Erin Leigh succeeds in defamation appeal
January 23, 2011
The Court of Appeal’s decision is pretty much exactly what I predicted here. The briefing paper and the oral briefing about PR staffer Erin Leigh’s departure from the Minstry of the Environment are – contrary to Dobson J’s ruling last year – capable of defaming her. But her negligence claim is a loser.
The real interest in this case lies in the qualified privilege defence, I think, but that battle is yet to come.
Topics: Defamation | 48 Comments »
Without prejudice?
January 21, 2011
Isn’t much of the coverage of the Auckland child abuse case based on the premise that crimes have been committed, and implicitly, that they were by the parents (and another family member)? That includes some of the statements from the government, as where Social Development Minister Paula Bennett is reported as saying that it was evident from the letter from the child’s mother that she was “actually hiding what was going on”.
How exactly are these defendants to expect a fair trial?
Topics: Contempt of Court | 50 Comments »
ECHR upholds Campbell, criticises success fees
January 19, 2011
The European Court of Human rights has endorsed the House of Lords majority finding in the Naomi Campbell case that her privacy was breached by the publication of photographs of her outside a Narcotics Anonymous meeting – and that this was not a disproportionate interference with the paper’s freedom of expression. (There’s lots of language about the domestic courts being given a margin of appreciation to strike this balance, so I imagine the ECHR would also have upheld the decision if it had gone the other way).
But the Court found that the 100% success fee awarded by the courts to Campbell as part of the cost order was a disproportionate limitation on the paper’s freedom of speech. That is, if the plaintiff arranges with lawyers that if she loses there will be no fee payable but if she wins the lawyers receive double their normal fee, and if after the plaintiff wins the courts allow that fee-doubling “uplift” to be reflected in the costs award – as they have in the UK – this is too punitive of defendants. INFORRM suggests this will probably kill off conditional fee agreements.
I’m not aware of such agreements being in widespread use in NZ in the media law field (or any other), though they are no longer considered unlawful. Just to boggle your mind further, such conditional fee agreements are usually supplemented with “after the event” insurance, which means that the plaintiff is covered against the possibility of losing the case.
Topics: Privacy tort | No Comments »
Memo to HOS: When a man is accused of dismembering his former partner, don’t pap their 5-year-old kid
December 22, 2010
Yes, even if he may be an important witness. Especially if he may be an important witness.
Even if he’s in a public place.
Even if a different picture of the boy and his mum was supplied by the police. (Memo to the police: What the hell were you thinking?)
Also, don’t try to justify this sort of shoddy behaviour by pretending that publishing the photograph was in the public interest. If you are tempted to do so, then first make sure you can convincingly complete the following sentence: publishing a photograph of this 5 year-old child on his way to school, at a time when his father is suspected of chopping up his mother, will help the public by….
No fewer than nine people complained to the Press Council about the Herald on Sunday’s decision to run a picture of the son of Carmen Thomas. The Press Council wasn’t convinced by HOS’s claim that there was public interest in it, or that it didn’t invade his privacy because it was in a public place or because the police had already given them another photo. They called the publication “gratuitous.” Too right.
Topics: Press Council | No Comments »
Press Council agrees with me
December 22, 2010
You might remember that I lambasted the Sunday Star-Times for its misleading front-page headline “Sex attack gets drunk driver off”. The story was about a woman convicted of drunk driving who hadn’t even appealed that conviction, only her sentence.
Well, Andrew Geddis was equally incensed, and complained to the Press Council. It upheld the complaint.
Topics: Media ethics, Press Council | 2 Comments »
BSA cracks down?
December 20, 2010
Is the Broadcasting Standards Authority, with its new personnel, getting tougher on taste and decency issues on TV? Earlier this year, it upheld complaints against TV3 for a somewhat raunchy scene in Home & Away at 5:30pm , and TVNZ for a somewhat raunchier scene in Hung at 10:10pm. Now it’s upheld two more complaints against TV3, for a sex scene in the movie We own the night shortly after 8:30pm and for a string of graphic scenes from Outrageous Fortune in TV3 News. In the last case, TV3 was penalised $4000.
In the last seven or eight years, successful taste and decency complaints have been fairly rare. Is the newly constituted BSA taking a tougher line? The We own the night decision doesn’t seem out of line with earlier decisions (like the decision on Striptease from 1999). Perhaps the We own the night scene was even more graphic. Home & Away seems more like a departure. Is the BSA becoming more conservative? Is TV getting more sleazy? Are we become more accepting of such scenes, and is the BSA taking that into account enough? Is this just a blip in BSA decisions, as we saw in the early years of the old BSA? Or is it a blip in people’s willingness to complain?
Topics: Broadcasting Standards Authority | No Comments »
Another media name suppression beat up
December 18, 2010
This article, headed “Porn accused gets name suppression” is in fact about a defendant who was denied permanent name suppression. An interim suppression order is due to lapse, but has been continued pending the defendant’s decision to appeal against the denial of permanent name suppression. (It’s obvious that this has to happen, otherwise the appeal would be worthless.)
I wish the media would get over their obsession with name suppression at least to the extent that they could report facts fairly.
Oh, and while I’m at it: in which part of this story, headed “Kane Williamson wants off the rollercoaster”, does the promising young Black Cap say anything that remotely supports the headline?
Topics: Media ethics, Name suppression | 1 Comment »
Pike River privacy IV
December 17, 2010
You may have seen the debate between Dr Nicole Moreham and I about the possibility of a privacy lawsuit against the media for showing pictures of grieving Pike River coal mine relatives leaving the meeting where they were told that the miners had certainly died.
Here’s a recent BSA case that sheds some light. It offers some support for both our perspectives.
The case involved a One News report of a man who drowned at Glenbrook beach trying to save his children as they were trapped on a reef by a tidal change. The reporter warned about the dangers of rapid tidal changes and rips and wearing clothes that get soggy and weigh you down. He noted that it was the second such drowning in a week. But the report also contained footage of CPR unsuccessfully being performed on the man, and one of the paramedics saying “I’m really, really sorry” to a woman (unnamed, but identifiable) who had her face in her hands, sobbing, and dropped to her knees next to the body.
The family themselves didn’t complain. But others did. A majority of the BSA found this was a breach of privacy. In finding the broadcast “highly offensive”, they said:
… we reject the suggestion that capturing the raw grief of a family for television viewing is “natural”, whatever feelings of sympathy it may have aroused in the viewing public. There are times when families choose to share their stories of loss with the New Zealand public, usually to publicise an issue they feel strongly about, but in such cases the publicity is on the families’ terms; they are willing participants who have to some extent come to terms with their loss. The family on the beach did not choose to have their personal tragedy turned into a teachable moment for the rest of the nation; given their extreme vulnerability, it is questionable whether they were in any position to have done so.
[41] In our view, the item demonstrated a callous disregard for the suffering of the family. An intimate view of a family’s tragedy and grief was captured on camera, but rather than affording a tragic event the sensitivity that it deserved, the event was then used as “wallpaper” for a story structured around a water safety message. We the majority note that the item returned to footage of the grieving family eight times during the short item. Some of the shots were prolonged and featured close up footage of two of the women’s faces. It also showed the women touching their loved one and being comforted by the ambulance officers. We consider that using the family’s tragedy in a way that was bordering on exploitative and voyeuristic was a violation of their privacy and failed to treat the family with dignity and respect.
While they accepted that the drowning and water safety were matters of public interest, and that putting human face on a tragedy can amplify the message, and that broadcasters need to be given some latitude in how they tell such stories, they felt that these factors didn’t justify the degree of invasion in this case, which was “verging on voyeuristic and exploitative”.
I might pause here and note one of the dangers of television production in stories like these. In many cases, the story gets pruned back in the editing. The most intrusive material is left out. Longer and more oblique shots are preferred. Invasive shots are shortened. Particularly distressing details are culled. That’s a responsible process, but in that process, something happens to the sensibilities of those putting the story together. They focus on the difference between the original footage and their story, which seems tame by comparison. It becomes harder for them to see that what’s left in might be offensive. Add that to a broadcasting culture driven by the need for pictures and drama, journalists’ abiding belief in the importance of the stories they tell – which is at once largely true and a bit self-justifying – and a ratings battle which tends to push journalists into treating people as vehicles for stories, losing some basic human decency along the way, and you have a recipe for stories that turn people into roadkill.
I’m not sure that’s what’s happened here. For all I know, those involved adamantly feel that this was a responsible story and others not involved in its production feel the same way.
And in fact, that’s what Peter Radich, the BSA’s chair, said in his dissent:
[5] I consider that the broadcast of the events surrounding the death of the rescuer was compassionate and sensitive. The face of the rescuer was obscured but the faces of his family were not. The broadcast was a powerful message that drownings involve real people and their families, they cause grief and despair and that in cases like this they also involve bravery and the highest levels of parental care. This to the extent that the man who died had put the interests of his children ahead of his own and had lost his life as a consequence.
[6] I recognise that it can be said that these events could have been broadcast differently. All faces could have been obscured and the camera could have been more distant. In my opinion in these circumstances the broadcast would have lost much of its potency and the power of the important messages which were conveyed would have been diminished.
Peter Radich says it was not highly offensive and (as I read it) that in any event the broadcast was in the public interest.
The BSA’s decision offers support for Dr Moreham’s view that the Pike River familes could sue. A privacy complaint was upheld concerning intrusive footage of distraught relatives even though they were in a public place. There were no real private facts broadcast, just intrusive images. The courts have indicated that they will take the BSA’s cases into consideration when applying the tort of invasion of privacy.
On the other hand, it also offers support for my view that a Pike River privacy suit wouldn’t be a sure bet. The BSA did not mention the publication-of-highly-offensive-private-facts strand of its privacy powers. It relied on its intrusion strand. So far, our courts have only developed a private-facts strand. In Hosking, the majority judges specifically left open the question of whether NZ law would develop an intrusion strand (see para [118]).
It might also be said that this was a stronger case than the Pike River families might have. The film showed the man dying in front of the relatives. Even so, the case split the BSA. (To be fair, though, the water safety element wasn’t present in the Pike River coverage; that element makes the Glenbrook story to some degree less offensive and more justified.)
As an aside, this case offers an interesting insight into the different perspectives of the new BSA members. It’s notable that the two journalists on the panel, Leigh Pearson and Tapu Misa, both thought the story crossed the line. The gulf between them (the story verged on “exploitative”) and Peter Radich (it was “sensitive”, “compassionate” and “sympathetic”) is a wide one indeed.
Topics: Broadcasting Standards Authority, Privacy tort | 51 Comments »
Primer on the New Zealand Constitution
December 13, 2010
At the law school where I work, you’ll sometimes find foreign students wandering around the law library looking baffled. “Where is your constitution?” they ask.
“Um. We have one. Really, we do,” we reply sheepishly. “It’s just that it’s not like almost every other country’s constitution, conveniently written down in one place.”
“Well, where is it written down?”
“Ahem. Yes. Well, some of it isn’t written down at all.”
At this point, you can see them wondering what sort of half-baked Mickey Mouse banana republic they’ve just washed up in. They are too polite to ask, though. If they did, we could happily explain that they are quite wrong. New Zealand is a monarchy, not a republic.
We may not have a glorious written constitution forged in the fires of revolution and inscribed with a bill of rights guaranteeing the fundamental rights of the citizenry, but that doesn’t mean we have no constitution at all. A constitution is like a blueprint for government; it sets out how governmental power is exercised: who’s got the power to make what decisions, how those people are chosen, who can make laws, who can interpret them, who enforces them. We have rules about those things, too. But you have to look in a variety of places to find them.
Where the Constitution of the United States, for instance, is a like the bedrock upon which their country is founded, our constitution is like a patchwork quilt under which our country snuggles.
It’s a patchwork that includes (among other things) our electoral laws, the Treaty of Waitangi, the laws that create our court system, some old British laws we’ve carried over from colonial days, Parliament’s Standing Orders, some letters from the Queen that set up the office of the Governor-General, our Bill of Rights Act, and a statute called the “Constitution Act.”
The Constitution Act sounds grand, but it’s not exactly steeped in antiquity. It was passed in 1986. Still, it’s the nearest thing we have to a constitution, and it contains some basic rules about how our government is structured.
It tells us that the Queen is our Head of State, and that the Governor-General acts on her behalf. It says that the Queen and our elected MPs together make up Parliament, which has “full power to make laws.” It sets out how this works: a Bill is drawn up and must be passed by the House of Representatives – but it only becomes law when it’s signed by the Governor-General or the Queen.
You might be surprised to learn that in this day and age, a woman with a fondness for corgis who lives half-way across the globe could have any political power in New Zealand at all. In fact, though, under our constitution the Queen is technically very powerful indeed. If she wanted to, she could dissolve our Parliament, sack the Prime Minister, pardon all our prisoners, and order our armed forces to attack Australia.
You’ll have noticed that she tends not to do things like this. There is a good and sound constitutional reason for this. Under our constitution, the Queen and the Governor-General always act on the advice of our government Ministers. This means that the monarch doesn’t really wield political power at all – the real decisions are made by our elected representatives.
The Queen and the Governor-General are like Superman except that they never take off their Clark Kent clothes.
Obviously, this is a fundamental cornerstone of our constitution. Obviously, something this important – the idea that the monarch’s power is always constrained by the advice of her Ministers – must be written down somewhere. Except that it’s not. It’s a “constitutional convention.”
A convention is an unwritten rule or guideline that tells people what to do in particular constitutional situations. It’s not enforceable in the courts. It evolves from years of practice and habit. Most of our conventions come from Britain.
If you think of the written rules of our constitution, like the rule that Parliament has law-making power, as the bones of our constitutional body, then conventions are like the ligaments and muscle tissue between the bones. They’re not as hard as the bones. They’re sort of messier. They don’t show up in an x-ray. But they’re vital in making the various limbs of the body work. And if important ones break down, your body faces a crisis, even if all its bones are still intact.
Another convention that might surprise you is the unwritten rule that the government resigns if it loses an election. What’s more, the whole notion of the Cabinet is a creature of convention. You won’t see it mentioned in any constitutional documents.
You can see why foreign law students get confused.
Why don’t we turn these things into proper written legal rules? Some people think we should. They say it’s unsatisfactory that such important principles are left up in the air. What if the Governor-General decided she didn’t want to sign a particular Bill into law? There would be a constitutional crisis.
Others argue that the faint possibility that the Governor-General may decide not to assent to a law may make the government think twice before it passes anything too draconian. They say that conventions work fine, and have the flexibility to change over the years in response to modern needs.
Our system is known as the “Westminster” system because it’s so closely modelled on the British constitution. It’s quite different from, say, the US constitution, and not just because our constitutional laws are scattered and some are unwritten. In the United States, the constitution is “supreme.” This means that it’s super-powered law. The rules in the constitution are treated as so important that all other laws have to comply with them. So if the US Congress tried to ban all newspapers, for example, the US courts would strike the law down because it’s inconsistent with the constitutional guarantee of freedom of the press.
This gives US judges a lot of political power, because they have a lot of latitude in the way they interpret the constitution. They have ordered the desegregation of schools and struck down anti-abortion laws, and more recently, decided the outcome of a national election.
New Zealand’s constitution is not supreme law. In fact, as we’ve seen, some of our constitution isn’t even law. Judges can’t use it to strike down laws – even laws that are inconsistent with our Bill of Rights Act. In our country, Parliament is supreme, and can make any law it likes.
The other big difference is that the US Constitution is “entrenched.” That is, there are special rules for changing it. It can’t be done without the agreement of three-quarters of the states, on top of other special processes. Most of New Zealand’s constitution can be changed by a simple Parliamentary majority.
Still, there are some similarities between our constitution and most others. We follow the “Rule of Law,” which at its most basic means that government power is controlled by law and not by “off-with-his-head” type whims. We also buy into the idea that “separation of the powers”. Power should be divided between different branches of government so that no-one has too much of it, or they might be tempted to use it to benefit themselves and their mates. So we have a legislature (the House of Representatives) that makes laws, an executive (the Ministries and Departments, national and local government agencies, police, etc) that administer the laws, and a judiciary that interprets laws. Each branch is supposed to restrain the power of the others. When you have one person who does all three, you have Saddam Hussein.
Of course, there are some rather big holes in this theory, at least in New Zealand. The most glaring problem: government Ministers form a vast power centre. They pull the strings of the Governor-General, they head up the executive, and they dominate Parliament. They can get Parliament to grant them wide powers to make regulations which have the force of law. At their behest, Parliament can overturn any court rulings they don’t like. This dominance has abated slightly under MMP, but it’s still important.
Finally, New Zealand has a thorny constitutional issue all of its own: the Treaty of Waitangi. Most agree that it’s New Zealand’s “founding constitutional document.” Most accept that it’s been breached a lot. Beyond that, there’s not much consensus. The Privy Council has held that the Treaty does not form part of our domestic law except when Parliament includes it in a statute. However, even when Parliament does include a reference to the “principles of the Treaty of Waitangi” in statutes, the meaning isn’t entirely clear.
The upshot: anyone charged with making recommendations about reform of New Zealand’s constitution will be confronted with several knotty problems:
- Do we get rid of the Queen as our Head of State? If so, how do we replace her? Do we want a President instead? Should the President be appointed or elected? What political power should we give the presidency?
- Should we create a written constitution? Would it be a good idea to change the current power-balance between the branches of government? Should it include a Bill of Rights that can be used to strike down other laws? Would this help control government excesses – or would it be giving too much power to the judges?
- What do we do with the Treaty of Waitangi? Should it be in the constitution? Should it be supreme law? Should we spell out better what it means in a modern context? How would we do this?
- What process should we use for debating and approving a new constitution?
Don’t expect easy answers. There aren’t any.
Topics: General | 571 Comments »
Toothless Bill of Rights?
December 13, 2010
I think NZ Herald’s John Armstrong is on the money when he lambasts John Key for not fronting up and justifying the decision to hold hearings into the NZ SIS Amendment Bill in private, and for wondering whether there is any real justification.
But his parting shot at the “privacy supposedly protected by New Zealand’s toothless Bill of Rights” is wide of the mark.
For one thing, privacy isn’t protected by New Zealand’s Bill of Rights. The decision was made to leave it out. If John Armstrong is critical of that, then as far as I can tell he’s the only member of the media to take that stand.
As for whether the Bill of Rights is toothless, he might like to reflect on the fact that it has led to significant damages payouts for government breaches of rights (such as for anti-Tibet protesters marched down the street by police so that the visiting Chinese Premiere wouldn’t need to look at them and Rewi Falswasser, who was beaten and pepper-sprayed in a police cell); it has generated a much more principled approach to draft legislation behind the scenes so that officials address and usually iron out rights inconsistencies before legislation is even introduced to Parliament; it has it has changed the interpretation of various criminal laws to make them more rights-consistent; it has pared back the excesses of government regulators such as our censorship agencies and Broadcasting Standards Authority; it has helped remould our defamation laws in favour of political speech; and it has held Ministers to account for the way they use their powers, such as the recent government backdown on the ban on kosher meat slaughter.
If Parliament gets away with passing legislation that’s inconsistent with the Bill of Rights Act too often, then that’s partly the fault of the media for not drawing attention to it. It’s there on a plate: the government even publishes the advice it receives labelling particular Bills as rights-infringing.
Here’s a story: of all the occasions during the 20 year life of the Bill of Rights in which government has enacted legislation in the face of advice from its own Attorney-General that the law is inconsistent with the Bill of Rights, one-third have happened in the last two years.
As it happens, that statistic comes from Claudia Geiringer, who was on The Court Report this week, when we looked at the impact of the Bill of Rights Act since it was enacted.
Topics: NZ Bill of Rights Act | 82 Comments »
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