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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 | Comments Off on Medaling with justice?

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 | Comments Off on Bloggers flout copyright

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 | Comments Off on Case exposes vulnerable underbelly of contempt laws

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 | Comments Off on Crimes in the public interest

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 | Comments Off on NZLS media law seminar

Osmose part-settled

February 14, 2008

You might remember that the Osmose defamation case in the High Court appeared to revolutionise the defence of qualified privilege: opening it up to all stories about matters of public interest, not just those about politicians, and making it easier for journalists to show they’d acted responsibly (a condition of the defence). The case was appealed to the Court of Appeal. I gather that the suits against the media (TVNZ and Fairfax papers) have been settled. So whatever happens to Osmose’s claims against Nick Smith and Dr Robert Wakeling, the High Court decision looks likely to remain the latest word on qualified privilege as it applies to the media. (For my part, I think it would be dangerous to assume that these new principles will survive Court of Appeal scrutiny in the future, particularly the lowering of the threshold for responsible journalism).

Topics: Defamation | Comments Off on Osmose part-settled

New Law Commission report on privacy out

February 14, 2008

Get your copy here. It’s an early stage in the Commissions Herculian project aimed at reviewing the entire law of privacy. In this study paper they look at the big picture: the concepts behind privacy, and the effect of the rapidly changing social, legal and technological environment. (I’m part of a reference group that the Commission is tapping occasionally for this project).

Topics: Privacy Act, Privacy tort | Comments Off on New Law Commission report on privacy out

More grumbling about the Press Council

February 11, 2008

A lot of lawyers I know think the Press Council is a waste of time. It’s generally pro-press, it’s poorly resourced, its decisions are sloppy, and it has no power to impose a penalty worth spit.

Heck, I’ve criticised the Press Council myself in the past. But recently, I’ve been encouraging people to take another look. Recent decisions seem more rigorous and better structured. They are increasingly holding some papers and magazines accountable for serious lapses (see the Coddington-“Asian Angst” case, for example). There have been some fascinating split decisions, too, with meaty debates about ethical issues (about inaccurate women’s magazine covers and the privacy rights of criminals’ families, for example).

But now, alas, I’m going back to grumping. The latest batch of Press Council decisions contain one that stinks, and a couple that are at least whiffy.

The stinker really needs to be filed under “silly decisions that don’t really count because they’re about trade publications that nobody reads.” (See also: this case). Because if you were to take this decision seriously, it seems to stand for the proposition that a publication can do an end-run around accuracy and balance requirements by simply not publishing any letters to the editor.

There is, it seems, a monthly magazine called “FMCG” that covers businesses involving fast moving consumer goods. It has a circulation of more than 8,000 and was available (the Press Council found) to the public. Last year, it ran a column that I am going to call “the happy chicken column”. Here is an excerpt:

Much like the two-legged New Zealanders, the modern Kiwi chook is demonstrating the benefits of good breeding, freedom from disease and an overall better quality of life and health brought about by modern farming methods and biosecurity measures. Just as we are taller and bulkier than our ancestors, the chicken which, by the same comparison, has advanced the equivalent of hundreds of generations, is an altogether larger, healthier specimen than it has ever been. It also remains a breed apart from its egg-laying cousin with natural breeding selection fostering the attributes of each breed suitable to its various production qualities. This means that the egg you eat today is not the poultry meat you eat tomorrow.

It was by Michael Brooks. Michael Brooks is the executive director of the Poultry Industry Association of New Zealand. Were readers told this? They were not. Was his column accurate? Dr Michael Morris, past chair of the Campaign Against Factory Farming, certainly didn’t think so. He wrote a letter to the editor of FMCG:

Modern chickens are not larger because they are healthier and happier. Quite the contrary. The modern broiler is a genetic freak; selectively bred to grow so quickly that their legs and hearts cannot cope with the extra weight. Animal welfare scientists of international renown agree that this has meant increased incidence of lameness and metabolic disorders such as ascites in broilers. After studies showed that up to 20 percent of European broilers are in constant pain from lameness for the last third of their lives, Professor John Webster of Bristol University described the modern broiler industry as perhaps the ‘single most severe, systematic example of man’s inhumanity to another sentient animal.’ A recent New Zealand study on lameness has revealed that up to 40 percent of broilers may be suffering from this painful condition.

Dr Morris ultimately supported this view with seven peer-reviewed references.

I am no expert in chicken welfare, but I know who I believe. Dr Morris has surely raised a serious question of accuracy, and exposed a need for balance.

What did the editor do? He decided not to print Dr Morris’s letter, because the magazine doesn’t publish letters to the editor. He thought about doing a follow-up news story. He forwarded the letter to the happy chicken columnist, but Mr Brooks did not wish to be involved in such a story. So he decided to take it no further. He did, however, make sure that Mr Brooks’ affiliation was properly included beneath his next column.

The Press Council somehow managed not to uphold this complaint. It’s a column, they said. “Columnists are entitled to state their views, and even to be wrong.”

Well, yes. Except that even columnists must get their basic facts right, as the Press Council has itself said in the past. If the Press Council had reasoned that the competing views were really matters of interpretation, not facts, or that any errors in the column were peripheral to its main substance, I could have bought that. But all we get is that columnists are allowed to be wrong. Except in some other cases where they’re not.

Still, shouldn’t Mr Brooks’ industry affiliation have been noted? Yes, said the Press Council. This was “a regrettable lapse and could have misled the reader.” But never mind: it looks like it was just a slip-up, said the Council. He was identified in other issues of the magazine.

Still, isn’t there a question of balance? Nah – the magazine had a policy of not printing letters. “The Press Council cannot condemn the policy if the magazine is consistent.” What’s more, even if it did publish letters, it didn’t have to publish Dr Morris’s one.

That may be so. But it doesn’t remove the obligation to provide balance somehow, through a news story, for example, or an addendum to a later column, or an editorial.

Well, I would have thought it doesn’t, but the Press Council seems to think otherwise. They just wring their hands. What can we do? He doesn’t publish letters. Doesn’t have to. That’s odd. Why doesn’t he publish letters? You’d think he’d want to. But he doesn’t. And we can’t make him. He was going to do a follow-up story. That’s good. Should’ve done a follow-up. Shouldn’t have dropped the story just because the columnist didn’t want to. Shouldn’t have done that, no. Still, guess we can’t uphold the complaint.

Memo to Press Council: yes you can. You really have a duty to uphold complaints like this one, if the requirement for balance is to mean anything at all.

Briefly, the two whiffy cases:

1. A complaint upheld against the Dominion Post for publishing a leaked draft Maritime Safety Authority report into a Cook Strait ferry incident, noting that the ferry came extremely close to capsizing and suggesting that the skipper showed poor judgment. A majority of the Press Council found the reporting was in the public interest, so it didn’t matter that the draft was plainly supposed to be confidential. But a majority also found it was unfair in that it didn’t state that the report’s conclusions might change. (On this point, the minority thought this was obvious from the word “draft”. I’m with the minority here. Readers know what a draft is. So I don’t think this complaint should have been upheld at all). The real action is over the issue of whether there was public interest in publishing a leaked draft when the investigation isn’t complete. Lawyer Ruth Buddicom sets out a thoughtful dissent arguing that there wasn’t, though it seems to me to be a fair call by the majority.

2. A complaint not upheld against the Otago Daily Times for inaccuracies in a backgrounder about police corruption. Long story. But my beef is with one sentence, about a hotel proprietor, the target of an undercover police sting seeking evidence of his involvement in a sex ring. The story reported, as bald fact, that the hotel proprietor “had made no admissions”. One of the police officers involved disagreed. He said the proprietor had made admissions. In fact, the police officer had written about those admissions in his book “Cover-ups and Cop-outs”. The ODT accepted that the admissions may have been made, but said they “were not a matter of public record”.

It’s an odd definition of public record that doesn’t include a published book, I think.

As the Press Council said, “the ODT incorrectly stated as fact what is a contentious matter.” It also identified two other errors, but regarded all three as minor. I’m not sure the first one was. The question of the proprietor’s admissions seems pretty central to the narrative. The error seems at least as significant as others that have been deemed worthy of upholding complaints in some other decisions.

This case strikes me as further evidence of the need for the Press Council to be able to uphold complaints without necessarily ordering the paper to publish a summary of the decision – to mark a significant error, but reserve the publication penalty for more serious lapses.

Topics: Press Council | Comments Off on More grumbling about the Press Council

Press Council ducks interesting issue

February 10, 2008

If you talk to a journalist on the basis that what you say is “not for publication” and the journalist publishes your remarks anyway, has the journalist behaved unethically? I think most people would think so. In the past, the Press Council has leaned this way, too:

… if the conditions under which the [source] agreed to be interviewed were not accepted by the newspaper, then he was entitled to withdraw his comments. In the council’s view a newspaper cannot unilaterally impose its own rules upon a member of the public while choosing to ignore any conditions he may have set.

But in a recent case, where the issue was squarely before the Press Council, it rather disingenuously avoided it. The DomPost ran a story about a developer whose “army shack” homes had riled neighbours. The story was plainly newsworthy, and the developer was, it seems, a rather unsympathetic fellow. His concerns were mostly about various alleged inaccuracies in the story, which I won’t go into here. But one of his arguments was that he agreed to talk to the reporter only on the basis that the chat was “not for publication” and any comments on the record would be in writing. (He subsequently forwarded some written material). The reporter then quoted the conversation (misquoted, according to the complainant).

The Press Council blythely concluded that there was a “difference in the recollection” of the reporter and the complainant about what was said and that it was “not in a position to rule on these matters”. As for the accuracy of the quoting, that may be so. But look at the DomPost’s argument about the “not for publication” point:

… the reporter identified herself and at no time offered any acceptance of the position that Mr Nolan’s remarks were not for publication. 

The DomPost wasn’t disputing that Nolan regarded the remarks as “off the record”. It was simply saying it never agreed to that condition (though the reporter was happy to keep listening to his remarks without informing Nolan that she may ignore it).

Point one: the Press Council should really have addressed this head-on. It was squarely raised by the complainant. It’s an important matter of principle. I know there are journalists who believe that unless they specifically and expressly agree to go off the record, then they can write what they like, even if the person they’re interviewing clearly believes the conversation is confidential. This decision can be read as supporting that view, though I’m not sure the Press Council intends it to. We really need better guidance that this.

Separate point: I think this journalistic approach is unethical, or at least will be in most cases. I think that reporting comments that have been provided on an off-the-record basis is a form of “misrepresentation, deceit or subterfuge” (Principle 9) and can only be justified where the public interest requires. There seemed to be no particular public interest in the material acquired by the deceptive conduct here.

Topics: General, Media ethics, Press Council | Comments Off on Press Council ducks interesting issue

The Broadcasting Standards Authority and the Bill of Rights

February 7, 2008

As I mention below, Claudia Geiringer and I delivered a paper at the conference for John Burrows about the Broadcasting Standards Authority and the Bill of Rights Act (BORA).

The BORA requires the BSA to ensure that any restriction it imposes on the media’s freedom of expression (by upholding a complaint, for example) is reasonable and demonstrably justified under section 5 of the BORA. (It also has to be “prescribed by law”, which raises a few issues, but I’ll put those aside for now).

The BSA is certainly aware of its responsibilities under the BORA. When upholding a complaint, it routinely includes a paragraph saying:

For the avoidance of doubt, the Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching this determination. For the reasons given above [a reference to the BSA’s general reasoning applying the standards but not mentioning the BORA], the AUthority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act.

You might be comforted by that sort of boilerplate. We weren’t. It’s true that the BSA’s decisions are generally carefully reasoned, but we concluded that the BSA needed to approach its obligations under the BORA in a more rigorous and systematic way. (Incidentally, this also applies to the Film and Literature Board of Review, the Advertising Standards Authority and the Press Council, and probably a range of tribunals and bodies whose work impinges on rights).

This isn’t an easy task. The BSA gets little in the way of BORA arguments from the broadcasters beyond a taliesmanic invocation of the right to freedom of expression. It gets almost no guidance from the High Court. The test laid down in the leading case of Moonen is virtually impossible for bodies like the BSA to apply, since it involves identifying different meanings rather than applying standards. The BORA itself sets nebulous standards, and its interaction with statutes like the Broadcasting Act and the Codes of Practice can be complicated. As Professor Burrows has noted, BORA vets of legislation conducted by the Crown Law Office and the Ministry of Justice are often opaque and unhelpful.

Still, it’s not an impossible task. The BORA requires proportionality. This means that benefit to society from upholding a particular complaint must outweigh the harm that’s done to freedom of expression. And that involves (as the courts are increasingly doing) looking to see why we value freedom of expression in the first place. If the particular speech in question is heavily supported by those rationales (such as political speech), the BSA should be slow to restrict it unless there is a very strong countervailing interest (such as great harm to reputation or an inaccuracy that might seriously mislead the public). On the other hand, types of speech that don’t serve those rationales (such as revealing private facts about someone without any public interest justification) may much more readily be restricted.

In our paper, we try to unpack this balancing/justification process and suggest ways that bodies like the BSA might fit it into their reasoning. To cut to the chase, here are a few implications:

Topics: Broadcasting Standards Authority, NZ Bill of Rights Act | Comments Off on The Broadcasting Standards Authority and the Bill of Rights


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