Law Commission goes all social networky
June 22, 2009
And you thought they were geeks. Bzzzzt. The Law Commission has launched an interactive website called “TalkLaw” for us to have our say on law reform issues. (I did a couple of holiday stints at the Law Commission in the early 90s, and they were throwing around a similar idea then – but it was a newsletter rather than a website. I wanted it to be called “ReForum”, but nobody else liked the idea. It’s still available, Commissioners!)
The site optimistically lists “What is the Law Commission?” as a Frequently Asked Question. They wish.
The essence of the site is its forums on legal issues. It’s an easy way to make submissions on the projects the Commission is working on. At the moment, they’re looking for feedback on privacy issues. They’ve sensibly carved up some of the key questions to make it easier to provide a response, and equally sensibly cast some in the form of fact scenarios, so you don’t have to provide waffly answers to abstract questions. For instance:
Scenario: Ari and Beth* were in a relationship, and Ari took intimate photographs of Beth with her consent. After the relationship breaks up, Ari posts these photos on the internet without Beth’s consent.
It may be possible for Beth to go to court and sue Ari for damages, or seek an injunction, in situations like this. However, there are currently no criminal provisions that would prohibit Ari’s publishing the photos simply because of their private nature and the effect of publication on Beth.
Should it be a criminal offence to publish deeply private information about someone without their consent?
Are there any types of invasions of privacy that are so serious they should be criminal offences?
Contribute your answer here.
Topics: General, Privacy Act, Privacy tort | No Comments »
Bain – and antidote?
June 12, 2009
Calling evidence experts… Can anyone tell me why the Courts couldn’t have let the jury see half of the “paper run alibi” evidence? Why couldn’t jurors be told that David Bain was speculating about committing a crime, but it wasn’t murder, and it didn’t involve his family… and then let them hear and assess in full the evidence about how he said he would have jiggered his paper run to cover it up? (And of course, any evidence for Bain saying that such conversation(s) never took place).
Doesn’t that take out much of the prejucial effect of this evidence (which is reportedly why it was ruled inadmissible) but preserve its probative value (which strikes me as fairly strong)?
I confess I haven’t been able to find an unredacted version of the Court of Appeal’s decision on this point. Did they really say that the paper run alibi didn’t form an important part of the Crown’s case?
Topics: General | 59 Comments »
TV3 broadcasts “I shot the prick” tape extract
June 12, 2009
Here.
Was it legal? As I understand it, there’s still an application before the High Court for access to the deleted part of the tape from the Court file. It might be happening right now. But I’m not aware of any decision granting access yet.
TV3 told us that “the Supreme Court said the material could be made public”. I think that’s wrong. The Supreme Court said the reasons for its decision – including reference to the contents of the tape – could be made public. Not the tape itself.
It looks like TV3 jumped the gun. Was the broadcast unlawful?
I don’t think so. I’m guessing TV3 had the tape from the 1994 trial, where it was played in full. (Or perhaps they got it from the police – maybe from an Official Information Act request). They didn’t need to get access to the court file. As far as I know, the tape itself, or its contents, were not suppressed. The file had not been sealed. TV3 wasn’t doing an end run around a court order. The alleged content of the tape was now public. I think TV3 was entitled to broadcast it.
In A v Hunt, the Court of Appeal made it clear that it’s not a contempt (by itself) to use information you hold, just because it also happens to be on a court file.
There’s just one nagging question mark. There is a suggestion in the Rogers case by Justice McGrath that in some circumstances it may be an abuse of court process for a party to undermine the court’s ability to protect its processes (including its record) and thereby prejudice the administration of justice. (There, the police had – improperly, said McGrath J – leaked to TVNZ a copy of a video confession that was later ruled inadmissible).
If TV3 got the tape from the 1994 trial, it’s hard to see that those comments apply to TV3’s actions here. If it got it from one of the parties, it’s still hard to see that there’s a risk to the administration of justice. Besides, it’s not clear that McGrath J is saying any more than the courts may have a jurisdiction to restrain such a publication after they had asserted control over it – as opposed to punishing the recipient of the evidence for publishing it where there had been no such assertion of control or even an application triggering this jurisdiction, and no unlawful release of the information to the media. Nor does the point seem to have been fully argued. And none of the other judges adopted his analysis. Finally, Bain isn’t a case where the evidence has been obtained in breach of someone’s rights, as Rogers was.
So I think TV3’s in the clear. Good on them for broadcasting it.
Topics: Court records, Name suppression, NZ Bill of Rights Act | 53 Comments »
Sensational newsbreak: Bain worships devil, shills Coke
June 11, 2009
I’m told that if you listen to the Bain tape backward, you can distinctly hear him saying “Oh here’s to my sweet Satan”.
Also, if you speed up one passage, you’ll catch him saying: “Drink Coca Cola. Coke adds life”.
[If you’re interested in our aural suggestibility, check out this fascinating site. You can listen to the famous backwards version of Stairway to Heaven – and note that it sounds mostly like gibberish. You can catch the odd “Satan” reference, but it seems pretty much random. Then listen again with the suggested lyrics in front of you. Blow me down, you can hear them right there. The site’s creator Jeff Milner repeats the trick with a lovely variety of other songs: “Another one bites the dust” becomes “it’s fun to smoke marijuana”, for example.]
This tape is hardly evidence that Bain didn’t commit the murders. But it doesn’t seem like evidence that he did, either.
Topics: General | 48 Comments »
Breathless reporting?
June 11, 2009
I was prepared to be outraged this morning.
What the hell? I thought. The Supreme Court overruled the High Court and the Court of Appeal and prevented telephone confession evidence from David Bain going to the jury? What were they thinking?
I’ve now read the judgment (note the bizarre url on Stuff’s website’s link to the judgment: http://multimedia.stuff.co.nz/rugby/images/Bainjudgement.pdf)!
If you’re inclined to criticise the judgment, I recommend that you read it too. What’s particularly striking is that, on the Supreme Court’s telling of it, the experts basically agreed. Even the Crown’s experts said that the evidence was “dangerous” and “unsafe” and should not be put before the jury. They said it was impossible to say whether he was even saying some words in that portion of the recording, or just breathing and gasping. They said if he was saying words, they couldn’t tell what was being said. Their first shot at a transcript had this bit as:
Y-yes (yeah, I can’t [touch it]. I can’t) – [whispered]
…but the expert transcriber still wasn’t confident about it. Another expert (for Bain, but from the same British university as the two Crown experts) says he first heard “I can’t breathe”.
All agreed that once someone tells you to listen for “I shot the prick” then, with effort, you can hear it. But they pointed out the dangers of suggestibility. We hear what we listen for.
One expert – for the Crown – likened it to seeing images in clouds. Random sounds can line up and seem like words.
Three of the judges found that this evidence simply wasn’t relevant. It needed to be reasonably open to the jury to rely on this evidence, they said, and here it wasn’t. The other two judges felt that the evidence was relevant. But they felt that it was unfairly prejudicial. Here’s Justice McGrath:
The prejudice, however, lies in the risk that in this unusual case, even with appropriate direction, the jury will not assess the evidence of whether there is an admission recorded on the 111 call with due caution, and will give what they hear on the tape more weight than it deserves. That risk is associated with the particular difficulty of suggestibility… The sounds on the recording may not be treated as simply one aspect of the Crown case to be weighed with other Crown evidence, including contextual evidence. The impact of a superficially reached perception that there is an admission is likely to be seen as more persuasive than the taped evidence actually is in the context of a Crown case which is otherwise almost entirely a circumstantial one.
The risk in the end is that the consequence of the indistinct and inaudible nature of the sounds will cause the jury to leap to a conclusion that the sounds which, with effort, they can hear are inculpatory words without that being a conclusion that is logically based on all the evidence relevant to the preliminary question, but the result of superficial reasoning to which they have been diverted. The likely prejudicial effect is substantial and, to my mind, outweighs the probative effect of the disputed part of the recording as evidence.
In light of all that, I’m really not outraged by this decision. Even if the full tape were put before the jury, there would have been a lot of argument about what exactly he was saying. We can’t be sure it would have made any difference to the jury. And if it did make a difference, the Supreme Court may be right to fear that it may have made too much of a difference.
One curious fact though: all the judges who listened to the tape (the High Court judge and the Court of Appeal judges) ruled it admissible. The Supreme Court didn’t listen to it, but relied solely on expert opinion and legal argument. Should they have assessed the recorded evidence for themselves to reach a rounded judgment? Or does this make their judgment more dispassionate, more closely based on the law and expert evidence, and less tainted by the very dangers of seeing faces in the clouds that they are trying to protect jurors from?
The media have applied for access to the tape itself. I hope it’s granted. Then we can decide for ourselves what we think he was saying, if anything, and feed that into our assessment of how well the judges have conducted themselves. But again, bear in mind that expert evidence…
Topics: Suppression orders | 47 Comments »
Defaming David?
June 10, 2009
I’m on RNZ’s Checkpoint and TV3 this evening talking about whether all those comments posted on social networking sites that say “Bain is guilty” (and colourful variations thereon) are defamatory. I’ve also been interviewed for an NZPA story.
The answer: of course it’s defamatory to call someone a murderer. Yes, he could sue any number of people, including those posting on the websites, those who set them up, and even perhaps the ISPs. But he probably won’t.
Why not?
Mostly because he is likely to be met with a defence of truth. Ah, some might say, but didn’t he just prove that wrong – and to a jury? No. What happened in the criminal trial is that the Crown failed to persuade a jury beyond reasonable doubt that Bain was guilty of killing his family. What if that jury had been asked whether it convinced on balance of probabilities whether he killed them? We don’t know what that jury would have said (except perhaps the juror who hugged him).
What’s more, in a civil case, more evidence might be allowed in. Some of the evidence was suppressed in the Bain case, and may not be if he sues for defamation.
And in a civil case for defamation, other defences are available too. The most likely of these is Honest Opinion. That protects people expressing their views on facts truly stated or referred to. (That second part won’t be hard to establish. The facts of the Bain case are well-known.) Looking through the comments on facebook, many are clearly expressed as opinions. Others look much more like assertions of fact, and would struggle to attract an honest opinion defence, even bearing in mind the context.
The ones in most danger, I think, are those who are peddling inaccurate facts (eg misrepresenting the evidence from the case), and there seem to be plenty of them.
Still, do you think David Bain wants to spend the next two years of his life facing yet another court case revolving around the question of whether or not he killed his family?
And if he picks on some people posting on Facebook in the hopes of a quick settlement or retraction, he might find that those people get a lot of sympathy and support from others who may be prepared to help bankroll a fight. There’s appetite for one out there. Again, if he’s going to go against anyone, it will probably be those who aren’t simply saying that they believe he did it, but those who are bolstering their arguments with inaccurate assertions of fact.
Topics: Defamation, Internet issues | 2 Comments »
The Bain of the media?
June 10, 2009
Team David has set up a very professional looking website, including a Bain blog, to raise funds for him.
The site credits TV3, TVNZ and the NZ Herald for “their support in making this site possible.”
I suspect that their role was restricted to allowing the site to use some photos. I hope so, anyway. I doubt they’ll be thrilled by the acknowledgement.
[And… gone. The credits have disappeared.]
Topics: Media ethics | 4 Comments »
An alternative to defamation?
June 9, 2009
If defamation laws are broken, can we fix them? I’ve been thinking about what we could do instead. It seems to me that the biggest problem is process (defamation cases are notoriously expensive, technical, slow, and stressful). I thought I’d toss an alternative process around for discussion.
How about a different way of protecting people’s reputations that doesn’t involve resort to the courts, where considerable argument and expense is going to get sidetracked on issues of pleading if one party wants? What about an ACC-like trade off where we dump defamation laws in exchange for a statutory reputation complaints tribunal with a first-tier mediation arm? The primary remedy would be a speedy mediated correction, clarification, or agreed statement. The tribunal can resolve cases that can’t be mediated, and can impose damages (with a moderate cap) for serious cases, but again, the main remedy would be an ordered statement. I’d envisage lawyers having a fairly limited role – like the BSA. (And like the BSA it would be subject to appeal and/or judicial review).
This would in many ways be great for the media. They’d save in costs enormously. They’d probably have to publish a few more corrections. Plaintiffs would also get what they want: a quick correction, or, failing that, a prompt ruling on the accuracy of the publication. At the moment, the system really doesn’t benefit anyone except lawyers (and I say that having been on both sides). The best that can be said about it is that defamation litigation is so awful that it encourages settlement. But not necessarily quick ones. And not necessarily principled ones. Of course, the flip side is that it gives wealthy people an extraordinary ability to burn people off.
You might ask: why treat defamation differently to other legal claims? Well, for one thing, we do carve off some important issues that the courts don’t necessarily handle best and set up alternative processes: eg employment issues, immigration matters, copyright licensing, broadcasting standards, data privacy, human rights. Defamation doesn’t sit so oddly among that lot.
Secondly, most other lawsuits don’t affect speech (and particularly the core speech that we most want to protect, as opposed to commercial speech that most jurisdictions accept can be regulated differently)
There’s also an argument that defamation laws are more easily abused by plaintiffs than most other laws, which again would justify taking a different approach. The threshold to get a defamation suit off the ground is extraordinarily low.
Would it be overused by perennial complainants? Maybe. But the BSA is also free to complainants, and while it gets its share of quack complaints, they don’t cripple the system.
I’m sure there would be disadvantages. But the question is: would they be worse than our defamation laws?
Topics: Defamation | 98 Comments »
Reading the tealeaves
June 9, 2009
I’ve just been watching argument in the Supreme Court in the Simunovich defamation case.
For those interested in the fairly arcane (but nevertheless quite significant) issues at stake, my sense is that the media don’t have the upper hand. The Supreme Court judges do not seem attracted to the idea that the media should be able to use information gathered on a privileged occasion (for example, fair and accurate reports of Parliament, or a judgment) to support a plea of truth, when the allegation is what’s called a “tier 2” imputation (that is, an allegation that there are reasonable grounds to believe that the plaintiff has done something disreputable). Nor did they seem very open to the alternative argument that the repetition rule doesn’t apply in these circumstances, or that some exception should be made to it, though they weren’t quite as hostile to this contention.
The case continues tomorrow.
Topics: Defamation | No Comments »
Karla Cardno’s dad suppression case: not much of an issue
June 9, 2009
You might have caught me on TV3 last night explaining that it was worth a shot for Karla Cardno’s dad and his new wife to seek name suppression for their sex charges on the grounds that they’re going to get extra publicity given the notoriety of those past (but unconnected) events. If you’re het up that I seemed to be supporting that application, bear in mind that, in the bits of the interview TV3 didn’t broadcast, I said:
— I wasn’t at all surprised that the application failed since the courts have said that the risk of publicity goes with being a defendant, and even the likelihood of particular media attention won’t usually be sufficient to justify name suppression;
— The defendants had given evidence of adverse health effects, which is a stronger ground, but even so, the Court of Appeal said it wasn’t sufficient to overcome the presumption of open justice;
— The Court pointed out that there was no suggestion that the fairness of their trial would be prejudiced;
— The test is whether the harm caused by publicity would be out of all proportion to the gravity of the alleged offences, and these were serious charges that the public had a strong interest in;
— The higher courts generally take a fairly hard line on suppression issues;
— Overall, this struck me as a fairly routine case and an unremarkable decision by the Court of Appeal. Sure, the notoriety argument was worth a shot, but it was always unlikely to succeed.
Topics: Media ethics, Name suppression | 2 Comments »
« Previous Entries Next Entries »