New draft broadcasting code for TV
March 9, 2009
The BSA has released a new draft of the free-to-air TV code for public consultation. The proposed changes are conveniently set out alongside the existing provisions.
The changes that leap out at me:
1. Balance is renamed “Controversial issues – viewpoints”. But the substance remains the same (it has to: it’s in the Broadcasting Act). However, the new guidelines point to an expansion of the BSA’s trend toward taking a contextual approach to balance.
2. Impartiality is dropped from the guidelines for balance, and from the accuracy standard. It pops up in the accuracy guidelines – but only for “news”. It seems current affairs and factual programmes need no longer be impartial.
3. The changes to the Accuracy standard partly follow the changes to the radio code and require only that reasonable care to be taken with the accuracy of material points of fact. The requirement that fact and comment be clearly distinguishable has been dropped, but it’s spelled out that the accuracy standard only applies to “unqualified statements of fact” and not “analysis, comment or opinion”. Broadcasters have to correct “material errors” rather than “significant” ones, though it’s not clear what the difference is.
4. The radio code standard for accuracy makes it clear that a misleading broadcast may be inaccurate. (For example, when information is omitted that puts a whole different complexion on an issue, the broadcast might be found inaccurate because it’s misleading even though there’s nothing literally false. The BSA has always taken this approach, regardless of the wording of the code. It seems sensible for this to be reflected in the standard). For some reason, in the draft TV code the reference to “misleading” is in the guidelines, but not the standard itself.
5. The privacy principles seem to be unchanged.
6. Under fairness, the guideline that people (especially children) not be “exploited, humiliated or unnecessarily identified” has morphed into “exploited, humiliated or unfairly identified”. Seems fair enough to me.
7. Discriminiation and denigration get their own heading, instead of being lumped under fairness. The threshold for a successful complaint (always pretty high) seems to have been lifted: to breach the standard, a broadcaster would have to “encourage discrimination/denigration” instead of merely portraying persons in a manner that encourages discrimination/denigration.
Topics: Broadcasting Standards Authority | No Comments »
Law Commission paper on privacy
March 9, 2009
The Law Commission has released yet another paper on privacy. “These are big issues and they are hard,” says Commission president Sir Geoffrey Palmer. 300 pages big and hard, in fact, building on 2008’s 222-page paper “Privacy: concepts and issues” (discussed here), 2007’s 76-page “A conceptual approach to privacy” by Mark Hickford, and that’s not counting the Commission’s ongoing work on the Privacy Act and public registers. It seems the issues are getting bigger and harder by the year. Methinks the Commission better hurry up and resolve these issues before they become so big and hard that they are intractable.
Here are the key issues, according to the Commission’s press release:
- Is there a value in a tort of invasion of privacy by publicity given to private facts? If so, should it be left to the common law?
- Are any new criminal offences needed to deal with specific types of intrusion?
- Should there be a tort of intrusion into a person’s seclusion? If so, should its development be left to the common law or should it be introduced by statute?
- Should closed circuit television surveillance be regulated?
- Should there be any civil or criminal liability for certain uses of surveillance devices when they are used outside the law enforcement arena?
- Are any reforms to the law needed to deal with voyeurism not involving the use of recording devices, including reform of the “peeping and peering” offence?
- Should the media be subject to any greater or lesser legal restrictions concerning privacy intrusions than other members of the public?
The Commission is seeking feedback by 29 May.
Topics: Privacy tort | 48 Comments »
Police search warrants against the media
March 3, 2009
In light of the police’s impending execution of a search warrant on the offices of the Herald on Sunday over Holmes’s (apparently) recorded interview with Tony Veitch, I thought y’all might be interested in the Court of Appeal’s guidelines for the issue of such warrants (from TVNZ v Attorney-General [1995] 2 NZLR 641):
One guideline, in a case where there is no suggestion that the media organisation has committed any offence and it has done no more than record events which may include the commission of offences by others, is that the intrusive procedure of a search warrant should not be used for trivial or truly minor cases. [The Court felt that protesters overcoming naval personnel to replace the flag at Waitangi treaty grounds was sufficiently serious, particularly as they were “calculated insults to the constitution of New Zealand”].
…
A second guideline is that, as far as practicable, a warrant should not be granted or executed so as to impair the public dissemination of news… in the present case the company appears to have already broadcast what it wanted from the tapes in its news programmes.
…
A third guideline is that only in exceptional circumstances where it is truly essential in the interests of justice should a warrant be granted or executed if there is a substantial risk that it will result in the “drying-up” of confidential sources of information for the media. In this case again there appears to be no risk of that kind. The tapes simply recorded public events.
A fourth guideline is that a warrant should be executed considerately and so as to cause the least practicable disruption to the business of the media organisation. In this instance, had the appellant so wished it might have been possible for the police to view the tapes at the studio and to take away only those found to be of significant evidential value…
A fifth guideline for the grant of a warrant relates to the relative importance of the tapes for the purposes of a prosecution. [A warrant may be issued] “when it is likely that the film will have a direct and important place in the determination of the issues before the Court.” It must be remembered that the evidential value of tapes may because of their accuracy exceed that of accounts by eye witnesses. In a confused situation involving the actions of many members of a crowd the … recording may be fairer to all concerned than eyewitness evidence. While the availability of other evidence is a factor for consideration, the superior reliability of a film will often outweigh it.
Can we be forgiven for wondering how helpful Holmes’s tape is likely be, especially given how long the police seem to have waited to make this application. Besides, would Veitch and Holmes have really allowed anything incriminating to be on that tape?
Topics: Journalism and criminal law, Search warrants | 48 Comments »
Another Bain beat-up
March 2, 2009
I think the SST overplayed its lead story on the Bain jury. The headline:
David Bain murder retrial: Jurors must be tested for bias – expert
The first two paras:
A TOP law professor has called for tougher testing of jurors to minimise the risk of prejudice in the retrial of David Bain on five murder charges.
His comments come as one of New Zealand’s leading jury researchers says it is impossible to be sure that pre-trial publicity about Bain’s case will have no effect on a jury’s verdict. The retrial is set to start in the High Court in Christchurch on Friday.
What’s a “top” law professor? (Scott Optican is an associate professor, actually, and I’ve got a lot of time for him, but I don’t have any idea why he’s toppier than any other senior academics).
More importantly, Optican never says in the article that Bain jurors “must” be tested, which is surely the operative part of that headline. He thinks it might be a good idea, and it’s a chance for the lawyers involved to made an application that’s never been granted before in NZ. But that’s not a “must”, which suggests that the trial would necessarily be unfair without it.
And on that point, of course, we have Yvette Tinsley (a colleague of mine, rightly described as one of NZ’s leading jury researchers) saying she can’t rule out possible jury prejudice caused by pre-trial publicity. Well, that’s not really the thrust of what she says. She says her research found little evidence of such prejudice and concluded that any prejudice was likely to be minimised by the process of jury deliberation. Of course, no-one can ever rule out the possibility of prejudice, though, she points out.
Was this really a front-page lead?
Topics: Contempt of Court, General, Media ethics | 52 Comments »
A copyright anomaly
February 27, 2009
Here’s a quirk in the Copyright Act that you may not be aware of: TV stations can use news photographs (even if they don’t have copyright) under the fair dealing defence, but newspapers can’t. I suppose this is because a broadcast or film is usually viewed fleetingly, so does not create a permanent record of the same nature as a newspaper. But I’m not sure that difference really justifies the different treatment of photographic copyright between different media.
Topics: Copyright | 48 Comments »
A post on 92A that David Farrar probably won’t link to
February 24, 2009
You may have noticed that I didn’t join the blackout in protest against section 92A.
It’s not that I don’t have concerns about the law. As you can see from the post below, it doesn’t seem to me that it’s been well thought through. I’m open to the idea that it goes too far.
But “guilt by accusation”? There’s nothing in the law that requires that. Here’s section 92A:
92A Internet service provider must have policy for terminating accounts of repeat infringers
(1) An Internet service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet service provider of a repeat infringer.
(2) In subsection (1), repeat infringer means a person who repeatedly infringes the copyright in a work by using 1 or more of the Internet services of the Internet service provider to do a restricted act without the consent of the copyright owner.
An ISP that simply terminated on the basis of two or three allegations would surely not be implementing its policy reasonably, and termination would be inappropriate. True, this provision is awfully vague (which may also raise Bill of Rights issues, actually). Yes, it gives quite a lot of wiggle room to ISPs (though they are not likely to try to implement it against their clients’ interests). But it does not require – or even permit – guilt by mere accusation. [Dean Knight has made the same point].
Some people are getting het up about the fact that an account may be terminated without the protections (and standards of evidence) available in a court. But is that so odd? Your phone company can cut you off for breaching its policies. Your employer can fire you for breaching policies. Your ISP probably has other policies reflected in its contract with you allowing it to terminate your account if you peddle kiddie porn, for example. If push comes to shove, you can take the issue to court. As you can do under section 92A. But the development of policies (even mandatory ones) that have real consequences for breach without any necessary court involvement is nothing new.
Throw in the new Telecommunication Carriers’ Forum draft on how this law is likely to work in practice and we move even further away from guilt by accusation. What this draft gives us is “innocence by denial”. Under this plan, a copyright holder who asserts breach triggers an “education notice” to the user, who can simply deny the breach by issuing a counter-notice and no further action needs to be taken by the ISP. Really. There is a provision in there saying that ISPs can, in their discretion, decide to take action if they think the denial process is being abused. But how many ISPs are going to do that?
The draft is worse than that, from the copyright holders’ point of view. A copyright holder has to pay a fee before the ISP even has to look into the allegation. So if a copyright holder can provide crystal clear evidence that a user is downloading files illegally, the ISP won’t even glance at it unless the holder can stump up with some dosh. I have some sympathy with the ISPs’ desire for cost recovery, but I’m not sure that any policy that allowed an ISP to overlook incontrovertible proof just because someone hasn’t paid it some money could be regarded as reasonable. (I’m not saying proof will always be incontravertible, I’m just mentioning the easy case for the purposes of argument).
Actually, that raises another question: where the hell do the copyright holders get their evidence that some particular person is infringing? Beats me. But I do note that the draft puts that evidential threshold pretty high.
Does this draft really comply with section 92A?
The copyright holders are proposing a slightly amended system – in which they get to look at the users’ reasons for denying infringement via their own resolution process, and if they end up still thinking there’s been a breach, the ISP has to accept that. But that doesn’t seem fair either [and, as someone has pointed out in the comments section, that comes closer to guilt by accusation].
I think any fair and reasonable system must involve a quick and fairly cheap disputes resolution body. And I note that we already have a Copyright Tribunal set up and functioning, though for some bizarre reason, all it does is rule on issues concerning licensing systems. I can’t help thinking that it would be a good idea to broaden its jurisdiction to include ISP copyright issues, set up a lower-tier fast-track mechanism for resolving the 98% of infringement claims that are slam dunks, and refer the tougher ones (eg where there’s a fair dealing issue) to the Copyright Tribunal.
[Update: credit to DPF, he did link to this post. He says he disagrees that section 92A isn’t guilt by association, but doesn’t explain why. On the other hand, he has written a lot on this issue, and you can see his thinking there.]
Topics: Copyright, Internet issues, NZ Bill of Rights Act | 50 Comments »
Officials drop the BORA on 92A
February 23, 2009
Our Bill of Rights vetting process has failed miserably again.
This is the system that’s supposed to pick up rights issues when a Bill is introduced to Parliament and consider whether the proposals are demonstrably justified. When a Bill affects free speech, officials are supposed to highlight the problem and ask questions like: “What’s the evidence that there’s a problem here? What’s the evidence that this solution will fix it? Are there any other ways of tackling the problem that might tread less harshly on free speech?”
The new copyright amendments certainly raise free speech concerns. What did the officials giving the BORA advice have to say about whether the “termination of repeat offenders” provision is demonstrably justified?
Look at the legal advice they gave. It’s six paragraphs long. It didn’t even pick up the section 92A problem (or this one). It just rubber stamps the Bill saying that, of course copyright restricts free speech, but hey, we think the restrictions it contains are reasonable. (To be fair, section 92A was in slightly different form when this Bill was introduced. The “repeat infringers” policy wasn’t actually mandatory, as it is in the final version: it was merely a condition that ISPs had to meet if they wanted a degree of legal protection from being held liable for copyright infringements by users. Still, it really was effectively mandatory for ISPs, since the protections being granted were so important, so I think the issues should still have been addressed).
The vetting process is supposed to act as a warning system to Parliament, and to feed into the debate about the Bill. I’ve been watching freedom of expression vets for a long time now, and they almost invariably just give the Bill a green light with no real attempt to test the restrictions for their justifiability. We really should be doing better.
Topics: Copyright, Internet issues, NZ Bill of Rights Act | 54 Comments »
Law Commission looks at suppression laws
February 19, 2009
The Law Commmission has put out an issues paper on suppressing names and evidence. They’re seeking input, but you’d better be quick.
The paper sets out the various ways names and evidence can be suppressed, and asks whether reform is needed.
In general, they’re looking at recommending that the grounds on which suppression can be granted should be specified more closely, which has to be applauded. It’s currently very open-ended. Even on the Commission’s proposals, there will be nebulous “interests of justice” catch-all grounds, but any movement toward more specificity is to be welcomed.
Interestingly, the Commission takes on Justice Baragwanath (and the Commission’s own earlier opinion) in concluding that the presumption of innocence shouldn’t be a factor in name suppression. Naming a defendant doesn’t suggest that she’s guilty. The Commission could have added that even Justice Fogarty in R v Sila didn’t think that merely naming defendants (as opposed to filming them in court) amounts to a punishment akin to pillory. The Commission says, rightly I think, that the real question is whether the risk of harm by publicity to the defendant’s reputation or dignity outweighs the interests of open justice in any particular case.
Disappointingly, the paper doesn’t much go into the evidence about how suppression orders are currently being used (or misused). How many suppression orders are made in civil and criminal proceedings, for example? What sorts of evidence is usually suppressed? What for? How many suppression orders are interim ones? Some sense of the proportions of suppression orders based on particular reasons would also be helpful. (For example, I don’t think name suppressions are often made for fair trial reasons – if they are, I’d be concerned about that. If they’re not, fair trial ought not to dominate our consideration of appropriate reform).
Nor is there very much on the experience in other countries.
There’s an enigma that mostly goes unaddressed in the Commission’s paper: most of the factors that the courts are supposed to take into account for name suppression (and those that the Commission thinks should be taken into account) tell against suppression. But in reality, name suppression is very often granted. What’s going on?
There is some discussion of current practice. It rather confirms my impression that name suppression in particular is something of a mess. For example, the paper says:
In our research, we heard of cases in which journalists had great difficulty in ascertaining whether there was an order in place in a particular case, and what its terms and duration were. We came across decisions in which the endorsements describing the suppression order at the top of the judgment, which are not always drafted by the judges themselves, were at odds with the content of the orders set out in the body of the judgment. In extreme situations, problems of this nature risk bringing the law itself into disrepute.
Damned straight.
Unfortunately, the Bill of Rights doesn’t get much mention either. The Commission accepts that suppression raises freedom of expression issues. (I’m not so sure it is clear. In the first instance, it’s about access to information, which I’m not sure is encompassed in the freedom of expression right. If someone gets hold of a suppressed name or piece of evidence, then how they are allowed to use it becomes a freedom of expression issue, but only then, I would have thought.) But accepting that there’s a free speech issue, and accepting (as the Commission does) that this means restrictions must be reasonable and demonstrably justified in a free and democratic society under section 5… where’s the discussion about the whether name suppression meets the usual tests for demonstable justification?
But I’m being too harsh. The paper contains a very useful overview of the laws and the principles at stake, and generally asks the right questions about what we should be doing. It also makes some very sensible suggestions. For instance, there’s a gap that means the media can’t challenge a High Court decision on appeal to impose name suppression when it was originally refused in the District Court. That needs to be plugged. Child witnesses should be able to apply to have their automatic name suppression lifted when they turn 17. Public morality needs to be dumped as a reason for suppressing evidence.
Some of the questions are harder calls:
- should it be easier to get name suppression at earlier stages in proceedings?
- how does privacy play into suppression issues?
- should the fact that defendants who are well known are much more likely to suffer adverse publicity be factored in?
- should journalists be allowed to stay when a hearing is closed? How do you define a “journalist” for this purpose?
- should there be a rule that names may not be published before an arrested person has a chance to apply for name suppression?
- should there be a register of suppression orders? Who should be able to access it?
- should the court be able to make suppression orders applying just to the internet (since information published there is so much more easily accessible that it might create risks to later trials that traditional media wouldn’t)?
- should knowledge or recklessness need to be proved before finding someone guilty of breaches of suppression orders? Should the penalties be hiked?
- should people on diversion automatically get name suppression?
There’s still time to have your say on these issues, if you hurry.
Topics: Name suppression, NZ Bill of Rights Act, Suppression orders | 56 Comments »
Chris not Christians
February 19, 2009
I’m not a Christian. I think the Biblical creation story is daft. I don’t think it should be taught in schools. But I do think that when a serious radio programme debates the issue “Should creation be taught in schools?” the station should at least find someone who thinks it should to include in the discussion.
Chris Laidlaw’s “Sunday Group” slot last weekend took up this question. Chris posed the issue as:
should creation stories be taught as part of the science curriculum or any other part of the curriculum in New Zealand schools?
Laidlaw described creationists as “those who believe in a literal six-day creation of the earth, as described in Genesis”. Nope. The essence of creationists is that they think God created the earth. Some allow a bit of literary wiggle room with the 6-day thing. But heck, let’s lump them all in the extreme basket.
Laidlaw then said creationists were “battling to have evolution removed from the curriculum and to have the creation story taught in schools”. Not so much. The more sensible ones are simply arguing that creation should be taught as a theory alongside evolution. That almost starts to sound reasonable, so we’d better not mention that.
So, how many of Laidlaw’s three guests argued for creationism to be taught in schools? Not one. All of them, it seems, agreed with Chris’s position. (At one point he asks: “Why is it so hard to persuade so many people that evolution is utterly logical?”)
He’d got guests, it seems, from a recent conference in Christchurch on biological education celebrating Charles Darwin. They were certainly qualified to talk about the issue, and said some interesting things. But it was no real debate about the issue. As I understand it, creationists have some good points about holes in the theory of evolution. We didn’t hear about that. They have some arguments to support their concept of intelligent design. We didn’t hear any sympathetic treatment about that either. They presumably have a view that what they argue is sensible and well-motivated. Laidlaw was reduced to asking his guests about the motivations of the creationists. The guests were polite, but not surprisingly thought the creationists were confused and misguided. Those guests’ views would have been much more interesting and vigorous had they been contrasted with someone speaking thoughtfully for the creationists.
Oh, and having a creationist in the discussion would also have complied with the balance standard in the broadcasting code of practice. I think this programme was in breach. No matter how the BSA twists things to avoid balance in talkback, it seems hard to escape the conclusion that the Sunday Group was a discussion of a “controversial issue of public importance”, and an obvious “significant view” was lacking. Listeners surely did think they were going to get a discussion not a venting of one-sided opinion.
The broadcaster might argue that it was merely supplying “background information” that casts light on the issue, as in this case, which involved a RNZ programme called “Outspoken” about the foreshore and seabed issue that lined up speakers from one side only. I think that case was wrongly decided – another part of the BSA’s trend toward whittling away the balance standard. But even if you think they got it right there, it’s hard to conclude that Laidlaw’s show was merely providing factual background, or historical, legal and factual context.
Topics: Broadcasting Standards Authority, Media ethics | 52 Comments »
Ethics inquiry into 13-year-old dad story
February 19, 2009
The UK’s Press Complaints Commission is looking into the ethics of The Sun’s story about a 13-year-old fathering a child. On what grounds, you ask? In NZ, the issue might be the child’s privacy (can a boy really consent to a story like that?) or whether the paper had “particular care and consideration for reporting on and about children and young people”. Not there. It’s whether he or his parents should have been paid for the story… that’s not allowed if the children’s welfare is involved (as it surely is here) unless publication is in the child’s interests. Interestingly, the story I’ve linked to seems to conflate the interests of the child with the public interest. Don’t know what’s going on there.
Topics: Media ethics, Press Council | 48 Comments »
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