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Press Council upholds Bill English complaint

March 7, 2008

Remember the kurfuffle about Bill English’s 14-year-old son posting homophobic remarks on Bebo? The Press Council says that the Southland Times’ coverage breached the paper’s duty to respect privacy of “person, space and personal information” and to exercise “particular care and consideration when reporting on and about children and young people.”

The Southland Times’ front-page story was headed “English may sue on GayNZ article”. It named Rory, though other media (including GayNZ) apparently had mostly just called him English’s son. It quoted from the remarks Rory had made. English complained that there was no justification for “selecting my son for special treatment” which was harshly critical and unbalanced. (He wasn’t complaining about balance, but apparently argued that these factors showed a lack of consideration for Rory). English said his son was entitled to privacy and that he wasn’t a public figure or prop for English’s political activities.

The paper noted that the website was open to public view, and that English had written a column stating “I am totally responsible fro my children’s physical and moral welfare… in fact too many parents now lack confidence in their ability to give children direction.”

The ruling isn’t available on the website, so I’ll post the key part here. The decision was unanimous.

The Southland Times has essentially justified publication of this article on the fact of Mr English’s local and national prominence and on what the newspaper believes to have been his public advocacy of “family values”.

The Press Council finds it unacceptable that a regional newspaper should justify naming and – in effect – shaming a 14 year-old on the grounds that his father is a local representative in Parliament and a national figure and on the basis of assertions as to the father’s political position on morality issues.

 

This is the more so since the newspaper seems to have had little heed for the requirement to proceed with care in reporting on the activities of a young person, who, in this case may simply have done something very immature. 

 

The boy, after all, is a minor.  As Mr English points out, he would have been entitled to name suppression, even if he had committed a crime – up to the age of 17.  Mr English had also made the point that he had no obligation to comment, when asked to do so by the reporter, since he had never brought his family into the public arena. 

 

The newspaper had a point in respect of the principle of privacy.  The Bebo website is public and users who put out comment and other information on it should understand that. If they do so in their own name they must anticipate the consequences, including a reaction from groups who take exception to remarks made.

 

There is, however, a linkage between the twin grounds on which this complaint is based – privacy and the need for care and consideration in reporting on young people.   This is because a child’s privacy is one of the factors which needs to be taken into consideration when reporting on or about children.

 

The need to protect a young person from being harmed by the glare of publicity necessarily means that matters that can be published about an adult should be treated with greater circumspection and sensitivity in the case of a child.

 There is now considerable debate about the extent to which celebrities and those identified with them are entitled to the protection of privacy. But the Press Council does not see that Mr English’s privacy is a factor in this matter.    

The Press Council accepts nevertheless that a public figure has the same right as every other citizen to expect his or her young children to be protected, unless there is a demonstrable justification for drawing the young person into the limelight.

 

The Council upholds Mr English’s complaint.

I have a few misgivings about this decision. I am still inclined to think that Rory’s remarks were using homophobic epithets to attack emo devotees. It wasn’t pretty, but it wasn’t extreme homophobia. And although it was a public website, people using them can paradoxically have something approaching a reasonable expectation that it will only be read by a small community of people. And he was 14. I wouldn’t want everything I said at 14 flashed up in the national media. So I have some sympathy for the criticism that the media overdid this.

But there are a couple of aspects of the decision that don’t make much sense to me. First: is this really about privacy at all? The comments were on a public website. He had already been identified in the media as Bill English’s son. Cat’s out of the bag, guys. I can’t see that there’s any private information (ie Rory’s name) left here to protect. Note that the Press Council’s principle dealing with privacy excludes matters of public record. Wouldn’t the Press Council regard something on a publicly accessible website as a matter of public record in most other circumstances? I can’t imagine the BSA upholding a complaint based on privacy here. There’s no “private fact”. I think this points up the undeveloped, ad hoc, and intuitive nature of the Press Council’s privacy jurisprudence. Perhaps the decision is best read as resting on the “care and consideration” of children and young people. To the extent that the decision is founded on privacy, or even a “linkage” with privacy, I think it’s flawed.

The other point is the Press Council’s acceptance that English “had never brought his family into the public arena”. Really? So he’s never used happy family snaps in his political campaigns? And what about that column he wrote? Arguably that’s not enough to make his son fair game. But there’s no recognition in the decision that the family or associates of public figures may have reduced expectations of privacy in some circumstances, something even the courts have accepted. Nor is there any recognition that the attitudes revealed in the “toxic diatribes“, posted in public, by the son of a man who would be deputy PM and who champions family values, might be a “demonstrable justification” for running the story.

I’m not entirely sure I buy these arguments. But I don’t dismiss them either. For me, I think, this story lies in the grey zone: it should be open to criticism but not sanction.

Bonus zinger: as long as the the Press Council is going to throw about the language of “demonstrable justification”, it really ought to remember that under the Bill of Rights Act, the question is whether there is demonstable justification for its ruling interfering with the freedom of expression of the paper.

[I’ve received a comment that I am over-emphasising the privacy aspect of the decision, and under-emphasising the consideration-of-child’s-interests aspect. On one reading, the decision is not based on the principle relating to privacy at all. Privacy is merely a factor that makes the lack of consideration for the child greater. At any event, it is clear from the decision that this complaint would not have been upheld if it was about an adult. Comment was also passed that the Press Council carefully refrained from naming the boy. Was I too mean in doing so?]

Topics: Broadcasting Standards Authority, NZ Bill of Rights Act, Press Council | 43 Comments »

Name suppression not automatic in diversion cases

March 6, 2008

Fairfax has won a significant victory in the Court of Appeal, which has ruled that people who have been given diversion should not automatically have their names suppressed. Justice Wild had held that they should, absent “compelling reasons” or “very special circumstances”. That effectively upended the usual presumption of openness.  The Court of Appeal said:

… Wild J has put the matter too high in so far as diversion is treated as, in itself, a special circumstance justifying a departure from the open justice principle.

The Court of Appeal noted that suppression in these cases is usually granted by the Registrar, but insisted that Registrars actually use discretion not a rubber-stamp. What’s more, under the statute, the police must “agree” to the suppression. It seems that the current practice is for police “not to object”. The court said that’s not enough.

Still, it’s not a complete victory for the media, for three reasons:

1. While the court said Registrars must turn their minds to the balancing exercise (that is, open justice vs particular interests of the offender), it ought not to be a heavy decision-making burden, and Registrars

 … are not likely to require a great deal of information in order to be satisfied of the need for suppression. In that context, the effect of publication on rehabilitation in particular will in many cases be obvious.

2. It is now clear that the media have no right of appeal in name suppression cases (though they may take judicial review against District Court orders). This gap in the law ought to be filled (that’s my view, not the court’s).

3. Technically, that means the court’s points about diversion are obiter (that is, not strictly necessary to decide the case, and therefore not part of the core of the decision), though it’s pretty thoughtful and high-powered obiter.

Interesting point for train-spotters: check out the court’s use of Hansard to determine the proper interpretation of the statute at paras [59] to [62].

Topics: Name suppression | No Comments »

Banned book: get your copy now

March 4, 2008

Anne Hunt’s book Broken Silence, which I think I’m right to say is the only book ever to be banned and ordered to be pulped by NZ’s High Court, is now available for you to buy.

The ban was overturned last year in a case I argued in the Court of Appeal (Hunt v A [2008] 1 NZLR 368). The book hit the news again last November when Anne criticised her former lawyer, David Collins QC, who’s now Solicitor-General, for his involvement in the saga.   Broken Silence chronicles the tribulations of a New Zealand woman with borderline personality disorder who accused her therapist of sexually violating her.  The book explores the life and experiences of “Annette”, a woman with a borderline personality disorder. It contains a remarkable account of the ingredients that produced her mental illness: her domineering and violent father; her anorexia, attention-seeking behaviour, and fainting spells; her unhappy marriage at 18; her post-natal depression and alienation from her children; the trauma of marital rape; and her resulting depression, mood swings, hallucinations, self-harm and suicidal tendencies. A major theme is the way she is let down by a series of people and institutions she trusted: her father, the medical authorities who botched her tubal ligation, ACC, her therapist and ultimately, parts of the justice system.

The book raises a vexed question: can somebody with serious mental health problems obtain justice?   Much of the book focuses on “Annette’s” allegations against her therapist, the respondent (who is given the pseudonym “Wayne”). “Annette” claims “Wayne” sexually abused her during therapy. The book describes the three legal proceedings that resulted:  the criminal trial, at which the therapist was acquitted; “Annette’s” disciplinary complaint against the respondent, which was ultimately stymied by a rather technical judicial review finding; and her $250,000 civil claim for exemplary damages against the therapist, which went all the way to the Privy Council, and which ultimately ended in a settlement.   Anne Hunt is a District Councillor who fell a few hundred votes of winning the Horowhenua mayoralty last year.     A few sentences in the book have been redacted to protect confidential information, but the rest of it is the original version.  Anne has autographed all the copies and is willing to sell them for $25, including p & p. Order them from Anne at 17 Nash Parade, Foxton Beach.

Topics: General | 674 Comments »

I’m trivia!

March 3, 2008

Today’s DomPost 5-minute quiz:

5. Victoria University academic Steven Price is an authority in which field of law?

(Quick correction: I’m a barrister rather than an academic these days.)

Topics: General | 2 Comments »

Fact-checkNg

March 3, 2008

A welcome new addition to the NZ Herald: Keith Ng’s new column “Just the facts”, which seeks to ferret out the truth behind factual and statistical claims made by politicians (… and the media?). I think we need more of this kind of journalism.

Keith Ng, you may remember, famously exposed the misuse of statistics in Deborah Coddington’s “Asian Angst” story.

David Farrar subjects Keith’s column to his own fact-checking here, suggesting that “the facts” are sometimes quite slippery.

Topics: General | No Comments »

Falun Going Going Gong?

March 3, 2008

Can the Wellington City Council ban Falun Gong’s signs from the Botannical Gardens? In a typically thoughtful and comprehensive post, Dean Knight concludes: nope, unless they’re attached to structures. He also notes that there’s no rule as such against political signs. It seems from today’s DomPost (offline) that the council might be softening its attitude. For analysis on the extremely interesting issues about FG’s ability to participate in council-sponsored parades, keep an eye on Dean’s blog.

It’s a bit disturbing to see the council trying to control political speech using a rule that doesn’t exist. (Or has its position been misreported?) Its lack of any appreciation of the importance of political speech is also disturbing. The council has been treating it, effectively, as a nuisance, egged on by a few garden-goers who are irked by it. But there’s a very strong argument under the NZ Bill of Rights Act that political speech is actually more important, and requires greater-than-usual justification to restrict, even if the council does have the power to control such signs.

See also this terrific backgrounder by Tim Hume in the Sunday Star-Times, suggesting that Falun Gong are their own second-worst enemy.

Topics: NZ Bill of Rights Act, Protest speech | No Comments »

Your news leader

February 29, 2008

I’ve just come back from the injunction hearing. The application has been adjourned for 7 days to allow the defendants to look at the documentation (which they’ve only just received) and work out what position to adopt. This is pretty standard. The injunctions are continued in the meantime.

There are two sets of proceedings: one by the Director-General (founded on breach of confidence, not privacy) and one by HealthCare NZ.

Fairfax and APN were both represented. They said they did not have copies of the draft report.

As Robert Stewart pointed out for Fairfax, in proceedings against the government, the onus is on the government to show that there is public interest in secrecy, it’s not on the defendants to show there is public interest in publication. That may not apply to HealthCare NZ.

An interesting issue is likely to crop up: if the finalised report is released, and it has been substantially changed from the draft, is the public entitled to see the draft so that it can ask why the changes were made?

Topics: Breach of confidence, Suppression orders | No Comments »

Illegal exclusion of media?

February 29, 2008

Yesterday, Justice Panckhurst closed the court to the media in a preliminary hearing on the Bain case. He is reported as saying that discussions were sensitive and could have implications for a fair trial. But these are not grounds for excluding the media. Check out section 138 of the Criminal Justice Act:

138 Power to clear court and forbid report of proceedings

(1) Subject to the provisions of subsections (2) and (3) of this section and of any other enactment, every sitting of any court dealing with any proceedings in respect of an offence shall be open to the public.

(2) Where a court is of the opinion that the interests of justice, or of public morality, or of the reputation of any victim of any alleged sexual offence or offence of extortion, or of the security or defence of New Zealand so require, it may make any one or more of the following orders:

(a) An order forbidding publication of any report or account of the whole or any part of —

(i) The evidence adduced; or

(ii) The submissions made:  

(b) An order forbidding the publication of the name of any witness or witnesses, or any name or particulars likely to lead to the identification of the witness or witnesses:

(c) Subject to subsection (3) of this section, an order excluding all or any persons other than the informant, any member of the Police, the defendant, any counsel engaged in the proceedings, and any officer of the court from the whole or any part of the proceedings.

(3) The power conferred by paragraph (c) of subsection (2) of this section shall not, except where the interests of security or defence so require, be exercised so as to exclude any accredited news media reporter.

(4) An order made under paragraph (a) or paragraph (b) of subsection (2) of this section—

(a) May be made for a limited period or permanently; and

(b) If it is made for a limited period, may be renewed for a further period or periods by the court; and

(c) If it is made permanently, may be reviewed by the court at any time.

(5) The powers conferred by this section to make orders of any kind described in subsection (2) of this section are in substitution for any such powers that a court may have had under any inherent jurisdiction or any rule of law; and no court shall have power to make any order of any such kind except in accordance with this section or any other enactment.

Upshot: even if the court is closed, the media is allowed to stay, unless national defence or security is at stake. Here, it’s not. The proper course is to make suppression orders, not exclude the media. Note that under subsection (5) any inherent power the court might have in the background is extinguished. Still, I understand that some judges do go into chambers and exclude the media for preliminary hearings in criminal cases. As far as I know, the question of whether judges retain some residual power to do this, perhaps on the grounds that a chambers hearing is not a “sitting” of court, has not been tested. I’m inclined to think that such a power would be inconsistent with section 138, which seems very widely drafted.

Topics: Suppression orders | 52 Comments »

Media gagged on Health Board report

February 29, 2008

The Director-General of Health has won an injunction preventing media publication of a draft report into the conflict of interest at the Hawke’s Bay District Health Board. The Herald is reporting that the court order also requires the media to deliver up any copies they may hold. The Dominion Post reports:

But last night the Crown Law Office threatened the newspaper with a court injunction, saying the report was confidential and “circulated on a restricted basis only to the parties directly affected by the content of the draft report”.

“The director-general [of health] asserts a right of confidentiality and privacy in the draft report. Any publication or dissemination will breach the confidence attached to the draft report and its contents.”

Publication would be likely to expose The Dominion Post to defamation or other proceedings, the Crown Law Office said.

The case is against Fairfax, APN, TVNZ and CanWest. There’s no statement of claim, just an ex parte application for an injunction. It seems to be based on breach of confidence and privacy. The interim injunction was granted by Mallon J, who’s no knee-jerk anti-media type. It explicitly also binds Hawke’s Bay Today. The case is set down for further argument at 2pm today.

The Crown Law Office’s nod towards defamation proceedings is interesting, and may have been a mistake. To the extent that the injunction is seeking to prevent defamation (and perhaps even to the extent that it is seeking to protect reputation, which may be a different and wider thing), then it’s particularly hard to obtain an injunction. The courts will grant an injunction only if there’s no possibility of a defence succeeding.

Privacy is also interesting. The government surely doesn’t have privacy rights. Those referred to in the report might have. But does the government have the right to bring an action to protect someone else’s privacy? (It seems that Peter Hausmann is represented; that might resolve that).

There’s no claim for breach of copyright, it seems.

The problematic claim is breach of confidence. It’s not clear what the injunction threshold is (it may not be as high as the threshold for defamation, and probably ought not to be). The big issue will be whether there is public interest in the draft report sufficient to outweigh the confidentiality interest. Judges usually find this hard to determine without a full argument on the evidence. And full arguments usually take months to organise. The release of the Winebox documents were held up like this for two years. This isn’t really satisfactory, and it’s questionable whether it’s in keeping with the NZ Bill of Rights Act.

I’m not sure what power the court is relying on to order up delivery of the documents.

Topics: Breach of confidence, Injunctions, NZ Bill of Rights Act, Privacy tort, Suppression orders | No Comments »

Ad strategy: attract complaints?

February 27, 2008

Surely Hell Pizza is trying to make its ads offensive so that it can attract extra publicity by having complaints against them upheld. How else to explain its direct mail ad that says:

Hell Spicy BBQ Pork Spare Ribs are by all accounts a lot like having sex with Jenny Shipley – messy but good.

I’m guessing Hell knew the ad would be shot down, and eagerly anticipated the free media publicity (like this, perhaps?). Hey, extra bang for your advertising buck. So to speak.

Hell isn’t the first to twig to this tactic. But it does raise some questions about the advertising regulatory system. There’s no extra penalty for deliberately flouting the system, even if that could be proved. There’s no real way to stop the complaints system being used as leverage for extra publicity. And the ASA’s only remedy (having the ad withdrawn) only kicks in after the pamphlets have all been delivered. I doubt they were planning on using that ad again anyway.

Which raises an interesting general question: how many of the decisions upholding complaints against ads are delivered after the ad campaign is already over? If a company knows that its ad campaign will be finished before any complaint can be ruled on, and that the only penalty it can expect is to withdraw the ad that it is no longer using anyway… how much of an incentive does that company have to comply with advertising standards? And if the company wants to promote an image as edgy and daring, don’t the incentives work the other way?

I should point out that many of the ASCB’s upholds a lot of complaints on the grounds that they are misleading, and that’s hardly a reputation any company wants.

 

Topics: Advertising Standards | 52 Comments »


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