Auckland Council boob-oo?
August 15, 2008
Can the new Auckland Council bylaw requiring permits for (among other things) “any organised temporary activity including an organised gathering, parade, protest…” on public streets possibly be lawful?
Administrative law expert Dean Knight doesn’t think so. His terrific analysis concludes:
I am very confident in saying that, to the extent that the bylaw requires citizens to seek prior approval from a state body for a protest in a public place, it is patently inconsistent with the Bill of Rights and other fundamental common law rights, and is therefore unreasonable and invalid. There was, rightly, a public outcry a few years ago when Wellington City attempted to do this; it backed down. Also, it’s the very thing that many folk are pointing the stick at the Chinese government at the moment with the Olympics in Beijing. The requirement of prior approval is outrageous, particularly in the light of the restriction of protests and so forth.
Check out the Council’s flimsy Bill of Rights justification:
The council does not consider that the proposed bylaw is inconsistent with freedom of expression or freedom of peaceful assembly, or alternatively it considers that any limits in the bylaw are justified under section 5 of the NZBOR Act. The clauses do not prohibit the activities but rather impose reasonable conditions to ensure that those freedoms can be exercised in an orderly manner, and in a way that protects the public from nuisance, promotes and maintains public health and safety and minimises the potential for offensive behaviour in public places.
“Not inconsistent” with freedom of expression? It’s requiring a permit for a protest! The Council is giving itself power to refuse to allow a protest against it. This is like saying waterboarding isn’t inconsistent with the right to be free from torture. The real question is whether the restriction is demonstrably justified. The Council does address this, but after that start, it’s hard to have much confidence in its legal analysis. The fact that its section 5 analysis is one sentence long doesn’t help.
Dean rightly concludes that the extremely wide bylaw cannot be demonstrably justified, but thinks that a narrower one might be.
I’d add that the fact that the bylaw seems to have been aimed at the boobs-on-bikes parade means that the Council had a content-related motivation for passing the law – another reason the courts should treat it with suspicion.
Topics: Local government regulations, NZ Bill of Rights Act, Protest speech | No Comments »
Upcoming privacy forum
August 13, 2008
If you’re interested in privacy, you might like to register for the Privacy Commissioner’s Privacy Issues Forum, to be held in Wellington on 27 August.
The programme includes a keynote speech from the Commissioner herself and a presentation on the Law Commission’s work on privacy by Sir Geoffery Palmer and John Burrows QC, as well as sessions on:
- Health: screening programmes and genetic research
- Controversial issues in dettecting an preventing crime (DNA and sex offender notification)
- Is good privacy good business?
- Employment and privacy
- Investigations (PIs and police)
- Technology (including social networking and foreign government access issues)
- A legal update on Privacy Act and privacy tort developments
- The Ombudsmen and the Privacy Commissioner
Topics: Privacy Act, Privacy tort | No Comments »
But is it privacy?
August 13, 2008
The Evening Standard has printed an apology for falsely reporting that Prince Philip was suffering from prostate cancer:
We now accept that the story was untrue and that he is not suffering from any such condition. We unreservedly apologise both to him and to his family for making this distressing allegation and for breaching his privacy.
The apology was brokered by the Press Complaints Commission – further evidence that a complaints body is at its best when negotiating a quick solution to a media lapse.
Memo to our Press Council: this is another good reason to take up the recommendation of the recent review of the Press Council and establish a mediation arm.
But wait up. The paper got it wrong. Why is it apologising for a breach of privacy?
Gotta say, I’m not very comfortable with this. It seems to me that if you get something wrong, you’re not invading privacy, you’re committing some other sort of wrong. But I think we’re going to have to get used to this reasoning.
For one thing, as those who are frequently bagged in the media will tell you, media inaccuracies about you feel like an invasion of privacy.
More importantly, UK privacy cases are increasingly recognising that falsely reported facts can give rise to privacy issues. And the US has long recognised a strand of privacy that involves portraying someone in a “false light”, even if that false light isn’t strictly defamatory.
Still, this has the potential to blur the boundaries – especially between privacy and defamation. At the moment, it’s very hard to get an injunction in defamation cases, but it’s likely to be easier in privacy cases. Does that mean I can dress up my defamation case as a breach of privacy one, to make it easier to get an injunction? The UK courts seem to think they can resist this, but I’m not so sure.
Topics: Press Council, Privacy tort | 49 Comments »
When half a quote isn’t better than none
August 7, 2008
You might have spotted my star turn on One News last night. It was part of a story about National referring the taped-conversations affair (“CocktailGate”?) to the police. Might there have been a crime? Here’s the quote One News used from me, suggesting that I told them that the recording “may have broken the law”:
If you’re eavesdropping on somebody else’s conversation that you’re not part of, then you might be breaking the law if it’s clear that those people intend it to be private.
Well, true. But I went on to point out that there’s no crime if the people talking could reasonably expect to be overheard – which would probably be the case at a cocktail party. But TVNZ didn’t broadcast or mention that bit. Jessica Mutch, who conducted the interview, said she’d read my blog entries too, so she can’t have been in any doubt about my views.
But I guess that didn’t fit with the story they wanted to tell.
Topics: Media ethics | 1 Comment »
Picking up the Bill II
August 6, 2008
So now John Key is accusing Labour of being behind the “bugging” of conversations at the cocktail party. He suggested on Morning Report this morning that the repeated questions put to Bill English about Kiwibank sounded like someone was trying to set him up.
(Key is also throwing in the suggestion that Labour was behind Nicky Hager’s acquisition of National Party emails. He doesn’t supply any evidence of this. That would be because Hager’s material was leaked from within National.)
Still, my previous post left an open question. What if Labour activists had bailed up English and secretly recorded the conversation? I noted that they wouldn’t then be “intercepting” the conversation, so wouldn’t have broken that law. I suspected that there would be public interest defences to any breach of confidence or privacy action, against them or the media.
But was the behaviour lawful? I rather doubt it. I’d need to know more about the openness of the venue, the restrictiveness of the guest list, how they got in, and what (if anything) they told anyone or lead them to believe, in order to get in. It seems likely that along the way, the infiltrators (if that’s what happened) committed the torts of deceit and trespass. There are no public interest defences to those.
The really interesting question: would the courts have granted an injunction to restrain the media from publishing the material if National got wind of it ahead of time? They would probably restrain material obtained during a trespass if the process of gathering it was “unconscionable”. Was this? Maybe. They would probably restrain material allegedly obtained in breach of confidence, at least in the interim, so that issues could be fully argued – in particular the public interest defence. That “interim” period could stretch on for quite a while…
[PS: Since the Privacy Act doesn’t apply to news media in their news-gathering activities, I tend to overlook it. But since those involved in the first-hand gathering of the recorded material here probably weren’t news media folk, the Privacy Act does apply to them. The relevant principle is IPP 4 – information should not be gathered using means that are unlawful, unfair or unreasonably intrusive. Again, lots will depend on the circumstances. But most people wouldn’t expect to have their cocktail party conversations recorded. On the face of it there seem to be grounds for a complaint to the Privacy Commissioner against whoever did the gathering.]
Topics: Breach of confidence, Privacy tort, Trespass | 56 Comments »
Picking up the Bill
August 5, 2008
Did whoever surreptitiously recorded Bill English break the law?
What about the media who published the conversation or its contents?
It’s a crime to tape a conversation between other people if the circumstances indicate that one of the conversers wants it to be private (section 216B of the Crimes Act).
I have no idea how the conversation was recorded, except that it took place at a cocktail party. If the person who recorded it was one of the people English was speaking to, no offence has been committed.
If, on the other hand, the tape was made by an eavesdropper, nearby or at some distance, then we have ourselves an issue. It’s probably fairly clear that English meant the conversation to be confined to those he was talking to.
But that’s not the end of the story. There’s a defence if English:
ought reasonably to expect that the communication may be intercepted by some other person not having the express or implied consent of any party to do so.
He’s talking at a cocktail party. Shouldn’t he expect that he might be overheard? (“Interception” includes simply hearing the conversation). It might depend on how many people there were in the room, and whether English taken care to distance himself from them. But it seems likely that this defence will apply.
(There might be interesting non-criminal issues, such as breach of confidence, though. These would most likely come down to the question of whether the use of the material was in the public interest. I would have thought there’d be a fair case that the disclosure was in the public interest).
What about the media? If they were party to an illegal interception, they would be liable as parties if the person doing the actual recording was liable. If they weren’t involved, but knew that the material had been illegally intercepted, it would be an offence for them to disclose it. Neither seems likely here.
There might also be broadcasting standards issues. (These wouldn’t apply to Scoop, though. It’s not a broadcaster). The Broadcasting Standards Authority has held that broadcasting the content of an overheard conversation was a breach of privacy. The eavesdropper had hidden himself so he could overhear a conversation between John Hart and his wife on the street. The BSA said the broadcast of Hart’s comment was offensive, and there was no public interest in it. Similarly, when the Holmes show broadcast Parekura Horomia’s aside to a friend about his distrust of the media during a filming break.
Once again, there’s a public interest defence, though. And once again, there’s a pretty solid argument for it here.
Topics: Breach of confidence, Journalism and criminal law, Privacy tort | No Comments »
Target under fire
July 30, 2008
A few years ago, I did a report for RNZ’s MediaWatch programme, raising questions about whether the hidden camera stings in TV3’s Target programme were complying with broadcasting standards and the law of trespass.
Over the years, Target has survived a string of broadcasting standards complaints. The producers deserve some credit. They always take care to try to ensure their criticisms are fair and that those stung get to have their say too.
Still, Target was also lucky. The wrong people complained, and when the right people complained, they relied on the wrong grounds and arguments.
Now, it seems, Target’s luck has run out. The BSA has upheld a complaint that strikes at the heart of Target’s methodology. It will need to change its ways or face some stiff penalties.
The BSA has always said that hidden cameras are by nature intrusive and unfair, and require some prima facie evidence of wrongdoing before they’re used, and some real public interest in the footage before it’s broadcast. The big problem for Target: how do these rules square with Target’s routine practice of secretly filming people it has no prior reason to believe have done anything wrong, and broadcasting footage that, for most of those depicted, doesn’t really show any significant wrongdoing.
Target argues that the programme as a whole is in the public interest, and that they shouldn’t have to justify each component of the broadcast.
The complaint was about a hidden camera trial involving caregivers who were invited into the Target home to care for a patient (an actor hired by Target). Four caregiver companies were used. Two of the caregivers performed pretty well: the BSA said there was no justification to screen them at all without their consent. Two others were guilty of minor indiscretions (drinking juice from the fridge and taking a bag of chippies without permission, giving the patient cookies contrary to instructions, not giving the patient privacy in the bathroom, etc). The BSA said this just wasn’t bad enough to create the public interest sufficient to justify the severe intrusion involved.
So the BSA upheld complaints based on fairness and privacy. TV3 tried to argue that it effectively had consent: it had written to the companies for their comments and none had objected to the use of the material. But as the BSA pointed out, that’s not the same as approaching the caregivers themselves. Besides, a failure to object is hardly the same thing as giving consent.
On the way the BSA has interpreted the codes in the past, I can’t see how the BSA could have reached any other conclusion. In fact, there may well have been private facts about the caregivers revealed, too. (The BSA didn’t consider that strand of its privacy rules).
So what does this mean for Target? Either an appeal to the High Court, or a change of methodology. The BSA pointed out that Target could have sought actual consent – and the caregivers depicted favourably might have been happy to provide it. (Or not). The others almost certainly wouldn’t – but their faces could be pixelated. The companies could still be identified, and the public interest served that way (presumably as long as this wouldn’t also effectively identify the employee).
Or Target could restrict itself to broadcasting hidden camera footage when it really had something significant to reveal.
I think hidden cameras are deeply intrusive, and TV3 doesn’t appreciate the harm it does to its sting victims – even those who aren’t shown misbehaving. The grainy gotcha flavour of hidden cameras creates an aura of evildoing right from the get-go.
But it’s fair to consider the other side. Target may well have done incalculable good in alerting us to the abuses committed by tradespeople who come into our homes, and perhaps in deterring that sort of misconduct. Isn’t there a sense in which it’s true that the programme as a whole is in the public interest? And it’s notable that the caregivers didn’t themselves complain – which highlights a serious and justified gripe by broadcasters: why should someone who had nothing to do with a programme be able to complain about the personal harm done to someone else?
Topics: Broadcasting Standards Authority, Privacy tort, Trespass | 48 Comments »
The media’s revenge
July 28, 2008
A MailOnline profile on Justice Eady: “As cold as a frozen haddock, Mr Justice Eady hands down his views shorn of moral balance”. Mean.
News of the World strikes back, too.
Topics: General, Media ethics, Privacy tort | No Comments »
Okay, so does Mosley affect NZ law?
July 28, 2008
Quite a bit, potentially.
Remember, there was no claim in defamation (Mosley now says he’ll bring a separate lawsuit for that). And Mosley had failed in his injunction bid because the cat was out of the bag – the pictures were in the public domain.
Remember, too, that the framework of the law in the UK is different to NZ’s. In particular, over there, the judges have to balance the privacy rights against free speech rights – both are contained in the European Convention on Human Rights. Our Bill of Rights makes no direct mention of privacy rights.
Still, there’s a lot of interest here to NZ’s developing law of privacy. Here are some initial thoughts.
A responsible journalism defence?
Most interestingly, Justice Eady seems to import a “responsible journalism” standard into the defence of public interest. “Responsible journalism” is the quid-pro-quo in defamation cases for the expanded defence of qualified privilege. Now it may be making its way into privacy law. The idea is that, if the journalist has behaved responsibly in developing the story and assessing its public interest, then it may not be held against him or her if some of the facts turn out to be wrong.
So, for example, if the judge had found that the paper, through diligent inquiry, reasonably believed that the story was in the public interest, then the defence might succeed, even if, once all the facts are out, it turns out that the paper was mistaken about some facts and there wasn’t any real public interest in the story after all. (The judge found that the paper had been so reckless that this line of argument wasn’t available to it. But the seeds have been planted for future cases…)
That development might be echoed here.
“Intense focus on the facts”
The methodology espoused by Eady J is ask, first, is there a reasonable expectation of privacy, and secondly, what does an “intense focus” on the particular circumstances tell us about whether there should be liability. This second stage strikes me as odd. It suggests that the answer is likely to emerge magically from the facts, rather sidestepping the vital role of the judge in assessing them.
It almost suggests that the question is one of fact, which makes it correspondingly more difficult to appeal.
It avoids the very difficult conceptual task of examining whether particular limitations on privacy and freedom of expression are justified in terms of the Convention.
It steers cases away from the helpfulness of guidance of such rules of thumb as “public figures must expect to have less privacy” in favour of a test that says (and I quote the judge) “in every case ‘it all depends'” (ie upon what is revealed by the intense focus on the individual circumstances)”.
I’m not sure this approach will or should be copied in NZ. It seems tied to the Convention “balancing” between rights outlined above. In NZ, I think the process needs to be one of justification of the restriction on freedom of expression. But perhaps what the judge has in mind is “an intense focus on the comparative importance of the specific rights”, as Potter J puts it in A Local Authority v PD [2005] EWHC 1832, which seems more translatable to the NZ scene. Which brings me to…
Proportionality is the touchstone
Was the intrusion, or the degree of intrusion, proportionate to the public interest served by it?
This
necessarily involves and evaluation of the use to which the relevant defendant has put, or plans to put, his or her right to freedom of expression.
For example, political speech should be accorded greater value than gossip. This seems bang on, and is consistent with developments here and in the UK (not to mention the US and the ECHR). But it’s a mindset that is foreign to some judges.
Is intrusion a new branch of privacy?
“…the very fact of clandestine recording may be regarded as an intrusion” in violation of privacy rights, says the judge.
That is, there may be an actionable violation of privacy, even if no private facts are published… if some intrusive method of gathering information is used, such as hidden cameras or long-distance lenses.
Seems right too.
Exemplary damages are not available because invasion of privacy isn’t a tort
Exemplary damages are punitive damages, awarded to mark outrageous breaches of rights when ordinary measures of damages aren’t sufficient to do so.
On current authority, these are only available for torts. In the UK, privacy isn’t a tort. It seems, though, that it is in NZ, which would suggest that exemplary damages are available.
Still, that will probably only happen in rare cases, and exemplary damages tend to be moderate.
What is public interest?
Here’s an interesting observation:
The question has to be asked whether it will always be an automatic defence to intrusive journalism that a crime was being committed on private property, however technical or trivial. Would it justify installing a camera in someone’s home, for example, in order to catch him or her smoking a spliff? Surely not.
First: is this the first judicial use of the word “spliff”? Well done, that man.
Secondly, the answer may be different if the case involves a politician campaigning for harsh penalties against pot-smokers.
Thirdly, otherwise, this seems good and right to me.
The judge makes other significant points about public interest. It’s for the court to decide. It doesn’t revolve around what the journalist knew at the time. Later investigation might reveal facts that bolster a finding of public interest – the fact that these were discovered later will not be “fatal to the defence”. (But see comments on “responsible journalism” above. If a journalist wants to advance that argument, it will obviously depend on what was known at the time.)
He also notes that revealing wrongdoing to the public will not always justify revealing every gory detail. This was clear in the Naomi Campbell case.
Finally, the judge also notes (in line with our BSA, actually) that it may be reasonable and responsible to install or use a hidden camera, based on a “reasonable apprehension that the public interest would be served”. (Incidentally, it seems that this conclusion should only be reached if there’s no other way to get the material. Again, this is in line with the BSA).
But there’s a separate question to be asked about whether the footage acquired as a result is worthy of publication.
How do you measure damages?
It seems that the factors include:
- a comparison with personal injury damages
- a comparison with defamation damages – 50,000 pounds for a moderately serious national libel(though he says you can’t take this too far because defamation damages can undo the harm to some extent; privacy damages can’t)
- the need to protect dignity, autonomy and integrity
- the degree of distress, hurt feelings and loss of dignity
- “vindication to mark the infringement of a right” (is this exemplary damages by the back door, I wonder?)
- the need for proportionality, not arbitrariness
- any aggravating conduct by the defendant that rubs salt into the wounds, especially high-handed, malicious, insulting or oppressive conduct
- any conduct by the claimant that might suggest: “to what extent is he the author or his own misfortune”?
- deterrence, says the judge, should play no more than an incidental role
Topics: Broadcasting Standards Authority, NZ Bill of Rights Act, Privacy tort | 49 Comments »
Highlights from Mosley v News Group Newspapers
July 27, 2008
This is the privacy case against News of the World for publishing hidden camera photos and video clips of Formula One boss Max Mosley’s B & D session with five women. The paper alleged (wrongly, the judge found) that the sessions involved Nazi role-playing that effectively mocked the suffering of the Jews in the death camps.
Adding piquancy was the fact that Mosley’s dad was a leading British fascist, whose wedding was reportedly attended by Adolph Hitler.
The judgment is legally very interesting, and I’ll get to that tomorrow. But for now… some excerpts from Eady J’s judgment.
From the original news story:
His Jew-hating father – who had Hitler as guest of honour at his marriage – would have been proud of his warped son’s command of German as he struts around looking for bottoms to whack.
From the judge’s reasoning:
Mr Thurlbeck [the paper’s chief reporter] also relied upon the fact that the Claimant was “shaved”. Concentration camp inmates were also shaved. Yet, as Mr Price [for Mosley] pointed out [concentration camp inmates] had their heads shaved. The Claimant, for reasons best known to himself, enjoyed having his bottom shaved – apparently for its own sake rather than because of any supposed Nazi connotation.
From an email by one of the women setting up the session:
Hi ladies. Just to confirm the scenario on Friday at Chelsea with Mike [ie Mosley], starting at 3. If you’re around before then, I’m doing a judicial on him at noon so if you’d like to witness that, be here for 11am…
Doing a judicial! I for one will be doing my best to ensure that this terrific phrase enters the national lexicon. Technically, it apparently refers to a dominatrix wearing judicial robes and where there are prison wardens and beatings. But only the unimaginative will feel themselves confined to this interpretation…
The paper’s attempt to find some public interest justification for the story, when the Nazi angle fell over:
Perhaps the most artificial argument, verging on desperation, was to the effect that [Mosley] was inciting or aiding an offence of assault occasioning actual bodily harm contrary to the Offences against the Person Act 1861 – on himself.
The paper also argued that the women were being assaulted. Justice Eady examined the evidence…
… it is right to acknowledge that some of the young women playing the submissive role also developed a visible coloration of the buttocks. As Woman D accepted, it was painful – “but in a nice way”.
The astonishingly scuzzy behaviour of the paper:
There was discussion as to payment. The husband asked for £25,000 and Mr Thurlbeck agreed on condition that the story was selected to be the “splash” (which indeed in due course it was). Mr Thurlbeck explained that if the story was not the “splash”, there would be less money available. He confirmed that it was within his authority to offer payment of that amount although, of course, later it was reduced. This was explained by Mr Thurlbeck simply on the basis that, after he had obtained the clandestine film from Woman E, “I suggested to [her] that a more appropriate fee for the story was £12,000 and she agreed to this”. Why this was so, despite the fact that the story did in fact become the “splash”, is nowhere explained.
Mr Thurbeck’s emails to two of the other dominatrices, in an attempt to get an interview with them, once it became clear that Mosley was denying the Nazi aspect:
First email:
“I hope you are well. I am Neville Thurlbeck, the chief reporter at the News of the World, the journalist who wrote the story about Max Mosley’s party with you and your girls on Friday.
Please take a breath before you get angry with me!
I did ensure that all your faces were blocked out to spare you any grief.
And soon, the story will become history as life and the news agenda move on very quickly.
There is a substantial sum of money available to you or any of the girls in return for an exclusive interview with us. The interview can be done anonymously and you[r] face can be blacked out too. So it’s pretty straight forward.
Shall we meet/talk?”
Second email:
“I’m just about to send you a series of pictures which will form the basis of our article this week. We want to reveal the identities of the girls involved in the orgy with Max as this is the only follow up we have to our story.
Our preferred story however, would be you speaking to us directly about your dealings with Max. And for that we would be extremely grateful. In return for this, we would grant you full anonimity [sic], pixilate your faces on all photographs and secure a substantial sum of money for you.
This puts you firmly in the driving seat and allows you much greater control as well as preserving your anonimities [sic] (your names won’t be used or your pictures).
Please don’t hesitate to call me … or email me with any thoughts.
Regards and hope to do business.
Neville Thurlbeck, chief reporter, News of the World”
Third email:
“Ok girls, here’s the offer. It’s 8,000 pounds for an interview with one of you, with no name, no id and pixilated face. And we pixilate all the pics I send through to you this morning.
BUT time is running out for us and if you want to come on board, you need to start the ball rolling now. Call me … if you want to.
Best, Neville”
Justice Eady’s account of Mr Thurbeck’s “interview” with the initial source (who carried the hidden cameras), for his follow-up story:
I was also asked to have in mind Mr Thurlbeck’s approach to Woman E after the original publication and how he obtained the “interview” with her which was published in the following edition. He met her in a hotel in Milton Keynes on the day before publication of the follow-up article and presented her with what purported to be a transcript of an interview which he asked her to sign. It would appear to have been a fait accompli. She made no amendments or corrections to the signed copy at all. He then subsequently added further material to it (some of which was attributed to Woman E in the article). When challenged by Mr Price about this, he responded that it was all based on telephone exchanges with her over several days and that the “interview” represented a genuine reflection of what she had told him. There are unhappily no written notes to confirm this claim, which may be thought surprising for a journalist of Mr Thurlbeck’s experience. It is thus not possible to say how true a reflection the published article was of what Woman E had told him.
Were they prostitutes?
As it happens, some of the women were rather reluctant to accept the description “prostitute”… Several of them offer a variety of services on their website (usually spanking or being spanked in various guises) but expressly warn that they do not offer specifically sexual services. They apparently made an exception in “Mike’s” case and threw in a bit of sex, as it were, as an “extra” between friends. Indeed, sometimes they were not paid at all. As they liked the premises and found the atmosphere relaxing and congenial, things developed from there, Indeed, although the Claimant’s sexual activity as revealed in the DVD material did not seem to amount to very much, some of the women stayed on after the party was over and indulged in same sex action purely for their own entertainment.
Did the News of the World really lose this case?
Since releasing the Max Mosley orgy video no notw.co.uk, traffic on the site has increased by 600%.
How to measure damages?
It would seem that the law is concerned to protect such matters as personal dignity, autonomy and integrity. It has to be recognised, of course, that at first sight these notions appear somewhat incongruous when introduced in the present context.
On the other hand:
… After all, sexual activity is rarely dignified.
Topics: Media ethics, Privacy tort | 50 Comments »
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