Oops?
June 7, 2009
Did this Saturday’s NZ Herald, in publishing the information suppressed in the Bain trial, overlook the fact that the Supreme Court had recalled its judgment last month to make it clear that the publication restriction continued until further order of the court?
The story doesn’t seem to be on the Herald’s website any more.
The recall was probably to guard against the possibility that Bain may have been found guilty, and successfully appealed, so that there may have been yet another trial. So there may well not have been much harm done.
[PS. I see that three Court of Appeal decisions on the Bain case, from 31 October 2008, 24 December 2008 and 20 January 2009 have been posted on the Courts of NZ website…]
[PPS. It seems that the NZ Herald was breaching a suppression order in running that story (though the suppression order has now been rescinded), but the Supreme Court had nothing to do with this one. It’s evidence that was suppressed by the Court of Appeal and not appealed. As I understand it, it wasn’t suppressed for a time, then as the verdict loomed, the suppression order was put in place in case Bain lost and wanted to appeal, but the NZ Herald wasn’t notified.]
Topics: Suppression orders | 127 Comments »
New High Court search rules
June 4, 2009
There are new rules about access to court documents (including exhibits), both criminal and civil. They are more detailed and to some extent more liberal than the old ones. They open up a range of documents subject to the overriding power of a judge to seal them. Some documents, however, can only be searched with the leave of the judge, such as interviews with sex complainants and mental health patients.
There’s a welcome movement in particular toward greater openness while the matter is before the courts, when it’s most likely to be of public interest. Both sets of rules outline a (largely informal) application process, and set out the factors to be considered where leave is required. These generally reflect recent developments in the case law:
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the right of the defendant to a fair hearing [criminal cases only, of course]:
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the orderly and fair administration of justice:
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the protection of confidentiality, privacy interests (including those of children and other vulnerable members of the community), and any privilege held by, or available to, any person:
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the principle of open justice, namely, encouraging fair and accurate reporting of, and comment on, trials and decisions:
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the freedom to seek, receive, and impart information:
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whether a document to which the application or request relates is subject to any restriction…
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any other matter that the Judge, other judicial officer, or Registrar thinks just.
I think these rules are a great improvement, but they don’t go as far as the Law Commission suggested.
Topics: Court records, General | 48 Comments »
The case against defamation
June 4, 2009
Nicky Hager explains how he thinks hardball Aussie political consultant Lynton Crosby (of Crosby Textor fame) used defamation laws try to bully him for criticisms he made during a radio interview. You’ll remember that Nicky’s book The Hollow Men contained some pretty ugly revelations about the advice Crosby Textor gave to the National Party at the last election. They didn’t sue him for that. But Crosby came after him for making similar comments on Radio NZ later on. I think this really should be worrying for anyone involved in covering politics, or other matters of national importance. (Disclosure: I act for Nicky).
Nicky describes his experiences at greater length here.
Topics: Defamation | 25 Comments »
Northern Exposé
May 31, 2009
From the third season of Northern Exposure:
Maurice Minnifield (local magnate and Cicely’s newspaper proprietor): You give ’em what they want. That’s the role of journalism.
Joel Fleishman: No, Maurice, that’s the role of professional wrestling.
Topics: General, Media ethics | 49 Comments »
Pannick time!
May 29, 2009
David Pannick QC agrees with me (though there may be some chance that he does not read this blog and reached his conclusion independently) that the rules about interviewing jurors are too harsh.
Topics: Contempt of Court | 49 Comments »
Queer censorship rules
May 29, 2009
Noticed that you can’t find Queer as Folk at your local video shop? Actually, you can’t find any of these titles either. As Andrew Armitage explains, it’s because it’s too expensive to get them classified. Even if they’ve been on TV. Even if you could order them through Amazon.com. Even if they’ve been in the movie theatres (particularly if the DVD has extra material on it).
Our classification regime is unwieldy and unfair. It’s especially harsh on film-lovers with niche tastes. It’s also hurtling towards obscolecence as media formats converge. It’s about time the government yanked it into this century.
Topics: Censorship | 47 Comments »
Your booze leader
May 27, 2009
The Guardian is reporting that media workers are the biggest lushs in England.
Topics: General | 2 Comments »
Media law tsunami in Canada
May 26, 2009
A wave of important media law cases is hitting the Canadian Supreme Court. One’s on qualified privilege and I’ve discussed it here. The others include cases on confidential sources and bail hearing publication bans.
I’m inclined to think that the guidance on free speech issues from the Canadian SC tends to be the most thoughtful, useful and relevant to NZ (though they’re a bit behind the play on qualified privilege…), so I’m geekily excited by these developments. Sad, I know.
(Hat-tip: Andrew Geddis, though I’m not sure if he’s geekily excited).
Topics: Confidential sources, Contempt of Court, Defamation, General | No Comments »
Veitch material un-juncted
May 23, 2009
Not surprisingly, it seems that Tony Veitch has withdrawn his injunction proceedings.
That still leaves interesting questions about the police’s unusual willingness to release so much information here.
Topics: Injunctions, Official Information Act | 1,065 Comments »
Veitch injunction
May 21, 2009
Who would have guessed it? (Not me). The injunction barring the media from publishing the information released by the police under the Official Information Act, seems to be based on breach of confidence.
The Veitch team (headed up by heavyweight litigator Jack Hodder SC) argued that Veitch was not consulted on the release; he had a “legitimate expectation” that he would be consulted; that some material is “confidential and ought not to be released under the Act”; and that the publication would cause him irreparable harm.
Those grounds sound more like grounds for judicial review of the police decision to me. The police could have withheld some of the information, and should have consulted Veitch before making its call, and improperly released it. Yet this doesn’t seem to be an application for judicial review, and if it was, it doesn’t apply to Fairfax, APN and TVWorks, who’ve all been sued along with the police.
In fact, it’s difficult even to see how it makes out a good claim against the police. They can release information under the OIA, or can withhold it on grounds including, for example, privacy or (loosely speaking) confidentiality. The Ombudsmen have said it’s good practice to consult those affected before release. But it’s not mandatory under the legislation. (It’s possible, I suppose, that the police did consult Kristen Dunne-Powell). It seems, however, that the police promised Veitch last month to advise him “at such time as it is determined what information will be released”. But was this a promise of consultation? If so, does it make the release of information illegal? It’s a stretch.
Worse still, for Veitch, section 48 of the OIA immunises the police from civil or criminal proceedings connected with the making available of the information in good faith under the Act. That’s backed up by the recent High Court decision in Director of Human Rights Proceedings v Commissioner of Police. The immunity is wide, the case held. Even if the police could have invoked a withholding ground, but didn’t, that’s not bad faith, and that’s still making information available “pursuant to the Act”.
One might wonder at the reasons for the police’s very fullsome information release in this case, compared with its patchy record of releasing information to the media in other situations. But bad faith is a very high threshold.
So what about the media? Even if Veitch can establish that some of the police material was subject to an obligation of confidence, how on earth is this supposed to affect the media outlets that obtained it through an OIA release? Was the information communicated to the media in circumstances importing an obligation of confidence? No. The opposite applied. It was in an OIA release. Was it clear to the media that they were receiving information that itself had been provided on the basis of confidentiality? No again, I’d say. In fact, Justice Mallon said there was nothing in any of the stories that were already published that the plaintiff could claim ought not to have been released on confidentiality grounds. Might there be some material in the 358 pages that was released that may be obviously confidential, such that the conscience of the media might be engaged? It’s possible I suppose, but seems unlikely.
The OIA doesn’t immunise the media from breach of confidence, copyright, or defamation actions if they publish what’s released. But it certainly puts them on the front foot in arguing that the material isn’t plainly confidential.
The original application sought an injunction against any publication of the OIA material – including stuff already published by the NZ Herald and DomPost. Surely that was untenable from the outset. Once it’s in the public domain, the interest in confidentiality relating to that particular material is lost. Indeed, the temporary injunction ordered by the judge excluded the stories already published.
These applications are made in urgent circumstances, so we should cut the lawyers and judges involved considerable slack when assessing their actions. I’m inclined to be sympathetic with a judge faced with this sort of application who grants a very short-term injunction to enable the parties to argue the case more fully.
But I’ve got concerns about this one, particularly as regards the media. Veitch didn’t identify any particular material he said was confidential, just that “some of the information may be confidential and ought not to have been released”, as the judge put it. The stuff that was published wasn’t of that nature, according to the judge. Veitch seems to have provided no particular reason for thinking the other material might be. I would have thought that’s the end of the story. You need a better foundation than that to get an injunction.
Even if the material might be confidential, that’s not enough alone to make out a claim against either the police or the media. There doesn’t seem to be enough evidence to suggest bad faith on the part of the police. There doesn’t seem to be any evidence to suggest the media had any notion that any of it may be confidential. Again, that ought to be fatal to an injunction, I would have thought.
Jack Hodder apparently indicated that the grounds of the application may be “refined”. Given the urgency, I’m tempted to conclude that’s fair enough. But why should the media have to hold back on publishing something because of the possibility that a lawyer might be able to think of some better arguments against it?
Justice Mallon concluded: “I am not able to say there are no arguable causes of action.” But the evidence before her seems to have been so speculative and vague and the legal claims so tenuous that I can’t see where the arguable claim lies, especially against the media.
The judge made no mention of the NZ Bill of Rights Act.
The case is set down for Tuesday morning.
Topics: Breach of confidence, Injunctions, Official Information Act | 47 Comments »
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