OIA-rony
March 1, 2011
The Independent Police Conduct Commissioner has criticised the police for releasing files relating to the charges against Tony Veitch that he didn’t plead guilty to.
She found that the police should have kept their promise to contact Veitch before releasing the 358 documents. And, in fact, they shouldn’t have released the documents at all. The police’s excuse that they were looking to “balance the public debate” didn’t fly: the documents (an initial summary of facts, witness statements, etc) did not contribute to any public debate because they “comprised unproven allegations (including evidence inadmissible in a Court) and formed no part of the Police case once the Crown had agreed to the plea bargain”.
This outcome is probably right. As the Chief Ombudsman pointed out, the police are required to consider whether harm to a person’s privacy justifies withholding information, and whether that is outweighed by public interest considerations. Here, documents containing criminal allegations against Veitch in relation to charges that were withdrawn by police were matters in which he had a privacy interest. It’s not clear how their release would have served the public interest, particularly where Veitch wasn’t given a chance to have input into the release decision. Releasing these sorts of documents may also make witnesses more reluctant to come forward, and accused people more reluctant to co-operate with police.
Still, the case is rich with ironies. Foremost among them is the fact that the police are getting a rocket for handing out information. As the Ombudsmen point out in their latest annual report, the Police consistently trigger the most OIA complaints – for their failures to release information. In my experience, the police are awful at complying with the OIA, a bad look for an agency charged with enforcing the law. When I sent them an OIA request for my research on the OIA, they ignored it, despite the fact (as I pointed out in my letter) that the project was conducted under the auspices of a supervisory committee that included the law school’s dean and an Ombudsman. If a request with that sort of backing can’t prise information out of the police, heaven help anyone else who has a go at it.
The investigation showed that the police’s OIA request handling systems were in disarray. That seems to have been addressed. But it would be a sad thing if this report makes it even harder to get information from the police.
Second irony: the police cited the public interest in receiving the information to justify the release. I don’t think they have ever used the public interest balance to override a withholding ground before. I wish they’d do it a bit more often.
Of course, what’s sauce for the goose is sauce for the gander. When the media asked for Kristen Dunne-Powell’s police file, the police released that too, in order to balance the public debate. Actually, they didn’t. They refused. It really looks like they were playing favourites.
It didn’t help that they released initial witness statements – but not the briefs of evidence that were significantly different. Veitch’s lawyer said this made things worse. The police said this was “for expediency’s sake and to reduce the volume of material to be released”. No-one has pointed out that these are not reasons for withholding information under the OIA, and they’re rather telling of the police’s attitude. Did the police at least mention that they were holding some documents back? What grounds did they invoke? “Expediency”?
Also ironic: the Authority disagreed with a key aspect of the Ombudsmen’s interpretation of the OIA. The Chief Ombudsmen said there was no public interest in the release of the documents because it wasn’t the police’s role to balance the debate. The Authority said (surely rightly) that this was the wrong question. The police’s role is beside the point. The right question is whether the release would in fact serve the public interest by contributing to a balanced public debate. On that question, both the Authority and the Chief Ombudsmen agreed: it wouldn’t, because the material had not been tested in court.
Wait a moment. The material had not been tested in court? Almost all of the information published in the media has not been proved correct in a court. When a credible person makes an allegation about a significant matter, that gets reported. As a test for whether some particular information contributes to a balanced public debate, it’s absurd to ask whether it’s been proved correct in court.
We might say that the culpability of a sports broadcaster for alleged offences related to another offence he’s pleaded guilty to simply isn’t a matter of public interest. We might say that this is a matter of public interest, but that the documents don’t really bear on it, or the public interest is not powerful enough to outweigh the privacy interest in the investigation documents. We might say that the witnesses themselves have privacy interests. But we can’t say that just because particular allegations haven’t been tested in court, there’s no public interest in them.
As Eady J said in W B v Bauer Publishing Ltd:
It cannot be right that a person who has been acquitted of a criminal charge, or against whom proceedings have been discontinued by the prosecuting authority, is never to be subjected to a further inquiry (eg through investigative journalism) with a view to establishing whether he truly was the culprit. There are remedies in libel if the media, having carried out such investigations, choose to publish allegations which they are unable to prove. It would in my view be a startling restriction upon their freedom of expression if they were also to be restrained by a (judicially imposed) law of privacy even in circumstances where they were willing to mount a defence of justification.
We should perhaps remember that there is nothing to stop any of the people who provided statements and witness briefs to the police from talking to the media. It’s hard to believe that Veitch would have a privacy remedy if they did (though if they mis-state facts, there may be a defamation case). What’s more these people were prepared to stand up in court. Veitch pleaded guilty to one of the offences, which at least raises questions about the others. He has held a prominent public position. There has been a lot of coverage of the allegations, much of it partisan and ill-informed. The allegations were serious. There’s also an interest in examining the workings of a prominent plea-bargain.
Have I just demolished my initial agreement that there was a proper privacy interest here and insufficient public interest to justify disclosure? You make the call. My point is that if the police’s release of the information was slapdash and biased toward the complainant, the Ombudsmen’s and Authority’s conclusion that release was unjustified also failed to grapple properly with the interests in play, I think. And in so doing, they have made it even harder to get information out of police even when there may be a compelling public interest in it.
Topics: Official Information Act | Comments Off on OIA-rony
Churnalism exposed
March 1, 2011
Take a look at this fascinating website that calculates and graphically displays the amount of UK journalism taken directly from press releases. Hat-tip: Inforrm.
Topics: Media ethics | Comments Off on Churnalism exposed
QuakePorn
February 23, 2011
Yes, it’s helpful to the country to understand the gravity of the disaster in Christchurch. Yes, we should cut news crews some slack when they’ve got to edit on the hoof. Yes, most of the coverage I’ve seen on TVNZ and TV3 has been responsible.
But I think the highlights packages of bleeding-head woman, bandage man, howling woman, and others similarly injured or distraught, repeated over and over and over again, is crossing the line. Someone make them stop.
[Tim Watkin over at Pundit takes issue with me in his comments thread. I join battle.]
Topics: Broadcasting Standards Authority, Media ethics | Comments Off on QuakePorn
Three cheers for the OIA and one for the government
February 22, 2011
I’m not sure whether the government’s document dump about the BMWs came as a result of an Official Information Act request. (If it wasn’t, then someone should put in an OIA request just in case the government has decided to hold anything back. That’s what the Labour government did in its Corngate document release).
Either way, though, the documents released are plainly embarrassing. Many governments around the world would not have released them. We can thank our official information disclosure regime for a political culture where this sort of transparency is expected. Perhaps we should also thank this government for taking its obligations seriously enough to provide a very quick disclosure (though we might be forgiven for suspecting that the government figured it was better to front-foot the issue and take the hit now rather than string it out and risk being ordered to reveal information by the Ombudsmen shortly before the election).
One other thought: it has been reported that the Solicitor-General has advised that some information cannot be released because of confidentiality promises in the BMW contract. I do hope that those drawing up and interpreting that contract, and those charged with giving advice about what we can be told about it, have borne in mind Jeffries J’s words in Wyatt C0 (NZ) Ltd v Queenstown Lakes District Council [1991] 2 NZLR 180, 191:
There cannot be allowed to develop in this country a kind of commercial Alsatia beyond the reach of a statute. Confidentiality is not an absolute concept admitting of no exceptions… It is an implied term of any contract between individuals that the promises of the contract will be subject to statutory obligations. At all times the applicant should have been aware of the provisions of the [Local Government Official Information and Meetings] Act and in particular s7, which effectively excludes contracts on confidentiality preventing release of information.
Topics: Official Information Act | Comments Off on Three cheers for the OIA and one for the government
Cancerous Daily Mail
February 21, 2011
Listening to Morning Report’s story this morning about a Daily Mail story on cancer, I was reminded of this astonishing catalogue of things that the Daily Mail has reported on as causes and cures of cancer.
And of this lovely piss-take on the Daily Mail by Dan and Dan.
Topics: Media ethics | Comments Off on Cancerous Daily Mail
SST sends blogger a defamation nastrygram
February 11, 2011
The Sunday Star-Times has sent a legal letter warning Brian Edwards about his post about its reporting on Amanda Hotchin. The SST quoted her saying:
We don’t have to justify where we get our money from or what it is spent on to anyone. I don’t care what anyone says.
Brian Edwards weighed in with a blog criticising Hotchin.
But Hotchin denied saying those words. She’s in a stoush with the SST over it. She sent the SST and Edwards affidavits from people she said were witnesses to her conversation with the SST’s journalist and supported her account of what happened.
In turn, Edwards blogged about that.
Now, Edwards says he’s received a threat from the SST’s lawyers demanding that he remove the post because it is “false and defamatory”. (The letter, as they tend to be, is labelled “not for publication: confidential to the recipient”).
Standard caveat: I haven’t seen the whole letter from the SST, or read all of the comment to Edwards’ post on the affidavits, or had access to the affidavits themselves. Obviously, I don’t know what happened between Hotchin and the journalist. Still, I think I can say something about the law here.
What about that “not for publication” line? Has Edwards committed a breach of confidence?
Well, it’s arguable. The main test is whether it was imparted in circumstances importing an obligation of confidentiality. On the one hand, the letter expressly demands confidentiality. On the other, I’m not sure whether a court would accept that the circumstances of the imparting of the information were such as to bind Edwards to the confidentiality.
Yes, it’s standard practice for these sorts of threats to include a “not-for-publication” line. But it’s not uncommon for recipients to publicise the threat anyway, and I’m not aware of any threat recipient being sued for breach of confidence for publishing the threatening letter. In some cases, there may also be public interest defence.
So it would be an interesting question for a court, but it would be a foolish lawyer who advised a client that asserting confidentiality like this is (a) legally watertight and (b) sure to be respected by the recipient. Some lawyers I’ve discussed this with admit that it’s a bit of a try-on.
Those dastardly lawyers!
Can we please bear in mind that lawyers act on instructions from their clients? If anyone’s being a bully here, it’s the SST. For all we know, Izard Weston may have strongly urged against sending the letter, or against sending it in those terms. However, they are ethically obliged to follow their clients’ instructions.
Still, they must take some responsibility for the civility of the letter, and can be criticised if the legal arguments make no sense.
Those dastardly journalists!
It really is an unedifying spectacle when a media organisation tries to shut someone up using legal threats, especially when (as here, I think) the case is not open and shut. I think journalists should take this sort of thing on the chin wherever possible. They should engage in debate instead of threats. They of all people should be aware of the dangers of the blunderbuss that is our defamation law. If nothing else they should be aware of the PR fiasco that’s likely to follow when a blogger is threatened by a big media organisation.
Is it defamatory?
The SST are adamant that is it. Brian Edwards is equally adamant that there was nothing defamatory in his post, which didn’t take sides about what was said.
I agree with Edwards that his post was very fair and balanced – as far as I can tell. Not having seen the affidavits, I don’t know whether they contain striking inconsistencies, obvious gaps, or other problems that he doesn’t discuss. More subtly, it’s hard to tell how his agreement not to publish the identities of the deponents hampers the objectivity of the whole account. I note the SST claims that Edwards could have interrogated the content of the affidavits more critically. Still, I’m inclined to trust Edwards about his summary, and he’s been open with us about the confidentiality restrictions he’s under.
But a fair account may still be a defamatory one. The blog quotes Hotchin saying the quote was “pure fabrication”. That’s plainly a defamatory accusation. It’s also a defamation to re-publish someone else’s defamatory remark. The whole of the post, read in context, probably ameliorates this accusation to some degree. But at the end of the day, I think the post suggests that there’s reasonable cause to suspect that the SST made up its quote. That’s a watered-down accusation. But it’s still a defamatory one.
Is there a defence? Quite possibly. For one thing, it may be true. If I’m right about the meaning to be attributed to the post, Edwards would only need to show that the affidavits provided reasonable grounds for suspecting that the SST journalist had invented the quote. That may be a home run. (Or if, as the SST suggest, his summary of the affidavits was selective and credulous – or if the affidavits themselves contain inaccuracies, maybe not).
For another, there may be a defence of honest opinion. It’s often hard to separate out fact and comment. And it seems that the SST didn’t identify the particular parts of the post it alleges are defamatory. Anyway, the post has the flavour of comment. It strikes me as drawing a careful distinction between fact and supposition. It is surely genuine. There may be an issue about whether it is sufficiently based on a foundation of fact, depending on what the affidavits say.
For yet another, there’s a possible defence of qualified privilege (essentially, responsible reporting in the public interest). This would require an expansion of this defence, but it’s in flux and cannot be discounted.
The presence of tenable defences really should have meant the SST shouldn’t have sent this threat, I think.
What’s this “we can’t engage” business?
The SST says it is “unwilling and unable” to engage about the issues in a public forum, as this would be “inappropriate”. This sounds like tosh to me. They admit that Hotchin hasn’t even filed proceedings. Were they given the affidavits on condition of confidentiality? If so, why not say so? If not, why not discuss them?
If, for example, the reporter does have a recording of the conversation, or even written notes, there is nothing at all to stop the SST revealing that publicly.
How serious is the SST?
The letter doesn’t seem to contain an express threat to sue. As a defamation lawyer, I am much more likely to sit up and take notice if a letter says: “If you do not remove this content immediately we have instructions to file proceedings without further notice”. A second-level threat is pitched more like: “If you do not remove this content our client reserves the right to issue proceedings without further notice”. Again, I haven’t seen the whole letter, but “our client is minded to take action” isn’t a first-order threat. My guess is that the SST will not sue over this.
Topics: Breach of confidence, Defamation, Media ethics | Comments Off on SST sends blogger a defamation nastrygram
Book your copies now
February 3, 2011
I’m working my way through the newly released 6th edition of Media Law in New Zealand by John Burrows and Ursula Cheer. (Actually, this updated version was mostly done by Ursula). It is as comprehensive as ever. If you’re wondering how much media law there has been in the last five years, we now have a definitive answer: 190 extra pages worth. I’ll post my review for LawTalk when I’ve written it.
I was also delighted to receive a copy of the 3rd ed of Dr Matthew Collins’ The Law of Defamation on the Internet. I met Matt when I was in Melbourne, and in fact saw him in action in a defamation case. He is terrific. The book traverses the law of UK, Australia, the US, Canada, Ireland and New Zealand, among others. It also incorporates material from the European Court of Human Rights. When I’ve delved into earlier editions, I’ve invariably found it useful. As he says in the preface, “the law of defamation and the Internet has become the modern law of defamation.”
Topics: General | Comments Off on Book your copies now
Hot off the press
February 2, 2011
John Key’s remarks on RadioSport about Liz Hurley being hot have now hit the UK’s Daily Mail, I see.
I’m more interested in why John Key is the only political leader given a weekly interview slot on RadioSport – and Breakfast TV, actually. This was the widely overlooked angle in the Paul Henry saga. I can’t see that there’s anything in the broadcasting codes that prevents it, at least as long as it’s not nakedly partisan and he’s not given a free platform to rail about political issues that aren’t addressed by the broadcaster elsewhere. But surely it’s conferring a healthy political advantage by burnishing his image.
Topics: Broadcasting Standards Authority | Comments Off on Hot off the press
Sad news
February 1, 2011
I’m sorry to have to note the passing of Sandra Moran, a doyenne of New Zealand media law. She was a principal at Oakley Moran and a former president of the Film and Literature Board of Review. I worked with her a little over the past couple of the years and she was generous with her wide knowledge and experience of media law. She’ll be missed in particular at Radio NZ, one of Oakley Moran’s big clients.
Topics: General | Comments Off on Sad news
Source of contention
February 1, 2011
When – if ever – should journalists be forced to disclose their confidential sources?
It’s been a hot issue lately. The Crown applied to court for an order requiring TV3 to provide identifying information of the Waiouru Army Medals thief after John Campbell’s anonymised TV interview with him. The Serious Fraud Office compelled the National Business Review to turn over notes and tapes made during its scoop on South Canterbury Finance. The government had to fend off accusations that its new Search and Surveillance Bill did not properly protect journalists’ confidential sources.
NBR was outraged at the Serious Fraud Office’s demand, describing its powers as “draconian”. The paper complied under protest, saying the materials didn’t include anything that wasn’t already published. But it was clearly worried that the SFO might come back for more. “Our concern is that we may be a target of more fishing trips by these investigators,” NBR’s publisher told NBR.
NBR’s coverage turned the heat on the SFO, no doubt to disincentivise such fishing trips with an implicit reminder of the sterling advice attributed to Mark Twain: “Never pick a fight with a man who buys ink by the barrel.”
Perhaps the SFO turned up the blowtorch a notch too high: Nevil Gibson’s suggestion that the SFO isn’t subject to judicial review or the Bill of Rights Act in the exercise of its powers is wrong on both counts. But his description of the powers as “draconian” seems on target. The SFO Act contains no protection for confidential media sources equivalent to that in the Evidence Act. The Evidence Act doesn’t contain an absolute rule that journalists can never be forced to reveal their sources, but it does mean that journalists can insist that the decision is made by a judge after weighing a range of sensible statutory factors. There doesn’t seem to be any good reason not to carry this over into the SFO legislation.
The Evidence Act provisions are fairly new, and got their first run in the Campbell case (which doesn’t seem to be available online). TV3 argued that if they were ordered to turn over information identifying their interviewee, then their sources would “dry up”. The Crown asked me to give evidence about whether that was true. What hard evidence is there of this “chilling effect” on confidential sources?
My evidence is here (skip the first 10 paras or so describing my qualifications). The cases, reports and articles I’ve drawn on are listed at the end.
I found the exercise fascinating. It quickly became obvious there is no hard evidence. If sources don’t come forward, we don’t find out, and we can’t know why they didn’t. Most of what passes for evidence is from journalists, and it’s difficult to escape the impression that it’s a bit self-serving.
But there’s much more to the question than that. Pretty much everyone seems to agree that there must be some benefit to source confidentiality. Journalists use confidential sources all the time. Some ground-breaking stories relied on confidential sources, including (from the US alone) Watergate, the My Lai massacre, the Pentagon Papers, the Iran-Contra scandal, Abu Ghraib, and the federal government’s involvement in unauthorised wire-tapping and torture. Most countries provide some protection for journalists’ sources.
But here’s the thing. Almost nowhere is the rule absolute. So those sources have come forward for those stories despite the danger that the journalist might be compelled to identify them in court.
Ah, but noble journalists will go to jail sooner than reveal a source, right? Well, some will, and have. Others haven’t. US research (a bit old, but still valid, I bet) says that journalists almost never discuss this possibility with their confidential sources. I gather that Phil Kitchen and Nicky Hager do. But how many other journalists bother to point out that the law might override their promises of confidentiality and talk about what they might do then? To be fair, this is mostly because most confidential conversations aren’t very important. Helpful to the business of news gathering, sure, but really earth-shattering revelations are very rare.
There is a proud journalistic tradition of protecting sources to the last. But it’s a bit mythical, I think. Scratch the surface and journalists are sometimes prepared to decide for themselves when it’s right to burn a source. (And that’s not counting the ones who negligently or in the course of gossip, let confidential information slip). For example, many journalists would burn a source to save a life. Many would burn a source to prevent an innocent person from being convicted of a crime. Many would feel no obligation to a source who lied to them. Some even say they would do so if they thought it was “in the public interest”. Some in New Zealand seem even to have done it because it suited their journalistic purposes.
Journalists want the right to take this decision for themselves, and not have it foisted on them by a court. But it’s not self-evident that their decision-making process is better than the one set out in the Evidence Act. And it’s not clear why the media’s occasional decision to burn sources themselves doesn’t chill sources as much, or more, than the Evidence Act.
It all gets a bit messy, doesn’t it?
The reason it’s not messier still is that, in fact, police and plaintiffs around the world only rarely seek access to such the identity of confidential media sources. Partly, that’s because the media publish most of the useful material they gather, the names of their sources are rarely vital, and the police and plaintiffs know they’ll get publicly excoriated if they do.
As for the sources themselves, they probably have a range of reasons for coming forward, and (if they think about it at all) probably usually think the chance of their identities coming out is low. Many won’t have done anything wrong. For some, the overriding factor is getting the information out. If push comes to shove, some sources are prepared to agree to be named.
But there are others – possibly breaking the law or jeopardising their jobs by coming forward – for whom absolute confidentiality is crucial. My best guess is that they are unlikely to be chilled by the odd court case ordering a source to be disclosed, especially if the facts seem far removed from their situation. Because in fact, that pretty much describes the status quo. On the other hand, if there was a string of high-profile court orders against journalists forcing them to disclose their sources – and the journalists did so rather than going to jail for them – then some of those types of sources may well get chilled, to the detriment of important stories in the public interest. (Alternatively, some might simply slip an unmarked envelope under a journalist’s door – though this would make stories harder to check out, which must count as a significant detriment when source-protection is weakened).
At the end of the day, this conclusion seems a distance from the righteous wrath that routinely spills from the media about the dire consequences attendant upon any attempt to get them to breach a confidence. Their claims are exaggerated, I think. But that’s not to say that source protection is not important.
PS: The Campbell case was resolved when TV3 agreed to give evidence of details of their meeting with the thief which provided a basis for inferring the identity of the thief (the police had some CCTV footage from the hotel where it occurred anyway, I gather, and it probably related to that). Was that betraying their source? The judge would probably have ordered disclosure without it.
Topics: Confidential sources | Comments Off on Source of contention
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