A case to keep an eye on
October 8, 2008
Max Mosley, who successfully sued for invasion of privacy over the disgraceful “Nazi sex orgy” hidden camera sting, is taking his case to the European Court of Human Rights with an interesting argument: the law should require the media to give advance notice to the subjects of their revelations before publishing them. That would give the subject a chance to go to court to stop it. Otherwise, he argues, privacy laws provide no real remedy.
Topics: Privacy tort | No Comments »
A different way to tackle the juror-internet problem
October 7, 2008
Fine the jurors. Under new laws in Victoria, jurors can now be fined up to A$13,000 for conducting online research during a trial.
Topics: Contempt of Court, General | 1 Comment »
Eat the worm
October 7, 2008
There’s talk that TV3 might use the worm again for its leaders’ debate. In an attempt to persuade them not to, let me revisit a column I wrote before the last election:
I see the worm is back.
No, I’m not talking about John O’Neill. I mean the squiggly electronic line that measures audience reaction to politicians’ performance in television debates. I hate that worm.
Still, I can see why television executives love it. It draws us to television screens in droves. One Australian commentator wrote that “many viewers find the worm more interesting than the politicians.”
And that’s the problem. We no longer need to listen to the debates and think about what we’re hearing for ourselves. We have an electronic scorecard. An infallibly scientific one. A fascinating, beguiling one. Instead of thinking to ourselves, “Now, is Helen Clark making any sense?” we think, “How is that going down? Is she winning the game?”
It’s politics as pure sport. We are mere spectators. The worm relieves us of the burden of having to work out for ourselves who’s ahead.
But hang on. The worm is simply the electronically summed gut reactions of a bunch of undecided voters twiddling some knobs in a room somewhere. Why take any notice of them? You won’t be told who they are, but you can make some safe assumptions.
First, the great majority of them will not share your political views.
Second, you would find some of them to be complete tossers.
Third, you have no idea what they are reacting to. You’re watching their reactions to the leaders’ ideas – mostly before the leaders have finished expressing them. Some of them are thinking, “Yeah, I’ve been following National’s Treaty of Waitangi policy and it makes good sense to me.” Some are thinking, “Ooh, I like his tie.” Some are thinking, “Damn, I forgot to remind Trish to pick up the sausages.”
When the worm was first used in 1996, Pam Corkery reckoned it simply went up when the live studio audience applauded. Wellington businessman Michael Gibson observed that the worm dipped whenever Paul Holmes appeared onscreen, no matter who was talking.
This is the process by which the will of the people is translated into science.
The worm then declares the winner of the debate, and identifies the big turning points as the parts of the debate that are worthy of discussion. (In 1996, TVNZ screened the debates first without the worm, followed by a package of worm highlights.) Poor Jim Bolger fielded a question from a grieving audience member whose mother had died three weeks earlier. She had been on a waiting list for a heart operation. “I extend my sympathy to you and your family,” Bolger said awkwardly. “I’d have to say that death is always associated with health…”
Doh. Of course, the worm went subterranean. Bolger was treated to endless replays of this moment, complete with burrowing worm, and it dominated the print media reaction too. I could be wrong, but I don’t remember anyone using this opportunity to explore the question of how many people were dying on waiting lists, whether that number had increased under National’s watch, and how the parties’ health policies played into the issue.
There was lots of coverage about Bolger’s poor performance, though. “Obviously, Mr. Bolger will have to learn to lift his worm,” wrote Brent Edwards memorably.
There was also lots of coverage about how the worm adored Helen Clark. The commentators examined her “empathetic nodding,” her “softer, modulated voice,” her “pained sincerity,” her “ability to project an authoritative presence.” They didn’t examine her policies much.
And that’s why I hate the worm. It’s yet another thing pushing us toward image analysis and horse-race politics, and away from talking about how we’ve been affected by the government’s decisions in the last three years, what the alternatives might have been, and what policies are best for the future. The worm finds this stuff too boring. It doesn’t like long explanations. Nor does it like taxes (though it does like improvements in health and education). It doesn’t like uncomfortable truths being mentioned.
But watch it perk up at huggable words like responsibility, security, community and opportunity. (There’s serious research that people love these words.) Listen for: experience, commitment, pride, New Zealand, future, success, trust, children, keeping promises, leadership, vision. Helen Clark often uses the vision-word, but it seems to sit ill in her mouth. Back in 1996, though, she denied that she was coached to use favoured buzz-phrases. “If you went into a debate trying to remember that sort of thing, you’d fall flat on your face,” she said. “Answering the question is critical.”
Actually, Clark is masterful at answering a slightly different question to the one that’s asked. Still, she compares well with Winston Peters, who will answer a different question entirely. Watch out for those magical transition words: “let me just say this.”
The worm’s one redeeming feature is that it punishes politicians who duck questions using this sort technique, which they get away with the rest of the time. For all that, I still don’t want the worm. It produces bland worm-tested arguments. It hypnotises viewers and media pundits. It assumes that knee-jerk popular appeal equals quality democratic debate.
TVNZ should swallow it.
Topics: Electoral speech, Media ethics | 51 Comments »
TV3 next in the dock…?
October 7, 2008
It’s an innocuous-sounding phrase, but it should be emblazoned on the memory of every court reporter: “identity is at issue”.
That means that the defence will be arguing that “it wasn’t me, it was someone else”. (This can be contrasted with a defence such as, “it was me, but it wasn’t a crime, or it was self-defence” etc).
That means the Crown will have to prove that it was the defendant. That means they’re likely to be relying on witnesses to identify the defendant. And that usually happens by the rather unsatisfactory method of an in-court identification.
“Do you see the man you saw knifing your neighbour in the courtroom today?”
“Yes – that’s him there, the man sitting in the dock between those two burly police officers”.
(Incidentally, the courts have often warned police that this isn’t the best identification evidence and they ought to be holding identity parades much more often. For a variety of reasons, the police hardly ever do. They’ll much more often show the witness some photographs, or have the witness do a walk-by to identify the defendant, neither of which is as good as an identity parade.)
Anyway, that puts a premium on the in-court witness identification, and the court needs to be sure that, weak as it is, it is as untainted as possible by outside influence. It would be outrageous, for instance, if a police officer whispered to a key identification witness just before the witness was about to give evidence: “don’t forget, the guilty guy is a tall Indian fellow with a scar on his forehead”.
That’s why the judge warned the media not to publish any images of Liam James Reid. And why he was so furious when TV3 did so.
Defence counsel might go to town on this. “How can this identification hold any water?” they might argue. “The witness admits she saw the TV3 report. How do we know she’s remembering what happened at the time of the offence – and not merely identifying the defendant from what she saw on TV?” In such cases, there may even be argument that the trial should be abandoned.
One problem, as I’ve said before, is that many journalists just don’t get contempt of court. They don’t understand what it’s for, or what it covers. They just have some dim memory of a class in journalism school when they were told that they mustn’t prejudice the administration of justice. Whatever that might mean. Something about previous convictions, maybe?
That applies especially to journalists who are drafted in to cover a case without much previous courtroom reporting experience, and journalists who skip in and out of court, just report on the bits they see,and don’t check with courtroom staff to see what restrictions might have been imposed. (That said, I don’t know who was responsible for the TV3 coverage).
UPDATE: I’ve just seen the story online. Reid’s face (I assume it’s him) is masked. I assume it wasn’t last night. But even without pixelation, if this is all that was screened, it seems a pretty distant and fleeting shot.
Topics: Contempt of Court | No Comments »
TV3 wrong about gong
October 3, 2008
TV3 misled viewers when it broadcast its Campbell Live interview with an actor playing one of the Waiuru Army Museum medal thieves, the BSA has ruled. Viewers were only told that the voice was that of an actor, and might well have thought the person they were seeing was one of the real thieves.
After Ursula Cheer made her complaint, TV3’s complaints committee adopted a heroically generous interpretation of the accuracy standard to avoid this conclusion. It argued that it corrected the report promptly afterwards, and so there was no ongoing breach of the standards.
The BSA noted that it actually took TV3 three days to fess up, and it never broadcast a correction on Campbell Live, or indeed, anywhere else on TV3. It did, however, admit the error in other media.
Here’s the rule laid down by the BSA:
The Authority accepts that there would be occasions, where an error was corrected very quickly, when it could not reasonably find a breach of the accuracy standard. However, the Authority considers that the broadcaster itself would need to have corrected the error in the same medium and for a similar audience as the original broadcast, and at the earliest reasonable opportunity.
Topics: Broadcasting Standards Authority, Media ethics | No Comments »
A plea for savvy election night coverage
October 2, 2008
It’s not too much to ask, surely.
Here’s what any sensible person, at least half-interested in politics, is going to want to know as the election results roll in:
1. What’s going on in the key electorates that might make or break a party? Winston Peters, Rodney Hide, Peter Dunne, Jim Anderton, maybe Ron Mark. Which electorates (and indeed polling places) are bellwethers, and what’s going on there? What’s going on in other signature electorates (eg Wellington Central) containing candidates that have some totemic signficance? By and large we don’t care about the other electorates.
2. Which minor parties are making the 5% threshold, especially if it’s clear that they need to (Greens, NZ First)? Okay, so you’ll probably tell us that. Hopefully, you’ll also tell us how close they are to that threshold. Two decimal places, please. But how about taking the next step: if a party is teetering on the threshold, tell us whether their votes are likely to go up or down based on which way the as-yet-uncounted polling places (and overseas/late-counted voters) voted last time. Want to really impress us? Jiggle the likely numbers by the existing information about the magnitude of the swing.
3. Convert the votes to a graphic showing how they affect the composition of Parliament. Okay, so you’ll do that too. But again, that’s not enough. Take the next step. If United Future has three members at the half-way stage of the counting – tell us how close it is. Is it only just three members? Or nearly four? That stuff can be crucial to getting a sense of the horserace (and incidentally, to the question of who’s going to be governing the nation). How many more votes will they need to get to four? Bonus points: if people vote in the remaining polling places the way they did last time, will they make it to four? What if you adjust it for the swing? And what about this: if United Future does get that fourth seat, which other party is likely to lose it? Give us some information about that instead of conducting another meaningless and repetitive interview with an ecstatic or disappointed candidate.
4. Extra bonus points: track which MPs at the margins of lists will get in and miss out as the vote tally progresses.
5. Track the overhang. Sure, you’ll tell us whether there is one, and how many it will be. But again, the next question is: how far away are we, on whatever counting is current, from that changing? How likely is that change, based on past voting/current swing data, which way would it be, and how will that affect the total composition of Parliament?
6. In short, run the scenarios. I want coverage that will tell me: “With 70% of the vote counted, National is on 48.05%. That would give it 60 seats in a 123 seat Parliament, and it could govern with Act. The swing this year is in favour of National, but even if we adjust last year’s voting pattern for that swing, the last polling booths are still likely to favour Labour narrowly, and we’re picking National will lose two of those seats. (Incidentally, that would be Stephen Franks missing out). One seat, though, would switch to United Future, which is right on the cusp of taking rising from one seat to two, and on the basis of past voting in the remaining precincts, looks good for taking that extra seat. Labour would also pick up one, but on that scenario we’d be looking at a likely National/Act/United Future government. But there’s something that could throw a spanner in the works! The Maori vote is also on a cusp, and on past voting patterns, they’re likely to fall below it. That won’t affect their number of seats, but it will blow out the overhang to 124 seats – and National/Act/United Future can only muster 62 between them. Then everything’s in the balance. The key numbers to watch right now, then, and you can see the updates across the screen, are whether National dips below 46.4% and whether the Maori vote falls under 2.6%…”[That data is made up and probably won’t bear any relation to reality, but you get the picture].
I’m not holding my breath that TVNZ or TV3 will provide this sort of nuanced coverage. They’ll probably be too busy playing with pretty graphics that tell us little more than the raw figures.
But how about a savvy blogger with a calculator and some skill at playing with the Elections website?
Can David Farrar be persuaded to put aside his partying for the evening for the good of the nation?
Topics: Electoral speech, Media ethics | 4 Comments »
Open letter to Reading Cinemas
October 2, 2008
I like your comfy seats.
But you know that ad you run with the fat guy in front of the TV, stuffing himself with chippies? The one where one of the books gets fed up with him and flies through the air to drive him off the couch and out the door that swings open for him, inviting him to get out?
This might be a good ad for books. Or for, say, hiking. But isn’t it stupifyingly brainless to use it to encourage people to go and sit in another building, in front of another screen, stuffing themselves with your popcorn? People, I might add, who have already taken this step and are sitting right there in your cinema.
It only makes me think I should be buying a book and heading off for a swim and a picnic instead of vegging out in your theatre.
Topics: General | 1 Comment »
Nice Job 3
October 2, 2008
This week also sees a ripper of a decision from Justice Harrison, overturning Judge Treston’s ruling that the media can’t have a copy of the videotape evidence from the unsuccessful prosecution of the police officers accused of assaulting Rawiri Falwasser with batons and pepper spray in custody. (I have criticised Judge Treston’s decision here).
Among the many things to admire in Harrison J’s judgment:
- He sets out the context of the case, noting that “Mr Falwasser’s behaviour throughout the seven hour period [that he was in custody] placed the officers in a situation of accelerating difficulty”, and that it’s only when you look at the key pieces of the film in slow motion that you can see the threat that the police officers were responding to.
- He rejects the idea that the courts have taken a “cautious approach” to applications for access to court material. Instead, he suggests a presumption in favour of a right to search.
- He knocks on the head the argument that open justice has been served by allowing the presence of the media at the hearing itself. He accepts the argument from Adam Hopkinson (buy that man a drink, too) that “taken to its logical conclusion… leave would never be granted”. Later, the judge says the courts shouldn’t assume that “the media always acts as an adequate filter on the contents of a primary exhibit or source document when reporting a trial.” Journalists don’t necessarily know what’s important when they’re covering the hurly burly of a trial, with the limited information they have at the time. (The key issues might not even be clear to the lawyers until the trial progresses!) Besides, much of the time reporters are describing what happened: video evidence can tell a more complete story “which cannot be captured by a reporter’s summary”. And if reporters have already been given access, he says, what’s the harm, in the usual case, in letting them copy the video? Damn straight.
- Most importantly, he smashes the argument that “the media won’t use it fairly”. “The Court cannot deny a media request because of doubts that the video will be played or presented in a balanced or fair way,” he says firmly.
- He emphasises that the public interest in the trial doesn’t end with the verdict. Acquittals “do not disbar an inquiry into whether or not the verdicts were properly based.” That’s especially so where there’s public disquiet about the outcome. The judges shouldn’t add to the impression that there’s something to hide.
Topics: Court records, NZ Bill of Rights Act | No Comments »
Nice Job 2
October 2, 2008
Joanne Black’s article “Fair Facts?” in this week’s Listener (full text up on the 18th) gives a terrific overview of the key issues in the Fairfax contempt trial, based largely on the affidavits of the experts.
While I’m dishing out praise, let’s have a round of applause for the headline writer, too.
Topics: Contempt of Court, Media ethics | No Comments »
Nice job 1
October 2, 2008
Kudos to: Judge David Harvey for reversing course on the suppression order that applied only to the internet. As I’ve discussed, he had reasons for imposing the unusual order, though I thought they weren’t sufficient. When the media belatedly turned up to argue the toss, the judge accepted that:
absent an identifiable risk to a fair trial at this stage, together with the media’s ability to withdraw material at a later date if directed, it appears to me at this time in this case that s 14 freedom of expression [in the Bill of Rights] overrides the s 25 right to a fair trial.
Unfortunate point of confusion: the best reading seems of this to be that there was no evidence of any threat to a fair trial, so s 25 isn’t really being “overridden”.
Delightful irony: at the same time as the media were putting affidavit evidence in front of Judge Harvey insisting how easy it is for them to remove online material if need be, there were red faces at Fairfax when it was discovered during their contempt trial that one of the Crown lawyers had, by the simple expedient of a Google search, pulled up the material they said they’d taken down.
Extra bouquet: to Bruce Gray QC (and Bell Gully’s Alan Ringwood, and whoever they had beavering away at the research) who did a fine job for the media before Judge Harvey. Their submissions were rigorous and their Bill of Rights arguments, in particular, showed a degree of nuance and cogency I’ve rarely seen in media law cases.
Interesting aside: at Bruce Gray’s tentative suggestion, the judge accepted that the media may have additional rights that may not be available to the public. This line of thinking has important ramifications for access and source protection issues.
Topics: Internet issues, NZ Bill of Rights Act, Suppression orders | 15 Comments »
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