Geddis on Crow
March 13, 2009
My mate Andrew Geddis has been sparring with me a bit in the comments section on this blog, and is always good value. In this thoughtful post at Pundit, Andrew rightly takes on the Auckland City Council for trying to do an end-run around the NZ Bill of Rights Act in its attempt to squelch porn king Steve Crow’s Boobs on Bikes parade. He hits on a theme that pervades this blog, and lies at the heart of the BORA: any restrictions on freedom of expression must be demonstrably justified, and that test is all the more important when the views being tackled are unpopular.
Topics: NZ Bill of Rights Act | Comments Off on Geddis on Crow
Sentences for sale
March 12, 2009
Private prisons in the US have bribed judges to lock up more offenders so they can receive more money for incarcerating them. Only in the US? Or should it be part of the debate here about privatising prisons?
[Update: I see TV One News did raise this point in a report last night.]
Topics: General | Comments Off on Sentences for sale
OK! magazine fakes front cover photo
March 12, 2009
More grist for those worried about digital manipulation. OK! has a front page photo of Cheryl Cole with her arm around Victoria Beckham (click on the magnifying glass at bottom right for the whole photo) to illustrate its story about the two making up. But it’s a montage. They weren’t even at the same event. Victoria’s dress has also been changed from black to red. Another sliver of credibility lost to the media.
Topics: Media ethics | Comments Off on OK! magazine fakes front cover photo
ECHR upholds ongoing defamation liability for internet
March 12, 2009
One of the rules of defamation law is that each separate publication of something that’s defamatory gives rise to separate liability. So each time someone downloads a defamatory article, there’s a fresh publication and a new potential lawsuit. You can see how this might give rise to some headaches for news archives.
However, an attempt to convince the European Court of Human Rights that this ongoing liability for archived material is a disproportionate restriction on free speech has failed. The ECHR noted that internet archives are useful and important, but indicated that they may be controlled more strictly than the initial news stories, since publication is usually more pressing when they are first published. In other words, if you’re involved in archiving, you don’t get cut as much slack as those in the more urgent business of news gathering.
Of course, many news organisations do both. This case tells them that they probably can’t just dump the stories in the archives and expect to receive the same protection that might be received for the initial publication – particularly when they are alerted to a problem with the story.
The Court said it’s not unduly onerous to expect the operators of such archives to attach a note to archived material alerting readers that it is subject to a defamation suit – this will usually be sufficient to prevent liability. The judges criticised the Times for the length of time the paper took to attach a note to the archived news story.
The court noted that the Times was sued pretty promptly for both the initial defamation in the hard copy of the paper and the later (identical) defamation-by-download, so it hadn’t been prejudiced by delay. But it added:
while an aggrieved applicant must be afforded a real opportunity to vindicate his right to reputation, libel proceedings brought against a newspaper after a significant lapse of time may well, in the absence of exceptional circumstances, give rise to a disproportionate interference with press freedom…
So there may yet be limits to ongoing liability for archives.
Topics: Defamation, Internet issues | Comments Off on ECHR upholds ongoing defamation liability for internet
New draft broadcasting code for TV
March 9, 2009
The BSA has released a new draft of the free-to-air TV code for public consultation. The proposed changes are conveniently set out alongside the existing provisions.
The changes that leap out at me:
1. Balance is renamed “Controversial issues – viewpoints”. But the substance remains the same (it has to: it’s in the Broadcasting Act). However, the new guidelines point to an expansion of the BSA’s trend toward taking a contextual approach to balance.
2. Impartiality is dropped from the guidelines for balance, and from the accuracy standard. It pops up in the accuracy guidelines – but only for “news”. It seems current affairs and factual programmes need no longer be impartial.
3. The changes to the Accuracy standard partly follow the changes to the radio code and require only that reasonable care to be taken with the accuracy of material points of fact. The requirement that fact and comment be clearly distinguishable has been dropped, but it’s spelled out that the accuracy standard only applies to “unqualified statements of fact” and not “analysis, comment or opinion”. Broadcasters have to correct “material errors” rather than “significant” ones, though it’s not clear what the difference is.
4. The radio code standard for accuracy makes it clear that a misleading broadcast may be inaccurate. (For example, when information is omitted that puts a whole different complexion on an issue, the broadcast might be found inaccurate because it’s misleading even though there’s nothing literally false. The BSA has always taken this approach, regardless of the wording of the code. It seems sensible for this to be reflected in the standard). For some reason, in the draft TV code the reference to “misleading” is in the guidelines, but not the standard itself.
5. The privacy principles seem to be unchanged.
6. Under fairness, the guideline that people (especially children) not be “exploited, humiliated or unnecessarily identified” has morphed into “exploited, humiliated or unfairly identified”. Seems fair enough to me.
7. Discriminiation and denigration get their own heading, instead of being lumped under fairness. The threshold for a successful complaint (always pretty high) seems to have been lifted: to breach the standard, a broadcaster would have to “encourage discrimination/denigration” instead of merely portraying persons in a manner that encourages discrimination/denigration.
Topics: Broadcasting Standards Authority | Comments Off on New draft broadcasting code for TV
Law Commission paper on privacy
March 9, 2009
The Law Commission has released yet another paper on privacy. “These are big issues and they are hard,” says Commission president Sir Geoffrey Palmer. 300 pages big and hard, in fact, building on 2008’s 222-page paper “Privacy: concepts and issues” (discussed here), 2007’s 76-page “A conceptual approach to privacy” by Mark Hickford, and that’s not counting the Commission’s ongoing work on the Privacy Act and public registers. It seems the issues are getting bigger and harder by the year. Methinks the Commission better hurry up and resolve these issues before they become so big and hard that they are intractable.
Here are the key issues, according to the Commission’s press release:
- Is there a value in a tort of invasion of privacy by publicity given to private facts? If so, should it be left to the common law?
- Are any new criminal offences needed to deal with specific types of intrusion?
- Should there be a tort of intrusion into a person’s seclusion? If so, should its development be left to the common law or should it be introduced by statute?
- Should closed circuit television surveillance be regulated?
- Should there be any civil or criminal liability for certain uses of surveillance devices when they are used outside the law enforcement arena?
- Are any reforms to the law needed to deal with voyeurism not involving the use of recording devices, including reform of the “peeping and peering” offence?
- Should the media be subject to any greater or lesser legal restrictions concerning privacy intrusions than other members of the public?
The Commission is seeking feedback by 29 May.
Topics: Privacy tort | Comments Off on Law Commission paper on privacy
Police search warrants against the media
March 3, 2009
In light of the police’s impending execution of a search warrant on the offices of the Herald on Sunday over Holmes’s (apparently) recorded interview with Tony Veitch, I thought y’all might be interested in the Court of Appeal’s guidelines for the issue of such warrants (from TVNZ v Attorney-General [1995] 2 NZLR 641):
One guideline, in a case where there is no suggestion that the media organisation has committed any offence and it has done no more than record events which may include the commission of offences by others, is that the intrusive procedure of a search warrant should not be used for trivial or truly minor cases. [The Court felt that protesters overcoming naval personnel to replace the flag at Waitangi treaty grounds was sufficiently serious, particularly as they were “calculated insults to the constitution of New Zealand”].
…
A second guideline is that, as far as practicable, a warrant should not be granted or executed so as to impair the public dissemination of news… in the present case the company appears to have already broadcast what it wanted from the tapes in its news programmes.
…
A third guideline is that only in exceptional circumstances where it is truly essential in the interests of justice should a warrant be granted or executed if there is a substantial risk that it will result in the “drying-up” of confidential sources of information for the media. In this case again there appears to be no risk of that kind. The tapes simply recorded public events.
A fourth guideline is that a warrant should be executed considerately and so as to cause the least practicable disruption to the business of the media organisation. In this instance, had the appellant so wished it might have been possible for the police to view the tapes at the studio and to take away only those found to be of significant evidential value…
A fifth guideline for the grant of a warrant relates to the relative importance of the tapes for the purposes of a prosecution. [A warrant may be issued] “when it is likely that the film will have a direct and important place in the determination of the issues before the Court.” It must be remembered that the evidential value of tapes may because of their accuracy exceed that of accounts by eye witnesses. In a confused situation involving the actions of many members of a crowd the … recording may be fairer to all concerned than eyewitness evidence. While the availability of other evidence is a factor for consideration, the superior reliability of a film will often outweigh it.
Can we be forgiven for wondering how helpful Holmes’s tape is likely be, especially given how long the police seem to have waited to make this application. Besides, would Veitch and Holmes have really allowed anything incriminating to be on that tape?
Topics: Journalism and criminal law, Search warrants | Comments Off on Police search warrants against the media
Another Bain beat-up
March 2, 2009
I think the SST overplayed its lead story on the Bain jury. The headline:
David Bain murder retrial: Jurors must be tested for bias – expert
The first two paras:
A TOP law professor has called for tougher testing of jurors to minimise the risk of prejudice in the retrial of David Bain on five murder charges.
His comments come as one of New Zealand’s leading jury researchers says it is impossible to be sure that pre-trial publicity about Bain’s case will have no effect on a jury’s verdict. The retrial is set to start in the High Court in Christchurch on Friday.
What’s a “top” law professor? (Scott Optican is an associate professor, actually, and I’ve got a lot of time for him, but I don’t have any idea why he’s toppier than any other senior academics).
More importantly, Optican never says in the article that Bain jurors “must” be tested, which is surely the operative part of that headline. He thinks it might be a good idea, and it’s a chance for the lawyers involved to made an application that’s never been granted before in NZ. But that’s not a “must”, which suggests that the trial would necessarily be unfair without it.
And on that point, of course, we have Yvette Tinsley (a colleague of mine, rightly described as one of NZ’s leading jury researchers) saying she can’t rule out possible jury prejudice caused by pre-trial publicity. Well, that’s not really the thrust of what she says. She says her research found little evidence of such prejudice and concluded that any prejudice was likely to be minimised by the process of jury deliberation. Of course, no-one can ever rule out the possibility of prejudice, though, she points out.
Was this really a front-page lead?
Topics: Contempt of Court, General, Media ethics | Comments Off on Another Bain beat-up
A copyright anomaly
February 27, 2009
Here’s a quirk in the Copyright Act that you may not be aware of: TV stations can use news photographs (even if they don’t have copyright) under the fair dealing defence, but newspapers can’t. I suppose this is because a broadcast or film is usually viewed fleetingly, so does not create a permanent record of the same nature as a newspaper. But I’m not sure that difference really justifies the different treatment of photographic copyright between different media.
Topics: Copyright | Comments Off on A copyright anomaly
A post on 92A that David Farrar probably won’t link to
February 24, 2009
You may have noticed that I didn’t join the blackout in protest against section 92A.
It’s not that I don’t have concerns about the law. As you can see from the post below, it doesn’t seem to me that it’s been well thought through. I’m open to the idea that it goes too far.
But “guilt by accusation”? There’s nothing in the law that requires that. Here’s section 92A:
92A Internet service provider must have policy for terminating accounts of repeat infringers
(1) An Internet service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet service provider of a repeat infringer.
(2) In subsection (1), repeat infringer means a person who repeatedly infringes the copyright in a work by using 1 or more of the Internet services of the Internet service provider to do a restricted act without the consent of the copyright owner.
An ISP that simply terminated on the basis of two or three allegations would surely not be implementing its policy reasonably, and termination would be inappropriate. True, this provision is awfully vague (which may also raise Bill of Rights issues, actually). Yes, it gives quite a lot of wiggle room to ISPs (though they are not likely to try to implement it against their clients’ interests). But it does not require – or even permit – guilt by mere accusation. [Dean Knight has made the same point].
Some people are getting het up about the fact that an account may be terminated without the protections (and standards of evidence) available in a court. But is that so odd? Your phone company can cut you off for breaching its policies. Your employer can fire you for breaching policies. Your ISP probably has other policies reflected in its contract with you allowing it to terminate your account if you peddle kiddie porn, for example. If push comes to shove, you can take the issue to court. As you can do under section 92A. But the development of policies (even mandatory ones) that have real consequences for breach without any necessary court involvement is nothing new.
Throw in the new Telecommunication Carriers’ Forum draft on how this law is likely to work in practice and we move even further away from guilt by accusation. What this draft gives us is “innocence by denial”. Under this plan, a copyright holder who asserts breach triggers an “education notice” to the user, who can simply deny the breach by issuing a counter-notice and no further action needs to be taken by the ISP. Really. There is a provision in there saying that ISPs can, in their discretion, decide to take action if they think the denial process is being abused. But how many ISPs are going to do that?
The draft is worse than that, from the copyright holders’ point of view. A copyright holder has to pay a fee before the ISP even has to look into the allegation. So if a copyright holder can provide crystal clear evidence that a user is downloading files illegally, the ISP won’t even glance at it unless the holder can stump up with some dosh. I have some sympathy with the ISPs’ desire for cost recovery, but I’m not sure that any policy that allowed an ISP to overlook incontrovertible proof just because someone hasn’t paid it some money could be regarded as reasonable. (I’m not saying proof will always be incontravertible, I’m just mentioning the easy case for the purposes of argument).
Actually, that raises another question: where the hell do the copyright holders get their evidence that some particular person is infringing? Beats me. But I do note that the draft puts that evidential threshold pretty high.
Does this draft really comply with section 92A?
The copyright holders are proposing a slightly amended system – in which they get to look at the users’ reasons for denying infringement via their own resolution process, and if they end up still thinking there’s been a breach, the ISP has to accept that. But that doesn’t seem fair either [and, as someone has pointed out in the comments section, that comes closer to guilt by accusation].
I think any fair and reasonable system must involve a quick and fairly cheap disputes resolution body. And I note that we already have a Copyright Tribunal set up and functioning, though for some bizarre reason, all it does is rule on issues concerning licensing systems. I can’t help thinking that it would be a good idea to broaden its jurisdiction to include ISP copyright issues, set up a lower-tier fast-track mechanism for resolving the 98% of infringement claims that are slam dunks, and refer the tougher ones (eg where there’s a fair dealing issue) to the Copyright Tribunal.
[Update: credit to DPF, he did link to this post. He says he disagrees that section 92A isn’t guilt by association, but doesn’t explain why. On the other hand, he has written a lot on this issue, and you can see his thinking there.]
Topics: Copyright, Internet issues, NZ Bill of Rights Act | Comments Off on A post on 92A that David Farrar probably won’t link to
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