Cancerous Daily Mail
February 21, 2011
Listening to Morning Report’s story this morning about a Daily Mail story on cancer, I was reminded of this astonishing catalogue of things that the Daily Mail has reported on as causes and cures of cancer.
And of this lovely piss-take on the Daily Mail by Dan and Dan.
Topics: Media ethics | No Comments »
SST sends blogger a defamation nastrygram
February 11, 2011
The Sunday Star-Times has sent a legal letter warning Brian Edwards about his post about its reporting on Amanda Hotchin. The SST quoted her saying:
We don’t have to justify where we get our money from or what it is spent on to anyone. I don’t care what anyone says.
Brian Edwards weighed in with a blog criticising Hotchin.
But Hotchin denied saying those words. She’s in a stoush with the SST over it. She sent the SST and Edwards affidavits from people she said were witnesses to her conversation with the SST’s journalist and supported her account of what happened.
In turn, Edwards blogged about that.
Now, Edwards says he’s received a threat from the SST’s lawyers demanding that he remove the post because it is “false and defamatory”. (The letter, as they tend to be, is labelled “not for publication: confidential to the recipient”).
Standard caveat: I haven’t seen the whole letter from the SST, or read all of the comment to Edwards’ post on the affidavits, or had access to the affidavits themselves. Obviously, I don’t know what happened between Hotchin and the journalist. Still, I think I can say something about the law here.
What about that “not for publication” line? Has Edwards committed a breach of confidence?
Well, it’s arguable. The main test is whether it was imparted in circumstances importing an obligation of confidentiality. On the one hand, the letter expressly demands confidentiality. On the other, I’m not sure whether a court would accept that the circumstances of the imparting of the information were such as to bind Edwards to the confidentiality.
Yes, it’s standard practice for these sorts of threats to include a “not-for-publication” line. But it’s not uncommon for recipients to publicise the threat anyway, and I’m not aware of any threat recipient being sued for breach of confidence for publishing the threatening letter. In some cases, there may also be public interest defence.
So it would be an interesting question for a court, but it would be a foolish lawyer who advised a client that asserting confidentiality like this is (a) legally watertight and (b) sure to be respected by the recipient. Some lawyers I’ve discussed this with admit that it’s a bit of a try-on.
Those dastardly lawyers!
Can we please bear in mind that lawyers act on instructions from their clients? If anyone’s being a bully here, it’s the SST. For all we know, Izard Weston may have strongly urged against sending the letter, or against sending it in those terms. However, they are ethically obliged to follow their clients’ instructions.
Still, they must take some responsibility for the civility of the letter, and can be criticised if the legal arguments make no sense.
Those dastardly journalists!
It really is an unedifying spectacle when a media organisation tries to shut someone up using legal threats, especially when (as here, I think) the case is not open and shut. I think journalists should take this sort of thing on the chin wherever possible. They should engage in debate instead of threats. They of all people should be aware of the dangers of the blunderbuss that is our defamation law. If nothing else they should be aware of the PR fiasco that’s likely to follow when a blogger is threatened by a big media organisation.
Is it defamatory?
The SST are adamant that is it. Brian Edwards is equally adamant that there was nothing defamatory in his post, which didn’t take sides about what was said.
I agree with Edwards that his post was very fair and balanced – as far as I can tell. Not having seen the affidavits, I don’t know whether they contain striking inconsistencies, obvious gaps, or other problems that he doesn’t discuss. More subtly, it’s hard to tell how his agreement not to publish the identities of the deponents hampers the objectivity of the whole account. I note the SST claims that Edwards could have interrogated the content of the affidavits more critically. Still, I’m inclined to trust Edwards about his summary, and he’s been open with us about the confidentiality restrictions he’s under.
But a fair account may still be a defamatory one. The blog quotes Hotchin saying the quote was “pure fabrication”. That’s plainly a defamatory accusation. It’s also a defamation to re-publish someone else’s defamatory remark. The whole of the post, read in context, probably ameliorates this accusation to some degree. But at the end of the day, I think the post suggests that there’s reasonable cause to suspect that the SST made up its quote. That’s a watered-down accusation. But it’s still a defamatory one.
Is there a defence? Quite possibly. For one thing, it may be true. If I’m right about the meaning to be attributed to the post, Edwards would only need to show that the affidavits provided reasonable grounds for suspecting that the SST journalist had invented the quote. That may be a home run. (Or if, as the SST suggest, his summary of the affidavits was selective and credulous – or if the affidavits themselves contain inaccuracies, maybe not).
For another, there may be a defence of honest opinion. It’s often hard to separate out fact and comment. And it seems that the SST didn’t identify the particular parts of the post it alleges are defamatory. Anyway, the post has the flavour of comment. It strikes me as drawing a careful distinction between fact and supposition. It is surely genuine. There may be an issue about whether it is sufficiently based on a foundation of fact, depending on what the affidavits say.
For yet another, there’s a possible defence of qualified privilege (essentially, responsible reporting in the public interest). This would require an expansion of this defence, but it’s in flux and cannot be discounted.
The presence of tenable defences really should have meant the SST shouldn’t have sent this threat, I think.
What’s this “we can’t engage” business?
The SST says it is “unwilling and unable” to engage about the issues in a public forum, as this would be “inappropriate”. This sounds like tosh to me. They admit that Hotchin hasn’t even filed proceedings. Were they given the affidavits on condition of confidentiality? If so, why not say so? If not, why not discuss them?
If, for example, the reporter does have a recording of the conversation, or even written notes, there is nothing at all to stop the SST revealing that publicly.
How serious is the SST?
The letter doesn’t seem to contain an express threat to sue. As a defamation lawyer, I am much more likely to sit up and take notice if a letter says: “If you do not remove this content immediately we have instructions to file proceedings without further notice”. A second-level threat is pitched more like: “If you do not remove this content our client reserves the right to issue proceedings without further notice”. Again, I haven’t seen the whole letter, but “our client is minded to take action” isn’t a first-order threat. My guess is that the SST will not sue over this.
Topics: Breach of confidence, Defamation, Media ethics | 9 Comments »
Book your copies now
February 3, 2011
I’m working my way through the newly released 6th edition of Media Law in New Zealand by John Burrows and Ursula Cheer. (Actually, this updated version was mostly done by Ursula). It is as comprehensive as ever. If you’re wondering how much media law there has been in the last five years, we now have a definitive answer: 190 extra pages worth. I’ll post my review for LawTalk when I’ve written it.
I was also delighted to receive a copy of the 3rd ed of Dr Matthew Collins’ The Law of Defamation on the Internet. I met Matt when I was in Melbourne, and in fact saw him in action in a defamation case. He is terrific. The book traverses the law of UK, Australia, the US, Canada, Ireland and New Zealand, among others. It also incorporates material from the European Court of Human Rights. When I’ve delved into earlier editions, I’ve invariably found it useful. As he says in the preface, “the law of defamation and the Internet has become the modern law of defamation.”
Topics: General | 2 Comments »
Hot off the press
February 2, 2011
John Key’s remarks on RadioSport about Liz Hurley being hot have now hit the UK’s Daily Mail, I see.
I’m more interested in why John Key is the only political leader given a weekly interview slot on RadioSport – and Breakfast TV, actually. This was the widely overlooked angle in the Paul Henry saga. I can’t see that there’s anything in the broadcasting codes that prevents it, at least as long as it’s not nakedly partisan and he’s not given a free platform to rail about political issues that aren’t addressed by the broadcaster elsewhere. But surely it’s conferring a healthy political advantage by burnishing his image.
Topics: Broadcasting Standards Authority | 48 Comments »
Sad news
February 1, 2011
I’m sorry to have to note the passing of Sandra Moran, a doyenne of New Zealand media law. She was a principal at Oakley Moran and a former president of the Film and Literature Board of Review. I worked with her a little over the past couple of the years and she was generous with her wide knowledge and experience of media law. She’ll be missed in particular at Radio NZ, one of Oakley Moran’s big clients.
Topics: General | 49 Comments »
Source of contention
February 1, 2011
When – if ever – should journalists be forced to disclose their confidential sources?
It’s been a hot issue lately. The Crown applied to court for an order requiring TV3 to provide identifying information of the Waiouru Army Medals thief after John Campbell’s anonymised TV interview with him. The Serious Fraud Office compelled the National Business Review to turn over notes and tapes made during its scoop on South Canterbury Finance. The government had to fend off accusations that its new Search and Surveillance Bill did not properly protect journalists’ confidential sources.
NBR was outraged at the Serious Fraud Office’s demand, describing its powers as “draconian”. The paper complied under protest, saying the materials didn’t include anything that wasn’t already published. But it was clearly worried that the SFO might come back for more. “Our concern is that we may be a target of more fishing trips by these investigators,” NBR’s publisher told NBR.
NBR’s coverage turned the heat on the SFO, no doubt to disincentivise such fishing trips with an implicit reminder of the sterling advice attributed to Mark Twain: “Never pick a fight with a man who buys ink by the barrel.”
Perhaps the SFO turned up the blowtorch a notch too high: Nevil Gibson’s suggestion that the SFO isn’t subject to judicial review or the Bill of Rights Act in the exercise of its powers is wrong on both counts. But his description of the powers as “draconian” seems on target. The SFO Act contains no protection for confidential media sources equivalent to that in the Evidence Act. The Evidence Act doesn’t contain an absolute rule that journalists can never be forced to reveal their sources, but it does mean that journalists can insist that the decision is made by a judge after weighing a range of sensible statutory factors. There doesn’t seem to be any good reason not to carry this over into the SFO legislation.
The Evidence Act provisions are fairly new, and got their first run in the Campbell case (which doesn’t seem to be available online). TV3 argued that if they were ordered to turn over information identifying their interviewee, then their sources would “dry up”. The Crown asked me to give evidence about whether that was true. What hard evidence is there of this “chilling effect” on confidential sources?
My evidence is here (skip the first 10 paras or so describing my qualifications). The cases, reports and articles I’ve drawn on are listed at the end.
I found the exercise fascinating. It quickly became obvious there is no hard evidence. If sources don’t come forward, we don’t find out, and we can’t know why they didn’t. Most of what passes for evidence is from journalists, and it’s difficult to escape the impression that it’s a bit self-serving.
But there’s much more to the question than that. Pretty much everyone seems to agree that there must be some benefit to source confidentiality. Journalists use confidential sources all the time. Some ground-breaking stories relied on confidential sources, including (from the US alone) Watergate, the My Lai massacre, the Pentagon Papers, the Iran-Contra scandal, Abu Ghraib, and the federal government’s involvement in unauthorised wire-tapping and torture. Most countries provide some protection for journalists’ sources.
But here’s the thing. Almost nowhere is the rule absolute. So those sources have come forward for those stories despite the danger that the journalist might be compelled to identify them in court.
Ah, but noble journalists will go to jail sooner than reveal a source, right? Well, some will, and have. Others haven’t. US research (a bit old, but still valid, I bet) says that journalists almost never discuss this possibility with their confidential sources. I gather that Phil Kitchen and Nicky Hager do. But how many other journalists bother to point out that the law might override their promises of confidentiality and talk about what they might do then? To be fair, this is mostly because most confidential conversations aren’t very important. Helpful to the business of news gathering, sure, but really earth-shattering revelations are very rare.
There is a proud journalistic tradition of protecting sources to the last. But it’s a bit mythical, I think. Scratch the surface and journalists are sometimes prepared to decide for themselves when it’s right to burn a source. (And that’s not counting the ones who negligently or in the course of gossip, let confidential information slip). For example, many journalists would burn a source to save a life. Many would burn a source to prevent an innocent person from being convicted of a crime. Many would feel no obligation to a source who lied to them. Some even say they would do so if they thought it was “in the public interest”. Some in New Zealand seem even to have done it because it suited their journalistic purposes.
Journalists want the right to take this decision for themselves, and not have it foisted on them by a court. But it’s not self-evident that their decision-making process is better than the one set out in the Evidence Act. And it’s not clear why the media’s occasional decision to burn sources themselves doesn’t chill sources as much, or more, than the Evidence Act.
It all gets a bit messy, doesn’t it?
The reason it’s not messier still is that, in fact, police and plaintiffs around the world only rarely seek access to such the identity of confidential media sources. Partly, that’s because the media publish most of the useful material they gather, the names of their sources are rarely vital, and the police and plaintiffs know they’ll get publicly excoriated if they do.
As for the sources themselves, they probably have a range of reasons for coming forward, and (if they think about it at all) probably usually think the chance of their identities coming out is low. Many won’t have done anything wrong. For some, the overriding factor is getting the information out. If push comes to shove, some sources are prepared to agree to be named.
But there are others – possibly breaking the law or jeopardising their jobs by coming forward – for whom absolute confidentiality is crucial. My best guess is that they are unlikely to be chilled by the odd court case ordering a source to be disclosed, especially if the facts seem far removed from their situation. Because in fact, that pretty much describes the status quo. On the other hand, if there was a string of high-profile court orders against journalists forcing them to disclose their sources – and the journalists did so rather than going to jail for them – then some of those types of sources may well get chilled, to the detriment of important stories in the public interest. (Alternatively, some might simply slip an unmarked envelope under a journalist’s door – though this would make stories harder to check out, which must count as a significant detriment when source-protection is weakened).
At the end of the day, this conclusion seems a distance from the righteous wrath that routinely spills from the media about the dire consequences attendant upon any attempt to get them to breach a confidence. Their claims are exaggerated, I think. But that’s not to say that source protection is not important.
PS: The Campbell case was resolved when TV3 agreed to give evidence of details of their meeting with the thief which provided a basis for inferring the identity of the thief (the police had some CCTV footage from the hotel where it occurred anyway, I gather, and it probably related to that). Was that betraying their source? The judge would probably have ordered disclosure without it.
Topics: Confidential sources | No Comments »
Corrections corrected
January 27, 2011
Remember the prisoner who sued the Department of Corrections for confiscating and destroying his Cosmopolitan magazine? (Two hand-drawn pictures were also destroyed).
He won. Turns out, it was an easy call. Under the Corrections Act, prisoner property can only be destroyed if the prisoner fails to comply with a requirement to remove it, and the destruction is performed with the authority of the prison manager and in the prisoner’s presence. The department admitted it flouted those rules. Game over. (I suspect there are serious and under-explored questions about how often prison authorities break the law.)
But only particular types of property can be confiscated. It must be dangerous, booze or drugs, perishable (that’s weird) or “objectionable”. One of the prisoner’s arguments was that the confiscated property was not objectionable, particularly in light of his rights under the Bill of Rights Act. The magazine reportedly compared pictures of real and fake breasts. The drawings were of a celtic cross and a woman in underwear.
The Corrections Act contains no definition of “objectionable”. The Films, Videos and Publications Classification Act contains an extensive definition which of course isn’t directly relevant, but may well not cover the confiscated items.
Judge Williams ducked this question, alas. He pointed out that the materials were destroyed, so were not in evidence and that the department hadn’t provided a full justification for its actions. Hmmm. One might have thought that a copy of the magazine, at least, could have been uncovered, and if the department hadn’t addressed that aspect of the claim, that’s its lookout.
At the end of the day, it doesn’t make much difference to the outcome. But if you are a free speech law trainspotter, you might be a bit disappointed with the court’s failure to grapple with the proper construction of “objectionable” in this context.
Topics: NZ Bill of Rights Act | 4 Comments »
Devlin name-suppression beat-up
January 25, 2011
Russell Brown has a terrific post demonstrating yet again the way the media have lost the plot about name suppression.
He notes that no judge ever actually made a determination of the suppression application on the merits: an interim order was made by consent so that the application could be properly argued later. I suspect the application would have been declined, even though the offence was trivial. This was treatment that would have been available to anyone who indicated that they wanted to make a suppression application, not just wealthy celebrities.
I think the media may be missing what could be the most significant aspect of this case. Was Devlin’s behaviour really criminal? I guess we don’t know all the details of what happened, but from Devlin’s account, this is pretty inconsequential misbehaviour. I worry that the police are overusing low-end and nebulous offences like disorderly and offensive behaviour. Did you know that convictions for offences like this have rocketed from about 2000 per year in 1990 to more than 10,000 in recent years? Yes, there have also been more criminal convictions overall. But the use of these offences has risen from 1.2% of convictions to 4.5%.
I worry in particular about the use of these offences against protesters, but there’s plenty of evidence of their use as a catch-all for police who get irritated with someone who’s being stroppy.
Or are we four times more offensive and disorderly than we were 20 years ago?
Topics: Name suppression, Protest speech | 56 Comments »
Tweeting in court
January 25, 2011
The English Chief Justice, Lord Judge (yep, that’s his name), has laid down some interim guidelines on tweeting in court. In short, he suggests that tweeting won’t usually prejudice the administration of justice, so it seems that permission should usually be granted. On the other hand, in some circumstances there may be reason to ban tweeting:
Without being exhaustive, the danger to the administration of justice is likely to be at its most acute in the context of criminal trials e.g., where witnesses who are out of court may be informed of what has already happened in court and so coached or briefed before they then give evidence, or where information posted on, for instance, Twitter about inadmissible evidence may influence members of a jury. However, the danger is not confined to criminal proceedings; in civil and sometimes family proceedings, simultaneous reporting from the courtroom may create pressure on witnesses, distracting or worrying them.
Our judges are likely to be influenced by this approach.
Topics: Contempt of Court, Internet issues | 1 Comment »
No ordinary Joe
January 24, 2011
I interviewed Justice Joe Williams for The Court Report, about being a judge, his time as Chair of the Waitangi Tribunal, and about being the only judge on the bench with a top-20 hit. His responses are thoughtful and moving, I think.
Topics: General | 44 Comments »
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