Dean reads the tea leaves
November 18, 2011
Dean Knight has posted on cuppagate. He’s particularly interested in the declaration application. He explains the hurdles faced by the applicant (judicial reluctance to grant declarations when issues are still in dispute and where criminal proceedings can sort things out), and says he thinks the judge should grant one anyway (to protect the integrity of the election).
By the by, he also thinks the parties to the conversation couldn’t reasonably expect not to be overheard.
Topics: Journalism and criminal law | Comments Off on Dean reads the tea leaves
VFC press release even more misleading than their ad
November 17, 2011
My complaint
As I’ve mentioned, I complained to the Advertising Standards Authority against anti-MMP group Vote for Change’s advertising. I thought it was misleading.
VFC changes its advertising
Also, as I’ve mentioned, VFC fairly quickly changed its advertisting to address some of its misleading statements. In particular, it added an arrow on its diagram to demonstrate that voters who opt to keep MMP also get to vote on which alternative system they most prefer. Without that arrow, the ad could only be read as suggesting that, if you vote to keep MMP, you’ve got to stop there.
Advertising Standards Authority issues its decision
The ASA has now issued its decision on the whole complaint. My main complaint was “settled”, which happens when the advertiser backs down and agrees to make a change, so it’s not necessary for the ASA to uphold the complaint. My other complaints were dismissed, though one – my argument that it’s misleading to say that under MMP “the minor parties decide who is PM” was a majority decision. The minority found that it was likely to mislead or deceive people. The majority said that, “given the provision for liberal interpretation in the advocacy principles” and “taking into account the provision for robust advocacy”, it wasn’t badly enough wrong to breach the threshold of the rule requiring truthful presentation.
I’m not very surprised about this. The ASA very rarely upholds complaints about political advertising, and for good reasons. Still, I thought as least some of the VFC’s errors were so misleading that a complaint might stand, and even if it was rejected, it might at least prompt debate about some of their shonky arguments. (I’m not saying they’re all shonky).
VFC issues press release
In response, VFC has put out a press release entitled “Political establishment target Vote for Change”.
Yep, that’s me. The political establishment. The press release doesn’t even name me -apparently it’s better for VFC to see themselves as victims of some shadowy powerful establishment.
Let me confess that I did sign up for the pro-MMP crowd’s mailing list and did offer to help them if they wanted help complaining about if there was any misleading advertising about the referendum. But then I saw Graeme Edgeler’s post excoriating VFC’s advert, and was so annoyed I decided to complain off my own bat.
I’m also called “political interests”, as in “political interests are trying to misuse the Advertising Standards Authority to shut down political debate”.
Do I really need to say this? Oh, all right. I’m not trying to stifle the debate. I think debate is good. I’m just trying to make sure the debate is not based on blatantly inaccurate information.
What VFC’s press release is about
VFC’s press release then says I targeted VFC “for pointing out that to work MMP needs more MPs”.
Not true. I simply pointed out that their pamphlet encouraging people to vote for change and for SM said of all the other systems “Could work with 99 MPs”, without pointing out that the very statute that set up the referendum means that the 99-MP option isn’t on the table. As I said in the complaint, The ad entices voters to vote for alternative systems by touting advantages that, by statute, are not being offered. I think that’s misleading.
VFC didn’t even try to address this argument in their response. Their response is all about how the alternatives can work with 99 MPs, something I didn’t really challenge. And in fact VFC to their credit added some small print to their ad saying “All of the options at the current referendum are based on a 120 seat Parliament”. That’s all I asked. They seem to think it’s the right thing to do. Why is this suddenly about gagging them from making an argument?
Get this: their press release is all about VFC being unfairly targeted for making an argument that they themselves have apparently realised is misleading to voters, and corrected. (The ASA didn’t even require them to do this. The ASA didn’t uphold this part of the complaint. This may be the first time the ASA has ever not upheld a complaint against something that the advertiser has been prepared to change.)
What VFC’s press release neglects to mention
VCF’s press release doesn’t mention the changes they made to their ad after I lodged the complaint. (In fact, it says they “stand by” their material). It doesn’t mention the misleading diagram that they fixed or the footnote they added. It describes the ASA complaint as “dismissed” rather than “part dismissed/part settled”. It dwells on the 99-MP point as if my challenge was to the truth or otherwise of the proposition that the other systems can work with 99 MPs.
The other grounds of my complaint, and VFC’s responses
VFC doesn’t mention the other grounds of my complaint, so let me repeat them. As we’ve seen, the ASA is (usually) heavily weighted in favour of letting claims go, so there’s no finding that these claims are accurate:
1. The ad says that, under MMP, minor parties choose the PM. That is inaccurate. Under MMP, a party can receive a majority, in which case it would choose its own PM. This may even happen at the very next election… But even when coalition is necessary, it need not involve the minor parties. A National-Labour coalition has always been possible. In any event, it is inaccurate to say that the minor parties choose the PM. If it were so, why wouldn’t they choose their own leaders as PM? When a coalition is formed, why are we saying that it is the minor party that’s doing the choosing. In reality, in coalition negotiations, it’s the larger parties that have most of the bargaining power.
VFC say this is a “debating point”. They say minor parties holding the balance of power have “a considerable amount of power”. They say an alternative way of looking at it is the “MMP nearly guarantees minority government”. They say others opposing FPP make statements “equally as misleading”.
Ahem. That last concession rather makes my case. It’s misleading. Note that none of the other arguments actually defends the truth of their claim. The closest they come is to say it’s “shorthand”.
2. The pamphlet contrasts MMP with the preferred option of SM. It says: “MMP allows list MPs who have been voted out by their local electorates to sneak back into Parliament on party lists”. In the context of the ad’s support for SM, it clearly implies that SM does not suffer from this flaw. Of course it does. The ad doesn’t tell us that the very criticism it mounts against MMP also applies to SM. It misleads by omission.
VFC reply – as if someone raised the issue – that “there is no doubt that SM is a compromise between the extremes of MMP and FPP”. (This is also rather deceptive: SM is much closer to FPP than MMP). Then they say they’re worried that MMP means too many party hacks and failed MPs get back into Parliament. Fair enough. But their ad didn’t say that. In the ad, any MPs sneaking back was too many. But it was conspicuously silent that SM allows them back too.
3. The ad says: “We want an electoral system that provides certainty for voters, rather than forcing them to wait for post-election negotiations. Vote For Change wants governments to be held to what they promised, not what parties manage to negotiate in coalition agreements.” Again, the ad suggests that SM offers a solution to this problem. But it doesn’t. SM offers no guarantee of such certainty, and of the absence of post-election negotiations.
VFC respond with a quote from a researcher that for all the world seems to support my point. It notes that “there is also a chance coalitions would be needed to form a government…”. Their main point seems to be – rightly – that SM is “more likely” to deliver majority governments. But of course, that’s not what they said.
You be the judge
There’s room for debate about how closely a body like the ASA should scrutinise political arguments for their accuracy. Many of my points were that VFC was misleading by exaggeration and omission. Perhaps it’s right and proper that the ASA shouldn’t uphold those.
But I still think VFC is fair game for criticism when its spin becomes deceptive.
Topics: Advertising Standards | Comments Off on VFC press release even more misleading than their ad
Sneaky devices 3
November 17, 2011
The cameraman in the middle of cuppagate, Bradley Ambrose, is reportedly seeking a court declaration that he committed no crime because the recorded conversation wasn’t private. (That is, that the conversation did not occur in circumstances in which any party ought reasonably to expect that the communication may be intercepted by some other person not having the express or implied consent of any party to do so.)
Some of the arguments about whether this test is satisfied have been thrashed out in the posts and threads below. I think the balance of argument is that it can’t be a private conversation. (Even those, like me, who think it might be have to concede that eliminating this element beyond reasonable doubt is a tall order).
Still, I wonder whether a judge will want to grant a declaration about issues that are squarely in the middle of an ongoing police investigation.
Also interesting is Ambrose’s lawyer’s comment that Ambrose has yet to be contacted by the police. That means that police are apparently seeking search warrants against media organisations to obtain notes, out-takes, and other information about Ambrose’s conduct, before they’ve even interviewed him. Can it really be shown, as the Court of Appeal has required, that whatever evidence the media organisations are likely to hold “will have a direct and important place in the determination of the issues before the Court” when that evidence might be entirely unnecessary if Ambrose himself tells them what they need? (I’m not saying he will speak to the police, or if he does, that he’ll say much, but surely he needs to be asked before subjecting the media to a search warrant.)
A final point. As barrister Felix Geiringer has been saying for a while, even if it’s true that Ambrose committed an offence (and he thinks that’s highly doubtful, incidentally), it doesn’t follow that the media will also be committing an offence by publishing the tape or transcript right now. It would have to be shown that the media publishing the material know that it was illegally intercepted. Right now, at best the situation is unclear. If a media organisation published relying on a legal opinion that the tape did not seem to have been made illegally in breach of s 216B of the Crimes Act, then it would be hard to see how a prosecution could follow against that organisation.
Topics: Injunctions, Search warrants | Comments Off on Sneaky devices 3
Searching inquiries
November 17, 2011
I’ve just stepped off the plane back from Melbourne to find that the police are following up a complaint from the Prime Minister by executing search warrants against the media in what could be seen as an attempt to prevent the publication of material that might embarrass him shortly before an election.
I’m just wondering whether I got on the right plane.
Before I think harder about the law here, I might as well link to a post I wrote about the courts’ guidelines when the police want to execute search warrants against the media.
Topics: Search warrants | Comments Off on Searching inquiries
Conflict of interest
November 16, 2011
John Key has “stormed” out of a press conference, refusing to answer questions about the teapot tapes. Actually it was more of a scuttle (scroll down for video). But before that he was pushing the familiar line that New Zealanders are more interested in the economy and the serious policies that matter. Now, I’m all with the PM that voters are generally more interested in the issues than either the politicians’ talking points or the media’s horse-race analysis (and on that point: how about fronting up to Morning Report more regularly, Mr Key?)
But with the teapot tapes… my bet is most New Zealanders right now are more interested in what they reveal.
Topics: General | Comments Off on Conflict of interest
Billboard “vandals”
November 15, 2011
Let’s put aside the law for a moment. No doubt the Police can come up with some charges – even if it’s just billsticking – against those who doctored hundreds of National Party billboards by adding the phrases “The Rich Deserve More” and “Drill it, Mine it, Sell it”.
There is no general defence of “freedom of expression”, and although the courts are required to interpret and apply offences consistently with the right to freedom of expression (subject to demonstrably justified limitations), sometimes there’s not much wiggle room for argument.
My point here is different. I think this action was kind of cool. It wasn’t mindless vandalism. It was essentially a prank. It didn’t do much harm. It was contributing more to actual democratic debate about policy than National’s glib billboards were. The added slogans weren’t outright misleading. They actually engaged in the debate; or at least tried to spark one. They were trying to move things beyond the tightly controlled, John-Key-centric and argument-averse campaign being run by National. They had style. They’re pretty funny. They have achieved massive publicity. I admit I tend to sympathise with the sentiment, too, but I like to think I’d feel the same if it were any other parties’ billboards. The other parties’ billboards that I’ve seen aren’t any better than National’s. I should also note that National’s seven pledges billboards are perhaps the most policy-heavy billboards I’ve seen. Good on them for that, even if the promises are focus-grouped to within an inch of their lives.
If the “vandals” broke the law, I’m not going to stand in line and berate them for it. I wouldn’t want to take this comparison too far, but the point is worth making: there’s barely a social movement in the world that hasn’t broken laws to draw attention to their cause – suffragettes, land protesters, environmental campaigner, civil rights workers, anti-apartheid movement, Ghandi, you name it, they all broke laws. I suppose you might say that being punished for it is part of what makes a stand like that significant. Facing the music also draws attention to the cause. Maybe so. But I really wonder if it’s worth the candle.
I think the campaign as a whole would be better for a political culture that tacitly allowed for a bit of subversive tit-for-tat – not wanton destruction of billboards, but clever message-jamming. Is it completely hopeless to imagine an election culture where National responded to this by chuckling, then saying, “well, let’s talk about our mining policy and why we think it’s good for the country”, and then dreaming up a fiendish prank to expose the hypocrisy in the Greens’ billboards?
Topics: Protest speech | Comments Off on Billboard “vandals”
Of sneaky devices 2
November 15, 2011
I see Andrew Geddis has weighed in on Teapotgate (has anyone else called it that yet? Am I first?)
He (and others) see another possible defence in the argument that the occasion was so inherently public and the wodge of journalists so close by that Key and Banks “ought reasonably to [have expected] that the communication may be intercepted by some other person not having the express or implied consent of any party to do so.”
Sure, it’s an argument. But I don’t know that it carries much water. Here’s the best evidence: nobody did overhear them, did they? Everyone had been ushered away and Key and Banks spoke quietly enough that no-one they didn’t want to hear could hear. There do not seem to have been other third parties close by, such as diners on adjacent tables. The fact that the event was, generally, spectacularly public does not mean that they could not reasonably expect those particular comments wouldn’t be overheard.
I don’t think I agree with Andrew’s argument that it wasn’t private because the PM’s minders had no right to usher people out. That may be true, depending on whether there was some arrangement with the cafe owners. If so, it may mean Banks and Key couldn’t reasonably expect that some journalists wouldn’t wander back in and try to ask questions or take a seat at a neighbouring table, at which point the politicians could no longer reasonably expect not to be overheard. But short of that, I’m inclined to think this element is made out.
Andrew points to Mary Wilson’s interview with the cameraman. As Andrew says, his account may make it difficult to prove that the recording was intentional. But the interview oddly avoids some central issues: does he remember switching the mic on? At what point? Did he know it was on during the private part of the conversation? Had he simply forgotten? Could he tell from his camera that it was recording? Was there a flashing light or something? The HOS reported that he was “stopped by Key’s security staff from recovering the recording device” before the conversation. That seems a bit at odds with his account that he was hurrying to stake out a prime position outside having missed the good shot inside.
Also intriguing is Graeme Edgeler’s suggestion that the cameraman can’t be said to have intentionally intercepted a private communication because when he placed the mic down – which was the act of interception of the communication – it was a public conversation. He made no other positive act after that, and on one account even tried to retrieve the mic and was stopped. For him to be convicted, it will need to be shown that the action of interception could be a continuous one. Still, I’m not sure how receptive a judge would be to this argument.
So there may be enough doubt about the criminality of the recording to make the media leery of publishing without consent. Which so far isn’t forthcoming. John Key says that the conversation was entirely “bland” but that he wouldn’t give in to pressure to allow publication of the fruits of a criminal act. Today it might be him, he says, but tomorrow it might be you.
He has a point, but it’s not a very good one. This is about a conversation held as part of a piece of political theatre that several political commentators have said may be significant for the public to know about, and Key has said is anodyne. This is not really about what might happen to the ordinary punter in different circumstances.
A final point. Some have suggested that the HOS, having made its original decision on ethical grounds, can’t really change its mind now. There’s something in that. But it is now possible for the HOS or other paper to say that the circumstances have changed. Key has described the conversation as bland. If it’s not, the public now have an interest in knowing that, if only to evaluate Key’s truthiness. In addition, it might be said that speculation about the contents of the conversation mean that (a) it’s already in the public domain or (b) it needs to be put in the public domain to correct misimpressions. A veritable feast of public interest arguments!
Public interest could save them from a civil lawsuit in breach of confidence or privacy, or from a Press Council complaint. But it’s not a defence to a criminal charge.
Topics: General | Comments Off on Of sneaky devices 2
Vote for Change Changes Pamphlet
November 14, 2011
I complained to the Advertising Standards Authority last week about Vote For Change’s pamphlet advocating SM. I thought it was badly misleading in several respects. Graeme Edgeler explains one problem with it here (where he also has a copy of the one side of the original pamphlet).
Another was that it tried to cash in on voters’ antipathy to 120-MP Parliaments by proclaiming that the other systems “could work with 99 MPs”. But they didn’t tell us that under the referendum legislation, all the systems are based on 120 MPs. They were trying to entice voters with an advantage that wasn’t on the table for the referendum.
Vote For Change has now addressed both of these problems (scroll down here), though there has not yet been any ruling from the Advertising Standards Authority.
I still think it’s misleading to say that under MMP, “Minor parties decide who is PM”. First, it’s not necessarily the case: National and Labour could form a coalition. Second, it’s not really true: if minor parties could decide, why wouldn’t they pick their own leader? It’s really the voters who decide who has the bargaining strength in coalition negotiations.
At the top of Vote for Change’s website, they set out the disadvantages of MMP, including:
MMP allows List MPs who have been voted out by their local electorates to sneak back into Parliament on party lists.
and
We want an electoral system that provides certainty for voters, rather than forcing Kiwis to wait for post-election negotiations.
The pamphlets strongly imply that the system they’re recommending, SM, doesn’t suffer from these flaws. Of course, that’s misleading too, especially with respect to the “sneaking back in” point. Let’s be clear: SM allows people we’ve voted out to “sneak back in” on the list, just (probably) not so many. It’s a difference in degree, not in kind. But because the “sneak back in” argument is such a trump card, the Vote For Change folks seem loathe to admit that their pick suffers from the same problem.
Those are the arguments I’ve put to the Advertising Standards Authority, anyway. It will be interesting to see what they do. But if, as looks likely, the complaint has prompted the changes they’ve already made, I regard it as a success for the ASA system already.
Topics: Advertising Standards | Comments Off on Vote for Change Changes Pamphlet
Of sneaky devices
November 13, 2011
John Key’s cunning plan to send a signal to the troops by sitting down for a cuppa with Act’s John Banks may have come undone by another sneaky device.
It seems that the conversation was recorded and may contain “game-changing” comments, according to the Herald on Sunday. The paper says a freelance cameraman was stopped from retrieiving his gear shortly before the cup of tea summit, and when he collected it afterwards, he found to his surprise it had been recording the whole 8 minute conversation.
The HOS says its legal advice said pubishing the contents would not be illegal, but the paper decided to ask for consent from the participants. When Key refused, the paper decided, out of ethics, not to publish the private conversation – though it did provide some general information about what was discussed, enough to whet our appetite and suggest there was public interest in the comments.
What’s the law here?
If this account is to be accepted, I think the HOS’s legal advice is probably on target. It’s a crime to intentionally intercept a private communication using an interception device. A private communication is one that is made under circumstances that may reasonably taken to indicate that any party to it desires it remain private, but:
does not include such a communication occurring in circumstances in which any party ought reasonably to expect that the communication may be intercepted by some other person not having the express or implied consent of any party to do so.
Although a battalion of journalists were about a metre away behind a window, let’s assume that Key and Banks couldn’t reasonably expect it to be overheard, and that the circumstances indicate that both desired their conversation to remain private.
The only issue, then, is whether the interception was intentional. On the paper’s account, it was inadvertent. In fact, it says, the cameraman tried to retrieve his recorder before the conversation but was stopped by Key’s security folk, and didn’t know that the recording was even happening. Now, I don’t know anything more than has been reported. But I wonder whether there is room for doubt about whether the cameraman genuinely didn’t know that the conversation was being recorded.
If it could be established that he did know, then he has committed an offence. The paper would then also commit an offence if it published the contents of the communication without the consent of one of the parties (interestingly it only needs the consent of one).
On the other hand, if he didn’t know, then he’s in the clear and the paper can publish at whim and not breach the criminal law.
But might there be civil liability for doing so? There are two possibilities here: breach of confidence and invasion of privacy. Breach of confidence can be established if information is imparted (Key to Banks and vice versa) in circumstances importing an obligation of confidence. That’s probably the case here. That confidence then binds third parties into whose hands the confidential material falls if they know it’s confidential. That’s also the case here. The publication of the conversation is prima facie a breach of confidence.
Invasion of privacy can be established where private facts are disclosed in a highly offensive way and in breach of a reasonable expectation of privacy. That’s a bit more questionable here. But if a confession of murder can be a private fact (in the Rogers case) then probably the contents of the conversation here are private facts too, even though they don’t really relate to intimate and sensitive matters. There probably is a reasonable expectation of privacy. It’s at least arguable that publishing would be highly offensive.
But that’s not the end of the story. In both torts, there’s a defence of public interest. If the material disclosed reveals a matter of legitimate public concern, then no tort has been committed. That would certainly be the case if Key or Banks said anything inconsistent with what the public was being told, and probably also if it revealed any significant matter that the public wasn’t being told. It’s possible that some of the conversation is in the public interest and some of it isn’t.
A couple of final matters. The Privacy Act does regulate the collection of information, but doesn’t apply to the news media in its news-gathering activities. Given that the collection of this information was said to be inadvertent, there might be an argument that the Privacy Act applies, and that, for example, the collection of the information was unfair, unlawful or unreasonably intrusive. The Act isn’t enforceable in the courts and a complaint would have to be made to the Privacy Commissioner.
There’s also the possibility of a complaint to the Press Council. I doubt that this could apply to the actions of the cameraman. But it certainly could apply to the actions of the paper in deciding what to publish and what to hold back. The key issues here are the requirements of fairness and privacy. The privacy principle states:
Everyone is normally entitled to privacy of person, space and personal information, and these rights should be respected by publications. Nevertheless the right of privacy should not interfere with publication of significant matters of public record or public interest.
It’s arguable that these provisons have already been breached. Is there really public interest in revealing that the men discussed “Act’s future and its leadership, New Zealand First’s electoral chances and the percentage of the vote the National Party would secure”? Is it fair to hint at further explosive material and put pressure on the politicians to give consent?
Still, I’m inclined to think that the Press Council will find that the paper has so far managed its ethical duties responsibly.
In any event, it will be fascinating to see how this pans out. In cases like this, the people in the conversations can easily be accused, perhaps unfairly, of having “something to hide”. The usual PR response is to get it out into the public domain and deal with it quickly, rather than let it build up a head of steam.
And then attack the messenger.
Topics: Breach of confidence, General, Media ethics, Press Council, Privacy Act, Privacy tort | Comments Off on Of sneaky devices
Horsing around
November 1, 2011
Did the fact that the Melbourne Cup is being run within 24 hours of the leaders’ debate cause TVNZ to mix them up?
There’s a terrific book called “Breaking the News” by James Fallows that excoriates the US media for treating election coverage like a horse race. When voters ask questions of politicians, he points out, they want to know what their policies are. What are you going to do about X? Why didn’t you do Y?
When journalists talk about politics, he notes, they become obsessed with who’s winning. How will policy F play with the voters? Will gaffe G affect the party’s polling?
The TVNZ debate struck me as having quite a lot of substance to it. Guyon Espiner was asking many of the important questions. What they gave us wasn’t all flannel. Viewers could understand the basic policy differences between the leaders.
At times, it even sounded like an actual debate. Unfortunately, some of the most interesting direct exchanges between the leaders were cut off – because TVNZ had to make time for some asinine horse-race analysis. I can decide for myself whether I thought Goff looked nervous or Key seemed relaxed or Goff “attacked” Key by asking him questions directly. I don’t need “experts” to tell me that.
These segments trivialised the debate, belittled the leaders and patronised the viewers. Please stop it, TVNZ. Or at least consign it to some analysis segment later on that I can switch off.
If TVNZ really wants to add value to the debate, how about having some experts on who can provide some context to what the leaders are saying? What are they artfully leaving out? Are the statistics they’re citing misleading? How does what they’re saying compare with what they said last election? What are other countries doing about that particular issue?
While I’m steamed up about this, here are a couple of other things. Why bother inviting the panel of journalists if they’re only going to get one question each? Together with the host’s questions, the video questions and the twitter feedback, the debate was too crowded. It meant that the leaders seldom had to have more than 30 seconds to say about any issue and were shut down when they actually wanted to debate each other. That was really annoying to watch and sometimes actively unfair to one or other of the leaders.
Last of all, why invite an audience when they had to sit there looking at the backs of the politicians? It seemed rude.
Topics: Media ethics | Comments Off on Horsing around
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