Cairns v Modi judgment
March 27, 2012
Is here.
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Doesn’t sound like a fair go to me
March 1, 2012
So the head of TVOne and Two, Jeff Latch, asks for a powwow with Fair Go staff. Labour broadcasting spokesperson Clare Curran asks whether, at that meeting, he asked them to go easy on TVNZ’s advertisers. Here’s his response:
“The key points I made at that meeting was that the heart of Fair Go for the past 20 odd years it has been on television, is that it represents the underdog and the small guy and stands up for them,” he told Parliament’s commerce select committee.
“I also made the observation we operate in a commercial environment and Fair Go, like all our programmes, need to exercise care in the way they handle stories.”
Journalists needed to make sure stories were always balanced with the views of both sides of the story, he said.
“A story that is not balanced could be something that is not really what we would want to run on that network.”
Latch said there was “nodding acceptance around the room that that made sense”.
It does make sense. So much sense, in fact, that you have to wonder why Jeff Latch had to organise a meeting with Fair Go to tell them that. Did he also mention that they should try to be accurate? Not defame people? Latch should know that Fair Go are probably the TVNZ reporters best versed in broadcasting standards and media law, since they deal with them every week. (Back in my days at Kensington Swan, I used to provide advice to them).
Asked if he was instructing Fair Go not to produce programmes that upset advertisers, he said “it wasn’t an instruction, per se.”
Not per se? This sounds weasily to me. Was it a hint, Mr Latch?
Because actually, Fair Go has a pretty good track record in its broadcasting standards complaints. It has not been listed in the BSA’s “Most complained about” shows for at least the past three years, despite the fact that it often makes serious accusations against people with the resources to sue. Likewise, there haven’t been any reported defamation cases against them in the last few years, as far as I can tell. Was there a big secret settlement recently?
If not, Mr Latch – how should I put this? – you should stay the fuck away from the Fair Go staff. It’s their job to tackle TVNZ’s advertisers when that is merited, and it’s your job to hire good journos then leave them to get on with their job.
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Should we have a tort of intrusion?
February 28, 2012
How far does our privacy tort stretch? Does it – should it – include offensive intrusions into someone’s affairs?
e covert filming or illegal interception. The Privacy Act may provide protection: you can complain, for instance, if material about you has been gathered in a way that is unfair, unlawful or unreasonably intrusive, and you can show that you’ve suffered harm as a result.
The intensity and complexity of life, attendant upon advancing civilisation, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress far greater than could be inflicted by mere bodily injury.
(“The Right to Privacy”, 4 (5) Harvard Law Review, 193).
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Well, you would be, wouldn’t you?
February 20, 2012
Lovely NZ Herald headline:
Man critical after being set on fire
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Offensive offence
February 16, 2012
A few years back, the censor banned this T-shirt (scroll down) depicting a masturbating woman and the words “Jesus is a cunt”. I questioned the ban.
Now the retailer who sold the T-shirts has been convicted for possessing them. I note that this offence also applies to everyone who owns such a T-shirt, whether they wear it or not. Are they to be prosecuted too?
Topics: Censorship, NZ Bill of Rights Act | Comments Off on Offensive offence
Lawyer’s name suppression bid fails
February 13, 2012
Criminal lawyer Barry Hart’s long attempt to have his name suppressed for his disciplinary tribunal charges has failed at the final hurdle, having also failed pretty much all the hurdles before that. The Supreme Court said:
The likely particular impact of publicity on [the person applying for suppression] will always be relevant, but it is untenable to suggest that professional people of high public profile, such as the applicant, have anything approaching a presumptive entitlement to suppression.
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Online defamation: is it any different?
January 30, 2012
This is my column in NZ Lawyer magazine for 27 January 2012.
Are the laws of defamation different online?
Alas, the courts seem to pay little respect to this line of jurisprudence. Early on, it was apparent that anyone who believed the online world somehow gazumps defamation laws was in for a nasty surprise. “I know no forum in which an individual has the freedom to say what he likes and in any manner he wishes about another individual citizen with immunity from suit for all consequences,” said Judge Ross in 2001. “Merely because the publication is being made to cyberspace does not alter this.” (O’Brien v Brown [2001] DCR 1065).
That’s your standard legal analysis. It’s still the best starting point. But a few recent cases suggest that things may be starting to shift a bit. Some judges seem receptive to an argument that readers of some online postings won’t take them seriously. This has been described as the “ALL-CAPS” defence to defamation.
More recently, a superior court judge in Ontario issued a remarkable decision granting summary judgment against a plaintiff for an attack against him made on a website (Baglow v Smith 2011 ONSC 5131). He was a prominent political blogger called, for reasons best known to himself, “Dr Dawg”, though it was well known that his real name was John Baglow. Baglow argued that Omar Khadr, a 15-year-old Canadian national captured by US forces in Afghanistan and taken to Guantanamo Bay, should be repatriated. A right-wing blogger accused Baglow of being “one of the Taliban’s more vocal supporters”. In fact, Baglow had frequently criticised the Taliban as dangerous, theocratic and tyrannical.
The judge found these words were protected by the defence of fair comment (here, honest opinion). Maybe that’s so. But he also found that they weren’t defamatory in the first place. How did he figure that? His most convincing justification was that readers would think that “one of the Taliban’s more vocal supporters” was not literally true but merely shorthand for “he’s effectively helping the regime.” Still, that’s not enormously convincing. For one thing, it’s not clear why readers would reach that conclusion. For another, it still seems a bit defamatory. Most importantly, the judge’s job was to weed out meanings that the words were incapable of bearing. Can it really be suggested that those words weren’t capable of meaning… just what they said? The judge seems to have usurped the jury’s function, which was to determine the actual meaning.
But the judge then lists other, even more interesting, reasons for his conclusion:
Internet blogging is a form of public conversation. By the back and forth character it provides an opportunity for each party to respond to disparaging comments before the same audience in an immediate or a relatively contemporaneous time frame. This distinguishes the context of blogging from other forms of publication of defamatory statements…
He said in many online environments, readers expect cut and thrust. They expect a defamatory statement to be parried. He said a “simple rejoinder” (he even went to the trouble of drafting one) could have “nipped in the bud” the risk to the plaintiff’s reputation.
In essence, I am suggesting that the Court, in construing alleged defamatory words in an ongoing debate, should determine whether the context of the comment from the perspective of the reasonable reader or listener is one that anticipates a rejoinder, which would eliminate the possible consequence of a statement lowering the reputation of the plaintiff in their eyes.
This seems to involve heroic assumptions. Why would readers necessarily discount an unrebutted statement? Why would a rebuttal necessarily undo all the harm? Still, putting aside its lack of coherence (it’s under appeal) the decision can still be seen as part of a trend: it treats online speech as distinctive; it suggests the best remedy for harmful speech is further debate; it incentivises rights of reply; it may reflect a sense that that the ICBM of defamation law is an inappropriate response to an online foodfight.
A US judge last year also refused to recognise online attacks as harmful. A bankruptcy specialist working at Obsidian Finance sued the author of “obsidianfinancesucks.com” (Obsidian Finance Group v Cox USDC, Oregon, 23 August 2011) for calling him a fraudster, thief, and liar who had engaged in corruption, pay-offs and cover-ups. The judge said that blogs “are a subspecies of online speech which inherently suggest that statements made there are not likely provable assertions of fact”.
Bear in mind that in the US, the First Amendment gives statements categorised as opinions a bulletproof jacket against defamation suits. And it’s certainly true that the blogger used lots of capitals, bold type and hyperbolic language, which many would have seen as clues to her credibility.
Still, the implicit assumption that inflammatory blogs are so overheated as to be self-evidently harmless seems questionable. I’m inclined to think a proportion of us (not me or you, of course) are credulous enough to lap this sort of attack up. Others may at least wonder whether there’s any fire under all that smoke. Are the victims of such attacks to be left without remedy?
Which takes us again back to the Law Commission’s search for the Holy Grail: a speedy, effective, and cheap means of determining online disputes like this. Should we set up a Communications Tribunal or Commissioner? The Commission is still taking submissions…
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Silly old TVNZ
January 27, 2012
This is why I don’t like doing TV. I gave TVNZ news an interview on the teapot saga yesterday, explaining my views as below that the risk is low for anyone who publishes the contents of the tape.
Their broadcast asserts as a fact that “we can’t broadcast what was said for legal reasons”. Later the reporter says “legal experts” (who are the others, I wonder?) say police will struggle to charge the leakers, and then there’s me saying that it’s hard to see how the police could prove the publishers knew they were publishing an illegally obtained recording. Of course, that also applies to the media, not just the leakers.
So why is it that TVNZ can’t publish for legal reasons?
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Teapot pours out
January 26, 2012
Someone’s put the teapot tape online. That’s the conversation between the PM and ACT candidate John Banks that cameraman Bradley Ambrose said he inadvertently recorded, during the most covered cuppa in NZ history.
The media, and even many bloggers, seem hesitant about linking to it. I’m not.
Here’s why. Put aside the question of whether it was in fact an offence for Ambrose to have recorded the investigation. The police are investigating that, and the High Court has refused to rule on it. The question is whether the media (and new media) can publish the contents. Now, it is an offence to intentionally disclose an illegally intercepted private communication – but only if you know that it has been illegally intercepted. If anyone wants to prosecute me, they’ll have to prove those two things beyond reasonable doubt.
And here’s the thing: I don’t know that it was an illegally intercepted private conversation.
What I know is that several experts (like Dean Knight and Andrew Geddis) have argued that it can’t possibly have been. The police would have to prove, beyond reasonable doubt, that Ambrose intentionally recorded the conversation. The police would also have to prove, beyond reasonable doubt, that the conversation was private – that is, that Banks and Key ought not to have reasonably expected it to be overheard.
It seems to me that there’s plenty of doubt about whether an offence has occurred. Ambrose says that he recorded it inadvertently. And there were 25 journalists around with powerful microphones very close by. I think that at best the case against Ambrose is arguable and on my best assessment of the law, I think it will fail.
I also think that a Bill of Rights-consistent reading of the law would allow publication by media in these circumstances, and the police’s prosecution guidelines would suggest that it’s futile to take action against anyone. I don’t think the legal risk is high for anyone in publishing or linking to the contents of the tape.
[I also note that if it’s an offence to publish or link to the contents now, it was also an offence for Winston Peters to disclose – and the media to report – the contents (and in fact, even the existence) of the recording last year. There’s been no suggestion that I’ve heard of any criminal investigation into that. What’s more, as far as the law’s concerned, there’s no difference between linking to the material and describing any of its contents. Some media seem to be pussy-footing around, telling us a bit about what the tapes say but declaring that it’s illegal to publish them directly. But they can’t have it both ways. Both are disclosing the contents – if one’s an offence, both are.]
Given that the tape is not particularly damning for the PM or Banks, and has now been widely listened to online, I wonder whether they shouldn’t just bite the bullet and consent now…
Topics: Journalism and criminal law, NZ Bill of Rights Act | Comments Off on Teapot pours out
Confessions of a tabloid journalist
January 17, 2012
For those who just caught be on Nine-to-Noon, those who’ve read Nick Davies’ excellent Flat Earth News, and those who are just interested in what goes on behind the scenes at UK tabs, here’s an insider’s expose, from former Daily Star journo Richard Peppiatt, who gave evidence to the Leveson inquiry.
Highlights: journalists never take a bit of notice of the Press Complaints Commission Code, they don’t give a stuff about the odd ruling against them, many stories are basically just made up or exaggerated beyond recognition, and stories are cut to fit the ideology of the paper. Oh, Peppiatt was once asked to track down Susan Boyle and propose to her. (She told him to piss off).
You might also be interested in his resignation letter.
Topics: Media ethics | Comments Off on Confessions of a tabloid journalist
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