Corrections corrected
January 27, 2011
Remember the prisoner who sued the Department of Corrections for confiscating and destroying his Cosmopolitan magazine? (Two hand-drawn pictures were also destroyed).
He won. Turns out, it was an easy call. Under the Corrections Act, prisoner property can only be destroyed if the prisoner fails to comply with a requirement to remove it, and the destruction is performed with the authority of the prison manager and in the prisoner’s presence. The department admitted it flouted those rules. Game over. (I suspect there are serious and under-explored questions about how often prison authorities break the law.)
But only particular types of property can be confiscated. It must be dangerous, booze or drugs, perishable (that’s weird) or “objectionable”. One of the prisoner’s arguments was that the confiscated property was not objectionable, particularly in light of his rights under the Bill of Rights Act. The magazine reportedly compared pictures of real and fake breasts. The drawings were of a celtic cross and a woman in underwear.
The Corrections Act contains no definition of “objectionable”. The Films, Videos and Publications Classification Act contains an extensive definition which of course isn’t directly relevant, but may well not cover the confiscated items.
Judge Williams ducked this question, alas. He pointed out that the materials were destroyed, so were not in evidence and that the department hadn’t provided a full justification for its actions. Hmmm. One might have thought that a copy of the magazine, at least, could have been uncovered, and if the department hadn’t addressed that aspect of the claim, that’s its lookout.
At the end of the day, it doesn’t make much difference to the outcome. But if you are a free speech law trainspotter, you might be a bit disappointed with the court’s failure to grapple with the proper construction of “objectionable” in this context.
Topics: NZ Bill of Rights Act | Comments Off on Corrections corrected
Devlin name-suppression beat-up
January 25, 2011
Russell Brown has a terrific post demonstrating yet again the way the media have lost the plot about name suppression.
He notes that no judge ever actually made a determination of the suppression application on the merits: an interim order was made by consent so that the application could be properly argued later. I suspect the application would have been declined, even though the offence was trivial. This was treatment that would have been available to anyone who indicated that they wanted to make a suppression application, not just wealthy celebrities.
I think the media may be missing what could be the most significant aspect of this case. Was Devlin’s behaviour really criminal? I guess we don’t know all the details of what happened, but from Devlin’s account, this is pretty inconsequential misbehaviour. I worry that the police are overusing low-end and nebulous offences like disorderly and offensive behaviour. Did you know that convictions for offences like this have rocketed from about 2000 per year in 1990 to more than 10,000 in recent years? Yes, there have also been more criminal convictions overall. But the use of these offences has risen from 1.2% of convictions to 4.5%.
I worry in particular about the use of these offences against protesters, but there’s plenty of evidence of their use as a catch-all for police who get irritated with someone who’s being stroppy.
Or are we four times more offensive and disorderly than we were 20 years ago?
Topics: Name suppression, Protest speech | Comments Off on Devlin name-suppression beat-up
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?
« Previous Entries Next Entries »