Nouveau niche
May 20, 2009
Those interviewed in Ruth Laugesen’s Listener feature about the future of mainstream journalism in New Zealand were bullish. But between the lines, I think three extracts tell a striking story about the journalism we can expect in another decade:
[Martin Simons, APN group publishing chief executive]: “Margins are still very healthy. Perhaps in years to come those margins will be more challenged and you’ll have to invest even more material into attracting niche audiences, but I don’t see newspaper profitability being eroded to the point where it is not a viable business.”
Meanwhile, newspapers are getting a good share of the $193 million earned in online advertising in 2008. That is because Fairfax and Herald websites are prominent as “portal” sites that pull in large numbers of visitors. However, Interactive Advertising Bureau chief executive Greig Buckley says the trend is for portal sites to play a diminishing role as the audience fragments and finds niche areas of interest on the web.
(There’s also a sidebar – not online – in which Bernard Hickey talks about his success in finding a niche audience online.)
Topics: Future of journalism | No Comments »
Times held in contempt for interviewing jurors
May 20, 2009
The Times of London has been convicted of contempt for quoting the foreman of a jury criticising the result of a baby death case. (It was a 10-2 majority verdict; he was in the minority). His point: the jury was overwhelmed by expert evidence, which at the end of the day could only be speculative. He said:
Ultimately the case was decided by layment and laywomen using that despicable enemy of correct and logical thinking, that wonderfully persuasive device, common sense.
He also revealed that the initial vote of the jury was 10-2 and “after that there was no going back”.
There’s more, but these were the passages upon which the contempt was found.
Here’s the rule from the Contempt of Court Act (contempt is codified in Britain, but this probably reflects the position at common law in New Zealand):
…it is a contempt of court to obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in any legal proceedings.
Is that really a clear breach? Yes, they revealed the initial vote, and it’s hard to get around that, though given that it reflected the final vote it’s not a huge breach.
But what about the “common sense” statement? Did it really contain particulars of juror statements, opinions or arguments? Remember that the court is supposed to strive to interpret this law consistently with the right to freedom of expression under the Human Rights Act. Shouldn’t the fact that this is raising a legitimate question on a very significant issue in a way that doesn’t specifically name or quote other jurors be relevant?
Apparently not. The High Court found that the foreman and the paper were disclosing the jury’s “approach to the evidence, which was necessarily based on statement they had made or opinions they had expressed during the deliberations.”
This strikes me as an expansive reading of the Contempt of Court Act. The Court accepted that this restricted freedom of expression. But it cited a range of cases in which the UK courts and the European Court of Human Rights had, in other circumstances, found restrictions on juror interviews to be justified in order to safeguard the frankness, privacy and finality of jury deliberations.
Fair enough. But just because the provision as a general rule is justified doesn’t mean that every application of it, no matter how tenuous, will be. Yet that’s the way the judges proceeded: the rule is justified, so it will never require a rights-consistent meaning. That seems wrong to me. It’s a clear principle of EHCR jurisprudence that the application of the rules in each case must also pass the justification test. Where the rationale for the restrictive rule (ie the reasoning that forms the foundation of the justification) does not apply in a powerful way, there is room for the argument that freedom of expression (especially where the speech is in a category that the courts usually regard as important, such as serious and moderately expressed criticisms of the operation of the justice system) should trump it.
I would have thought that there’s a solid case that this particular restriction on free speech is not justified, even if the general rule is. So the courts should have strived to find an interpretation of the statute that avoided this result. And it’s pretty easy to find that interpretation. A slightly more literal reading of the statute would have meant that there was no contempt (at least, on the second point).
So we’re not the only country that doesn’t take rights seriously, it seems.
Topics: Contempt of Court, NZ Bill of Rights Act | 3 Comments »
Campbell in the soup?
May 19, 2009
You’ve probably heard that the police have asked the judge in the Waiouru Army medals case to order John Campbell and Ingrid Leary to answer questions that may disclose the identity of their source. (That source being, of course, one of the thieves, with whom Campbell famously performed his Clayton’s interview.)
The journalists have promised not to reveal their source. Can they be ordered to do so?
The short answer is yes. The new Evidence Act gives journalists a privilege to protect their confidential sources. But the judge can override that privilege. The judge has to balance the importance of the journalists’ evidence against the harm that would be done to the particular source – and to sources generally. As far as I know, this will be the first case to consider this section. It may set the tone for the approach of judges in the future. If the judges too readily override the privilege, confidential sources may begin to feel that they can’t trust the journalists and important stories may not get told.
No doubt TV3 will be waving the European Court of Human Rights decision in Goodwin v UK (1997) 25 EHRR 1:
[39] Protection of journalistic sources is one of the basic conditions for press freedom, as is reflected in the laws and the professional codes of conduct in a number of Contracting States and is affirmed in several international instruments on journalistic freedoms (see, amongst others, the Resolution on Journalistic Freedoms and Human Rights, adopted at the 4th European Ministerial Conference on Mass Media Policy (Prague, 7-8 December 1994) and Resolution on the Confidentiality of Journalists’ Sources by the European Parliament, 18 January 1994, Official Journal of the European Communities No. C 44/34). Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public-watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 (art. 10) of the Convention unless it is justified by an overriding requirement in the public interest.
Topics: Confidential sources, Journalism and criminal law | 5 Comments »
Time to turn the lights on in Parliament
May 19, 2009
The MPs’ expenses scandal rages on in Britain. MPs have expenses, you understand. Quite rightly, they can recover those that are “wholly, exclusively and necessarily incurred for the performance of a Member’s parliamentary duties.” And what MP could effectively and conscientiously perform his or her duties without spending 2000 pounds to replace a leaking pipe under a tennis court, 600 pounds for hanging baskets and pot plants, 100 pounds to replace 25 lightbulbs, 3419 pounds installing a new plumbing system because the old one was “too hot”, 25000 pounds on security patrols, thousands of pounds furnishing second houses, and more thousands for reimbursement of mortgages that have already been repaid? At the other end of the scale, even the richest cabinet minister must have his yoghurt (expense claim: 38p).
Still and all: doesn’t this show us once again the value of transparency? Why not follow former Speaker Margaret Wilson’s suggestion that we should bring Parliament under the rubric of the Official Information Act?
Are we really so confident of the probity of our own MPs? Their skeletal expense revelations are hardly enough to provide reassurance that they aren’t committing their own rorts here. We should be entitled to know and evaluate for ourselves which MPs are thrifty and frugal with taxpayers’ money, which are squeezing out every cent they can, and which are crossing the line.
I suppose I should note that the UK Freedom of Information Act does include MPs’ expenses, but the little sods have been shamelessly fighting to hold back this information for years, arguing against release before the Information Commissioner, proposing special legislative exceptions, and taking the case to the High Court. All to no avail, though. The courts have forced them to release it.
But even after that, they were cleaning it all up for mass release on July 1, no doubt with some of the juicier bits withheld. It took a leak of the entire raw stinking pile for the whole story to become public, and for the MPs to be held accountable. (Of course, the politicians then expressed outrage at the “theft” and called in the police to sniff out the leaker… sound familiar?)
Topics: Official Information Act | 51 Comments »
Normal service resumes
May 19, 2009
I’ve been off on holiday and doing some marking and some barristering. Meanwhile, media law issues have been piling up. I’ll tackle some over the next few days.
Topics: General | No Comments »
Prostating himself
April 14, 2009
Veteran journo and journalism teacher Jim Tucker has a blog about his experiences battling prostate cancer.
It’s in a good cause: encouraging blokes to get their doctors to poke them up the bum from time to time to check for cancer. It’s an interesting and worthy use of a blog (he’s got a more conventional one about journalism here).
There’s even a happy ending: Jim’s prognosis is good.
Topics: General | 49 Comments »
Disappointing commentary
April 7, 2009
When a batsman gets out, I think most of us can figure out how he’s feeling. Do we really need to be told, almost every single time, “he’ll be disappointed with that”?
Oh, and when did “average” and “ordinary” become synonyms for “awful”?
Topics: General, Media ethics | 2 Comments »
“Stop the romp”
April 3, 2009
The beautiful and talented Claudia Geiringer debuts in the blogosphere with a plea to the Nats to take seriously their own Attorney-General’s legal advice about Bill of Rights problems with their legislation – and not railroad their dodgy bills through Parliament without allowing a decent chance to debate them.
[Update: Dean Knight weighs in here, making the important point that if Parliament expects the courts to defer to its evaluation of what limits on rights are demonstrably justified, it should, um, actually conduct that evaluation seriously. David Farrer also expresses concern that the Select Committee was bypassed.]
Topics: NZ Bill of Rights Act | 51 Comments »
Bain call
March 25, 2009
Can’t say I understand why Justice Pankhurst refused to allow the media to broadcast David Bain’s telephone call from the day of all the killings. We could hear reporters describing what he said. The jurors can’t be prejudiced by a repetition of evidence they’ve already heard. I can accept that there are problems allowing live streaming of the whole trial if particular witnesses to be called later are not supposed to hear the evidence of earlier witnesses (so that their evidence will be independent) … but that doesn’t seem to apply here.
Where’s the harm? More to the point, where’s the demonstrable justification for limiting freedom of expression?
Topics: General, Suppression orders | 51 Comments »
Googling jurors again
March 25, 2009
A Florida drugs trial had to be abandoned this month because no fewer than nine of the jurors had been conducting their own research online, despite a warning from the judge not to. In NZ Judge David Harvey has been warning about this for ages. Is anyone listening? It’s becoming clear that we can’t rely on stern instructions from judges.
I can’t see any alternative to having someone sitting down as particular trials are looming (and periodically during the trials), conducting the obvious Google searches (eg the defendant’s name), seeing whether any of the accessible material on the first few Google screens is prejudicial, and contacting those hosting the material to have it taken down temporarily. (Has anyone done this with the Bain case, I wonder?) It really needs to start happening now. Developing a protocol with news organisations about their archives would be a good start.
In most cases, any prejudicial material is likely to be hosted in NZ (who else cares?). No doubt, some people receiving such a warning would take delight in ensuring that the material appeared on an overseas site where it couldn’t be touched. We need to be ready for that, too. If the material can’t be removed, and is likely to be looked up and believed by jurors, I think it will have to be brought up explicitly at the trial, no matter how prejudicial it is. The judge would need to explain the reasons why it’s dangerous and unfair to place any weight on it. I don’t think we can any longer act on the assumption that jurors won’t know it. It’s either that or start sequestering them in such cases (in which case, they’ll probably realise there’s prejudicial material that’s being kept from them and there’s still no guarantee they won’t already know it, or find out somehow).
Another possibility is questioning jurors about what they know before the trial. It has happened in the UK, and our Court of Appeal has said it could be done here in exceptional cases. But that wouldn’t get around the problem of jurors Googling during the trial.
Topics: Contempt of Court | 46 Comments »
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