Children’s privacy marches on in ECHR
February 17, 2009
The European Court of Human Rights has gone much further than NZ’s Hosking case in protecting children’s privacy. Parents of a newborn baby snapped by a private clinic in its sterile unit successfully argued that the taking (and keeping) of the photos (even without publication) without parental consent breached the child’s right to private life. This effectively grants an image right, at least in those circumstances.
Remember that the legal framework is different in Europe, though. Their fundamental human rights document protects privacy and free speech equally. Our Bill of Rights Act doesn’t explicity mention privacy. Still, the legal trend is clearly toward greater protection, particularly for children.
Topics: NZ Bill of Rights Act, Privacy tort | Comments Off on Children’s privacy marches on in ECHR
Lundy 2
February 12, 2009
Here’s one thing the prosecutors could have said to White about the Lundy case: Lundy filled his gas tank in Wellington. The fuel warning was flashing when he got back to Palmerston North. How did Lundy manage to empty the tank in one normal-speed trip back to Palmerston North plus a bit of driving in Wellington? Wasn’t Lundy’s initial explanation that some of it might have been siphoned off a bit implausible? He didn’t pursue that theory at trial, and has never been able to explain where that petrol went.
White’s article does note that the Crown also faced a petrol problem. How does Lundy hoon up to Palmerston North and back to Wellington, then back to Palmy again the next morning on one tank? Speeding burns more fuel.
Of course, if Lundy wasn’t hooning back and forth, then three trips between PN and Wellington, plus a bit of driving in Wellington, would almost exactly empty his tank. But that would mean that he couldn’t have committed the murders around 7pm, making that miraculous return trip. He would have had to do it, say, in the middle of the night, when he could drive sensibly and no-one would notice him. And he would have arrived after the neighbour saw the light and after the computer had been switched off, so he wouldn’t have needed Joe-90-like expertise to jiggle the timing mechanism…
This was not the case presented by the Crown. But it does potentially explain away almost all the problems raised in White’s article… except the problems White identifies with the fraction of brain matter from Amber on Lundy’s clothes. Its presence there doesn’t make much sense. It seems extremely improbable that it was preserved the way it was. It seems highly unlikely that it would have got there in the first place. It doesn’t seem clear that it was necessarily brain DNA.
I admit, I haven’t seen all the evidence in the case either. I’m not sure how far some DNA on a speck of dubious provinance, some missing petrol, and some odd behaviour by Lundy get you toward “beyond reasonable doubt”. But this scenario now strikes me as more plausible than the one presented by the Crown.
Topics: General | Comments Off on Lundy 2
Lundy case is falling down?
February 11, 2009
I commend to your attention Mike White’s terrific article questioning the conviction of Mark Lundy in North & South magazine.
It seems Lundy is to be added to New Zealand’s increasingly large stack of questionable convictions.
When serious questions like this arise, I don’t think it’s enough for police and prosecutors to respond, as they often do, by saying “the jury saw all the evidence, and they were satisfied beyond reasonable doubt”. If some of that evidence is open to serious challenge, the prosecutors should be answering those questions. If prosecutorial misconduct is alleged, such as a failure to turn over relevant evidence to the defence, prosecutors should be addressing that too. If a journalist uncovers compelling reasons to doubt some of the evidence that it seems the jury relied on, prosecutors should at the very least be prepared to point to other compelling evidence that indicates guilt.
To be fair to prosecutors, it’s sometimes hard to respond to criticisms of a lengthy and complicated trial process, to journalists who weren’t there for it all, don’t understand the law’s procedures and content, may well misunderstand or misquote explanations, are looking for an exciting angle, and may be little more than pawns of a lobby group.
But when a reporter does what seems to be an in-depth, balanced, careful feature, I think it’s incumbent on the authorities to explain the other side, and to front-foot any shortcomings. The public’s confidence in the justice system is rocked far more by an article like this than by almost anything else I can think of.
I’m not holding my breath. But this may give some impetus to the case (made by Justice Thorp and others) for a Criminal Appeals Review Office, as exists in Canada and the UK.
Topics: General | Comments Off on Lundy case is falling down?
Books are doomed
February 10, 2009
Yeah, I don’t much like e-books either. But here’s the thing: that doesn’t matter. Old paper-and-binding books are doomed anyway. Don’t believe me? Read this. The logic is unassailable, I think.
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Books banned in New Zealand
February 5, 2009
The censor’s office has posted an interesting list of the books banned or restricted here since 1965.
250 books have been banned or restricted in that period. Interestingly, nearly two-thirds of those bans/restrictions have been since the passage of the Films, Videos and Publications Classification Act in 1993, and nearly a third were in the period 1996-1998.
I doubt this is an indication that we’re more censorious these days, though. No doubt the volume and offensiveness of objectionable publications is much higher in modern times. It’s hard to see the current lot banning Why He Was Born So Beautiful And Other Rugby Songs, as the Indecent Publications Tribunal did in 1968, for example. (Other curious bannings: The Kama Sutra Illustrated (1971), The Complete Marquis de Sade (1975), The Limerick Vols 1 and 2 (1977), The World’s Best Dirty Jokes (1979), The Joy of Gay Sex (1983), The Autobiography of a Flea (1987), The World of the American Pit Bull Terrier (1991), and A Guy With Tits (2001)).
The bans seem to fall loosely into three categories: making drugs (Brownie Mary’s Marijuana Cookbook and Denis Peron’s Recipe for Social Change, The Construction and Operation of Clandestine Drug Laboratories, Opium for the Masses), advice on hurting people and making weapons (Kitchen Improvised Plastic Explosives, How to Kill Vol 11, Physical Interrogation Techniques, Ragnar’s Guide to Home and Recreational Use of High Explosives, Bazooka – How to Build Your Own), and coercive sex (Raped and Tortured Schoolgirl, Raped Daughter then Mother, Bound Black Wench and – gotta love this one – A Librarian Enslaved).
Bans and restrictions in recent years tend to relate to books about drugs, weapons and criminal techniques.
Topics: Censorship | Comments Off on Books banned in New Zealand
In Jesus’ name, amen
February 5, 2009
Someone complained to the Advertising Standards Authority that a Christmas ad from Bond and Bond was offensive to Christians. The ad said:
CELEBRATE THE BIRTH OF JESUS WITH SOME NEW GEAR, IT’S WHAT HE’D WANT
Offensive to Christians? Well… maybe some. But it’s mostly spoofing the brazen commercialisation of Christmas, including by Bond and Bond. Damn my atheist heart, but I think it’s bloody funny. (The ASA quite rightly didn’t uphold the complaint).
Topics: Advertising Standards | Comments Off on In Jesus’ name, amen
“Vile racist abuse?”
February 4, 2009
Here’s Vince Siemer’s case in a microcosm. Siemer writes intemperately about Stiassny. The courts overreact to Siemer. Siemer overreacts to the courts.
In the $920,000 damages judgment, Justice Cooper accuses Siemer of directing “vile racist abuse” at Stiassny. Here’s his reasoning:
[48] [Stiassny] complained also that some of the language used by Mr Siemer had apparently been calculated to be offensive to him and caused distress. Examples that he gave included ridicule of his name. Mr Siemer had distributed stickers saying “There is an ‘ass’ in our website www.stiassny.org”. Also there had been references to his Jewish religion and to the persecution of the Jews. Thus, in his letter to the New Zealand Institute of Chartered Accountants of 14 February 2005 Mr Siemer had written:
News Flash! Michael Stiassny tells Professional Conduct Committee that sky is yellow… again, the sky is yellow.
[49] Further, on www.stiassny.org, on the “interviews page” Mr Siemer had referred to him as a man with “exceptional sway within the small Jewish community” and had commented that “when the judiciary determines that a ruthless and powerful man’s reputation is so priceless…the Gestapo cannot be far behind…people like Adolph[sic] Hitler…”.
[50] On a page headed “the Smartest Guy in the Room”, Mr Siemer had stated:
Stiassny will likely have taken his family and ill-gotten gains to exile in Israel or Switzerland.
[51] On the welcome page, Mr Siemer had referred to Mr Stiassny in the phrase:
…what a good Jew he is (no joke).
I find this a bit mystifying. What part of the “News Flash” comment refers to Stiassny’s religion? How is the comment about the Gestapo and Hitler anything other than a criticism of the judiciary – and one that draws a sympathetic comparison between Siemer and Jews as victims? Why is the exile comment anti-Semitic?
Yep, the “what a good Jew he is” comment is yucky. But is it “vile racist abuse”? Siemer is right to regard the judge’s characterisation of his attacks as unfair, I think.
So how does Siemer respond? By saying in a letter he’s circulated that the judge “simply made it up”. But this is nonsense, too. You can see from Siemer’s own website that the quotes are accurate, and the bits the judge has abbreviated don’t change the sense of the words, or take them out of context. The problem isn’t that the judge invented them or used them unfairly, it’s that they’re not really vile racist abuse. (Siemer doesn’t discuss the “good Jew” quote).
I’d have more sympathy for Siemer if he didn’t engage in such ridiculous exaggeration. But I have to say, I’m much more troubled when the courts do it…
[Update: On the “good Jew” quote, Siemer says he was responding to this NZ Herald article, which quotes Stiassny saying “I’m Jewish. I support Israel but it would be inappropriate for me to talk about that.” Siemer says he was simply summarising this comment, accurately characterising it as Stiassny saying what a good Jew he is. I don’t have the context of Siemer’s original statement to evaluate that, but if true it very much changes the complexion of the quote.]
Topics: Defamation | Comments Off on “Vile racist abuse?”
Siemer files appeal
January 30, 2009
Vince Siemer has filed an appeal against Cooper J’s judgment awarding $920,000 in damages against him.
Can a person who is debarred from defending a case appeal against it? I guess we’ll find out.
Topics: Defamation | Comments Off on Siemer files appeal
Coverage of Siemer case
January 30, 2009
Jock Anderson of Truth writes to say the Siemer decision didn’t slip under his radar. So those readers who take a regular interest in his august organ (a hideous image, yes) will have read about the result a couple of weeks ago.
The DomPost also covered it today, under the headline “$920,000 payout for defamation”, saying “An Auckland businessman is to receive nearly $1 million in damages in New Zealand’s biggest defamation case”.
Um, unlikely. Siemer is bankrupt in NZ, and although he has assets in the US, Stiassny will struggle to have his judgment enforced over there. The US courts are very hostile to decisions based on free-speech thresholds lower than those set in the First Amendment.
A nitpick: $20,000 of the $920,000 is for breach of contract, not defamation.
Topics: Defamation | Comments Off on Coverage of Siemer case
Judge awards highest ever defamation damages
January 29, 2009
This news seems to have slipped under the media radar: just before Christmas the courts handed down the highest defamation damages award in NZ’s history.
Cooper J awarded Michael Stiassny and his firm $920,000 damages against Vince Siemer for his long-running attacks on Stiassny, including $900,000 for defamation. (To recap: those are the attacks that led to the injunction that led to the contempt of court cases that led to Siemer being fined and jailed for breaching the injunction and then let out of jail to argue that he should have been given a jury trial. Judgment’s still pending on that last one).
Those contempt cases also led to a huge award of costs – more than $180,000 – against Siemer (joining many other costs awards against Siemer). He didn’t pay them. So Potter J debarred him from defending Staissny’s defamation case.
So it can’t have been much of a defamation trial. You had the country’s most famous media lawyer, Julian Miles QC, arguing one side, and on the other…. nothing. There’s a huge hole in the judgment where the discussion of defences would usually come. Were the attacks true? Were they simply honest opinion? Were they protected by qualified privilege? The judge didn’t have to decide.
At one point Cooper J said: “there is no substance in the allegations that Mr Siemer makes”. The judge really had no place saying that. Siemer has insisted all along that his criticisms are true. He’d been prevented from putting forward evidence to prove them. The judge didn’t know what that evidence might have been.
And that’s surely got to give anyone pause for thought. Nearly a million dollars in damages awarded against someone who was denied the right to present evidence in his own defence. That’s in addition to being sent to jail for contempt for saying things he continues to insist are true, and which have never been disproved, in breach of an injunction he believes was wrongly imposed.
The picture is different from Stiassny’s perspective, of course. Stiassny would say he has been subject to years of false and damaging invective from Siemer, has been forced to spend more than a million dollars on the defamation/breach of contract lawsuit, has won almost every point he argued, and has been granted costs awards in his favour, but Siemer has refused to pay them – and worse, has flouted the court’s injunction and continued to spread his poison. Why should he be put to the expense of a full trial when Siemer won’t pay for the costs of the pre-trial skirmishes – many of which Siemer initiated?
Still, this is a whopping award. It includes aggravated damages ($150,000) and exemplary damages ($25,000).
Not surprisingly, Julian Miles argued that the case was broadly analogous to two other giant NZ defamation awards: $675,000 in the Ray Columbus case and the eventual $650,000 in Quinn, though these involved national publications; Siemer’s statements were made on a short-lived billboard, some fairly obscure websites, and in letters, stickers and notices.
Also not surprisingly, Miles seems to have made no mention of the dozens of other defamation awards, many of them for fairly serious defamations much more widely published than Siemer’s, that came in well under $100,000.
Not surprisingly once again, the entire judgment feels very one-sided. It’s hard to believe that this sum would have been awarded if the case had been fully argued. (And that’s putting aside the question of whether Siemer would have been able to establish a defence). Whatever you think of Vince (and I’ve been critical of him), it’s also hard to be comfortable about the circumstances in which this award was made.
[For completeness, I should note that Terry Quinn was originally awarded $1.5 million by a jury for two defamatory programmes, but the damages bill was reduced to a total of $650,000 on appeal].
Topics: Defamation | Comments Off on Judge awards highest ever defamation damages
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