Tweeting in court
January 25, 2011
The English Chief Justice, Lord Judge (yep, that’s his name), has laid down some interim guidelines on tweeting in court. In short, he suggests that tweeting won’t usually prejudice the administration of justice, so it seems that permission should usually be granted. On the other hand, in some circumstances there may be reason to ban tweeting:
Without being exhaustive, the danger to the administration of justice is likely to be at its most acute in the context of criminal trials e.g., where witnesses who are out of court may be informed of what has already happened in court and so coached or briefed before they then give evidence, or where information posted on, for instance, Twitter about inadmissible evidence may influence members of a jury. However, the danger is not confined to criminal proceedings; in civil and sometimes family proceedings, simultaneous reporting from the courtroom may create pressure on witnesses, distracting or worrying them.
Our judges are likely to be influenced by this approach.
Topics: Contempt of Court, Internet issues | Comments Off on Tweeting in court
No ordinary Joe
January 24, 2011
I interviewed Justice Joe Williams for The Court Report, about being a judge, his time as Chair of the Waitangi Tribunal, and about being the only judge on the bench with a top-20 hit. His responses are thoughtful and moving, I think.
Topics: General | Comments Off on No ordinary Joe
Erin Leigh succeeds in defamation appeal
January 23, 2011
The Court of Appeal’s decision is pretty much exactly what I predicted here. The briefing paper and the oral briefing about PR staffer Erin Leigh’s departure from the Minstry of the Environment are – contrary to Dobson J’s ruling last year – capable of defaming her. But her negligence claim is a loser.
The real interest in this case lies in the qualified privilege defence, I think, but that battle is yet to come.
Topics: Defamation | Comments Off on Erin Leigh succeeds in defamation appeal
Without prejudice?
January 21, 2011
Isn’t much of the coverage of the Auckland child abuse case based on the premise that crimes have been committed, and implicitly, that they were by the parents (and another family member)? That includes some of the statements from the government, as where Social Development Minister Paula Bennett is reported as saying that it was evident from the letter from the child’s mother that she was “actually hiding what was going on”.
How exactly are these defendants to expect a fair trial?
Topics: Contempt of Court | Comments Off on Without prejudice?
ECHR upholds Campbell, criticises success fees
January 19, 2011
The European Court of Human rights has endorsed the House of Lords majority finding in the Naomi Campbell case that her privacy was breached by the publication of photographs of her outside a Narcotics Anonymous meeting – and that this was not a disproportionate interference with the paper’s freedom of expression. (There’s lots of language about the domestic courts being given a margin of appreciation to strike this balance, so I imagine the ECHR would also have upheld the decision if it had gone the other way).
But the Court found that the 100% success fee awarded by the courts to Campbell as part of the cost order was a disproportionate limitation on the paper’s freedom of speech. That is, if the plaintiff arranges with lawyers that if she loses there will be no fee payable but if she wins the lawyers receive double their normal fee, and if after the plaintiff wins the courts allow that fee-doubling “uplift” to be reflected in the costs award – as they have in the UK – this is too punitive of defendants. INFORRM suggests this will probably kill off conditional fee agreements.
I’m not aware of such agreements being in widespread use in NZ in the media law field (or any other), though they are no longer considered unlawful. Just to boggle your mind further, such conditional fee agreements are usually supplemented with “after the event” insurance, which means that the plaintiff is covered against the possibility of losing the case.
Topics: Privacy tort | Comments Off on ECHR upholds Campbell, criticises success fees
Memo to HOS: When a man is accused of dismembering his former partner, don’t pap their 5-year-old kid
December 22, 2010
Yes, even if he may be an important witness. Especially if he may be an important witness.
Even if he’s in a public place.
Even if a different picture of the boy and his mum was supplied by the police. (Memo to the police: What the hell were you thinking?)
Also, don’t try to justify this sort of shoddy behaviour by pretending that publishing the photograph was in the public interest. If you are tempted to do so, then first make sure you can convincingly complete the following sentence: publishing a photograph of this 5 year-old child on his way to school, at a time when his father is suspected of chopping up his mother, will help the public by….
No fewer than nine people complained to the Press Council about the Herald on Sunday’s decision to run a picture of the son of Carmen Thomas. The Press Council wasn’t convinced by HOS’s claim that there was public interest in it, or that it didn’t invade his privacy because it was in a public place or because the police had already given them another photo. They called the publication “gratuitous.” Too right.
Topics: Press Council | Comments Off on Memo to HOS: When a man is accused of dismembering his former partner, don’t pap their 5-year-old kid
Press Council agrees with me
December 22, 2010
You might remember that I lambasted the Sunday Star-Times for its misleading front-page headline “Sex attack gets drunk driver off”. The story was about a woman convicted of drunk driving who hadn’t even appealed that conviction, only her sentence.
Well, Andrew Geddis was equally incensed, and complained to the Press Council. It upheld the complaint.
Topics: Media ethics, Press Council | Comments Off on Press Council agrees with me
BSA cracks down?
December 20, 2010
Is the Broadcasting Standards Authority, with its new personnel, getting tougher on taste and decency issues on TV? Earlier this year, it upheld complaints against TV3 for a somewhat raunchy scene in Home & Away at 5:30pm , and TVNZ for a somewhat raunchier scene in Hung at 10:10pm. Now it’s upheld two more complaints against TV3, for a sex scene in the movie We own the night shortly after 8:30pm and for a string of graphic scenes from Outrageous Fortune in TV3 News. In the last case, TV3 was penalised $4000.
In the last seven or eight years, successful taste and decency complaints have been fairly rare. Is the newly constituted BSA taking a tougher line? The We own the night decision doesn’t seem out of line with earlier decisions (like the decision on Striptease from 1999). Perhaps the We own the night scene was even more graphic. Home & Away seems more like a departure. Is the BSA becoming more conservative? Is TV getting more sleazy? Are we become more accepting of such scenes, and is the BSA taking that into account enough? Is this just a blip in BSA decisions, as we saw in the early years of the old BSA? Or is it a blip in people’s willingness to complain?
Topics: Broadcasting Standards Authority | Comments Off on BSA cracks down?
Another media name suppression beat up
December 18, 2010
This article, headed “Porn accused gets name suppression” is in fact about a defendant who was denied permanent name suppression. An interim suppression order is due to lapse, but has been continued pending the defendant’s decision to appeal against the denial of permanent name suppression. (It’s obvious that this has to happen, otherwise the appeal would be worthless.)
I wish the media would get over their obsession with name suppression at least to the extent that they could report facts fairly.
Oh, and while I’m at it: in which part of this story, headed “Kane Williamson wants off the rollercoaster”, does the promising young Black Cap say anything that remotely supports the headline?
Topics: Media ethics, Name suppression | Comments Off on Another media name suppression beat up
Pike River privacy IV
December 17, 2010
You may have seen the debate between Dr Nicole Moreham and I about the possibility of a privacy lawsuit against the media for showing pictures of grieving Pike River coal mine relatives leaving the meeting where they were told that the miners had certainly died.
Here’s a recent BSA case that sheds some light. It offers some support for both our perspectives.
The case involved a One News report of a man who drowned at Glenbrook beach trying to save his children as they were trapped on a reef by a tidal change. The reporter warned about the dangers of rapid tidal changes and rips and wearing clothes that get soggy and weigh you down. He noted that it was the second such drowning in a week. But the report also contained footage of CPR unsuccessfully being performed on the man, and one of the paramedics saying “I’m really, really sorry” to a woman (unnamed, but identifiable) who had her face in her hands, sobbing, and dropped to her knees next to the body.
The family themselves didn’t complain. But others did. A majority of the BSA found this was a breach of privacy. In finding the broadcast “highly offensive”, they said:
… we reject the suggestion that capturing the raw grief of a family for television viewing is “natural”, whatever feelings of sympathy it may have aroused in the viewing public. There are times when families choose to share their stories of loss with the New Zealand public, usually to publicise an issue they feel strongly about, but in such cases the publicity is on the families’ terms; they are willing participants who have to some extent come to terms with their loss. The family on the beach did not choose to have their personal tragedy turned into a teachable moment for the rest of the nation; given their extreme vulnerability, it is questionable whether they were in any position to have done so.
[41] In our view, the item demonstrated a callous disregard for the suffering of the family. An intimate view of a family’s tragedy and grief was captured on camera, but rather than affording a tragic event the sensitivity that it deserved, the event was then used as “wallpaper” for a story structured around a water safety message. We the majority note that the item returned to footage of the grieving family eight times during the short item. Some of the shots were prolonged and featured close up footage of two of the women’s faces. It also showed the women touching their loved one and being comforted by the ambulance officers. We consider that using the family’s tragedy in a way that was bordering on exploitative and voyeuristic was a violation of their privacy and failed to treat the family with dignity and respect.
While they accepted that the drowning and water safety were matters of public interest, and that putting human face on a tragedy can amplify the message, and that broadcasters need to be given some latitude in how they tell such stories, they felt that these factors didn’t justify the degree of invasion in this case, which was “verging on voyeuristic and exploitative”.
I might pause here and note one of the dangers of television production in stories like these. In many cases, the story gets pruned back in the editing. The most intrusive material is left out. Longer and more oblique shots are preferred. Invasive shots are shortened. Particularly distressing details are culled. That’s a responsible process, but in that process, something happens to the sensibilities of those putting the story together. They focus on the difference between the original footage and their story, which seems tame by comparison. It becomes harder for them to see that what’s left in might be offensive. Add that to a broadcasting culture driven by the need for pictures and drama, journalists’ abiding belief in the importance of the stories they tell – which is at once largely true and a bit self-justifying – and a ratings battle which tends to push journalists into treating people as vehicles for stories, losing some basic human decency along the way, and you have a recipe for stories that turn people into roadkill.
I’m not sure that’s what’s happened here. For all I know, those involved adamantly feel that this was a responsible story and others not involved in its production feel the same way.
And in fact, that’s what Peter Radich, the BSA’s chair, said in his dissent:
[5] I consider that the broadcast of the events surrounding the death of the rescuer was compassionate and sensitive. The face of the rescuer was obscured but the faces of his family were not. The broadcast was a powerful message that drownings involve real people and their families, they cause grief and despair and that in cases like this they also involve bravery and the highest levels of parental care. This to the extent that the man who died had put the interests of his children ahead of his own and had lost his life as a consequence.
[6] I recognise that it can be said that these events could have been broadcast differently. All faces could have been obscured and the camera could have been more distant. In my opinion in these circumstances the broadcast would have lost much of its potency and the power of the important messages which were conveyed would have been diminished.
Peter Radich says it was not highly offensive and (as I read it) that in any event the broadcast was in the public interest.
The BSA’s decision offers support for Dr Moreham’s view that the Pike River familes could sue. A privacy complaint was upheld concerning intrusive footage of distraught relatives even though they were in a public place. There were no real private facts broadcast, just intrusive images. The courts have indicated that they will take the BSA’s cases into consideration when applying the tort of invasion of privacy.
On the other hand, it also offers support for my view that a Pike River privacy suit wouldn’t be a sure bet. The BSA did not mention the publication-of-highly-offensive-private-facts strand of its privacy powers. It relied on its intrusion strand. So far, our courts have only developed a private-facts strand. In Hosking, the majority judges specifically left open the question of whether NZ law would develop an intrusion strand (see para [118]).
It might also be said that this was a stronger case than the Pike River families might have. The film showed the man dying in front of the relatives. Even so, the case split the BSA. (To be fair, though, the water safety element wasn’t present in the Pike River coverage; that element makes the Glenbrook story to some degree less offensive and more justified.)
As an aside, this case offers an interesting insight into the different perspectives of the new BSA members. It’s notable that the two journalists on the panel, Leigh Pearson and Tapu Misa, both thought the story crossed the line. The gulf between them (the story verged on “exploitative”) and Peter Radich (it was “sensitive”, “compassionate” and “sympathetic”) is a wide one indeed.
Topics: Broadcasting Standards Authority, Privacy tort | Comments Off on Pike River privacy IV
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