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
CA to rule on right to jury in contempt cases
November 3, 2008
The Bill of Rights Act says we have the right to a trial by jury if the penalty for an offence exceeds 3 months jail.
The maximum penalty for contempt is indefinite imprisonment. Recently, Vince Siemer was sentenced to 6 months in jail. He asked for a jury trial. It was denied.
Why? The Courts maintain that contempt isn’t really a crime, it’s only “in the nature of a crime”. Contempt charges are brought by an application to court, not by an information laid by the police or a complainant. There are different procedural rules. A finding of contempt isn’t really a “conviction”.
I think these distinctions are bogus. If it looks like a duck, and quacks like a duck, and can send you to prison like a duck, the law should treat it like a duck.
Siemer is appealing the no-jury ruling to the Court of Appeal and the case is scheduled to be heard in December. Rodney Harrison QC has been appointed as an amicus, so the fate of our contempt laws will not hinge on Siemer’s ability to mount a complex legal argument without pissing off the judges…
Topics: Contempt of Court, NZ Bill of Rights Act | Comments Off on CA to rule on right to jury in contempt cases
Copywrongs
November 3, 2008
How ironic that ACT violated the Greens’ intellectual property rights by pinching their cute-kid photo. So much for the law-and-order party.
Still, I think this points up a gap in our law. Spoofs like this should be fair game, I think. The US has a fairly strong parody defence to copyright infringements. Australia has followed suit. NZ’s protection of parody and satire is weak and uncertain. I think our current law is probably inconsistent with the Bill of Rights Act.
As it happens, in September, the government announced a review on the protection of parody and satire in our copyright laws. About time.
Topics: Copyright, Electoral speech, NZ Bill of Rights Act | Comments Off on Copywrongs
Overcharged?
November 3, 2008
It was always possible that further charges were to be laid against some of the Urewera defendants, and here they are: participation in an organised criminal group.
Must say, though, I feel some disquiet about the adding of these broad-based charges (as opposed to the more specific Arms Act ones) after the High Court has narrowly found that the Fairfax coverage did not create a real risk of prejudice to the defendants’ trials – in part because:
there is nothing before us to suggest that there is any real risk that any defence available to the accused is likely to be compromised by the publication of the intercepted communications.
As I’ve discussed, that’s not really true. The judges were wrong to say that “the focus of any defence is likely to be on identification”. But even if it were true with respect to the Arms Act charges – it seems hard to believe that the published material from the intercepted communications won’t affect the defence of someone charged with participation in an organised criminal group.
Topics: Contempt of Court | Comments Off on Overcharged?
We’re reporting their news, there
October 31, 2008
I’m following the US election closely, and I’m a Radio NZ listener, so you’d think I’d be applauding Radio NZ’s decision to send Geoff Robinson there to report the elections from the ground.
But really, I’m wondering why they’ve spent the money. How many of Geoff’s interviews couldn’t have been done from here by phone? (How many of them in fact are being done by phone?) Do we really need a NZ angle on these elections, and is RNZ delivering on that anyway? What’s the point of a bunch of vapid and disproportionately pro-Obama vox pops? Is the possibility of Arnie getting a role in an Obama administration really one of the big issues? Why does RNZ keep interviewing Zogby, which seems to be about the only polling organisation not prepared to suggest that it looks pretty much like Obama’s going to win (check the rolling poll averages and state-by-state breakdowns at RealClearPolitics and Pollster)?
Topics: Media ethics | Comments Off on We’re reporting their news, there
White Knight
October 31, 2008
The Wellington City Council is requiring prior approval and bonds for the posting of political posters on council-owned poster bollards, and is apparently restricting their locations. Dean Knight rightly takes issue with this policy here and here.
Topics: Electoral speech, NZ Bill of Rights Act | Comments Off on White Knight
Labour’s YouTube Boob 2
October 30, 2008
I mentioned the Electoral Commission v Cameron case in the post below. The Court of Appeal granted judicial review against an Advertising Standards Authority decision upholding a complaint against the Electoral Commission.
One of the grounds of that decision was that the ASA shouldn’t have used its own complaints jurisdiction to trespass on the Electoral Commission’s functions. Get a load of this:
… in the exercise of the assumed jurisdiction [of the ASA] we would expect the [ASA’s complaints] board to tread carefully in relation to such matters as the public education advertisements of the [Electoral] commission and similar public authorities to ensure that it does not substitute its views for those of an expert body charged with particular responsibilities.
Now, isn’t the Broadcasting Standards Authority a “similar public authority”? It has jurisdiction over the broadcast of political ads on radio and TV but not on the internet. If anyone complained about this ad to the BSA it would have to determine whether it was fair and accurate.
Isn’t that pretty similar to the standards being applied by the ASA (which decides whether an ad is misleading or deceptive)? Isn’t the BSA an “expert body charged with particular responsibilities” such that the ASA is in danger of “substitut[ing] its views” for the BSA’s?
I think there’s a pretty strong argument on the basis of the Cameron case that the ASA should have butted out here. After all, no-one is left without a remedy: a complainant who saw the YouTube ad could be redirected to the BSA by the ASA. As it stands, we have the prospect of inconsistent decisions.
Would the BSA decide the case any differently? This case would suggest not. The BSA upheld a Maori Party complaint against Labour for saying in an ad that the Maori Party had voted with National 227 times. The Maori Party felt this overstated their support for National, but rather shot themselves in the foot. The correct figure, it transpired, was at least 277 times. The BSA felt it had to uphold the complaint because the ad inaccurately undercounted the number.
That seems pretty silly and disproportionate to me. Even the BSA described it as “technical”. The BSA said it has adopted a “strict approach” to the accuracy principle. This isn’t really true – it quite often stretches to find reasons to avoid upholding merely technical breaches of the accuracy standard. Even if it was true, it doesn’t mean to say that the BSA need to adopt the same approach in electoral advertising cases. The Electoral advertising code, after all, accepts that the Bill of Rights required “robust debate, advocacy and expression of political opinion”.
Topics: Advertising Standards, Broadcasting Standards Authority, Electoral speech | Comments Off on Labour’s YouTube Boob 2
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