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Wikileaks: the big question

December 12, 2010

In all of the controversy about Wikileaks, one central question seems to remain unresolved: how should we pronounce “Assange”? Is it “an” as in “dance” or “blancmange” or “flange”? [Update: these sites suggest that the first is correct].

The main lesson of the Wikileaks saga for me is that we should be skeptical of government assertions that the revelation of confidential material will lead to the sky falling. We hear it all the time. It was the refrain of the US government during the Pentagon papers saga, the British government during the Spycatcher case, our own government during the Choudhary case. Fear and doom arguments are routinely invoked as reasons for non-release of information under the Official Information Act. As far as I can tell, it’s almost never true. Government is congenitally prone to exaggerate the dangers of information getting out. Often the biggest harm is embarrassment.

Topics: Breach of confidence, General, Official Information Act | 53 Comments »

Pike River privacy III

December 7, 2010

In an earlier post, I wondered whether Dr Nicole Moreham was right to say that the grieving relatives at Pike River, caught on camera shortly after being told that all 29 miners were certainly dead, could successfully sue for invasion of privacy. Here’s her reply:

Thanks, Steven.  I am glad that you agree that there was no public interest in the images of grief-stricken mining families and that, in at least some cases, publication of them was offensive.  Just a couple of thoughts in reply to your points about whether the relatives would be able to satisfy the first requirement of Gault P and Blanchard J’s formulation of the Hosking tort.  That requirement is, “The existence of facts in respect of which there is a reasonable expectation of privacy”.  I would be surprised if future courts were to interpret this requirement in the narrow manner you suggest for the following reasons:

1. ‘Fact’ does not appear to have the narrow meaning that you give to it.  The facts conveyed in the Pike River photos are most likely to be interpreted to be what the grief-stricken family members looked like immediately after they were told of the second explosion.   That is the approach that the courts have consistently taken when the reasonable expectation of privacy test (or the English equivalent) is applied to photographs.  For example, in Douglas v Hello! the English Court of Appeal said that the ‘information’ contained in unauthorised photos of a wedding were what the event and the couple looked like; not the fact that the event had taken place. (I don’t see any material difference between the word ‘facts’ and ‘information’ for this purpose.)   It is also, implicitly, the approach that Abbot DCJ took in L v G when he held that it was a breach of the claimant’s reasonable expectation of privacy to publish photographs of her genitalia (even though she was not identifiable as the person in the photo).  The ‘fact’ in that case must have been what her genitalia looked like; otherwise the case doesn’t make any sense.  If all this involves a strained use of the word ‘fact’, then we should rely on Tipping J’s preferable formulation in Hosking which refers ‘information or material’ in which the claimant has a reasonable expectation of privacy.

If the courts were not prepared to take read ‘facts’ in this way then the action would not cover situations where publication of a photograph is offensive because of the intimate nature of what is shown.   I do not believe that the courts would read the action so restrictively.  Take a journalist who publishes a photograph of a celebrity reliving herself under a tree on a tramp.  If I understand your analysis correctly (and leaving aside, for a moment, the remoteness issue which is not relevant to this part of the analysis) that would not be a breach of the first limb of the Hosking tort because the only ‘fact’ it would convey is the fact that the celebrity went to the loo behind a tree.  There is nothing particularly private about that fact; people do it all the time.  Instinct rebels against that conclusion.  The photograph communicates so much more than the verbal description of that act.  This is an archetypal breach of privacy situation and I cannot believe that courts did not intend the new privacy action to extend to it.  

2.  The reasoning in Peck also supports the point in 1.  It is not clear from the decision whether the television commentary actually revealed that the claimant was trying to commit suicide in the footage shown.  If it didn’t then the European Court’s objection couldn’t simply have been to the broadcaster’s communication of the fact in that Peck had tried to commit suicide.  On the contrary, all of the Court’s language revolved around the distress that Peck was suffering when the footage was obtained.  It was the intrusion into that distress which was held to be humiliating and offensive.  The majority in Hosking expressly said that ‘cases such as Peck’ qualify to some extent the rule that there is no right to privacy when photographed on a public street.  To my mind, that exception would include the families of the miners as they emerged from that meeting.

3.  On a more specific point, I don’t think any store can be put in the fact that the miners’ families knew that the media were present outside the meeting and, in some cases, did not try to hide from them.  This is because (a) the footage suggests that there was nowhere for them to go; and (b) they had other more important things on their minds.

4.  Finally,  I think the restrictive approach you are wondering about here would go against the tide in the privacy jurisprudence.  Different countries use different tests and actions to achieve privacy protection but the legal direction is definitely in favour of more privacy protection rather than less.  A balance has to be struck between these increased protections and freedom of expression but it don’t think the media could seriously argue that liability for publishing gratuitous pictures of grief would prevent them from informing the public about disasters like Pike River in the future. 

Let me, in turn, respond to this. I’m inclined to think that you are underplaying the many indications in Hosking that the judges were very concerned to set the legal threshold for establishing privacy at a fairly high level; that they were wary of allowing it in public places; and that they were seeking some demonstrable harm in those situations. You’re also omitting the fact that the British and European cases stem from a human rights framework that specifically protects privacy; as you know, our Bill of Rights doesn’t, though it does protect freedom of expression. Yes, the international tide is in favour of more privacy not less, but the underlying balance is different here.

Of course, photographs may contain private facts. What someone looks like nude, or when they’re peeing, would be good examples. But if someone streaks or pees openly in public, what they looked like when they did so is no longer private. When Jerry Collins whizzed into a bucket in the middle of Westpac stadium shortly before an All Black game, that was published on the front page of the newspaper. I don’t think either of us think he was entitled to any legal protection.

The photo of the genetalia in L v G also falls into the category of photograph-as-private-fact. But just because what her genetalia looks like is a private fact does not mean that every photograph contains private facts. Pictures of emotional relatives in a public street are distinguishable on several bases: they are in a public place, the disclosure of their images is arguably less offensive; and presumably they could have chosen to remain inside for another half an hour.

Still, I’m not saying you’re wrong. I’m saying that I don’t believe the position is as clear as you think it is.

Topics: Privacy tort | 439 Comments »

Ask and ye shall receive?

December 2, 2010

Next time you hear the media bleating about our restrictive suicide-reporting rules, consider this. The law allows the media to seek permission from the coroner to report the details of an apparent (or confirmed) suicide. Last night, I asked Chief Coroner Neil MacLean how often the media sought such permission. He said it was extremely rare. How often had they asked him for reporting permission, during his 30-year career as a coroner, I wondered.

He said: never.

I’m prepared to get outraged at unjustified refusals by coroners to grant permission to report details of suicides when the public interest seems to demand it. But I’m equally outraged by the media’s failure to even seek permission, given how often they stress the importance of talking openly about suicide and how harshly they criticise the current reporting rules.

Topics: Journalism and criminal law, Media ethics | 57 Comments »

Pike River privacy II

December 2, 2010

I’ve since discussed Nicole Moreham’s post (below) with another privacy expert, who agrees with her wholeheartedly.

For myself, I’m not quite so sure. Certainly the grieving families were caught in a distraught and vulnerable moment. I’ll assume that there was no way for them to use to escape the assembled media. Coverage of children and those who were telling the media to piss off seems particularly offensive. And there’s really no redeeming public interest: the stock media argument that the public needs to see the families’ reaction to understand the enormity of the problem just doesn’t wash. This was grief porn: there was no legimate public interest in seeing it.

Still. The tort in New Zealand, as established in Hosking v Runting, revolves around the publication of sensitive private facts. By contrast, in England, the emphasis is on breaches of someone’s reasonable expectation of privacy. That formulation more readily lends itself to invasive intrusions on people’s privacy, even when they don’t reveal any particularly sensitive private information.

True, the definition of a private fact in Hosking is a fact in which there is a reasonable expectation of privacy. Am I splitting hairs? I don’t think so. In New Zealand, you still need to be revealing facts. It’s not about protecting our reasonable expectations of privacy in certain situations, but about protecting against the revelation of information about ourselves. Perhaps the appearance and behaviour of the grieving relatives might be a private fact. But that seems a stretch. We’re not really being told anything we didn’t know before.

In Hosking, the judges say that there will rarely be a reasonable expectation of privacy in relation to photographs taken in a public street. But they say that

in exceptional cases a person might be entitled to restrain additional publicity being given to the fact that they were present in the street in particular circumstances.

The examples they give are Campbell (where a famous model was photographed outside a Narcotics Anonymous meeting, revealing that she had lied about her drug problems) and Peck (where the media published CCTV footage of a man on a public street shortly after he had attempted suicide). It’s certainly arguable that the Pike River families are in a similar position: in a highly vulnerable state in public, and could reasonably expect not to receive publicity. But I wonder whether the analogy is quite apt. The Pike River families surely knew they were being photographed. They had taken no particular steps to shield themselves from public gaze. The footage didn’t reveal a secret (like drug addiction) or capture anything quite as extreme as the aftermath of a suicide attempt. Could it really be said that they had a reasonable expectation of privacy in the circumstances? Maybe. But it doesn’t seem like a slam dunk to me. 

Topics: Privacy tort | 1 Comment »

Pike River privacy breach

November 26, 2010

My colleague, privacy expert Dr Nicole Moreham, reckons the media are guilty of breach of privacy with their splashy coverage of the victims’ grief-stricken families emerging from the briefing where they were informed of their loved ones’ fate. She has kindly allowed me to cross-post (original source here):

There would be few New Zealanders who are not aware that on Wednesday afternoon, after six days of desperate waiting, family members of the men trapped in the Pike River mine were informed that an second explosion had occurred. There could be no survivors. Family members were informed of the explosion at a public meeting. Numerous media were gathered outside. As the family members emerged from the meeting, just moments after receiving the news, their every expression and reaction was filmed and photographed by waiting reporters. These people did not want their pictures taken. Some gave hand gestures and others told photographers to ‘f%^* off’. Photographs were nonetheless taken and printed. Within hours, detailed images of relatives’ faces were circulated around the world. They appeared on the websites of The New York Times, The Melbourne Age, The Sydney Herald, The Times, The Guardian and the Telegraph. A montage of the same grief-stricken faces (including those of two primary school age children) were spread across the front page of the New Zealand Herald the next morning. Similar photographs appeared on page 2 of the Dominion. Concern has been raised that by disseminating these images, the media have turned individual grief into a commodity to be captured, printed and sold. People are shown at their most desperate and vulnerable: mascara is running, faces are twisted with emotion, people are crying. TV footage shows relatives interrupting tears and intimate conversations to deal with encroaching media. Interviews reveal that for many family members media intrusion has made an already unbearable situation even worse.

It seems that the media’s conduct at Pike River crossed an ethical line. In my view, they have also crossed a legal one. There is a good argument, first, that some members of the media have committed the tort of breach of privacy. The tort’s first requirement is that the relatives had a reasonable expectation of privacy in respect of the events depicted in the images. This is almost certainly established. Courts have made it clear that individuals have a right to be left alone if they are experiencing something traumatic, distressing or humiliating, even if they are in a public place at the time. Leaving a meeting at which one has been told that there is no hope of finding one’s loved ones alive is a paradigmatic example of that situation. The tort’s second requirement is that the publicity given to the images be ‘highly offensive’ to an objective, reasonable person in the shoes of the individual being photographed. A number of factors make this coverage offensive. The photographs were published in the immediate aftermath of the tragedy; they were close up, detailed, and showed the subjects in a raw emotional state. In many cases, the photographs were published in spite of the subject’s objection to their being taken. Some showed children whom courts are particularly astute to protect. It is highly unlikely that relatives were told that publication was imminent. Most people, it is suggested, would find being treated find being treated in that way highly offensive.

Media defendants are therefore likely to be liable unless they can establish that the relatives’ right to be left alone at this moment of grief was outweighed by an overriding ‘legitimate public concern’ in seeing the material. It is not enough to show that there is a general public concern in the Pike River tragedy itself nor that that the public is interested in seeing these kinds of images. Media defendants would have to show that there was a good reason for publishing these images and that the public interest in them outweighed the relatives’ competing right to privacy. The media’s usual argument that publication of the images was justified because they brought home the enormity of the situation is particularly unconvincing here. Few people lack the imagination to understand the despair relatives would feel on receiving news of the deaths after six anxious days of waiting. And there is no suggestion that the country was not taking the situation seriously. Government had already signalled its intention to launch a commission of inquiry. The defence would be unlikely to succeed.

Damages are available under the tort of privacy – the most substantial award so far has been $25,000. But there are costs and risks associated with bringing an action which can deter all but the wealthiest of claimants. (One would like to hope that this was not a consideration when the media decided to publish the images.) Other, more accessible, outlets for redress are also available. If privacy was breached in a television broadcast, any member of the public can make a complaint to the Broadcasting Standards Authority (the BSA). Principle 3(iii) of the BSA’s Privacy Principles provides specific protection against an intrusion which takes place in public if ‘the individual whose privacy has allegedly been infringed was particularly vulnerable’ and the disclosure was highly offensive to an objective reasonable person. Both requirements would seem to be satisfied here. Privacy Principle 7 also requires that ‘children’s vulnerability… be a prime concern to broadcasters’ and that broadcasters satisfy themselves that ‘the broadcast is in the child’s best interests’. Filming a child leaving that meeting is very unlikely to meet that test. The Press Council also give some redress for print media intrusions although their powers are less extensive than the BSA’s and they are in general less inclined to use them.

Families of the lost men will currently have more immediate concerns than the law of privacy and, even with the passage of time, might not wish to bring an action. However, it is important to register that intrusive media conduct is not a necessary incidence of modern life. On the contrary, it is an infringement of a legally protected right to be left alone at times of significant distress and trauma. 

Topics: Broadcasting Standards Authority, General, Press Council, Privacy tort | 1,083 Comments »

Bill of Yeah Rights

November 11, 2010

Since the Bill of Rights was enacted, the government has, on average, ignored one section 7 report a year, according to the Minister of Justice. (A section 7 report is a legal opinion given by the Attorney General to Parliament that the proposed legislation breaches fundamental rights in an unjustified way.) Simon Power was addressing a symposium today on the NZ Bill of Rights Act, 20 years after its enactment. Here’s what he said:

You might be surprised to know that there have been 57 section 7 reports since 1990.   Of those, six bills are currently before the House. Of the remaining 51: 

  • 21 have been withdrawn or defeated outright.
  • 10 have been amended to address the inconsistency.  
  • 20 have been enacted unchanged. 

Of the 20 that have been enacted unchanged, only one was a non-Government bill. 

I haven’t done the maths, but I suspect that that rate of nose-thumbing at section 7 reports has increased under Power’s watch.

We should recall, however, that the absence of a section 7 report doesn’t mean that the proposed law is necessarily squeaky clean. Recall that the original version of Labour’s Electoral Finance Bill astonishingly did not attract a section 7 report; and it seems that Margaret Wilson overrode officials’ advice that the Foreshore and Seabed Bill should have been slapped with a section 7 report.

My sense is that current Attorney-General Chris Finlayson has presided over a pretty robust approach to scrutinising his party’s legislation under the BORA. Section 7 reports this year have included government bills on misuse of drugs, social assistance, tax and liquor, for example.

Incidentally, this record compares very unfavourably with the UK. I’m not sure any law has been passed there after an adverse report from its joint committee on human rights.

Topics: NZ Bill of Rights Act | 49 Comments »

Read this

November 8, 2010

If you haven’t seen it already, I recommend Emma Woods’ thoughtful and moving response to Michael Laws’ attack on her in the Sunday Star-Times. In some ways, it’s an indictment of every columnist who sallies forth based on some incomplete news report, every ideologue who tries to marshall someone’s story to support their pet cause, every law-and-order table thumper who thinks all crime victims should react the same way. But mostly, it’s just an indictment of Michael Laws.

Topics: Media ethics | 48 Comments »

Irony

October 31, 2010

Something sounded funny to my ear on this morning’s episode of MediaWatch on Radio NZ National. Colin Peacock referred to the Listener’s Quips and Quotes column, which had quoted the following journalistic aphorism and told readers it was attributed to the City News Bureau of Chicago:

If your mother tells you she loves you, check it out with two independent sources.

Like anyone who’s spent more than five minutes at an American journalism school, I’d heard this before, but I’d heard a shorter, punchier version:

If your mother tells you she loves you, check it out.

I don’t actually know which is right, and it’s conceivable that they both are, since one is a shortened version of the other. But the longer version sounds to me as if it’s a stitching-together of two ideas. I’m guessing the Listener’s source was Wikipedia, though this entry doesn’t give any direct source for its information.

The irony? It doesn’t seem that the Listener has a second independent source. Google returns all of six websites mentioning the quote in its long version, and they all in turn seem to be sourced from Wikipedia. (There are nearly 9000 sites quoting the shorter version, many of which also attribute it to the Chicago City News Bureau).

Topics: Media ethics | 50 Comments »

Double jeopardy?

October 29, 2010

Is the Law Commission being tasked with a job already farmed out to the Dean of VUW’s law school?

The Attorney-General engaged VUW dean Tony Smith to write a paper on our contempt of court laws, including the ways in which they are being affected by the internet. Is it undermining confidence in court orders, or courts’ ability to do their jobs? Tony Smith is the author of the leading text on contempt, and is tackling the research with recently retired Court of Appeal judge Bruce Robertson.

Then we get Simon Power’s announcement that the Law Commission will look at… much the same thing. Its task will be broader – “to review the adequacy of regulations around how the Interent interacts with the justice system” – but there seems to be overlap:

Issues I’m concerned about include how trials can be prejudiced by information posted on websites and seen by jurors, real-time online streaming of court cases, breaches of court suppression orders, and re-publication of a libel.

Another odd thing about Power’s press release. Having said that this is his concern, here’s his summary of the issues he’s referring to the Commission:

• How to define ‘news media’ for the purposes of the law.
• Whether and to what extent the jurisdiction of the Broadcasting Standards Authority and/or the Press Council should be extended to cover currently unregulated news media, and if so what legislative changes would be required to achieve this.
• Whether existing criminal and civil remedies for wrongs such as defamation, harassment, breach of confidence, and privacy are effective in the new media environment, and if not whether alternative remedies are available.

So… where’s the directive to look at “how trials can be prejudiced by information posted on websites and seen by jurors, real-time online streaming of court cases, breaches of court suppression orders…”?

Presumably, that stuff gets covered by the words “such as”…

Power calls the Internet a “bit of a Wild West” because “bloggers and online publishers are not subject to any form of regulation or professional or ethical standards.” Let’s be charitable and call this language merely loose. Of course bloggers are subject to the same criminal and civil laws – name suppression, defamation, censorship laws, etc – as anyone else. Those laws are not so easily avoided online as some commentators believe. In fact, in some ways it’s easier to attack online publications because ISPs often fear associated liability and can be persuaded to pull the plug on bloggers’ content themselves.

But Power is generally right to say that online publishers are not subject to equivalent ethical regulation to the Press Council and Broadcasting Standards Authority. But the Press Council does consider complaints about websites associated with print publications (and may even have its arm twisted to consider complaints about news sites that are purely online, such as Scoop… I don’t think anyone’s tried yet). It is silly that the BSA has no power to touch the clips on broadcasters’ websites, so that broadcasters can post them with impunity even when complaints against them have been upheld.

Still, whether their powers ought to be extended to bloggers is a different kettle of fish…

By the way, with John Burrows and Cate Brett at the helm, this project ought to be a corker.

Topics: Contempt of Court, General, Internet issues | 872 Comments »

Hobbiter dicta

October 29, 2010

It’s now clear that the government intends to change the law relating to employment contracts for the film industry. So why are some in the media still calling this a “clarification”? Does it have anything to do with journalists’ warm regard for the elasticity of the appellation “clarification” as illustrated by their frequent use of it to describe what are really corrections?

And why are they still parroting the government’s line that this was necessary to restore stability? Andrew Geddis is as mystified about this as I am. It’s like reporting that Graham Henry said it was necessary to pick a new goal-kicker to solve our line-out problems. Hard to imagine anyone would report that sort of gibberish straight.

[Update: this terrific article by the NZ Herald’s Derek Cheng goes some way to doing what the government has not: explaining how the employment law change plays into Warners’ instability concerns.]

Topics: Media ethics | 43 Comments »


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