Twittering in the courtroom
December 12, 2009
It’s been allowed in the US and Australia, with an Australian judge saying:
I believe that the public has a legitimate right to be fully informed of proceedings, particularly proceedings such as (the iiNet case), which have attracted considerable public interest. Twittering can serve to inform the public in a more speedy and comprehensive manner than may be possible through traditional media coverage.
It’s up to the judges case-by-case, as it should be. Frankly, I’m a bit skeptical about how well served the public will really be by twitter updates. But sometimes I feel a bit the same about media reports of trials and hearings.
Now, how about removing the ridiculous (and non-BORA compliant) rule that people taking notes in the public gallery may be committing contempt unless they get the judge’s approval?
Topics: Contempt of Court, Internet issues, NZ Bill of Rights Act | Comments Off on Twittering in the courtroom
Down, Tiger!
December 12, 2009
Tiger Woods has obtained an injunction against the publication of some private details in the UK. Media lawyer Mark Stephens suggests that it concerns information that’s being freely reported in the US.
If that’s so, the injunction seems futile, and therefore legally unjustifiable.
It also seems strategically dopey. It can only serve to achieve something I had thought impossible: to increase the degree of interest in Woods’ affairs.
It also seems inconsistent with Justice Eady’s decision when Max Mosley sought an injunction against the continuing publications of the sex orgy videos. Justice Eady held that these were already too widely available to justify an injunction. (This makes me wonder whether the injunction actually concerns details that aren’t yet widely available. Or it may be an interim injunction, pending a more fulsome argument in the near future).
Whatever the case, it seems ill-advised. Still, it’s a nice Christmas present for the British media’s campaign to reform the UK’s libel laws, which have already received recent fillips from Index on Censorship, Justice secretary Jack Straw, and Lord Lester.
UPDATE: The injunction (in favour of one “Eldrick Tont Woods”) is here. It relates to images of Woods naked or having sex. I don’t think any such images are yet freely available. In fact, Woods’ lawyers don’t accept that any such photos necessarily exist, and express concern that any that surface may be faked.
It’s not a “super-injunction” so the fact of the injunction is allowed to be discussed. It is a John Doe order, against unspecified defendants. It provides for anyone served with a copy to apply to the court to vary it on 2 days’ notice. Obviously, it only applies in the UK.
Topics: Injunctions, Privacy tort | Comments Off on Down, Tiger!
Good front page lead for tomorrow’s Sunday Star-Times
December 12, 2009
The “high profile businesswoman” who featured in last week’s SST front-page lead because she received interim name suppression on charges of supplying drugs to her dying ex-husband, has now been named. From this report, it seems that her lawyers did not even see fit to contest it further, and the suppression just lapsed.
She’s Colleen Sylvia Hart, director of a swimwear company, and a former beauty queen. Might we be forgiven for wondering whether the latter fact might have had some bearing on the prominence attached to the story? Because it really didn’t tell us anything interesting about name suppression.
Suggested headline: Name suppression shock: laws not so bad after all.
This new development does seem to confirm an interesting comment by Fairfax’s Clive Lind at last week’s R v the Internet seminar: that when the media are writing name suppression stories, they sometimes sidle around the real reason the person is famous, instead describing him or her in other ways. They are trying not to be seen as evading the suppression. That’s canny, but I’m not sure it really worked in this case: she was identified as having an ex-husband who died of cancer earlier this year.
Topics: Name suppression | Comments Off on Good front page lead for tomorrow’s Sunday Star-Times
OIA FYI
December 9, 2009
Speaking of the Law Commission, they’re seeking your views on whether we should be changing our official information laws. Online survey here. You’ll have to be in quickly though: they want the feedback by January [Update: new deadline is 15 February].
Topics: Official Information Act | Comments Off on OIA FYI
Contempt announcement looming
December 9, 2009
At the R v the Internet conference last week Attorney-General Chris Finlayson said there’s a government announcement on the law of contempt looming. A reference to the Law Commission perhaps?
Topics: Contempt of Court | Comments Off on Contempt announcement looming
Perhaps he was deprived of oxygen at birth
November 30, 2009
Here’s the really interesting thing about Stuff’s story about Paul Henry’s comments on Susan Boyle. They’re using a photo that makes Henry appear a bit retarded himself.
If you look at him carefully, you can make it out.
Topics: Media ethics | Comments Off on Perhaps he was deprived of oxygen at birth
There can be only one…
November 29, 2009
Britain is toying with abolishing the so-called “multiple publication rule” for defamation, and switching to a US-style “single publication rule”. Under the multiple publication rule, every different publication (ie newspaper copy sold, internet post downloaded, etc) is a separate publication and can be sued upon. This is particularly a problem for online archives, which effectively become new publications when someone accesses them, perhaps years after the original date of publication. What’s that you say? The limitation period will have expired? No, it’s a fresh publication, so the clock starts again. That’s the rule here at the moment too.
The Ministry of Justice there has published a discussion paper considering the pros and cons and inviting submissions. The single publication rule is actually more complicated than it sounds. When will a slightly modified publication, or one in a different format, be a “new” publication attracting liability? What happens if the person defamed doesn’t find out about it until after the limitation period expires?
The Ministry considers a range of possible reforms. I’m attracted to their minimal solutions: a qualified privilege for online archives, unless the publisher refuses or neglects to update the electronic version, on request, with a correction or reasonable letter of rebuttal. Publishers should also be obliged to flag any archive subject to a defamation claim so that users learn about it.
Topics: Defamation | Comments Off on There can be only one…
Fact Suppression
November 29, 2009
Which is worse: our name suppression laws, or the media’s coverage of them?
Today, the Sunday Star-Times leads with a story headlined “Identity of high profile drug accused kept secret”.
The story is about a familiar one: public figure gets name suppression; cue outrage.
Never mind that this particular defendant’s name was not suppressed between her arrest in April and last week. It could have been reported on any time. If it’s such significant information, perhaps we should be asking questions about the quality of our media. Maybe the headline should have been “Media miss high-profile drug accused story for 7 months”.
And never mind that the name suppression is plainly an interim one, put in place so that a formal application can be made next month.
Never mind that the judge seems to have indicated that the application’s prospects look slim.
(And, incidentally, never mind that the story seems to breach name suppression laws by providing identifying details of the defendant. How many high-profile NZ businesswomen are there whose ex-husband died of terminal cancer this year?)
To be fair, the story contains the information to enable me to make all these points. So does it really justify a front-page lead attacking name suppression laws?
Then there’s this effort, from yesterday’s Weekend Herald: “Government blocks naming of sex act star” (changed online now to the slightly more accurate “Crown blocks naming of sex act star”)
Wow. Really? The government could have allowed the defendant to be named, but prevented it? No. The Solicitor-General merely decided not to appeal.
The subhead says “Crown lawyer fails in attempt to overturn prominent musician’s suppression order”. That’s weird. So there was an appeal? Nope. The story is even equivocal on whether a Crown lawyer recommended an appeal. It eventually says “a senior Crown prosecutor looked into appealing” the order, but was “blocked” by the Solicitor-General.
I’m not sure what exactly happened, but we seem to have strayed a good distance from the headline. (I should point out that that’s largely the fault of the headline-writer not the journo).
The story goes on to claim that “breaching a suppression order is contempt of court”. Wrong. In extreme circumstances it may be, but not usually. (And that error is probably the journalist’s fault, though you would have hoped that the sub would have known some basic contempt law).
Both stories refer to the Law Commission’s recent report on name suppression. The Herald says that the Law Commission “wants internet service providers or content hosts to be subject to a ‘notice and takedown’ order requiring them to immediately remove or block access to material that breaches a court suppression order.” Close, but wrong again. (Did the reporter read the report? It mentions that a “notice-and-takedown procedure” was “one suggestion”, but then recommends something that’s actually broader: a requirement for removal or blocking when the ISP or host “becomes aware” of a suppression order. That doesn’t require a “notice and takedown order”, whatever that might be. And I’m with Ursula Cheer in reading this as not aimed at requiring ISPs to filter anything, as opposed to requiring their customers to take stuff down.)
The best bit is where the story says “even Prime Minister John Key admitted he knew [the entertainer’s] identity.” Can it really be surprising that the person with access to the entire information gathering apparatus of the state and the gossip network of the country’s leading political party knew a piece of information that’s relatively easily discoverable on the internet? But perhaps the operative word in that sentence is “admitted” (though it’s no offence to know the name, and “admitting” that he didn’t know the name would make him look like prize doofus).
It’s hard to escape two impressions:
1. The media don’t really understand how the laws of name suppression and contempt work; and
2. They routinely beat up name suppression stories to paint the suppressions as unjustified.
If they were simply reporting the issue, you’d think that they may have mentioned that the Law Commission found that suppression orders are imposed in about 1 percent of criminal cases. And that not all of them involve suppresson of names (sometimes, it’s just evidence that’s suppressed). And that it includes suppressions imposed automatically to protect sex victims and child witnesses. And that it includes interim orders that lapse by trial time. (In fact, that’s probably the vast bulk of them – ie they’re not permanent suppression orders. Only about 700 a year are permanent). The Commission conveniently put that information in Chapter 1 of its report.
What’s more, instead of playing up the futility of such suppression orders when “everyone knows” who it is, the media might have asked some people, you know, whether they know who it is. When I ask my classes (clued up media and privacy law students) usually, most of them don’t know. That’s not because they couldn’t find out (most of them can find out quite readily if they want) – it’s because they haven’t bothered. The reality is that even when journalists think that “everyone knows” because everyone they know knows, actually lots of people don’t know. I imagine if you’re someone with a name suppression order you could be justified in thinking that there’s a difference between lots of people knowing, and having it appear on the front page of the paper.
Of course, we’re only talking about celebrities here. Of the roughly 700 name suppressions issued last year, how many suppressed identities could you name? So…. still think that the internet is rendering suppression orders pointless? Only for the handful of public figures who apply for them, surely. Then aren’t you sick of the perennial stories that breathlessly ask whether technology has rendered name suppression futile?
I should add that I’m inclined to think that permanent name suppression should almost never be given after someone’s been convicted, so I’ve got serious doubts about whether it’s appropriate in either of these cases. That also happens to be the law, and the way it’s usually applied. Of course, final suppression hasn’t been given for the businesswoman. It was for the entertainer, but there’s at least a plausible case that this was justified, though not one that I’d agree with.
Hint to those anti-suppression types looking for a real angle on the Law Commission report: check out the recommendation that name suppression should be allowed at first instance to anyone who can make an arguable case. This is happening in some courts already, and has long struck me as inconsistent with Court of Appeal authority. It’s probably a necessary concession to busy list court judges. It still requires the defendant to stump up with some evidence and good arguments on second appearance, or the suppression will lapse. But it does considerably widen the initial reach of our suppression laws.
Topics: Contempt of Court, Media ethics, Name suppression, Suppression orders | Comments Off on Fact Suppression
Best headline of the year
November 27, 2009
My nomination: The NZ Herald’s Orchestral man hoovers in the dark
Topics: General, Media ethics | Comments Off on Best headline of the year
Best quote from Sarah Palin’s new book “Going Rogue”
November 25, 2009
If God had not intended for us to eat animals, how come He made them out of meat?
Hat-tip: Slate
Topics: General | Comments Off on Best quote from Sarah Palin’s new book “Going Rogue”
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