My pick for best protest of the year
August 28, 2013
Take a bow Greenpeace.
Somehow Formula One has forced YouTube to take down the video with a copyright claim. Not at all sure how that works: the film is by Greenpeace.
Topics: Protest speech | 48 Comments »
Vince Siemer and Supreme Court accuse each other of contempt
July 31, 2013
When Vince Siemer was charged with contempt for flagrantly breaching a court suppression order, he made a novel argument: he was upholding the rule of law.
Topics: Contempt of Court | 756 Comments »
Has the Harrassment Act just swallowed the law of defamation?
July 31, 2013
In a landmark judgment, a court has ordered a blogger to indefinitely remove more than a hundred posts and comments attacking the reputation of a lawyer, and not to write about her again.
The decision (Flannagan v Sperling DC Waitakere, 4 June 2013, Harvey DCJ, CIV 2012-090-986) may have opened up a cheap highway through the expensive labyrinth of defamation law. Why sue for defamation when you can get an injunction by showing that a publisher has harassed and distressed you instead? For one thing, you don’t need to worry about all those pesky defences such as truth and honest opinion.
The case was brought by lawyer Madeleine Flannagan who was repeatedly savaged online by Jacqui Sperling, a friend she fell out with. Sperling called her a liar, a perjurer, a prescription drug addict, a vexatious litigant, and a fraudster, and labelled her incompetent, abusive and “bonkers”. She also published private financial and medical details about Flannagan.
Although Sperling did not defend the proceeding, it should be said that there seems to be very little foundation for her accusations. Many of them may well have been defamatory.
But what’s interesting is that Judge David Harvey didn’t have to make that call. All he had to decide was whether the posts and comments amounted to a pattern of behaviour of “specified acts”, whether Flannagan reasonably suffered distress, and whether a restraining order was necessary and justified.
The Harrassment Act sets out a menu of “specified acts”. The relevant one here was “giving offensive material to a person or leaving it where it will be found by, given to, or brought to the attention of, that person”. Harvey J is surely right to conclude that repeated offensive blog posts aimed at someone can satisfy this limb. He said these were offensive because “they disclose personal and private information and include disparaging remarks about [Flannagan’s] morality, integrity, professional ability, intelligence and honesty that go beyond the robust exchange that one sees on the Internet.” He also held that she suffered the requisite distress and that a restraining order was necessary.
As the author of New Zealand’s leading text on internet law, Judge Harvey is better placed than most to comment about internet standards. And I don’t think it can be said that he was a pushover here. He had denied Flannagan’s earlier Harrassment Act application against Sperling, in part because Flannagan had engaged with Sperling online, and had herself gone looking for Sperling’s derogatory comments.
Judge Harvey recognises that Flannagan’s harms “could be remedied by defamation proceedings” but says they fall under the Harrassment Act too, and that’s all he has to look at. That’s true. But Sperling had a defence if she could show she was acting for a lawful purpose (s17). At least one judge has held that this requires an examination of the law of defamation to see whether a defence of truth or honest opinion might be available, and warned that harrassment law should not be used to undermine the high threshold for an injunction in defamation cases: B v Reardon [2000] DCR 575. As noted, Sperling didn’t advance any defence.
But I couldn’t help but notice the plethora of issues that this case would have raised in a defamation context. Hmmm, I thought, some of those statements look like they might be protected by honest opinion.
And: I’m not sure there’s a clear defamatory meaning for one or two others.
And: isn’t there a case that one or two of those allegations might attract a qualified privilege defence?
And: should we be troubled by the fact that the judge doesn’t have to make a finding that these harassing smears are untrue?
Judge Harvey knows the New Zealand Bill of Rights needs to be factored in. He assures us he has “weighed each post and considered whether, in terms of content and the competing interests of the parties, the removal of the post would amount to a justifiable limitation upon Ms Sperling’s free expression rights.” But he gives us little sense of how that justification process was conducted, except in his analysis of the appropriate duration of his takedown order. And that takedown order is a whopper: not only does it order Sperling to remove dozens of posts unless and until the court permits reinstatement, it also forbids her from directly or indirectly mentioning Flannagan or her family on any website she moderates. That seems to prevent her from discussing Judge Harvey’s decision, for example.
This is a long way from the courts’ great reluctance to grant injunctions affecting free speech in most other contexts.
But there is something to be said for that. The law of defamation is byzantine. It would not offer most people an easy remedy here. There’s much evidence that Sperling’s posts were malicious and harmful, and they are now banned. Sperling could have raised arguments in her defence, but didn’t. She has not been forced to pay damages. She can still raise her concerns in other fora. These applications aren’t simply rubber stamped, and the judge clearly gave close attention to the justifiability of the order. An appeal is available.
In fact, this is not unlike the cyber-bullying regime the Law Commission recommended, recently accepted by the government. The grounds for take-down orders under the Commission’s proposal include the publication of false allegations causing significant personal harm – though this requires a consideration of a range of contextual factors such as the level of offensiveness and harm, the purpose of the post, its subject matter, any public interest in it, and the vulnerability of the complainant.
Madeleine Flannagan may well still have got herself a takedown order under this procedure. But I think it is helpful to require judges to consider those wider factors first.
Topics: Defamation, Harassment Act | 49 Comments »
Read this, if you haven’t already
May 21, 2013
Andrew Geddis nails the government for another constitutional abuse.
Topics: General | No Comments »
Defamation and satire
April 24, 2013
Memo to anyone thinking of suing or threatening someone else for defamation after that person made fun of them.
Don’t.
It’s not that the law clearly protects humorous speech and satire. That question is a bit vexed. It’s defamatory to say something that brings another person into ridicule. So it looks like that is fairly easily satisfied. Actually, those looks are deceptive.
But that’s not the reason not to bring the threat. The reason is that you will invariably look like a complete plonker who can’t take a joke. This is what has happened, I think, to Colin Craig.
(Also, unless you want to look even more like a plonker, try to refrain from admitting that the article you’re objecting to is obviously satire when your lawyer’s letter says it “cannot be dismissed as satire”.)
If that’s not enough, there are also legal reasons not to threaten defamation.
For a start, in many cases, a court will find that the article would not have been understood in a defamatory sense. That is, it won’t affect your reputation because everyone will realise that it’s made up. That’s particularly the case where there are strong contextual indications that it is satire (such as other, obviously made up quotes in the story, obvious exaggeration, a ridiculous headline, and a bunch of other equally silly stories surrounding the article “Bob Parker waiting to be returned to space). Be aware that the courts are also starting to accept that online speech is often to be taken with a grain of salt.
You might be frustrated that some people come up to you and say “Damn, Craig, I was surprised to see you say that”. You can’t line up some people in court to say what they think the article meant. That’s a question for the court to determine itself, on the basis of what some hypothetical ordinary, reasonable reader would have thought.
But that’s not the end of it. The plaintiff would have to identify a “sting” – that is, the barb between the lines that says something bad about him. What is it here? Here’s what he was (falsely!) quoted as saying:
Williamson likes to talk about big gay rainbows,” said Craig, “but it would help if he understood what the rainbow actually means. After Noah’s flood, God painted a giant rainbow across the sky, which was a message that he would never again flood the world, unless we made him very angry. And we have.”
What is the sting here? That he has extreme Christian beliefs? It’s not entirely clear – and I see that Mr Craig’s lawyer didn’t identify one. Once such a sting is spelt out, as it must be, it can – even in humour cases – then open up some other defences. It might be argued that the sting is true, or that it’s honest opinion, or that it’s covered by qualified privilege.
Those defences can be problematic in humour cases (“Oh, of course I didn’t intend it to be taken seriously, but if it was, it was my honest opinion”.) But those defences can’t be dismissed out of hand. I would expect a court to be sympathetic to an honest opinion defence in many satire situations.
I note that Colin Craig has reportedly withdrawn his threat. Good on him. But too late to avoid looking like a plonker.
Incidently, The Civilian handled the whole thing with aplomb, I think. He quickly added an amusing clarification that removed even the faint possibility that anyone could any longer regard it as defamatory. But he didn’t accede to Mr Craig’s more unreasonable demands. Well played, that man.
Topics: Defamation | 69 Comments »
Information-sharing by the government: deja vu
April 11, 2013
Radio NZ is reporting that:
The Government is considering a massive expansion of data-sharing between ministries and agencies and has asked the Treasury to assess the potential impact on people’s privacy.
This seems to be a closely-related extension to the recent information-sharing legislation, which was preceded by a ministerial briefing on information-sharing by the Law Commission.
So, why this:
The Treasury has advertised for a consultant to assess assess the privacy implications of greater government data-sharing, and is seeking bids for the work.
Why isn’t this being done by the Law Commission (which incidentally has also done a vast amount of other work on privacy issues recently)? Or by the Privacy Commmissioner, who might be expected to have some relevant expertise too?
Topics: Privacy Act | 4 Comments »
Review of law of contempt: deja vu
April 11, 2013
The Law Commission has announced that it will review NZ’s laws of contempt of court. This will involve a discussion paper about the issues, to be issued next year.
I wonder how this fits with another issues/discussion paper commissioned by the government and issued almost exactly two years ago: Reforming the New Zealand Law of Contempt of Court – An Issues/Discussion Paper, by Tony Smith, the co-author of the leading text book on contempt.
Perhaps the idea is to produce issues papers every two or three years and hope the problems sort themselves out.
Topics: Contempt of Court | 48 Comments »
Interim injunction against EQC blogger
April 10, 2013
I feel as if I write this same thing about once every year. Someone rushes to court to get an injunction preventing the release of information. It’s based on breach of confidence. Here it’s the Earthquake Commission seeking to prevent the release of a database containing assessments about 83,000 Christchurch claims.
The court grants the injunction, without notice to the other side. Usually, as here, there’s another hearing in the next day or two. The defendant scrambles to instruct a lawyer, and the lawyer has some very limited ability, on very short notice, to make some arguments. Then the interim injunction is confirmed. As here.
Collins J’s decision is available on the “decisions of public interest” page of the courts’ website – see Earthquake Commission v Unknown Defendants. (Good on Justice Collins and the court staff for getting this up so promptly, by the way. That seldom happens).
And here’s the thing I always say. I think there may be good grounds for the injunction. But I am shocked that the court has failed to address basic aspects of the law.
The most glaring one here is that this is government information. In such cases, the plaintiff needs to go further than asserting and proving the basic elements of breach of confidence: that the information has the necessary quality of confidence, that it was imparted in circumstances importing an obligation of confidentiality, and that unauthorised disclosure has occurred or is threatened. (Those are usually easy to satisfy). When a government agency wants to keep information secret it has to prove something more:
In the case of a government plaintiff, it will not succeed unless it can show that it is in the public interest to enforce secrecy.
That’s a quote from NZ’s leading textbook on media law (Burrows and Cheer, Media Law in NZ, 6ed, 288) citing authoritative UK and Australian authority. This is a significant hurdle for a government plaintiff and the EQC is a statutory body. How was it overlooked?
Even putting that aside, the blogger concerned put forward a defence of public interest. Once raised, that surely needs to be addressed in assessing whether there was a sufficiently compelling case to found an injunction. The judge didn’t even mention it.
How sufficiently compelling must that case be? Collins J applies an arguable case threshold. I’ve always felt that the Court of Appeal should be taken seriously when it said, in the Fahey case:
Any prior restraint of free expression requires a much higher threshold than the arguable case standard…jurisdiction to restrain the proposed publication is exercisable only for clear and compelling reasons.
This approach was endorsed by Henry J in the A-G of Wales case, who said a “stricter approach” may be required in breach of confidence cases when free speech is at stake (which will be most of them, I’d imagine.) That high threshold is applied in defamation and privacy cases.
Nor did the judge apply the Bill of Rights, despite the fact that he cannot by law grant an injunction that affects free speech rights unless he finds that to do so is demonstrably justified in a free and democratic society. The courts have laid down principles for assessing that. Not only did he not apply the Bill of Rights, he didn’t even refer to it. I would have thought there was a fair case to be made that the free speech interests here are strong ones: the blogger has alleged that the email reveals incompetent and biased claims assessment.
At the very least, you might expect the judge to weigh the general interest in free speech as part of the balance of convenience. Nope.
To repeat: I’m not saying the judge got this wrong. But in the absence of a proper analysis of the legal principles, he provides no reason for us to be confident that he’s got it right.
You may be interested in reading the blogger’s response to the Court’s approach, both before and after this interim injunction was confirmed. Not all of it seems convincing or cogent. And you’ll see that he starts off saying he’ll respect the court, but has ended up deciding to release the whole database sometime today in defiance of the ruling. It seems he’s claiming that he lives overseas, so if he stays there, he may well be beyond the reach of our contempt laws. (Incidentally, if he does publish the database, this would be yet another example of a plaintiff heading to court to try to gag information who later finds that this was utterly counterproductive).
But you’ll also see material on his website – some of which the blogger explicitly put before the judge, and some of which was posted before the judge released his decision – which the judge makes no mention of either: that he seeks anonymity to protect his sources; he was given no notice of the proceedings though he could easily have been emailed; that he believes the information is in the public interest (he goes some way toward explaining why); that he had been trying to release relevant parts of it only to those whose identities he was able to confirm; that he wanted to raise issues of jurisdiction, service, notice and venue; and that he sought an adjournment (without the injunction) to allow him to better prepare his defence. There’s also some pretty good evidence of public support for his stance in the comments threads, which might be relevant to his public interest defence, or to whether the government can establish that releasing the information would compromise the public good.
I don’t say that these points produce an unassailable case, or even that they’re all relevant or even helpful. He also rather ill-advisedly points out in the comments that:
My main regret is that this information is not as useful as I would like it to be, but it will undoubtedly be of use to tens of thousands who are unable to see their information.
But again, it’s a bad look for a judge not to mention any of that, even though he purports to summarise the blogger’s position (para [9]).
I keep whining that the courts often don’t take free speech seriously. This is why.
PS Some of the blame, perhaps, should lie on the shoulders of EQC’s lawyers, who are supposed to draw the court’s attention to relevant law, even if it goes against them. I don’t know what they argued, so I don’t know how much or little they presented.
I see that Mr Staples, the original recipient of the email with the spreadsheet on it, was represented by a lawyer who had to call in by phone (she was in Christchurch; the hearing was in Wellington). But her arguments, whatever they were, are not mentioned in the decision either. The decision mostly concerns the blogger, but the final order applies to anyone who received the spreadsheet.
Topics: Breach of confidence | 48 Comments »
Wha…?
April 7, 2013
I confess I’m entirely befuddled by the Dominion Post’s front-page lead on Saturday, “Prosecution for breaching paedophile’s rights”. Can someone help me out here?
Isn’t the story conflating the Commission with the Office of Human Rights Proceedings, an independent office within the HRC? But why is the Office of Human Rights Proceedings bringing a “prosecution”? Does the DomPost mean a claim before the Human Rights Review Tribunal (it seems so, since it mentions the Tribunal later on)? That’s not a prosecution, which is a criminal action.
Or is it a charge that the Sensible Sentencing Trust has breached name suppression? Now, that would be a criminal prosecution, but why isn’t it being brought by the police?
If it’s a Human Rights Proceedings Office case, it sounds like a Privacy Act claim, and not a charge for breach of name suppression at all (some of the language in the story suggests it’s about the Privacy Act, though the Act gets barely a mention in the story). That would also suggest that the Privacy Commissioner has already been involved and either refused to uphold the complaint or couldn’t reach a settlement with the Sensible Sentencing Trust. That would be interesting to know.
The story suggests that the Office of Human Rights Proceedings is bringing a claim against the Sensible Sentencing Trust for posting the name and details of a man who has been convicted of child sex offences, and who may have had name suppression:
The commission says this breaches his privacy because the trust does not mention that he has name suppression.
Why would it be a breach of someone’s privacy merely not to mention that he has a name suppression order? It may be a breach of suppression laws to publish his name. It may be a breach of the Privacy Act to publish his details. But neither claim revolves around a failure to mention a suppression order. They may be about a failure to respect it.
The story suggests the OHRC is concerned that without the suppression information the publication isn’t accurate (that is, it breaches the Information Privacy Principle that information be checked for accuracy before publication). That seems a bit odd to me. I’m not sure how this omission – if that’s what it is – renders the rest of the website information inaccurate or why it’s that omission that has caused any harm.
The story suggests that perhaps there may never have been a suppression order. Did anyone ask whether suppression may have arisen by operation of the law, which automatically protects child victims and witnesses in sex cases and therefore might have the effect of protecting the convicted man, because he’s a “relative” so that naming him may inevitably give away their identity? (I don’t know the details here, but it seems an obvious question to ask).
My best guess is that the Office of Human Rights Proceedings is bringing a civil claim on behalf of a convicted sex offender against the Sensible Sentencing Trust for unlawfully disclosing personal information about his convictions on its website or for failing to take reasonable steps to ensure that its information was accurate, relevant, up-to-date and complete, and thereby causing him harm, and also for refusing him access to information it holds about him. The name suppression (if it exists) seems to be being used to support the claim that the publication was improper, but isn’t the basis of the claim.
If so, that looks like it might raise some interesting issues. But I don’t know if it is so.
Topics: Media ethics, Name suppression, Privacy Act | 51 Comments »
Digital harrassment remedies coming
April 4, 2013
Justice Minister Judith Collins has (by and large) accepted the Law Commission’s recommendations to better protect victims of cyber-harrassment. (I have explained and defended and critiqued and defended again the Law Commission’s proposals elsewhere).
Note that this is not the same as the Law Commission’s recently confirmed plan to set up a one-stop regulator for the news media (discussed here and in subsequent posts). That only applies to news and current affairs and it only applies to those who voluntarily sign up. The new cyber-bullying civil remedies, by contrast, apply to everyone except the news media who sign up to that regulator. And the new criminal reforms apply to everyone, fullstop.
I think these reforms are justified. The Law Commission has made a good case that there’s plenty of cyber-bullying going on, and some of it is very harmful indeed. Most of the criminal law changes are about tweaking the law to ensure that it can apply online. The new civil remedy, which includes take-down orders made by judges, is beset by protections for free speech, so it ought not to be used except where strictly justified. To get a take-down order, you’ll have to do all of the following:
— show that someone has caused you digital harm, which can include significant emotional distress
— show that they’ve done so by breaching one of ten principles, designed to reflect existing law (eg they’ve disclosed sensitive personal facts about you, or has been intimidating or threatening)
— take your complaint to an approved agency (which might be Netsafe), who can give you advice, and perhaps try to resolve the complaint by mediation
— (it seems) obtain Netsafe’s certification that its attempts to resolve the situation have failed and the case is appropriate to go before a judge
— convince a judge that one or more of the principles have been breached, causing you harm
— convince a judge that the context of the digital communication and the surrounding circumstances do not tell against a remedy
— convince a judge that the Bill of Rights guarantee of free speech does not tell against a remedy
If you can do all that, you may get a take-down order, or a right of reply, or a correction, but you won’t be able to get damages. And the person concerned may appeal. So there are sufficient protections, I think, against abuse. Still, I expect there to be wails of protest from free speech absolutists, who are unlikely to draw attention to the protections I’ve just set out, and may not even be aware of them.
I still have some concerns, and they’re mostly set out in my critique of the Law Commission’s report.
But some are new. The biggest difference between the Law Commission’s recommendations and the government’s plan is the dumping of the separate Communications Tribunal. Instead, District Court judges are to be given powers to hear these cases and make these orders. What’s that you say? Is our entire body of district court judges tech-savvy enough, and alive enough to the nuances of the Bill of Rights, to handle these cases? How many of them have, for example, visited Facebook or read a tweet? The Law Commission proposed a panel of specialist judges with this interest and skill (come in: David Harvey) to head the tribunal. No problem, says the government. “It is envisaged that in assigning cases account would be taken of a particular judge’s interest, understanding and expertise in media law. This would allow greater expertise in the subject matter to be developed over time.”
It’s true that the judiciary do engage in a bit of horses-for-courses when assigning cases for hearing. But I doubt this is the answer here. For a start, this is up to the judiciary. Are the regulations going to tell judges how they are supposed to assign their cases? I think that’s opening a can of constitutional worms and I bet they avoid it. Besides, many of these cases are going to be urgent. And they could come in at any time, in any part of the country. Often, there won’t be time to track down an expert judge. So I worry that we’re going to get decisions by some judges who can barely work their email and who have never had to deal with the Bill of Right’s free speech clause before. I am sceptical about the development of greater expertise in a specialist subset of judges.
I also have a question about the new offence of using a communications device with intention to cause harm. The government’s press release says that this offence is about sending or posting messages that are grossly offensive, indecent, obscene, menacing or knowingly false. And that’s what the Law Commission talks about. But para 116 of the Cabinet paper talks of people “using technology to control their partners, including tracking and monitoring of their partners’ movements by reading text messages and internet search histories, and reviewing GPS usage.” It suggests the new offence of using a communications device with intent to cause harm will “go some way to protect” such people. That implies that the offence (whose wording has not been finalised) isn’t just about sending and posting messages. It may be about accessing information too. Now, I’m not sure whether this is what the government intends to do. I’m not even sure it would be terrible. But it’s not what the Law Commission was talking about and seems to warrant a bit more thought and debate.
Then there’s the bit about the Bill of Rights. Under the proposal, the court is supposed to “take account” people’s right to freedom of expression. I’ve assumed that this means that they must properly apply the Bill of Rights. But that’s more than “taking account” of the right to free speech. It means complying with that right, unless any particular restriction is demonstrably justified under section 5 of the Bill of Rights. So I’m suspicious of this language of “taking account” which on one reading may imply something less. But the Bill of Rights applies to the courts and must surely apply to the public functions of the approved agency. So I’m hoping there’s nothing in this point.
And I’m still worried about the mechanics of unmasking anonymous posters and ensuring that those who might be subject to take-down orders (including third parties) or unmasking orders get a proper chance to argue the toss before the order is made. To some extent, the devil will be in the details. The government has left a lot of work to the drafters of the legal framework.
Incidentally, that legal framework will be contained in regulations. That strikes me as a little bit odd. The government is creating a new remedies regime, and conferring extra juridiction upon the courts. The Law Commission was envisaging a statute. The advantage of regulations is that they can be easily changed without full Parliamentary rigmarole and scrutiny. The disadvantage of regulations is that they can be easily changed without full Parliamentary rigmarole and scrutiny. I would hope that at least the essential foundations of this new law will be set out in a statute.
Topics: General, Injunctions, Internet issues | 711 Comments »
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