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 | Comments Off on Queer censorship rules
Your booze leader
May 27, 2009
The Guardian is reporting that media workers are the biggest lushs in England.
Topics: General | Comments Off on Your booze leader
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 | Comments Off on Media law tsunami in Canada
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Not surprisingly, it seems that Tony Veitch has withdrawn his injunction proceedings.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 | Comments Off on Veitch material un-juncted
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 | Comments Off on Veitch injunction
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 | Comments Off on Nouveau niche
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 | Comments Off on Times held in contempt for interviewing jurors
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 | Comments Off on Campbell in the soup?
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 | Comments Off on Time to turn the lights on in Parliament
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 | Comments Off on Normal service resumes
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