Unbelievable
May 21, 2011
Some readers have wondered whether I’m exaggerating when I accuse the British press of being incapable of reporting fairly about so-called super-injunctions. Here I offer Exhibit A: today’s Guardian story about a long-awaited and fascinating report by a committee headed by the Master of the Rolls on the issue of injunctions, super-injunctions and anonymity orders. The headline?
Super-injunctions granted far too readily, say judges
This is, in fact, precisely not what the report says. It says it has been able to find evidence of only two super-injunctions since 2010, one of which was reversed on appeal. The committee (not just made up of judges) says super-injunctions have to be very carefully controlled, granted on strict terms, and granted rarely. And it says that’s just what’s happening. Still, the committee wasn’t certain it had picked up on all the super-injunctions around, including some that may have been granted before 2010.
This is simply nowhere near as big an issue as the media are suggesting.
UPDATE: I was mystified by the way the Guardian quoted the committee as saying that there was “justifiable concern” super-injunctions had been granted “far too readily”. That statement doesn’t appear in the report at all.
But a summary of the report, with accompanying statements by Lord Judge and Lord Neuberger, does say it:
There was justifiable concern, when the Committee was formed, that super-injunctions were being applied for and granted far too readily. This concern has now been addressed. Since January 2010, so far as the Committee is aware, two super-injunctions have been granted, one which was set aside on appeal and the second which was in force for seven days. Super-injunctions are now only being granted, for very short periods, and only where this level of secrecy is necessary to ensure that the whole point of the order is not destroyed.
The Guardian’s headline seems much more justifiable in that light, though it implies that the practice continues when the report says it doesn’t. Still, the story sets out the report’s findings. Oddly, the report itself really doesn’t supply any evidence to substantiate the concern that super-injunctions were granted far too readily before 2010. It does talk (para 2.35) of “justifiable concerns that a form of permanent secret justice was beginning to develop”, and says (para 2.36) that some old super-injunctions may still be in existence. But it provides no statistics or even examples, adn merely reports (para 4.4) that the claims are “impossible to verify”. The report suggests that the higher estimates (up to 300) may based on double-counting, counting anonymity orders, or just exaggerated. The committee sensibly recommends that better statistics be kept.
Topics: General | 5 Comments »
Which one is not like the others?
May 16, 2011
Famous victims of the justice system: Lindy Chamberlain, Rubin “Hurricane” Carter, the Guildford Four … and David Bain?
Bain and Joe Karam are lined up to speak with these others at an international conference on justice in Perth next March.
Barry Scheck from the Innocence Project will also be speaking.
Topics: General | 5 Comments »
Who slew? Who knew?
May 13, 2011
Let me go on record as saying I think Jon Stephenson’s allegations about NZ involvement in abuses in Afghanistan demand a proper independent investigation. Wayne Mapp seems to have admitted many of them, but somehow the government still seems to be saying “Move along – nothing to see here”. At the same time the PM is attacking Jon Stephenson’s credibility in way that strikes me as being both despicable and entirely beside the point.
Was NZ party to war crimes? I want to know.
Topics: Media ethics | 1 Comment »
Why we should protect flag-burners
May 12, 2011
This piece is in today’s DomPost, but they don’t seem to have put it up online:
I’m astonished by the reaction to the Supreme Court’s decision overturning Valerie Morse’s flag-burning conviction. “Anyone can burn our flag”, thunders the front page of the Dom Post, disapprovingly. It’ll make the police’s job harder, intones Radio NZ news. The decision is “ridiculous”, says an RSA official.
I was one of Valerie Morse’s lawyers, so I’ve thought a lot about her case. And these responses strike me as shallow and misleading.
One reaction I can respect, though, is from those (like other RSA spokespeople) who are appalled that anyone would think of burning a
But protesters are a determined breed. They care passionately about the issues they demonstrate about. Many have devoted their lives to the cause. For Valerie, and others, that cause is our country’s involvement in foreign conflicts. Their banner that day called on the government to pull our troops out of
It is difficult to think of a more important political issue than whether we should involve ourselves in foreign conflicts. And it’s difficult to think of an important political issue that has received less debate and media attention.
Is it any wonder that protesters see the need to shock us out of our complacency? Remember, we’re talking about protesters who tend not to have the money to run big media campaigns. They don’t own newspapers. They don’t feel represented by the political parties. They tend to be regarded as radical. Journalists don’t go to them for quotes and stories.
So why listen to them at all? Why indeed? Why listen to those upstart suffragettes in the nineteenth century? The smelly hippies in the sixties who started drawing attention to environmental degradation? The handful of consumer activists pointing out that our cars were unsafe? The clutch of humourless harpies arguing for equal pay for women?
US law professor Cass Sunstein has written a series of terrific books exploring how ideas take hold in society. The evidence shows we have a strong tendency to conform to prevailing ideas. When those ideas are widespread, but flawed, this can have terrible consequences. We’re often in the most danger when we’re the most smugly sure of ourselves. But the good news is that society can be rattled out of narrow mindsets, and sometimes change direction altogether. All it takes is a handful of dissenting voices. They provide the opening for the rest of us to start considering different approaches. We should encourage dissent, he concludes, not punish it. Conformists benefit their own interests. Dissenters benefit society.
Of course, that doesn’t mean that every protester has magic access to the truth. Some are crackpots. The point is that it is vital for society to be constantly challenged by people who strongly believe that things should be done differently.
Valerie’s flag-burning ignited howls of outrage about her methods. But it also sparked one of the few debates we’ve had about our engagement in
What’s more, it drew a stinging rebuke from the Prime Minister and the leader of the opposition. I’m inclined to think that a dressing down like that is the right place for those seeking to enforce norms of decency in protests. We don’t need to use the criminal courts.
When protesters are brought before the courts, the New Zealand Bill of Rights Act is there to ensure that judges respect rights of free speech, and only restrict it when doing so can be “demonstrably justified in a free and democratic society”. Valerie’s case was about forcing the courts to acknowledge that the police and criminal law must give protesters, and others engaging in speech, more latitude.
This is hardly a radical idea. It is well established internationally that the right to free speech protects protesters and includes the right to shock, offend and disturb. As UK Court of Appeal judge Sir Stephen Sedley put it in a similar protest case: “Freedom to speak inoffensively isn’t worth having”.
There is surely no country on earth that treasures its flag and its troops more than the
The Supreme Court upheld their rights. It said the First Amendment serves to “protect even hurtful speech on public issues to ensure that we do not stifle public debate.”
Our Supreme Court has not gone so far. It has not said it will never be offensive behaviour to burn a flag. It has not stripped police of their powers to intervene in a protest when a breach of the peace is imminent (though the thrust of the decision suggests police should usually restrain crowd members from taking unreasonable retaliatory action, not arrest the protesters).
The court unanimously laid down a principle that we can’t punish behaviour as offensive unless it’s disturbing public order. And when protesters are exercising speech rights, we must be extra tolerant of their views and their methods – even if we despise both – before we can call their conduct criminal.
That seems right to me. That’s what freedom looks like.
*In the comments thread, Russell Brown disagrees that the flag-burning “sparked one of the few debates we’ve had about our engagement in Afghanistan”. I’ve gone back and looked at my files, and he’s got a point. As my op-ed piece accepts, most of the response was about whether it was appropriate to burn a flag. But it did go further than that. In the course of the coverage, the protesters’ message about involvement in foreign military conflicts was fairly widely reported. Three editorials discussing her actions outlined the reasons for them. Several letters to editor were published that addressed the militarism debate (“Our robust independent foreign policy ensures that we make up our own mind on conflict in the world today and I think Morse needs to give New Zealand greater credit for that”, said one. Another suggested that the way we honour our “heroes” sometimes obscures the atrocities that countries commit in wars). I’ve reproduced one of Valerie’s letters below. In addition, Marion Hobbs, who attended the ceremony on behalf of the government, defended our involvement in overseas conflicts as peacekeeping and said Morse must be “crazy” to oppose it. There was also debate about whether ANZAC day was, as Morse contends, a “glorification of war.” But I don’t have any evidence that the debate focussed specifically on Afghanistan.
Topics: Protest speech | 61 Comments »
Max Mosley slapped down
May 11, 2011
The European Court of Human Rights has unanimously rejected Formula 1 boss Max Mosley’s claim that the UK’s laws didn’t sufficiently protect his privacy because they didn’t require the press to give him advance notice before publishing invasive articles about him.
The most surprising thing about this decision is that the ECHR held that it would be possible to draw up a workable definition of “private life” so that the press would know when they’re about to intrude on it, and who this notice requirement would apply to. (The ECHR did not, however, supply such a definition).
However, it concluded that an advance notification requirement would be unworkable for other reasons. It would have to be subject to a public interest exception, which would fatally undermine it. After all, the News of the World said it believed the footage of Max Mosley having his bottom shaved was in the public interest (both because of what they believed – wrongly – to have been a Nazi theme, and because they asserted that the S and M session depicted a series of assaults!). So it wouldn’t have worked in Mosley’s case.
Such a requirement would also have the potential to chill important speech, the court found. (This isn’t very well explained, I think. It is a universally accepted principle of ethical journalism that people be confronted with serious criticisms so that their response can be included in the publication. That’s not usually regarded as chilling speech. What’s more, the possibility that a person may seek an injunction to prevent publication if they are forewarned like this is not usually regarded as a good reason not to seek such a response.)
More convincingly, the court said that such a rule would be only as effective as the punishment for breaking it. If tabloids ignore the notification rule, what then? Fine them? It would have to be a big fine to provide any real incentive. So big, in fact, that it would probably be disproportionate.
As Hugh Tomlinson QC points out, this is not really a shining triumph for free speech. It is not a backward step in the ECHR’s privacy jurisprudence. There’s no doubt that the judges would have rejected any claim by News of the World that Mosley’s privacy action against them breached their free speech rights.
Topics: NZ Bill of Rights Act, Privacy tort | 47 Comments »
Whale Oil loses his appeal
May 11, 2011
Cameron Slater has lost his High Court appeal against his convictions for breaching a variety of name suppression orders, and against the penalties imposed (ie fines totalling $6750). Remarkably, none of the 16 king-hit arguments he boasted of has found favour with either of the judges who has considered his case.
Topics: Name suppression | No Comments »
Super-injunctions debunked
May 10, 2011
If you want to know what’s going on with so-called “super injunctions” (that is, court orders that not only suppress particular information but also suppress the fact of their existence), I suggest you don’t read the British press. Or anything that comes out of it. The British papers are so incensed by the idea of the super injunction that they are incapable of reporting that super injunctions are very rare, are usually plainly justified (because they deal with blackmail, for example), are usually very short-term, are often not even challenged by the media, and almost always involve information that is of no conceivable public interest.
Some of the ballyhoo has been about the “super injunction” granted to journalist Andrew Marr, who has now outed himself as the plaintiff. In fact, that was never a super injunction, just an ordinary one, and was reported on at the time it was granted. The wire-sourced Stuff article I’ve linked to above gets this wrong (a Stuff-up?). As does this other one in the NZ Herald (no fancy pun for that).
Topics: Injunctions | 45 Comments »
Mosley decision imminent
May 10, 2011
Max Mosley has argued before the European Court of Human Rights that the right to privacy requires that people subjected to invasive intrusions by the media must be informed about them before publication to give them a chance to challenge them in the courts before the damage is done. This has the potential to throw the media into a tailspin. The ruling will be released later today.
Topics: Privacy tort | No Comments »
Igniting debate
May 10, 2011
Yesterday, I was on TVNZ’s Breakfast show to talk about the Morse decision.
Topics: Protest speech | No Comments »
Flag that
May 7, 2011
Anyone reading today’s front-page story on the Morse flag-burning decision has every right to be confused.
The paper correctly reports that the Supreme Court has found that it’s necessary to prove that offensive behaviour must give rise to a “disturbance of public order” before a conviction can be entered. But the paper reports that a protester was punched after the burning. Did the court decide that wasn’t a disturbance of public order?
The paper notes that:
It is illegal under the Flags, Emblems and Names Protection Act of 1981 to destroy the flag with the intent of dishonouring it.
Did the court also rule on that Act, and perhaps find that it, too, required some sort of disturbance of public order?
The paper reports Bill Hodge saying the decision means the police no longer have the right to pre-emptively take action to prevent a breach of the peace. Is that what the judges say?
No, no and no.
The punch
The punch wasn’t thrown at Valerie Morse, but at another protester, who had blown a horn, then tussled with the police when they tried to remove the horn, then tried to run away through the crowd. (This is discussed in the judgment). It wasn’t in any sense a consequence of the flag-burning and the Crown didn’t allege that it was. If someone had tried to punch Valerie while the burning flag was aloft (or throw something at her or threaten her), there’s an interesting question about whether that would be the sort of disturbance of public order that the Supreme Court were talking about. After all, you can’t hold a protester responsible for the unreasonable reactions of onlookers. The thrust of the decision, I think, is that onlookers are generally required to show restraint and tolerate the views and methods of protesters, even if they despise those views or methods.
What’s more, most of the judges noted that there was some level of disturbance of public order in response to the Anzac day protest. Some at least might have been prepared to say that it was enough disturbance for her to be convicted. But they weren’t confident about the evidence, and didn’t think it was fair to hold it against her since during the trial nobody had realised how significant it was. For example, the defence might well have cross-examined harder about it.
The Flags, Emblems and Names Protection Act
This wasn’t mentioned by the court at all. Valerie wasn’t charged under it. You might remember that Paul Hopkinson, who protested at Parliament against the Iraq war by burning a flag was prosecuted under this statute. You might remember that he got off on appeal. The judge said our right to freedom of expression under the Bill of Rights meant that the offence had to narrowly interpreted. It required an intent to villify the flag. Most protesters don’t have that. Most plainly use the flag as a vehicle to protest against particular government actions and policies.
That case rather made the Flags, Emblems and Names Protection Act a dead letter. One of our arguments before the Supreme Court was that the prosecution shouldn’t be allowed to use the vague offence of offensive behaviour to avoid a prosecution under the Flags Act, which Parliament clearly intended to be the relevant offence. The Court didn’t address it.
Powers of arrest
I think Bill Hodge is wrong. There is no discussion in this case of the police’s powers concerning breach of the peace. They still have the power to arrest to prevent an imminent breach of the peace. This is essentially a crowd control measure, and doesn’t itself mean that an offence has been committed by anyone. This case doesn’t change that.
Topics: General | 50 Comments »
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