Tribute to John Burrows
February 7, 2008
The University of Canterbury’s law school held a conference in honour of John Burrows last weekend. It was called “Law, Liberty and Legislation” and covered the broad sweep of issues that Professor Burrows has expertise in – from statute and contract law to media law (he’s written the leading texts in all three).
On the media law front, there were presentations from Sunday Star-Times editor Cate Brett; Paul Norris, head of the school of broadcasting at Christchurch Polytechnic; Professor Nigel Gravells form the University of Nottingham; Vic’s privacy law guru Dr Nicole Moreham, President of the Law Commission Sir Geoffrey Palmer; and Ursula Cheer, associate professor at Canterbury. My partner Claudia Geiringer and I chipped in with a paper about the Bill of Rights and the Broadcasting Standards Authority.
Cate Brett spoke on the increasing problems for the laws of sub judice in a digital age. Cate is one of the few journalists I’ve heard who is able to talk thoughtfully and knowledgeably about the laws of contempt. She thinks prejudice to trials is increasingly likely to come from blogs and Trade Me message boards rather than the mainstream media. What are we doing about it? She thinks that the justice system might need to dirty its hands and engage with the audiences on the blogs and message boards in order to arrest prejudice, or explain the background to suppression orders. “An op-ed in the NZ Herald by Justice Randerson isn’t enough,” she said. I find it hard to disagree. (Cate was speaking under the Chatham House rule, but let me say this much. If she can have her arm twisted to include a paper in the forthcoming book containing the conference papers, you might get to see the whole thing).
Paul Norris had recorded his presentation on DVD. It tracked the history of cameras in courts (a development he had a large hand in, though he rightly gave credit for the initiative to the courts themselves). It was a nifty demonstration that in-court footage can provide an extra dimension to court reporting. (Still, what a court reporter needs most is a good understanding of the facts and issues in the case. Without that, it’s impossible to select the key soundbites and provide the right context. I’m not convinced that this is always done well, especially by reporters who come and go during the course of a trial…)
Prof Nigel Gravells talked about the recent UK cases that have looked at the relationship between copyright and freedom of expression. He’s worried that the courts still aren’t very good at grappling with the need to interpret the Copyright Act consistently with freedom of expression.
Nicole Moreham argued that privacy is essentially founded on dignity, which entails a need for others to respect our personal choices and feelings rather than using us a means to their own ends. She says the courts should be protecting people who have a “reasonable expectation of privacy” and that the extra requirement – publicity with a high level of offensiveness – is not necessary. The UK courts don’t have that extra limb, she notes. It follows that the Andrews case in NZ was wrongly decided. You might remember the case involved the broadcast, in a reality TV show on firefighters, footage of the Andrews’ (drunken) car accident just off the motorway, in which a distraught Mrs Andrews was shown saying some fairly intimate things to her husband while rescuers used the jaws of life to cut him from the wreck. The judge said they had a reasonable expectation of privacy in their exchanges, but that the publicity wasn’t sufficiently humiliating to be offensive. (For my part, I’m more inclined to criticise the judge’s other conclusion that there was public interest in those exchanges).
Sir Geoffrey Palmer made the radical suggestion that defamation law is dying out. In an age of multiplying platforms and celebrity culture, nobody is going to take the media seriously enough to sue, he rather thinks. I’m not sure I agree with that one. As long as there are people to besmirch others’ reputations unfairly, there will always be some besmirched with sufficient fury and resources to sue, I think.
Ursula Cheer reviewed the cases and research on the chilling effect of defamation laws. This complements her own recent empirical research on the chill effect. She’s still inclined to think that the chill is not as great as the media often crack it up to be. But she also supports an expanding the Lange defence to include stories about all matters of legitimate public concern, rather than just serious commentary on past, current and aspiring MPs. She has some more thoughts on the proper effect of the Bill of Rights on the law of defamation, but we’ll have to wait for her full paper to get the details…
Topics: Broadcasting Standards Authority, Contempt of Court, Copyright, Defamation, General, Internet issues, Media ethics, NZ Bill of Rights Act, Privacy tort, Suppression orders | Comments Off on Tribute to John Burrows
New Yorker cartoon
February 7, 2008
One dog to another: “I had my own blog for a while, but I decided to go back to just pointless, incessant barking.”
Topics: General | Comments Off on New Yorker cartoon
Right Charlies?
February 4, 2008
Was the Advertising Standards Complaints Board right to uphold a complaint about the Charlies “sunbathing” fruit-juice ad? Even after Charlies agreed to screen it only in adult-viewing timeslots?
It’s a typical piece of Marc Ellis larrikinism. He’s shown as a cartoon child spying on a buxom neighbour sunbathing nude (her cartoony breasts are strategically covered, first by a book and then, as the camera zooms in on them like, I guess, a kid’s attention zone, by the top of a fence). The image then dissolves into two hands lovingly rotating fruit over juicers. It doesn’t take a great stretch of the imagination to see a connection.
The advertising standards complaints board was plainly divided over this one. They considered complaints under five different heads, and were split on all of them. They concluded (by majority) that the ad, in that timeslot, wouldn’t cause widespread offence, or violate norms of taste and decency. But they found (by majority) that it breached the rule requiring social responsibility because of the child characters and the sexual overtones. They also upheld the complaint (again by majority) against using sex to sell unrelated products.
Note to those tempted to see this as an example of the excesses of the Nanny State: WRONG. The Advertising Standards Authority is not part of the government, but was set up by industry self-regulation.
Still, it is still conducting a public function and is therefore subject to judicial review, and to the Bill of Rights Act. Is there a possible case? I think there is. Although I’m told that the ASCB considers the Bill of Rights in every case, the decisions don’t mention it. (To be fair, neither do the lawyers’ submissions). It’s very difficult to tell how they use it. It’s not even clear that a rule as broad and vague as a requirement of “social responsibity” is sufficiently precise to count as “prescribed by law”. In any event, that very nebulousness ought to make the ASCB very cautious about the application of that rule. Here, the ASCB was divided, there was an element of humour, and I would have thought the case was generally fairly close to the line: all three tell against upholding the complaint. On the other hand, it’s hard to get past the finding that the ad was using sex to sell an unrelated product. (I’m not inclined to see the emphasis on “nothing artificial” during another cleavage close-up provided sufficient connection).
Overall, this strikes me as something that will quickly be filed under “quaint speech suppression”, like the BSA’s rulings in the 1990s that the taste and decency standard was breached by Lindsay Perigo calling Ministry of Education staffers “child molesters of the mind” and Deborah Coddington calling NZ on Air “Nazis on Air”. Personally I find the ad a bit sleazy, and it would tend to make me want to avoid the product rather than buy it, but I’m not sure the ad ban is really demonstrably justified.
Topics: Advertising Standards, NZ Bill of Rights Act | Comments Off on Right Charlies?
Eady listening
January 28, 2008
So, the law of privacy is largely settled now, David Eady was telling me on Friday.
(Heads-up: this is a brazen name-drop, and you are supposed to be suitably impressed by it. David Eady is Justice Eady, the British High Court judge who hears most of the media law cases. He’s also co-author – with Victoria law school’s esteemed Dean, Tony Smith – of the leading text on contempt of Court.)
Justice Eady has been at the centre of several seismic shifts in media law over the past decade, including the rapid creation of an action for infringement of privacy (under the guise of breach of confidence), and the development of what’s effectively a public interest defence to defamation. The catalyst for change has largely been the passage of the Human Rights Act, which shifts the Eurpean Convention on Human Rights and Fundamental Freedoms into centre stage in British law. The Convention expressly protects privacy; our Bill of Rights Act doesn’t. But developments in British law, and especially the role of free speech, are still sure to be influential over here. So his take on the trends is fascinating. Here are some highlights:
- It’s unlikely that the British courts will follow the Princess Caroline case, where the European Court of Human Rights found the princess’s privacy rights were infringed when photographs were taken of her in public places, at least when the photos were not “contributing to a debate of general interest”. The issue is before the appeal courts in a similar case brought by J K Rowling.
- If the media in Britain hadn’t adopted its usual knee-jerk pose of rabid opposition to a statutory tort of invasion of privacy when it was proposed in the 1990s, they’d be in a better position now. For instance, the statutory tort proposed by the Calcutt committee (Eady was a member) would have excluded privacy rights in public places altogether, and wouldn’t have included reasonable expectations of privacy as to business matters.
- The parameters of privacy law in Britain are becoming fairly clear: you can have a reasonable expectation of privacy in relation to relatively trivial matters, such as the layout of your home if the information was obtained in an intrusive manner (a hidden camera, for example?).
- People can’t say, “Ah, but surely I can talk about my own experiences, about [insert details of lurid affair with sports star or personal relationship with pop singer]. Surely that’s my right to freedom of expression”. The courts won’t accept this line of reasoning if the story involves intruding on others’ reasonable expectations of privacy. So if you happen to have a one-night stand with a Shortland Street star, your right to talk to the media about your experiences might be limited by the star’s right to privacy.
- Situations where those in public places have a reasonable expectation of privacy are likely to be rare.
- Communications with spouses or partners are likely to be protected, even where they arise in the context of concerns an adulterous behaviour or other “immoral” conduct.
- Domestic confidences about business matters – such as having a moan about colleagues or employers – are likely to be protected.
- Genuine public interest, for example, in the exposure of wrongdoing, or illegality will always be a defence. This will include the revelation that the public has been misled (“I’ve never taken drugs”). However, the “role model” argument (ie that public figures who set a bad example to the nation’s youth deserve less protection of their privacy) is illogical, Eady thinks.
- Nor will it be enough to say that public figures have somehow waived their right to privacy by giving public interviews about something.
- Protection may be accorded to invasive statements even if they are false, for example, exploring or speculating on intimate subject-matter, regardless of accuracy. (The NZ case of P v D may provide a good example. The plaintiff got an injunction to prevent publication of material about treatment for a suicide attempt – but did not want to say one way or another whether it was true.)
- Plaintiffs are increasingly managing to get injunctions effectively binding the entire media by getting “John Doe” orders against “persons unknown” then serving them on everyone, or telling everyone of their existence. It’s then a contempt of Court to undermine them, even if they are not directly binding on you. This raises many problems – how do you give the media a chance to oppose the injunction’s grant? How does the plaintiff identify the information to be protected, but at the same time not spread it around? These are being worked through.
- The rule that injuctions won’t be given in defamation cases if the defendant (usually the media) declares that it will plead truth (or other defences) if sued is “increasingly looking like an endangered species”. It doesn’t fit with the balancing of rights that is increasingly part of the other media law jurisprudence. The courts may start looking at evidence (such as it is at such an early stage) to see whether the defence is in fact likely to prevail at trial.
Topics: Injunctions, Privacy tort | Comments Off on Eady listening
Handy info for Contempt lawsuits
January 21, 2008
Today’s DomPost has some useful information for those advising the media on contempt of Court issues. The average length of time between committal and trial, in the District Court and the High Court, is just under a year. Add to that an average of six to nine months between arrest and committal, and you’ve got more than 18 months between arrest and your average trial. For big cases, it’s likely to be longer. Given that the Court of Appeal has said that in the normal course of things, potential jurors’ memories of particular publicity can be expected to fade in six to eight months, that means publicity around the time of an accused’s arrest will have to be seriously splashy and prejudicial before it will be taken to have created a real risk of affecting the fairness at trial.
Topics: Contempt of Court | Comments Off on Handy info for Contempt lawsuits
Canada moves toward expanded libel defence
January 16, 2008
Canada is finally jumping on the US, UK, Australian, South African and NZ bandwagon and providing protection to political (and other public-interest) speech against defamation actions. The Ontario Court of Appeal has created a Reynolds-type privilege for “responsible journalism”. (It’s all obiter, though, and the Canadian Supreme Court has yet to confirm the new direction).
They’ve gone with the UK’s Reynolds/Jameel form of the defence, which is not closely limited to political speech, as in NZ and Australia.
Still, this case helps confirm that our courts are likely to look to the factors set out by Lord Nicholls in Jameel as indications of whether journalists are acting responsibly, and are therefore protected by the defence. This underscores the importance of journalists behaving in line with those factors if they want this extra defamation protection. For those unfamiliar with them, here’s an outline (my book contains more detailed guidance):
- The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.
- The nature of the information, and the extent to which the subject-matter is a matter of public concern.
- The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
- The steps taken to verify the information.
- The status of the information. The allegation may have already been the subject of an investigation which commands respect.
- The urgency of the matter. News is often a perishable commodity.
- Whether comment is sought from the [plaintiff.] He may have information others do not possess or have not disclosed. An approach to the [plaintiff] will not always be necessary.
- Whether the article contained the gist of the plaintiff’s side of the story.
- The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
- The circumstances of the publication, including timing.
Note that there are some who say this is unfair to plaintiffs whose reputation has been besmirched by false, but responsible journalism, because they are left without a remedy. I’m not one of them. One of the key factors in the question of “responsibility” is getting and reporting the other side – so almost all plaintiffs will at least be given a platform to put their views.
Topics: Defamation, General | Comments Off on Canada moves toward expanded libel defence
A prediction about the Electoral Finance Act
January 14, 2008
I don’t want to say too much about the Electoral Finance Act. Some of you will know that I have been the spokesperson for the Coalition for Open Government, which generally supported the new law, arguing that it’s much better than the system we used to have, serves important democratic ends, and is much less of an imposition on free speech than its opponents claim. But in this blog, I’m wearing my media lawyer hat. And wearing that hat, let me make this prediction: the EFA will not produce a swag of litigation.
If I’m right about this, then most of the political journalists in this country, along with many MPs and a horde of bloggers, ought to be extremely embarrassed. They have been confidently telling us that the EFA will trigger a deluge of court cases.
I think they’re wrong, and here’s why:
— For anyone spending less than $12,000 on electioneering, the only real issue is whether they have put their name and address on the ad. We’ve seen Andy Moore get warned for not putting his name to his Don’tVoteLabour site. (In the Herald, Andy rather unconvincing told us that one of the reasons he didn’t put his name on the site was that he lived at home and wanted to protect his family. No doubt his family will feel much safer now that he’s discussed it in the Herald. The Herald itself was also outraged by this. How can you justify a policy that requires people to reveal their identities before speaking out on public issues? Of course, the Herald itself doesn’t require its correspondents to provide their names. Oh, wait…) It was already the law that you have to put your name on electioneering handbills and posters and newspaper ads. This reform can be seen as simply updating that law. My point: hardly anyone ever got prosecuted for breaching this law. I doubt it will be much different with websites. If someone refuses to comply with a gentle warning from the Electoral Commission, they can be a martyr to the following proposition: “it’s an outrage that I have to tell the people I’m trying to influence who I am (though I haven’t ever objected to similar name requirements on fliers and posters and newspaper ads).” I think the number of people who will want to take that stand is limited.
— Those who neglect to put their name on a placard during a political demonstration or on a usenet post will not be prosecuted. They are covered by legislative instruction to the Electoral Commission not to worry about minor infringements.
— Those wanting to spend more than $12,000 to spend on electioneering have to register with the Electoral Commission. We’re down to a very small number of people and organisations here. It’s possible that one might decide to flout this law by not registering. I think a prosecution would be likely to demonstrate that: (a) not that many people need to register, (b) the registration requirement is to offer an additional guarantee that the public know the identity of big-spending election advertisers, and (c) registration is not that onerous. None of it is very hot publicity for the anti-EFA cause.
— Someone may decide to flout the $120,000 spending cap on third party electioneering, to show that it’s an unfair restriction on their speech rights. Only a handful of people and organisations can afford to do this, and they would risk drawing attention to that fact. Tim Shadbolt might get prosecuted, but I rather think he’ll be perceived as using the EFA as a publicity stunt. It’s tough for him to argue that he hasn’t been able to get his message about SIT funding across to the voters.
— The limits are much lower for constituencies (register at $1000; cap at $4000). If there is legal action, it’s much more likely to be at the local level, I think. I expect this will most often be due to lack of knowledge of the law. Where they are discovered, a warning may be thought sufficient.
— The legislation only applies to ads aimed at influencing voting behaviour. The Electoral Commission has interpreted this very narrowly, so it catches only a small set of messages: those that are explicitly aimed at the election. The Commission is providing a lot of latitude for “issue ads” even when these may have some effect on the election. So those who might want to prompt a lawsuit to demonstrate that the law is (a) unclear, or (b) too restrictive, face electoral authorities who have drawn a fairly clear bright line which allows maximum play for free speech. Anyone who wants to provoke a prosecution will have to push the line very hard, and most ordinary people will end up thinking: “Huh? But that really is an election ad. This hardly shows that the law casts its net too widely”.
— A prosecution would have to go through two layers: the Electoral Commission would have to decide it’s infringing and serious enough to refer to the police, who would then have to decide whether to exercise their discretion to prosecute (and let’s not forget that they didn’t prosecute anyone under the Electoral Act last election despite good evidence of a pile of electoral offences).
— Could someone try to engineer a case before the courts to get a ruling on a particular ad? Courts are reluctant to issue declaratory judgments on moot points.
— Any prosecution is likely to occur after the election, rather negating its election publicity value.
That’s not to say that there are not grey areas in the law. Just that they are not nearly as likely to be litigated as the EFA’s detractors seem to think, and certainly not before the election.
What there will be, I guess: a barrage of stories about the evils of the law, and its lack of clarity; an increased involvement of lawyers behind the scenes giving advice on ads; and a range of people and organisations exploiting loopholes in the new law. The big story, I suspect, is not that the EFA is an outrageous blow to freedom of expression, but that it does little to achieve its purposes. Watch for the bill’s detractors to slyly switch critiques.
Topics: Electoral speech, General, Media ethics | Comments Off on A prediction about the Electoral Finance Act
A potty Potter-right copyright case
January 11, 2008
Good grief. JK Rowling is joining the Idiot Copyright Lawsuit club, suing the folk who want to publish in book form the material on website the Harry Potter Lexicon. (She’s happy with the website). The book would be a sort of encyclopaedia of Potterworld. The sort of encyclopaedia, in fact, that she would like to write herself. But unless it’s going to grab great big chunks of text from her books, or claim some sort of official authorisation that it doesn’t have, there’s nothing illegal about this. You don’t have copyright you can assert against other people discussing your work. At least, you don’t in the Muggle world. In fact, as Tim Wu explains on Slate, Rowling’s threats make her sound “entirely too much like a Death Eater”. She has obtained an injunction for now. Let’s hope the federal courts give her the old avra cadavra.
Topics: Copyright, General | Comments Off on A potty Potter-right copyright case
What is this “Google” of which you speak?
January 9, 2008
The Listener’s cover story this week is headed: “Strike the best sites on the internet”. Boy, does it deliver. Apparently, there’s this thing called “Google” that allows you to search trillions of websites. And there are other “search engines”, too. The story even mentions one. And that’s not all. Who knew that the Guardian and the New York Times had websites – that you can, like, check out for free?! Looks like there’s a cool site called something like “Arts & Letters Daily” (strange name though!), and a really useful encyclopaedia-type thing called “Wikipedia” (also really strange sounding, but good). Rounding out the list of useful sites are Project Gutenberg, the Art Renewal Centre, and picwash.
Believe it or not, there are actually more websites than that; there’s a bigger list online, including websites for NZ newspapers!
The Listener has also given us helpful advice about how to send emails. Thanks, Listener!
Question for discussion: what proportion of the Listener’s readers will find this information useful? It’s a serious question. I use the web a lot; maybe it’s me that’s out of touch. Am I wrong to suggest that many more readers will find this story disappointing and even insulting than will find it helpful?
Topics: Media ethics | Comments Off on What is this “Google” of which you speak?
Did the Minister of Commerce defame Green Acres?
January 8, 2008
On Summer Report this morning, the chief executive of ironing franchise Green Acres accused Commerce Minister Lianne Dalziel of defaming his company. He said she told a bunch of scammed investors that Green Acres was under investigation by the Serious Fraud Office. In fact, he said, it was the fraudulent franchisee who was under investigation, not the company, which had lodged the complaint in the first place. He called for Dalziel to apologise.
This raises an important question: why the hell is an ironing franchise calling itself “Green Acres”? [Update: I gather Green Acres is primarily a gardening and lawn maintenance franchise]
There’s also an interesting defamation issue here. Did Dalziel defame the company?
Probably not. But the media might be doing so.
First, a few lawyerly caveats. I don’t know what Dalziel told the meeting of franchisees. I don’t know the scope of the SFO’s investigation. I don’t know the precise relationship between the alleged scammer and the company, though chief exec Andrew Chisholm was anxious to let us know that he was not an employee but a contractor. There’s an interesting legal issue about whether the company can be held responsible for the conduct of one of its franchisees (and much will turn, I expect, on the degree that the actions of the company helped defrauded franchisees to think that the scammer was acting on its behalf) – but I’d need to know a lot more before addressing that.
The starting point: it probably is defamatory to say that a company is under investigation for fraud if it isn’t. The company would have to prove financial loss (or likely financial loss), but if the allegation reflects on particular people (such as the CEO), they would only need to show that the defamatory words were conveyed. Of course, this will depend on what the Minister said and what the SFO is investigating.
An aside: if it is defamatory to talk about the SFO investigation without making it clear that it’s into the man and not the company, it looks like National has made the same mistake.
But the Minister almost certainly has a defence: qualified privilege. This defence (not to be confused with the Lange defence, which is a sub-species) used to baffle me as a law student. It applies when one person has a “social, moral or legal” duty or interest to convey some information, and someone else has a corresponding interest or duty in receiving it. What does that mean? It’s best explained by example. If you dob me in to the police for running a meths lab, and it turns out you got it wrong, I won’t be able to sue you for defamation, as long as you haven’t acted vindictively. You’ve got a social or moral duty or interest in tipping off the police. They have a corresponding duty to receive such information. On the other hand, if you went to the media, the courts would say that you’d exceeded your privilege: the whole public don’t have a corresponding interest in this information. You’d probably lose the defence.
Here, the Minister of Commerce’s responsibilities include helping fraud victims. She spoke to them alone, it seems (it might be different if there were reporters present). If she got some facts wrong about the scope of the SFO investigation, it doesn’t matter, because they were spoken on a privileged occasion.
If the Minister spoke “maliciously” she could lose the privilege. Malice means, essentially, bad faith; having an ulterior purpose. Although there was a political component to the meeting, I’d be very surprised if it could be shown that the Minister’s statement was malicious.
Still, this defence doesn’t protect the media from making the same statement. Nor does it protect disgruntled franchisees from saying that the scammer was an employee (as one said on NatRad this morning) if in fact he wasn’t, or that Green Acres have been slow to act, if in fact they haven’t.
The media are potentially in the gun for reporting such comments, though things get complicated here. They’d have a goodly range of arguments: bane and antidote, honest opinion, an expanded Lange defence, defence against attack, neutral reportage… which I’m not going to go into here. Perhaps most powerful of all is the fact that not many people sue for defamation.
Topics: Defamation | Comments Off on Did the Minister of Commerce defame Green Acres?
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