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Something to get depressed about

February 27, 2008

The coverage of the story about the effectiveness of anti-depressants. Russell Brown provides some context.  Russell also had to clean up the mess 60 Minutes made of the Herceptin story. And who can forget TVNZ’s leap onto the miracle cancer-cure lyprinol bandwagon? I mean, really, can’t we expect the paid journalists to do this work before they run the story? A few years ago, NBR ran a front-page story claiming that an entire year’s tax take was in jeopardy because of a court ruling. It just wasn’t true, as any number of experts could have told NBR. Still, why let that get in the way of a good story? I’m not saying the Herald’s story was that bad. I am saying that when you are prominently featuring a story that’s going to have a powerful impact, you owe it to the public to take extra care to provide context.

Topics: Media ethics | No Comments »

NZ and Aussie Press Councils to co-host public forum

February 26, 2008

It’s called “The Press and the Right to Know Under Seige”, and will feature a key-note address from Media Law Guru John Burrows QC, and presentations from the chairs of the NZ and Australian Press Councils, Barry Paterson QC and Prof Ken McKinnon respectively. It will be chaired by Justice Randerson.

It will be held on 13 March from 5:30pm to 7pm at the BP Theatrette on the ground floor of the BP building 20 Customhouse Quay (entrance from Johnston St or Waring Taylor St).

Admission is free, but you should email presscouncil@asa.co.nz to indicate your attendance.

Topics: General | No Comments »

Police raid TV3

February 22, 2008

It’s being reported that police are executing a search warrant in TV3’s premises.

As I’ve noted, given the case law, I’m not surprised that the police were able to obtain a warrant. An important factor for a judge in deciding whether to grant the warrant is the cogency of the evidence. Here it seems likely that TV3 have information about the identity of a confessed criminal. (NB It seems TV3 is denying that they actually know who he is).

The Court of Appeal did say that judges should be very slow to grant warrants where the search might cause confidential sources to dry up. I wonder how much that factored into the judge’s decision here.

Topics: Confidential sources, General, Search warrants | 1 Comment »

“Confusing” is right

February 22, 2008

Deborah Hill Cone opines that the Advertising Standards Complaints Board decision about the Charlies ad is “confusing”.

So’s her column.

She says the decision, upholding the complaint about the ad, is confusing because much more graphic non-cartoony stuff is shown on telly, such as Californication.

Then she says that the ads have commercial motives, and that this is a reason that they are not allowed to be as risque. Then she says that it’s doubly odd because the Burger King ad featuring nublile lovelies on horseback got the ASCB’s blessing. Then she says at least the ASCB doesn’t seem to “rush to censor everything” like the BSA does.

Confusing, indeed. Why point to the BSA’s permissiveness toward dramas like Californication in the same column as you slag the BSA for censoriousness? In fact, the BSA is remarkably robust about allowing edgy drama, even where there’s sex and nudity. Of course, the BSA can’t “censor”, anyway, just uphold complaints. But can Deborah point to examples of a rash of upheld complaints by the BSA that aren’t justified, especially on grounds of taste and decency or denigration? Her column doesn’t contain any.

The Burger King ad featuring horseback bikini girls was, in fact, upheld by the Advertising Standards Complaints Board. So the ASCB isn’t being inconsistent. [Graeme Edgeler has pointed out that the complaint against the original horseback bikini girls ad was rejected. So Deborah was right (sorry, Deborah). It was a later Burger King ad, which also happened to feature use of the horseback bikini girls, that was upheld.]

I haven’t seen any reasoning from either the BSA or the ASCB that says ads have to comply with higher standards of taste because they’re seeking business. If the standards are different, it’s because the industry has created them that way. The ASA regime is voluntary self-regulation after all.

Deborah then points to the ASCB’s 15% uphold rate (for 2007, I guess) as evidence that they are more reasonable than the BSA. This doesn’t really work. First, she ignores the complaints that are “settled” – that is, the advertiser pulls the ad, acknowledging that it was in breach. It’s very likely that most of these complaints would have been upheld. Secondly, the uphold figure for 2006 was 36% (and the upheld/settled rate was 57%), so the 15% figure is uncommonly low. The upheld/settled rate is usually around 50%. But this is a bit misleading too, because it ignores the many complaints that are weeded out early in the process as being hopeless. The BSA does almost no such weeding. Its uphold rate in 2006 was about 12%, though that was an abherration, too – usually it’s around 20-25%.

So comparisons are difficult. But Deborah has hardly justified her gratuituous smack at the BSA, or the reasoning beyind her swipe at the ASCB. (As I’ve said, I do agree that the ASCB’s decision is questionable, but for other reasons).

Topics: Advertising Standards, Broadcasting Standards Authority | 46 Comments »

BSA finds TV screwed up coverage of Electoral Finance Bill

February 22, 2008

I brought these complaints, together with the Coalition for Open Government. The BSA has found TV3’s and TVNZ’s coverage of the Electoral Finance Bill, when it was first revealed to the public, contained significant inaccuracies.

These complaints related only to this early coverage, though I think we could have complained about other coverage, too.

COG thought that it was particularly important that the public be properly informed about the bill, and were dismayed that both channels rather suggested that the bill as introduced included some provisions increasing the transparency of political donations to parties via anonymous donations and secret trusts. It didn’t. (The later version of the bill did contain some new controls on such political donations, so this BSA decision is now mostly only of historical interest. The BSA quite rightly found that there was no point in ordering the channels to broadcast a statement now about how they’d got it wrong).

A few observations:

First, a little sympathy for the reporters. Then-Minister of Justice Mark Burton didn’t make the best job of explaining the effect of the bill in his press conference. However, a press release and explanatory Q and A contained accurate information, as did the bill itself, with its explanatory notes offering a summary of its effects.

Second, we hoped that the stations would quickly realise their errors and feed the correct information into some follow-up stories. We would have been satisfied with that and withdrawn the complaints – we only wanted the public to be presented with accurate information. Instead, they both simply tried to defend the stories. I’ve got to say, I’m appalled by this approach. Of course mistakes are going to happen. When they are pointed out, newspapers are pretty good at feeding in the correct information into later coverage (of course, they have the useful mechanism of letters to the editor and small “corrections” or “clarifications” slots). But TV’s approach tends to be to retreat to the ramparts and fight it out.

Third, some of the arguments put forward by the channels were self-serving and even ridiculous. It was pretty clear that they either didn’t really understand what the bill said, or were disingenously trying to suggest that viewers would interpret the stories in ways that were basically contrary to the very words that were spoken in them.

Fourth, the complaints may have been entirely counter-productive for COG. We were never approached by TVNZ for comment on the EFB, and it wasn’t for months that TV3 approached us again. Was it spite? Was it a poor campaign by COG? Maybe both?

Fifth, COG also has a complaint before the Press Council against the NZ Herald’s editorial coverage of the EFB. The argument is that the Herald misled its readers by telling them that under the EFB everyone who engaged in electioneering would need to register, without properly informing them that the registration threshold was in fact $12,000 (it’s $1000 in electorates) – something that affects considerably fewer people. Watch this space.

Topics: Broadcasting Standards Authority, Media ethics | 47 Comments »

Medaling with justice?

February 22, 2008

No doubt you’ve heard that John Campbell interviewed a guy he said was one of the War museum medal thieves. He said TV3 had made only one promise: not to reveal his identity. (Except for the other promise, which was not to ask him about the reward money, though Campbell reported that the man said he was getting some of it).

Some top-of-the-head comments. I can’t do much more than raise issues, I’m afraid:

Ursula Cheer pointed out on Morning Report this morning that the police may seek a search warrant against TV3’s premises. She also noted that the Court of Appeal has laid down guidelines for such warrants (see TVNZ v AG 1995 2 NZLR 641). They should only be granted in exceptional circumstances, where it’s important for the progress of the prosecution. News dissemination shouldn’t be unreasonably impaired. The Bill of Rights needs to be factored in. Though these guidelines are tight, it looks to me like there’s a pretty strong case for the police here.

As Jim Tully said on Nine-to-Noon, presumably TV3 will have taken steps to ensure that there’s no evidence of the guy’s identity lying around. Might there be issues of destroying evidence, being an accomplice after the fact, or obstructing justice? (I’m afraid I don’t know enough about these offences to do more than raise the question).

If the matter can get before a court, a judge has a discretion under the Evidence Act to force a journalist to reveal a source. The judge would have to weigh up a range of factors including the importance of the protection of sources against the likely benefit to the interests of justice. I’m not sure how the issue would get before the court at this stage though. I suppose the museum could file a John Doe claim (ie without specifying a particular defendant) for conversion. Or there could be a pre-filing application for third-party discovery against TV3.

What’s been a bit lost in the discussion so far, I think, is the general importance of protecting sources. If the police or the courts force journalists to break promises of confidentiality, then other sources, with potentially important things to say in the public interest, may be unwilling to come forward.

What might the BSA do? No doubt someone will complain that TV3 breached the law and order standard. This is misconceived, I think. TV3 wasn’t encouraging criminal behaviour or glamorising crime. I doubt a complaint would be upheld.

Final issue, and one that I also know little about: is there a Proceeds of Crime Act issue here? Can a reward be treated as proceeds of crime such that it may be open to be confiscated if the criminals are caught?

Topics: Breach of confidence, Media ethics, NZ Bill of Rights Act | 4 Comments »

Bloggers flout copyright

February 20, 2008

I’m not a copyright Nazi. I think copyright laws could stand to be loosened. This is just an observation: some bloggers routinely breach other people’s copyright by posting large chunks of stories, columns and editorials. Where they exceed a reasonable extract for fair dealing purposes, these posts are infringing copies. But where they can be said to be posting “in the course of business”, it may even be a crime (see section 131 of the Copyright Act). Ironically, some of those bloggers are usually law-and-order table-thumpers. Occasionally, they’ll genuflect a little toward the copyright owner (“I hope they don’t mind…”). And I’m sure many copyright owners don’t mind. Others realise it’s not worth the candle to enforce their rights. Still, the point is that such copying is unlawful. That’s all.

Topics: Copyright, Internet issues | 4 Comments »

Case exposes vulnerable underbelly of contempt laws

February 15, 2008

An Australian judge has banned the broadcast of a TV series about the mafia in Victoria (it can be broadcast elsewhere in Australia) because it may prejudice upcoming mafia trials.

Of course, people have recorded it and put it online, and now anyone in Victoria who wants to is downloading and watching it. Some media may be pushing things by referring to the sites where the programme can be downloaded.

A problem, yes. But there’s still a big difference in the prejudicial effect between, let’s say, hundreds of downloads and hundreds of thousands of viewers. So let’s not get carried away about the uselessness of such court suppressions just yet.

As for the suppression order itself, I’ll be looking out for copy of the decision. Here’s a reported quote from the judge:

Justice King, who also viewed the series yesterday, today said the conversations in the drama would largely be “a figment of someone’s imagination”. “It will be difficult for the viewing public to sift through what is factual material and what is fictional,” she said. “The series explains to a large degree why the person was murdered. “That is really what is the subject for the trial.”

Topics: Contempt of Court, Injunctions, Internet issues, Suppression orders | 48 Comments »

Crimes in the public interest

February 14, 2008

A quick note on recent stouch about the journalist who took a knife and toy gun on a regional flight to demonstrate lax security. (Bonus gossip: it was Jonathan Marshall, who was behind a hideously intrusive celebrity expose website, but has since taken a journalism course and is doing serious work).

I say: give that man a badge.

There are times when journalists commit crimes in the public interest. This, I think, was one. (Other journalists have done the same thing in Britain). I also think it’s in the public interest for journalists to occasionally try to obtain passports and credit cards using fake names to expose how easily it can be done, or likewise gather personal data about people or hack important websites. The receipt of leaks of stolen documents or tapes can also raise criminal issues. Journalists have no special defence if they are prosecuted for these crimes.

Usually, as it happens, they are not prosecuted. Under the prosecution guidelines, the public interest is a factor in deciding whether to charge. And any sentence would probably be adjusted down. But that’s an uneasy truce.

Sure, it’s difficult for the law to carve out exceptions to the criminal law for journalists. And sure, if the law did so, there would be journalists who would abuse their special rights. So the truce may be as good as it gets. But under the incentives of the law,  it would be prudent for journalists not to take these sorts of risks, even though such stories are very valuable to society. I wonder whether the development of some sort of public interest defence may be needed – or even required under the Bill of Rights Act?

Topics: Journalism and criminal law | 55 Comments »

NZLS media law seminar

February 14, 2008

TVNZ lawyer Willy Akel, Fairfax lawyer Robert Stewart and I are presenting a law society seminar on media law in Auckland, Wellington and Christchurch in April. Sign up now!

Watch Willy and I slug it out over the laws of privacy and qualified privilege! He’s bigger than I am, but I’m nippy.

Actually, it will mostly be more sedate than that. Robert will be talking about open justice and suppression issues; Willy will cover privacy; and I’ll be looking at press and broadcasting standards. Then we’ll team up to go over recent developments in qualified privilege.

I will do my best to inject a note of rationality to temper Willy’s wild rants about the need for untrammeled freedom of speech for the media. (Alternative spin: Willy will try to pull my head of the the clouds and force me to grapple with the chilling consequences media restrictions). Robert, who’s so fair and balanced you could put a camera on him and call him a TV channel, will no doubt be umpire and peace-keeper.

You might also be interested in the LexisNexis conference on media law in Auckland in March. There will be presentations on contempt, copyright, media law generally, censorship, the effects of media law on journalists, and the future of media regulation in NZ.

Topics: General | 47 Comments »


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