Talkin’ bout a revolution
April 16, 2010
Check out this fascinating panel discussion about super injunctions and the laws of libel and privacy, hosted by the Frontline Club, involving successful defamation defendant Simon Singh, Carter-Ruck’s Nigel Tait, the Guardian’s investigations editor David Leigh, and media lawyer David Hooper. The debate comes amid British government proposals for libel reform (not enacted in time for the election, but taken up by all three of the main parties in their manifestos); the Court of Appeal’s decision in the Singh case; allegations that the courts are granting hundreds of super-injunctions a year; the recent appointment of a committee to tackle them; and much hand-wringing about legal costs and libel tourism. Is it time for a revolution in defamation law?
There was a surprising amount of consensus. Costs are too high (though not damages). The Press Complaints Commission is doing a lousy job (David Leigh called it a “fraud”). A statutory tribunal with power to deal with at least some less serious defamations, perhaps such as those emanating from blogs, would be a sensible development. There was some support for restricting the ability of corporations to sue – such as requiring them to prove financial loss (which is the current position in NZ; in Australia large corporations can’t sue at all).
They noted that statistics aren’t kept about super-injunctions (but should be). Could the panelists guess how many there were? Nigel Tait said his firm had obtained about 12 in the past 18 months. Schillings may have got a few more. He doubted there’d be many others. Hugh Tomlinson QC from the audience said he thought there were probably fewer than 20 in existence. (Justice Eady has recently said he can’t recall granting any at all. I wonder who’s awarding them?)
Nigel Tait threw some light on the sort of cases where they were sought. Computers are hacked by journalists or stalkers for personal or financial information, for example. He said one celebrity client’s doctor sold the results of his cancer tests to a newspaper before telling him. The superinjunction was to prevent the guessing game that would inevitably commence following the headline “Injunction restrains publication of [named celebrity’s] medical records”. (Fair enough, too, though does it justify the super-injunction? What if the injunction permitted reporting of the fact of the gag, but not that it concerned medical records? Perhaps I’m underestimating the voraciousness of the public’s appetite for knowledge of any information they’re denied.)
David Hooper criticised Tait and Carter-Ruck for being “over-muscular” in the Trafigura case. He thought there was a good case of breach of confidence, but they blew it and ended up looking terrible. Tait, with some justification, blamed the papers, noting that the Guardian had never reported that it initially consented to the super-injunction.
Tait also poured cold water on the idea of reversing the burden of proof for Truth defences, which currently rests on defendants). It would simply make plaintiffs spend up large proving their cases, costs that would inevitably be sheeted home to defendants when the plaintiffs won (or, of course, settled…). Besides, he said, he’s never seen a case decided on burden of proof (ie where the difference between winning and losing rested on whether a particular fact could be proved to a 51% likelihood). Interesting.
I was particularly interested in another factoid from Hugh Tomlinson. How many cases of libel tourism – ie one foreigner suing another in London to take advantage of the plaintiff-friendly British laws – do you suppose there were in the UK last year? Libel capital of the world and all that? The answer: none at all. How many libel lawsuits in the UK each year all up – the European average being about 700? Answer: 250. But Simon Singh treated this as a trump for his argument: libel is too costly in the UK for many to sue. This strikes me as sitting ill with his concern that speech is being chilled all over the place, and that conditional fee agreements and after-the-event insurance mean that plaintiffs can sue too readily. Surely he’d be better off suggesting that there’s likely to be a large number of defendants cowed into settling by the threat of CFA-funded litigation, so the threats never ripen into lawsuits. I don’t imagine there are stats on that either.
CFA fees were discussed at length. Tait explained that costs have gone up because libel procedures – the pre-trial protocol, witness briefs – are themselves expensive; there is now a range of new defences such as qualified privilege that must be tackled; and yes, the win fee and the insurance bill multiplied final costs significantly. The uplift is justified because the law firm is carrying the costs and the risk, he argued. Everyone was duly appalled at the 100% uplift, though Tait explained that the success fee was only 100% if the case went to trial, when both parties could be assumed to believe that they had at least a 50% chance of winning. When there’s early settlement – most cases – it’s 25%. Singh and Leigh rather skewered him by noting that Carter-Ruck is still free to reject cases where the risk is bad and isn’t carrying much risk when it picks likely winners, especially when it knows defendants are risk-averse and likely to settle if the claim has a reasonable prospect of succeeding.
Still, no-one had an answer to Tait’s other point: firms won’t take cases on contingency if the uplift is only 10%, and the unwealthy defamed will have no remedy. Tomlinson suggested that the 10% figure nominated by the government was founded on … no evidence at all. He guessed 40% would probably be about right.
I’d be interested if any kiwi readers know of any conditional fee agreements with success fee components in defamation cases in NZ. I am occasionally willing to take a case on contingency, but so far have only done so where the case seems a slam dunk, and have only taken my usual fee when the case succeeds. I’m not sure how our courts would react to a costs application where a successful party tried to claim a success fee on top of scale or whatever other costs are merited. I rather suspect they wouldn’t be sympathetic. That would also make them rather difficult to negotiate, and there are no requirements here – as there are in the UK – that the other side be notified of any contingency arrangement. I’m also not aware of anyone offering after-the-event insurance to hedge against the possibility of loss here.
Topics: Defamation, Injunctions, Privacy tort | 48 Comments »
Fair comment defence succeeds
April 2, 2010
The Simon Singh fair comment appeal has been released. He’s the guy who said of the British Chiropractic Association that it “happily promotes bogus treatments”. Did this accuse them of conscious dishonesty? Eady J said yes, and it was a statement of fact. There was much hue and cry about the death of free speech. The Court of Appeal has held that it was a statement of opinion. Early reaction here and here and here.
Update: … and the British Chiropractic Association has dropped the case.
Topics: Defamation | No Comments »
Burning for reform
March 25, 2010
Are republicans the only people in NZ who can commit the offence of flag-burning by burning a flag?
You might remember that Paul Hopkinson had his conviction for flag-burning overturned in the High Court, because Justice Ellen France held that the offence needed to be interpreted narrowly to provide space for free speech rights under the Bill of Rights. She said that the offence requires that the prosecution prove that the defendant intended to vilify the flag. That’s unlikely to be established where a flag is burned as part of a political protest. (That’s one of the reasons that Valerie Morse, the ANZAC day flag-burner, was charged with offensive behaviour rather than the specific offence of destroying or damaging a NZ flag.)
At first blush, that sounds like good news for the Republic of New Zealand Party members who torched a flag on Parliament’s grounds recently, and are under investigation by the police for it. After all, they too were conducting a political protest, at a political venue, and their message was pretty clear. They too were simply using the flag as a vehicle for that protest.
But hang on. There’s quite a good case for saying that, unlike Paul Hopkinson, these guys really did intend to vilify the flag. They were protesting against the flag itself and all it stands for. A Maori sovereignty protester might who lit up a flag might be in a similar position. But anyone else who uses this device to protest any other government policy almost certainly isn’t.
I rather doubt that charges will be laid. The Attorney-General’s consent is required, for one thing. Goes to show, once again, what a silly offence this is. We should repeal it.
Topics: NZ Bill of Rights Act, Protest speech | 49 Comments »
New media law blog
March 25, 2010
Check out Inforrm’s terrific blog here. Inforrm stands for “International Forum for Responsible Media”. It contains thoughtful commentary about media law issues, a useful blogroll, and a note of significant new and upcoming cases. Its lead today notes what I’ve been meaning to do for a while: that the evidence that the rest of the world treats London as the libel capital, filing defamation lawsuits there at the drop of a hat, is rather thin.
Topics: Defamation | 49 Comments »
Lights out
March 12, 2010
Slate’s Dahlia Lithwick slams the US Supreme Court’s astonishing decision to overturn the trial judge’s willingness to allow argument about the Californian gay-marriage case to be televised.
Oddly enough, the Supreme Court determined that because Perry is a “high profile” case, there is extra reason to turn out the lights. As it explains in its order: “This case, too, involves issues subject to intense debate in our society” and it “is therefore not a good one for a pilot program.” So, um, we the people are only fit to watch low-profile, boring cases? Or, as professor Barry Friedman put it today in the Los Angeles Times, “What, imaginably, could that bad effect be? That the American people might have views on the subject and debate them?”
So much for open justice in the US.
Topics: Cameras in Court | No Comments »
Bare reasoning
March 12, 2010
In Lowe v New Zealand Police, Clifford J rightly overturns Nick Lowe’s conviction for offensive behaviour for cycling in the nude. It was on World Nude Bike Day, but Mr Lowe, “a committed cyclist and naturist”, doesn’t need that incentive to bike about naked. For example, he competes in the Coast to Coast without clothes (except, commendably, a helmet).
A woman had seen him riding along a relatively quiet rural road in Upper Hutt and complained, saying she was “fairly disgusted”, though she admitted she hadn’t even seen his tackle. The judge said that this didn’t satisfy the test of behaviour liable to cause substantial offence, or capable “of wounding feelings or arousing real anger, resentment, disgust or outrage in the mind of a reasonable person of the kind actually subjected to it”. (Note that this doesn’t close the door to an offensive behaviour prosecution of someone going naked in different circumstances… such as walking along a suburban street.)
The bit I take exception to is where the judge apparently decides that there is no element of freedom of expression in his behaviour (which would have meant that the judge would have to take it into account in interpreting and applying the offence). The only thing that makes the judge pause before reaching this conclusion is that it was World Nude Bike Day, and “Mr Lowe’s behaviour could possibly be seen as an expression of opinion in support”. He rejects this, as Mr Lowe does not seem to have regarded it as especially significant.
I hope the problem here is obvious: it’s not necessary for Mr Lowe’s conduct to be linked to World Nude Bike Day for it to involve a speech issue. As the judge says, Mr Lowe is “a committed naturist” whose “personal view is that it is appropriate to be nude in a wide range of situations where others would consider that such behaviour was, at best, inappropriate.” Nudity, for Mr Lowe, is itself an element of self-expression. It is also itself a political statement – a message about how society ought to be ordered. This plainly falls within the ambit of the Bill of Rights’ protection of free speech.
I’m not saying that all conduct amounts to speech. I’m not saying that his conduct falls at the core of the right to freedom of speech. I’m not saying that limitations on his speech-conduct can never be justified. But I am saying that this is plainly a speech issue, and it’s rather dismaying to see a High Court judge failing to recognise it as such.
Topics: Free speech theory, NZ Bill of Rights Act, Protest speech | 48 Comments »
Law Commission makes privacy recommendations
February 26, 2010
There’s another report from the Law Commission on privacy: this one the culmination of many of the others.
The report’s not up on the website yet, but it seems that the key recommendations are:
- no change to the tort established in Hosking v Runting.
- creation of a new offence of trespassing on someone’s property to install a surveillance device, to film inside someone’s dwelling without their consent and to install or use a tracking device to track someone without their consent. (The Commission notes the anomaly that police need a warrant to do these things, but you and I don’t.)
- extensions to the Harassment Act to make it clear that keeping someone under surveillance in such a manner as to cause distress comes with the definition of harassment, so can justify a civil restraining order.
Patterns of behaviour involving “watching” and “loitering” are already covered under the Harassment Act, so I’m not sure what that last bit adds. Watching via hidden cameras, maybe? Isn’t that still watching? Hiring someone to follow someone else?
Are you being caused distress if you’re not aware you were filmed until after it’s stopped?
Still, the recommendations seem pretty sensible to me.
The Commission is also to be issuing a preliminary paper on the Privacy Act shortly.
Topics: Privacy Act, Privacy tort | 49 Comments »
UK Parliamentary committee recommends reform of media regulation
February 25, 2010
The British Culture, Media and Sport Committee has released its report into press standards, privacy and libel.
Recommendations:
Privacy tort: No change. In particular, no legal requirement for the media to give notice to people who’s privacy they’re about to invade in an upcoming story, though a failure to provide such notice should hike any damages awarded.
Privacy ethics: The Press Complaints Commission’s Code should be amended to require such notice, except when the public interest justifies not doing so.
Super-injunctions: The right to report Parliamant should be confirmed. Super-injunctions should be restricted.
Defamation: Consider reversing onus on defendants to prove truth – but only when sued by corporations. Consider putting new responsible journalism defence on statutory footing.
Libel tourism: Those whose “primary domicile or place of business” is not the UK should face additional hurdles before being able to lodge defamation claims there.
Costs: Contingency fees should be restricted to 10%, and after-the-event insurance not recoverable in a settlement.
Phone-hacking: Certainly more pervasive than News of the World was claiming. News executives guilty of “deliberate obfuscation” to the Committee. NOTW, the police and the PCC all failed to properly inquire into the practice.
PCC: Should be renamed, reformed, and given the power to fine and even suspend printing for an issue. Should be able to investigate without a formal complaint. Should have two-thirds lay majority. Consider making defamation-costs benefits mentioned above only available to PCC members, to incentivise membership.
Topics: Breach of confidence, Defamation, Injunctions, Press Council, Privacy tort | No Comments »
BSA fucks up
February 23, 2010
The Broadcasting Standards Authority has upheld a complaint against the radio broadcast of Lily Allen’s song “Fuck You”, broadcast on Sunday and Tuesday afternoons on The Edge. I think they were wrong to do so, and I think it demonstrates that they still don’t really understand the Bill of Rights Act.
If it were just a straightforward example of a vapid pop song with some swearing in it, fine. That’s the way the BSA treated it. (And in fact, it’s the way the broadcaster argued it). But this song has more going on. It is making a political statement and that means that a higher threshold is required to justify restricting it.
Here are the lyrics:
Look inside
Look inside your tiny mind
Now look a bit harder
Cause we’re so uninspired, so sick and tired of all the hatred you harbourSo you say
It’s not okay to be gay
Well I think you’re just evil
You’re just some racist who can’t tie my laces
Your point of view is medievalFuck you
Fuck you very, very much
Cause we hate what you do
And we hate your whole crew
So please don’t stay in touchFuck you
Fuck you very, very much
Cause your words don’t translate
And it’s getting quite late
So please don’t stay in touchDo you get
Do you get a little kick of being slow minded?
You want to be like your father
It’s approval your after
Well that’s not how you find itDo you
Do you really enjoy living a life that’s so hateful?
Cause there’s a hole where your soul should be
You’re losing control of it and it’s really distastefulFuck you
Fuck you very, very much
Cause we hate what you do
And we hate your whole crew
So please don’t stay in touchFuck you
Fuck you very, very much
Cause your words don’t translate and it’s getting quite late
So please don’t stay in touchLook inside
Look inside your tiny mind
Now look a bit harder
Cause we’re so uninspired, so sick and tired of all the hatred you harbourFuck you
Fuck you very, very much
Cause we hate what you do
And we hate your whole crew
So please don’t stay in touchFuck you
Fuck you very, very much
Cause your words don’t translate and it’s getting quite late
So please don’t stay in touch
That’s clearly a song with a political message about hate speech, racism and homophobia. Russell Brown has more on how the song has been appropriated by the gay community, underscoring its political nature.
But the BSA doesn’t mention that. It effectively bans the airing of the song at most times because children might hear the word “fuck”. (In fact, the word was even partly fuzzed out in the song, rendering it as “uck”.)
This might usually be a demonstrably justified limitation on freedom of expression, given the BSA’s mandate to enforce community standards. But the BSA must do so in a proportionate way, and that involves assessing the significance of the speech and weighing it against the harm done to the community standards. (Claudia and I discuss this process, and the reasons why the BSA has to undertake it, in an article which has now been cited three times by the High Court in BSA cases: click on “BORA and the BSA” in the toolbar on the left.)
The BSA makes no attempt to distinguish this song from other songs that have much less political significance, and so require a less robust justification to restrict. It doesn’t address the well-recognised arguments that people making political statements often use colourful and even offensive language, and need to be given latitude to do so.
This is reinforced by the fact that the broadcasting standards themselves explicitly reflect the values of anti-discrimination that this song promotes. Arguably that heightens the social significance of the song. This is a song that speaks to young people about bigotry. And the BSA has effectively banned them from hearing it on the radio. (Libertarians might point out that this approach would be favouring a particular viewpoint. That’s problematic from a free speech point of view. Indeed it is. But it is a favoured viewpoint that Parliament has endorsed in the very legislation that governs the BSA).
On the other side of the proportionality balance, one can question whether the odd use of the word “fuck” (or even “uck”) really does that much harm to community morals these days. It’s not as if children aren’t exposed to the word in other places. The BSA routinely accepts its use after 8:30pm and occasionally during children’s listening time, when justified by the context: such as on the Kim Hill show, during the news, and in a live interview, for example.
So, despite the BSA’s improved process for dealing with Bill of Rights issues these days, they’ve dropped the ball on this one, I think. But then again, so has RadioWorks. The broadcasters really need to be making better arguments if they want to bed in Bill of Rights values.
Topics: Broadcasting Standards Authority, NZ Bill of Rights Act | 50 Comments »
Michael Laws breaches broadcasting standards again
February 23, 2010
The BSA has pinged RadioLive talkback host Michael Laws yet again, this time for “blatant misrepresentation”. He had an exchange of emails with a health official concerned with Maori smoking that said:
Laws: Stick to trying to get Māori to quit smoking, will you? Not exactly a sparkling success story, is it?
Broughton: Not really. Not when Pakeha continue to allow it in the country and make profits from it, both the government AND industry, but I know you’ll have another excuse for your behaviours…
How did Laws describe this to his listeners? He said Mr Broughton:
- “regarded the cause of Māori smoking to essentially be white genocidal cigarette companies out to basically kill Māori”; and
- “tells clients that it’s all a Pakeha plot to kill Māori”.
The BSA said this was unfair. It rejected the privacy complaint (rightly so: you can’t expect privacy when you’re emailing a talkback show). It said that the accuracy complaint was subsumed: it had been dealt with under fairness. It seems to me that even on the BSA’s usual narrow interpretation of the accuracy standard on talkback shows (ie it applies to unqualified statements of material fact that set the scene for discussion), this was an inaccuracy. It strikes me that this was inaccurate and therefore unfair and not the other way around. As Professor John Burrows has pointed out before, the standards are different and should usually be considered separately. Subsuming the complaints muddies the waters.
Given Laws’ history, I find it surprising that the BSA didn’t impose a penalty here. Perhaps it was because they realised that Boughton was attributing Maori smoking to race factors, and that the debate was about a significant issue. But they didn’t say that.
Topics: Broadcasting Standards Authority, General | No Comments »
« Previous Entries Next Entries »