Irish Supreme Court protects source confidentiality
August 20, 2009
The Irish Supreme Court has allowed two journalists to refuse to answer questions that would have made them disclose their sources. Trinity College senior lecturer and blogger Dr Eion O’Dell welcomes the decision, but thinks it falls short of recognising a full-blown journalists’ privilege.
Topics: Confidential sources, General | No Comments »
Let Us Stray (from the facts)
August 19, 2009
Sigh. Let Us Spray producer Keith Slater has given an interview on MediaWatch, defending the documentary Let Us Spray after the BSA upheld complaints against it.
Well, that’s his right. And plainly, he still thinks the documentary was right. But he’s still making statements that strike me as just as misleading as the programme was. (Disclosure, again: I acted for the Ministry in this complaint, though the views here are mine).
For instance, he says that the Leonard report demonstrated that ESR’s serum study (a blood test to determine dioxin levels) was seriously flawed. Leonard wasn’t too sure himself, but suggested that his findings be reviewed by a biostatistician. They have been, and they’ve been found essentially wrong. An expert recommended by the WHO also looked at Leonard’s criticisms of the study (and was given the data the serum study was based on) also concluded that the study was fine. Those reviews are on the Ministry’s website, as is trenchant rebuttal from the study’s author, Dr Jeff Fowles. Oh, and you’ll also find the three expert peer reviews of the original serum study. (TV3 will tell you that those reviewers were not given “Appendix O”, a fact which formed the “gotcha” moment in TV3’s interview with the Ministry’s spokesperson, who didn’t know what information the peer reviewers had been given. Appendix O was a compilation of the raw data from the serum study – raw data that the ESR team had been working from. True, Appendix O got contained misaligned data. That was a result of a computer glitch when the information was transferred. But there was no conspiracy to keep this information from the reviewers. Peer reviewers aren’t given data like this. They don’t want it. They don’t expect it. Their job is to review the methodology, not check the adding. The Ministry asked TV3 to name any other study in the world in which peer reviewers were given the data to check, and they didn’t respond. Anyway, if they had been given Appendix O, what would have happened? The reviewers might have raised a question about the figures in it. ESR would have realised the mistake, provided the accurate data, and assured the peer reviewers that their calculations had been based on the raw data, not the mangled table.)
Mistake number two: Keith confidently asserted that dioxin exposure is clearly scientifically related to neural tube defects. Maybe Keith was one of the mysterious scientific experts consulted by TV3 for the programme. The Ministry kept asking, but TV3 never named the experts it had talked to in the making of the documentary. One might have hoped that anyone truly independent would have referred TV3 to the Institute of Medicine’s reports on the lastest scientific evidence on the links between dioxin and various health conditions. Birth defects? They’re in the category of “Inadequate or insufficient evidence to determine association” (except spina bifida). Hmmm. So who do you trust? TV3 or the panel of expert scientists convened every two years to examine the latest research data? But didn’t much of the emotional clout of the documentary hinge on those shocking images of babies with birth defects, you say? Well, exactly.
Finally, Keith tells us that the Ministry and ESR changed their position on the serum study after the documentary. TV3 suggests that this is an acknowledgement of a screw-up and an admission that the exposure was much higher than the study said. Wrong. TV3 has got the wrong end of the stick from some further calculations performed by Dr Fowles some time after the study was released. He drew on newly published research about how dioxin is processed in the body and was able to perform some new calculations using the data from the serum study. The serum study itself aimed to measure dioxin exposure among residents. It also tried to identify the peak exposure period, but could not do so with confidence. Dr Fowles’ new calculations allowed him to estimate peak exposures in the late 1960s and 1974. It is important to understand – as TV3, ostrich-like, refuses to do – what these new calculations are not about. They are not inconsistent with the study, which did not identify a peak exposure period. They do not change the findings on the level of exposure of the residents. They do not affect the findings on the health risk to residents. (Note that the study did in fact estimate a 10% increased risk of death by cancer – something that the documentary, in its anxiousness to portray officials as wilfully blind to the risks, did not explain to viewers).
In short, the new calculations do not affect the validity of the study at all. TV3 have been repeatedly told this. They have never given any indication that they have taken it on board, constantly portraying it as a u-turn by the officials. This must be terribly frustrating for Dr Fowles, who is being treated as if he has criticised the study that he led, when all he was trying to do was gain some more refined information.
Why is TV3 being so intransigent? Don’t know. I can only guess that they are so convinced about the evilness of the Ministry and ESR that they simply don’t believe any explanation they’re given. I suspect they’re in the thrall of the advocates for the residents. I doubt they really understand the science involved. In addition, it is hard not to be sympathetic when confronted by the awful medical conditions of some of the residents, and it’s easy in this age to be suspicious of the effects of a nearby dioxin factory. Then there’s the temptation to go for the jugular and produce a compelling doco, rather than muddy the waters with inconvenient complexities. Worked for the Qantas judges. Didn’t serve the public so well, I think.
In any event, one can instructively contrast TV3’s incredible prickliness when their professionalism is challenged with their readiness to suggest that a range of officials have acted incompetently and corruptly, callously standing by while Paritutu residents die.
Topics: Broadcasting Standards Authority | 47 Comments »
Sad news
August 14, 2009
Auckland University law professor Mike Taggart has died. He was a colossus in the public law field, and a really nice guy to boot. His death wasn’t unexpected, but it’s no less tragic for that.
Topics: General | 50 Comments »
Monkeying around
August 13, 2009
Sean Plunkett was on top form this morning. After interviewing the park manager with the vaguely familiar name who’s hoping people will contact him if they spot Minty the runnaway monkey, he wrapped up with:
Thank you very much. That was Willowbank park manager Jeremy Maguire, who says: “Show me the monkey”.
Well done, that man.
Topics: General | No Comments »
Sparking debate
August 10, 2009
I’ll be in the Court of Appeal with Tony Shaw tomorrow trying to make the world safe for flag-burners. Specifically: Valerie Morse, who lit a flag over the road from the Anzac Day dawn service at Wellington’s Cenotaph in 2007 to protest our militaristic foreign policy. She’s been convicted of offensive behaviour. Is this a demonstrably justified restriction of her free speech rights under the Bill of Rights? We’ll find out. Should be an interesting day’s argument.
Update: argument is over. It’s fair to say that the judges did not seem particularly sympathetic to the flag-burners at ANZAC day services, but at the end were toying with the idea that a criminal conviction may be disproportionate, as opposed to simply moving such protesters along, or merely arresting them for a short while, or warning them to stop and prosecuting them for obstruction if they persisted.
We now await the decision. Watch this space.
Topics: NZ Bill of Rights Act, Protest speech | 56 Comments »
BSA upholds complaint against Qantas-award-winning doco
August 10, 2009
The Broadcasting Standards Authority has concluded that Let Us Spray, TV3’s “year-long investigation” into the effects of dioxin on the residents of Paritutu, was seriously unbalanced and unfair. It has also found that two associated TV3 news stories were unfair, unbalanced and inaccurate.
The complainants were the Ministry of Health, which was accused of covering up and ignoring the plight of the residents who lived close to the Ivon Watkins Dow factory, and Crown Research Institute ESR, which conducted the serum study measuring residents’ dioxin exposure that Let Us Spray said was badly botched.
The BSA concluded that the programme was dreadfully unfair to both, and ordered it to broadcast statements explaining why.
The documentary won a Qantas award in 2007 for television investigation of the year, even though ESR’s lawyer Matt McClelland sent the Qantas judges a copy of ESR’s complaint. (Disclosure: I acted for the Ministry of Health, so you may detect some bias in this post. These are my views not the Ministry’s).
Argument has been going for several years, and these decisions are probably among the half-dozen most significant in the BSA’s 20-year history.
The guts of the decisions against Let Us Spray:
1. TV3 presented a parade of sick residents who blamed their conditions on dioxin exposure. But it left out crucial information about the current state of scientific knowledge about the effects of dioxin. The gold standard of research in dioxin effects is the Institute of Medicine’s expert and independent bi-annual reviews of the research. But none of the residents’ conditions featured on Let Us Spray fall into the IOM’s “sufficient evidence of association [with dioxin]” category. Three of the conditions featured on the programme were in the category of illnesses for which the research suggests no association with dioxin. Most of the other conditions come under the category of “inadequate or insufficient evidence to determine association”. Not only did TV3 not mention this itself, it edited its interview with the Ministry’s spokesman so that his references to current scientific understanding weren’t broadcast. The BSA said TV3 should have done more to convey this information to viewers.
2. TV3 commissioned a forensic accountant, John Leonard, to review the serum study. It used his findings to attack the study, alleging it was fundamentally flawed and downplayed the residents’ level of exposure. But it didn’t give the Ministry a copy. And it didn’t approach ESR – who conducted the study, remember – for their comments. When the Ministry and ESR were finally given a copy of his report, they were able to thoroughly debunk it. (The independent reviews of the Leonard report, including one by a WHO expert from the United States, are here. They acknowledge that Mr Leonard picked up a couple of minor glitches, but find that they are inconsequential. One reviewer suggests that Mr Leonard plainly didn’t have the expertise to review the study – and in fact, it’s clear from Let Us Spray that he’s a bit diffident about this himself.) The BSA said that TV3 should have given the Ministry and TV3 a copy of the Leonard report and sought their comments before broadcasting the documentary. It also damningly notes that TV3 has never broadcast this rebuttal in the two years since the broadcast.
What lessons can we draw?
First, that the Qantas media awards are seriously flawed. They do no quality checking at all, even when concerns are raised about nominees. If they’re supposed to be honouring excellence in journalism, that’s a big problem. They should be deeply embarrassed by this.
Second, the BSA was right in this case to order TV3 to hand over a copy of the field tape of its interview with Dr Jacob. TV3 fought this hard (which was a good part of the reason for the delay in this case). But the courts Court of Appeal has said that it’s impossible to gauge fairness and balance in situations like this without knowing what was edited out. TV3 is right to say that handing over field tapes can raise source-confidentiality concerns sometimes. But there were no such concerns here. I’ve said it before, but I think the BSA is legally required to be making orders like this more often than they do.
Third, broadcasters can’t get away with making serious accusations by dressing them up as someone else’s “personal beliefs” which then don’t require balance, or don’t require much balance. Particularly when they are implicitly buying into those beliefs.
Fourth, the BSA will continue to do whatever it possibly can to duck difficult scientific questions. I have some sympathy for it here. The scientific issues about dioxin are complicated, if not intractable. The BSA doesn’t have the expertise to tackle them (though it refused to use its powers to co-opt an expert when we invited it to). It would be a resource-heavy process. But still, the BSA found, for example, that the programme suggested that the serum study was seriously scientifically flawed. That’s an assertion that’s capable of being proved one way or another on the evidence. The complainants are really entitled to its decision on that, rather than have the BSA subsume it under fairness and balance.
Fifth, we’ll no doubt get some more whining from TV3 about how this sort of complaints process makes in-depth investigative journalism impossible. We should take this with a grain of salt. The two major flaws identified above are fundamental journalistic errors: any journalist should be embarrassed by them. TV3 failed to provide a copy of its expert report to those it was criticising, and it failed to report crucially relevant scientific evidence. If TV3 complains about the size of the complaint, it could be gently reminded that the Ministry’s original complaint was 10 pages long, and its original supporting submissions to the BSA were 22 pages long. (There were half a dozen attachments, the longest of which was a transcript of the programme). TV3’s response was 127 pages long and attached two chunky volumes of annexures, much of which the Ministry (and the BSA) considered irrelevant. If TV3 frets about the delays, it might be pointed out that they are almost all of its own making, as the BSA points out in an appendix to its decision. If TV3 bemoans the unfairness of having lawyers involved, it might reflect on the fact that in 95% of broadcasting complaints, an unrepresented complainant is up against the legal acumen and experience of TV3’s very able and knowledgeable legal experts… but that particular unlevel playing field doesn’t seem to concern TV3.
Finally, I’d say this is more grist for a couple of my perennial complaints: journalists who leave out important material because it will make their story less sexy; and media organisations that fail to broadcast some balancing material after they’ve been caught out – which would have minimised the damaging fall-out from an original failure to provide balance, maximised their ability to argue that the balance standard wasn’t breached because balancing material was supplied within the “period of current interest”, and incidendentally, performed a service to viewers by giving them further information with which to make up their minds about the story. (Except that, I suppose, this might have hurt TV3’s chances of getting a Qantas award for it…)
Topics: Broadcasting Standards Authority | 19,329 Comments »
MPs expenses: some thoughts
July 31, 2009
It’s good, but it’s not enough. Why can’t we have more details about the travel and accommodation? And how much are they each spending on mail-outs?
One thing I find striking: if New Zealand was prepared to invest half as much on funding to political parties’ campaigns once every three years as we currently spend on our MPs’ travel and accommodation every six months, we could essentially solve the problem of money in politics in NZ.
Back to the disclosure issue, I still think the sensible thing is to subject Parliament to the Official Information Act, as Britain has done. The OIA already contains protection for matters of privacy, confidentiality and contempt of Parliament. It may be that an extra withholding ground might be required, but the general rule should be the same as for the rest of government: we’re entitled to see it all unless there’s some good reason to withhold any particular bit. We should be expecting of our MPs the same sort of disclosure of their uses of public money that we expect from anyone else in the civil service.
Some of the MPs have rather tossed their toys. They’re sullen about fronting up and accounting for the amount of money they’re spending. I don’t think they should be. I like to think we’re happy to listen to reasonable answers. I think it’s a bit insulting when they won’t return reporters calls asking questions about them.
The media, it seems to me, have done a fairly good job of reporting the explanations for some of the higher figures. For example, of course Hone Harawira has a lot more territory to cover than most other MPs. On the other hand, the media coverage has gone for the easy hits: who’s spent the most? Those who have the biggest bills seem to have fairly reasonable explanations for them. The really interesting question is: who’s got the least justification for the amount they’re spending? Admittedly, this angle is made harder by the lack of detail in the figures supplied. But the figures give us a starting point to begin asking questions.
On that point, I can’t say I’m surprised that MPs themselves seem to have agreed not to bash each other over the head with accusations about expenses. They’re politicians. What I found annoying was the suggestion in some parts of the media that this was somehow evil. Note to media: it’s your job – not the politicians’ – to work out what these figures mean. What does it say that your immediate reaction is to turn to politicians to provide the critical evaluation of them?
Hopefully these releases will provide some impetus for further openness in the future. After all, the sky hasn’t fallen. We’ve learnt something about what it costs to run a democracy. It’s probably raised some eyebrows. (It costs $79,000 to run a Ministerial car every six months?!) It’s provided some reassurance that no-one’s grossly out of line. It’s made us wonder about whether all that money has been legitimately used for Parliamentary purposes. It may even act as a discipline for some of the less justifiable expenses. It’s made us think again about whether it’s really sensible to give our former MPs such generous free-travel packages.
Isn’t this good for democracy?
Topics: Official Information Act | 51 Comments »
Clayton’s defence
July 31, 2009
Provocation. The defence you use when you’re not really putting on a defence.
The end of the Weatherston trial is a relief to Sophie Elliott’s family, the nation… and (for much less serious reasons) to me personally. Over the past few weeks I’ve received a string of calls from reporters wanting me to comment on the possibility that bloggers and facebook sites might be held in contempt of court for calling Clayton Weatherston a murderer (and worse) while the trial was going on.
Many of them were pursuing the angle that journalists always pursue in stories like these: has technology galloped past the law?
Here’s a summary of what I must have told reporters twenty times. I would have blogged it earlier, but I was afraid of getting more calls:
1. Contempt of court requires proof of a real risk of prejudice to a fair trial.
2. What’s a real risk? That depends on lots of things. But the possibility of prejudice to trial is particularly high during a criminal jury trial, when jurors are warned to focus only on the evidence provided in court and there is a danger that they will be influenced by outside material. It will be a serious contempt, for example, for a nationwide TV station to broadcast information about a defendant’s previous similar convictions that have been kept back from the jury.
3. It’s possible that expressing the opinion that someone’s guilty will also be a contempt, particularly if jurors are called upon to bring in such a verdict, and more particularly if it’s suggested that this is what the public wants. There is evidence that jurors want their decisions to be consistent with what they perceive are community expectations.
4. What if it’s just put out there on a blog or social networking site? Will this create a real risk of prejudice? That might depend on how popular the site is. If it’s read by few people, it may be very unlikely to be seen by jurors, and therefore not likely to create a real risk of prejudice. The chances of a real risk rise, though, for sites that are widely read or come up in the first couple of pages of a Google search of the defendant’s name.
5. This is because it is now unrealistic to expect jurors not to Google. The debate among judges tends to be: “do we warn them not to look at information outside the court, or do we explicitly warn them not to Google?” The worry is that telling them not to Google might put it into their heads to do just that. What’s out there that we’re not being told, they might wonder. I think the ship has sailed on that debate. We must start to assume that at least one of those jurors is going to Google, because it’s becoming so instinctive.
6. Should we make it a criminal offence for jurors to conduct an internet search. That’s what they do in Australia. This might protect defendants from jurors who might be exposed to prejudicial material online. But I’m inclined to think it will be counter-productive. Jurors will still peek; they just won’t admit it.
7. What else can we do? Sequester juries? I don’t think so. It’s expensive and very restrictive. It’s rarely done here.
8. I think some official should be tasked with sitting down before each trial (and periodically during it) and Googling the defendant’s name. If there’s prejudicial material out there, steps should be quickly taken to have it temporarily taken down. That may involve developing protocols with the media to ensure that any prejudicial information in their archives aren’t accessible. It may also involve providing greater powers to the Solicitor-General to direct the removal of prejudicial material.
9. What if it’s up on an overseas site, beyond our power to control? I suspect this won’t happen very often. There aren’t very many people overseas who take much of an interest in NZ cases. Those who do might be persuaded by a request to remove material that might otherwise lead to a mistrial. If they can’t be persuaded, I’m inclined to think that judges ought to talk to juries about it, instead of simply hoping they won’t see it. Talk to them about what they’re going to see if they Google and why they should ignore it. Defence lawyers could be invited to make submissions about what to tell them.
10. The government is working on these issues (for instance, the Law Commission addressed some of them in a recent report), but it’s not happening very quickly.
11. Bloggers who may want to resist any attempt to control their speech might reflect on this possibility: if it can be shown that they have published some inaccurate, or suppressed, or prejudicial material, and it has improperly influenced a jury, this may give defence lawyers grounds to argue on appeal for a conviction to be overturned. Imagine if Weatherston’s lawyers got his conviction overturned because of prejudicial publicity. It’s that prospect that should make bloggers save their comments until after the trial, as much as any fear of a contempt action against them.
Topics: Contempt of Court, Internet issues | 69 Comments »
Secret judgment lifts lid on other secret judgment
July 31, 2009
You might have missed it, but last week news emerged that Kirstin Dunne-Powell has obtained an injunction against Tony Veitch to prevent him publicly disclosing private and confidential material about her.
Apparently she filed for the injunction shortly after Veitch pleaded guilty, back in April. That evening, Veitch had told Close Up that he “did some investigating” when he was preparing to defend the charges and “I went and I dug and I went through records and I went through disclosure and you know what… I had a good time and I found stuff.”
What that stuff is, and whether it’s even the stuff that Dunne-Powell is trying to keep under wraps, I don’t know.
She applied for an interim injunction ex parte (ie without giving notice to the defendants) on the basis of infringement of privacy and breach of confidence, and it was granted.
Why didn’t we know about this earlier? Because Justice Lang’s order required even the existence of the proceeding to be kept secret.
I think this is extraordinary. I’m not aware of any other specific case where this has ever happened, except A v Hunt in the High Court, where such an order was made by consent. I’d be very interested to know if anyone else knows of this happening in other cases, particularly in the civil arena. When I asked the Ministry of Justice for statistics on orders like this, the information provided suggested that either this doesn’t happen much – or else that records of it aren’t kept.
Anyway, Fairfax went into battle and got Justice Potter to lift the order suppressing publication of the existence of the lawsuit . I’d like to talk about the Justice Potter’s reasoning, but… you guessed it, the contents of the rest of that decision are suppressed too. Goodness knows why. There’s nothing in it that reveals what the private and confidential material might be. It’s absurd that I can’t publicly discuss the legal reasoning behind the decision to lift the suppression order.
Topics: Breach of confidence, Injunctions, Privacy tort | No Comments »
Minister in breach of privacy laws?
July 28, 2009
Did Paula Bennett’s release of her critics’ benefit details breach privacy laws? My VUW law school colleague Dr Nicole Moreham thinks it might have.
UPDATE: Paula Bennett was squirming under Mary Wilson’s skewer on Checkpoint last night, simultaneously trying to insist that she had done the right thing in “getting the facts out there” and also that she sympathised with the beneficiaries wouldn’t make a habit of releasing information like this.
Charles Chauvel said on Morning Report this morning that the information released may not have been complete, and may have overstated what the beneficiaries were being paid, which would provide another ground of complaint. (Under Information Privacy Principle 8, information should be checked for accuracy and completeness before use where appropriate. The other issues seem to revolve around potential breaches of IPPs 10 and 11, the use and disclosure of information for a purpose other than that for which it was collected).
Chauvel managed to dodge a fairly chummy question from Sean about whether the usual method was to leak this sort of information to journalists. Colin Espiner reported yesterday that Labour used to do this often. If so, I have to say, that is just as much a breach of the Privacy Act (and potential infringement of the tort) as doing it openly as Paula Bennett did.
Privacy expert John Edwards was also on Morning Report and made a couple of interesting comments. First, he thought that the Privacy Act provisions may be wide enough to permit the Minister’s release, though he didn’t go into detail. He added that it was a separate question whether we might think it was the right thing for her to do. He also wondered just exactly how releasing this personal information really did add to the debate (which, after all, was about the decision to axe tertiary study assistance allowance).
David Farrar makes the case that the information released by the Minister was relevant to the debate. He also argues that the beneficiaries had “opened the door” by themselves putting large amounts of personal information into the public domain. (One legal consequence of this may be that any harm they might suffer from the Minister’s release adds little to the privacy loss they’ve voluntarily surrendered. A complaint under the Privacy Act requires the complainant to show a breach of the Privacy Principles and something else – a degree of particular harm arising from that breach. This seems to be the point made by government about the Privacy Commissioner’s guidelines that support the release. But David seems mostly to be making a sauce-for-the-goose-is-sauce-for-the-gander argument, which isn’t really about minimal-extra-harm. Sauce-for-the-goose isn’t a reason under the Act for releasing private information, though at a big stretch it may support an argument that the beneficiaries impliedly authorised the release of extra details.)
Topics: Privacy Act, Privacy tort | 2 Comments »
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