Secret judgment lifts lid on other secret judgment
July 31, 2009
You might have missed it, but last week news emerged that Kirstin Dunne-Powell has obtained an injunction against Tony Veitch to prevent him publicly disclosing private and confidential material about her.
Apparently she filed for the injunction shortly after Veitch pleaded guilty, back in April. That evening, Veitch had told Close Up that he “did some investigating” when he was preparing to defend the charges and “I went and I dug and I went through records and I went through disclosure and you know what… I had a good time and I found stuff.”
What that stuff is, and whether it’s even the stuff that Dunne-Powell is trying to keep under wraps, I don’t know.
She applied for an interim injunction ex parte (ie without giving notice to the defendants) on the basis of infringement of privacy and breach of confidence, and it was granted.
Why didn’t we know about this earlier? Because Justice Lang’s order required even the existence of the proceeding to be kept secret.
I think this is extraordinary. I’m not aware of any other specific case where this has ever happened, except A v Hunt in the High Court, where such an order was made by consent. I’d be very interested to know if anyone else knows of this happening in other cases, particularly in the civil arena. When I asked the Ministry of Justice for statistics on orders like this, the information provided suggested that either this doesn’t happen much – or else that records of it aren’t kept.
Anyway, Fairfax went into battle and got Justice Potter to lift the order suppressing publication of the existence of the lawsuit . I’d like to talk about the Justice Potter’s reasoning, but… you guessed it, the contents of the rest of that decision are suppressed too. Goodness knows why. There’s nothing in it that reveals what the private and confidential material might be. It’s absurd that I can’t publicly discuss the legal reasoning behind the decision to lift the suppression order.
Topics: Breach of confidence, Injunctions, Privacy tort | Comments Off on Secret judgment lifts lid on other secret judgment
Minister in breach of privacy laws?
July 28, 2009
Did Paula Bennett’s release of her critics’ benefit details breach privacy laws? My VUW law school colleague Dr Nicole Moreham thinks it might have.
UPDATE: Paula Bennett was squirming under Mary Wilson’s skewer on Checkpoint last night, simultaneously trying to insist that she had done the right thing in “getting the facts out there” and also that she sympathised with the beneficiaries wouldn’t make a habit of releasing information like this.
Charles Chauvel said on Morning Report this morning that the information released may not have been complete, and may have overstated what the beneficiaries were being paid, which would provide another ground of complaint. (Under Information Privacy Principle 8, information should be checked for accuracy and completeness before use where appropriate. The other issues seem to revolve around potential breaches of IPPs 10 and 11, the use and disclosure of information for a purpose other than that for which it was collected).
Chauvel managed to dodge a fairly chummy question from Sean about whether the usual method was to leak this sort of information to journalists. Colin Espiner reported yesterday that Labour used to do this often. If so, I have to say, that is just as much a breach of the Privacy Act (and potential infringement of the tort) as doing it openly as Paula Bennett did.
Privacy expert John Edwards was also on Morning Report and made a couple of interesting comments. First, he thought that the Privacy Act provisions may be wide enough to permit the Minister’s release, though he didn’t go into detail. He added that it was a separate question whether we might think it was the right thing for her to do. He also wondered just exactly how releasing this personal information really did add to the debate (which, after all, was about the decision to axe tertiary study assistance allowance).
David Farrar makes the case that the information released by the Minister was relevant to the debate. He also argues that the beneficiaries had “opened the door” by themselves putting large amounts of personal information into the public domain. (One legal consequence of this may be that any harm they might suffer from the Minister’s release adds little to the privacy loss they’ve voluntarily surrendered. A complaint under the Privacy Act requires the complainant to show a breach of the Privacy Principles and something else – a degree of particular harm arising from that breach. This seems to be the point made by government about the Privacy Commissioner’s guidelines that support the release. But David seems mostly to be making a sauce-for-the-goose-is-sauce-for-the-gander argument, which isn’t really about minimal-extra-harm. Sauce-for-the-goose isn’t a reason under the Act for releasing private information, though at a big stretch it may support an argument that the beneficiaries impliedly authorised the release of extra details.)
Topics: Privacy Act, Privacy tort | Comments Off on Minister in breach of privacy laws?
Nothing but net?
July 13, 2009
The NZ government and NZ ISPs are quietly working on a form of internet filtering that starts to look a bit like censorship. Read these fascinating analyses.
Topics: Censorship, Internet issues | Comments Off on Nothing but net?
Blogger busted
July 12, 2009
A British detective blogging about police issues under the pseudonym “NightJack” has failed in his attempt to stop the Times from revealing his identity.
The ruling suggests that anonymous bloggers don’t have a reasonable expectation that their identities will be kept private. Well, those who are breaching police regulations in writing their blog, anyway. But much of the reasoning applies to others too. Blogging, says Justice Eady, is essentially a public activity. It doesn’t gibe with the sorts of things that are usually protectable: information about personal relationships, mental or physical health, financial affairs or one’s family or domestic arrangements (or, as Geoffrey Robertson and Andrew Nicol put it: “the cradle, the school and the hospital, the toilet, the bedroom and the grave.”)
There’s a difference between wanting to remain anonymous and having a reasonable expectation of privacy, he ruled. For it to be protected, any reasonable person who comes across the information ought to recognise that it should be treated as confidential.
Even if the blogger did have a reasonable expectation of privacy, continued Eady J, the public interest in his identity outweighed his interest in privacy. He was breaching police regs. This could be seen as wrongdoing by a public servant. He was advancing political criticisms and was highly critical of central and local policing strategies. It’s useful for readers to be able to assess such opinions against knowledge about the identity of the source, said the judge.
In one sense, this can be seen as a triumph for freedom of expression. The paper was allowed to publish. The privacy threshold was set fairly high.
But in another sense, you can see this as a blow to free speech. Privacy and free speech lined up here: it was anonymity that allowed this exercise of free speech. The blog, which provided insights into policing issues that otherwise wouldn’t have been available, and won a prestigious award, is now dead.
The price of free speech can sometimes be measured in … free speech.
Topics: General, Injunctions, Internet issues, Privacy tort | Comments Off on Blogger busted
Not quite…
July 12, 2009
The Herald On Sunday has a story on the Solicitor-General’s investigation of blogs and social networking sites that are commenting on the Clayton Weatherston trial in ways that may prejudice the trial. I’m quoted explaining the reason for the law of contempt, and also as saying it has nothing to do with shutting down freedom of speech. Of course, that’s wrong, and I don’t believe I ever said that. What I remember saying is something like “If you’re worried that this is about shutting down freedom of speech, then bear in mind why we have these rules”.
For the record: to the extent that contempt of court stops us commenting on court cases, it does restrict freedom of speech, and sometimes in ways I think are unjustifiable, though when the laws of contempt are properly and carefully applied, such restrictions are usually justified (in terms of policy and in terms of section 5 of the NZ Bill of Rights Act).
Topics: Contempt of Court, Media ethics | Comments Off on Not quite…
Muckhacking
July 10, 2009
For anyone who’s missed it: a fascinating expose of journalistic practices at News of the World. They hire private investigators to illegally hack public figures’ mobile phones; try to pass it off as a one-off lapse by a rogue journalist if caught out; and if sued pay out enormous sums as hush money in confidential settlements.
Topics: Breach of confidence, Media ethics, Privacy tort | Comments Off on Muckhacking
Laws unto himself
July 7, 2009
Michael Laws has been potted by the Broadcasting Standards Authority again, this time for a tirade against two fire service spokespeople, who had warned the public about the dangers of leaving chips unattended in a frying pan and not having working smoke alarms. This was after a fatal fire, killing four children, had been caused by… chips left unattended in a frying pan with no working smoke alarm nearby.
Just doing their job? Looking to save lives by averting similar tragedies? Not according to Michael Laws, who railed against them for three hours on his talkshow:
They were exploiting the tragedy? How were your ratings that day, Michael?
PS. A cogent response by Laws:
The BSA should be disbanded. There is no need for it. My job’s not to offer balance, it’s to offer strong opinion. I never, ever go too far. I’m not a namby-pamby left-wing liberal commie journalist.
Topics: Broadcasting Standards Authority | Comments Off on Laws unto himself
Defamation stoush looming in London
July 7, 2009
Looks like a humdinger.
Topics: Defamation | Comments Off on Defamation stoush looming in London
Well, sometimes there’s eye-gouging too
July 7, 2009
From Radio NZ this morning:
The National Rugby League has plunged to an embarrassing low with the Sydney Roosters fined $50,000 and their Queensland State of Origin star Nate Miles suspended for six games for defecating in the corridor of a central coast hotel naked and in a drunken stupor. That’s sport.
Topics: General | Comments Off on Well, sometimes there’s eye-gouging too
New BSA member
June 29, 2009
Mary Anne Shanahan has been appointed to replace Diane Musgrave at the BSA. She is a lawyer, but is not being appointed chair (that’s still Jo Morris): she has been appointed to the “community rep” position. (One of the four members is appointed after consultation with broadcasters, and one after consultation with “public interest groups in relation to broadcasting”, and that’s now Shanahan).
The terms of the other members are coming to a close soon, too. I hope the new members will be able to build on what’s been a pretty solid and consistent record from the current crew.
Topics: Broadcasting Standards Authority | Comments Off on New BSA member
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