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 »
Mau about gay issues
February 23, 2010
Well, recent events have given a certain piquancy to the broadcasting standards complaint about this exchange between Paul Henry and Alison Mau, on Breakfast last year:
Henry: …a little bit later in the morning I thought we might talk about the Acting Principal Family Court Judge’s call that it’s time the adoption laws were updated to reflect society. What he’s effectively saying, I think, is that you shouldn’t discriminate against homosexual couples when it comes to adopting. I’m a little bit iffy on that…
Mau: Why? Why shouldn’t same sex couples raise children just as well as mixed sex couples?
Henry: It’s not natural, is it?
Mau: Oh don’t start that.
Henry: Well it’s not natural, is it? It’s obviously not natural.
Mau: Not your sort of natural, no.
Henry: It’s not God’s sort of natural and I’m not even religious, but it can’t be, it’s not, like, natural, is it? Like you don’t get a whole clan of cave bears that are all male because that just couldn’t happen. It’s not natural.
Mau: You’re just determined to open a big can of whoop-ass aren’t you?
Henry: I’m not trying to do it… I’m merely…
Mau: Raising a talking point? That’s fine.
Henry: Because I mean people will… it smacks of the sort of thing the Labour Government did of course, doesn’t it? I just think you know I’m iffy on it, ‘cause we’re talking adoption aren’t we? I’m just iffy on it.
Mau: Yes goodness me, iffy – it smacks of human rights. How outrageous!
Henry: Yes human rights. A lot of bad things have been done under the… guise of human rights, haven’t they?
And later…
Henry: Well, it is. It is unnatural, homosexuality…
Mau: No, it’s not.
Henry: …But is it wrong?
Mau: [reading feedback] “To call this unnatural is ludicrous and narrow-minded. Gay couples are great parents and are more than qualified to raise children. In short, it’s about accepting that society is diverse.”
Henry: I mean, it is unnatural though. We shouldn’t be frightened of saying that it’s unnatural. It is unnatural. Although homosexuality is through all species. I don’t know if it’s through all species but many, many species. A lot of monkeys are homosexual.
Mau: Actually… we had one text that said that somebody’s aunt had a homosexual pair of magpies who tried to, who were sitting on eggs to try and hatch them.
Henry: Extraordinary. And they didn’t, did they, hatch? Where did they get eggs from? They stole the eggs, thieving homosexual magpies. The thing is, though, if you go to any animal park, and I’ve got to be careful what I say here, but if you go to any animal park, you will find monkeys being filthy with each other.
Mau: That is completely beside the point.
It seems that Paul Henry didn’t know, and if he did, he’s an even bigger tosser than if he didn’t.
The BSA complaint was about denigration/discrimination. The complaint was – rightly, I think – rejected. The threshold for denigration complaints is high. This was part of a political discussion about adoption. And when viewed as a whole, Alison’s robust responses counteract a lot of the damage to the standard.
Topics: Broadcasting Standards Authority, General | 107 Comments »
Defamation claimant bombs
February 21, 2010
Brady Errol Chadwick has suffered a setback in his defamation claim against the Dominion Post. He has been ordered to pay $10,000 security for costs, which means that it’s unlikely his case will progress.
This will be a relief to Fairfax since it’s not at all clear the media organisation would have been able to afford the relief Mr Chadwick is seeking:
collateral/commodities to the value of three billion New Zealand dollars payable as uranium for use in Atomic Power Stations.
Topics: Defamation | 7 Comments »
PN suppression: missed angle?
February 17, 2010
Take a gander at this extraordinary passage from the sentencing notes: the judge described the sentencing outcomes in objectionable publications cases as “all over the place with no apparent consistency at all”.
Sounds like a news story to me.
Topics: Media ethics | No Comments »
PN Name suppression decision considered
February 17, 2010
I think the decision is wrong, but I can sympathise with the judge. He cites R v Wilson & Horton (the American billionaire case) but not the other leading case of R v Liddell, where it was held that:
[name suppression orders] are never to be imposed lightly, and in cases of conviction for serious crime the jurisdiction has to be exercised with the utmost caution.
and
… anguish to the innocent family of an offender is an inevitable result of many convictions for serious crime. Only in an extraordinary case could it outweigh, in relation to the reporting of the name of a person convicted of a serious crime, the general principle of open justice and the open reporting of justice.
This case can fairly be described as serious crime, as the judge accepted. It has a maximum penalty of 10 years in jail. The defendant had thousands of images of girls in explicit sexual poses, and had on one occasion distributed nine of them. He was therefore complicit in the abuse of children. What’s more, he didn’t display any concern for the children in the photos, and how they were exploited. He was sentenced to four months of home detention, during which he was barred from owning or using a computer without permission from the parole officer.
The judge accepted that the public have an interest in knowning of this man’s character, particularly as he is a professional person. How, then, could he justify a name suppression order?
Here are the factors that led to his sentencing and suppression decision. If you want to criticise the suppression then you’re saying you disagree that these factors amount to extraordinary circumstances. As I’ve said, I don’t think they get there. But I can understand why he thinks they do. Anyone fairly reporting this decision really should mention them. Hardly anyone has. Outraged media, this means you.
1. He was abused and neglected in his childhood.
2. It seems he attempted suicide. A psychiatrist said he is still a suicide risk, and that the risk would be “greatly increased” if he were named publicly.
3. He had a clinical addiction to the images. He is in treatment for it. That treatment would be jeopardised by publicity.
4. He had a series of glowing references, from people who now knew about the offending, saying he was a “particularly contientious, intelligent, responsible family man”.
5. He lost his employment and his professional practising certificate. He may be de-registered from his profession. He has lost his income.
6. Publicity might destroy his marriage and cause his wife to lose her job.
7. He has two children who would also be badly affected by publicity.
8. The psychiatric evidence was that he posed no risk to children. The judge concluded that naming him was not going to help flush out other potential offending he’d done, or help keep people safe.
9. He did not look at the vast majority of the images. They images were at the low end of the objectionable-image scale (I assume this means they were pictures of children who were naked and in sexualised poses, but not being actively abused beyond the abuse inherent in such pictures).
10. The evidence was (quite rightly, as it’s turned out) that there was likely to be high media interest in the case, which would intensify the damage from his naming.
These are hard calls. I wouldn’t want to be making them.
Topics: Media ethics, Name suppression | 99 Comments »
The Palmerston North name suppression decision
February 16, 2010
Is here.
Topics: Name suppression | 1 Comment »
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