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 | 1 Comment »
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 | 42 Comments »
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 | 5 Comments »
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 | No Comments »
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 | No Comments »
Scott Watson battle in media
January 6, 2008
Keith Hunter thinks he’s not guilty, and has produced a documentary and book about it.
North & South and the Herald on Sunday are weighing in on Watson’s side.
Meanwhile, the Listener is weighing in for the prosecution, with a cover story featuring interviews with prosecutor Paul Davison QC and Deputy Police Commissioner Rob Pope.
Despite the spate of recent media coverage, alas, we’re not left much better informed about whether or not Watson did it.
I reviewed Hunter’s book for the law society mag LawTalk last year. I said I thought his book raised serious questions about Watson’s guilt, and about the operation of the justice system. (Incidentally, today’s Herald on Sunday story, with its front page tag “SOUNDS MURDERS: THE NEW EVIDENCE”, in fact contains no new evidence at all. It merely repeats the old evidence in Hunter’s book. The only thing that’s new is that Watson says he’d be prepared to give evidence if he was given another trial. Well, bully for him. In fact, he had the right to give evidence at his first trial, and chose not to, no doubt on the advice of his legal team, who are terrific lawyers. It’s not especially surprising that his conviction may have prompted second thoughts about that call. But those second thoughts are hardly compelling all by themselves. The question to ask, which it seems the HOS didn’t, is: what evidence would he give? The HOS might also have pressed him (or at least his lawyers) on what he did with the clothes he was wearing on that fateful night – something that is not adequately dealt with in Hunter’s book, I think. If Watson were to give evidence, he would face some very uncomfortable cross-examination. But at least the HOS’s journalists are thoughtfully sparing him that for now.)
The Listener article errs – and more seriously – in the other direction. The story was a great opportunity for the Crown to provide its response to Hunter’s apparently meticulous criticisms and restore the public’s faith in the justice system. What did Hunter get wrong? What compelling evidence of Watson’s guilt did he slide over? Why are his arguments unconvincing?
In particular: why are three key witnesses now mistaken about who it was who got on the boat with Ben and Olivia, and what sort of boat it was? Aren’t the identifications of almost all the other witnesses, who almost uniformly described the mystery man’s hair as medium-length, unkempt and wavy, rather dodgy? Hasn’t Hunter proved it’s impossible for the Blade to have made it out to Cook Strait and back in the time they suggested? And that Watson couldn’t have made it back ashore at the time the Crown said he did? What about all the sightings of the boat they insist doesn’t exist?
I hope there are good answers to the questions. The Listener did raise some of these questions, but made little effort to press Davison and Pope about Hunter’s criticisms. Certainly, there’s a place for the Crown’s elimination-of-all-other-possibilities reasoning, though we’ve already heard it. And it’s useful to be reminded of some of significant evidence against Watson, including his professed plans to kill a woman.
But what’s their answer to Hunter’s specific criticisms? Can they answer them?
Instead, the story is basically a platform for Davison and Pope to trash their detractors, and repeat what little they’ve already said about the prosecution. The jury heard all the evidence, and that’s what counts. The Court of Appeal rejected the appeal. Criticism is uninformed and “unsophisticated”. Hunter and the rest of the media haven’t gone into the trouble of getting into the detail of the case. (This is extremely insulting to Hunter. Read his book, and you’ll see he has gone into exhaustive detail about the case).
I still have strong doubts about the conviction. But maybe that’s because I’m being “sensationalist” and “superficial in the extreme.”
Topics: Media ethics | 47 Comments »
Solicitor-General to prosecute Fairfax for contempt
December 21, 2007
The DomPost is reporting that the papers that ran the “terrorism files” story are to be prosecuted for contempt. The S-G has also set his sights on DomPost editor Tim Pankhurst, but not the editors of the Press or the Waikato Times.
The essence of the allegation is that the stories will interfere with the defendants’ right to a fair trial, by tainting them as terrorists in the minds of any juror. And ask yourself this: if you were a juror on a gun charge relating to someone from Ruatoki who tries to run a “lawful possession” defence, what would be going through your mind? You’ll be thinking “the bugger’s one of those terrorists”. It doesn’t help that none of the accused were named in the story. In some ways, that just makes it worse. I gather that most of the really inflammatory remarks that were published were made by only three or four of the accused. But all the others are now tarred with them. Sure, the trials will be held in Auckland, but Stuff put the story on the web, and it had a very wide readership.
There’s an added ground (or perhaps just a factor that makes the alleged contempt worse): it’s a crime for the media (or the rest of us, actually) to disclose material obtained via an interception warrant. It seems clear that the story contained such material.
The story doesn’t mention that some of the published material may have been suppressed by a District Court judge in some of the cases. I don’t know whether that forms part of S-G’s case.
It strikes me as a strong case. But it’s not open and shut. The issue is whether the coverage created a “real risk” of prejudice to the administration of justice, especially including someone’s right to a fair trial. The DomPost will argue that the trials are likely to be a long way off, and the Court of Appeal has said that potential jurors are likely to forget publicity after six to eight months. (The court also said potential jurors are likely to remember the publicity for longer if it’s particularly striking or sensational…). The DomPost will also argue that it had already been announced that the defendants wouldn’t be facing terrorism charges, only arms charges. Because Arms Act charges are largely a “tick the box” matter (did they have a gun? did they have a licence? etc), there’s not much room for prejudice to affect a jury. Justice Potter in the Mossad spy case accepted this sort of reasoning in relation to passport fraud. (Still, some experts I’ve discussed this with doubt this conclusion, believing that a hostile jury can always find ways to hold that sort of knowledge against the defendant). The DomPost will also say it minimised the harm by not naming individual defendants, so jurors couldn’t have anyone particular in mind in connection with any particular statement. And they’ll no doubt call in aid the NZ Bill of Rights Act, though that didn’t work too well in the Court of Appeal case I mentioned above.
Interesting times ahead.
Topics: Contempt of Court, Journalism and criminal law | 2 Comments »
Editors and name suppression
December 19, 2007
Are editors liable if their publications breach name suppression? Not if they didn’t read the story, and it was reasonable for them not to, according to a British case. The story identified the victim of a sex offence. But the editor said he hadn’t read it. It was on page 35, and the editor had been on holiday shortly before the issue was published. (The company that published the story was still liable, though).
Would it work here? The editor was relying on a statutory defence that doesn’t exist in New Zealand. But the same sort of factors may be being applied. Editors rarely get charged in NZ for breaches of suppression orders. I can recall two cases: Louis Pierard of Hawke’s Bay Today and Paul Thompson of The Press – both charged for breaching suppression rules by identifying sex victims. Thompson hadn’t read the story; the charges were dropped (after some expensive legal wrangling). The reporter agreed to accept diversion. Fairfax pleaded guilty. The same went for Pierard: the publisher (APN) was found guilty but the charges against the editor were dropped. (There’s a terrific story “Applying the law, or getting personal?” by Geoff Collett of The Press (not online; 23 Dec 2006), that explore the issues in a very balanced way).
The bottom line: editors aren’t likely to be charged very often (though there mayt be some increase in the probability for editors who have rubbed local police the wrong way). And if they are, they’re unlikely to be convicted unless it’s clear they’ve seen the story before it went to print. Publishers, however, are more likely to carry the can for breaches.
What’s disturbing, though, is that there are literally hundreds of stories that reveal details about people whose names have been suppressed – from victims to defendants – sufficient to identify them. It seems very unfair on the few who are singled out for punishment.
Topics: Name suppression | No Comments »
Has John Edwards ripped off Coldplay’s “Clocks” too?
December 14, 2007
Have a gander at this. Has US Presidential candidate John Edwards breached Coldplay’s copyright like John Key did? Or has his production team done just enough to tweak the track?
Topics: Copyright, Electoral speech, General | 51 Comments »
Journalist sacked for swearing at boss
December 14, 2007
The Employment Relations Authority has upheld the Press’s sacking of sports journalist John Coffey. Sports editor Coen Lammers had added in some words to one of his cricket stories. The words were “New Zealand’s youngest in a decade”. In fact, the phrase should have been “New Zealand’s youngest in over half a century”.
When he saw the change (incidentally, before the paper was put to bed), Mr Coffey was not best pleased. He said something like: “leave my fucking copy alone” and “you always fuck it up” and “don’t feel too bad about it because they (pointing at the editors’ office) also fuck things up.”
This needs to be said: there is no rage quite like the rage one feels when someone fucks with one’s copy.
(This also needs to be said: there is no gratitude quite like the gratitude one feels for someone who corrects one’s embarrassing cock-up before it goes to print).
Is this really a sacking offence? We’re talking about a newsroom here. We’re talking about a sports journo. There are newsrooms where nobody thinks you’re serious about something unless you use the F-word.
The rest of the ERA’s decision makes it clear that there’s more to the firing than one outburst. Coffey had twice been formally warned about offensive and confrontational behaviour in the preceeding months: once for threatening to “wring the fucking neck” of a subeditor, and once for calling Lammers “a fucking idiot”. The first warning came with an offer of confidential counselling which he didn’t take up. The second warning said Coffey may be dismissed if it happened again. The editor gave him a full opportunity to explain himself, but in the end wasn’t satisfied, and fired him. No doubt, beneath the narrative of the legally salient facts, there’s a more complex undercurrent of relationships going sour.
I’m not an employment law expert, but the firing strikes me as harsh but not outside the law.
Amusingly, the NZ Herald’s report of the case mixes up the botched phrase added to Coffey’s story with the phrase that ought to have been added. No doubt some fucking idiot of an editor screwed with the copy.
Topics: General, journalist employment issues | 48 Comments »
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