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
Upcoming seminar on the Internet and suppression issues
November 10, 2009
The Law Commission, InternetNZ and the Ministry of Justice are hosting a seminar on the Internet and the courts. It will be looking at issues such as:
• Undermining of suppression orders
• Lack of jurisdiction over material hosted outside NZ
• Online discussion of crimes and trials potentially being a contempt of court
• Jurors who “Google”
• How deleting a story doesn’t remove it from caches and syndication feeds
• How do media and Internet publishers find out what actually has been the subject of a suppression order?
• Online criminal offending databases, and the right to a fair trial
• Is education or incarceration needed for Internet publishers who commit contempt?
Event Details:
Date: Thursday, 3 December 2009
Time: 9:00am – 5:00pm, followed by drinks
(registrations open at 8.30am)
Venue: Te Papa Museum of New Zealand, Rangimarie Room
Speakers:
Hon Christopher Finlayson, Attorney-General
David Collins QC, Solicitor- General
Steven Price, Barrister & author of Media Minefield
Robert Lithgow QC
Brent Edwards, Media Committee, EPMU
Warren Young, Law Commission
Judge David Harvey
Sinead Bouchier, Group Online Editor, Fairfax
David Farrar, Editor, Kiwiblog
Frank March, President, Internet New Zealand
Ursula Cheer, Associate Professor, University of Canterbury
If you’re interested, contact:
Campbell Gardiner
InternetNZ
Email: campbell@internetnz.net.nz
Phone: 04 495 2332
Topics: Contempt of Court, Suppression orders | Comments Off on Upcoming seminar on the Internet and suppression issues
Libel games
November 10, 2009
London is known as the libel capital of the world. But I was chatting to Melbourne Law School professor Andrew Kenyon last week, and he said that there is a country whose defamation laws are even more plaintiff-friendly than England’s: Australia.
US-based internet game company Ebony [ooops, it’s Evony, as Russell points out in the comments – I got it right below] seems to be of the same view. It is suing a UK blogger for defamation for criticising it online. It is suing in Australia. Blogger Bruce Everiss has posted the nasty letter on his blog, as well as some prominent links to his criticisms.
How can this be? An Australian High Court decision called Gutnick (the first syllable rhymes with “foot” not “hut”) established that defamation occurs where a publication is downloaded and read, so the Aussie courts have jurisdiction. It doesn’t seem to be contested that the blog has some readers, and the game has some players, in Australia. (I can’t see why the UK courts wouldn’t also have jurisdiction. The same’s also true of the US, but no sensible plaintiff would choose to sue there). It may be that Evony has picked Aussie to make things more awkward for Everiss.
Gutnick provoked much angst and hand-wringing. Everything on the internet is subject to the defamation laws of every country on the planet! Trigger-happy plaintiffs across the globe will flock to the world’s most oppressive legal systems and sue there! This could shut down the internet!
At the time, I doubted this. Still do. For a range of fairly predictable reasons, the rash of lawsuits hasn’t eventuated. Still, libel tourism has always been a problem, and this case may illustrate the continued dangers. Interestingly, the courts in the UK are showing an increasing willingness to reject cases where the publication in the UK is very limited.
Another interesting feature of the case is that Evony is claiming worldwide damages: that is, damages for the harm caused all over the world by Everiss’s blog – not just the harm caused to his reputation among Australian readers. According to Aussie internet law expert Matt Collins, this is a first. The usual practice is for plaintiffs looking to take opportunistic advantage of a favourable jurisdiction is to restrict the claim to reputational damage within the jurisdiction itself. That could be big.
The ABC’s Law Report has a terrific programme on the issues, including interviews with Everiss, Collins, US academic Brian Murchison and Everiss’s Australian lawyer.
Topics: Defamation, Internet issues | Comments Off on Libel games
Just as long as you’re not “impugning Parliament”…
November 6, 2009
Another part of Justice Dobson’s decision in Leigh (discussed below) revolves around the court’s anxiousness not to involve the courts in any impugning of Parliament. He rules that Ms Leigh can’t use Trevor Mallard’s attack on her in Parliament during Question Time to support her case.
There is good authority for this rule. One is the Bill of Rights 1688, which warns courts off calling into question anything that’s said in Parliament. Another is the principle of comity, a Gentlemen’s agreement between Parliament and the Courts not to muscle into each others’ territory. In defamation actions, then, the courts shouldn’t involve themselves in evaluating whether something said in the House is untrue or misleading or inspired by improper motives.
The point Ms Leigh wants to make is that the Briefing Paper (and the later oral briefing) were always likely to be drawn upon by the Minister in the House, and their very public and damaging republication in Parliament was thus a natural and probable consequence of the original (alleged) defamations – a republication for which the briefer should be held responsible, even though the Minister himself can’t be sued for what he said.
The judge said that this would inevitably invite the court to compare what the Minister said with what he was told. True. And if the Minister embellished what he was told, that comparison would inevitably involve critically analysing any defamatory meanings inherent in the Minister’s speech. I’m not sure the second part follows. You don’t have to characterise the embellishment as defamatory or otherwise, just separate it, ie identify which bits effectively repeat what he was told and which bits don’t. But perhaps it’s harder to separate meanings than I think. That may be another point on appeal, I guess.
Anyway, on to the amusing point. Here’s some of what the Minister said in Parliament:
Erin Leigh had repeated competence issues. She had to fix up the piece of work that she was employed to do six times after complaints from senior officials from a number of departments. As a result of that, someone had to come in and fix up that mess. Clare Curren was employed to do that…
Ministers have the right to insist on competent advice. That has been established for a long period of time. When something comes to them six times and is criticised by officials not only from the Ministry for the Environment but from other Government departments, I think that any reasonable chief executive would look for someone who could do the work. When there is someone available to try and fix up the mess who did climate change strategic work for the Australian Liberal Government, I can understand why the Ministry employed her…
[Erin Leigh], who is a sad person, who had six attempts at doing a piece of work, and who was replaced on that job…
It seems the Minister purported to understand the Briefing Paper in the way that the judge said it wasn’t capable of being interpreted. Perhaps the later oral briefing added some more juice to the allegations.
More amusingly: the judge can be read as being pretty scathing about the Minister’s comments. They “may be considered critical and demeaning of Ms Leigh”. The words in the Briefing Paper “do not provide a foundation” for the comments about competence; “nor does it warrant the comment” that Clare Curren had to fix up botched work.
Now, bear in mind that it’s possible that the oral briefing provided better foundation for the comments. And bear in mind that the judge is simply trying to explain why allowing Ms Leigh to use the republication in the House would force the court to evaluate any defamatory meanings in the Minister’s words. And bear in mind that it does seem likely that the Minister stretched what he’d been told to squeeze out maximum political benefit.
But, you know, the difference between this judgment, and another one that may impugn the Minister’s words, rather eludes me.
Topics: Defamation, Parliamentary privilege | Comments Off on Just as long as you’re not “impugning Parliament”…
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