Supreme Court to hear defamation case
December 1, 2008
The sprawling trawling case is off to the Supreme Court. It’s pretty much for defamation train-spotters only – the appeal concerns pre-trial skirmishes about points of pleading (listed below). But these issues matter quite a lot, as they set the boundaries for the arguments and evidence that can be advanced in an attemtpt to establish the defences of truth and honest opinion.
There’s one particularly fascinating question in play (and it relatees to many of the issues listed below). When someone makes an allegation that there are “reasonable grounds to suspect that X has done Y horrible thing” – is it going to be enough to show that reliable-person-Z said that X had done Y horrible thing? On the one hand, shouldn’t a news outlet be able to rely on reliable-person-Z (who might have been a judge making findings in a court decision, or an inquiry making findings after an investigation) in publishing that allegation, and in showing it to be true? The news outlet isn’t, after all, saying that X actually did Y horrible thing.
On the other hand, one of the most basic principles of defamation law is that if you repeat someone else’s smear, you’re liable for proving the truth of it – you can’t defend yourself simply by saying that Z thought it was true. The Court of Appeal has gone with this view. The media will be pitching in behind the other one. It’s as important a media law case as has yet hit the Supreme Court, I think.
Issues accepted for hearing by the Supreme Court:
(1) That s 38 of the Defamation Act 1992 applies to a stand-alone defence of truth.
(2) That in pleading “circumstances” in support of a truth defence pursuant to s 38(b), a defendant may not rely on the fact that third parties made statements.
(3) That the “repetition” and “conduct” rules apply to pleadings of truth to “tier 2” imputations.
(4) That the “repetition rule” applies not only at an evidential stage but at the pleading stage of a proceeding.
(5) That there is no exception to the “repetition rule” for reliance on judicial decisions in support of a pleading of truth to a “tier 2” imputation.
(6) That the position is not affected by the changes to the treatment of hearsay evidence brought about by the Evidence Act 2006.
(7) Regarding matters which the appellant may not plead as part of its truth defence.
(8) That a defendant may not plead in support of an honest opinion defence the fact that third parties made statements.
(9) That the repetition and conduct pleading rules adopted in the United Kingdom jurisdiction, apply without modification, to a truth defence to “tier 2” meanings which impute only that there are reasonable grounds to suspect the plaintiffs rather than that the plaintiffs are guilty.
(10) That accordingly a defendant may not seek to prove the truth of “tier 2” imputation by reference to the opinions or assertions of others.
(11) That the phrase “facts and circumstances” in s 38 of the Defamation Act 1992 does not mean that the third party assertions or opinions may be pleaded since they are not capable in law of establishing a defence of truth by virtue of the repetition and conduct rules.
(12) That judicial decisions and opinions do not fall outside the repetition and conduct rules, are not primary facts for the purposes of the law of defamation, and may not be relied on as evidence of facts in issue by virtue of s 50 of the Evidence Act 2006.
(13) That third party assertions, opinions and judicial decisions may not be relied on as publication of facts on which a defence of honest opinion is based.
Topics: Defamation | Comments Off on Supreme Court to hear defamation case
Right!
November 24, 2008
And here’s a political ad complaint I think the Advertising Standards Complaint Board got right. Again, it’s against ACT. This time, it’s against ACT’s claim that:
“Safe” New Zealand is now almost three times more violent than the US
As usual, the ASCB invited ACT to substantiate its claim. It seems from the decision that ACT, despite being given two opportunities, could not. The party merely talked generally about how it depends on how you compare statistics. It seems that ACT didn’t supply any actual source for its claim.
Pause here. How staggering that ACT was happy to garner votes with this claim, but not prepared to substantiate it – even to a body whose self-regulatory nature ACT would presumably applaud.
So a majority of the ACSB upheld the complaint. Should we be troubled that the ASCB is upholding a complaint against political speech when it doesn’t actually know that the claim was false, and has taken no steps itself to find out? A bit, I think. I’m inclined to think this is yet another example of the ASCB applying its usual processes to a political complaint without thinking hard about whether different ones might be needed. But of course, the ASCB isn’t resourced to undertake its own investigations, and had very little time here. Also, the advertiser is surely in the best place to substantiate the claim. Ultimately, I think the ASCB’s majority got this one right.
But again, despite deciding the case before the election, voters weren’t told about the misleading advertising until after they’d voted.
Topics: Advertising Standards, NZ Bill of Rights Act | Comments Off on Right!
Wrong again
November 24, 2008
I think the Advertising Standards Complaints Board has screwed up again, this time upholding a complaint about ACT’s political advertising. Norightturn made this point first.
The ads claimed that ACT was the only party opposed to the Emissions Trading Scheme. The Family Party complained that this was incorrect: it was opposed to the ETS, too.
A majority of the ASCB ruled that this was an exaggerated and misleading claim and was presented as fact. Again, the reasoning is very sketchy, and contains no discussion of the Bill of Rights Act (though the BORA is mentioned in the boilerplate section). I don’t think this uphold can possibly be demonstrably justified. The Family Party got 8176 votes. It never had a hope of getting into Parliament. ACT’s claim was plainly made in that context. The ASA needs to recognise that a degree of exaggeration and simplification needs to be tolerated in political discourse. It should be asking itself whether the claim was in the ballpark, and whether voters would be significantly misled. It’s hard to see that they would be here.
I note that the decision is dated 6 November – before the election, but was released on the 18th of November – well after it. That’s a fat lot of good. No sense in having an expedited submissions and deliberation process if you’re not going to get the decision out in time. The point of the fast-track process is to inform voters of the errant ads. It seems the ASCB knew what it was going to decide and why before the election – but didn’t tell the voters that.
Topics: Advertising Standards, NZ Bill of Rights Act | Comments Off on Wrong again
Siemer strikes out again
November 20, 2008
The Supreme Court has refused leave to Vincent Siemer over a range of complaints he had with procedural rulings in the defamation case brought against him by Michael Stiassny.
As part of the decision, the court ruled that Stiassny’s reference to Court of Appeal judge Grant Hammond as “our old mate” was not evidence of bias on the part of Hammond J. (Siemer and his wife were present and remember it as “good mate”). The Supreme Court heard from Hammond J, who said he did not know Mr Stiassny and had never had any dealings with him except in through court proceedings. Stiassny’s evidence was that the remark was meant ironically, since Hammond J had consistently ruled against him in Dymocks v Bilgola.
No doubt Vincent Siemer will now add Blanchard, Tipping and McGrath JJ to the list of plotters against him.
Siemer has consistently made absurd and scandalous claims about almost every judge who has ever ruled against him.
But that’s not to say that all the rulings against him have been correct, or all the treatment of him has been entirely fair. There are some aspects of his various cases that I find disturbing, starting with the ruling denying him a jury trial before he was jailed for contempt. The appeal against that ruling is set down in the Court of Appeal for next month.
Topics: Contempt of Court, Defamation | Comments Off on Siemer strikes out again
British Parliamentary inquiry into press standards following string of defamation cases
November 20, 2008
A British Parliamentary committee is to conduct an inquiry into British press standards, and will be asking whether the self-regulatory system needs toughening up.
It has been sparked by the media’s coverage (resulting in several successful defamation claims for their false accusations) of the disappearance of three-year-old Madeleine McCann in Portugal last year.
Topics: Defamation, Media ethics | Comments Off on British Parliamentary inquiry into press standards following string of defamation cases
Daily Mail editor strikes blow for the public right to know celebrities’ sexual habits
November 13, 2008
In a speech to the Society of Editors conference, Daily Mail editor Paul Dacre called Justice David Eady “amoral and arrogant” and panned his pro-privacy decisions. He argued that Justice Eady was stopping the press from exposing the immoral conduct of public figures.
He said this like it was a bad thing.
The sort of immoral conduct he had in mind was Formula One boss Max Mosley’s B & D habit:
What the judge loftily calls the “new rights-based jurisprudence” of the Human Rights Act seems to be ruling out any such thing as public standards of morality and decency, and the right of newspapers to report on digressions from those standards.
More sensible commentators have exposed this as a load of bollocks, and hypocritical to boot. My favourite: Polly Toynbee:
Press freedom is precious – but it doesn’t depend on the right to be prurient. The right to privacy is precious too: one article can destroy a reputation, and that can never be reclaimed with any puny compensation or apology. There is no “press freedom” to tell us exactly what everyone does without their clothes on.
Several prominent QCs waded in, too, pointing out that it was Parliament that legislated for privacy, that it was the House of Lords that handed down the key judgments, and that Justice Eady’s judgments have sometimes favoured the press.
Topics: Defamation, Media ethics, Privacy tort | Comments Off on Daily Mail editor strikes blow for the public right to know celebrities’ sexual habits
Page views, not site-hits, needed for defamation claim
November 10, 2008
Want to sue someone for defamation for something posted online? You’ll need better evidence than the number of people who visited the website, according to the British High Court. The courts won’t assume that visitors to the website will have hunted out the material you’re suing about (unless it’s high up on the home page, perhaps). So you’ll need evidence of page-views. Still, you should be able to get it during the discovery phase of a defamation lawsuit in most cases.
See also Al Amoundi v Brisard, where the High Court held in 2006 that the plaintiff has to prove the allegedly defamatory material was accessed and downloaded in the court’s jurisdiction.
Topics: Defamation, Internet issues | Comments Off on Page views, not site-hits, needed for defamation claim
Wrong
November 7, 2008
The Advertising Standards Complaints Appeal Board has upheld the decision against Labour’s YouTube ad – the one that criticised National’s plan to cut Kiwisaver in half. (The appeal board’s decision is below the complaints board’s one, so you’ll have to scroll down).
How bad is the decision? Let me count the ways.
First, it decided that the “cut Kiwisaver in half” claim was presented in the ad as a quote from John Key. This was because other statements in the ad were direct quotes (though viewers wouldn’t know that) and a date was given for each. But the ad didn’t use quote marks. And the original decision didn’t make this finding (nor did the complainant argue it on appeal).
Second, it accepted that the ad was ambiguous, but found it misleading “by implication and ambiguity”. Obviously, for those who understood it in the correct way, it wasn’t misleading at all. For those who didn’t, it may have been. Ambiguous statements are not plainly misleading, and need to be cut some slack in a political context.
Third, it accepted evidence that, under National Party policy, the minimum contributions would be cut by half, the employer tax credit would be discontinued, and government Kiwisaver contributions would be cut by 46.35%. (Actually the evidence was that it may be more than that). But apparently that wasn’t enough to justify the statement.
Fourth, it decided that the “cut Kiwisaver in half” claim was a statement of opinion disguised as a fact. It then knocked the ad for failing to distinguish between fact and opinion, and blew off the advocacy principle that allows latitude for political and other forms of advocacy. But we’re dealing here with a clear statement of fact – a factual characterising of the policy. Either it’s misleading, within the bounds set by political rhetoric, or it’s not. It it had said “cut Kiwisaver by three quarters” it would have simply been plainly wrong as a matter of fact. What the appeal board didn’t understand is that, properly applied, the advocacy principle requires some latitude for exaggeration.
Fifth, it applied the wrong standard. It said it needed to keep in mind
the high standard of accuracy required in advertisements regarding financial products or financial matters…
But this is a political ad. Viewers know that it will contain some simplification, some hyperbole. This is not, as the board thought, “inappropriate” in a political ad. It’s not an ad for investments in a finance company. The board shouldn’t be pulling out their high-powered consumer protection microscope and subjecting the ad to minute scrutiny.
The sixth reason ties the other ones up. I’m not just saying that I’d prefer the board to take a looser approach to this ad. I’m saying that it’s required by law. The board cites the ASA’s own advocacy code’s reference to the Bill of Rights Act (and rightly so, because the Bill of Rights covers them since they’re performing a public function). There’s lots of law on the approach such agencies are required to take when dealing with restrictions on freedom of expression – such as upholding a complaint that effectively imposes a ban on an ad. Those restrictions must be demonstrably justified, and political speech in particular must be treated very carefully. The appeal decision contains precisely no reference to any of that law, despite the fact that there are two lawyers on the board. To be fair, it doesn’t seem to have been argued before them in any detail at all.
By and large, lawyers suck at applying the Bill of Rights.
If anyone were to seek judicial review, I can’t see how this decision would survive High Court scrutiny. But with the election tomorrow, I doubt anyone will bother.
Topics: Advertising Standards, NZ Bill of Rights Act | Comments Off on Wrong
So that’s all right then
November 5, 2008
The Daily Mail has just joined the Sun and the Daily Star in apologising to (and paying defamation damages to) Italian footballer Marco Materazzi for falsely accusing him of racially abusing Zinedine Zidane, triggering the famous headbutt in the 2006 World Cup final. The paper reported that he called Zidane “the son of a terrorist whore”.
In fact, in response to Zidane’s taunt that Materazzi could have his shirt after the game, Materazzi had merely said: “I’d rather have your whore of a sister.”
Topics: Defamation | Comments Off on So that’s all right then
NSW moves to stop judgments prejudicing trials
November 4, 2008
New South Wales is taking steps to take judgments offline where they might affect a jury because they contain prejudicial details. One of the parties has to make an application though. (Hat tip: Ursula Cheer).
Topics: Contempt of Court | Comments Off on NSW moves to stop judgments prejudicing trials
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