Fact Suppression
November 29, 2009
Which is worse: our name suppression laws, or the media’s coverage of them?
Today, the Sunday Star-Times leads with a story headlined “Identity of high profile drug accused kept secret”.
The story is about a familiar one: public figure gets name suppression; cue outrage.
Never mind that this particular defendant’s name was not suppressed between her arrest in April and last week. It could have been reported on any time. If it’s such significant information, perhaps we should be asking questions about the quality of our media. Maybe the headline should have been “Media miss high-profile drug accused story for 7 months”.
And never mind that the name suppression is plainly an interim one, put in place so that a formal application can be made next month.
Never mind that the judge seems to have indicated that the application’s prospects look slim.
(And, incidentally, never mind that the story seems to breach name suppression laws by providing identifying details of the defendant. How many high-profile NZ businesswomen are there whose ex-husband died of terminal cancer this year?)
To be fair, the story contains the information to enable me to make all these points. So does it really justify a front-page lead attacking name suppression laws?
Then there’s this effort, from yesterday’s Weekend Herald: “Government blocks naming of sex act star” (changed online now to the slightly more accurate “Crown blocks naming of sex act star”)
Wow. Really? The government could have allowed the defendant to be named, but prevented it? No. The Solicitor-General merely decided not to appeal.
The subhead says “Crown lawyer fails in attempt to overturn prominent musician’s suppression order”. That’s weird. So there was an appeal? Nope. The story is even equivocal on whether a Crown lawyer recommended an appeal. It eventually says “a senior Crown prosecutor looked into appealing” the order, but was “blocked” by the Solicitor-General.
I’m not sure what exactly happened, but we seem to have strayed a good distance from the headline. (I should point out that that’s largely the fault of the headline-writer not the journo).
The story goes on to claim that “breaching a suppression order is contempt of court”. Wrong. In extreme circumstances it may be, but not usually. (And that error is probably the journalist’s fault, though you would have hoped that the sub would have known some basic contempt law).
Both stories refer to the Law Commission’s recent report on name suppression. The Herald says that the Law Commission “wants internet service providers or content hosts to be subject to a ‘notice and takedown’ order requiring them to immediately remove or block access to material that breaches a court suppression order.” Close, but wrong again. (Did the reporter read the report? It mentions that a “notice-and-takedown procedure” was “one suggestion”, but then recommends something that’s actually broader: a requirement for removal or blocking when the ISP or host “becomes aware” of a suppression order. That doesn’t require a “notice and takedown order”, whatever that might be. And I’m with Ursula Cheer in reading this as not aimed at requiring ISPs to filter anything, as opposed to requiring their customers to take stuff down.)
The best bit is where the story says “even Prime Minister John Key admitted he knew [the entertainer’s] identity.” Can it really be surprising that the person with access to the entire information gathering apparatus of the state and the gossip network of the country’s leading political party knew a piece of information that’s relatively easily discoverable on the internet? But perhaps the operative word in that sentence is “admitted” (though it’s no offence to know the name, and “admitting” that he didn’t know the name would make him look like prize doofus).
It’s hard to escape two impressions:
1. The media don’t really understand how the laws of name suppression and contempt work; and
2. They routinely beat up name suppression stories to paint the suppressions as unjustified.
If they were simply reporting the issue, you’d think that they may have mentioned that the Law Commission found that suppression orders are imposed in about 1 percent of criminal cases. And that not all of them involve suppresson of names (sometimes, it’s just evidence that’s suppressed). And that it includes suppressions imposed automatically to protect sex victims and child witnesses. And that it includes interim orders that lapse by trial time. (In fact, that’s probably the vast bulk of them – ie they’re not permanent suppression orders. Only about 700 a year are permanent). The Commission conveniently put that information in Chapter 1 of its report.
What’s more, instead of playing up the futility of such suppression orders when “everyone knows” who it is, the media might have asked some people, you know, whether they know who it is. When I ask my classes (clued up media and privacy law students) usually, most of them don’t know. That’s not because they couldn’t find out (most of them can find out quite readily if they want) – it’s because they haven’t bothered. The reality is that even when journalists think that “everyone knows” because everyone they know knows, actually lots of people don’t know. I imagine if you’re someone with a name suppression order you could be justified in thinking that there’s a difference between lots of people knowing, and having it appear on the front page of the paper.
Of course, we’re only talking about celebrities here. Of the roughly 700 name suppressions issued last year, how many suppressed identities could you name? So…. still think that the internet is rendering suppression orders pointless? Only for the handful of public figures who apply for them, surely. Then aren’t you sick of the perennial stories that breathlessly ask whether technology has rendered name suppression futile?
I should add that I’m inclined to think that permanent name suppression should almost never be given after someone’s been convicted, so I’ve got serious doubts about whether it’s appropriate in either of these cases. That also happens to be the law, and the way it’s usually applied. Of course, final suppression hasn’t been given for the businesswoman. It was for the entertainer, but there’s at least a plausible case that this was justified, though not one that I’d agree with.
Hint to those anti-suppression types looking for a real angle on the Law Commission report: check out the recommendation that name suppression should be allowed at first instance to anyone who can make an arguable case. This is happening in some courts already, and has long struck me as inconsistent with Court of Appeal authority. It’s probably a necessary concession to busy list court judges. It still requires the defendant to stump up with some evidence and good arguments on second appearance, or the suppression will lapse. But it does considerably widen the initial reach of our suppression laws.
Topics: Contempt of Court, Media ethics, Name suppression, Suppression orders | Comments Off on Fact Suppression
Best headline of the year
November 27, 2009
My nomination: The NZ Herald’s Orchestral man hoovers in the dark
Topics: General, Media ethics | Comments Off on Best headline of the year
Best quote from Sarah Palin’s new book “Going Rogue”
November 25, 2009
If God had not intended for us to eat animals, how come He made them out of meat?
Hat-tip: Slate
Topics: General | Comments Off on Best quote from Sarah Palin’s new book “Going Rogue”
Back on the block
November 23, 2009
I’m back in town, after a stint overseas. If there’s some juicy speech issue I’ve missed, do drop me a line.
Topics: General | Comments Off on Back on the block
Are you really anonymous online?
November 23, 2009
According to the Pew Internet and American Life Project, 55% of bloggers blog under a pseudonym. Obviously plenty of others use pseudonyms when posting comments about the place.
Some of the posts by bloggers and commenters breach laws such as defamation, privacy, breach of confidence, harrassment and copyright. In most cases, the relevant ISPs have access to identifying information that can blow their cover. If someone wants to sue the anonymous poster, when do the ISPs have to give them up?
This was one of the questions tackled by US Professor Brian Murchison in a paper he presented recently in Sydney and Melbourne. I was brought in to comment on the paper, and used the opportunity to check out the equivalent laws in NZ, Australia and the UK.
The upshot is that it’s relatively hard to force ISPs to turn over their users in the US. In large part, this is because anonymous speech is constitutionally protected. There’s a recognition that if people can’t speak anonymously, fewer will speak at all, and the rest of us will be the poorer for it. To get a court order for the disclosure of the blogger’s identity, plaintiffs in the US have to spell out a technically valid legal claim, and provide evidential support for it. In other words, they have to make out a prima facie case. (It seems this standard is also applied in Canada). In many US states, they also have to show that the harm done to free speech values isn’t disproportionate in the circumstances.
What’s more, it seems clear that the parties have to make some attempt to let the anonymous blogger know that the application has been made so that, some way or other, he or she can put some arguments before the court.
That’s North America. But the law in NZ, Australia and the UK is different. In those places, it seems to be much easier for plaintiffs to get access to the identities of anonymous bloggers and posters. And there’s no requirement that anyone try to contact the bloggers to let them know what’s going on.
The standard in NZ seems to require merely that the plaintiff needs the identity in order to be able to formulate a claim. This is contained in the rules concerning pre-commencement discovery. The courts have specifically said that the plaintiff doesn’t have to show that there’s any likelihood that the claim will succeed (though it must be more than “speculative”). That means plaintiffs also need to show that they can’t get the information elsewhere, and that the ISP probably has it. They’ll also have to meet the ISP’s expenses.
Ultimately, this is a discretion, and there is a hint in the case law that if material is confidential, the courts will take this into account. There’s room for free speech arguments to be made here, but it’s not clear how the courts will treat them. The wording of the rule, and the existing case law, indicate that the threshold is a low one.
Same in Australia. There, the courts have held that you need to show an arguable case, though not a prima facie one. The test is a bit circular: is your claim sufficient to make it proper in the interests of justice that preliminary discovery be ordered? When will it be in the interests of justice to order the disclosure? When the plaintiff won’t have an “effective remedy” without it. It can be argued that there’s no need to order the disclosure of a blogger’s identity when there’s someone else to sue (the ISP, perhaps, or the person who operates the website). But that argument won’t work if the ISP or website operator has a defence that wouldn’t be available to the blogger. If that’s the case, the plaintiff can fairly say that the blogger/poster should be answering the case themselves.
I’m told that such applications are not uncommon in Australia, though they don’t get reported. They tend to succeed.
There is some reported case law in the UK, and it follows similar lines. The 1974 Norwich Pharmacal case is the leading precedent. Though it wasn’t about the internet, later ISP cases have drawn on it. Like Australia, there’s an arguable case threshold, not a prima facie one. The courts will take into account the apparent strength of the case, along with things like the gravity of the allegations, the extent of the alleged harm, and whether there’s a confidentiality policy. But the orders do not seem to be difficult to get.
What’s striking about the UK cases is the dearth of discussion of freedom of expression issues. Note that free speech and privacy interests rather line up together: privacy gives people the space they need to exercise their freedom of speech. The US takes speech issues more seriously, and has ended up with a test that’s more protective of online anonymity.
I simply make that observation. I’m not sure I support the US position. Plenty of online speech is so nasty and harmful that speakers shouldn’t be able to shelter behind their anonymity, I think. And the US rather tends to underprotect interests of privacy and confidentiality, which don’t feature explicitly in the US Bill of Rights. But we really ought to think through all the arguments before deciding where to set the threshold, and the US does that better than us. And we already have remedies that aren’t available in the US – an ISP put on notice that it’s hosting defamatory material (and presumably, material that breaches privacy or confidentiality) is very probably liable for it in NZ, Australia and the UK, unless it promptly organises its removal. Most US courts have interpreted US safe harbour laws into give ISPs immunity for material even when they know it’s defamatory.
Some would argue that the best remedy in these situations is “more speech”. Go online, and answer back. That’s part of the culture of the net.
Professor Murchison made me realise that this answer isn’t as good as it sounds. For one thing, there are some smears that you can’t really answer back. What are you going to do – go online and say “I’m not incompetent and paranoid” or “I’m not a slut and a skank”? And if you do want to answer back, you may find yourself liable for defamation, infringement of privacy or breach of confidence yourself if you’re not careful with what you say.
Sometimes, the only real way to answer back is to sue…
Topics: Defamation, Internet issues, NZ Bill of Rights Act, Privacy Act | Comments Off on Are you really anonymous online?
Wrong turn by bus campaigners
November 22, 2009
You know what appals me most about the save-Manners-mall-from-buses campaign’s decision to hire students to front up for a protest march?
It’s not the sheer stupidity of the tactic, which was surely always likely to bite them in the bum. It’s not that they’ve completely undone their own cause, illustrating how little support they can muster. It’s not their laughable attempt to blow it off by saying it’s the same as GoWellington putting posters on their buses. It’s not even the hypocrisy: imagine how they would have howled if the Council had done the same thing, or a company or lobby group they opposed had tried to pay supporters to boost their image.
It’s that they’ve undermined the credibility of popular protest generally. It doesn’t take too much of this before we’ll all be wondering, every time we see a street demonstration, whether the protesters are just paid lackeys. Or if we’re thinking of joining in, whether we want to lend our name to an enterprise where some of the grass roots may have just been bought like pot plants from a Palmers Garden Centre.
These tactics are all too similar to the loathsome establishment of front groups for lobby groups like the tobacco industry, conjured up by artful PR campaigners to look like genuine popular campaigns, which in reality have almost no community support at all.
They should fess up, admit this was a terrible idea, and vow on their mothers’ graves not to ever do it again.
Topics: Protest speech | Comments Off on Wrong turn by bus campaigners
ReputationDefenders.com
November 20, 2009
This is an interesting outfit that looks to use (mostly non-lawyer-based) methods to search out client’s online reputations and help them beat back any “inaccurate, inappropriate, hurtful and slanderous information”. Dunno if they’re any good, but evidently Dr Phil thinks they are.
Topics: Defamation | Comments Off on ReputationDefenders.com
A prickly issue
November 19, 2009
Cactus Kate is up in arms about some editorial guidelines she says APN management have been circulating to reporters, including those at the NZ Herald.
Her most alarming claim by far is that:
The thrust is all to do with NO budget allocated for legal action or defence so the editors have basically been told not to run stories that could cause legal action or are risky in other ways.
This doesn’t seem to have been part of the leaked memo. Herald editor Tim Murphy adamantly denies it. Where did it come from? CK says:
I was informed of this specific edict to Editors that was made some months ago in conjunction with circulation of that which I further describe below.
Seems a bit vague, but I guess she’s got to protect her source. (Or sources? Did they all say this? Did they have it first hand? Who from?)
Now, I have no inside knowledge and have no idea what the truth is. But it doesn’t strike me as very likely. A directive from management to keep legal costs down in hard times, together with a reminder of some key bits of media law advice? Sure. It’s probably going on in many media organisations. But an order to cut the budget to zero? What if they get a legal threat after something’s published? Are they supposed to ignore it? What if they slip up? Defamation threats often emerge from stories that no-one had any idea were dangerous. It’s part of the business. Who knew there were two Artemus Joneses?
It must be obvious to any major media organisation that they can’t operate on a zero legal budget.
As for the memo itself, call me a Russellite if you will, but I can’t see anything in the guidelines that isn’t entirely standard. Even senior journalists can do with a reminder about it from time to time. CK wants to know why it was being circulated at that particular time. I don’t know. Maybe they made some costly mistakes and wanted to minimise the chances they would happen again. Maybe they were too cheap to run some training this year. Maybe someone thought it was a good pre-emptive cost strategy. None of the reasons I can think of seem particularly worrying.
Still, there has been some handwringing about this paragraph:
There are categories of people who are more inclined to sue if they are the subject of adverse publications, so particular care should be taken in reporting allegations of misconduct against lawyers, doctors, judges, other professionals, politicians, critics and wealthy businessmen/women.
Rob Hosking says he’s never heard any of his bosses give this advice. NBR’s David Cohen wonders:
Huh? Is it possible that one of the region’s media giants — and by extension its major New Zealand title — is observing different journalistic standards depending on the choice of news subject?
This strikes me as a bit naive. Isn’t it just common sense to take particular care when you know someone’s likely to sue you?
That doesn’t mean the story shouldn’t be written, and the memo doesn’t seem to suggest that. It does mean that a bit more care might be taken over key passages to ensure that an honest opinion defence is available, for example, or the story might be held for a day for a call to be returned to strengthen a qualified privilege defence.
For what it’s worth, in Media Minefield I include exactly this advice, recommending particular care when writing about people most likely to sue:
politicians, business people, lawyers, celebrities, sports stars, the police, and journalists.
Topics: Defamation, Media ethics | Comments Off on A prickly issue
Dueling and defamation
November 11, 2009
Before defamation lawsuits, there was dueling.
Apparently, in 17th and 18th Century Europe it was regarded as a civilised way of protecting one’s honour, “since the alternatives were sneak attacks and brawls” writes Daniel Solove in his book The Future of Reputation.
Still, thousands of people were killed in them. What I hadn’t realised was the degree to which dueling was encrusted with detailed rituals of notice, negotiation and representation. Here’s Solove:
A duel could be provoked by insult, defamation or gossip. Even the slightest of insults could spark a duel. An elaborate set of rules, the “code duello”, governed the practice. The offended person would issue the challenge, which involved the use of swords or pistols. Before a duel was fought, the parties exchanged letters and engaged in negotiations to see whether a reconciliation could be achieved. Each party had a “second”, who functioned as his agent throughout the process. In many cases, the parties reached a settlement, with the offender admitting, for example, that a rumour was spurious without conceding that he had deliberately spread a lie. Skillful seconds were adept at helping the parties reconcile, and one contemporary observer even remarked that “nine duels out of ten, if not ninety-nine out of a hundred, orginate in want of experience in the seconds.” “It is not the sword or the pistol that kills”, another stated, “but the seconds”.
I wonder who the modern-day equivalent of seconds could be…?
Topics: Defamation | Comments Off on Dueling and defamation
Warning for defamation defendants
November 11, 2009
The job of the defendant in a defamation jury trial (often the media) is to convince the jury that ordinary reasonable people will not think less of the plaintiff after being exposed to the material alleged to be defamatory.
You might think it will probably be enough to convince the jurors themselves, who no doubt regard themselves as ordinary reasonable people, that the material wasn’t defamatory.
And you’d be wrong.
Problem is, jurors tend to think that other people will be more affected and influenced by the material than them. This is known as the third-person effect. It applies in advertising, too. “Oh, I’m not influenced by those ads,” we tend to think, “but others might well be”. Turns out, this effect is amplified when the source of the defamatory statement has an axe to grind against the plaintiff.
This makes it tougher for the media to make the case that a particular article doesn’t have a defamatory meaning, or wasn’t very harmful.
Research into the third-person effect has been written up in the Public Opinion Quarterly (abstract here) and more recently, in the Media and Arts Law Review in Australia (abstract here)
Topics: Defamation | Comments Off on Warning for defamation defendants
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