Reading the tealeaves
June 9, 2009
I’ve just been watching argument in the Supreme Court in the Simunovich defamation case.
For those interested in the fairly arcane (but nevertheless quite significant) issues at stake, my sense is that the media don’t have the upper hand. The Supreme Court judges do not seem attracted to the idea that the media should be able to use information gathered on a privileged occasion (for example, fair and accurate reports of Parliament, or a judgment) to support a plea of truth, when the allegation is what’s called a “tier 2” imputation (that is, an allegation that there are reasonable grounds to believe that the plaintiff has done something disreputable). Nor did they seem very open to the alternative argument that the repetition rule doesn’t apply in these circumstances, or that some exception should be made to it, though they weren’t quite as hostile to this contention.
The case continues tomorrow.
Topics: Defamation | Comments Off on Reading the tealeaves
Karla Cardno’s dad suppression case: not much of an issue
June 9, 2009
You might have caught me on TV3 last night explaining that it was worth a shot for Karla Cardno’s dad and his new wife to seek name suppression for their sex charges on the grounds that they’re going to get extra publicity given the notoriety of those past (but unconnected) events. If you’re het up that I seemed to be supporting that application, bear in mind that, in the bits of the interview TV3 didn’t broadcast, I said:
— I wasn’t at all surprised that the application failed since the courts have said that the risk of publicity goes with being a defendant, and even the likelihood of particular media attention won’t usually be sufficient to justify name suppression;
— The defendants had given evidence of adverse health effects, which is a stronger ground, but even so, the Court of Appeal said it wasn’t sufficient to overcome the presumption of open justice;
— The Court pointed out that there was no suggestion that the fairness of their trial would be prejudiced;
— The test is whether the harm caused by publicity would be out of all proportion to the gravity of the alleged offences, and these were serious charges that the public had a strong interest in;
— The higher courts generally take a fairly hard line on suppression issues;
— Overall, this struck me as a fairly routine case and an unremarkable decision by the Court of Appeal. Sure, the notoriety argument was worth a shot, but it was always unlikely to succeed.
Topics: Media ethics, Name suppression | Comments Off on Karla Cardno’s dad suppression case: not much of an issue
Oops?
June 7, 2009
Did this Saturday’s NZ Herald, in publishing the information suppressed in the Bain trial, overlook the fact that the Supreme Court had recalled its judgment last month to make it clear that the publication restriction continued until further order of the court?
The story doesn’t seem to be on the Herald’s website any more.
The recall was probably to guard against the possibility that Bain may have been found guilty, and successfully appealed, so that there may have been yet another trial. So there may well not have been much harm done.
[PS. I see that three Court of Appeal decisions on the Bain case, from 31 October 2008, 24 December 2008 and 20 January 2009 have been posted on the Courts of NZ website…]
[PPS. It seems that the NZ Herald was breaching a suppression order in running that story (though the suppression order has now been rescinded), but the Supreme Court had nothing to do with this one. It’s evidence that was suppressed by the Court of Appeal and not appealed. As I understand it, it wasn’t suppressed for a time, then as the verdict loomed, the suppression order was put in place in case Bain lost and wanted to appeal, but the NZ Herald wasn’t notified.]
Topics: Suppression orders | Comments Off on Oops?
New High Court search rules
June 4, 2009
There are new rules about access to court documents (including exhibits), both criminal and civil. They are more detailed and to some extent more liberal than the old ones. They open up a range of documents subject to the overriding power of a judge to seal them. Some documents, however, can only be searched with the leave of the judge, such as interviews with sex complainants and mental health patients.
There’s a welcome movement in particular toward greater openness while the matter is before the courts, when it’s most likely to be of public interest. Both sets of rules outline a (largely informal) application process, and set out the factors to be considered where leave is required. These generally reflect recent developments in the case law:
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the right of the defendant to a fair hearing [criminal cases only, of course]:
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the orderly and fair administration of justice:
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the protection of confidentiality, privacy interests (including those of children and other vulnerable members of the community), and any privilege held by, or available to, any person:
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the principle of open justice, namely, encouraging fair and accurate reporting of, and comment on, trials and decisions:
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the freedom to seek, receive, and impart information:
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whether a document to which the application or request relates is subject to any restriction…
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any other matter that the Judge, other judicial officer, or Registrar thinks just.
I think these rules are a great improvement, but they don’t go as far as the Law Commission suggested.
Topics: Court records, General | Comments Off on New High Court search rules
The case against defamation
June 4, 2009
Nicky Hager explains how he thinks hardball Aussie political consultant Lynton Crosby (of Crosby Textor fame) used defamation laws try to bully him for criticisms he made during a radio interview. You’ll remember that Nicky’s book The Hollow Men contained some pretty ugly revelations about the advice Crosby Textor gave to the National Party at the last election. They didn’t sue him for that. But Crosby came after him for making similar comments on Radio NZ later on. I think this really should be worrying for anyone involved in covering politics, or other matters of national importance. (Disclosure: I act for Nicky).
Nicky describes his experiences at greater length here.
Topics: Defamation | Comments Off on The case against defamation
Northern Exposé
May 31, 2009
From the third season of Northern Exposure:
Maurice Minnifield (local magnate and Cicely’s newspaper proprietor): You give ’em what they want. That’s the role of journalism.
Joel Fleishman: No, Maurice, that’s the role of professional wrestling.
Topics: General, Media ethics | Comments Off on Northern Exposé
Pannick time!
May 29, 2009
David Pannick QC agrees with me (though there may be some chance that he does not read this blog and reached his conclusion independently) that the rules about interviewing jurors are too harsh.
Topics: Contempt of Court | Comments Off on Pannick time!
Queer censorship rules
May 29, 2009
Noticed that you can’t find Queer as Folk at your local video shop? Actually, you can’t find any of these titles either. As Andrew Armitage explains, it’s because it’s too expensive to get them classified. Even if they’ve been on TV. Even if you could order them through Amazon.com. Even if they’ve been in the movie theatres (particularly if the DVD has extra material on it).
Our classification regime is unwieldy and unfair. It’s especially harsh on film-lovers with niche tastes. It’s also hurtling towards obscolecence as media formats converge. It’s about time the government yanked it into this century.
Topics: Censorship | Comments Off on Queer censorship rules
Your booze leader
May 27, 2009
The Guardian is reporting that media workers are the biggest lushs in England.
Topics: General | Comments Off on Your booze leader
Media law tsunami in Canada
May 26, 2009
A wave of important media law cases is hitting the Canadian Supreme Court. One’s on qualified privilege and I’ve discussed it here. The others include cases on confidential sources and bail hearing publication bans.
I’m inclined to think that the guidance on free speech issues from the Canadian SC tends to be the most thoughtful, useful and relevant to NZ (though they’re a bit behind the play on qualified privilege…), so I’m geekily excited by these developments. Sad, I know.
(Hat-tip: Andrew Geddis, though I’m not sure if he’s geekily excited).
Topics: Confidential sources, Contempt of Court, Defamation, General | Comments Off on Media law tsunami in Canada
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