Keeping abreast of legal issues
August 15, 2008
Dean Knight and I have been debating one of the finer points of the Bill of Rights Act. We’ve been talking about how it might apply to the proposed boobs-on-bikes parade. (I gather an injunction application is being argued as I type).
The question relates to Bob McCoskrie’s [corrected spelling courtesy of Robyn: see comments] claim that the parade involves “sexualised nudity”. This presumably makes the nudity more offensive, and also suggests an element of lewdness that’s necessary for the charge of indecent exposure (and that might be missing, for example, from the naked bike protest).
It also relates to the extra protection that the Bill of Rights requires for political speech.
The debate goes something like this:
Steven: You know what? I think it might depend on the amount of jiggle.
Dean: I think that’s right.
Steven: If there’s more jiggle, then it looks more sexualised – so arguably more lewd and offensive. Then controlling the parade fits better with the purposes of the Local Government Act, and the offences of offensive behaviour and indecent exposure. You’ve got less wiggle room for an argument based on the significance of the speech. More jiggle – less wiggle.
Dean: No, I disagree. If there’s more jiggling, there’s more of a political component to the protest. It is deliberately provocative. It underscores the parade’s message being more open about sexuality. It emphasises that the protest is defying convention, and the council’s attempts to scotch it. There’s less reason to protect an unjiggly naked protest, because the nakedness is less central to the protesters’ purpose. Jiggling provides better grounds for a defence for boobs on bikes. More jiggle – more wiggle.
Such is the stuff of academic discourse. Though it’s fair to say that Dean doesn’t normally evince this degree of interest in women’s breasts.
Topics: Local government regulations, NZ Bill of Rights Act, Protest speech | Comments Off on Keeping abreast of legal issues
Dollar votes?
August 15, 2008
Russell Brown is pointing out that TV3’s election website is flogging profile pages to candidates at $299 a pop.
There’s no indication on the profile pages themselves that the MPs have to pay for them (though there is a “purchase page” tab on the main page that might clue readers in).
They’re also charging $399 for a favourable mention in Duncan Garner’s blog and $999 for party leaders to select their own soundbites in news stories. No, I made that up. Maybe next election.
The Press Council has upheld complaints against similar practices by newspapers, saying it:
breaches the traditional ethic of journalism to maintain a separation between the editorial side of a newspaper publication and the business side.
However, you can’t complain about a broadcaster’s website to the Press Council. Nor can you complain to the Broadcasting Standards Authority about broadcasters’ websites, even about the content of downloadable video (though you can complain about any content that’s actually broadcast, if you meet the complaint deadline).
It’s a bit of a gap in our regulatory framework.
Topics: Electoral speech, Media ethics | Comments Off on Dollar votes?
Auckland Council boob-oo?
August 15, 2008
Can the new Auckland Council bylaw requiring permits for (among other things) “any organised temporary activity including an organised gathering, parade, protest…” on public streets possibly be lawful?
Administrative law expert Dean Knight doesn’t think so. His terrific analysis concludes:
I am very confident in saying that, to the extent that the bylaw requires citizens to seek prior approval from a state body for a protest in a public place, it is patently inconsistent with the Bill of Rights and other fundamental common law rights, and is therefore unreasonable and invalid. There was, rightly, a public outcry a few years ago when Wellington City attempted to do this; it backed down. Also, it’s the very thing that many folk are pointing the stick at the Chinese government at the moment with the Olympics in Beijing. The requirement of prior approval is outrageous, particularly in the light of the restriction of protests and so forth.
Check out the Council’s flimsy Bill of Rights justification:
The council does not consider that the proposed bylaw is inconsistent with freedom of expression or freedom of peaceful assembly, or alternatively it considers that any limits in the bylaw are justified under section 5 of the NZBOR Act. The clauses do not prohibit the activities but rather impose reasonable conditions to ensure that those freedoms can be exercised in an orderly manner, and in a way that protects the public from nuisance, promotes and maintains public health and safety and minimises the potential for offensive behaviour in public places.
“Not inconsistent” with freedom of expression? It’s requiring a permit for a protest! The Council is giving itself power to refuse to allow a protest against it. This is like saying waterboarding isn’t inconsistent with the right to be free from torture. The real question is whether the restriction is demonstrably justified. The Council does address this, but after that start, it’s hard to have much confidence in its legal analysis. The fact that its section 5 analysis is one sentence long doesn’t help.
Dean rightly concludes that the extremely wide bylaw cannot be demonstrably justified, but thinks that a narrower one might be.
I’d add that the fact that the bylaw seems to have been aimed at the boobs-on-bikes parade means that the Council had a content-related motivation for passing the law – another reason the courts should treat it with suspicion.
Topics: Local government regulations, NZ Bill of Rights Act, Protest speech | Comments Off on Auckland Council boob-oo?
Upcoming privacy forum
August 13, 2008
If you’re interested in privacy, you might like to register for the Privacy Commissioner’s Privacy Issues Forum, to be held in Wellington on 27 August.
The programme includes a keynote speech from the Commissioner herself and a presentation on the Law Commission’s work on privacy by Sir Geoffery Palmer and John Burrows QC, as well as sessions on:
- Health: screening programmes and genetic research
- Controversial issues in dettecting an preventing crime (DNA and sex offender notification)
- Is good privacy good business?
- Employment and privacy
- Investigations (PIs and police)
- Technology (including social networking and foreign government access issues)
- A legal update on Privacy Act and privacy tort developments
- The Ombudsmen and the Privacy Commissioner
Topics: Privacy Act, Privacy tort | Comments Off on Upcoming privacy forum
But is it privacy?
August 13, 2008
The Evening Standard has printed an apology for falsely reporting that Prince Philip was suffering from prostate cancer:
We now accept that the story was untrue and that he is not suffering from any such condition. We unreservedly apologise both to him and to his family for making this distressing allegation and for breaching his privacy.
The apology was brokered by the Press Complaints Commission – further evidence that a complaints body is at its best when negotiating a quick solution to a media lapse.
Memo to our Press Council: this is another good reason to take up the recommendation of the recent review of the Press Council and establish a mediation arm.
But wait up. The paper got it wrong. Why is it apologising for a breach of privacy?
Gotta say, I’m not very comfortable with this. It seems to me that if you get something wrong, you’re not invading privacy, you’re committing some other sort of wrong. But I think we’re going to have to get used to this reasoning.
For one thing, as those who are frequently bagged in the media will tell you, media inaccuracies about you feel like an invasion of privacy.
More importantly, UK privacy cases are increasingly recognising that falsely reported facts can give rise to privacy issues. And the US has long recognised a strand of privacy that involves portraying someone in a “false light”, even if that false light isn’t strictly defamatory.
Still, this has the potential to blur the boundaries – especially between privacy and defamation. At the moment, it’s very hard to get an injunction in defamation cases, but it’s likely to be easier in privacy cases. Does that mean I can dress up my defamation case as a breach of privacy one, to make it easier to get an injunction? The UK courts seem to think they can resist this, but I’m not so sure.
Topics: Press Council, Privacy tort | Comments Off on But is it privacy?
When half a quote isn’t better than none
August 7, 2008
You might have spotted my star turn on One News last night. It was part of a story about National referring the taped-conversations affair (“CocktailGate”?) to the police. Might there have been a crime? Here’s the quote One News used from me, suggesting that I told them that the recording “may have broken the law”:
If you’re eavesdropping on somebody else’s conversation that you’re not part of, then you might be breaking the law if it’s clear that those people intend it to be private.
Well, true. But I went on to point out that there’s no crime if the people talking could reasonably expect to be overheard – which would probably be the case at a cocktail party. But TVNZ didn’t broadcast or mention that bit. Jessica Mutch, who conducted the interview, said she’d read my blog entries too, so she can’t have been in any doubt about my views.
But I guess that didn’t fit with the story they wanted to tell.
Topics: Media ethics | Comments Off on When half a quote isn’t better than none
Picking up the Bill II
August 6, 2008
So now John Key is accusing Labour of being behind the “bugging” of conversations at the cocktail party. He suggested on Morning Report this morning that the repeated questions put to Bill English about Kiwibank sounded like someone was trying to set him up.
(Key is also throwing in the suggestion that Labour was behind Nicky Hager’s acquisition of National Party emails. He doesn’t supply any evidence of this. That would be because Hager’s material was leaked from within National.)
Still, my previous post left an open question. What if Labour activists had bailed up English and secretly recorded the conversation? I noted that they wouldn’t then be “intercepting” the conversation, so wouldn’t have broken that law. I suspected that there would be public interest defences to any breach of confidence or privacy action, against them or the media.
But was the behaviour lawful? I rather doubt it. I’d need to know more about the openness of the venue, the restrictiveness of the guest list, how they got in, and what (if anything) they told anyone or lead them to believe, in order to get in. It seems likely that along the way, the infiltrators (if that’s what happened) committed the torts of deceit and trespass. There are no public interest defences to those.
The really interesting question: would the courts have granted an injunction to restrain the media from publishing the material if National got wind of it ahead of time? They would probably restrain material obtained during a trespass if the process of gathering it was “unconscionable”. Was this? Maybe. They would probably restrain material allegedly obtained in breach of confidence, at least in the interim, so that issues could be fully argued – in particular the public interest defence. That “interim” period could stretch on for quite a while…
[PS: Since the Privacy Act doesn’t apply to news media in their news-gathering activities, I tend to overlook it. But since those involved in the first-hand gathering of the recorded material here probably weren’t news media folk, the Privacy Act does apply to them. The relevant principle is IPP 4 – information should not be gathered using means that are unlawful, unfair or unreasonably intrusive. Again, lots will depend on the circumstances. But most people wouldn’t expect to have their cocktail party conversations recorded. On the face of it there seem to be grounds for a complaint to the Privacy Commissioner against whoever did the gathering.]
Topics: Breach of confidence, Privacy tort, Trespass | Comments Off on Picking up the Bill II
Picking up the Bill
August 5, 2008
Did whoever surreptitiously recorded Bill English break the law?
What about the media who published the conversation or its contents?
It’s a crime to tape a conversation between other people if the circumstances indicate that one of the conversers wants it to be private (section 216B of the Crimes Act).
I have no idea how the conversation was recorded, except that it took place at a cocktail party. If the person who recorded it was one of the people English was speaking to, no offence has been committed.
If, on the other hand, the tape was made by an eavesdropper, nearby or at some distance, then we have ourselves an issue. It’s probably fairly clear that English meant the conversation to be confined to those he was talking to.
But that’s not the end of the story. There’s a defence if English:
ought reasonably to expect that the communication may be intercepted by some other person not having the express or implied consent of any party to do so.
He’s talking at a cocktail party. Shouldn’t he expect that he might be overheard? (“Interception” includes simply hearing the conversation). It might depend on how many people there were in the room, and whether English taken care to distance himself from them. But it seems likely that this defence will apply.
(There might be interesting non-criminal issues, such as breach of confidence, though. These would most likely come down to the question of whether the use of the material was in the public interest. I would have thought there’d be a fair case that the disclosure was in the public interest).
What about the media? If they were party to an illegal interception, they would be liable as parties if the person doing the actual recording was liable. If they weren’t involved, but knew that the material had been illegally intercepted, it would be an offence for them to disclose it. Neither seems likely here.
There might also be broadcasting standards issues. (These wouldn’t apply to Scoop, though. It’s not a broadcaster). The Broadcasting Standards Authority has held that broadcasting the content of an overheard conversation was a breach of privacy. The eavesdropper had hidden himself so he could overhear a conversation between John Hart and his wife on the street. The BSA said the broadcast of Hart’s comment was offensive, and there was no public interest in it. Similarly, when the Holmes show broadcast Parekura Horomia’s aside to a friend about his distrust of the media during a filming break.
Once again, there’s a public interest defence, though. And once again, there’s a pretty solid argument for it here.
Topics: Breach of confidence, Journalism and criminal law, Privacy tort | Comments Off on Picking up the Bill
Target under fire
July 30, 2008
A few years ago, I did a report for RNZ’s MediaWatch programme, raising questions about whether the hidden camera stings in TV3’s Target programme were complying with broadcasting standards and the law of trespass.
Over the years, Target has survived a string of broadcasting standards complaints. The producers deserve some credit. They always take care to try to ensure their criticisms are fair and that those stung get to have their say too.
Still, Target was also lucky. The wrong people complained, and when the right people complained, they relied on the wrong grounds and arguments.
Now, it seems, Target’s luck has run out. The BSA has upheld a complaint that strikes at the heart of Target’s methodology. It will need to change its ways or face some stiff penalties.
The BSA has always said that hidden cameras are by nature intrusive and unfair, and require some prima facie evidence of wrongdoing before they’re used, and some real public interest in the footage before it’s broadcast. The big problem for Target: how do these rules square with Target’s routine practice of secretly filming people it has no prior reason to believe have done anything wrong, and broadcasting footage that, for most of those depicted, doesn’t really show any significant wrongdoing.
Target argues that the programme as a whole is in the public interest, and that they shouldn’t have to justify each component of the broadcast.
The complaint was about a hidden camera trial involving caregivers who were invited into the Target home to care for a patient (an actor hired by Target). Four caregiver companies were used. Two of the caregivers performed pretty well: the BSA said there was no justification to screen them at all without their consent. Two others were guilty of minor indiscretions (drinking juice from the fridge and taking a bag of chippies without permission, giving the patient cookies contrary to instructions, not giving the patient privacy in the bathroom, etc). The BSA said this just wasn’t bad enough to create the public interest sufficient to justify the severe intrusion involved.
So the BSA upheld complaints based on fairness and privacy. TV3 tried to argue that it effectively had consent: it had written to the companies for their comments and none had objected to the use of the material. But as the BSA pointed out, that’s not the same as approaching the caregivers themselves. Besides, a failure to object is hardly the same thing as giving consent.
On the way the BSA has interpreted the codes in the past, I can’t see how the BSA could have reached any other conclusion. In fact, there may well have been private facts about the caregivers revealed, too. (The BSA didn’t consider that strand of its privacy rules).
So what does this mean for Target? Either an appeal to the High Court, or a change of methodology. The BSA pointed out that Target could have sought actual consent – and the caregivers depicted favourably might have been happy to provide it. (Or not). The others almost certainly wouldn’t – but their faces could be pixelated. The companies could still be identified, and the public interest served that way (presumably as long as this wouldn’t also effectively identify the employee).
Or Target could restrict itself to broadcasting hidden camera footage when it really had something significant to reveal.
I think hidden cameras are deeply intrusive, and TV3 doesn’t appreciate the harm it does to its sting victims – even those who aren’t shown misbehaving. The grainy gotcha flavour of hidden cameras creates an aura of evildoing right from the get-go.
But it’s fair to consider the other side. Target may well have done incalculable good in alerting us to the abuses committed by tradespeople who come into our homes, and perhaps in deterring that sort of misconduct. Isn’t there a sense in which it’s true that the programme as a whole is in the public interest? And it’s notable that the caregivers didn’t themselves complain – which highlights a serious and justified gripe by broadcasters: why should someone who had nothing to do with a programme be able to complain about the personal harm done to someone else?
Topics: Broadcasting Standards Authority, Privacy tort, Trespass | Comments Off on Target under fire
The media’s revenge
July 28, 2008
A MailOnline profile on Justice Eady: “As cold as a frozen haddock, Mr Justice Eady hands down his views shorn of moral balance”. Mean.
News of the World strikes back, too.
Topics: General, Media ethics, Privacy tort | Comments Off on The media’s revenge
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