Fair comment defence succeeds
April 2, 2010
The Simon Singh fair comment appeal has been released. He’s the guy who said of the British Chiropractic Association that it “happily promotes bogus treatments”. Did this accuse them of conscious dishonesty? Eady J said yes, and it was a statement of fact. There was much hue and cry about the death of free speech. The Court of Appeal has held that it was a statement of opinion. Early reaction here and here and here.
Update: … and the British Chiropractic Association has dropped the case.
Topics: Defamation | Comments Off on Fair comment defence succeeds
Burning for reform
March 25, 2010
Are republicans the only people in NZ who can commit the offence of flag-burning by burning a flag?
You might remember that Paul Hopkinson had his conviction for flag-burning overturned in the High Court, because Justice Ellen France held that the offence needed to be interpreted narrowly to provide space for free speech rights under the Bill of Rights. She said that the offence requires that the prosecution prove that the defendant intended to vilify the flag. That’s unlikely to be established where a flag is burned as part of a political protest. (That’s one of the reasons that Valerie Morse, the ANZAC day flag-burner, was charged with offensive behaviour rather than the specific offence of destroying or damaging a NZ flag.)
At first blush, that sounds like good news for the Republic of New Zealand Party members who torched a flag on Parliament’s grounds recently, and are under investigation by the police for it. After all, they too were conducting a political protest, at a political venue, and their message was pretty clear. They too were simply using the flag as a vehicle for that protest.
But hang on. There’s quite a good case for saying that, unlike Paul Hopkinson, these guys really did intend to vilify the flag. They were protesting against the flag itself and all it stands for. A Maori sovereignty protester might who lit up a flag might be in a similar position. But anyone else who uses this device to protest any other government policy almost certainly isn’t.
I rather doubt that charges will be laid. The Attorney-General’s consent is required, for one thing. Goes to show, once again, what a silly offence this is. We should repeal it.
Topics: NZ Bill of Rights Act, Protest speech | Comments Off on Burning for reform
New media law blog
March 25, 2010
Check out Inforrm’s terrific blog here. Inforrm stands for “International Forum for Responsible Media”. It contains thoughtful commentary about media law issues, a useful blogroll, and a note of significant new and upcoming cases. Its lead today notes what I’ve been meaning to do for a while: that the evidence that the rest of the world treats London as the libel capital, filing defamation lawsuits there at the drop of a hat, is rather thin.
Topics: Defamation | Comments Off on New media law blog
Lights out
March 12, 2010
Slate’s Dahlia Lithwick slams the US Supreme Court’s astonishing decision to overturn the trial judge’s willingness to allow argument about the Californian gay-marriage case to be televised.
Oddly enough, the Supreme Court determined that because Perry is a “high profile” case, there is extra reason to turn out the lights. As it explains in its order: “This case, too, involves issues subject to intense debate in our society” and it “is therefore not a good one for a pilot program.” So, um, we the people are only fit to watch low-profile, boring cases? Or, as professor Barry Friedman put it today in the Los Angeles Times, “What, imaginably, could that bad effect be? That the American people might have views on the subject and debate them?”
So much for open justice in the US.
Topics: Cameras in Court | Comments Off on Lights out
Bare reasoning
March 12, 2010
In Lowe v New Zealand Police, Clifford J rightly overturns Nick Lowe’s conviction for offensive behaviour for cycling in the nude. It was on World Nude Bike Day, but Mr Lowe, “a committed cyclist and naturist”, doesn’t need that incentive to bike about naked. For example, he competes in the Coast to Coast without clothes (except, commendably, a helmet).
A woman had seen him riding along a relatively quiet rural road in Upper Hutt and complained, saying she was “fairly disgusted”, though she admitted she hadn’t even seen his tackle. The judge said that this didn’t satisfy the test of behaviour liable to cause substantial offence, or capable “of wounding feelings or arousing real anger, resentment, disgust or outrage in the mind of a reasonable person of the kind actually subjected to it”. (Note that this doesn’t close the door to an offensive behaviour prosecution of someone going naked in different circumstances… such as walking along a suburban street.)
The bit I take exception to is where the judge apparently decides that there is no element of freedom of expression in his behaviour (which would have meant that the judge would have to take it into account in interpreting and applying the offence). The only thing that makes the judge pause before reaching this conclusion is that it was World Nude Bike Day, and “Mr Lowe’s behaviour could possibly be seen as an expression of opinion in support”. He rejects this, as Mr Lowe does not seem to have regarded it as especially significant.
I hope the problem here is obvious: it’s not necessary for Mr Lowe’s conduct to be linked to World Nude Bike Day for it to involve a speech issue. As the judge says, Mr Lowe is “a committed naturist” whose “personal view is that it is appropriate to be nude in a wide range of situations where others would consider that such behaviour was, at best, inappropriate.” Nudity, for Mr Lowe, is itself an element of self-expression. It is also itself a political statement – a message about how society ought to be ordered. This plainly falls within the ambit of the Bill of Rights’ protection of free speech.
I’m not saying that all conduct amounts to speech. I’m not saying that his conduct falls at the core of the right to freedom of speech. I’m not saying that limitations on his speech-conduct can never be justified. But I am saying that this is plainly a speech issue, and it’s rather dismaying to see a High Court judge failing to recognise it as such.
Topics: Free speech theory, NZ Bill of Rights Act, Protest speech | Comments Off on Bare reasoning
Law Commission makes privacy recommendations
February 26, 2010
There’s another report from the Law Commission on privacy: this one the culmination of many of the others.
The report’s not up on the website yet, but it seems that the key recommendations are:
- no change to the tort established in Hosking v Runting.
- creation of a new offence of trespassing on someone’s property to install a surveillance device, to film inside someone’s dwelling without their consent and to install or use a tracking device to track someone without their consent. (The Commission notes the anomaly that police need a warrant to do these things, but you and I don’t.)
- extensions to the Harassment Act to make it clear that keeping someone under surveillance in such a manner as to cause distress comes with the definition of harassment, so can justify a civil restraining order.
Patterns of behaviour involving “watching” and “loitering” are already covered under the Harassment Act, so I’m not sure what that last bit adds. Watching via hidden cameras, maybe? Isn’t that still watching? Hiring someone to follow someone else?
Are you being caused distress if you’re not aware you were filmed until after it’s stopped?
Still, the recommendations seem pretty sensible to me.
The Commission is also to be issuing a preliminary paper on the Privacy Act shortly.
Topics: Privacy Act, Privacy tort | Comments Off on Law Commission makes privacy recommendations
UK Parliamentary committee recommends reform of media regulation
February 25, 2010
The British Culture, Media and Sport Committee has released its report into press standards, privacy and libel.
Recommendations:
Privacy tort: No change. In particular, no legal requirement for the media to give notice to people who’s privacy they’re about to invade in an upcoming story, though a failure to provide such notice should hike any damages awarded.
Privacy ethics: The Press Complaints Commission’s Code should be amended to require such notice, except when the public interest justifies not doing so.
Super-injunctions: The right to report Parliamant should be confirmed. Super-injunctions should be restricted.
Defamation: Consider reversing onus on defendants to prove truth – but only when sued by corporations. Consider putting new responsible journalism defence on statutory footing.
Libel tourism: Those whose “primary domicile or place of business” is not the UK should face additional hurdles before being able to lodge defamation claims there.
Costs: Contingency fees should be restricted to 10%, and after-the-event insurance not recoverable in a settlement.
Phone-hacking: Certainly more pervasive than News of the World was claiming. News executives guilty of “deliberate obfuscation” to the Committee. NOTW, the police and the PCC all failed to properly inquire into the practice.
PCC: Should be renamed, reformed, and given the power to fine and even suspend printing for an issue. Should be able to investigate without a formal complaint. Should have two-thirds lay majority. Consider making defamation-costs benefits mentioned above only available to PCC members, to incentivise membership.
Topics: Breach of confidence, Defamation, Injunctions, Press Council, Privacy tort | Comments Off on UK Parliamentary committee recommends reform of media regulation
BSA fucks up
February 23, 2010
The Broadcasting Standards Authority has upheld a complaint against the radio broadcast of Lily Allen’s song “Fuck You”, broadcast on Sunday and Tuesday afternoons on The Edge. I think they were wrong to do so, and I think it demonstrates that they still don’t really understand the Bill of Rights Act.
If it were just a straightforward example of a vapid pop song with some swearing in it, fine. That’s the way the BSA treated it. (And in fact, it’s the way the broadcaster argued it). But this song has more going on. It is making a political statement and that means that a higher threshold is required to justify restricting it.
Here are the lyrics:
Look inside
Look inside your tiny mind
Now look a bit harder
Cause we’re so uninspired, so sick and tired of all the hatred you harbourSo you say
It’s not okay to be gay
Well I think you’re just evil
You’re just some racist who can’t tie my laces
Your point of view is medievalFuck you
Fuck you very, very much
Cause we hate what you do
And we hate your whole crew
So please don’t stay in touchFuck you
Fuck you very, very much
Cause your words don’t translate
And it’s getting quite late
So please don’t stay in touchDo you get
Do you get a little kick of being slow minded?
You want to be like your father
It’s approval your after
Well that’s not how you find itDo you
Do you really enjoy living a life that’s so hateful?
Cause there’s a hole where your soul should be
You’re losing control of it and it’s really distastefulFuck you
Fuck you very, very much
Cause we hate what you do
And we hate your whole crew
So please don’t stay in touchFuck you
Fuck you very, very much
Cause your words don’t translate and it’s getting quite late
So please don’t stay in touchLook inside
Look inside your tiny mind
Now look a bit harder
Cause we’re so uninspired, so sick and tired of all the hatred you harbourFuck you
Fuck you very, very much
Cause we hate what you do
And we hate your whole crew
So please don’t stay in touchFuck you
Fuck you very, very much
Cause your words don’t translate and it’s getting quite late
So please don’t stay in touch
That’s clearly a song with a political message about hate speech, racism and homophobia. Russell Brown has more on how the song has been appropriated by the gay community, underscoring its political nature.
But the BSA doesn’t mention that. It effectively bans the airing of the song at most times because children might hear the word “fuck”. (In fact, the word was even partly fuzzed out in the song, rendering it as “uck”.)
This might usually be a demonstrably justified limitation on freedom of expression, given the BSA’s mandate to enforce community standards. But the BSA must do so in a proportionate way, and that involves assessing the significance of the speech and weighing it against the harm done to the community standards. (Claudia and I discuss this process, and the reasons why the BSA has to undertake it, in an article which has now been cited three times by the High Court in BSA cases: click on “BORA and the BSA” in the toolbar on the left.)
The BSA makes no attempt to distinguish this song from other songs that have much less political significance, and so require a less robust justification to restrict. It doesn’t address the well-recognised arguments that people making political statements often use colourful and even offensive language, and need to be given latitude to do so.
This is reinforced by the fact that the broadcasting standards themselves explicitly reflect the values of anti-discrimination that this song promotes. Arguably that heightens the social significance of the song. This is a song that speaks to young people about bigotry. And the BSA has effectively banned them from hearing it on the radio. (Libertarians might point out that this approach would be favouring a particular viewpoint. That’s problematic from a free speech point of view. Indeed it is. But it is a favoured viewpoint that Parliament has endorsed in the very legislation that governs the BSA).
On the other side of the proportionality balance, one can question whether the odd use of the word “fuck” (or even “uck”) really does that much harm to community morals these days. It’s not as if children aren’t exposed to the word in other places. The BSA routinely accepts its use after 8:30pm and occasionally during children’s listening time, when justified by the context: such as on the Kim Hill show, during the news, and in a live interview, for example.
So, despite the BSA’s improved process for dealing with Bill of Rights issues these days, they’ve dropped the ball on this one, I think. But then again, so has RadioWorks. The broadcasters really need to be making better arguments if they want to bed in Bill of Rights values.
Topics: Broadcasting Standards Authority, NZ Bill of Rights Act | Comments Off on BSA fucks up
Michael Laws breaches broadcasting standards again
February 23, 2010
The BSA has pinged RadioLive talkback host Michael Laws yet again, this time for “blatant misrepresentation”. He had an exchange of emails with a health official concerned with Maori smoking that said:
Laws: Stick to trying to get Māori to quit smoking, will you? Not exactly a sparkling success story, is it?
Broughton: Not really. Not when Pakeha continue to allow it in the country and make profits from it, both the government AND industry, but I know you’ll have another excuse for your behaviours…
How did Laws describe this to his listeners? He said Mr Broughton:
- “regarded the cause of Māori smoking to essentially be white genocidal cigarette companies out to basically kill Māori”; and
- “tells clients that it’s all a Pakeha plot to kill Māori”.
The BSA said this was unfair. It rejected the privacy complaint (rightly so: you can’t expect privacy when you’re emailing a talkback show). It said that the accuracy complaint was subsumed: it had been dealt with under fairness. It seems to me that even on the BSA’s usual narrow interpretation of the accuracy standard on talkback shows (ie it applies to unqualified statements of material fact that set the scene for discussion), this was an inaccuracy. It strikes me that this was inaccurate and therefore unfair and not the other way around. As Professor John Burrows has pointed out before, the standards are different and should usually be considered separately. Subsuming the complaints muddies the waters.
Given Laws’ history, I find it surprising that the BSA didn’t impose a penalty here. Perhaps it was because they realised that Boughton was attributing Maori smoking to race factors, and that the debate was about a significant issue. But they didn’t say that.
Topics: Broadcasting Standards Authority, General | Comments Off on Michael Laws breaches broadcasting standards again
Mau about gay issues
February 23, 2010
Well, recent events have given a certain piquancy to the broadcasting standards complaint about this exchange between Paul Henry and Alison Mau, on Breakfast last year:
Henry: …a little bit later in the morning I thought we might talk about the Acting Principal Family Court Judge’s call that it’s time the adoption laws were updated to reflect society. What he’s effectively saying, I think, is that you shouldn’t discriminate against homosexual couples when it comes to adopting. I’m a little bit iffy on that…
Mau: Why? Why shouldn’t same sex couples raise children just as well as mixed sex couples?
Henry: It’s not natural, is it?
Mau: Oh don’t start that.
Henry: Well it’s not natural, is it? It’s obviously not natural.
Mau: Not your sort of natural, no.
Henry: It’s not God’s sort of natural and I’m not even religious, but it can’t be, it’s not, like, natural, is it? Like you don’t get a whole clan of cave bears that are all male because that just couldn’t happen. It’s not natural.
Mau: You’re just determined to open a big can of whoop-ass aren’t you?
Henry: I’m not trying to do it… I’m merely…
Mau: Raising a talking point? That’s fine.
Henry: Because I mean people will… it smacks of the sort of thing the Labour Government did of course, doesn’t it? I just think you know I’m iffy on it, ‘cause we’re talking adoption aren’t we? I’m just iffy on it.
Mau: Yes goodness me, iffy – it smacks of human rights. How outrageous!
Henry: Yes human rights. A lot of bad things have been done under the… guise of human rights, haven’t they?
And later…
Henry: Well, it is. It is unnatural, homosexuality…
Mau: No, it’s not.
Henry: …But is it wrong?
Mau: [reading feedback] “To call this unnatural is ludicrous and narrow-minded. Gay couples are great parents and are more than qualified to raise children. In short, it’s about accepting that society is diverse.”
Henry: I mean, it is unnatural though. We shouldn’t be frightened of saying that it’s unnatural. It is unnatural. Although homosexuality is through all species. I don’t know if it’s through all species but many, many species. A lot of monkeys are homosexual.
Mau: Actually… we had one text that said that somebody’s aunt had a homosexual pair of magpies who tried to, who were sitting on eggs to try and hatch them.
Henry: Extraordinary. And they didn’t, did they, hatch? Where did they get eggs from? They stole the eggs, thieving homosexual magpies. The thing is, though, if you go to any animal park, and I’ve got to be careful what I say here, but if you go to any animal park, you will find monkeys being filthy with each other.
Mau: That is completely beside the point.
It seems that Paul Henry didn’t know, and if he did, he’s an even bigger tosser than if he didn’t.
The BSA complaint was about denigration/discrimination. The complaint was – rightly, I think – rejected. The threshold for denigration complaints is high. This was part of a political discussion about adoption. And when viewed as a whole, Alison’s robust responses counteract a lot of the damage to the standard.
Topics: Broadcasting Standards Authority, General | Comments Off on Mau about gay issues
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