Double jeopardy?
October 29, 2010
Is the Law Commission being tasked with a job already farmed out to the Dean of VUW’s law school?
The Attorney-General engaged VUW dean Tony Smith to write a paper on our contempt of court laws, including the ways in which they are being affected by the internet. Is it undermining confidence in court orders, or courts’ ability to do their jobs? Tony Smith is the author of the leading text on contempt, and is tackling the research with recently retired Court of Appeal judge Bruce Robertson.
Then we get Simon Power’s announcement that the Law Commission will look at… much the same thing. Its task will be broader – “to review the adequacy of regulations around how the Interent interacts with the justice system” – but there seems to be overlap:
Issues I’m concerned about include how trials can be prejudiced by information posted on websites and seen by jurors, real-time online streaming of court cases, breaches of court suppression orders, and re-publication of a libel.
Another odd thing about Power’s press release. Having said that this is his concern, here’s his summary of the issues he’s referring to the Commission:
• How to define ‘news media’ for the purposes of the law.
• Whether and to what extent the jurisdiction of the Broadcasting Standards Authority and/or the Press Council should be extended to cover currently unregulated news media, and if so what legislative changes would be required to achieve this.
• Whether existing criminal and civil remedies for wrongs such as defamation, harassment, breach of confidence, and privacy are effective in the new media environment, and if not whether alternative remedies are available.
So… where’s the directive to look at “how trials can be prejudiced by information posted on websites and seen by jurors, real-time online streaming of court cases, breaches of court suppression orders…”?
Presumably, that stuff gets covered by the words “such as”…
Power calls the Internet a “bit of a Wild West” because “bloggers and online publishers are not subject to any form of regulation or professional or ethical standards.” Let’s be charitable and call this language merely loose. Of course bloggers are subject to the same criminal and civil laws – name suppression, defamation, censorship laws, etc – as anyone else. Those laws are not so easily avoided online as some commentators believe. In fact, in some ways it’s easier to attack online publications because ISPs often fear associated liability and can be persuaded to pull the plug on bloggers’ content themselves.
But Power is generally right to say that online publishers are not subject to equivalent ethical regulation to the Press Council and Broadcasting Standards Authority. But the Press Council does consider complaints about websites associated with print publications (and may even have its arm twisted to consider complaints about news sites that are purely online, such as Scoop… I don’t think anyone’s tried yet). It is silly that the BSA has no power to touch the clips on broadcasters’ websites, so that broadcasters can post them with impunity even when complaints against them have been upheld.
Still, whether their powers ought to be extended to bloggers is a different kettle of fish…
By the way, with John Burrows and Cate Brett at the helm, this project ought to be a corker.
Topics: Contempt of Court, General, Internet issues | Comments Off on Double jeopardy?
Hobbiter dicta
October 29, 2010
It’s now clear that the government intends to change the law relating to employment contracts for the film industry. So why are some in the media still calling this a “clarification”? Does it have anything to do with journalists’ warm regard for the elasticity of the appellation “clarification” as illustrated by their frequent use of it to describe what are really corrections?
And why are they still parroting the government’s line that this was necessary to restore stability? Andrew Geddis is as mystified about this as I am. It’s like reporting that Graham Henry said it was necessary to pick a new goal-kicker to solve our line-out problems. Hard to imagine anyone would report that sort of gibberish straight.
[Update: this terrific article by the NZ Herald’s Derek Cheng goes some way to doing what the government has not: explaining how the employment law change plays into Warners’ instability concerns.]
Topics: Media ethics | Comments Off on Hobbiter dicta
Burning questions
October 28, 2010
For those interested in the Morse flag-burning case that I argued with Tony Shaw and Felix Geiringer in the Supreme Court earlier this month, Greg King interviewed me about it on The Court Report. (It’s part 3 of the show).
Topics: NZ Bill of Rights Act, Protest speech | Comments Off on Burning questions
Key questions
October 28, 2010
I’m no expert on employment law. I claim no insider knowledge on the Hobbit fiasco. But there are some obvious questions that I haven’t seen anyone in the media ask:
1. John Key says he’s going to pass law “clarifying” the difference between employees and contractors, at least in connection with the film industry. What exactly is it that needs clarifying? What is he going to clarify that wasn’t clarified by the Supreme Court in the 2005 Bryson case?
2. Doesn’t he actually mean “change” the law? If so, how? If not, why bother passing new law?
3. In fact, doesn’t he really mean: “make it harder for people on independent contracts to argue that they’re actually employees, even if they’re being treated as employees”? If so, what’s the justification for this?
4. In particular, since it seems that all the actors are happy being on independent contracts, and as far as I know none has ever challenged such a contract, or is likely to, then isn’t this change actually only going to affect the techies and the crew? In which case, is this about the threatened strike at all?
5. How is it going to be achieved? Will the government simply introduce a rule that if the parties describe their arrangement as a contract for services, that will be the end of the story? That is, the courts will not be able to look behind the contract to see if in practice it’s really an employment relationship, even if the studio exercises close control over the worker during an extended period of time, provides workplace and equipment, and integrates the worker into the fabric of the workplace? Or will the government instead be setting a higher threshold before independent contractors can show that they’re really employees? If that threshold is expressed in terms of a general test, or series of factors, how will this provide any greater “clarity” than we had before?
6. If it’s justified to change these rules for the film industry, why isn’t it justified to change them for everyone else? And if it’s not justified to change them for everyone else, why is it justified to change them for those in the film industry?
7. And why do this under urgency, in one day? Legislation can still be passed quickly without doing it this quickly. Isn’t there a danger that it will be rushed and botched? Isn’t it undemocratic to rush it through without at least allowing some degree of input from the public and interested parties through the Parliamentary process? Did Key promise Warners to pass it this way?
Topics: Media ethics | Comments Off on Key questions
Did Paul Henry breach broadcasting standards?
October 7, 2010
As you know, TVNZ Breakfast presenter Paul Henry asked the PM whether he would appoint someone to Governor-General who looked and sounded more like a New Zealander, plainly suggesting that because Sir Anand Satyanand is ethnically Fijian-Indian (though born and bred in NZ), he’s not appropriate for the job.
I think that’s racist. But I’m not entirely sure it breaches the Free-to-Air TV code.
It strikes me that there are three possible grounds of complaint:
Discrimination and Denigration
Under this standard, broadcasters should not
encourage discrimination against, or denigration of, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status, or as a consequence of legitimate expression of religion, culture or political belief.
The threshold for a successful complaint is high. The BSA says there must be a “high level of invective”. Inflammatory comment won’t necessarily breach it. Expressions of genuinely held opinion are exempted. The broadcast must “blacken the reputation of a class of people”. It must “encourage negative treatment” of them.
I’m not at all sure that’s the case here. Henry’s really suggesting that our Constitutional head should live up to his idea of kiwiness, which is presumably white. I suppose this could have the effect of causing people to think ethnic minorities are less kiwi. But it seems a stretch to call this “encouragement” of racial denigration. It seems a long way from Voice of Islam’s televised condemation of gay people as “sick”, criticising their “filthy practices”, noting that the Islamic position on homosexuality is death and calling on people to “take a stand – and it’s not enough to call names”… or Michael Laws’ tirade against the Exclusive Brethren as “strange and weird beasties”, “dangerous little buggers”, “not normal people”… “you just want to take them outside and de-knacker them so that they can’t breed”. The BSA upheld denigration complaints in both cases. But here…?
Fairness
The code requires broadcasters to “deal fairly” with any person referred to. Sir Anand was surely referred to. Unfairness usually involves misleading portrayals, broken promises, bullying interviews, distorted editing, one-sided programmes and the like. It’s aimed at harm caused to particular people featuring on programmes.
How was Sir Anand treated unfairly? By suggesting he wasn’t even a New Zealander? (The PM put Henry right on that score). By implying that he wasn’t qualified for Governor-General because of his ethnicity? This feels more like an opinion, and it was also countered to some extent by the PM. The criticism wasn’t really targeted at Sir Anand personally. The guts of the problem doesn’t feel like unfairness to me.
Taste and decency
Broadcasters must “observe standards of good taste and decency”. They should take account of “current norms” of taste and decency. This standard is mostly about sex, nudity, graphic pictures and swearing. The threshold again is very high. Not many taste and decency complaints are upheld. There was nothing smutty about this interview.
Broadcast material that is personal or abusive can be offensive. Programmes that are humiliating to crime or accident victims, the vulnerable or those suffering grief or distress. Very offensive jokes. Shock jock pranks. Whatever you think of Henry’s remarks, they don’t seem to belong here.
I note that TVNZ’s statement about its punishment of Paul Henry slides around the question of whether he breached any broadcasting standards (and if so, which ones) by simply describing his conduct as “inappropriate”.
In the end, while I think Henry is fostering a stupid and dangerous attitude that people with different racial backgrounds are different and inferior to everyone else (akin to National’s “mainstream New Zealanders” concept), I think what I’m ultimately doing is disagreeing with his opinion. Maybe it’s right that broadcasting standards shouldn’t reach this. The proper remedy is public reaction, and I’m heartened by how that’s gone.
I’d be interested in what others thought.
[Update: TVNZ has upheld the complaint on all three grounds, probably a sensible move strategically. It doesn’t make me change my mind about anything above, and I wouldn’t be quick to assume it represents a change of TVNZ’s usual attitude to complaints under these grounds.]
Topics: Broadcasting Standards Authority | Comments Off on Did Paul Henry breach broadcasting standards?
Henry Fool
October 4, 2010
I wonder when TVNZ is going to get a Breakfast presenter who looks and sounds like a journalist?
Topics: Media ethics | Comments Off on Henry Fool
MediaBotch
September 26, 2010
This week’s MediaWatch show on Radio NZ is billed like this:
Mediawatch looks at the impact of the ‘new media’ on the old. Can online amateurs really replace the professional journalism of today? Is it already happening? And if so – what effect is it having on standards?
This promised to be interesting – particularly since blogger Andrew Geddis at Pundit last week identified a humiliating blunder in the prisoners-votes-disqualification bill, a stuff-up that was then picked up by the mainstream media. A nice topical demonstration of the worth of the blogosphere, you might think. A good illustration of the way some expert bloggers are adding to the national conversation. An example of online amateurs and professional journalists working in sync.
Of course that’s not all we’ve heard from Geddis in the last couple of weeks. He and Dean Knight exposed the staggering width of the Canterbury Earthquake Response and Recovery Act – a much more significant issue, and one that the professional journalists have by and large dropped the ball on. That was a case of bloggers’ standards plainly rising above those of the mainstream media.
But MediaWatch didn’t mention those stories at all. Apart from a vague reference to stories broken by blogger David Farrar (whose name MediaWatch pronounced incorrectly), there was no discussion of the range of stories and analysis (often ahead of the MSM, often more penetrating, and sometimes even more ethical) on our leading blogs. Instead, the focus was on WhaleOil (though there was time for a gratuitous swipe at Farrar for a minor slip-up that wasn’t even on his blog). The MediaWatch folk made the sensible point that Mr Oil’s ethics leave something to be desired, and the MSM could stand to be a little less credulous about his posts. But this was hardly advancing the broad issue the programme had raised.
This is not to say that the blogosphere isn’t largely full of tripe and blather. It’s to say that this of all weeks offered a terrific illustration of the virtues of the blogosphere. Did MediaWatch not notice? I’m not sure this shows up the professional journalists at MediaWatch in a particularly glowing light.
Topics: General | Comments Off on MediaBotch
An unprivileged position II
September 16, 2010
Tom Frewen [and Graeme Edgeler] noted that last year the Privileges Committee looked at the issue of the scope of the media’s privilege to report on proceedings in the House, and also concluded that it was much less than the media tend to think it is:
The media play an important role in providing the public with information about thebusiness of the House. In recognition of this role, some protections are provided in the Defamation Act to allow fair and accurate reports or summaries of the proceedings of the House to be covered by qualified privilege. The defence of qualified privilege applies to
• delayed broadcasts of proceedings
• the publication of a fair and accurate report of proceedings
• the publication of a fair and accurate extract or summary of a report of proceedings.
The evidence from the Media Freedom Committee of the Commonwealth Press Union (New Zealand Section) suggested that the media incorrectly believed that it had protection from actions such as contempt of court or breach of statutory no-publication provisions when it reported anything said in the House, provided the report was fair and accurate. This is not the current legal position. We consider that qualified privilege could be extended to cover fair and accurate reports of all proceedings, by analogy with qualified privilege under the law of defamation.
Recommendation
We recommend to the Government that it introduce legislation to amend the Legislature Act 1908 to provide that a fair and accurate report of proceedings in the House, or summary using extracts of proceedings in the House, by any person is protected by qualified privilege.
Topics: Contempt of Court, Parliamentary privilege, Suppression orders | Comments Off on An unprivileged position II
Oh my God
September 15, 2010
Let me add my voice to the flabbergasted reactions of some constitutional experts to the Earthquake Response and Recovery Act. It reads like a far-fetched doom-laden Public Law exam problem. And now it’s law. We’ve just appointed three Ministers as Kings.
“Trust us”, they insist. No thanks. I’d rather trust the checks and balances in our Parliamentary law-making system, imperfect though it is.
Geoffrey Palmer, come back, we need you!
Topics: General | Comments Off on Oh my God
An unprivileged position?
September 15, 2010
The DomPost seems to have deliberately breached a name suppression order. And now I probably have too, having merely linked to it. What the hey. The paper is reporting that ACT MP David Garrett has admitted that he obtained a false passport in his halcyon days, using the time-honoured Day-of-the-Jackel method of finding the tombstone of a dead baby who was born roughly when you were and applying for a passport in its name.
I have to say, I think that’s kind of cool. But illegal. Fair Go has done it too, and with better motivation: to prove how easily it could be done. Also illegal.
Anyway, David Garrett was found out much later, pleaded guilty and was discharged without conviction and given name suppression. (Question: what is ACT’s position on criminals who receive this treatment?)
Garrett says he’s currently trying to have the name suppression withdrawn. Apparently that hasn’t happened yet. But the DomPost has still named him. Also… illegal. You’d think it might have picked up on that, having covered the Whale Oil case so assiduously.
Ah, they’ll be saying. But Garrett said it on the floor of the House of Parliament. We were just reporting that. It’s privileged. Isn’t it?
I don’t think so. Privilege applies to Garrett. (Though technially he could be answerable to the Privileges Committee for using his Parliamentary rights to breach a suppression order, I don’t think anyone’s going to get too exercised about him fessing up to his own crime). Privilege also exempts the media from defamation actions when reporting what’s said in the House. Lord Denning – but only Lord Denning – has suggested that privilege may also insulate media Parliamentary reports from contempt actions. But not name suppression laws.
I don’t think anything will come of this. I’m not saying anything should. When Winston Peters revealed the identify of a child in a family court battle, for instance, no-one batted an eyelid when that was reported. Let me heroically opine that I should not be prosecuted either.
But Whale Oil occasionally rails about the way that the media often gets away with flouting suppression laws, while he gets prosecuted. Well, they’re not thumbing their nose at the law the way he does, but let’s grant that he has a point.
Topics: Name suppression, Parliamentary privilege | Comments Off on An unprivileged position?
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