Trivia question for privacy law geeks
November 11, 2009
No doubt you’ve heard of the famous 1890 Harvard Law Review article “The Right to Privacy” by Samuel Warren and Louis Brandeis, which paved the way for the privacy tort in the US and has been described as the “most influential law review article of all”.
But do you know what they wrote before that?
Turns out that their first two collaborative efforts were entitled “The Watuppa Pond Cases” and “The Law of Ponds”. They have been less influential.
Topics: Privacy tort | 48 Comments »
Price’s Journalistic Aphorism #21
November 11, 2009
The news should be made as interesting as possible, but no more.
(With apologies to Einstein, who’s often quoted as the source for the saying that “Everything should be made as simple as possible, but no simpler”. Ironically, it seems he didn’t say that at all, but something much less simple: “It can scarcely be denied that the supreme goal of all theory is to make the irreducible basic elements as simple and as few as possible without having to surrender the adequate representation of a single datum of experience.”)
Topics: Media ethics | No Comments »
Privacy and reputation
November 11, 2009
Two interesting developments in the tug-of-war between privacy and defamation.
The first comes in a UK injunction case. Justice Tugendhat granted an injunction to a celebrity of some sort (or at least, someone with “some public reputation”) restraining the publication of information about his encounters at his home with a prostitute some ten years ago. (It seems she essentially blackmailed him about it a couple of years later, and he paid her off to keep mum. Looks like she’s back for another round. Of money, that is.)
The injunction is an interim one. Justice Tugendhat is a the author of a leading text on privacy and confidentiality, and didn’t seem troubled by the apparent extension of the dicta in Theakston about transitory arrangements in brothels not really being the stuff of reasonable expectations of privacy. (To be fair, as he points out, Theakston didn’t involve an encounter at home, and there was no written agreement there).
What did trouble him, though, was that he might be permitting the plaintiff to make an end-run around the rules that make it very difficult to get an injunction in defamation cases. Some of the material might be defamatory, he said. And some of it might be true…
I am concerned as to whether the claim in this case is properly to be regarded as a claim to protect the applicant’s privacy, or whether it is a claim to protect his reputation.
I find this reasoning weird. Almost all privacy cases involve defamatory material – in the sense that people are likely to think less of the plaintiff if they hear about it. That’s usually why the plaintiff wants them left private. That means, too, that almost all privacy cases are about reputation. And that they’re usually about things that are true. But that doesn’t mean that they’re about defamation.
This case seems peculiarly not about defamation. According to Justice Tugendhat’s logic, pretty much every privacy case will fall under the rule in Bonnard v Perryman that injunctions won’t be granted in defamation cases if the defendant is going to plead truth.
I think there certainly are cases where a plaintiff is really trying to circumvent Bonnard and set the case up in privacy or confidentiality when in reality it’s a defamation case. But asking whether the case is “really about reputation” doesn’t distinguish between the two. I’m inclined to think that asking “is this really about the plaintiff trying to stop the publication of information that’s about his reputation and false?” is nearer the mark.
Justice Tugendhat decides that it looks like a genuine privacy case and grants the interim injunction, but leaves it open to debate at a later stage in the proceedings, which seems like a good outcome.
The case comes shortly after the European Court of Human Rights has really nailed its colours to the mast on whether privacy protects reputation. It does. That’s so, even though the provision in the European Convention on Human Rights is all about “respect for private and family life, home and correspondence”.
Now, I think it’s a bit of a stretch to have that cover a general right to reputation. Reputation is, after all, explicitly mentioned in Article 10, but not in Article 8, which deals with privacy. Here’s their logic, from paras 33 and 35:
…the Court reiterates that “private life” extends to aspects relating to personal identity, such as a person’s name or picture, and furthermore includes a person’s physical and psychological integrity; the guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings. There is therefore a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life”…
The Court considers that a person’s reputation, even if that person is criticised in the context of a public debate, forms part of his or her personal identity and psychological integrity and therefore also falls within the scope of his or her “private life”.
The Court went on to hold that the State has a positive obligation to protect reputation, including through the courts. It concluded that the applicant’s “privacy” rights had been violated by the courts when they did not uphold his defamation claim. (I won’t go into the facts, but will note that two judges dissented, arguing powerfully, I think, that the defamation claim was rightly rejected. Still, both judges accepted that the privacy clause protects reputation).
My overall impression is that this is not a privacy issue, and trying to shoehorn reputation into privacy this way seems wrong.
What does this mean for NZ law? Not much, I think. It may affect the development of UK law and trickle into our jurisprudence that way. But our Bill of Rights contains no express privacy clause.
Topics: Defamation, Injunctions, Internet issues, NZ Bill of Rights Act, Privacy tort | 1 Comment »
Upcoming seminar on the Internet and suppression issues
November 10, 2009
The Law Commission, InternetNZ and the Ministry of Justice are hosting a seminar on the Internet and the courts. It will be looking at issues such as:
• Undermining of suppression orders
• Lack of jurisdiction over material hosted outside NZ
• Online discussion of crimes and trials potentially being a contempt of court
• Jurors who “Google”
• How deleting a story doesn’t remove it from caches and syndication feeds
• How do media and Internet publishers find out what actually has been the subject of a suppression order?
• Online criminal offending databases, and the right to a fair trial
• Is education or incarceration needed for Internet publishers who commit contempt?
Event Details:
Date: Thursday, 3 December 2009
Time: 9:00am – 5:00pm, followed by drinks
(registrations open at 8.30am)
Venue: Te Papa Museum of New Zealand, Rangimarie Room
Speakers:
Hon Christopher Finlayson, Attorney-General
David Collins QC, Solicitor- General
Steven Price, Barrister & author of Media Minefield
Robert Lithgow QC
Brent Edwards, Media Committee, EPMU
Warren Young, Law Commission
Judge David Harvey
Sinead Bouchier, Group Online Editor, Fairfax
David Farrar, Editor, Kiwiblog
Frank March, President, Internet New Zealand
Ursula Cheer, Associate Professor, University of Canterbury
If you’re interested, contact:
Campbell Gardiner
InternetNZ
Email: campbell@internetnz.net.nz
Phone: 04 495 2332
Topics: Contempt of Court, Suppression orders | 49 Comments »
Libel games
November 10, 2009
London is known as the libel capital of the world. But I was chatting to Melbourne Law School professor Andrew Kenyon last week, and he said that there is a country whose defamation laws are even more plaintiff-friendly than England’s: Australia.
US-based internet game company Ebony [ooops, it’s Evony, as Russell points out in the comments – I got it right below] seems to be of the same view. It is suing a UK blogger for defamation for criticising it online. It is suing in Australia. Blogger Bruce Everiss has posted the nasty letter on his blog, as well as some prominent links to his criticisms.
How can this be? An Australian High Court decision called Gutnick (the first syllable rhymes with “foot” not “hut”) established that defamation occurs where a publication is downloaded and read, so the Aussie courts have jurisdiction. It doesn’t seem to be contested that the blog has some readers, and the game has some players, in Australia. (I can’t see why the UK courts wouldn’t also have jurisdiction. The same’s also true of the US, but no sensible plaintiff would choose to sue there). It may be that Evony has picked Aussie to make things more awkward for Everiss.
Gutnick provoked much angst and hand-wringing. Everything on the internet is subject to the defamation laws of every country on the planet! Trigger-happy plaintiffs across the globe will flock to the world’s most oppressive legal systems and sue there! This could shut down the internet!
At the time, I doubted this. Still do. For a range of fairly predictable reasons, the rash of lawsuits hasn’t eventuated. Still, libel tourism has always been a problem, and this case may illustrate the continued dangers. Interestingly, the courts in the UK are showing an increasing willingness to reject cases where the publication in the UK is very limited.
Another interesting feature of the case is that Evony is claiming worldwide damages: that is, damages for the harm caused all over the world by Everiss’s blog – not just the harm caused to his reputation among Australian readers. According to Aussie internet law expert Matt Collins, this is a first. The usual practice is for plaintiffs looking to take opportunistic advantage of a favourable jurisdiction is to restrict the claim to reputational damage within the jurisdiction itself. That could be big.
The ABC’s Law Report has a terrific programme on the issues, including interviews with Everiss, Collins, US academic Brian Murchison and Everiss’s Australian lawyer.
Topics: Defamation, Internet issues | 46 Comments »
Just as long as you’re not “impugning Parliament”…
November 6, 2009
Another part of Justice Dobson’s decision in Leigh (discussed below) revolves around the court’s anxiousness not to involve the courts in any impugning of Parliament. He rules that Ms Leigh can’t use Trevor Mallard’s attack on her in Parliament during Question Time to support her case.
There is good authority for this rule. One is the Bill of Rights 1688, which warns courts off calling into question anything that’s said in Parliament. Another is the principle of comity, a Gentlemen’s agreement between Parliament and the Courts not to muscle into each others’ territory. In defamation actions, then, the courts shouldn’t involve themselves in evaluating whether something said in the House is untrue or misleading or inspired by improper motives.
The point Ms Leigh wants to make is that the Briefing Paper (and the later oral briefing) were always likely to be drawn upon by the Minister in the House, and their very public and damaging republication in Parliament was thus a natural and probable consequence of the original (alleged) defamations – a republication for which the briefer should be held responsible, even though the Minister himself can’t be sued for what he said.
The judge said that this would inevitably invite the court to compare what the Minister said with what he was told. True. And if the Minister embellished what he was told, that comparison would inevitably involve critically analysing any defamatory meanings inherent in the Minister’s speech. I’m not sure the second part follows. You don’t have to characterise the embellishment as defamatory or otherwise, just separate it, ie identify which bits effectively repeat what he was told and which bits don’t. But perhaps it’s harder to separate meanings than I think. That may be another point on appeal, I guess.
Anyway, on to the amusing point. Here’s some of what the Minister said in Parliament:
Erin Leigh had repeated competence issues. She had to fix up the piece of work that she was employed to do six times after complaints from senior officials from a number of departments. As a result of that, someone had to come in and fix up that mess. Clare Curren was employed to do that…
Ministers have the right to insist on competent advice. That has been established for a long period of time. When something comes to them six times and is criticised by officials not only from the Ministry for the Environment but from other Government departments, I think that any reasonable chief executive would look for someone who could do the work. When there is someone available to try and fix up the mess who did climate change strategic work for the Australian Liberal Government, I can understand why the Ministry employed her…
[Erin Leigh], who is a sad person, who had six attempts at doing a piece of work, and who was replaced on that job…
It seems the Minister purported to understand the Briefing Paper in the way that the judge said it wasn’t capable of being interpreted. Perhaps the later oral briefing added some more juice to the allegations.
More amusingly: the judge can be read as being pretty scathing about the Minister’s comments. They “may be considered critical and demeaning of Ms Leigh”. The words in the Briefing Paper “do not provide a foundation” for the comments about competence; “nor does it warrant the comment” that Clare Curren had to fix up botched work.
Now, bear in mind that it’s possible that the oral briefing provided better foundation for the comments. And bear in mind that the judge is simply trying to explain why allowing Ms Leigh to use the republication in the House would force the court to evaluate any defamatory meanings in the Minister’s words. And bear in mind that it does seem likely that the Minister stretched what he’d been told to squeeze out maximum political benefit.
But, you know, the difference between this judgment, and another one that may impugn the Minister’s words, rather eludes me.
Topics: Defamation, Parliamentary privilege | 50 Comments »
Are too
November 4, 2009
Remember Erin Leigh? She was working on contract on a climate change communications strategy for the Ministry for the Environment when Clare Curren, another communications adviser, was appointed to oversee her work. Ms Leigh left. A political shitstorm blew up the following year. Was Ms Curren’s appointment politically motivated? Was it really about ideological disagreements with Ms Leigh?
The Minister (at that time, Trevor Mallard) called for a briefing paper from the Ministry about the circumstances of her departure. The briefing paper was fairly circumspect. It recounted the circumstances in a factual and dry manner. It noted that her work had been through “a series of six drafts in late April to early May 2006” and said:
Around about mid May 2006, the work Erin did apparently received consistent adverse comment from government departments, from senior officials and also from the Minister responsible for climate change (Hon David Parker). Clare Current was employed from 22 May 2006.
Erin Leigh has sued over these comments, alleging that they are defamatory.
Justice Robert Dobson has held that they were not. More precisely, he has held that they are not capable of bearing a defamatory meaning.
How did he reach this conclusion? It is, after all, an elementary principle of defamation law that you are liable if you pass on someone else’s criticism, even if you didn’t make it yourself. The judge didn’t disagree with that. But in the context of the circumstances in which Ms Leigh quit, he said, “the more natural inference is that her approach to the content was at odds with those others who commented adversely on it.” In other words, anyone would assume that the differences were ideological and wouldn’t think less of her.
Really? But doesn’t it at least suggest that she was unable to temper her own views so that her work – communications, after all – reflected the views of those of the senior officials who had employed her, and the other government departments, and the Minister? No, said the judge. She’s been rehired several times, and only left because of the “vote of no confidence implicit in another person being imposed to oversee the wording of her work”.
Um. Doesn’t that really make things worse? Can it really be said that no properly instructed juror could find that ordinary reasonable people would think less of Ms Leigh after reading this?
What about those six drafts? No-one could think the less of her for that, says the judge. Jury members with experience in a diverse array of situations might easily be satisfied “that anything from the wording of an advertising jingle to a politician’s speech, a commercial contract or a clergyman’s sermon might undergo six or more drafts without rendering the draftsperson unfit for that particular task.”
I’m not at all sure about that. And I’m even less sure about that when you put it together with the allegations of widespread criticism in the briefing paper.
The judge draws heavily on likely understanding of those who saw that paper against the background of the clash of principles that was being widely reported. In that context, he says, people wouldn’t immediately think less of her from the paper.
I can see where he’s coming from. And I’d like to think that judges and most lawyers wouldn’t draw adverse inferences against that background. But it’s a far cry from that to saying that those words are not capable of being construed by a juror as giving rise to a defamatory inference. I think this should have been left to the jury to make up its own mind.
I understand the ruling is going to the Court of Appeal. I’d expect it to be successful on that point. Which doesn’t mean Ms Leigh will win the case. Quite apart from what view a jury will take of the language in the briefing paper (and in a later oral briefing, which is also part of the defamation claim), it strikes me that there is a very strong case that a qualified privilege (if not absolute privilege) defence is available.
I should note that there are other issues in the decision that I haven’t addressed here. For one thing, he strikes out the parallel claim in negligence, and I rather suspect that aspect of the decision will survive appeal.
Topics: Defamation | 4 Comments »
Free speech by the numbers
November 4, 2009
In case you were wondering what the First Amendment was all about, US Court of Appeals judge and law and economics whizz Richard Posner has the answer: Ax – Bx = -(pH / (1 + d)n + O)x where the xs are subscripts denoting derivatives and relate to potential strictness of regulation; the n is a superscript/power; A is cost of regulation; B is the benefits of speech; pH is the probability of harm (the denominator is a discount for futurity); O is offensiveness.
More specifically, this is the optimum level of speech regulation. And you thought this free speech stuff was hard.
I read about this in the excellent collection of essays in Eternally Vigilant: Free Speech in the Modern Era (2002, University of Chicago Press) but he also eleborates on it in his seminal text Economic Analysis of Law.
Of course, this is really just a cost-benefit equation. My dirty secret: I have an undergraduate degree in economics. So I’m intrigued by the interface between law and economics, which I think brings a useful rigour to legal policy analysis and sometimes yields interesting insights. I’m also faintly appalled by the simplistic and mechanistic nature of some law-and-economists’ thinking, and often feel that their reasoning and assumptions (particularly about our response to incentives) seem far distant from the world I inhabit.
Read up on it if you like. A few interesting points, though. Posner is inclined to take offensiveness out of the equation altogether as a justification for regulating speech (that is, adding to its harms) because it is often the byproduct of speech that challenges important values and beliefs, and can pave the way for new ways of thinking. He argues that some types of regulation can sometimes actually promote speech. He accepts that it’s so difficult to quantify the costs and (in particular) the benefits of speech, so it’s hard to make his formula work.
I’m with him so far.
He also rejects political speech as a special category deserving of greater protection. He’d tolerate hate speech (“It is after all only a dogma, and recent dogma, that the races, sexes and so forth, are equal; and to punish people for challenging it seems as objectionable as punishing people for advocating communisim or laissez-faire.”) He accepts the that there are arguments in favour of campaign finance regulation, but thinks them overstated and outweighed by the disadvantages of regulation.
Not so sure about any of that.
Interestingly, Posner is no “marketplace of ideas” idealogue, and goes into some detail about the imperfections of the analogy. But in the end:
While markets in ideas do not come very close to the economist’s ideal of perfect competition, it is difficult to see how regulation can bring them any closer except in a few areas where objectivity in a strong sense can be achieved by agencies or courts [he thinks defamation comes in here] or where unregulated speech creates calamitous dangers. And looking back over the whole course of history we realize that the marketplace of ideas has been responsible for much of what we think of as civilization. The value of competition in ideas, coupled with the costs (including error costs) of effective regulation, provides some grounding for a legal approach that deems the benefits of free speech to be great, and thus requires proof of great cost… to justify restricting speech.
That’s pretty much where I come down too.
Topics: Electoral speech, Free speech theory | 50 Comments »
Bad English
October 29, 2009
Let me get this straight: TVNZ7 scripted this ad? What were they thinking?
I must say, my first response was the same as Graeme Edgeler’s: this might be an “election programme” under the Broadcasting Act. It’s an offence to broadcast a promo that “advocates support for a candidate or for a political party”. Interestingly, the other types of message that are outlawed mostly specifically relate to elections, but this one doesn’t. There’s an argument that a Bill-of-Rights-consistent reading would limit this to election-time ads. There’s another argument that this is simply promoting TVNZ7. There’s another argument that English is discussing policy not seeking support for National. But these all strike me as a stretch. If this became standard fare, no-one could seriously suggest that the law wasn’t being thoroughly subverted.
To me, the first 30 seconds of this promo are indistinguishable from a political ad: scripted, flattering, underscored by music, direct-to-camera delivery, full of spin. Under s70 of the Broadcasting Act, it’s an offence to permit such broadcasts (and, under normal crimimal law, to be a party to such an offence by encouraging and facilitating it… might this include Bill English?).
Interestingly, such ads aren’t required to show balance. So it might be an offence, but you couldn’t complain that it breached broadcasting standards.
On the other hand, if it doesn’t fall under the definition of an election programme, a broadcasting standards complaint would be problematic. What do you complain about? Lack of fairness to the other parties? They’re not mentioned or referred to, so the fairness standard doesn’t apply. Balance? That merely requires the broadcast of a range of viewpoints on controversial in the period of current interest. Impartiality? Possible, but the only mention of impartiality in the current TV code comes under the accuracy standard, and only applies to news programmes.
Quite apart from the legal side, this ad (and TVNZ’s unconvincing excuses) seem to me to display remarkably bad judgment.
And quite apart from that, how exactly does it demystify the financial crisis to learn that “we can beat the Aussies… it’s time to back ourselves and apply some old-fashioned kiwi can-do… Together us kiwis can do it”?
I’m more mystified than ever.
Besides, how it is Bill English’s “plain English” if it was scripted for him? And is “plain English” really plain if it’s ungrammatical?
Topics: Broadcasting Standards Authority, Media ethics | 46 Comments »
House of Lords supports dumping criminal libel
October 27, 2009
And about time. We’ve already got rid of it. Mind you, the Aussie state of Victoria, where I am right now, still recognises criminal libel – which includes defamation of dead people and defamation where’s there’s no publication to anyone but the person defamed – and the defences (except truth) aren’t clear. Who knew?
Looks like the UK will axe sedition, too. Also long overdue. And also something we’ve already done.
Topics: Defamation, Journalism and criminal law | No Comments »
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