Back on the block
November 23, 2009
I’m back in town, after a stint overseas. If there’s some juicy speech issue I’ve missed, do drop me a line.
Topics: General | Comments Off on Back on the block
Are you really anonymous online?
November 23, 2009
According to the Pew Internet and American Life Project, 55% of bloggers blog under a pseudonym. Obviously plenty of others use pseudonyms when posting comments about the place.
Some of the posts by bloggers and commenters breach laws such as defamation, privacy, breach of confidence, harrassment and copyright. In most cases, the relevant ISPs have access to identifying information that can blow their cover. If someone wants to sue the anonymous poster, when do the ISPs have to give them up?
This was one of the questions tackled by US Professor Brian Murchison in a paper he presented recently in Sydney and Melbourne. I was brought in to comment on the paper, and used the opportunity to check out the equivalent laws in NZ, Australia and the UK.
The upshot is that it’s relatively hard to force ISPs to turn over their users in the US. In large part, this is because anonymous speech is constitutionally protected. There’s a recognition that if people can’t speak anonymously, fewer will speak at all, and the rest of us will be the poorer for it. To get a court order for the disclosure of the blogger’s identity, plaintiffs in the US have to spell out a technically valid legal claim, and provide evidential support for it. In other words, they have to make out a prima facie case. (It seems this standard is also applied in Canada). In many US states, they also have to show that the harm done to free speech values isn’t disproportionate in the circumstances.
What’s more, it seems clear that the parties have to make some attempt to let the anonymous blogger know that the application has been made so that, some way or other, he or she can put some arguments before the court.
That’s North America. But the law in NZ, Australia and the UK is different. In those places, it seems to be much easier for plaintiffs to get access to the identities of anonymous bloggers and posters. And there’s no requirement that anyone try to contact the bloggers to let them know what’s going on.
The standard in NZ seems to require merely that the plaintiff needs the identity in order to be able to formulate a claim. This is contained in the rules concerning pre-commencement discovery. The courts have specifically said that the plaintiff doesn’t have to show that there’s any likelihood that the claim will succeed (though it must be more than “speculative”). That means plaintiffs also need to show that they can’t get the information elsewhere, and that the ISP probably has it. They’ll also have to meet the ISP’s expenses.
Ultimately, this is a discretion, and there is a hint in the case law that if material is confidential, the courts will take this into account. There’s room for free speech arguments to be made here, but it’s not clear how the courts will treat them. The wording of the rule, and the existing case law, indicate that the threshold is a low one.
Same in Australia. There, the courts have held that you need to show an arguable case, though not a prima facie one. The test is a bit circular: is your claim sufficient to make it proper in the interests of justice that preliminary discovery be ordered? When will it be in the interests of justice to order the disclosure? When the plaintiff won’t have an “effective remedy” without it. It can be argued that there’s no need to order the disclosure of a blogger’s identity when there’s someone else to sue (the ISP, perhaps, or the person who operates the website). But that argument won’t work if the ISP or website operator has a defence that wouldn’t be available to the blogger. If that’s the case, the plaintiff can fairly say that the blogger/poster should be answering the case themselves.
I’m told that such applications are not uncommon in Australia, though they don’t get reported. They tend to succeed.
There is some reported case law in the UK, and it follows similar lines. The 1974 Norwich Pharmacal case is the leading precedent. Though it wasn’t about the internet, later ISP cases have drawn on it. Like Australia, there’s an arguable case threshold, not a prima facie one. The courts will take into account the apparent strength of the case, along with things like the gravity of the allegations, the extent of the alleged harm, and whether there’s a confidentiality policy. But the orders do not seem to be difficult to get.
What’s striking about the UK cases is the dearth of discussion of freedom of expression issues. Note that free speech and privacy interests rather line up together: privacy gives people the space they need to exercise their freedom of speech. The US takes speech issues more seriously, and has ended up with a test that’s more protective of online anonymity.
I simply make that observation. I’m not sure I support the US position. Plenty of online speech is so nasty and harmful that speakers shouldn’t be able to shelter behind their anonymity, I think. And the US rather tends to underprotect interests of privacy and confidentiality, which don’t feature explicitly in the US Bill of Rights. But we really ought to think through all the arguments before deciding where to set the threshold, and the US does that better than us. And we already have remedies that aren’t available in the US – an ISP put on notice that it’s hosting defamatory material (and presumably, material that breaches privacy or confidentiality) is very probably liable for it in NZ, Australia and the UK, unless it promptly organises its removal. Most US courts have interpreted US safe harbour laws into give ISPs immunity for material even when they know it’s defamatory.
Some would argue that the best remedy in these situations is “more speech”. Go online, and answer back. That’s part of the culture of the net.
Professor Murchison made me realise that this answer isn’t as good as it sounds. For one thing, there are some smears that you can’t really answer back. What are you going to do – go online and say “I’m not incompetent and paranoid” or “I’m not a slut and a skank”? And if you do want to answer back, you may find yourself liable for defamation, infringement of privacy or breach of confidence yourself if you’re not careful with what you say.
Sometimes, the only real way to answer back is to sue…
Topics: Defamation, Internet issues, NZ Bill of Rights Act, Privacy Act | Comments Off on Are you really anonymous online?
Wrong turn by bus campaigners
November 22, 2009
You know what appals me most about the save-Manners-mall-from-buses campaign’s decision to hire students to front up for a protest march?
It’s not the sheer stupidity of the tactic, which was surely always likely to bite them in the bum. It’s not that they’ve completely undone their own cause, illustrating how little support they can muster. It’s not their laughable attempt to blow it off by saying it’s the same as GoWellington putting posters on their buses. It’s not even the hypocrisy: imagine how they would have howled if the Council had done the same thing, or a company or lobby group they opposed had tried to pay supporters to boost their image.
It’s that they’ve undermined the credibility of popular protest generally. It doesn’t take too much of this before we’ll all be wondering, every time we see a street demonstration, whether the protesters are just paid lackeys. Or if we’re thinking of joining in, whether we want to lend our name to an enterprise where some of the grass roots may have just been bought like pot plants from a Palmers Garden Centre.
These tactics are all too similar to the loathsome establishment of front groups for lobby groups like the tobacco industry, conjured up by artful PR campaigners to look like genuine popular campaigns, which in reality have almost no community support at all.
They should fess up, admit this was a terrible idea, and vow on their mothers’ graves not to ever do it again.
Topics: Protest speech | Comments Off on Wrong turn by bus campaigners
ReputationDefenders.com
November 20, 2009
This is an interesting outfit that looks to use (mostly non-lawyer-based) methods to search out client’s online reputations and help them beat back any “inaccurate, inappropriate, hurtful and slanderous information”. Dunno if they’re any good, but evidently Dr Phil thinks they are.
Topics: Defamation | Comments Off on ReputationDefenders.com
A prickly issue
November 19, 2009
Cactus Kate is up in arms about some editorial guidelines she says APN management have been circulating to reporters, including those at the NZ Herald.
Her most alarming claim by far is that:
The thrust is all to do with NO budget allocated for legal action or defence so the editors have basically been told not to run stories that could cause legal action or are risky in other ways.
This doesn’t seem to have been part of the leaked memo. Herald editor Tim Murphy adamantly denies it. Where did it come from? CK says:
I was informed of this specific edict to Editors that was made some months ago in conjunction with circulation of that which I further describe below.
Seems a bit vague, but I guess she’s got to protect her source. (Or sources? Did they all say this? Did they have it first hand? Who from?)
Now, I have no inside knowledge and have no idea what the truth is. But it doesn’t strike me as very likely. A directive from management to keep legal costs down in hard times, together with a reminder of some key bits of media law advice? Sure. It’s probably going on in many media organisations. But an order to cut the budget to zero? What if they get a legal threat after something’s published? Are they supposed to ignore it? What if they slip up? Defamation threats often emerge from stories that no-one had any idea were dangerous. It’s part of the business. Who knew there were two Artemus Joneses?
It must be obvious to any major media organisation that they can’t operate on a zero legal budget.
As for the memo itself, call me a Russellite if you will, but I can’t see anything in the guidelines that isn’t entirely standard. Even senior journalists can do with a reminder about it from time to time. CK wants to know why it was being circulated at that particular time. I don’t know. Maybe they made some costly mistakes and wanted to minimise the chances they would happen again. Maybe they were too cheap to run some training this year. Maybe someone thought it was a good pre-emptive cost strategy. None of the reasons I can think of seem particularly worrying.
Still, there has been some handwringing about this paragraph:
There are categories of people who are more inclined to sue if they are the subject of adverse publications, so particular care should be taken in reporting allegations of misconduct against lawyers, doctors, judges, other professionals, politicians, critics and wealthy businessmen/women.
Rob Hosking says he’s never heard any of his bosses give this advice. NBR’s David Cohen wonders:
Huh? Is it possible that one of the region’s media giants — and by extension its major New Zealand title — is observing different journalistic standards depending on the choice of news subject?
This strikes me as a bit naive. Isn’t it just common sense to take particular care when you know someone’s likely to sue you?
That doesn’t mean the story shouldn’t be written, and the memo doesn’t seem to suggest that. It does mean that a bit more care might be taken over key passages to ensure that an honest opinion defence is available, for example, or the story might be held for a day for a call to be returned to strengthen a qualified privilege defence.
For what it’s worth, in Media Minefield I include exactly this advice, recommending particular care when writing about people most likely to sue:
politicians, business people, lawyers, celebrities, sports stars, the police, and journalists.
Topics: Defamation, Media ethics | Comments Off on A prickly issue
Dueling and defamation
November 11, 2009
Before defamation lawsuits, there was dueling.
Apparently, in 17th and 18th Century Europe it was regarded as a civilised way of protecting one’s honour, “since the alternatives were sneak attacks and brawls” writes Daniel Solove in his book The Future of Reputation.
Still, thousands of people were killed in them. What I hadn’t realised was the degree to which dueling was encrusted with detailed rituals of notice, negotiation and representation. Here’s Solove:
A duel could be provoked by insult, defamation or gossip. Even the slightest of insults could spark a duel. An elaborate set of rules, the “code duello”, governed the practice. The offended person would issue the challenge, which involved the use of swords or pistols. Before a duel was fought, the parties exchanged letters and engaged in negotiations to see whether a reconciliation could be achieved. Each party had a “second”, who functioned as his agent throughout the process. In many cases, the parties reached a settlement, with the offender admitting, for example, that a rumour was spurious without conceding that he had deliberately spread a lie. Skillful seconds were adept at helping the parties reconcile, and one contemporary observer even remarked that “nine duels out of ten, if not ninety-nine out of a hundred, orginate in want of experience in the seconds.” “It is not the sword or the pistol that kills”, another stated, “but the seconds”.
I wonder who the modern-day equivalent of seconds could be…?
Topics: Defamation | Comments Off on Dueling and defamation
Warning for defamation defendants
November 11, 2009
The job of the defendant in a defamation jury trial (often the media) is to convince the jury that ordinary reasonable people will not think less of the plaintiff after being exposed to the material alleged to be defamatory.
You might think it will probably be enough to convince the jurors themselves, who no doubt regard themselves as ordinary reasonable people, that the material wasn’t defamatory.
And you’d be wrong.
Problem is, jurors tend to think that other people will be more affected and influenced by the material than them. This is known as the third-person effect. It applies in advertising, too. “Oh, I’m not influenced by those ads,” we tend to think, “but others might well be”. Turns out, this effect is amplified when the source of the defamatory statement has an axe to grind against the plaintiff.
This makes it tougher for the media to make the case that a particular article doesn’t have a defamatory meaning, or wasn’t very harmful.
Research into the third-person effect has been written up in the Public Opinion Quarterly (abstract here) and more recently, in the Media and Arts Law Review in Australia (abstract here)
Topics: Defamation | Comments Off on Warning for defamation defendants
Trivia question for privacy law geeks
November 11, 2009
No doubt you’ve heard of the famous 1890 Harvard Law Review article “The Right to Privacy” by Samuel Warren and Louis Brandeis, which paved the way for the privacy tort in the US and has been described as the “most influential law review article of all”.
But do you know what they wrote before that?
Turns out that their first two collaborative efforts were entitled “The Watuppa Pond Cases” and “The Law of Ponds”. They have been less influential.
Topics: Privacy tort | Comments Off on Trivia question for privacy law geeks
Price’s Journalistic Aphorism #21
November 11, 2009
The news should be made as interesting as possible, but no more.
(With apologies to Einstein, who’s often quoted as the source for the saying that “Everything should be made as simple as possible, but no simpler”. Ironically, it seems he didn’t say that at all, but something much less simple: “It can scarcely be denied that the supreme goal of all theory is to make the irreducible basic elements as simple and as few as possible without having to surrender the adequate representation of a single datum of experience.”)
Topics: Media ethics | Comments Off on Price’s Journalistic Aphorism #21
Privacy and reputation
November 11, 2009
Two interesting developments in the tug-of-war between privacy and defamation.
The first comes in a UK injunction case. Justice Tugendhat granted an injunction to a celebrity of some sort (or at least, someone with “some public reputation”) restraining the publication of information about his encounters at his home with a prostitute some ten years ago. (It seems she essentially blackmailed him about it a couple of years later, and he paid her off to keep mum. Looks like she’s back for another round. Of money, that is.)
The injunction is an interim one. Justice Tugendhat is a the author of a leading text on privacy and confidentiality, and didn’t seem troubled by the apparent extension of the dicta in Theakston about transitory arrangements in brothels not really being the stuff of reasonable expectations of privacy. (To be fair, as he points out, Theakston didn’t involve an encounter at home, and there was no written agreement there).
What did trouble him, though, was that he might be permitting the plaintiff to make an end-run around the rules that make it very difficult to get an injunction in defamation cases. Some of the material might be defamatory, he said. And some of it might be true…
I am concerned as to whether the claim in this case is properly to be regarded as a claim to protect the applicant’s privacy, or whether it is a claim to protect his reputation.
I find this reasoning weird. Almost all privacy cases involve defamatory material – in the sense that people are likely to think less of the plaintiff if they hear about it. That’s usually why the plaintiff wants them left private. That means, too, that almost all privacy cases are about reputation. And that they’re usually about things that are true. But that doesn’t mean that they’re about defamation.
This case seems peculiarly not about defamation. According to Justice Tugendhat’s logic, pretty much every privacy case will fall under the rule in Bonnard v Perryman that injunctions won’t be granted in defamation cases if the defendant is going to plead truth.
I think there certainly are cases where a plaintiff is really trying to circumvent Bonnard and set the case up in privacy or confidentiality when in reality it’s a defamation case. But asking whether the case is “really about reputation” doesn’t distinguish between the two. I’m inclined to think that asking “is this really about the plaintiff trying to stop the publication of information that’s about his reputation and false?” is nearer the mark.
Justice Tugendhat decides that it looks like a genuine privacy case and grants the interim injunction, but leaves it open to debate at a later stage in the proceedings, which seems like a good outcome.
The case comes shortly after the European Court of Human Rights has really nailed its colours to the mast on whether privacy protects reputation. It does. That’s so, even though the provision in the European Convention on Human Rights is all about “respect for private and family life, home and correspondence”.
Now, I think it’s a bit of a stretch to have that cover a general right to reputation. Reputation is, after all, explicitly mentioned in Article 10, but not in Article 8, which deals with privacy. Here’s their logic, from paras 33 and 35:
…the Court reiterates that “private life” extends to aspects relating to personal identity, such as a person’s name or picture, and furthermore includes a person’s physical and psychological integrity; the guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings. There is therefore a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life”…
The Court considers that a person’s reputation, even if that person is criticised in the context of a public debate, forms part of his or her personal identity and psychological integrity and therefore also falls within the scope of his or her “private life”.
The Court went on to hold that the State has a positive obligation to protect reputation, including through the courts. It concluded that the applicant’s “privacy” rights had been violated by the courts when they did not uphold his defamation claim. (I won’t go into the facts, but will note that two judges dissented, arguing powerfully, I think, that the defamation claim was rightly rejected. Still, both judges accepted that the privacy clause protects reputation).
My overall impression is that this is not a privacy issue, and trying to shoehorn reputation into privacy this way seems wrong.
What does this mean for NZ law? Not much, I think. It may affect the development of UK law and trickle into our jurisprudence that way. But our Bill of Rights contains no express privacy clause.
Topics: Defamation, Injunctions, Internet issues, NZ Bill of Rights Act, Privacy tort | Comments Off on Privacy and reputation
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