Blogger J
June 1, 2012
New Zealand’s most tech-savvy judge, David Harvey, author of Internet.law.nz, joins the blogosphere.
I’m eagerly anticipating the flamewar with Whale Oil.
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My plan to deal with online harassment
May 21, 2012
Is here.
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Best headline of the year?
May 18, 2012
Stuff front-page tease for an Oddstuff story about Canadian police waiting for a thief who swallowed a $26,000 diamond to produce the evidence:
This, too, shall pass
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Siemer loses again
May 14, 2012
The Court of Appeal has dismissed Vince Siemer’s appeal against being held in contempt for posting a suppressed judgment about the Urewera case. (I discussed the High Court decision here, predicting this appeal and this outcome). Of interest to trainspotters is the way the Court of Appeal has grounded the court’s ability to suppress parts of a judgment in its inherent powers (possessed by District Court judges as well as High Court judges, and allowing them to manage the proceedings to ensure fairness). That’s in contradistinction to inherent jurisdiction – extra powers possessed only by superior court judges.
Justice Harrison puts the heart of the case pithily:
Open justice is an empty concept if a Court lacks effective powers to ensure that it is able to do justice in the open.
In other words, some ability to suppress some things for some time may be needed to ensure that a fair public trial can take place. (An obvious example is that juries shouldn’t be told of the previous criminal convictions of the defendant).
Also interesting: the Court of Appeal rather confines this power, speaking only of an inherent power to postpone publication on a limited and temporary basis, and for the purpose of ensuring fairness. In the past, as the judges note, this power has been exercised in wider circumstances, including the making of permanent orders in some cases. On one reading of this judgment, that’s not open any more.
A few other points:
– I said in my earlier post that I wondered whether the extent of this suppression order (basically, the whole judgment about whether separate trials should be held, and whether they should be before juries) was necessary to do justice to the parties. I still wonder that. Presumably we’ll be able to see the judgment now that the case is over and make our own minds up about that.
– The judges said it might have been “preferable” if Justice Winkelmann had given reasons for the suppression order, but “the reason in this case was evident to an informed and objective reader”. Well, I guess that lets me out. I understand the general principle of fair trial she was aiming to protect, but I really have no idea why the whole judgment needed to be suppressed to achieve that. It seems to me that she was essentially deferring to a request by the defendants without giving much thought to open justice at all. To be fair, it was certainly significant that the defendants sought the suppression, that the judgment surely contained information that might have caused prejudice in jurors, and that working out which bits to suppress and which bits to allow might have been quite a chore.
– Still, I think the Court of Appeal makes too much of the fact that suppression was at the request of the defendants’ lawyers:
Defence counsel’s opposition to the Crown’s application to vary the suppression order… attests to [the suppression order’s] importance.
It’s fair to say that Court of Appeal judges are not always so quick to assume the importance of a defence argument from the mere fact that it was made. The Court of Appeal then concludes, with no further reasoning, that
It follows that we reject Mr Edgeler’s secondary argument that the suppression order was so excessive as to be made without jurisdiction.
– One of the reasons the judges give for departing from the English practice (which doesn’t allow these general common law suppression powers) is that it’s one of those situations where conditions in NZ justify different rules:
New Zealand courts are best placed to assess local societal conditions justifying the power to make orders.
Okay, so… what are those local societal conditions that justify NZ courts giving themselves wider inherent powers to suppress information than the English courts? The judges don’t say. I would have thought that the rapacious tabloid environment in the UK would suggest that “local societal conditions” point in the other direction.
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Parole prisoners gagged
May 14, 2012
I see from today’s story about convicted rapist Brad Shipton that one of his parole conditions is that he give no interviews (presumably to the media).
I guess this is to protect victims from anguish caused by what he might say. But I have to say, that seems an extreme restriction on his speech rights. It seems that he could not, for example, criticise the conditions in prison, or argue that his conviction was procedurally flawed. I rather suspect that, as usual, no-one has thought hard about this, and in particular, considered whether this plain restriction on his right to freedom of expression in section 14 of the Bill of Rights Act can be demonstrably justified in a free and democratic society under section 5.
I also wonder how often this sort of parole condition is imposed.
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Media regulation seminar
April 18, 2012
If you’re interested in new media (and old media) regulation, mark this down in your calendar. The Legal Research Foundation has organised a seminar to discuss the issues arising from the Law Commission’s The News Media meets ‘New Media’ issues paper (which I commented on here).
It’s to be held on 1 May from 12:15 at the Pullman Hotel in Auckland. The line-up includes Professor John Burrows and Cate Brett from the Law Commission, Barry Patterson, the Chair of the Press Council, Clare Bradley from TV3, Martin Crocker from Netsafe, and yours truly. (Where’s the BSA?, one wonders).
Register here.
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Copywrongs
April 7, 2012
It seems that pretty much all the discussion about copyright these days is about the new online infringement laws. But I want to talk about another copyright issue that I think poses, on paper anyway, a bigger threat to free speech: the surprisingly narrow reach of our fair dealing defences.
My impression is that the only people who really take copyright seriously are film-makers and book publishers, because if they fail to get a copyright clearance, there’s so much invested that the copyright owner has them by the short and curlies.
On one level, of course, this seems fair enough. If you put in the creative work, you should be able to reap the rewards. There’s a powerful (though not undisputed) case that authors, for example, will be less likely to write and publish books if you or I could whip out, buy a copy, photocopy it, and flog off the pirated versions at whim. If that happened, the world would be a poorer place without those books. Looked at in that light, you can see copyright protections as bastions of free speech: they incentivise speech by rewarding it, and expand the diversity of speech available to the public.
Of course, looked at in another light, copyright laws are an attack on free speech. They seriously inhibit the flow of information by locking up vast quantities of material in boxes that we need copyright owners’ permission to open. One upshot is that information that might be important in the public interest – might be momentous news – might be in those boxes.
There’s one good answer to that concern. Copyright doesn’t grant ownership of the information itself. It just protects particular ways of expressing it. So while the person who uncovers and writes the first story about a corrupt politician has the right to stop anyone reproducing that story verbatim, she can’t stop anyone else from revealing the information, provided they use their own words.
…for what is protected there is the right to express and receive ideas and opinions. Section 14 does not provide a guarantee of a right to appropriate someone else’s form of expression. “Freedom of expression” does not mean freedom to copy the form in which authors have expressed themselves and without consent having been given. (TVNZ v Newsmonitor Services Ltd [1994] 2 NZLR 91)
I can’t see how this works. Section 14 includes the “freedom to… impart information and opinions of any kind in any form”. On the face of it, that includes the form in which it was originally written by someone else. Copyright laws might well be a demonstrably justified limitation on freedom of speech, but they are a limitation.
What about fair use? In New Zealand, our fair dealing defences are much narrower than the American “fair use” defence, though many don’t seem to realise that. They protect the use of extracts of copyrighted material for the purposes of reporting current events, or for criticism or review (see s 42 of the Copyright Act 1994).
That sounds fairly wide. But it’s not. Restrictions abound. Often there must be “sufficient acknowledgement” of authorship. The criticism defence only applies to criticisms of a work (and not, for example, of a person or a policy). The current events reporting defence doesn’t apply to photographs. And “current events” has been construed narrowly. Satire and parody don’t seem to be covered.
News, criticism and satire lie at the very heart of freedom of expression. They’re getting short shrift from our copyright laws.
First published in NZ Lawyer magazine
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Thanks all the same
April 7, 2012
Apparently Paul Dacre, editor of the wildly popular but staggeringly awful British tabloid the Daily Mail, likes NZ. This from a very interesting New Yorker article on the paper:
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New media Downstage play
April 2, 2012
This looks interesting. Downstage are putting on a play satirising the news and involving the live editing of footage and commentary supplied by the audience. Starts April 13.
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Silliest statement by an Attorney-General ever?
March 27, 2012
On Sunday, former Police Minister Annette King told TVNZ’s Q and A that the Labour government ministers had merely been briefed on Operation 8, and at the last minute at that; that they were given assurances by Solicitor-General David Collins that the process was correct; and that they were dismayed by the way the police conducted the raids and what seemed like an about turn by Collins when he said later that the law was incoherent and much of the evidence inadmissable.
Yesterday, Attorney-General Chris Finlayson accused her of contempt of court. Her interview might prejudice “ongoing matters in the trials arising out of that operation”: sentencing, the possibility of an appeal, and the possibility of a re-trial.
I find it hard to see anything in Annette King’s interview that might cause serious risk of prejudice to any of those matters. On the other hand, the interview did begin to explore interesting and important questions about what the government knew, and when, and what was the quality of the advice that the government was receiving.
But the Attorney-General visits la-la land with his final sentence, which seems to have been widely and uncritically quoted:
It is inappropriate for anyone, but particularly for politicians, to comment publicly on matters that are before the Courts.
This is tosh. Of course we can talk about court cases. The only thing we can’t do is publish things that cause real risk of prejudice to the administration of justice. That’s a pretty narrow category of things.
This is the sort of tosh usually dished up by those who simply don’t want to talk about the issues arising out of particular cases.
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