How to door-step someone
November 29, 2011
John Campbell has demonstrated, with immaculate ethics, how to go about door-stepping someone. Door-stepping is turning up to someone’s place with cameras rolling to get that person to answer questions. As the BSA has often said, it’s usually unfair to do this.
But the Campbell Live crew weren’t unfair. They were doing a story on Tower Insurance. They’d talked to a punter whose property was in Christchurch’s red-zone. His insurance policy was a replacement one. Tower was going to pay for repairs but not replace his home somewhere else. Campbell Live called Tower three times, and filled out a media inquiry form. Tower didn’t respond.
So Campbell went to Tower’s office to try to get a response. Here’s how you deal with the poor receptionist in a situation like that:
Campbell: I am so sorry just to walk up to you like this, but we have tried tremendously hard to get somebody to talk to us about the situation in Christchurch with replacement polices in the red zone. Now, we know absolutely that that is not your job and your department. But we have been trying to get somebody to talk to us, no one returns calls. Is there anyone here that can deal with the media on that subject?
The receptionist was shown competently dealing with the situation. I’m not sure the same can be said of Tower’s head honcho. Campbell was first told that he was in a meeting, and replied, with the sort of effusive courtesy that only Campbell can muster:
Sorry, this is a terribly difficult situation for you… Would you mind passing on to them that we are utterly happy to wait for them, they look like comfortable seats, we are very happy to wait until they are available.
The CEO then decided he wouldn’t be available at all. Campbell left an invitation to appear on the programme that night.
The BSA has said door-stepping should be a last resort. It should only be used when other attempts to contact the person have failed. In this case, the BSA added another requirement that seems spot on: that the door-step be a genuine attempt to elicit information (and not, for example, just an excuse to get some sexy footage of someone refusing to answer questions).
The BSA concluded, quite rightly, that Campbell’s behaviour wasn’t unfair here.
Still, Tower made another complaint of unfairness relating to a different point. I’m more sympathetic to this one. About an hour and a half before the programme, they emailed a statement to Campbell Live. It said that “there appeared to be some misunderstandings circulating about the nature of the cover available under home insurance policies” and added:
- Tower’s home insurance policies covered customers against accidental physical damage to their houses. The policies did not cover damage to land (which was insured under the Earthquake Commission Act 1993) or damage to public infrastructure. Where a customer’s house suffered damage as a result of a natural disaster, Tower’s home insurance policies provided “top-up” cover for physical damage to the house over and above cover available from the Earthquake Commission. This was not unique to Tower.
- Tower acknowledged that residents in the red zones were considering abandoning their properties because the government had decided that it was not feasible to reinstate land and infrastructure in those areas. It accepted that some residents living in the red zone, particularly those whose houses had not been severely damaged, had no practical alternative to selling their property to the government even though the price the government was proposing to pay may be less than the property’s market value prior to the earthquake. Tower sympathised with residents in this position, however, it could not make up the shortfall by giving customers more than their full entitlement under their policy.
Campbell Live summarised that email this way:
We received an email from Tower saying that they are working hard to ensure that claims are resolved fairly and efficiently and that the concerns currently being expressed are based on a misunderstanding of the nature of the cover available under home insurance policies.
Then he added:
Frankly, that statement raises at least as many questions as it answers. What does replacement mean?
Yes, that letter was sent late in the day. To be fair to Tower, though, they were first contacted about the story that morning. And there’s surely no doubt that Campbell Live could have made time for a longer summary. Campbell Live complained that it would have taken more than 3 minutes to read the statement out in full. But they certainly had some time available: after all, they were offering to do an interview with the Chief Executive and would certainly have made time for that. Besides, Tower was only looking for a fair summary. What happened, I think, was that Campbell Live didn’t like the format of the response, and they short-changed it.
Was it really fair on Tower not to explain that its policy is a top-up for the Earthquake Commission land-damage cover? The BSA thought so:
In our view, while this provided only a very concise representation of Tower’s position, it was sufficient in the context of the programme, which sought to simplify a complicated legal matter for the average viewer.
I disagree. In the context of a show that criticised Tower strongly, dramatised that criticism with a door-stepping, suggested Tower was breaching its own “core value” of empathy to customers, and slagged Tower for failing to front up and explain its policy, it was unfair for Campbell Live not to do a better job of conveying the explanation Tower did give.
So I think it the programme was unfair. But given that Tower then continued to refuse to come on the show and explain its position, I don’t think any penalty was called for, beyond upholding that aspect of the complaint.
Topics: Broadcasting Standards Authority | Comments Off on How to door-step someone
John Key backs MMP
November 25, 2011
I think you should vote to retain MMP on Saturday. But don’t listen to me. Listen to John Key. “Every vote counts,” he said this morning. He’s right, and it’s one of the best features of MMP.
It’s not true (or not nearly as true) for any of the other voting systems. It’s not really true of SM, the system Key says he prefers.
Key has also been constantly telling us that he has delivered, and will deliver “strong, stable government”. Of course, that’s under MMP.
But the refrain from the anti-MMP crowd is that MMP is a recipe for instability.
Of course, MMP has also delivered a much more diverse Parliament. It has forced them to discuss and compromise over issues. Debates are informed by a good range of competing political viewpoints. Politics is more interesting. Parliament is no longer the lapdog of the executive.
And it’s fairer. Looking back on those elections where parties governed without majority support (or even an arrangement backed by parties with majority support) or got 20% of the vote and only two MPs…. it seems ridiculous that anyone would want to turn back the clock. I’m going to be ticking STV with my second referendum vote. It’s complicated, but generally fair.
I love having two votes – one for the party I like and one for the person I want to be able to turn to if I have a problem that a politician might be able to help with.
Of course, there are now no wasted votes in the safe electorates. As Key says, “Every vote counts”. He’ll go far, that fellow.
Topics: General | Comments Off on John Key backs MMP
No declaration after tea
November 23, 2011
Winkelmann J has declined to grant a declaration that the famous Epsom cuppa was not a private conversation.
Does that mean it was a private conversation? No, it just means that she’s declined to rule on the issue right now.
She gives several reasons. First, there are still facts in dispute, and she wan’t sure she had adequate evidence to determine them. She says this despite watching footage from the four (!) TV3 cameras at the event, and receiving a lengthy description of events from Ambrose and another from the PM’s chief of staff. There don’t seem to be many facts actually in dispute, and Winkelmann J barely mentions any. She does say that TV3 and Ambrose seem to be at odds about what the media were told before the event, but this seems fairly inconsequential. She also notes that she hasn’t heard from many of the witnesses to the cuppa, who may well have something to add to the video evidence. She says the police haven’t finished gathering evidence. She didn’t want to “conduct a mini-trial” to sort out factual issues… this is a far cry, she says, from a ruling on the interpretation of a statute when the facts are clear.
Second, she doesn’t want to gazump the police investigation. Ambrose’s lawyer seems to have submitted that (a) this case has nothing to do with the police investigation and (b) that if the declaration was granted, it would save the police time (presumably because they could end the investigation, one element of the crime having been definitively disproved). Winkelmann decided it would be inappropriate for a civil court to influence – and perhaps end – a criminal police investigation and consequent prosecution decisions. (Surely everyone in the courtroom must have realised that a declaration from her would have effectively ended the investigation).
Ambrose and the media strongly urged her to consider the public interest in the taped material, with the election looming. Ambrose and the media need clarity about what can be published. That’s a reason for exercising her power to issue a declaration, they argued. But the judge disagreed. Any declaration would have to be so hedged about with qualifiers (“on the basis of the evidence that was before me” etc) that it would still leave confusion about what could be published. (I’m really not so sure about that. A judicial indication – even a hedged one – would be a licence to the media to publish, because the police could hardly prove, after that, that the media knew the material was illegally intercepted.)
None of this is really a surprise. I don’t think the judge can be criticised for the ruling, even if another judge may have taken a bolder approach.
What I was really interested in was any hint from the judge that there’s at least serious doubt about whether the conversation was private. If she’d dropped that hint, the media could probably have published. Again: if a judge says it’s a hard call, or indicates a leaning toward considering the conversation public, then it’s hard to see a prosecution against the media for publishing it.
I suppose you can try to draw out some indication in this judgment that the issue is seriously contested. That there’s doubt. But it’s hard. The judge scrupulously avoids making any finding. She explicitly says she hasn’t formed a view about whether the conversation is private. If that indicates some doubt – it also indicates the possibility of criminality.
So I can’t see anything that helps the media here. In fact, the opposite may be the case, because in traversing the evidence for each side, the judge describes factors that point toward the private nature of the conversation:
— The Chief of Staff says, after the public bit, “Thanks guys, why don’t we just leave them to have a chat?”
— Key says “Have a chat, yeah, thank you. Get yourselves a cup of tea, enjoy the moment”.
— Mr Ambrose accepts that he heard the instruction to leave.
— The Chief of Staff saw a mic on the table and said “Ah, we’re not leaving microphones here, thank you”.
— Diplomatic protection squad members seem positioned to create a sort of cordon.
It’s looking less and less likely that the actual content of the tea tape will see the light of day before the election.
Topics: General | Comments Off on No declaration after tea
Focusing on the issues
November 21, 2011
I know I’m straying from media law stuff again. Let’s call it general media ethics. But I’m staggered that we can have an election campaign without discussing the ideas in two recent and significant New Zealand books: Nicky Hager’s “Other People’s Wars”, which accuses successive governments of being much more deeply involved in the conflicts in Iraq and Afghanistan than we were told, and Roger Brooking’s “Flying Blind”, which exposes our current approach to penal policy as hopelessly ineffective and cogently explains that if we don’t take serious steps to address the drug, alcohol and literacy problems of our offenders, crime will just keep cycling along.
Topics: Media ethics | Comments Off on Focusing on the issues
The worm returns
November 21, 2011
I see TV3 plan to use the worm again on tonight’s debate. Sigh. Here’s a column I wrote opposing the worm back in 2005. I think it still holds true.
Topics: General | Comments Off on The worm returns
Memo to John Key
November 21, 2011
Stop talking about Winston Peters. At all. The 5% of New Zealand who might vote for him are not amenable to rational persuasion. They vote for him if they are reminded about him because he is in the news.
Topics: General | Comments Off on Memo to John Key
Hosking lays down the law
November 20, 2011
At the end of his interview about cuppagate on RNZ’s MediaWatch programme today, Mike Hosking tells us that
I think I have a pretty good appreciation of privacy law in this country.
If he means, he’s got a pretty good understanding of those laws, I think the rest of the interview demonstrates that he’s wrong.
Here’s how he describes the relevant Crimes Act provisions:
The rule is very clear and the law is very clear. Unless you have an understanding that you’re being recorded then it’s illegal to record you – that’s all part of the Crimes Act… if you go and record somebody without them knowing it, that’s against the law, and if you go and publish it without their consent, that’s against the law as well. And so the fact that there are a lot of people standing outside the window staring at you doesn’t negate your right to privacy to have what you would believe to be a private conversation…
It’s not a very accurate summary of the law. The application of the law isn’t especially clear – Andrew Geddis, Dean Knight and I have been arguing about it all week. It’s not “illegal to record” someone who doesn’t know they’re being recorded. For a start, a party to the conversation can secretly record it and not breach the Crimes Act. More relevantly, that recording must be intentional. That’s very much a live issue here, since Bradley Ambrose adamantly denies it.
In addition, it’s not illegal to publish without consent. It must be proved that the publisher knew that it was illegally intercepted. If it was unintentional, the recording was legal and anyone can disclose it without breaching the Crimes Act. If the publisher genuinely thinks the cameraman didn’t intend to intercept it, it’s hard to see how the publisher can be convicted.
Finally, much of the debate turns on whether Key and Banks ought reasonably to have expected that no-one could overhear them. The answer to that is not straightforward, whatever Hosking thinks. I still tend toward Hosking’s view – that it’s possible that the two could have reasonably expected particular parts of their conversation not to be overheard. But there are several other lawyers who disagree. At best, it’s arguable.
So when Hosking goes on to say that he’s not concerned about the media search warrants because “it’s against the law”, it doesn’t make much sense to me. Especially after he says “let’s assume the cameraman did it accidentally”. If that’s so, then there’s no crime. End of story. What’s more, anyone can publish the tape. But no, Hosking says that the editor should have told Ambrose to erase the tape “because you recorded it illegally”. Nope. Not if we’re relying on your assumption that it was accidental. Nor was it against the law if a court ultimately finds that there was a reasonable doubt about whether the parties to the conversation ought not to reasonably expect that it could be intercepted.
The search warrants are presumably being used to look for evidence of Ambrose’s intent. Some of that evidence may have been confidential statements Ambrose made to radio and television producers. Does that concern Hosking?
Hosking is very concerned about the precedent that’s created. But again, if it’s an accidental recording, it’s not a very dangerous precedent. It’s not going to happen often. And there’s still the tort of privacy, broadcasting standards and Press Council principles in the background. If it wasn’t an accidental recording and the media were to decide to publish because, after diligent inquiry, they thought it was accidental then that’s not such a terrible precedent either. That could easily have happened last Sunday.
Hosking goes on to note that the law hasn’t yet been broken. But on his argument, it had. He’d just told us that the law was clear and the recording was illegal. Perhaps he means that the media haven’t broken the law. But if Winston Peters accurately summarised what was on the tape, then there’s an argument that both he and the media (in publishing Peters’ comments) broke the law by knowingly publishing an illegally intercepted communication. (An argument. I put it no higher than that because, as we’ve seen, it would have to be proved that Winston and the media knew that the tape recording was illegal, and it’s not even clear that it was).
[Update: Hosking also said that he wouldn’t have broadcast the tape unless it showed that some law had been broken. There are several problems with that. First, that’s not a defence. To be fair, I think Hosking appreciated that; he was saying there are just times when you have to publish and be damned. Second, it’s not always going to be very clear whether a conversation is evidence of a breach of the law. What if Key was describing actions that may or may not amount to a breach of our electoral spending laws? Does Hosking get to decide? Finally, I note this distinction justifies the broadcast of an illegally recorded teacup conversation in which a minor politician says she once smoked dope, but not a conversation in which the PM says he is lying to the public about his asset sales policy.]
Hosking also praises Ambrose for going to court because “you’ll get some sort of ruling on whether it’s a public or a private conversation.” In fact, there’s no guarantee that a High Court judge will exercise his or her discretion to grant a declaration, as Dean Knight has explained.
I’m concerned that the police have taken a similar attitude. In a statement to Radio NZ, the police said:
Police considered that as the conversation had been unlawfully recorded it was necessary to advise the media at the earliest opportunity that to disclose a private conversation is potentially an offence under s 216C of the Crimes Act 1961.
This seems to suggest the police have made up their minds. I don’t think they have. The advice they gave to the media only talks of a potential offence, as does the statement I’ve quoted in an earlier paragraph. Still, it’s very sloppy language. The whole point of an investigation is to determine whether the recording was unlawful.
Topics: Journalism and criminal law, Media ethics | Comments Off on Hosking lays down the law
Huh?
November 20, 2011
Michael Laws, SST column today:
And it counterpoints what all Kiwis know: that there exists a uniform inability within the Fourth Estate to understand proportion and excess.
Michael Laws, on Talkback earlier this week:
If I had a gun, I’d shoot them [teagate journalists] – because they have gone rabid and they may infect others… Have you noticed… the Herald on Sunday, for example, which is rabid all the time… no idea why somebody hasn’t taken the shotgun there and just cleaned out the entire newsroom.
Topics: Media ethics | Comments Off on Huh?
Chief Electoral Officer: VFC claims are “factually incorrect, and misleading”
November 18, 2011
I see I’m not alone in my concern that the anti-MMP group Vote For Change’s campaign is misleading when it emphasises that the alternative voting systems “could work with 99 MPs”.
Robert Peden, the Chief Electoral Office, has seen the need to put out a press release about it:
“The Vote for Change organisation is free to campaign for a reduction in the number of MPs, but to promote that view in a way that a implies a link between a vote for change, and a change in the number of MPs is factually incorrect, and misleading.”
The release explains, as I did in my complaint, that:
The Electoral Referendum Act 2010 specifies that each voting system to be considered in the referendum will have 120 MPs.
You might recall that this wasn’t something that caused the ASA to find VFC’s advertising misleading.
The Chief Electoral Commissioner goes one further than me. He points out that it’s also wrong for VFC to state that “MMP requires 120 MPs”:
Mr Peden also points out that if the debate was about the size of the House of Representatives, rather than the voting system, then it is factually incorrect to say that MMP requires 120 MPs. MMP could operate effectively with 99 MPs.
“The Commission’s view,” Mr Peden adds, “is supported by independent expert opinion.”
Topics: Advertising Standards | Comments Off on Chief Electoral Officer: VFC claims are “factually incorrect, and misleading”
Contemptuous cuppa?
November 18, 2011
Is it a contempt of court to discuss cuppagate now that it’s heading to court? John Banks and Steven Joyce seem to be suggesting that now that the issue is heading to court they are somehow precluded from commenting.
Wrong. It can be a contempt to cause prejudice to an upcoming trial – especially a criminal trial, and most especially a criminal jury trial – by supporting one side, criticising a witness, revealing previous convictions, evaluating the evidence, etc. But this doesn’t come near that. In particular, there’s nothing in the law of contempt to stop Banks and Key from talking about what they said in the conversation, or answering questions about what they think of Brash’s leadership or elderly voters.
If the politicians really want to be scrupulous about it, they probably shouldn’t talk about how they regard the conversation as private – since that’s the very issue for the court to determine. But even on that point, it’s mostly a legal question, and it’s for a judge alone – not a jury – to rule on (or not) in the declaration application.
Topics: Contempt of Court | Comments Off on Contemptuous cuppa?
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