The earthquake privacy debate continues
March 18, 2011
The Court Report last week featured a debate over the quake coverage and whether it may have invaded the privacy of some of the victims. (I reprise my role as reporter for the show, and interview Tim Watkin from TVNZ and pundit.co.nz, who defends the coverage). On the panel are VUW senior lecturer Dr Nicole Moreham, Taylor Shaw associate Kathryn Dalziel and Izard Weston partner Robert Stewart).
Meanwhile, the exchange continues over on Pundit, where Tim has posted another column about the issue and there’s a lively thread.
Topics: Privacy tort | No Comments »
Laws unto himself
March 18, 2011
Michael Laws comes up with a brilliant, savage parody of what a deranged right-winger might think about the case of Arie Smith.
Genius.
Topics: Media ethics | No Comments »
You’ve got to be joking
March 9, 2011
Okay, when you’re part of a trash-talking video barracking for Crawley Town in its upcoming fixture with Manchester United, it’s offensive to make airplane crashy dance gestures referencing the famous 1958 tragedy that killed eight Man United players. (Watch the plonker on the right).
But it is surely not criminal. Or so I would have thought. But no, said plonker has just been given a (suspended) jail sentence for using threatening, abusive or insulting words with intent to cause harassment alarm or distress. I think Britain has lost the plot.
Topics: Protest speech | 3 Comments »
God Loves Hate Speech
March 3, 2011
The vile Westboro Baptist Church, whose favoured method of proselytising is picketing funerals with signs like “God Hates Fags” and “Thank God For Dead Soldiers” has won its appeal in the United States Supreme Court against a $10 million damages award.
The 8-1 majority said the speech was in a public forum, on a matter of public concern and wasn’t truly aimed at a captive audience. The First Amendment serves to “protect even hurtful speech on public issues to ensure that we do not stifle public debate.” There’s an interesting review of the court’s jurisprudence on what counts as “public concern”.
The church’s pastor (whose family makes up most of the congregation) is also involved in a series of cases working their way through the courts about the extent to which the government can regulate this sort of picketing by creating buffer zones.
Topics: Protest speech | No Comments »
The personal touch
March 3, 2011
The US Supreme Court might have decided that corporations have speech rights, but it has just ruled that (in the context of freedom of information, anyway) they don’t have privacy rights.
Under the US federal Freedom of Information Act, information can be withheld if its disclosure “could reasonably be expected to consistitute an unwarranted invasion of personal privacy”. AT&T tried to argue that documents it had supplied to the FCC could be withheld under this ground. It was a legal person, it said. Therefore, it could have “personal” privacy. (The equivalent provision in NZ applies only to “natural persons”).
The Supreme Court unanimously disagreed. Writing for the Court, Roberts CJ concluded in style:
The protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations. We trust that AT&T will not take it personally.
Topics: Official Information Act, Privacy tort | No Comments »
The Wikileaks Papers
March 1, 2011
Who said this, and when?
It’s time to quit making national heroes of those who steal public secrets and publish them in the newspaper?
When whole filing cabinets can be stolen there can’t be orderly government any more.
He’s offering aid and comfort to the enemy, putting himself above the President, Congress and the whole system of government.
No, not the US government, about Wikileaks. It’s the US government, about the Pentagon Papers.
I’m not the first person to point out that we’ve been here before. But I’ve just been watching “The Most Dangerous Man in America”, a terrific documentary about Pentagon Papers leaker Daniel Ellsberg, and the parallels are eerie.
The Pentagon Papers came in 47 volumes. They revealed that successive US administrations had lied to the American public about the Vietnam War. Documents, says Ellsburg, have a power to be taken seriously that nothing else has. The government used the Espionage Act against him (but not the media). Nixon’s other response?
Let’s convict this son-of-a-bitch in the press. That’s the way it’s usually done.
If you get him tied in with some communist groups, that would be good.
What I didn’t know was that Ellsberg first went to US senators to see if they could use the documents. But they wouldn’t, out of fear of being called unpatriotic. Then he went to the newspapers. He kept pressing the New York Times to publish. A NY Times reporter said “he thought of himself as on the team” but that they didn’t think of him that way. It was “our job … to decide how and what to use,” he said. They dallied.
Why did they decide to publish in the end? Not out of principle, it turns out. It was because they couldn’t get away with not publishing it. As Max Frankel, head of the Washington bureau at the time, said: “We would never survive suppression the material. It would be known: we flinched.”
I suspect the Wikileaks lessons will be the same. The government cries wolf. It tries to demonise the leaker. It prosecutes. It claims the sky will fall. The sky doesn’t fall. The leaker hopes to galvanise the public against the government. Nothing much really changes. The prosecution fizzles.
One other lesson struck me. Ellsberg was originally part of The Man. He was uneasy about some of the things that were happening, but he was essentially the government’s guy. What moved him to start opposing the war was seeing the protesters who were prepared to go to jail for the cause.
That’s the importance of dissent.
Topics: Breach of confidence, General, Media ethics | 2 Comments »
OIA-rony
March 1, 2011
The Independent Police Conduct Commissioner has criticised the police for releasing files relating to the charges against Tony Veitch that he didn’t plead guilty to.
She found that the police should have kept their promise to contact Veitch before releasing the 358 documents. And, in fact, they shouldn’t have released the documents at all. The police’s excuse that they were looking to “balance the public debate” didn’t fly: the documents (an initial summary of facts, witness statements, etc) did not contribute to any public debate because they “comprised unproven allegations (including evidence inadmissible in a Court) and formed no part of the Police case once the Crown had agreed to the plea bargain”.
This outcome is probably right. As the Chief Ombudsman pointed out, the police are required to consider whether harm to a person’s privacy justifies withholding information, and whether that is outweighed by public interest considerations. Here, documents containing criminal allegations against Veitch in relation to charges that were withdrawn by police were matters in which he had a privacy interest. It’s not clear how their release would have served the public interest, particularly where Veitch wasn’t given a chance to have input into the release decision. Releasing these sorts of documents may also make witnesses more reluctant to come forward, and accused people more reluctant to co-operate with police.
Still, the case is rich with ironies. Foremost among them is the fact that the police are getting a rocket for handing out information. As the Ombudsmen point out in their latest annual report, the Police consistently trigger the most OIA complaints – for their failures to release information. In my experience, the police are awful at complying with the OIA, a bad look for an agency charged with enforcing the law. When I sent them an OIA request for my research on the OIA, they ignored it, despite the fact (as I pointed out in my letter) that the project was conducted under the auspices of a supervisory committee that included the law school’s dean and an Ombudsman. If a request with that sort of backing can’t prise information out of the police, heaven help anyone else who has a go at it.
The investigation showed that the police’s OIA request handling systems were in disarray. That seems to have been addressed. But it would be a sad thing if this report makes it even harder to get information from the police.
Second irony: the police cited the public interest in receiving the information to justify the release. I don’t think they have ever used the public interest balance to override a withholding ground before. I wish they’d do it a bit more often.
Of course, what’s sauce for the goose is sauce for the gander. When the media asked for Kristen Dunne-Powell’s police file, the police released that too, in order to balance the public debate. Actually, they didn’t. They refused. It really looks like they were playing favourites.
It didn’t help that they released initial witness statements – but not the briefs of evidence that were significantly different. Veitch’s lawyer said this made things worse. The police said this was “for expediency’s sake and to reduce the volume of material to be released”. No-one has pointed out that these are not reasons for withholding information under the OIA, and they’re rather telling of the police’s attitude. Did the police at least mention that they were holding some documents back? What grounds did they invoke? “Expediency”?
Also ironic: the Authority disagreed with a key aspect of the Ombudsmen’s interpretation of the OIA. The Chief Ombudsmen said there was no public interest in the release of the documents because it wasn’t the police’s role to balance the debate. The Authority said (surely rightly) that this was the wrong question. The police’s role is beside the point. The right question is whether the release would in fact serve the public interest by contributing to a balanced public debate. On that question, both the Authority and the Chief Ombudsmen agreed: it wouldn’t, because the material had not been tested in court.
Wait a moment. The material had not been tested in court? Almost all of the information published in the media has not been proved correct in a court. When a credible person makes an allegation about a significant matter, that gets reported. As a test for whether some particular information contributes to a balanced public debate, it’s absurd to ask whether it’s been proved correct in court.
We might say that the culpability of a sports broadcaster for alleged offences related to another offence he’s pleaded guilty to simply isn’t a matter of public interest. We might say that this is a matter of public interest, but that the documents don’t really bear on it, or the public interest is not powerful enough to outweigh the privacy interest in the investigation documents. We might say that the witnesses themselves have privacy interests. But we can’t say that just because particular allegations haven’t been tested in court, there’s no public interest in them.
As Eady J said in W B v Bauer Publishing Ltd:
It cannot be right that a person who has been acquitted of a criminal charge, or against whom proceedings have been discontinued by the prosecuting authority, is never to be subjected to a further inquiry (eg through investigative journalism) with a view to establishing whether he truly was the culprit. There are remedies in libel if the media, having carried out such investigations, choose to publish allegations which they are unable to prove. It would in my view be a startling restriction upon their freedom of expression if they were also to be restrained by a (judicially imposed) law of privacy even in circumstances where they were willing to mount a defence of justification.
We should perhaps remember that there is nothing to stop any of the people who provided statements and witness briefs to the police from talking to the media. It’s hard to believe that Veitch would have a privacy remedy if they did (though if they mis-state facts, there may be a defamation case). What’s more these people were prepared to stand up in court. Veitch pleaded guilty to one of the offences, which at least raises questions about the others. He has held a prominent public position. There has been a lot of coverage of the allegations, much of it partisan and ill-informed. The allegations were serious. There’s also an interest in examining the workings of a prominent plea-bargain.
Have I just demolished my initial agreement that there was a proper privacy interest here and insufficient public interest to justify disclosure? You make the call. My point is that if the police’s release of the information was slapdash and biased toward the complainant, the Ombudsmen’s and Authority’s conclusion that release was unjustified also failed to grapple properly with the interests in play, I think. And in so doing, they have made it even harder to get information out of police even when there may be a compelling public interest in it.
Topics: Official Information Act | 51 Comments »
Churnalism exposed
March 1, 2011
Take a look at this fascinating website that calculates and graphically displays the amount of UK journalism taken directly from press releases. Hat-tip: Inforrm.
Topics: Media ethics | 49 Comments »
QuakePorn
February 23, 2011
Yes, it’s helpful to the country to understand the gravity of the disaster in Christchurch. Yes, we should cut news crews some slack when they’ve got to edit on the hoof. Yes, most of the coverage I’ve seen on TVNZ and TV3 has been responsible.
But I think the highlights packages of bleeding-head woman, bandage man, howling woman, and others similarly injured or distraught, repeated over and over and over again, is crossing the line. Someone make them stop.
[Tim Watkin over at Pundit takes issue with me in his comments thread. I join battle.]
Topics: Broadcasting Standards Authority, Media ethics | 56 Comments »
Three cheers for the OIA and one for the government
February 22, 2011
I’m not sure whether the government’s document dump about the BMWs came as a result of an Official Information Act request. (If it wasn’t, then someone should put in an OIA request just in case the government has decided to hold anything back. That’s what the Labour government did in its Corngate document release).
Either way, though, the documents released are plainly embarrassing. Many governments around the world would not have released them. We can thank our official information disclosure regime for a political culture where this sort of transparency is expected. Perhaps we should also thank this government for taking its obligations seriously enough to provide a very quick disclosure (though we might be forgiven for suspecting that the government figured it was better to front-foot the issue and take the hit now rather than string it out and risk being ordered to reveal information by the Ombudsmen shortly before the election).
One other thought: it has been reported that the Solicitor-General has advised that some information cannot be released because of confidentiality promises in the BMW contract. I do hope that those drawing up and interpreting that contract, and those charged with giving advice about what we can be told about it, have borne in mind Jeffries J’s words in Wyatt C0 (NZ) Ltd v Queenstown Lakes District Council [1991] 2 NZLR 180, 191:
There cannot be allowed to develop in this country a kind of commercial Alsatia beyond the reach of a statute. Confidentiality is not an absolute concept admitting of no exceptions… It is an implied term of any contract between individuals that the promises of the contract will be subject to statutory obligations. At all times the applicant should have been aware of the provisions of the [Local Government Official Information and Meetings] Act and in particular s7, which effectively excludes contracts on confidentiality preventing release of information.
Topics: Official Information Act | 50 Comments »
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