Victory for protesters’ rights
May 6, 2011
Valerie Morse has won her appeal in the Supreme Court against her conviction for offensive behaviour for burning a NZ flag in protest at the 2007 Anzac Day dawn ceremony. (I represented her, along with Tony Shaw and Felix Geiringer).
Valerie lost in the District Court, High Court and Court of Appeal. But the decision in the Supreme Court was unanimous in her favour. They have found that protesters can’t be arrested and convicted for offensive behaviour unless the police can show there is a disturbance of public order.
Topics: NZ Bill of Rights Act, Protest speech | 58 Comments »
Journalists I like
May 4, 2011
I’m conscious of the fact that I often bag on journalists and media organisations. So I’ve decided to throw out the occasional bouquet too, in the interests of balance.
First up: take a bow Margo White. Her recent Listener story on the Maungatautari Ecological Island reminded me what a terrific journalist she is: thorough, smart, fair, and eloquent. She had to boil down some particularly tough issues and hold the balance between the warring factions. Gareth Morgan’s slightly whiny claim that she’d failed to “grasp the nettle” seems little more than a complaint that she didn’t side with him.
Topics: General | No Comments »
Information sharing recommendations
May 4, 2011
New Zealand’s laws setting out what information government agencies are able to share with each other is a bit chaotic. In the Brown case, the judge noted with alarm that the Department of Corrections had cited the Privacy Act for its refusal to share information about a recently released convicted pedophile with Police in the locality he’d moved into. Apparently, this has been sorted, but similar issues crop up all the time. The Law Commission has come up with what look to me like a sensible set of recommendations for dealing with government information-sharing. Essentially, they suggest a process for developing approved sharing programmes through Orders in Council, against a set of criteria requiring necessity, transparency, and safeguards.
Topics: Privacy Act | No Comments »
Is the BSA becoming more conservative?
May 3, 2011
Broadcasters claim that our new crop of BSA members are more conservative than the last lot. They point to the decisions upholding good taste and decency complaints against Hung, Home and Away and the documentary about Aramoana.
Are they right?
In short: I don’t really think so. I had a quick squizz through the last 100 BSA decisions, dating back to about the time of the Hung and Home and Away decisions late last year. What’s extraordinary is that no fewer than 43 of them raised good taste and decency issues. Maybe complainants are getting more conservative, or more bolshy. Maybe broadcasters are pushing the boundaries more. But this is a very high rate of complaining about taste and decency. Usually taste and decency complaints comprise less than 30% of complaints, not 43%.
The BSA upheld 9 of these complaints (including Hung, Home and Away and the Aramoana decisions). That’s an uphold rate of 21%. That’s high, but not unheard of. Around 2000 to 2003 the BSA was upholding around a quarter of good taste and decency complaints. In more recent years, though, that rate has dropped markedly, often dipping well below 10%. Still, in 2008 and 2010 it was 16%. Obviously, a lot depends on the sort of material referred to them by complainants.
Their upholds have covered things like a rape scene in a movie, a Close Up interview with a porn star showing clips from her movies, a pretty explicit sex scene in a movie broadcast at 8:30pm, and raunchy clips from Outrageous Fortune broadcast on TV3 news. I doubt these really show any change of direction by the BSA.
A couple of other upholds seem more marginal to me. I’ve already discussed the Aramoana decision. The High Court overturned the decision in Hung. I’m not really sure the BSA needed to uphold the complaint against Ski FM’s morning host for wondering:
Which would be worse, sucking diarrhoea through a straw from someone else’s butt, or sucking diarrhoea through a straw from your own butt?
On the other hand, it’s not a breach to ask:
Which is worse, drinking pigs’ urine, or your own urine?
Just so we’re clear about that.
But overall, there’s much more fodder here for those who think the BSA is too permissive: a scene from Babel where a Japanese girl exposed her genitals; a talent show spoof on What Now where a judge said to Cinderella: “Next time I’m holding one of my balls, you’re invited”; grainy photos of Shane Warne with naked women (breasts blurred) on TV3 news; characters in a movie having sex in front of a dead body; the main guy in Extreme Male Beauty exposing genetalia and talking about something that made his “winkle bleed”; oral sex on Sex and the City; a couple simulating sex in public…. none of these good taste and decency complaints were upheld. The BSA members are not a bunch of wowsers.
Some complainants are, though. For example, someone complained that a Masterchef segment on how to humanely boil lobsters breached good taste and decency.
And someone had the poor taste to complain about this fine story, where 3 News speculated about the titles of porn videos rented on the public dime by MP Shane Jones:
At the conclusion of the coverage, the presenter mentioned that people had been making humorous suggestions on the social website Twitter as to the possible titles of the pornographic films Mr Jones had watched. She said:
Among the suggestions: “Shane and the Party Whip”, “If It Pleases the Speaker”, “Bipartisan Bitches” and, dare we say it, “Withdraw and Apologise”.
Not upheld.
All in all, it’s pretty hard to conclude that the new BSA is much more conservative than the old crowd.
But much more striking than their high uphold rate in good taste and decency complaints is their extraordinarily low uphold rate for all other types of complaints. By my count, of those other 57 complaints that weren’t about good taste and decency, the BSA has upheld just six. They upheld just one accuracy complaint (though another was subsumed) and only one balance complaint (in a case I argued).
I haven’t looked at the content of those decisions, so I’m not saying they got them wrong. But on the face of it, these figures suggest that if there’s anything conservative about this BSA it’s their reluctance to hold broadcasters to account for alleged lapses that aren’t related to taste and decency…
Topics: General | No Comments »
BadJournalism
May 2, 2011
Meant to write about this last week.
How is it that the Sunday Star-Times can believe that a rehashed UK book on criminal justice (Badlands, NZ: A land fit for criminals) is important enough to be front-page news, but that the claims it makes are not important enough to seek out some New Zealand experts to evaluate them?
Topics: Media ethics | 49 Comments »
Why I bang on about protesters’ rights
May 1, 2011
Because I don’t want our country to be a place where this happens.
Three street theatre performers, including a professor of anthropology, were preparing to protest against the monarchy with a mock guillotine in Soho Square on Friday. Last Thursday, Police sent three police cars and two police vans to arrest them outside the professor’s house and charged them with conspiracy to cause public nuisance and breach of the peace.
(This seems to be an attempt to do an end-run around the House of Lords’ decision in Laporte, which required imminence before breach of the peace powers could be exercised.)
And two days before that Metropolitan police commander Christine Jones said republican placards seen in the vicinity of the royal wedding would be removed under the Public Order Act (POA):
Asked by journalist Martha Kearney whether police would use the POA to confiscate “down with the royal family” placards, Jones replied “There are 364 other days of the year when people can come to London and demonstrate and frankly it’s not appropriate on the day of the royal wedding for people to come to London with that intent.”
[Update: As Mr K points out in the comments section, more reports of unjustified arrests here and here.]
Topics: Protest speech | 4 Comments »
Media suppressing judge’s name?!
April 28, 2011
An old mate of mine, former Fair Go editor Chris Mitson, wonders why the media aren’t naming the judge who gave Malcolm Chaston bail. After all, Chaston had 71 previous convictions and during his previous stretch in prison, a prison guard had warned of his ambitions to become a serial killer. Police reportedly opposed bail. Chaston went on to murder Vanessa Pickering. Why shouldn’t the media be asking the judge a few questions about why bail was granted, he asks.
There’s nothing to stop the media naming the judge. As far as I can tell, they don’t seem to have done so. I don’t know why not.
The reports do suggest that Chaston had been out of prison for a time before the alleged assault for which he was given bail. The judge is reported as saying: there was nothing in your recent history to suggest you would offend in that way. I’m not sure what this means. Offend in what way? Was the prison officer’s warning put before the judge? But the judge may have been saying, in effect, “he’s been out of jail for a while, and kept his nose clean, apart from this allegation; there’s nothing to justify keeping him locked up pending trial for this assault”.
Judges must grant bail in a case like this (I’m assuming the charge was common assault, with a maximum penalty of one year in jail) unless there’s “just cause for continued detention”. That might be because he’s likely to abscond, or to interfere with evidence or witnesses, or commit further offences. The judge can take into account his history of offending and the seriousness of the charge he’s facing, among other things. I don’t know all the circumstances here. There may be questions to ask about whether the judge exercised the discretion properly, or whether our bail laws strike the right balance. This seems a good case in which to debate those things. The media don’t seem to be doing so.
I wouldn’t recommend approaching the judge directly. He or she will simply refuse to comment. Questions could be put to the Chief District Court Judge, but his response would probably only be a general one. Still, the debate can still take place without them…
Topics: General | 1 Comment »
Book Review: Media Law in New Zealand
April 28, 2011
Media Law in New Zealand
John Burrows and Ursula Cheer
LexisNexis New Zealand, 6ed, 2010
Reading the latest edition of this terrific text, it’s hard not to be struck by the breathtaking rate of change of New Zealand’s media law. The five years since the last edition have seen the Fairfax contempt prosecution and a string of cases involving Vince Siemer testing the boundaries of the law of contempt; the tug of war between High Court judges over cameras in court; the Mafart and Prieur case and the rewriting of the rules on access to court records; the abolition of sedition laws; reform of the Press Council following a roots-and-branch review; new source protection provisions in the Evidence Act and their first outing in the Campbell “medal thieves” case; a plethora of significant Broadcasting Standards Authority decisions (and some on appeal); the anti-satire rules for Parliamentary coverage; the Danish cartoons imbroglio; several important decisions on the vexed question of defamation pleading; the battle between MediaWorks and Sky TV over copyright in rugby clips; and much more besides.
Media Law in New Zealand doesn’t just provide a comprehensive overview of the disparate laws (criminal, tortious, and administrative) that apply to journalists. It also gives sharp analysis of the content of the law. The authors predict that the Lange defamation defence of qualified privilege for political speech is likely to “grow into a full public interest defence”, and they approve of overseas developments protecting neutral reportage. They note the problems with the remedies in the Defamation Act. They suggest journalists’ source protection should be enforced more rigorously. They sensibly recommend that New Zealand dumps its blasphemy laws. Their discussion of the case law on the various suppression laws is particularly helpful, and exposes the worrying lack of clarity in the suppression laws in civil cases.
Of course, recent editions have had to grapple with two seismic changes: the internet and the New Zealand Bill of Rights Act. The internet is increasingly becoming the battlefield for media law developments, and that’s reflected in much of the new material: commentary on ISP liability, online copyright infringement, the courts’ jelly-nailing attempts to control suppressed information once it hits the web, the problem of the status of bloggers when they perform journalist-like functions, and possible liability under censorship laws for visiting websites containing objectionable material.
References to the Bill of Rights are sprinkled throughout the text, but the main discussion is in a short chapter at the end. Alas, this offers limited guidance on the vexed issues surrounding the interface between the right to freedom of expression and the common law, statutory interpretation, and the exercise of discretions, and in particular, the mechanics of the key Bill of Rights provision, s 5, which allows “demonstrably justified” restrictions. But it’s hard to fault the authors too much here. Practitioners and judges are just beginning to come to terms with these issues themselves, and too often they are fudged or overlooked altogether.
It might be said that in this edition, Media Law in New Zealand has something of the feel of a venerable mansion, periodically modernised by the addition of extra rooms and ensuites. It is still a delight to visit and explore. All of the amenities are sound. Much of the architecture is lovely. But some rooms feel slightly musty (I’m not sure that all of the examples of defamation – and even broadcasting – cases reflect the approach the courts and BSA would take today). There’s need for a wing dealing with advertising standards decisions (the “lack of space” excuse trotted out in the last three editions wears a bit thin when each successive edition finds another 200 pages for other developments!). And I hope that later editions will find sufficient material to incorporate the Bill of Rights more closely into the foundations rather than consign it to its own room.
But any criticism feels like blasphemy. This is far and away the best book on New Zealand’s media law, and in fact has been influential in its recognition and development as a branch of law. The nation’s media lawyers, judges, journalists and students owe deep gratitude to the authors (mostly Ursula Cheer this time round) for putting in the long hours to compile this tremendously useful resource.
Topics: General | 1 Comment »
How on earth did Hotchin get name suppression?
April 21, 2011
So this is what I’ve been wondering. Mark Hotchin, in 2003 a high flying businessman, director of New Zealand’s biggest private finance company, gets duped in a ponzi scam. He loses more than $200,000 of his own money.
At the time, and since, there were thousands of investors who might have been interested in this insight into Hotchin’s business acumen.
Why did the court give him name suppression?
He was a possible witness in the case against the fraudsters. A victim. He applied for name suppression, which the court has power to grant to victims. His affidavit makes several points:
Hanover requires the public’s confidence over the nature and quality of investments…
Reputation is central to the efficient and ongoing operation of [Hotchin’s long-established business] relationships upon which Hanover’s business rests.
Publicity would lead to “concern over the investment strategies adopted within the Hanover organisation because of the loss of credibility and damage to my reputation”
Investors and third parties with whom Hanover and its entities deal could well come to the conclusion that if one of the directors of Hanover was making inappropriate investment decisions personally then he could well be doing the same for the group.
You think?
So anyway, these are the arguments for suppression.
Hotchin and Hannover’s then chief executive Kerry Finnigan were given interim name suppression before the trial by a justice of the peace. I haven’t seen that decision, if indeed there was a written one. But it was only supposed to last until a District Court judge looked at it before trial. It seems that a judge ordered that it be carried over during the trial. Hotchin, in the end, wasn’t required to give evidence at trial, though he did provide depositions evidence. At the end of the trial, the question arose as to whether the Hotching and Finnigan suppressions should be made permanent. (A number of victims were in the same boat. Some of the witnesses were given final suppression orders during the trial. Others were denied permanent suppression.)
The issue came before Judge Weir. The “press” (perhaps the Rotorua Daily Post, which was covering the trial) apparently sent in a letter opposing the continued suppression. That letter may have been written at very short notice, because going by the judge’s description, it was startlingly inept. It advanced only two arguments: one, that some other witnesses didn’t get name suppression, and two, that there were no compelling reasons to give Hotchin suppression. You might think that the wider public interest in the soundness of these businessmen’s judgment might have been worth a mention, but from the judge’s account, that argument wasn’t made.
The Serious Fraud Office didn’t oppose the suppression. (The prosecution is in a bit of a bind here. Their business is to prosecute the bad guys and protect the public. Hotchin and Finnigan were the victims here. The SFO also really needs the cooperation of victims as witnesses. It would be mean of them to stab those very people in the back by opposing their suppression application. On the other hand, they are there to represent the public interest…)
The judge brushed aside these arguments. The cases were to be decided individually, on their merits, he said. The reasons for suppression concerned their reputation in the community, the likely personal and financial consequences of disclosure, the likely effect on employees and affected organisations, and the significance of victims’ rights to privacy and dignity.
He added:
There is a failure to identify any person or past person who would specifically benefit by publication of the details of the case.
He did factor in the open justice principle. He didn’t (surprise, surprise) mention the right to “seek, receive and impart information and ideas of any kind” in the Bill of Rights Act.
Judge Weir granted permanent suppression under section 138 of the Criminal Justice Act. I’m not sure that really applies to Hotchin: it only covers “witnesses” and he didn’t give evidence at the trial. But section 140 gives power to suppress the names of anyone “connected with the proceedings”, so that probably covers Hotchin.
Was the decision correct? Here, we have to resist the extreme temptation to be wise in hindsight. There was no suggestion of Hanover’s collapse back then. Had this been reported, it’s not clear what impact it would have had on Hanover, or on the behaviour of investors. The media didn’t seem to be busting their guts to argue the case, so I have to wonder how significant they thought the story was, and how much play it would have been given. Hotchin could have been expected to deploy sophisticated PR. It’s possible he could have lost his job, as he deposes, but it’s not clear that would have made any difference to Hanover’s fate. Publishing his name may not have averted the train wreck that was Hanover Finance.
Still and all. I like to think I would have said this decision was wrong had I come across it in 2005. As the judge said, compelling reasons are required to depart from the open justice principle. The Court of Appeal held in the Victim X case that this applies to the names of victims too. (That was the case where Sir Ron Trotter’s son was an intended kidnapping victim). Judge Weir distinguished that case by saying that the victim’s circumstances had changed since he’d been granted a suppression order originally: he was now to give evidence and his wife’s position had improved in some unexplained way.
That’s not very convincing. In this case the judge wasn’t called on to vary an existing suppression order. It had expired. The question wasn’t: “has anything changed?” It was: “are there compelling reasons to depart from the usual principle of open justice?”. It was also: “would this exercise of my power to suppress the media’s speech be demonstrably justifiable?” He didn’t ask those questions. And he didn’t grapple with the most powerful public interest reasons in favour of releasing the name. That’s partly because those arguments don’t seem to have been made. But the judge should have factored them in anyway. They should have been obvious… from the affidavit of Mark Hotchin himself, which was surely on the file, though the judge didn’t mention it.
Investors and third parties with whom Hanover and its entities deal could well come to the conclusion that if one of the directors of Hanover was making inappropriate investment decisions personally then he could well be doing the same for the group.
The media couldn’t have put it better themselves.
Topics: Name suppression | 48 Comments »
You win some, you lose some
April 21, 2011
TVNZ has won its High Court appeal over the Broadcasting Standards Authority’s decision to find that a scene in Hung breached the good taste and decency standard. TV3 lost its appeal over the BSA’s breach finding in relation to Home & Away. Analysis soon.
Topics: General | No Comments »
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