UK political broadcast ad ban upheld
March 31, 2008
In NZ, we ban the broadcast of election ads, except for those paid for out of the broadcasting allocation. That means a pot of about $3 million of public money gets divvied up between the parties (along with a bit of free air time that some publicly minded stations throw in) – and that’s the only election advertising allowed to hit the airwaves. Issue ads – that don’t encourage us to vote one way or another or support a candidate – are allowed.
The rationale: broadcast ads are so potent and so expensive (and, perhaps, so capable of providing distortion and manipulation) that it’s in the interests of democracy that important political debate shouldn’t be skewed in favour of those who can afford to pay for ads.
Given the importance of political speech, I’ve sometimes wondered whether this ban is justified under the NZ Bill of Rights Act. Of course, our Bill of Rights doesn’t override other laws. But it may well be possible to have a judge rule on the question of consistency. And inconsistencies are supposed to be flagged to Parliament before laws are passed. That didn’t happen here, because the ban was passed before the Bill of Rights Act.
I’m torn about this. Such speech is of vital importance, and ought not to be restricted without very good justification. But the current law avoids the sort of saturation of the airwaves by misleading negative ads that’s endemic to US politics.
Well, now I have an answer, of sorts. An ad ban is a justified limitation on freedom of expression. In fact, an ad ban against the television broadcast of any political ad (including a political ad aimed at “influencing public opinion on a matter which… is a matter of public controversy) is justified. That’s the law in the UK. And it was upheld this month by the House of Lords, in a case involving an animal rights group that wanted to broadcast an ad about endangered primates.
Here’s the key paragraph, from Lord Bingham:
The fundamental rationale of the democratic process is that if competing views, opinions and policies are publicly debated and exposed to public scrutiny the good will over time drive out the bad and the true prevail over the false. It must be assumed that, given time, the public will make a sound choice when, in the course of the democratic process, it has the right to choose. But it is highly desirable that the playing field of debate should be so far as practicable level. This is achieved where, in public discussion, differing views are expressed, contradicted, answered and debated. It is the duty of broadcasters to achieve this object in an impartial way by presenting balanced programmes in which all lawful views may be ventilated. It is not achieved if political parties can, in proportion to their resources, buy unlimited opportunities to advertise in the most effective media, so that elections become little more than an auction. Nor is it achieved if well-endowed interests which are not political parties are able to use the power of the purse to give enhanced prominence to views which may be true or false, attractive to progressive minds or unattractive, beneficial or injurious. The risk is that objects which are essentially political may come to be accepted by the public not because they are shown in public debate to be right but because, by dint of constant repetition, the public has been conditioned to accept them. The rights of others which a restriction on the exercise of the right to free expression may properly be designed to protect must, in my judgment, include a right to be protected against the potential mischief of partial political advertising.
This conclusion rather flies in the face of a European Court of Human Rights decision, so there’s an interesting potential clash coming up.
It is founded on a belief in the importance of the ban, a degree of defence to Parliament, and a finding that it’s impractical to draw a narrower distinction, banning (say) ads for political parties but not issue ads, as NZ has done.
Needless to say, this decision would not fly in the US. I wonder whether even Canada would buy it. To me, it seems long on deference and short on evidence, for all that I have some sympathy for the reasoning.
[In addition, as Graeme Edgeler has noted, there are a couple of ways in which the UK ban may be more justified than NZ’s rules. First, it only applies to TV and not radio. Second, the way NZ’s ad-spending money is divvied up creates a bias in favour of the big parties, which get the biggest share, and consequently caps the little parties’ spending at low and unequal levels.]
An aside: any second thoughts from all those who opposed NZ’s dumping of the Privy Council (which has the same judges as the House of Lords) because their judges were better and more able to protect our rights than ours?
Topics: Electoral speech, Free speech theory, NZ Bill of Rights Act | 47 Comments »
Headline: Police do good job
March 26, 2008
You don’t see that headline too often. This is a bit off-topic, but I had an experience of an emergency 111 call-out over Easter. It turned out to be a false alarm, but police were there within five minutes (a second car arrived a couple of minutes later). They were thoroughly professional. Well done, them. I’m not sure the police get enough credit for the things they do right.
Topics: General | No Comments »
Helpful access-to-court-records case
March 25, 2008
This judgment from Harrison J is a useful addition to journalists’ armoury in their ongoing battle for access to court files.
The Sunday News wanted to see the file on Matthew Ridge’s leaky home litigation. The Registrar refused, saying that the paper needed to show “an interest [in the case] greater than that of the public at large'” (This phrase was taken from an earlier case. Alas, the cases are rather contradictory).
Harrison J said this was the wrong question. As the Court of Appeal found in McCully v Whangamata Marine Society [2007] 1 NZLR 185, the issue is whether the media has a “genuine and proper interest” [the actual phrasing of the test is “genuine or proper interest”], but the threshold is not high. The Court of Appeal said Registrars should ask whether the application for access is “frivolous or vexatious or merely prurient”.
Harrison granted access. The paper had written about leaky homes, leaky homes are a matter of public interest, and the Bill of Rights supported access. The paper didn’t need to show some special interest in the particular case.
An interesting footnote: the judge added the condition that
any article published in relation to the proceeding gives appropriate and balanced prominence to the nature of the claim and the nature of the defences.
I’m not aware of other judges adding conditions like this relating to substantive reporting. I’m not sure this is the sort of condition that’s contemplated by the rules. I’m also not sure how it would be enforced, though it would be a contempt of court not to comply. I wonder if judges will start making a habit of this…
Topics: Court records, General | 2 Comments »
Just click the link
March 20, 2008
Do it now. It takes a minute or so. The lesson might last a lifetime. And I think it has something to say about the media, too.
Topics: General | No Comments »
HC overturns BSA privacy decision
March 16, 2008
Last August, the BSA upheld a complaint from Dr Stephanie du Fresne, the medical director of a mental health clinic, about an interview with one of her committed patients conducted without the clinic’s knowledge. TV3 News interviewed the woman about her electric shock treatment, which she didn’t want. The story revealed that she was bipolar and manic depressive. She said she suffered night terrors and had attempted suicide twice because of fear of the treatment. Her husband supported the treatment, and was seen on the programme trying to stop the interview. But the woman seemed lucid and in control; she overrode her husband.
There’s no doubt the programme revealed private, personal details about her, and that without informed consent, the broadcast of such details was highly offensive. But did she give informed consent? TV3 said yes. She seemed to know what she was doing. Her lawyer supported her. There was some evidence that, even after her release, she did not regret the interview. “Informed consent” was a judgment to be formed by journalists, not doctors. It felt that the patient had the right to speak out against her treatment.
Dr Du Fresne said no. The clinic’s medical judgment was that she was not capable of giving informed consent. They told TV3 this when they became aware of the upcoming broadcast. TV3 got no second opinion. It ran the story, but broadcast Dr Du Fresne’s view about her incapacity.
Du Fresne complained to the BSA, which upheld the complaint:
The Authority understands that a broadcaster may, in some circumstances, be required to make difficult judgment calls about whether a person is capable of consenting to a breach of their privacy. However, in circumstances where the broadcaster was advised by a forensic psychiatrist and treating clinician that the individual was not in a position to give informed consent, the Authority considers that it was not appropriate to ignore that advice and proceed with the broadcast. Although JS appeared to be “coherent and capable of expressing herself”, the broadcaster should have accepted that it was not better able to assess JS’s capacity to give consent than her treating clinician.
But the High Court disagreed. (The case isn’t online yet). Simon France J found:
1. It was a breach of natural justice to determine the complaint without reference to the patient. The BSA found she wasn’t capable of consenting, though she seemed to do so. Upshot, I think: if a “third party” privacy complaint raises the prospect of an adverse finding about the person affected, that person needs at the very least to be given a chance to comment before the finding is finalised. This may apply more generally to other complaints that raise issues about non-parties.
2. In fact, in these circumstances, the BSA should have declined to hear the complaint, because it necessitated an inquiry into a third party’s mental health status. Is this limited to the (fairly narrow) facts of this case? Or might it suggest a rather wider principle about the BSA needing to decline jurisdiction when it may need to make adverse findings about someone who has not chosen to complain? The judge does say that there may be cases where third parties can complain about privacy breaches.
3. The general test for informed consent is whether a person has “an awareness of being interviewed, of knowing the true context of the interview, and of being aware of the purposes to which the interview is to be put.” In general, this does not require an appreciation of the ramifications of broadcast, including what publicity it might generate, or how it might impact on the interviewee’s health. Still, “more might be required in a specific case, and this may indeed be such a case” (particular care may need to be taken to ensure mental health patients’ understanding is real and sufficiently complete). The judge suggests that this interpretation of the notion of informed consent is required for consistency with the NZ Bill of Rights Act, but provides no more detailed reasoning about this.
4. It wasn’t clear what test the patient’s clinical team were applying for “informed consent”. (This is a bit rich, I think, given that Simon France J himself hasn’t said what the test requires in cases like this! Still, he finds that the question would need to be determined in light of fuller argument and better evidence, including proper evidence about what the patient thought and understood at the time.)
5. Public interest will never be a defence to the failure to get informed consent to the release of such personal information.
6. The case is not to be taken as an endorsement of TV3’s conduct. In particular, there was plenty of time for it to work through the clinic’s concerns as there was no urgency in the story.
7. As a general rule, the BSA should not usually appear in court and make submissions in defence of its decision. (This is probably right as a matter of law. But no other judge has expressed this concern in BSA cases, and it will mean that there will usually be no-one arguing the other side in BSA appeals.)
Topics: Broadcasting Standards Authority, NZ Bill of Rights Act, Privacy tort | 53 Comments »
Highlights from Press Council forum
March 16, 2008
Top 10 most interesting points from Thursday’s public forum, “The Press and the Right to Know Under Siege”, where the speakers were Law Commissioner John Burrows QC and the chairs of the Australian and NZ Press Councils, Professor Ken McKinnon and Barry Paterson QC:
- Barry Paterson, a retired High Court judge, “hated TV in the courtroom”.
- He thinks that in most cases, media publicity doesn’t prejudice fair trials: “I don’t subscribe to the view that juries are usually influenced by media comment.” He said he had presided over two murder trials where defendants were acquitted despite the wrongful prior publication of their terrible records.
- He is worried that statutes and regulations may be chipping away at freedom of expression. Examples: restrictions on reporting about suicide in the Coroners Act; the proposal to restrict access to births, deaths and marriages registers; the restrictions on policitcal speech in the Electoral Finance Act (he was surprised that the Crown Law Office vet deferred to the government’s political judgment, and that this “margin of appreciation” could tip a finely balanced freedom of expression issue in favour of allowing encroachment); the possibility of wide codes, and later regulations, aimed at non-communicable diseases, affecting the advertising, sponsorship and marketing of particular goods under the Public Health Bill; and the proposal to amalgamate regulation of various media platforms. As to amalgamation, he says it is “logical perhaps”, and the different rules for different platforms “need to be made more standard”, but “government regulation of freedom of the press is a contradiction in terms.” (I wonder quite what he means by this. Surely he’s not suggesting we should dump the Defamation Act, for example. Does he object to the BSA’s jurisdiction, thinking, perhaps, that self-regulation would be better? Isn’t the press regulating freedom of the press also a bit of a contradiction in terms?)
- Paterson says the tension between freedom of expression and privacy rights is “the Press Council’s greatest challenge”, and the Press Council will have to tackle the definition of the “public interest” exception, as Australia has done. (The Australian PC has developed a detailed set of standards about privacy. Public interest is defined as “involving a matter capable of affecting the people at large so they might be legitimately interested in, or concerned about, what is going on, or what may happen to them or to others.” For myself, I don’t think this adds much, and immediately raises a question about public interest in stories that only affect a sector of the population.)
- He believes the tort of privacy was inevitable.
- He says suppression orders are often given for good reasons, and although they are “too readily granted”, this is often because poor District Court judges are faced with long lists of cases in a short time frame with many finely balanced suppression issues to resolve.
- Paterson is concerned that we don’t value freedom of the press enough. He points to a 14-country BBC poll revealing that while 56% of those polled felt that freedom of the press was very important to ensure a free society, 40% felt that it was more important to maintain social harmony and peace. (He wondered whether a factor in that was the finding that 29% of people in the US, Britain and Germany felt that the press did a bad job of reporting accurately.) The poll also noted that many people thought that media ownership was an issue of concern.
- John Burrows listed recent advances for freedom of the press, notably the Bill of Rights Act, the Official Information Act, the loosening of defamation law, the abolition of sedition and increased protection of sources under the new Evidence Act.
- But he said we need to be vigilant to ensure any restrictions on the press are properly justified. He thinks objectives of the Electoral Finance Act are okay, but its provisions “may well have gone further than they should”. He, too, was concerned at proposals to limit access to the births, deaths and marriages registers. He was worried that security information classification and new police surveillance powers need to be watched. And he thinks that the Privacy Act is being misapplied to deny the media information that it needs, but “I don’t know how you fix that.”
- Ken McKinnon mostly spoke about Australian issues, but made some comments relevant to NZ:
- He thinks judges are too quick to conclude there has been contempt by publication.
- He’s concerned that there are too many suppression orders, and there’s no place for journalists to check what’s been suppressed, and sometimes the suppression orders are themselves suppressed.
- He thinks sports broadcasting deals are affecting sports reporting.
- He worries about commercial pressures reducing news staffs.
- The new Australian offer-of-amends system in defamation cases (where legal costs are on the line if either party doesn’t play ball) is successfully producing early settlements.
- Anti-terror laws are creating serious civil liberties problems.
Topics: General, Internet issues, Media ethics, Name suppression, Press Council, Privacy tort, Suppression orders | 1 Comment »
Another backward step for the Bill of Rights
March 15, 2008
The best measure of a country’s commitment to free speech is its willingness to protect speech it doesn’t like. At the very least, a respect for free speech involves ensuring that any restrictions are clearly justifiable. That’s how our Bill of Rights works.
The Supreme Court passed this test in R v Brooker, using the Bill of Rights Act to rein in the police’s power to use the offence of disorderly behaviour to penalise a protester.
Justice John Hansen in the High Court has just faced the same test, and flunked it.
In Evans v R, he upheld the conviction of a sloshed guy attending a concert at a Queenstown winery last March who was annoyed that the police had closed the bars at 9pm, and taunted two police officers, thanking them sarcastically for ruining everyone’s fun, then accusing police of all being rapists and saying he’d better protect his girlfriend in case they raped her using batons. He was convicted of using insulting language. (He was also convicted of resisting police during his subsequent arrest).
Were his words insulting? Sure. Were they worth a criminal conviction? Come off it.
The judge seemed to accept that R v Brooker meant that “there must be a level of insult as to raise the prospect of public disorder”. (In Brooker, Tipping J talked of behaviour that “causes anxiety or disturbance at a level which is beyond what a reasonable citizen should be expected to bear.”)
The judge also accepted that police officers are unlikely to respond to such insulting language with violence. There was no real threat to public order. It doesn’t seem that anyone else overheard the words being used. So there was no aspect of public humiliation. Nor any element of bullying. The judge said that the guy “implied that both constables… would personally indulge in behaviour that involved serious criminal offending… aggravated when it involves elements of kidnap and brutality. The comments were calculated to hurt the personal feelings of the constables and the conclusion that it [sic] did was inevitable.”
Oh, please. He wasn’t seriously suggesting these things. He was just being a jerk because they’d closed the bar. (Actually, it’s not clear from the case whether or not the police were responsible for the closure of the bars, but if they weren’t, it doesn’t seem that they told him so.) Their feelings were hurt? That’s not enough for a criminal conviction.
The judge, to his great credit, considered the core values underlying freedom of expression, to see if they were in play here. Because the speech was “purely to insult and rile the police officers” and “for no other purpose”…
He was not trying to advocate change or persuade others in the hope of improving his life or anyone else’s. He was not trying to influence wider social, political or economic environment. He comments were not even social commentary…
Well, good on him for identifying some of the hallmarks of speech we should take particular care before restricting. And I’m not going to argue that Evans’ speech falls at the core of the sort of speech that’s vital to the nation. But the judge downplays the value of the defendant’s speech in three ways. First, Evans was in fact plainly trying to make a point. He thought the police had acted high-handedly in closing the bars early. He wasn’t insulting the officers for the sake of it. That may not be a lofty issue of political principle, but it was something that mattered to his life.
Second, the judge overlooks one of the other reasons we value speech: as an outlet for hostility. Evans was venting his spleen, expressing his frustration. On this rationale, if we give people some latitude to do that, then they’re less likely to react in even less acceptable ways.
Finally, the judge barely acknowledges that Evans was tapping into a well of deep public concern at abuse of police powers. That concern had even led to an inquiry into police rapes. I think this was very much “social commentary”, though it might not have been to the judge’s taste.
But Justice Hansen does seem to accept that there was something behind Evans’ insults:
I accept the topical nature of the insults, but I do not consider that to be a mitigating factor. If his comments had been to the effect that his trust in the force had been diminished by the behaviour of a minority of officers in the North Island it could be considered differently. But clearly he was angry at not being able to access more alcohol, and the insulting comments were designed to offend and aggravate the officers with the undoubted prospect of public disorder.
Right. So what Evans should really have said was this: “Good sirs, I must protest at the unseemly haste with which you have discontinued the refreshment factilities. Nor is this the first occasion upon which members of the police have acted to the public detriment. Indeed, my confidence in the police force has been much diminished by recent reports of abuses performed against young women. (By a tiny minority of police officers, I note. In the North Island). I verily believe it would be beneficial to all if the entire police force would act with more respect toward the interests of those from whom they ultimately derive their powers.”
That would have been okay. But judge: that’s pretty much what he did say. He just said it his way. I don’t believe for a second that the police officers actually thought Evans was suggesting that they personally would rape his girlfriend. Freedom of speech involves giving people room to express themselves in their own manner, particuarly when they’re saying things that are unpopular, or saying them in an uncivil way.
The judge continued:
I also accept that police officers, by virtue of their office and exposure, are of course required to put up with being exposed to a higher degree of invective and abuse. But in this case the comments in my view cross the line. There are no indications that the grossly inappropriate behaviour of the small number of officers permeates the entire force, and the public at large generally accepts that the police force is made up of a majority of dedicated and professional officers.
Um, is there actually evidence that this is what the public at large generally accepts? Or is it simply what the judge believes? I think this passage in the judgment is pernicious. Evans isn’t restricted to saying what’s true, or what the public or the judge generally accepts. Speech can be exaggerated or provocative or sarcastic, as this clearly was, to make a point. I worry about reasoning that says, it’s all right to be insulting if I think your insult was justified, or if the public might agree with it.
So: a bad call. Evans’ speech was hardly vital to the workings of democracy, but there’s no real justification for punishing him for it. I hope it gets appealed.
Topics: NZ Bill of Rights Act, Protest speech | 53 Comments »
Press Council bouquet
March 12, 2008
I’ve been hard on the Press Council lately. I tend to blog about the stuff I disagree with. But usually, I think the members of the Press Council get it right. In the latest bunch of decisions, they ping the Northern Outlook for misreporting local council committee hearings. One mistake was put right in a later story, without reference to the earlier error. Was that enough? The Press Council said:
the second report did not go far enough to correct the misleading impression of the first story. It made no reference to the first, incorrect, report and may well have left readers confused about two apparently conflicting stories concerning the fate of the proposed new set fee.
They also found the paper in error when it said that the committee had “shied away again” from deciding a particular issue. Yet the Press Council found that there was nothing to support this impression that the committee was unwilling or unable to make the decision; the deferral may not have been a “shying away”.
I’m not familiar with the nuances of the events and the coverage here. But it’s not uncommon for the press to carelessly sling about perjorative language under the guise of neutral reporting. In the past the Press Council has usually let this pass. For example, when a paper accused a political candidate of trying to “fabricate an issue where non [sic] exists”, the Press Council in 2001 accepted the argument that this simply meant “build” an issue – there was “no negative connotation”. This seems unreal.
The latest decision may be signalling a more robust approach. But hair-splitting about language can be taken too far: in this case the Press Council says that a paper has latitude to characterise an ERO report as saying a school was “excelling” when the report was at least “largely complimentary” of the school.
Two for two, I say.
Finally, this case split the Council. I’m not surprised. What do you do when someone submits an ambiguous letter, you publish in edited form, apparently preserving its key point, but it turns out that the letter-writer meant it in a different way, and when you take a look at it again, you can see his point?
Here’s the letter:
The very strong reason to reappoint Graham Henry is that he has now participated in a World Rugby Cup as coach and knows the pressures, the need for a cool head and how to make decisions under pressure. That is experience beyond a price.
It was precisely because they had the same experience playing in the previous World Cup, that Aaron Mauger should have started and Reuben Thorne should have been on the bench against France.
The paper published the first paragraph, thinking that second paragraph seemed peripheral, but the basic point was fair enough.
The letter-writer fumed that the second paragraph was his basic point, and the first paragraph was highlighting the irony.
The majority felt that the editing was not unfair. Nor was the paper’s refusal to publish a correction or acknowledgment, though it wasn’t very gracious.
Two members dissented, saying that the original editing may not have been unfair because of the ambiguity, but the Press should have published a correction once the writer had made his true views known. The two dissenters (including the chair, Barry Paterson) said elegantly, and I think fairly persuasively:
It left on record a statement from Mr Meates which did not express his view. It was no answer, and in the members’ view disingenuous, to say that the publication did not change the meaning of the first paragraph, when publishing only that one paragraph had the effect of completely reversing the implication in Mr Meates’ letter when read in its entirety. The members would have upheld on failure to correct.
Topics: Press Council | No Comments »
Website in contempt?
March 9, 2008
Today’s Sunday Star-Times has a story about a website set up by the daughter of a Zimbabwean immigrant accused of sexually violating killing his niece. The website contains detailed commentary about the life of the family and the events surrounding the death. The niece was HIV positive, but the Crown’s case is that this did not explain her death (and has evidence of the uncle’s semen stains on the niece’s underwear). The trial is scheduled for next month. The Solicitor-General has asked the family to take down the parts of the website alleging his innocence.
This is a tricky issue. Is the website creating a real risk of prejudice? Which bits? Does it matter how many people have seen it – given that the number could rocket at any time? Is a story about the website itself prejudicial, given how easily people reading it can find the site with a google search?
The story paraphrases me as saying that trials can be prejudiced by information posted on websites if jurors viewed the site and its content was wrong. (I also say that the Solicitor-General needs to work together with the mainstream media to come up with a protocol to take prejudicial material down while trials are going on).
That’s accurate, as far as it goes. But my views were rather more nuanced. For completeness, here’s my email to the reporter:
Anything that creates a real risk of prejudice to a fair trial can be a contempt of court. There may be a little more wiggle room when asserting innocence rather than guilt, but in general the same rules apply.
Much of the material on the website doesn’t create such a risk – their general experiences as an immigrant family, for example. A lot of it might not be at issue in the trial. And it seems they’ve made some attempt to pare back some material that might be prejudicial.
What’s more, some seems to be in response to things the police have said that they regard as unfairly prejudicial against the family. That doesn’t necessarily excuse it, but there may well be arguments of prejudice that go both ways.
Still, the website does explicitly assert the father’s innocence. It paints a picture supporting that innocence, including statements about his character and his behaviour at key times. (Incidentally, I have no idea of the accuracy of what’s written, or whether anything significant has been omitted. I have no particular reason to doubt the accuracy, but the courts have said that inaccurate statements carry greater risk of contempt). It seems to put forward a version of events that will be at issue in the trial. That is usually regarded as prejudicial.
Is it creating a real risk? Not too many people have seen it so far, but that hit-count could balloon at any time. The trial is to be held soon, as I understand it, which makes this sort of comment more dangerous. What’s worse, there’s evidence that jurors sometimes do internet research on the cases they’re hearing about, even when warned not to. I’d expect a judge to order it to be taken down at the very least during the trial, if it was drawn to his or her attention.
Topics: Contempt of Court, Internet issues | No Comments »
Injunction continued again
March 7, 2008
The Hawkes’ Bay Health Board injunction has been continued by consent until after the report is finalised and made public, slated for 17 March. The parties can bring it back before the court before then if circumstances change.
I think this is probably a savvy move by Fairfax and APN. It will blunten the “we’re just protecting the process” arguments in favour of suppression, and sharpen any public interest arguments about what’s been changed or deleted, once we’ve seen the official report.
Topics: General, Injunctions | No Comments »
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