An unprivileged position II
September 16, 2010
Tom Frewen [and Graeme Edgeler] noted that last year the Privileges Committee looked at the issue of the scope of the media’s privilege to report on proceedings in the House, and also concluded that it was much less than the media tend to think it is:
The media play an important role in providing the public with information about thebusiness of the House. In recognition of this role, some protections are provided in the Defamation Act to allow fair and accurate reports or summaries of the proceedings of the House to be covered by qualified privilege. The defence of qualified privilege applies to
• delayed broadcasts of proceedings
• the publication of a fair and accurate report of proceedings
• the publication of a fair and accurate extract or summary of a report of proceedings.
The evidence from the Media Freedom Committee of the Commonwealth Press Union (New Zealand Section) suggested that the media incorrectly believed that it had protection from actions such as contempt of court or breach of statutory no-publication provisions when it reported anything said in the House, provided the report was fair and accurate. This is not the current legal position. We consider that qualified privilege could be extended to cover fair and accurate reports of all proceedings, by analogy with qualified privilege under the law of defamation.
Recommendation
We recommend to the Government that it introduce legislation to amend the Legislature Act 1908 to provide that a fair and accurate report of proceedings in the House, or summary using extracts of proceedings in the House, by any person is protected by qualified privilege.
Topics: Contempt of Court, Parliamentary privilege, Suppression orders | 2 Comments »
Oh my God
September 15, 2010
Let me add my voice to the flabbergasted reactions of some constitutional experts to the Earthquake Response and Recovery Act. It reads like a far-fetched doom-laden Public Law exam problem. And now it’s law. We’ve just appointed three Ministers as Kings.
“Trust us”, they insist. No thanks. I’d rather trust the checks and balances in our Parliamentary law-making system, imperfect though it is.
Geoffrey Palmer, come back, we need you!
Topics: General | 5 Comments »
An unprivileged position?
September 15, 2010
The DomPost seems to have deliberately breached a name suppression order. And now I probably have too, having merely linked to it. What the hey. The paper is reporting that ACT MP David Garrett has admitted that he obtained a false passport in his halcyon days, using the time-honoured Day-of-the-Jackel method of finding the tombstone of a dead baby who was born roughly when you were and applying for a passport in its name.
I have to say, I think that’s kind of cool. But illegal. Fair Go has done it too, and with better motivation: to prove how easily it could be done. Also illegal.
Anyway, David Garrett was found out much later, pleaded guilty and was discharged without conviction and given name suppression. (Question: what is ACT’s position on criminals who receive this treatment?)
Garrett says he’s currently trying to have the name suppression withdrawn. Apparently that hasn’t happened yet. But the DomPost has still named him. Also… illegal. You’d think it might have picked up on that, having covered the Whale Oil case so assiduously.
Ah, they’ll be saying. But Garrett said it on the floor of the House of Parliament. We were just reporting that. It’s privileged. Isn’t it?
I don’t think so. Privilege applies to Garrett. (Though technially he could be answerable to the Privileges Committee for using his Parliamentary rights to breach a suppression order, I don’t think anyone’s going to get too exercised about him fessing up to his own crime). Privilege also exempts the media from defamation actions when reporting what’s said in the House. Lord Denning – but only Lord Denning – has suggested that privilege may also insulate media Parliamentary reports from contempt actions. But not name suppression laws.
I don’t think anything will come of this. I’m not saying anything should. When Winston Peters revealed the identify of a child in a family court battle, for instance, no-one batted an eyelid when that was reported. Let me heroically opine that I should not be prosecuted either.
But Whale Oil occasionally rails about the way that the media often gets away with flouting suppression laws, while he gets prosecuted. Well, they’re not thumbing their nose at the law the way he does, but let’s grant that he has a point.
Topics: Name suppression, Parliamentary privilege | 59 Comments »
A whale of a decision
September 15, 2010
70 pages! It took Judge David Harvey that long to establish that Whale Oil (a) had a case to answer for breaching a range of name suppression orders and (b) was guilty.
It’s probably the most comprehensive judicial ruling on of name suppression issues New Zealand has seen; and it may be the first concerning breaches online. But I have to say, I’m not sure Mr Oil’s legal arguments – which varied between the optimistic and the wildly implausible – required such a thorough treatment. On most charges, the case was open and shut.
Here are some of Mr Oil’s Hail Marys:
The suppression law only applies to a “report or account of the proceedings”, which means stories by people who were actually in court and were about what happened in court that day
It only applies to factual news stories, not comments
It only applies to the mainstream media
It can only be breached by mentioning the exact name in the court documents (eg “John Aloysius Smith”)
It doesn’t apply to information on websites hosted overseas
It can only be breached by a publication in one of the official languages of New Zealand (English, Maori and sign language)
It couldn’t apply to his carefully designed picture-clues to the suppressed identities because they were merely “interesting pictures”
The judge pointedly notes that Mr Oil’s lawyer was unfamilar with the leading case on internet publication, and was only selectively interested in the NZ Bill of Rights Act.
Can it really be surprising that a law forbidding “publication” forbids publication to an online audience? That publication occurs in New Zealand even if a NZer’s website is hosted overseas? That a significant part of the offence was committed in New Zealand? That it would be absurd to interpret the suppression laws to exempt commentary, which would include editorials and op-ed pieces?
Still, the judgment offers a wealth of useful and sensible guidance. Privately telling some friends about a suppressed name will not be a breach. Linking to a website that contains the suppressed information may well be a breach in itself. A blogger may well be liable for statements in the comments thread. Blogs have an ongoing quality so that material in successive posts is likely to be read together. Passing information to someone overseas so they can whack it on their website may constitute the offence of “evading” a suppression order. Even password-protected sites are still publishing to those who have access. “Publication” means communicating to an audience. A “report or account” includes any narrative or information relating to criminal proceedings.
The point where I thought it might get close was whether the pictograms and binary code were obvious enough that readers could understand them. But the judge readily concludes that clues to interpretation will be enough. In the end, I’m not sure he had any other choice.
Not surprisingly, Mr Oil is disappointed. He says the decision is extraordinarily far-reaching:
…his judgement now tells everyone that if you hold a piece of a puzzle as to the identity about someone subject to suppression order, then you are vicariously liable for publication because you hold a piece of the puzzle.
I don’t know where he gets this from. I can’t see any liability for merely “holding” a piece of the puzzle, much less vicarious liability, whatever he means by that in this context.
Apparently, Mr Oil is considering an appeal. I wouldn’t recommend it.
Meanwhile, I do recommend the much more interesting discussion about the case going on at Pundit.
Topics: Name suppression, NZ Bill of Rights Act | 65 Comments »
Rooney tunes
September 6, 2010
The ever-excellent Inforrm blog fillets the UK tabloid media for their expose of footballer Wayne Rooney’s affair. It’s plainly private… so what was that public interest justification again?
Topics: Media ethics, Privacy tort | 2 Comments »
FOIled
August 31, 2010
NoRightTurn has done some excellent work compiling statistics on whether government Ministers are complying with the time limits in the Official Information Act.
His conclusion: too often, they’re not.
Only one Minister, Chris Finlayson, met the legal standard of responding to requests “as soon as reasonably practicable, and in any case not later than 20 working days after the day on which the request is received”. Every other Minister is breaking the law. Overall, only 71% of requests were answered on time, while four Ministers – Jonathan Coleman, Tim Groser, Judith Collins, and Gerry Brownlee, made timely responses in only 50% of cases.
Kudos to Chris Finlayson, by the way. And a huge brickbat to Paula Bennett who doesn’t seem to think her office is subject to the OIA. Here’s hoping the Ombudsmen’s office will put her right.
As for many of the others, this seems rather to reflect the contempt in which they hold this law – which, let’s not forget, is about government accountability. It’s also due, as NRT points out, to the lack of any repercussions if they flout it. Don’t imagine that Labour Ministers were lily-white either.
It’s interesting that the mean and median response times cluster around 20 working days. In some ways, this is encouraging: they seem to be aware of this deadline, and are at least complying with it most of the time, even if they’re leaving it to the last minute. I say “deadline”, though it’s not really the deadline under the Official Information Act. The legal time-limit for a response is “as soon as reasonably practicable”…the 20 working day limit is a long-stop. In this sense, pretty much everyone flouts the OIA.
NRT is right that officials are faster at responding. I found an average response time of about 11 working days, with no huge cluster at day 20, and only one in eight late.
The under-performing Ministers deserve all the bad press they get for this. It may be the only thing that will make them take their legal obligations seriously.
Topics: Official Information Act | 2 Comments »
Killing the messenger
August 29, 2010
There’s much to ponder in James Hollings’ thoughtful opinion piece on suicide reporting in this week’s Sunday Star-Times. Why are NZ’s suicide statistics so high, though our reporting restrictions are so tight? How convincing is the social science research suggesting media reports can lead to copycat suicides? Is important reporting being headed off by the gag around things that look like suicides? Did the government really think hard enough about the Bill of Rights before imposing this ban?
But I think he goes too far in saying this:
We should be clear that this censorship is in fact self-censorship.
Hollings’ theory is that the restrictions in the Coroners Act do not actually stop the media from reporting that a death is (or may be) a suicide. I think he’s wrong.
Here’s the wording of the law:
(1) No person may, without a coroner’s authority, make public any particular relating to the manner in which a death occurred if—
(a) the death occurred in New Zealand after the commencement of this section; and
(b) there is reasonable cause to believe the death was self-inflicted; and
(c) no inquiry into the death has been completed.
(2) If a coroner has found a death to be self-inflicted, no person may, without a coroner’s authority or permission under section 72, make public a particular of the death other than—
(a) the name, address, and occupation of the person concerned; and
(b) the fact that the coroner has found the death to be self-inflicted.
(3) The only grounds on which a coroner may under this section authorise the making public of particulars of the death (other than those specified in subsection (2)(a) and (b)) are that the making public of particulars of that kind is unlikely to be detrimental to public safety.
(4) In determining whether the grounds specified in subsection (3) are made out, a coroner must have regard to—
(a) the characteristics of the person who is, or is suspected to be, the dead person concerned; and
(b) matters specified in any relevant practice notes issued under section 132 by the chief coroner; and
(c) any other matters the coroner considers relevant.
Hollings has a point: the wording of this section is ambiguous. What’s a “particular relating to the manner in which a death occurred”? Might it only include descriptions of the method used to commit suicide – jumped off a building, shot to the head, car-in-garage, etc? That would still leave the media free to report that it was – or may have been – a suicide. Such an interpretation may also be supported by the Bill of Rights, which requires statutes to be read consistently with rights such as free speech if possible. Burrows and Cheer in the leading text Media Law in NZ also note the ambiguity.
My first point: just because it’s ambiguous, that doesn’t mean everyone is self-censoring. There’s no guarantee that a court would adopt this interpretation. Burrows and Cheer certainly don’t say so.
My second point: I don’t think a court would adopt this interpretation. For a start, courts try to interpret statutes to fulfil the policy they’re aiming at. The policy here is to protect the privacy of families (something Hollings doesn’t mention), and to preserve public safety. I don’t know what the social science evidence says about copycat suicides where it’s only the fact of the suicide that’s reported and not the method, but I’m guessing that the reporting of (for example) celebrity suicides such as that of Kurt Cobain may produce more deaths even by those who don’t copy (or know of) the methods.
Both of these purposes are better advanced by a wider reading of the section than a narrow one. That’s likely to strongly influence a court.
Courts also construe sections against their context. When the coroner’s inquest is completed (but not before then), the Act lets the media report a finding that the death was self-inflicted. It seems that Parliament does not want this information to come out (without the consent of the coroner) until the inquest is over. But under Hollings’ interpretation, the media would be free to report the fact of suicide all the way through the inquest. This rather makes the second restriction a bit redundant.
There are arguments to the contrary. Hollings may argue that there’s a difference between the phrases in subsection (1) “any particular relating to the manner in which a death occurred” (which doesn’t include reporting that it’s a suicide) and subsection (2) “a particular of the death” (which does). That makes some sense to me, but I don’t think it overcomes the two arguments above.
Then there’s the Bill of Rights. The starting point for that argument is what the ordinary meaning of the section is. If I’m right, it’s the wide one. The next question is whether that’s demonstrably justified. That’s a complicated question, but I suspect a court would find that it is and stop there. The court would find some support in the (rather inadequate, I think) official vet on the Coroner’s Bill.
The upshot is that the section is most likely to be interpreted to include any mention of suicide, which rather undermines Hollings’ contention that the media’s interpretation of the section is … self-inflicted.
I think the really interesting issues here are:
1. Does the media’s habit of saying, as Hollings points out, that “the police are not seeking anyone in connection with the incident” break this law, by tacitly telling everyone it’s a suicide?
2. How often does the media seek consent from coroners to report details of suicides? How often is this granted and refused? That’s where I think the action in this section is. If coroners are unreasonably denying consent, then the mechanism that is put in the legislation to uphold free speech has broken down.
Topics: Journalism and criminal law, NZ Bill of Rights Act | 304 Comments »
Improving accuracy
July 21, 2010
A funny thing happened on the way to loosening the Accuracy standard in the Broadcasting Codes of Practice. It got tightened up instead.
Let me explain. The old Radio code said broadcasters have to be truthful and accurate on points of fact. The TV code was the same. Broadcasters hated it. It meant that they were responsible for every botch they broadcast, no matter how trivial, no matter how much care they took with their facts, and even if the error was made by an apparently reliable and expert source. My favourite example: when Assignment showed a clip of PM Helen Clark (wrongly) saying that full-time tertiary students were not charged interests on their student loans, the BSA upheld an accuracy complaint against TVNZ.
Actually, the BSA seemed to sense this was unfair and some of their other decisions went in the other direction.
So broadcasters were delighted when they were able to negotiate a change to this standard. Now the codes read:
Broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming:
- is accurate in relation to all material points of fact; and/or
- does not mislead
Everyone breathed a sigh of relief. Now broadcasters only had to make reasonable attempts to get it right.
But broadcasters’ delight turned to dismay when they read this decision. The BSA upheld a complaint from Kerry Bolton, former secretary of the NZ National Front. Radio NZ had broadcast an interview (on Chris Laidlaw’s Ideas segment) with Dr Scott Hamilton, who alleged that Mr Bolton was actively promoting anti-Semistism and Holocaust denial.
Mr Bolton denied it. He complained. The BSA asked for RNZ’s evidence. Dr Hamilton supplied some. Mr Bolton rebutted it. The BSA ended up saying, in effect, “well, we can’t tell whether the claims were right or wrong. But since the interview wasn’t live, and since the allegations were so serious, Radio NZ should have made more strenuous efforts to check its facts.”
To some, this may seem kind of sensible. The new standard focuses on the efforts of the broadcasters. The BSA argues that this is what broadcasters were arguing for when they got the standard changed.
To others, this is horrifying. The BSA just upheld a complaint under the Accuracy standard without finding that RNZ had got anything wrong. RNZ argued that it was implicit in the new Accuracy standard that the BSA now had to find both an inaccuracy and a failure to make reasonable efforts to get it right, before upholding a complaint.
RNZ appealed to the High Court. During the course of argument, the BSA’s lawyer agreed that there may even be circumstances in which the Accuracy standard would be breached because of a failure to take reasonable care, even though by the time the complaint was determined, it was clear that the facts were correct! (The BSA may be on slightly stronger ground in situations where it is difficult or impossible to determine the facts, though it is not clear to me that this was really such a case.)
If you’ve been reading this blog before, you’ll know what I’m going to say next. The Bill of Rights Act is surely relevant to resolving this issue. It’s strongly arguable that the BSA’s wide interpretation of the new standard restricted freedom of expression in a way that is not demonstrably justified, in part because of the central harm to free speech values when a state agency penalises speech for its error, and in part because the less restrictive interpretation would essentially serve the same aim. I waited eagerly for those arguments. They never came.
Justice Joe Williams wasn’t very impressed. “I do need you guys to confront these issues,” he said. It’s a bit disappointing that none of you has”. He called for extra submissions on the point.
This is something that I’ve been harping on for some time. In my article with Claudia Geiringer, we lament the failure of agencies exercising power over people’s speech (the Film and Literature Board of Review is another) to apply the Bill of Rights properly.
To be fair, the BSA’s lawyer really only turned up to assist the court by providing some background material, and may have been worried that she’d get a hammering for turning up at all, as there’s a question about the BSA’s role in such appeals. And to be fair to RNZ’s lawyer, he felt that the issue could be resolved without reference to the Bill of Rights, and on one reading, there’s some support for that in Williams J’s decision.
Anyway, the extra submissions were submitted last Monday. (Disclosure: I had a hand in RNZ’s extra submissions). And within a week, Williams J’s decision was out. He agreed with Radio NZ. The scheme of the Broadcasting Act, the wording of the guidelines, and the Bill of Rights all suggested that in order to uphold an inaccuracy complaint, the BSA must first find… an inaccuracy.
Allow me a boast: Williams J said our article was “of material assistance in the development of my approach to this appeal.” That’s four High Court judges in a row who’ve cited it favourably, including one particularly kind judge who did so in a case where it wasn’t really relevant.
Still, the story isn’t over: the case is now back before the BSA. At each stage Mr Bolton has argued vehemently that the allegations were inaccurate. The BSA will have to resolve the dispute now.
Topics: Broadcasting Standards Authority | 48 Comments »
My star turn
July 16, 2010
The new TVNZ 7 show “The Court Report”, filmed at VUW law school, debuted yesterday. Criminal barrister Greg King hosts; I’m the roving reporter. Check it out here.
Topics: General | 3 Comments »
Illegal shepherding
July 9, 2010
Dear Sea Shepherd anti-whalers:
I see that you were happy to lie to the public about banning Peter Bethune from future voyages – as part of your litigation strategy.
I’m afraid I now assume that you’d be equally prepared to lie to the public as part of your PR strategy.
Topics: General | 49 Comments »
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