Overcharged?
November 3, 2008
It was always possible that further charges were to be laid against some of the Urewera defendants, and here they are: participation in an organised criminal group.
Must say, though, I feel some disquiet about the adding of these broad-based charges (as opposed to the more specific Arms Act ones) after the High Court has narrowly found that the Fairfax coverage did not create a real risk of prejudice to the defendants’ trials – in part because:
there is nothing before us to suggest that there is any real risk that any defence available to the accused is likely to be compromised by the publication of the intercepted communications.
As I’ve discussed, that’s not really true. The judges were wrong to say that “the focus of any defence is likely to be on identification”. But even if it were true with respect to the Arms Act charges – it seems hard to believe that the published material from the intercepted communications won’t affect the defence of someone charged with participation in an organised criminal group.
Topics: Contempt of Court | 2 Comments »
We’re reporting their news, there
October 31, 2008
I’m following the US election closely, and I’m a Radio NZ listener, so you’d think I’d be applauding Radio NZ’s decision to send Geoff Robinson there to report the elections from the ground.
But really, I’m wondering why they’ve spent the money. How many of Geoff’s interviews couldn’t have been done from here by phone? (How many of them in fact are being done by phone?) Do we really need a NZ angle on these elections, and is RNZ delivering on that anyway? What’s the point of a bunch of vapid and disproportionately pro-Obama vox pops? Is the possibility of Arnie getting a role in an Obama administration really one of the big issues? Why does RNZ keep interviewing Zogby, which seems to be about the only polling organisation not prepared to suggest that it looks pretty much like Obama’s going to win (check the rolling poll averages and state-by-state breakdowns at RealClearPolitics and Pollster)?
Topics: Media ethics | 1 Comment »
White Knight
October 31, 2008
The Wellington City Council is requiring prior approval and bonds for the posting of political posters on council-owned poster bollards, and is apparently restricting their locations. Dean Knight rightly takes issue with this policy here and here.
Topics: Electoral speech, NZ Bill of Rights Act | No Comments »
Labour’s YouTube Boob 2
October 30, 2008
I mentioned the Electoral Commission v Cameron case in the post below. The Court of Appeal granted judicial review against an Advertising Standards Authority decision upholding a complaint against the Electoral Commission.
One of the grounds of that decision was that the ASA shouldn’t have used its own complaints jurisdiction to trespass on the Electoral Commission’s functions. Get a load of this:
… in the exercise of the assumed jurisdiction [of the ASA] we would expect the [ASA’s complaints] board to tread carefully in relation to such matters as the public education advertisements of the [Electoral] commission and similar public authorities to ensure that it does not substitute its views for those of an expert body charged with particular responsibilities.
Now, isn’t the Broadcasting Standards Authority a “similar public authority”? It has jurisdiction over the broadcast of political ads on radio and TV but not on the internet. If anyone complained about this ad to the BSA it would have to determine whether it was fair and accurate.
Isn’t that pretty similar to the standards being applied by the ASA (which decides whether an ad is misleading or deceptive)? Isn’t the BSA an “expert body charged with particular responsibilities” such that the ASA is in danger of “substitut[ing] its views” for the BSA’s?
I think there’s a pretty strong argument on the basis of the Cameron case that the ASA should have butted out here. After all, no-one is left without a remedy: a complainant who saw the YouTube ad could be redirected to the BSA by the ASA. As it stands, we have the prospect of inconsistent decisions.
Would the BSA decide the case any differently? This case would suggest not. The BSA upheld a Maori Party complaint against Labour for saying in an ad that the Maori Party had voted with National 227 times. The Maori Party felt this overstated their support for National, but rather shot themselves in the foot. The correct figure, it transpired, was at least 277 times. The BSA felt it had to uphold the complaint because the ad inaccurately undercounted the number.
That seems pretty silly and disproportionate to me. Even the BSA described it as “technical”. The BSA said it has adopted a “strict approach” to the accuracy principle. This isn’t really true – it quite often stretches to find reasons to avoid upholding merely technical breaches of the accuracy standard. Even if it was true, it doesn’t mean to say that the BSA need to adopt the same approach in electoral advertising cases. The Electoral advertising code, after all, accepts that the Bill of Rights required “robust debate, advocacy and expression of political opinion”.
Topics: Advertising Standards, Broadcasting Standards Authority, Electoral speech | 48 Comments »
Labour’s YouTube Boob
October 30, 2008
Did John Key say National would cut KiwiSaver in half? That’s what Labour said in their “John and John” ad. The ad was broadcast on TV and posted on YouTube.
One S Davies-Colley thought was misleading, and complained about it.
Under NZ’s increasingly creaky media law edifice, complaints about TV and radio election ads go to the Broadcasting Standards Authority. But the Advertising Standards Authority has jurisdiction over all the rest – including ads on YouTube. S Davies-Colley complained to the ASA.
The ASA’s complaints board agreed with S Davies-Colley. John Key didn’t say National would cut KiwiSaver in half. He merely said National would cut the minimum employee/employer contribution from 4% each to 2% each.
Okaaaaaay. Sounds like half to me. But apparently it’s not as simple as that. The scheme has a $1000 kick-start amount. That’s not changed. And it has tax credits up to about $1000 a year that remain, though it seems they will be reduced for lower-income earners. What’s more, employers can continue to offer better deals than the minimum. Also, there are KiwiSaver members who don’t have employers, such as the self-employed, caregivers at home and early retirees. Their benefits won’t be cut in half.
So it’s right to say that those employed will have their employer contributions cut in half. And it may be right to say that for most KiwiSaver members, the benefits lost will be about half, though for a fair number, it’s likely to be significantly less.
Here’s my beef: I accept the ad was technically wrong, but I don’t think it was substantially misleading. I think political speech needs to be given breathing space for a degree over-simplification and exaggeration. I don’t think people engaged should have to weigh their claims to a nicety or face a penalty for it. Here, the penalty is not just the removal of the ad but the formal imprimatur of a complaints body on a finding of error. And I think the NZ Bill of Rights Act requires the ASA to give more weight to the importance of political expression.
Don’t get me wrong: I’m delighted that we have a system for ruling on the accuracy of political ads. It offers something of a buffer against terribly misleading ads like those aired by the “Swiftboat Veterans for Truth” who attacked – almost certainly falsely – John Kerry’s war record and may well have swung the election to George W.
Also, I think the ASA does a pretty good job most of the time. For example, they were right to not to uphold a complaint against the National Party’s Iwi/Kiwi billboard, though it was arguably even more deceptive than the Labour ad. They were right to reject a complaint against a water safety ad by the Waitakere City Council, even though it overstated the annual number of drownings in home swimming pools. They are right to recognise the importance of “robust expression of opinion and debate” in their rulings and state in their principles that:
…the Codes fetter the right granted by section 14 [of the NZ Bill of Rights Act – freedom of expression] to ensure there is fair play between all parties on controversial issues. Therefore in advocacy advertising and particularly on political matters the sprit of the Code is more important than technical breaches.
A minority of the complaints board found the breach technical. I agree.
I’m inclined to think the majority members of the complaints board got too picky, as they did in 1997 when the ASA upheld a complaint against an Electoral Commission ad that explained MMP by saying:
Key fact: Each party’s share of all the Party Votes decides its share of all 120 seats in Parliament.
The ASA thought that the ad failed to acknowledge that there were some circumstances when the MMP system wouldn’t pan out like this. True. But overly picky. It loses sight of the big picture. The ASA’s ruling there was overturned by the Court of Appeal in Electoral Commission v Cameron [1997] 2 NZLR 421 for exceeding its jurisdiction and muscling in on the Electoral Commission’s territory. More on that later.
In defence of the ASA majority in the KiwiSaver case, they reasoned that it was important in a high-profile issue like KiwiSaver that the parties get their facts right. They may also have had in mind that accurate financial information is at a premium in these these days of worldwide economic meltdown.
But I think they undervalue the importance of cutting political speech some slack. At election time, political speech is particularly valuable. The KiwiSaver point was focused on policy, and on a political leader’s credibility. National had ready public platforms on which to defend itself. Labour’s statement was accurate on one reading, and any ambiguity ought to have been resolved in its favour (as the Broadcasting Standards Authority often does). I don’t think this limitation on their speech was justifiable.
The case is under appeal to the Advertising Standards Complaints Appeal Board, and I gather it will be heard early next week. The grounds of appeal are limited, though: Labour will have to show new evidence, or a failure of procedural fairness or (most likely, I think) that the decision was against the weight of evidence.
Successful appeals are rare, but I think this should be one.
Topics: Advertising Standards, Electoral speech, NZ Bill of Rights Act | 49 Comments »
Staying power?
October 29, 2008
I’ve said that the failure of the Fairfax contempt prosecution is a blow for the arms charge defendants’ chances of getting a stay of prosecution due to prejudicial publicity. If the case had succeeded, it would have been difficult for the presecutors and the courts to proceed with prosecutions. After all, two High Court judges would have found that the coverage had created a real risk of prejudice to the fairness of those trials. Unless they could come up with some very convincing way of managing that risk, the trails surely could not have proceeded.
Of course, that didn’t happen. But the way the judges decided the case, I think, still leaves open a fairly good argument that those trials should be stayed. Why? Because the judges finding revolved around their conclusion that:
Any potential prejudice to the accused would largely flow from that material to which the Soliticitor-General does not take separate objection. Any additional prejudice arising from the publication of the intercepted communications would not add materially to any potential prejudice from other sources.
In other words, the prejudice caused by the earlier coverage, the statements of the Commissioner of Police and the Prime Minister, and even the statement of the Soliticitor-General, had done the damage. The Fairfax article added to it only marginally.
Incidentally, this rather flies in the face of a statement from the Chief Justice in the Women’s Weekly case from 2002:
It is not a defence that others have published the same material without contempt proceedings being taken against them.
Similar arguments were also dismissed in the Gisborne Herald case in 1994.
But the point here is that the judges in the Fairfax case plainly think there’s a good deal more prejudice around than they had to worry about to decide the case against Fairfax. If Fairfax was close to the line (and I think it’s a fair reading of the case to suggest that the judges thought it was), then what happens once you throw in the prejudicial material from other sources?
You’ve still got a reasonable argument that a fair trial is impossible, that’s what. But it’s always going to be an argument that judges will be very reluctant to accept…
Topics: Contempt of Court | 3 Comments »
In case you missed it…
October 29, 2008
Here’s an op-ed piece I wrote for the DomPost. Full credit to the boys (rugby was the winner on the day) for publishing it, because it’s not entirely flattering. Before that, they commissioned an independent and thoughtful piece from Karl du Fresne. The paper’s trial coverage was also fair and balanced. Credit to Tim Pankhurst and Paul Thompson, too, for fronting up on MediaWatch and answering some tough questions from Colin Peacock.
Topics: Contempt of Court | 48 Comments »
Blow me down
October 10, 2008
I confess, I thought Fairfax and Tim Pankhurst were goners. But they have survived the contempt application for their “Terrorism Files” story mostly unscathed.
I say “mostly” because the judges found that they should have been prosecuted for breaching suppression orders and the Crimes Act provision outlawing disclosure of intercepted communications. “We are at a loss to understand why these breaches were not prosecuted,” they said.
But make no mistake, big issue in this case was whether Fairfax’s coverage created a real risk of prejudice to the defendants’ cases. The judges said it didn’t. In short, they thought that it didn’t add much to existing prejudice created by statements by the Commissioner of Police and the Prime Minister and other commentators; that there’s been little prejudicial coverage since then and the usual suppression orders will ensure that continues; that the trial would be two years after the coverage; that the coverage won’t make much difference to jurors’ views on the actual legal issues in the Arms Act trials; and that juries are robust institutions capable of focusing on the evidence before them and putting aside anything they may have heard outside the trial.
Take a bow Fairfax’s legal team, headed up by Hugh Rennie QC and Robert Stewart.
You can see this case as a blow for freedom of expression or a failure to strike a blow for fair trials.
Without wanting to be churlish, there are a few aspects of the case that give me pause for concern. First, having discussed the expert evidence about jurors’ memories, the judges note that they are divided and both admit that any conclusion is “speculative” and conclude:
It falls to us to form our own assessment based on our experience as trial Judges given the lack of any truly helpful research which could assist in making assessments of this kind.
I find this infuriating. There is, in fact, a large body of helpful social science research, some of it specifically devoted to publicity about terrorists. I think they had a responsibility to mould the notoriously vague contempt laws so that it conformed much more closely to what we know will and will not affect juries. For them to fall back on their gut feelings (as judges have often done in the past) is outrageous. Their trial experience actually gives them no particular expertise about jurors’ memories, and they should stop pretending that it does. They could easily have reached the same conclusion they did by preferring the evidence of Dr Warren Young who gave evidence for Fairfax.
Still, I’d point out that even Dr Young acknowledged that there was a “real risk” of prejudice, which is precisely the test to be applied by the court (though he thought the risk was “very small”). If I was a defendant, I wouldn’t want to tolerate anything identified by two of the world’s foremost experts as a “real risk” to the fairness of my trial, even if one of them though the risk was small.
Second, this finding troubles me:
[129] We do not consider that the accused are likely to be prejudiced by the publications in relation to their defences. Offences under s 45 Arms Act are offences of strict liability. Proof of an innocent purpose for the alleged possession of the weapons falls upon the accused. There is nothing before us to suggest there is any real risk that any defence available to the accused on that basis is likely to be compromised by the publication of the intercepted communications. Mr Burns referred to this possibility in his evidence but we are not persuaded in the light of the other evidence to be called by the Crown that an innocent purpose defence is likely to be compromised. The focus of any defence is likely to be on issues of identification.
I’m not sure how the judges could possibly reach this finding. They knew that few of the defendants are relying on identification. Almost all of them will be relying on a defence of innocent possession – that they were having harmless fun, or learning bushcraft, or engaging in recreational activities. That may or may not have much chance of success. But it strikes me as having almost no chance at all if any of the jurors have any sort of memory of Fairfax’s front page article.
The judges say that jurors probably won’t remember the details. But it’s not their memory of details that’s the problem.
Third, I’m not sure about the finding that Fairfax was guilty of breaching suppression orders. If information is learned from a separate source, different from that which was suppressed – and particuarly where another judge has specifically decided not to suppress it (though I’m not sure if that’s the case here) – then it doesn’t seem a clear breach to me.
Fourth, I rather think that the judges’ finding that the Fairfax story added little to the existing prejudice doesn’t give enough weight to the fact that much of the information had never been published anywhere else, that it was by that stage inadmissible by law, and that it gave a level of detail that was much more potent than what had come before.
Whatever the case, this result makes it much less likely that the defendants will be able to successfully apply to have their appeals stayed. There is, I suppose, a possibility that the Crown will appeal. [Update: I was wrong about that. The Crown has no right of appeal from this decision.]
Topics: Contempt of Court | 53 Comments »
Interesting UK defamation trends
October 10, 2008
UK research into defamation reveals another hike in lawsuits from celebrities (32% of claims), and an increasing readiness by media organisations to settle (61% of cases result in a statement in open court). Results from 2007 had tracked an increase in claims from people accused of terrorism, and claims against posts on blogs and message boards.
Topics: Defamation | 47 Comments »
Libel by song
October 9, 2008
A British magazine that quoted a song whose lyrics suggested that a politician was involved in an assault has settled a defamation lawsuit for a five-figure sum.
Topics: Defamation | No Comments »
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