How to shut down speech on the internet. Maybe.
September 4, 2008
Sebastian Hoegl, a masters student from Germany in my media law seminar, made a startling suggestion this week.
Since we all access the internet via an ISP (we put in a web address, the ISP hives off, collects the data, and sends it to our computers), then the ISPs are publishing that material to us. All of it. Sebastian’s point: if ISPs are sending us material that is defamatory, or in contempt of court, or breaches confidentiality or privacy or a suppression order… aren’t they liable for it?
I’m not debating whether they ought to be liable for it. The question is, under our law at the moment, are they?
Take defamation. ISPs might well be innocent disseminators of this information (I discussed this here). But as soon as they are alerted to defamatory material, they lose this defence. If they don’t stop their publication of the material – even in response to users’ requests – they become liable for the defamation. That means they’d have to block users’ access to that particular material or site. So what’s to stop a lawyer, whose client feels defamed online, from writing to all ISPs in the country (or at least all the main ones) asserting the defamation, and insisting that they block their users’ access to the site or they’ll face a defamation action for their role in the publication? Remember that under normal rules, everyone in the chain of distribution is liable for the defamation, from the journalist to the publisher, and the printer and bookshop owner are only off the hook until they get notice that what they’re printing or selling may contain defamatory material. Why are ISPs different?
Of course, the lawyer already has the ability to write to the ISP hosting the site (if it’s a NZ site), give notice of the defamation, and tell them to have it taken down or face joint liability for it. But what if that ISP is ornery, or badly advised, or taking a principled stand to uphold the rights of its clients? Or, more to the point, what if the host is overseas-based? Sebastian’s suggestion allows the targeting of the NZ entities facilitating access to the material.
Take another example. If the Solicitor-General writes to all the New Zealand ISPs and says: “X blog contains material that is prejudicial to upcoming trial Y. You are not hosting X blog, but you are allowing your users to access it when they type in X blog’s URL. If you continue to allow such access, you may be prosecuted for contempt of court”. I can’t see that that the ISP has any choice but to block the material. China manages it, so it must be technically possible.
Again – I’m not trying to argue that this is necessarily a good thing. The implications are profound, I think, and I want to mull them over. What I’m wondering now is: have I missed anything that undermines this legal analysis?
Topics: Breach of confidence, Contempt of Court, Defamation, Internet issues, Suppression orders | Comments Off on How to shut down speech on the internet. Maybe.
Talk about giving with one hand…
September 3, 2008
On the same day the Hawke’s Bay Today was writing to Peter Hausmann to offer to correct its editorial of five days earlier for inaccurately founded attacks, guess what it printed in its paper? The same inaccurately founded attacks. Nice.
The Press Council has found this “inexplicable“, and it doesn’t seem that the paper even tried to explick it.
The following week, the paper published more inaccurate criticisms of Peter Hausmann, without properly seeking his response, as the Press Council found. When it finally published a correction, it botched that too.
The Press Council upheld complaints about all four items, on various grounds of inaccuracy, unfairness and imbalance.
It noted that Hausmann was difficult to get comment from (he said he was worried about confidentiality undertakings), which understandable irked the paper, but “principles of accuracy, fairness and balance always apply and therefore reporters are obliged to strive for the other side, no matter what difficulties exist.”
It was also critical of Hawke’s Bay Today for relying on the information reported in another paper, inaccurately as it turned out.
They should have known that you can’t believe what you read, these days.
Topics: Media ethics, Press Council | Comments Off on Talk about giving with one hand…
Where’s the media?
September 3, 2008
According to this report, Judge Harvey seems bemused that the media haven’t turned up to make submissions about his order allowing only non-online reporting of details about the Hapata case. “Not even an RSVP?” he’s reported to have asked.
Topics: Contempt of Court, Suppression orders | Comments Off on Where’s the media?
The value of the press
September 1, 2008
From Winston Peters’ blog:
Today we have been doing some jobs at home, pausing occaisionally [sic] to look out the window at the teams of journalists, camera people and photographers camping on the footpath. At the same time, it occurred to me that the money spent on these people could be used on a force for real good within the community.
Topics: General | Comments Off on The value of the press
Defamation liability for threads on blogs and news websites
August 31, 2008
Remember the basic rule of defamation: you publish it, you’re liable for it.
That includes everyone involved in the publication. In a newspaper: the quoted source, the reporter, the subeditor, the editor, the publisher, the printer, the paperboy, and the bookshop. (The last three probably have a defence of innocent dissemination, as long as they’ve got no reason to think there’s anything defamatory in the paper).
Similarly, broadcasters are liable for the statements of their contributors – even callers on live talkback radio. That’s why they employ delays and dump buttons.
And so online. If you’ve got comments on your website, then you’re liable for them if they turn out to be defamatory. That’s certainly the case if the comments are moderated, and particularly if they’re pre-approved. But based on first principles, it’s also probably the case where the site simply invites comments and allows them to be posted.
If you’re managing a website and want to give yourself the best chance of avoiding liability for others’ comments, then don’t have anything to do with the comments, and put up a dirty great sign telling everyone that you’re not checking the content of the comments. Then stick to this. Don’t even reply to any of them, lest you give the impression that you’re reading them and therefore implicitly approving them. Then, if someone does complain about a particular comment, check it out or take it down. The possibility that you have avoided liability runs out at the point that someone draws it to your attention.
Now, I doubt even these precautions will work for you. You’re still publishing it, and you’ve invited the comments. You’re probably still liable for them. But they give you the best chance. They try to set you up as an “innocent disseminator” – like the bookshop – rather than the main publisher. They try to put you in the same position as the ISP. On current authority, ISPs are probably “innocent disseminators” – again, until they’re given notice that some content may be defamatory. At that point, they become potentially liable for it unless they remove it.
Out-law.com reflects the debate:
“Many lawyers I’ve spoken to now view the invitation of content – so if you have a comments section at the end of an article on a newspaper site – they view that as inviting comment and therefore you are responsible for it and therefore you probably want to consider pre-moderating all the content that goes there,” said Danny Dagan, a moderation consultant who has helped establish online communities for The Sun newspaper, amongst others.
On the other hand:
John Mackenzie, a litigation partner with Pinsent Masons, the law firm behind OUT-LAW.COM, disagrees with Dagen and Sparkes.
“It is likely that the courts will focus on whether or not a publisher reviewed content, rather than the form of the publication,” he said. “It isn’t likely to make any difference whether or not it is an invitation to comment or a bulletin board. They amount to much the same thing. If the comments are not moderated, the publisher is probably safe, at least until notified of any allegedly defamatory posting.”
Topics: Defamation, Internet issues | Comments Off on Defamation liability for threads on blogs and news websites
Harvey’s online gag
August 26, 2008
Sounds like a prank website, doesn’t it?
Of course, I mean Judge Harvey’s recent order that non-internet media can report on the proceedings against the accused killers of John Hapeta. Still, some people have been wondering: is this a joke? Isn’t trying to put a lid on the internet rather like trying to bottle a hurricane? Does he even have the legal power to do it?
The decision
I’ve just seen his reasons for decision, so I feel like I can say something sensible about it. First up: why’s he done this? Judge Harvey is probably the most tech-savvy judge on the bench at the moment. He’s written the leading text on internet law in New Zealand, and he lectures on the subject at the University of Auckland. This isn’t some knee-jerk order from a judicial luddite.
Judge Harvey points out that the days of “partial obscurity” are over. “Partial obscurity” is what you get when you combine open justice with the fact that almost everybody (including me, I confess) suffers from CRS: Can’t Remember Stuff. So if a news story about a defendant contains something inaccurate and unfair, or prejudicial, then by the time the trial rolls around, the jurors are likely to have forgotton this. The judge quotes Sir Edward Coke, who calls this, rather delightfully, “slippery memory”. The upshot: fair trials aren’t usually prejudiced by bad reporting because most of us have memories like sieves.
Yes, jurors could bowl along to the library to check their archives. But that’s a lot of effort. It’s fair to assume that hardly anyone ever does that.
Is it equally fair to assume that jurors aren’t going to go home and Google the defendant’s name? Of course not. What if the judge tells them not to, as some have suggested?
Now jurors. I am warning you not to go home and Google the defendant’s name. You must not do that. Even if you are tempted. Even if you are very, very tempted, and you are at home, and the computer is sitting right there, calling to you, with its little Google maw imploring you to feed it just one little defendant’s name, just for five minutes, what harm can that do, just a peek at the forbidden information – there must be some, mustn’t there, otherwise why this order not to look – just a peek, surely more information is better than less, we want to get the verdict right after all, and no-one’s going to find out anyway…
So this is Judge Harvey’s attempt to head this problem off at the pass. Once prejudicial information is up there, it gets archived and stored and cached in all sorts of places, commented on, added to, and twisted. Even an accurate account of what’s known early on may become misleading and distorted in the light of information that turns up later.
Lawyers and policy-makers have been grappling with this problem for some time. They haven’t been making much progress. You can argue that Judge Harvey is ahead of the curve. I’m inclined to think the most likely effect of his order is to get officials talking about how to handle this better. That’s got to be a good thing.
Another point in favour of Judge Harvey. He’s not really banning online publication. The case was heard in the Youth Court because one of the defendants is young. That means media reports of the proceedings are banned by the Children, Young Persons and Their Families Act 1989, unless the judge gives leave. (That law also automatically suppresses the name and identifying details of the youth – so don’t blame the judge for that either). Judge Harvey gave leave – but only to those media that weren’t going to create searchable records. It might have been a different story if he was issuing a suppression order under section 140 of the Criminal Justice Act.
The ban
What exactly has he banned? Oddly, this is not really very clear. The bold type on the front of the decision, which may or may not form part of the decision, says:
PUBLICATION IS LIMITED TO PUBLICATION IN A NEWSPAPER OR BY WAY OF CONTEMPORARY RADIO OR TELEVISION BROADCAST. PUBLICATION ON, OR BY WAY OF STORED VIDEO OR IMAGES ON, A WEBSITE OR INTERNET SERVER IS PROHIBITED.
Some points:
- Unless the judge has something against fuddy-duddy shows (anything hosted by Wayne Mowat, perhaps), I think the word “contemporary” should read “contemporaneous”.
- It doesn’t seem to be restricted to names and images of the defendant.
- It doesn’t seem to allow publication in magazines.
- It doesn’t seem to prevent publication of the adult defendants’ images on television (though not on a TV website).
- It doesn’t seem to allow simulcasts, which would be publication on a website, even though it’s the sort of transitory thing that the judge isn’t trying to prohibit.
- It’s not consistent with the reasoning in the decision itself. The last sentence says:
I have ordered that there be no publication of the names or images of he accused on internet based news dissemination sites.
Earlier in the decision, he says the suppression order relates to:
the publication of any accounts of what took place in Court on the internet by way of online news publication or stored video, which can be replayed or accessed at a later stage.
These would allow publication in magazines, and probably simulcasts, and maybe blogs, and may only be suppressing names and images rather than any accounts of the proceeding.
Memo to judges: sort this shit out. We need to know, definitively, what we’re not allowed to publish.
My critique
For me, the biggest head-scratcher about this decision, is: why this case? Judge Harvey identifies no particular material that is likely to cause prejudice if it’s published and later accessed by jurors. He doesn’t even say that such material is more likely to be published in this case than any other. I don’t think he’s assuming that the mere name or image of the defendants is likely to cause any prejudice by themselves. Those are both going to be obvious to jurors. No, he’s assuming that that the names will be a sort of search-gateway to prejudicial information that will be likely to gather itself out there in internetland. (Incidentally, as David Farrar has noted, the victim’s name might well serve as another such search-gateway, but there’s no restriction on publishing that online).
In short, his reasoning seems to apply to every single criminal case, or at least, any that’s likely to have any sort of profile.
Without such a reason, he seems short of real justification for the way he’s carved up different types of media in his order.
What’s more [warning: pet peeve looming], there’s no consideration of the Bill of Rights Act. He’s exercising a statutory discretion. It is affecting freedom of expression. Is it demonstrably justified in terms of section 5?
Of course, the irony is that this case is likely to get much more coverage, online and off, lawful and not, here and overseas, because it’s the first time such an order has been made. For those tempted to breach it (and that includes posting it on a foreign website, if the posting can be traced back to you), you’re up for a fine of up to $2000, and if it’s flagrant enough, a possible application to hold you in contempt of Court.
Where to from here?
Media organisations are thinking of challenging the order.
But I suspect they might be better off waiting for the case to hit the High Court (at least with respect to the adults), when the order will have to be revisited.
Topics: Contempt of Court, Name suppression, Suppression orders | Comments Off on Harvey’s online gag
Unprejudiced
August 25, 2008
Some defence lawyers have been getting their knickers in a knot about reporting on the Veitch case in yesterday’s Sunday Star-Times and Herald on Sunday.
Can’t say I share their concerns. Certainly, now that charges have been laid, publishing material that tends to create a real risk of prejudice to Veitch’s trial will be a contempt of court. But there doesn’t seem to be much in these stories to create such a risk.
They essentially summarise the police allegations. It looks like they came from the police summary of facts. The papers reported them as allegations. They note that Veitch denies them. They don’t get into assessing the evidence. They have reported no more than is almost certain to come out in depositions. Any trial is a good long way away, so any possible effect on jurors is almost sure to dissipate.
The police have denied leaking the information, so there’s some chance that it came from Veitch’s camp – perhaps to help get us used to the idea that the case won’t be about a one-off assault, and highlight the fact that one of the allegations includes throwing water and thereby discredit the case.
(The Herald on Sunday made the most of this, but its headline was a bit of a stretch:
Water assault charge for Veitch
In fact, as the story notes, the alleged circumstances are that he pushed her onto a bed and threw water in her face. I don’t think the water-throwing alone – while technically an assault – would have formed the basis of a charge).
There is some danger in reporting the summary of facts as the papers have done here. It’s possible that some charges may be withdrawn or that better information may become available as the case proceeds. It also effectively gives one side a chance to put its spin on the case. Both of these things mean that readers – potential jurors – have their perceptions coloured by material that may be inaccurate or irrelevant. But the risk seems pretty low to me here.
Topics: Contempt of Court | Comments Off on Unprejudiced
Hooten boasts of flouting the law
August 24, 2008
I guess you have to admire Matthew Hooten’s honesty for admitting that, as a Beehive staffer, he’s advised departments to breach the Official Information Act. And I don’t doubt that this government does the same thing. But I find this high-fiving about it pretty sickening:
As a Beehive staffer in the 1990s, I regularly “suggested” that departments delay the release of information that could embarrass the government. My personal best was 12 months, an 11-month breach of the law.
Topics: General, Official Information Act | Comments Off on Hooten boasts of flouting the law
It’s defiance, Susan, but not as we know it
August 24, 2008
Huh?
Here’s Susan Pepperell’s lead in today’s Star-Times story about the Sensible Sentencing Trust’s plan to “defy” the Electoral Finance Act:
Lobby group the Sensible Sentencing Trust is planning to defy the Electoral Finance Act in the lead-up to the general election.
Its evidence that this will be an act of defiance? Read on:
McVicar said Sensible Sentencing had sought a number of legal opinions on what they “could and couldn’t do” and received a variety of views. “Some said we would be skating on thin ice but no one said we would actually be in breach of the act.”
Not one of their legal advisors said they were breaching the Act?
I know the laws are murky, but how is this an act of defiance?
Topics: Electoral speech, Media ethics | Comments Off on It’s defiance, Susan, but not as we know it
It’s censorship, John, but not as we know it
August 15, 2008
Poor John Boscowan. He’s been censored.
I know this, because he’s got “censored” written across his full-page Sunday Star-Times ad opposing the Electoral Finance Act.
Yes, apart from being one of the few people in the country able to afford to express his views in 850 words in a full-page ad in one of the nation’s biggest newspapers, he’s been gagged.
And that gag is contained in the Electoral Finance Act. That dastardly law muzzles people like him wanting to spend money on political ads. They have to register and are limited to spending $120,000 if they want to publish an ad … like this one. Oh hang on. Not this one. No, this is an issue ad. It’s not caught by the EFA. So it doesn’t matter than John has spent more than $120,000, and hasn’t registered. In fact, his advice is that he doesn’t have to.
So what this ad really does is prove that you can still engage in some fairly nakedly electoral-type political speech without infringing the EFA. And John’s point was…?
Oh yes. “There’s much we dare not say, and you’ll never know what it is! That’s censorship. Pure and simple.”
“Dare not say” … because that speech is banned, and he’d risk prosecution for it? No. “Dare not say” because he’d have to register and be subject to the spending limits. So in fact, he could say pretty much anything he wants, but has chosen not to, in order to keep outside the EFA’s regime, which requires a degree of transparency and some financial checks that he doesn’t want to bother himself with. And fair enough, too. But this doesn’t look like censorship to me.
Fortunately for the good of the country, I am here to say the things that he fears not to. What he wants to say is: “Don’t vote for the parties who voted for the EFA”.
What? You thought that was pretty obvious, despite his transparent attempt to gussie up the ad as a plea to politicians to repeal the law? So again, we can thank John for demonstrating so graphically that the EFA isn’t censoring issue-related speech, even when it has a partisan flavour.
Well done, that man.
Topics: Censorship, Electoral speech, Protest speech | Comments Off on It’s censorship, John, but not as we know it
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