoriating VFC’s advert, and was so annoyed I decided to complain off my own bat.
I’m also called “political interests”, as in “political interests are trying to misuse the Advertising Standards Authority to shut down political debate”.
Do I really need to say this? Oh, all right. I’m not trying to stifle the debate. I think debate is good. I’m just trying to make sure the debate is not based on blatantly inaccurate information.
What VFC’s press release is about
VFC’s press release then says I targeted VFC “for pointing out that to work MMP needs more MPs”.
Not true. I simply pointed out that their pamphlet encouraging people to vote for change and for SM said of all the other systems “Could work with 99 MPs”, without pointing out that the very statute that set up the referendum means that the 99-MP option isn’t on the table. As I said in the complaint, The ad entices voters to vote for alternative systems by touting advantages that, by statute, are not being offered. I think that’s misleading.
VFC didn’t even try to address this argument in their response. Their response is all about how the alternatives can work with 99 MPs, something I didn’t really challenge. And in fact VFC to their credit added some small print to their ad saying “All of the options at the current referendum are based on a 120 seat Parliament”. That’s all I asked. They seem to think it’s the right thing to do. Why is this suddenly about gagging them from making an argument?
Get this: their press release is all about VFC being unfairly targeted for making an argument that they themselves have apparently realised is misleading to voters, and corrected. (The ASA didn’t even require them to do this. The ASA didn’t uphold this part of the complaint. This may be the first time the ASA has ever not upheld a complaint against something that the advertiser has been prepared to change.)
What VFC’s press release neglects to mention
VCF’s press release doesn’t mention the changes they made to their ad after I lodged the complaint. (In fact, it says they “stand by” their material). It doesn’t mention the misleading diagram that they fixed or the footnote they added. It describes the ASA complaint as “dismissed” rather than “part dismissed/part settled”. It dwells on the 99-MP point as if my challenge was to the truth or otherwise of the proposition that the other systems can work with 99 MPs.
The other grounds of my complaint, and VFC’s responses
VFC doesn’t mention the other grounds of my complaint, so let me repeat them. As we’ve seen, the ASA is (usually) heavily weighted in favour of letting claims go, so there’s no finding that these claims are accurate:
1. The ad says that, under MMP, minor parties choose the PM. That is inaccurate. Under MMP, a party can receive a majority, in which case it would choose its own PM. This may even happen at the very next election… But even when coalition is necessary, it need not involve the minor parties. A National-Labour coalition has always been possible. In any event, it is inaccurate to say that the minor parties choose the PM. If it were so, why wouldn’t they choose their own leaders as PM? When a coalition is formed, why are we saying that it is the minor party that’s doing the choosing. In reality, in coalition negotiations, it’s the larger parties that have most of the bargaining power.
VFC say this is a “debating point”. They say minor parties holding the balance of power have “a considerable amount of power”. They say an alternative way of looking at it is the “MMP nearly guarantees minority government”. They say others opposing FPP make statements “equally as misleading”.
Ahem. That last concession rather makes my case. It’s misleading. Note that none of the other arguments actually defends the truth of their claim. The closest they come is to say it’s “shorthand”.
2. The pamphlet contrasts MMP with the preferred option of SM. It says: “MMP allows list MPs who have been voted out by their local electorates to sneak back into Parliament on party lists”. In the context of the ad’s support for SM, it clearly implies that SM does not suffer from this flaw. Of course it does. The ad doesn’t tell us that the very criticism it mounts against MMP also applies to SM. It misleads by omission.
VFC reply – as if someone raised the issue – that “there is no doubt that SM is a compromise between the extremes of MMP and FPP”. (This is also rather deceptive: SM is much closer to FPP than MMP). Then they say they’re worried that MMP means too many party hacks and failed MPs get back into Parliament. Fair enough. But their ad didn’t say that. In the ad, any MPs sneaking back was too many. But it was conspicuously silent that SM allows them back too.
3. The ad says: “We want an electoral system that provides certainty for voters, rather than forcing them to wait for post-election negotiations. Vote For Change wants governments to be held to what they promised, not what parties manage to negotiate in coalition agreements.” Again, the ad suggests that SM offers a solution to this problem. But it doesn’t. SM offers no guarantee of such certainty, and of the absence of post-election negotiations.
VFC respond with a quote from a researcher that for all the world seems to support my point. It notes that “there is also a chance coalitions would be needed to form a government…”. Their main point seems to be – rightly – that SM is “more likely” to deliver majority governments. But of course, that’s not what they said.
You be the judge
There’s room for debate about how closely a body like the ASA should scrutinise political arguments for their accuracy. Many of my points were that VFC was misleading by exaggeration and omission. Perhaps it’s right and proper that the ASA shouldn’t uphold those.
But I still think VFC is fair game for criticism when its spin becomes deceptive.
Topics: Advertising Standards | 46 Comments »
« Previous Entries Next Entries »