Crashing and burning
January 21, 2010
Valerie Morse has lost her appeal to the Court of Appeal over her conviction for flag-burning at the Anzac Day Dawn Service. (For some reason, this wasn’t regarded as a “decision of public interest”, but it’s posted here).
The judges all wrote separate judgments. Justice Arnold and the President of the Court of Appeal, William Young, voted to uphold the conviction. Justice Glazebrook wrote a dissent. (I think her dissent is very convincing, but I would say that: Tony Shaw and I represented Valerie.)
Still, perhaps the final chapter has not yet been written. The Supreme Court may yet grant leave for an appeal.
I won’t go into a detailed analysis of the judgments. But I do want to make one point, despite knowing that it’s a bit naff arguing the toss with a judge after a judgment.
You’ll see that at para [48], William Young P says:
In the course of argument, I pressed Mr Price for the appellant to identify an error of law made in the Courts below. His answers were variations on the theme that the outcome was simply wrong. This rather makes me think that the fundamental challenge to the conviction turns on the factual accuracy of the findings made in the District Court and the High Court. But such a challenge, at least in simple terms, is off-limits in this Court in a second appeal…
I’m not sure where this came from. First, the Court of Appeal itself gave leave on the of whether the conviction was consistent with the Bill of Rights Act. It characterised this as a question of law.
Second, here our our written submissions on the errors of law in the courts below:
The failures of the courts below
The courts below failed to properly conduct an analysis of the impact of ss14 and 5 of the BORA in that:
– they did not adopt a rights-centred approach;
– they did not acknowledge that the right to offend, shock or disturb is an indispensable aspect of freedom of expression, and particularly political expression;
– they did not acknowledge that limitations on BORA rights should be construed narrowly, convincingly established, and strictly applied in favour of the rights at issue;
– they did not properly assess the significance of freedom of expression in the circumstances of this case;
– they did not identify any legitimate purposes for the restriction on the appellant’s right to burn the NZ flag, the starting point for any proportionality analysis;
– they did not consider whether the appellant’s conviction was “demonstrably justified” in a free and democratic society;
– they appeared to treat the symbolic nature of the act of flag-burning as an aggravating rather that mitigating factor;
– they did not properly apply the Brooker test, which significantly lifted the bar in cases of protest; nor did they create and apply an analogously high bar for offensive behaviour;
– they did not consider the relevance of the offence of flag-burning under the Flags, Emblems, and Names Protection Act 1981;
– they apparently regarded the proportionality analysis as an ad-hoc balance between the rights of the appellant and the rights of the others in attendance, rather than a structured process of justification that revolves around evaluating the legitimacy, relevance and strength of the state interests in the restriction.
Also, as Justice Arnold notes at para [14], we supplied three alternative approaches to interpreting the offense of offensive behaviour, all of which we said were consistent with the Bill of Rights, and none of which were adopted by the District and High Court judges.
Finally (and I’m taking this from the notes I wrote during the break in order to respond to William Young P’s question), we emphasised that the fundamental failure of the judges was in adopting the wrong approach to the question of justifying restrictions on free speech. The correct legal approach required them to acknowledge that the starting point was freedom of expression and that the burden of justification lay with the Crown; the second step was to examine how deeply the right to freedom of expression is involved in the particular circumstances; the third step was to assess the countervailing state interests and the extent to which they were harmed; and the final step was to assess whether that harm outweighed the damage to freedom of expression. This is the sort of analysis, we noted, that Canadian courts conduct all the time.
I guess that, to the President, that didn’t sound like an error of law. It sounded like a fancy way of dressing up a bare claim that the lower courts had just “got it wrong”. In any event, he wasn’t convinced by our arguments.
And to be fair, the essence of our argument was indeed that on any properly rigorous justification analysis, a conviction could not be found proportionate. There’s a big difference between that sort of robust approach, and one that merely plays a bit of lip service to free speech, refers to a few factors that seem relevant to a “balancing” exercise, and reaches an airy conclusion that a conviction is justified. I think Justice Glazebrook was the only judge to really grapple with all the facts and apply a rigorous justification analysis. She found the conviction unjustified.
Topics: NZ Bill of Rights Act, Protest speech | 860 Comments »
Meanwhile, over at Whale HQ
January 14, 2010
Mr Oil has an odd post calling attention to the discrepancy between the “liberal crim huggers” (does that include the people who support him, one wonders?) who point out that many name suppressions exist to protect victims, including one of the ones he’s alleged to have breached, and this case:
An Auckland methodist minister has been charged with a sex offence against a teenage youth.
Kenneth Smith appeared in Rotorua District Court this morning accused of indecently assaulting the 17-year-old boy at a motel on January 10.
Mr Oil’s point?
Sex Crime, victim, no name suppression… Now you can’t get more shameful than that and yet there isn’t any name suppression.
His post is headed “Why no victim protection in this case?”. There’s a simple answer. The victim’s name is in fact suppressed. It happens by operation of the law, automatically. The reason the papers can name the defendant is that this doesn’t reveal the identity of the victim. That’s completely different to a situation where the relationship between the defendant and the victim is already in the public domain… in those circumstances, naming the defendant would identify the victim.
I believe the liberal crim-huggers’ viewpoint is simply that sex victims’ identities should be protected (or perhaps that the laws providing such protection should be obeyed). It’s not inconsistent to decry a blogger who reveals a victim’s identity and have no problems with a story that doesn’t.
Topics: Name suppression | 2 Comments »
Solicitor-General not going Whale hunting
January 14, 2010
The Solicitor-General has decided not to pursue Mr Oil for contempt of court “at this stage”, though he says he supports the prosecutions for name suppression. He adds that contempt proceedings “remain an option” if Mr Oil’s offending continues or escalates, but would probably be brought after the suppression breaches trial.
Topics: Contempt of Court, Name suppression, Suppression orders | No Comments »
Simunovich case settled
January 14, 2010
The long-running high-stakes defamation battle over the media’s allegations about corruption in the fishing industry has been settled, at least with respect to some of the plaintiffs, with a payment of damages and an apology.
Vince Siemer puts the settlement figure at $15 million. Stuff reports TVNZ says it’s about $1.5 million, which strikes me as more probable. I wonder what’s happened with costs?
Topics: Defamation | No Comments »
A whale of a campaign
January 12, 2010
Sigh. I’ve been avoiding weighing in on Whale Oil’s campaign to reform NZ’s suppression laws, or failing that, render them useless. (In my absence, Andrew Geddis has done a good job). But it’s an issue that won’t die. It doesn’t help that the media seem endlessly fascinated by it, and by him.
I won’t attempt a definitive analysis (in part because I’m not familiar with the precise scope of the suppression orders or with the details of the 16 defences Mr Oil says he has available.) But I can make some attempt to inject a bit of legal context.
1. I think Mr Oil is right that the entertainer shouldn’t have been given name suppression. He had been found to have committed [I initially wrongly wrote “convicted” – thanks to Graeme Edgeler for spotting this] a sexual crime that was fairly serious.
2. Still, I’m not sure how many of those who criticise the judge’s suppression decision have read it. The judge found that (a) a series of strong character references from people who knew the defendant well attested that this behaviour was very much out of character; (b) the defendant had agreed to pay $5000 in reparations; (c) the offending was not at the high end of the scale; and (d) a conviction and publicity would have disproportionate effects on his career, and in particular, his ability to travel. I still disagree with the decision (he was given a discharge without conviction as well – I think the name suppression went too far). But it would be nice to see a bit more reporting of the reasons for it.
3. There’s really no doubt that a name suppression order can be breached by pictures, if they are easily understandable, and particularly where this is obviously the precise intention of the defendant. Supressions usually include publication of “particulars liked to lead to the identification” of the suppressed identity.
4. More cryptic pictures (and codes) may or may not pass that test. It probably depends on how many people can decipher them. I would expect that the courts to find the breach proved (or the offence of evasion) if a significant number of people can work it out. It will not help a defendant if the obvious aim of the exercise is to provide clues for a guessing game.
5. Still, I’m not sure that the Olympian’s wife suppression was clearly breached. Mr Oil’s pictures were fairly obscure.
6. On the other hand, one of the people posting in the thread below Mr Oil’s pictures helpfully linked to another page containing the defendant’s name at the top. If Mr Oil didn’t take very quick steps to delete that post, he may well be liable for publishing it.
7. This next point really should be much more widely reported. One of the suppression orders Mr Oil is charged with breaching (the Olympian) and another he’s being investigated for (the former MP) involve charges of sexual offences against others. In those cases, no judge has chosen to suppress the defendant’s name. Parliament has done it. The same is true of the comedian. Victims of sex offences get automatic name suppression (though some can themselves apply to have it lifted). For offences of incest and sexual conduct with a dependent family member, the defendant’s name is automatically suppressed too, since naming that person will effectively identify the alleged victim. For other sex offences, the media have a choice. They can do what British papers usually do and report that a named person has been charged with an unspecified offence. Or they can do what NZ papers invariably do and report that an unnamed person has been charged with a sexual assault on his wife or daughter, or whoever.
8. The HOS has chosen the second path. (I have a friend in the UK who thinks our media are idiots for doing this). That means this information is in the public domain. So it’s too late to go back to the first path. If you start naming him (even if you don’t name who he’s alleged to have committed the offence on, eg his wife) then you’re effectively naming them both, since everyone can make the connection. Anyone who adds to the material that’s in the public domain in a way that provides extra details that can identify the suppressed person when put together with the HOS story has very probably committed a breach. This is known as “jigsaw identification”. So don’t go thinking that just because you have only added some small detail to the mix, and haven’t republished all the other stuff, that you can’t be prosecuted.
9. David Farrar seems dead right that the HOS looks to have provided enough clues to be guilty itself of breaching the order relating to the MP (or evading it, which is also an offence). As I said at the recent R v the Internet conference, this is pretty common. And you can argue that it’s unfair that he’s being charged when they’re not. It is. But this doesn’t provide a defence for Mr Oil.
10. Tim Watkin has suggested that the media use a rule of thumb about identifying details. He says if your details reduce the group of possible defendants under a dozen, you’ve published identifying details. I haven’t seen any case law to support that rule. It doesn’t sound like a bad guideline, depending on the precise terms of the suppression order.
11. It’s especially not a bad guideline because the police almost never prosecute papers for publishing too many details. Might this be partly because they have supplied those details in many cases? Dunno. I think it’s probably mostly because they’re usually too busy with other things, don’t regard such articles as outrageous, respect the fact that the media are at least paying some lip-service to the suppression order, and don’t see the case as a slam-dunk.
12. So why are they picking on Mr Oil? Well, whereas the media pay lip service to the suppression orders and laws, Mr Oil rather thumbs his nose at them. Also, I’m guessing the police may well be using Mr Oil as a test case to send a message to others. I don’t like that practice much, but again, they’re within their rights, and it’s no defence for Mr Oil to complain that he’s been singled out. The Solicitor-General has done that with contempt prosecutions fairly regularly.
13. I’ve talked about the “terms of the suppression order” a couple of times. Sometimes they are in very precise terms about what details have been suppressed. Usually the judge simply airily announces a suppression and everyone assumes that it covers names and identifying particulars. I’d expect a court in a name suppression prosecution to regard that as being clear. Remember, though, that many name suppressions arise by the operation of the law and are in place automatically (to protect sex crime victims, for example, or child witnesses).
14. Mr Oil has been charged with offences with $1000 maximum fines. The Law Commission has recently pointed out that these fines are really laughable low and recommended substantial increases.
15. The Law Commmission, in fact, has recommended tightening of the grounds for suppression. Their recommendations will not affect suppression of alleged sex crime victims. They would probably mean that the entertainer would not have got name suppression. (Incidentally, it’s very rare for people who are convicted to get name suppression in any case.)
16. For those who are going around saying that name suppression should never be granted except to protect sex victims, or never at all: consider some other possibilities. The crime is very minor (but quirky) and there is medical evidence that the defendant, a non-celebrity, has serious mental health problems and is suicidal. Or: the person is a witness and there’s evidence that the defendants or their mates might try to nobble them. Or: the naming of the person may hamper an ongoing police investigation. Or: the crime isn’t a sex crime, but the defendant and victim are closely associated and naming either one would have devastating consequences for the victim. Or: naming the accused would prejudice his or her right to a fair trial (eg the defendant is currently facing a jury trial on a similar issue).
17. For those who think it’s discriminatory to give suppression orders to celebrities but not oiks like us, consider this: if you got prosecuted for weeing behind a pub, the media wouldn’t be interested. If it was an All Black, it would be front-page news. Those are the effects of a judge opting not to impose a name suppression order. Isn’t there a decent argument that that would be discriminatory too, and that name suppression merely irons out the discrepancy? (Not saying I buy that entirely, just that the issue’s a bit more complicated than some people suggest.)
18. For those who think the internet renders name suppression useless: there were about 700 permanent name suppression orders in the last year (out of about 150,000 prosecutions). How many of them can you name? Feel free to Google.
19. It’s the police who prosecute name suppression breaches, not the Solicitor-General, though they may seek his advice. The S-G deals with contempt issues.
20. Speaking of contempt issues, I see the police are talking about investigating Mr Oil for contempt too. I don’t know whether the S-G is involved. I also don’t know what the police are talking about when they say:
Clearly it [Mr Oil’s alleged end-run around name suppression laws] attacks the very heart of our criminal justice system in a number of ways; that a person is entitled to presumption of innocence until the opposite is proven, the right to a fair trial…
Er. What about all the other publications of identifying details over the years, notably by the media? They weren’t quite so brazen, I suppose.
What has the presumption of innocence got to do with it? The defendants are all still presumed innocent, whether they’re publicly named or not. Lots of people don’t get name suppression. Sometimes it’s clear lots of people think they’re guilty. Is the presumption of innocence less for them?
What has a fair trial got to do with it? In very rare circumstances, suppression is imposed to protect a person’s right to a fair trial, usually when there are parallel proceedings involving a jury. I haven’t seen anything to suggest that’s the case here.
Sounds like police blather to me.
21. So might it be contempt? If a breach of a suppression order or suppression law is sufficiently deliberate and brazen (and, perhaps, repeated) such that the authority of the court is being flouted, affecting the administration of justice generally, then, yep, that might be a contempt of court. If so, we’re likely to see the S-G taking the lead. And the penalty rises way above a possible $1000 fine. In fact, it includes potential jail. If that transpires, I’m guessing that the S-G will seek a prison term of 3 months or less, to try to avoid the possibility of a jury trial.
22. Some people are a bit worried that commenting on Mr Oil’s case might get them into trouble for contempt. Isn’t the matter sub judice? Well, yes, but it’s hard to imagine that anything anyone says will prejudice his right to a fair hearing. That includes all of Mr Oil’s comments about the heroic superness of his position, and the pretty scathing attacks from those criticising him. The suppression charges will not go before a jury. Judges generally say they’re not affected by comments about the case, and are generally alive to the need to provide maximum play for robust public discussion of issues before the court.
23. Did Mr Oil really just slag people for saying he did something when it “hasn’t been proved in a court of law”?
24. There are actually quite a lot of suppression laws in the UK, though they’re generally not as wide as ours. There are also a range of suppression laws in Australia. Even the US allows judges to exercise control over what the parties can say publicly (though the First Amendment prevents restrictions on media reporting of court cases, even – and this is the best illustration of how US free speech law sometimes goes off the deep end – rape victims, where State legislation required their names to be suppressed).
25. Some statistics on name suppression here. My critique of recent media coverage of suppression issues here and here and here.
Topics: Name suppression, Suppression orders | 46 Comments »
New Canadian responsible journalism defamation defence
December 23, 2009
The Canadian Supreme Court has followed most of the rest of the common law world in developing a privilege to publish information in the public interest, providing the publication was “responsible”. Both are elements for the defence to prove. It’s broadly similar to the UK defence in Reynolds – so it’s wider than the current versions of the defence in NZ and Australia.
What’s “responsible journalism”? The SC has set out a series of factors closely resembling Lord Nicholls’ ten factors from Reynolds. Here’s a summary from the headnote:
The judge determines whether the impugned statement relates to a matter of public interest. If public interest is shown, the jury decides whether on the evidence the defence of responsible communication is established. The following factors may aid in determining whether a defamatory communication on a matter of public interest was responsibly made: (a) the seriousness of the allegation; (b) the public importance of the matter; (c) the urgency of the matter; (d) the status and reliability of the source; (e) whether the plaintiff’s side of the story was sought and accurately reported; (f) whether the inclusion of the defamatory statement was justifiable; (g) whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage”); and (h) any other relevant circumstances.
Note that they’ve snuck in some a version of neutral reportage – see factor (g) and also paras [119] and [120]. It remains to be seen whether this will require categorisation of articles as reportage or investigative, which has been the suggestion in the UK, where Reynolds applies to investigative journalism, and neutral reportage to non-investigative accounts of important public disputes. Perhaps the Canadian approach is more flexible, and asks more simply whether the degree of care exercised was appropriate in the circumstances…
See also the Cusson case, also hot off the press and to similar effect.
Topics: Defamation, NZ Bill of Rights Act | 47 Comments »
TVNZ upholds Paul Henry complaint
December 21, 2009
TVNZ’s complaints committee has found that Paul Henry breached the taste and decency standard with his comments on Susan Boyle on Breakfast last month. He giggled when reporting that she had been starved of oxygen at birth and said she was “retarded” and you could see it from her photograph. It’s worse when you see it.
This was probably a savvy move by TVNZ, as the BSA very probably would have decided the same thing.
I have to say, the thing I found most offensive was the say he cracked up all the way through the item, all the while protesting, entirely disingenuously, that it wasn’t funny.
A couple of issues remain though: whether the action taken by TVNZ after upholding the complaint (and it’s not clear from this report that they’ve taken any) was sufficient. And whether TVNZ may also have breached standards of fairness (I’m assuming at least one person complained under that ground). The BSA may yet have to consider this complaint.
Topics: Broadcasting Standards Authority | No Comments »
“Comedian” child sex accused name suppression
December 21, 2009
It seems that a “comedian” has been granted name suppression in connection with charges that he has had unlawful sexual connection with a child under 12, his daughter.
This isn’t some namby-pamby judge covering up for a celebrity. This suppression kicks in automatically under the Criminal Justice Act, I think. Alleged sex crime victims are given name suppression under section 139. This is a rule set by Parliament, not a discretion exercised by a judge. It operates to suppress reporting of the name of the daughter – and any identifying details. That’ll include the name of her dad (because it identifies the daughter).
Free speech absolutists looking to circumvent this suppression might like to think about who they might be hurting here.
And we might not want to be too quick to rush to judgment. I have no insider knowledge, but this account provides some reasons to think the case against him may not be straightforward.
We might also spare a thought for NZ comedians out there. It’s a fairly small circle. Michelle A’Court is on the record saying that the defendant isn’t really a comedian.
Finally, 3 News and RadioLive might like to think twice about their report accusing Carolyn Meng Yee of breaching the suppression by telling Te Radar the suppressed name when seeking his comment.
First, it’s not clear from the story who exactly is doing the accusing. Te Radar doesn’t seem to be doing any actual accusing. It seems to be TV3/RadioLive itself.
Second, it’s not clearly an offence to tell someone a suppressed name. The offence is triggered by publishing suppressed material (or evading a suppression order). I’m not aware of any cases suggesting that this can be triggered by telling one other person.
Thirdly – how to put this? If I were a betting man, I’d lay good odds that there are journalists at TV3 and Radio Live who have told happily passed on suppressed names to friends and colleagues. One would hope they might find the saddle a bit uncomfortable on that high horse.
Topics: Media ethics, Name suppression | 46 Comments »
Twittering in the courtroom
December 12, 2009
It’s been allowed in the US and Australia, with an Australian judge saying:
I believe that the public has a legitimate right to be fully informed of proceedings, particularly proceedings such as (the iiNet case), which have attracted considerable public interest. Twittering can serve to inform the public in a more speedy and comprehensive manner than may be possible through traditional media coverage.
It’s up to the judges case-by-case, as it should be. Frankly, I’m a bit skeptical about how well served the public will really be by twitter updates. But sometimes I feel a bit the same about media reports of trials and hearings.
Now, how about removing the ridiculous (and non-BORA compliant) rule that people taking notes in the public gallery may be committing contempt unless they get the judge’s approval?
Topics: Contempt of Court, Internet issues, NZ Bill of Rights Act | 48 Comments »
Down, Tiger!
December 12, 2009
Tiger Woods has obtained an injunction against the publication of some private details in the UK. Media lawyer Mark Stephens suggests that it concerns information that’s being freely reported in the US.
If that’s so, the injunction seems futile, and therefore legally unjustifiable.
It also seems strategically dopey. It can only serve to achieve something I had thought impossible: to increase the degree of interest in Woods’ affairs.
It also seems inconsistent with Justice Eady’s decision when Max Mosley sought an injunction against the continuing publications of the sex orgy videos. Justice Eady held that these were already too widely available to justify an injunction. (This makes me wonder whether the injunction actually concerns details that aren’t yet widely available. Or it may be an interim injunction, pending a more fulsome argument in the near future).
Whatever the case, it seems ill-advised. Still, it’s a nice Christmas present for the British media’s campaign to reform the UK’s libel laws, which have already received recent fillips from Index on Censorship, Justice secretary Jack Straw, and Lord Lester.
UPDATE: The injunction (in favour of one “Eldrick Tont Woods”) is here. It relates to images of Woods naked or having sex. I don’t think any such images are yet freely available. In fact, Woods’ lawyers don’t accept that any such photos necessarily exist, and express concern that any that surface may be faked.
It’s not a “super-injunction” so the fact of the injunction is allowed to be discussed. It is a John Doe order, against unspecified defendants. It provides for anyone served with a copy to apply to the court to vary it on 2 days’ notice. Obviously, it only applies in the UK.
Topics: Injunctions, Privacy tort | No Comments »
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