We’re free. Really.
May 1, 2008
The latest world press freedom rankings are out. As usual, we’re in the top 10, where we’ve been for at least the past five years (this year, we’re 9th equal, actually). Those who like to rhapsodise about the US First Amendment and American press freedom might like to ponder that country’s rankings for the past four years: 16th, 17th, 24th, 15th. (Australia does worse).
A quirk of methodology? Well, check out the Reporters Without Borders’ annual press freedom indices. NZ is routinely in the top 20 (currently at 15th – before that 19th, 12th, 9th, and 17th). The US is hasn’t made the top 20 in the last five years (it’s currently 48th – before that 53rd, 44th, 22nd, 31st).
That’s not to say all is rosy. And I’m not entirely sure how familiar the rankers are with what’s going on in NZ. Still, this is a general indication that our protection of free speech scrubs up pretty well internationally.
Topics: General | Comments Off on We’re free. Really.
A politician’s guide to ducking awkward questions
May 1, 2008
This week’s lively Media7 show about the art of interviewing reminded me of a programme I put together for Radio NZ some years back. It’s a spoof instructional cassette for politicians on how to duck questions. All the clips are from real interviews.
Here’s the script.
HOW TO DUCK AWKWARD QUESTIONS: A GUIDE FOR POLITICIANS
MUSIC –chirpy civil service instructional cassette music. Fade under…
Hello. Welcome to the Incoming Member of Parliament’s Guide to Ducking Awkward Questions. This is volume one of the Parliamentary Advice cassettes, and we recommend that you study it thoroughly before moving onto the others in the series, How to leak documents, How to spread rumours of a leadership coup, How to dispel rumours of a leadership coup and, of course, our most popular instructional cassettes, How to dig up dirt on other MPs, and its companion volume, How to smear it on them without getting any on yourself.
As you will quickly learn, the media in this county lack a comprehensive understanding of complexities of government and a proper respect for the dignity of political office. They frequently ask questions which, on a full and balanced appreciation of all the circumstances, it is not in the public interest to answer. There may even be occasions when you do not know the answer, or you do know the answer and it is embarrassing to you or your party. In such situations, it is imperative for the maintenance of confidence in the institution of government and the integrity of our democracy that a reassuring response be given, though not, of course, the actual answer to the question.
Over the next 20 minutes you will learn how to realign an interview conversation so that it tracks more closely with the public interest. This will enable you to steer it away from the unhelpful and unproductive line being pursued by the interviewer. You will learn the Seven Strategies for Successfully Shifting the Subject.
But first, a note of warning about what happens if you get it wrong. As former Local Government NZ President Louise Rosson discovered recently to her cost, hell hath no fury like a media misled.
You accept that what you said on Monday was not true?
Yes, I would have to agree with that.
You accept that you lied.
Hindsight is always very easy.
Miss Rosson, I think we just need to get it clear. You accept that what you said on Monday was not true. You accept that you lied.
…it would appear. Yes yes I did not give, I gave part of the truth.
Be warned, then. You must never mislead the media if there is any chance they will find you out.
However, that does not mean that you must answer their questions. At first, this may strike you as somewhat rude, but you will soon overcome that. You should not think of the interview as a conversation, but as an opportunity for you to get across your point of view to the voters. After all, it was you they elected you to represent them, not the media. You are far better placed to appreciate what the public need to know and what they do not. So you should treat the interviewer’s questions as mere vehicles which you can ride to the destination you find most beneficial. Sometimes that will involve changing lanes, sometimes you may drive along the road for a while and then turn off, and sometimes you will want to execute an immediate u-turn.
The most direct way to turn the interview onto the desirable path is to use a strategy known as the Headbutt, which involves ignoring the question altogether and talking about whatever you like. NZ First leader Winston Peters is a master of the Headbutt. In this example, Mr. Peters utilises it in a particularly adroit fashion, suggesting that his question is more interesting than the interviewer’s. He is being interviewed about the decision of David Bradshaw, the head of the serious fraud office, not to prosecute those involved in the Winebox transactions.
When he started the investigation, he did say that he didn’t shirk from prosecution if he found the evidence. Why would he be doing that?
I’m not interested in what he said. I’m interested in this fact: that if he cannot, as they couldn’t in the past, find evidence in this matter, then they should be removed from their job and someone competent and able to understand the issues be given the job….
Be aware, though, that the Headbutt is high-risk and requires great self-assurance. For those with less experience and fortitude, we recommend the Flip instead. The Flip is similar to the Headbutt, but instead of launching straight into your message, you use a transitional phrase so that the clash between question and answer isn’t quite as startling. The Flip comes in many variations, but the classic formulation involves five very simple but magical words: “Let me just say this.” Who could refuse such a polite and reasonable request? Of course, you don’t leave time to refuse anyway, as Health Minister Annette King demonstrates when she is asked about the Green Party’s little rebellion during the passage of the health reforms:
Annette King, is the govt happy that a party which is its partner in a lot of things is going to be proposing amendments to legislation like this?
Well first of all, Geoff, can I say that this is an exciting day for the govt because we are seeing the rollback of a health system that was based on competition and secrecy and returning it to a public health system, and as Sue said with an emphasis on community involvement and cooperation. So it is an exciting day.
Notice that this use of The Flip is so bold that it almost amounts to a Headbutt. Here’s a more subtle example of The Flip by former Conservation Minister Nick Smith during the Timberlands saga. How will he cope with Mary Wilson pressing him on whether the Prime Minister’s staff passed on information to Timberland’s PR firm?
Have they ever handed on posters or publications from NFA to Shandwick?
Quite clearly Mary, I’m not going to know exactly what her staff are doing.
Yeah, well, how can you say that these things haven’t happened?
What I can say is that I’m aware of the level her staff involvement in this issue and it is nothing of the order or scale that Nicky Hager claims.
An excellent response which neatly sidesteps the question about posters and publications being passed while for all the world sounding like an answer. Notice the use of the phrase “what I can say is…” which flips the conversation from Mary Wilson’s topic to Nick Smith’s one. The best ways of Flipping are:
But let me just say this…
The point, Sean, is this…
I think the public want to know that…
But I think we need to be quite clear here…
Well, what I can observe is…
What we have is…
I mean, what I’ve tried to do in this thing is say…
I strongly suggest that the people of New Zealand really do want…
What I’m saying is that…
I think it’s very clear that…
As we will see, The Flip is often best used in combination with other techniques, and in particular, The Dodge. The Dodge is the most cunning strategy of all, because it most sounds like a real answer. The essence of the Dodge is providing an answer to a different question, but one that is very similar to the one being asked. Here, Minister of Immigration Lianne Dalziel uses the Dodge to deal with a question about a botched dawn raid on a Filipino family.
Will there be a blitz of morning raids on the houses of overstayers with people being hauled off to the airport?
What we are going to see is that there will be far better enforcement of people’s obligations under their permits to be in New Zealand.
Note that the question the minister answers is: “how will the government toughen up on overstayers?” which is a far more appropriate question from the government’s point of view.
In the next example, we hear former Finance Minister Bill Birch use The Dodge several times to avoid Kim Hill’s questions about the government’s commitment to Incis. You’ll notice that Sir William also utilises a couple of other useful techniques – repetition and stating the obvious.
Are you committed to going ahead with INCIS?
Well the bottom line for the govt is that the police need computers to help them catch criminals and we’re determined to deliver a satisfactory computer system.
That wasn’t the question.
Well, no but that’s the answer because that’s the outcome we’re seeking.
So you’re not committed to going ahead with INCIS and IBM?
We’re committed to achieve a good computer system. And we have a contract with IBM. And the police are going to get support from the government to ensure they get a satisfactory outcome from that.
Is there a committee here looking at alternative systems around the world at the moment?
Ah, the, I mean the government is aware of alternatives but currently we have a contract with IBM and we’re focussing on that.
Is there a committee looking at alternative systems at the moment?
No – I don’t think – the answer to that is no.
Are you thinking of setting one up? I mean you sound like you’re trying to avoid something. If you tell me what you’re trying to avoid, I’ll give up asking about something I don’t know you’re trying to avoid.
Well we’re not trying to avoid anything.
National’s Murray McCully also performed some deft Dodging when asked whether he was deliberately drip-feeding material about Louise Rosson to the media.
Have you got more evidence? Have you got more stuff that you’re going to release today or tomorrow?
I’ve some people in local govt who are pretty angry about things who are giving me information as things unfold and I’m hoping that more people will also try and put the spotlight on this thing.
Notice that there’s no denial there. Later in the interview, he criticises Louise Rosson for making misleading public statements, prompting this response from the interviewer.
Which you knew perfectly well at the time she was saying it because you had the document.
That wasn’t a horrendously smart thing for her to do, I admit that.
Here, Mr. McCully Dodges a suggestion that his behaviour was unethical with a magnanimous concession that Louise Rosson’s behaviour was stupid. Brazen, but effective.
Undoubtedly Prime Minister Helen Clark is New Zealand’s leading exponent of the Dodge. Her answers, even when not quite on point, merge seamlessly with the questions. Take her description of the time she ticked off Tariana Turia for comparing the plight of Maori after colonisation to the holocaust:
Was Tariana Turia happy with your message to her?
I think she’s pretty upset and distressed by what’s happened over the last week as well. Now you could say it was self-inflicted but that doesn’t exactly help. I’m trying to take a constructive approach. I have known her for a number of years. I know of the good work she’s done and I want to see those skills used to improve a whole lot of statistics for the Maori community.
She uses the Dodge again for this question, though slightly less successfully. The pause here is a little too long for maximum effect.
Did she indicate she was happy to take advice or direction from Mr. M?
I think she really wants to do an effective job. She has strong views and they’re not always popular ones.
Did she defend her right to express those strong views in the future to you?
Ah, what we’ve been talking about is how she can express views in a way that don’t cause offence.
And is she happy with the way you’ve come up with is the right way?
Well, I hope so.
Did she not give you that assurance?
Well, I found her wanting to deal with it constructively. She is not in denial about it. She knows there was a firestorm last week….
Artful dodging indeed. Former Prime Minister Jenny Shipley also uses the Dodge from time to time, but with slightly less facility. Here, she fields two curly questions from Sean Plunket about visiting East Timorese Nobel Peace prize winner, Jose Ramos Horta ,who was in the New Zealand during APEC to plead with world leaders to stop Indonesia slaughtering his people. However, instead of replying directly, Mrs Shipley uses the Dodge to answer the less taxing question: is Mr. Ramos Horta likely to meet anyone here?
Mr Ramos–Horta here today, what sort of official status will he have at APEC if any, and what can the New Zealand government do to assist him in the lobbying he clearly wants to do here?
Well obviously there are a lot of people who will want to meet him, Sean, and already from discussions I’ve had this morning, I’m sure that some meetings will occur.
However, Mrs Shipley is much more talented at employing the fourth strategy – The Smother Tackle. The Smother Tackle involves wrapping the interviewer in a blanket of vague words, generalisations, homilies and obvious facts which are slightly relevant – so that even though you are not answering the question, you come across as so competent and reassuring that the question gets swallowed up by your answer. In this fine example, Mrs. Shipley is again talking about the crisis in East Timor in 1999.
He was also talking about a ready reaction force that would move in within 24 to 48 hours. If Habibie turns around and says martial law isn’t working I will want help, will New Zealand be part of such a force?
Well again, I think we need to wait and see the conditions that prevail then, but I can give you a clear indication that the New Zealand government has agreed to make troops available – we’ve had discussions with the PM of Australia, we’ve had discussions with President Habibie and also with Kofi Annan today. We would certainly make troops available if the UN said that either a coalition of the willing or a UN peace-keeping force was required, depending on the circumstances or the conditions we most certainly would consider assisting.
Excellent. What’s more, to dispel any concern that all that talk about conditions and discussions and indications and circumstances may be a little imprecise, Mrs. Shipley compensates with liberal use of the words “clearly” and “certainly” which provide an air of decisiveness, even though her answer really amounted to “We’ll have to wait and see.” Mrs Shipley continues to make marvelous use of the Smother Tackle throughout the rest of the interview. For example, notice that the answer to the next question is actually “No”.
So are armed forces now on a 48 hour alert?
We are certainly on 14 day alert as we speak. And I have a group of Ministers who have the power of anytime to consider information as it comes forward. We can move as quickly as we are required if we are requested to do so.
Is it likely that the defence forces will be put on a 24 or 48 hour alert within days?
We have a 24 hour alert for the C130s that may be required to evacuate people out of Dili. They are already on 24 hour alert, these are the people associated with the two aircraft and if they are required they are in a position to go at any time. If we are required to join a force we can bring the timing down depending on the request. I don’t want to commit to a 24 hour because I have not discussed the wider allocation of troops on that time basis at this stage. What I can tell you is that New Zealand has been preparing for some months to see that we not only have the people but also the equipment ready to make a contribution in this area.
Extraordinary. Notice that the answer to that question was, “I don’t know”.
Our next example of the Smother Tackle also comes from Mrs Shipley. This time, she’s being asked whose heads are likely to roll over the Incis debacle.
Who are some of the other individuals who will be scrutinised?
Well again, I think there have been many players, some of them have been named in select committee reports, some of them have been in other documents that have been released publicly. I don’t intend to implicate any individual or group of people, I intend to leave it to the commissioners to inquire into this issue based on the terms of reference the govt will approve. And once this report has been received the govt will see whether there are any individuals or groups of people who need to be held accountable or responsible for any failure that’s found.
In that response, Mrs Shipley also used elements of another strategy – the Block. To use the Block, you simply have to come up with a plausible excuse for not answering. Usually it won’t be too hard to find a report that you’re waiting for, and if there isn’t one, you can always commission one. Here are some good Blocks.
Look I’m not going to be trapped into games of words.
It’s inappropriate that I comment on that for you.
I certainly haven’t considered the questions that you’re putting to me at this stage.
The Minister of Social Services, Steve Maharey also used the Block when it was claimed that the Department of Work and Income was shortchanging beneficiaries millions of dollars worth of beneficiaries.
Do you agree with the data?
There’s obviously a dispute about this, Sean, in the sense that the Department of Work and Income is saying that they have behaved in the way that they should and Mr Hackwell and his team saying that there are people who are missing out. My job as a member of a new govt of course is to ensure that there is no confusion – this government has made that clear.
The genius behind Mr. Maharey’s responses throughout this interview – in which he’s essentially saying the government doesn’t know who’s right – is how often Mr. Maharey is able to talk about how clear his government’s policy is. Later, the discussion turns to a very prickly question indeed – will the government backpay beneficiaries who’ve missed out over the years if it turns out the department of work and income has been getting it wrong?
Hackwell: I would have some argument with the Min about the retrospectivity. Going backwards. This entitlement has been an entitlement for that time. Now if the dept discovered that someone had been overpaid five years ago they would go back and get that money. And what’s good enough for the goose has to be good enough for the gander.
Interviewer: Fair point Steve Maharey?
Maharey: It may well be, but I just have to say to Kevin and people who are listening that the govt is not saying anything about retrospectivity here. We have been clear about our policy and we will deliver on that.
A splendid answer. First, he blocks the question about retrospectivity simply saying that the government isn’t talking about it. Then he is able to boast about how clear the government’s policy is even though he’s admitted the government isn’t sure whether thousands of people have been shortchanged. And finally, he promises to deliver on that policy even though there’s nothing actually being delivered except a promise not to compensate for any botch up.
Finally, if you are getting tired of blocking, dodging, tackling and flipping, another tried and true tactic is to go on the attack. One ploy is to attack the critic, as we see Prime Minister Helen Clark do here over the Sunday Star Times revelations that she opposed a low income housing development in her neighbourhood.
Is this a case of not in my backyard for the PM?
The story is a complete and utter scam Sean.
Helen Clark uses the same strategy when asked about Richard Poole’s open letter to the government blaming its economic policies for the brain drain.
I think there’s a beat-up going on here ably assisted of course by Mr. Kerr, and I think it’s time the Business Roundtable had a look at Mr. Kerr’s employment.
Here is former SOE Minister Tony Ryall, defending his government against allegations that it collaborated with a Timberlands PR campaign against conservationists.
Finally and quickly Minister is there enough in this book or in the allegations made that you believe warrants further investigation by yourself or anyone else?
Look, this is part of an ongoing campaign against sustainable forestry by Nicky Hager, I think it should be seen as a political document and as such I don’t think it warrants the time of New Zealanders to read it, but certainly I think the media have given the book a lot of sales and promotion and I think Mr Hager will be very happy.
You’ll see that Mr Ryall has attacked not only his critic, Nicky Hager, but also the media for taking any notice of him.
Attacking the media may be your most useful strategy when your back is against the wall. In this, politicians of every stripe have much to learn from NZ First leader Winston Peters. He accuses the media of repeating itself…
Look, you’ve already said that and let’s not waste everybody’s time.
…of hiding the facts…
Mr Plunket, you can sit here with the report in front of you and keep everybody in New Zealand ignorant of the facts.
…of getting its facts wrong…
No no no no no . Now hang on a second. Just get this thing correct.
…of not giving him a chance to have his say…
Did it or did it not contain new and-
Can I just finish Mr Plunkett?
Did it or did it not-
Can I just finish what I’m saying here?
No Mr Peters. You can’t.
Well I’m going to finish what I’m saying here and you’re not going to overtalk me.
Well I just wonder if you could answer?
Ka Awatea was a programme that we wrote in consultation with the Maori people and it set out the strategies in four key areas whereby we might turn around the performance of the Maori people and it asked not for more money, but for less money and better focussed money on those outcomes.
He also accuses the media of sloppiness and prejudice:
Mr. Peters your speech in Waipukerau suggests that separate programmes can be racist and that separatist policies have been pursued. I’m just trying to reconcile that with the fact that you under Ka Awatea promoted…
I know what you’re trying to do, but you’re getting it wrong again but you have obviously not read Ka Awatea, took no time to study it, and you’re just coming up with a whole lot of prejudice when it comes to this policy and I regret that. Because we’re talking about the most serious issue facing this nation at the beginning of the 21 st century.
When he was asked whether he’d be financing his own complaint against those involved in the Winebox allegations, Mr. Peters even accused the media of complicity in a cover-up.
Well really that statement is ridiculous. Really it ill-behoves you as a servant of the state on state radio to be making that sort of stupid excuse for Mr Birch and a government that’s been involved in a long, long coverup….
Those who prefer an approach which is a little less pugilistic can model their answers after those of Helen Clark. In this interview, she is asked about John Tamihere and Willie Jackson’s objections to parts of the government’s health reforms. Three times, she delivers a brief counter-punch against the media then neatly executes a Flip, using transitional sentences like “The issue in the end is” or “What we have is.”
They don’t seem to think it’s the same thing as developing a treaty partnership with the tribes of the respective areas which the boards are required to do. That’s the kind of relationship they want.
Well I think that gets into semantics. The issue in the end is, who gets a say in developing strategies and in service delivery. And that is a say which is open across the board to the urban organisation or the hapu or iwi one.
…
You expect Willie Jackson and John Tamihere to change their minds on this then? Seeing it’s so clear that there is decision-making here for the urban authorities.
Again I think that you are beating this up. What we have is a willingness to work together to get the very best outcome we can for Maori health and we will do that.
So if Willie Jackson and John Tamihere read the legislation properly, they’ll change their minds?
No I think you’re being extremely patronising at this point. What I’m saying is that we have a common commitment in the Labour party to work for organisational forms and strategies which will improve Maori health and we will do that.
Here are a few other useful ways to attack an interviewer who is interfering with the public’s right to hear what you have to say:
Well, if you would let me finish.
Well, I think that’s overstating it actually.
I don’t think the confrontational overlay you’re putting on this is particularly helpful.
Oh, I think it is a bit harsh to try and bring me into this as some sort of villain.
When you have mastered the individual question-ducking skills, you will be ready to put them together in combinations. For example, you may need to Dodge or Block for a bit while you are waiting for your chance to Flip and then Attack. Here’s Jim Anderton being questioned about Sandra Lee’s comments comparing Maori depopulation with the holocaust.
If she wishes to apologise to ordinary New Zealanders if offence is caused, she can do that of course,
Is she going to?
Well that’s over to Sandra.
Have you discussed it with her?
I haven’t discussed ordering Sandra Lee to make an apology anyone, that’s a personal thing.Do you think it’s likely that she will?
That’s over to her but let me just say this – Mrs Shipley has no credibility talking about race relations and causing ill feeling in race relations – her statement this year is the most incredible incitement of race relations…
Here is a magnificent combination of Dodging, Smothering, Flipping and Blocking from Jenny Shipley, in response to a question about the Singapore Free Trade Deal.
Now the meeting with Jim Sutton you told us was quite long arranged to discuss this. So can you tell us what is your proposal to work your way through this?
The discussions were very useful. Obviously we had access to officials who had been advising the Minister and they were very forthcoming about what they had been going through. Look, National is not prepared to vote on the text on the text of the current treaty in Parliament as it currently stands. But there are a series of ways that our needs might be able to be accommodated while still meeting the govt’s desire to sign this treaty and I understand that the PM made comments late yesterday afternoon that she was willing to sit down and talk about what options may be there. It’s not appropriate that I perhaps discuss in full how this might be arranged because clearly political parties have different views and there needs to be some time to see if they can be accommodated.
Finally, if all else is lost, you can turn to the Amazing Shipley One-Size Fits All Multi-purpose response. This remarkable answer, which was given in reponse to a question about on East Timor, can actually be utilised as an answer to almost any question an interviewer can think up. So if you’re facing a tricky question about what you’re going to do about abortion, about crime, about golden handshakes, about foreign policy anywhere, about, in fact, anything at all, here’s all you need to say.
What I want New Zealanders to know is that we are doing all the preparatory work with some very clear instructions that were given yesterday morning so that the New Zealand government has all the choices available to it as we get this new information in.
That’s worth listening to again and committing to memory.
What I want New Zealanders to know is that we are doing all the preparatory work with some very clear instructions that were given yesterday morning so that the New Zealand government has all the choices available to it as we get this new information in.
Some last words of advice. Talk a lot about the people of New Zealand and what they really want to know. If something’s gone wrong, try to pass the buck or say that it happens all the time and is nothing to worry about. At the same time, use the word “responsibility” as often as you can. Voters respond well to it.
We hope you have found this tape useful. With a little practice, we are confident that you never need be troubled by irksome media questions again.
MUSIC
Topics: Media ethics | Comments Off on A politician’s guide to ducking awkward questions
NZ Censor Doesn’t Stymie Grand Theft Auto Plot
April 28, 2008
You could be forgiven for getting the opposite impression from the NZ Herald’s headline:
Censor Stymies Grand Theft Auto Plot
It rather suggests that our censor has carved out chunks of the latest version of the wildly popular – and wildly violent – video game Grand Theft Auto.
Nope.
If you read the story carefully, hang your head sideways and squint a bit, you’ll see what’s happened is this. The distributors of the game cut some (non-crucial, they say) bits of the game in order to get an MA15+ game rating in Australia. (There’s no R18 rating over there. All of the previous versions of the game have been rated R18 here).
So, in fact, it seems that even the Australian censorship authorities didn’t censor anything (though it’s true that the distributors have made the changes to comply with the requirements of an MA15+ rating before submitting the game for classification). Unhappily for NZ gamers, we’re on the same distribution loop, so we’re getting the edited version, even though the unedited version would probably also have been rated R18 here. They’re suffering because of the daftness of an Aussie regime that doesn’t include an R18 rating.
But nobody’s actually censored anything, except the distributors themselves.
Topics: Censorship, General, Media ethics | Comments Off on NZ Censor Doesn’t Stymie Grand Theft Auto Plot
A tragic comment
April 24, 2008
Perhaps Objectivist Lindsay Perigo is within his rights to complain about the “media ghouls'” lack of respect for the dignity of the Mangatepopo canyoning victims’ families and friends.
But he’s drawing a long bow to blame the invasion of privacy (and the subjects’ willingness to succumb to it) on his all-purpose whipping boy, “statism”:
It is testament to how successful statist governments have been over the decades in persuading us that we’re all common property with no claim to dignity.
Come again? Isn’t his usual beef that the state promotes victimhood and mollycoddles us by pandering to touchy-feely dignity interests?
If the media is more intrusive nowadays, and people are more accepting of that intrusion, isn’t it more sensible to lay the blame on a more competitive, profit-driven media? (And Perigo would normally decry the “statist” remedies – through the Broadcasting Standards Authority or the tort of invasion of privacy, for example – set up to enable people to assert and protect their dignity.)
A more nuanced discussion of the media treatment of the tragedy emerged from Media7 this week. Despite occasional media excesses, there’s a good case to be made that the school’s actions in allowing unprecedented access to scenes of grief didn’t do the sort of harm that’s usually used to justify barring the doors to the “media ghouls”. (To be fair to Perigo, he’s not suggesting that the media ought to be barred, but that people should show more self-respect than to welcome them in.)
Topics: Broadcasting Standards Authority, Media ethics, Privacy tort | Comments Off on A tragic comment
Soapbox: internet company ISPed off
April 24, 2008
Don Price, head of the Hawkes Bay internet company Wasp, wrote in to argue that ISPs are grown-up enough to develop their own industry standards:
I find it very interesting that once again we (the internet business community) through the new Copyright Act will have the unenviable privilege of the legal fraternity with their intellectual might and wisdom descend upon us in the pursuit of financial gain to purposely complicate the industry and its new long over due copyright act. It is with great dismay that this should be allowed to happen to our industry without consulting our own body of “experts” through the internet society.
In the last 15 years our industry along with the operators and their representatives have strived to meet the changing dynamics of the internet. In doing so the ISPs themselves have matured both morally and ethically and have been very proactive and responsive to the rights and privileges of their clients on both sides of the fence. By establishing common acceptable use policies around our known responsibilities as ISPs we have given ourselves the right to question any client material and activities as well as removing such material from our service at any time without legal ramifications. This type of interaction is generally at a personal level regardless of the size of the organisation.
I am worried that level of trust between ourselves and our clients will now be eroded by unnecessary, vague and ill thought through legislation by people who have little knowledge of the intricate interactions between the ISP and their clients. We have been “out here” living, breathing and growing the industry as new regulations have come into force for the past 15 years, the last thing we need is an over legislative load of crap complicating our industry and the interpretation of this new copyright act. We have too many compliance costs relating to our industry already. As an idea a simple solution would be to have a single body formed to ascertain if a breach has been committed and if that breach comes under any part of the new Act (similar to a complaints authority). A set of procedures and time frames are then put into place to remedy the situation.
Topics: Copyright, General, Internet issues | Comments Off on Soapbox: internet company ISPed off
To die like a blog
April 19, 2008
Poneke is reporting that blogger HotTopic has withdrawn a post criticising the Listener and its editor after receiving a (presumably defamation) threat from the magazine’s lawyers.
In its place, there’s a fullsome correction and apology (which looks to have been drafted by said lawyers).
In the comments section of the correction and apology, someone has helpfully posted a link to a copy of HotTopic’s original post. Don’t you just love the internet? On the off-chance that the link is removed in the near future, let me take the liberty of reproducing it here. By all means, pay a visit, and encourage others to do likewise. I hope that the post receives exponentially greater attention as a result of this legal threat.
I don’t say that because I’m a free speech absolutist, or because I think the internet ought to be a law-free zone. In general, I think people who defame others online deserve all they get. I doubt this is the first time internet material has been removed in NZ as a result of a legal threat, and I’m sure it won’t be the last. Nope, I object to this because I think the Listener has used a tenuous legal claim to bully a blogger into retracting some moderate and reasonable criticisms. I don’t like it when anyone does this, but it’s particularly ugly when the heavies are acting for the media.
Some context: HotTopic – a serious blog about global warming – questioned the Listener’s removal of Dave Hansford as its Ecologic columnist. The blogger wondered whether Hansford’s removal had anything to do with his recent column criticising climate change sceptics. The post is largely a model of fairness. It sets out the background facts. It raises questions rather than making allegations. It even allows that the Listener’s editor may have made the change for other reasons. It plainly expresses comment. Readers can judge for themselves what to think. Bloody hell: how many blog posts merit that accolade? (For my part, I doubt Hansford was removed because of the column. The blog post is temperate enough that others have reached that view too).
Those familiar with the laws of defamation will see where I’m going. It looks to me as if there’s an honest opinion defence available here. The law lets people air their opinions, as long as they’re clearly expressed as opinions, honestly held, and based on facts accurately set out or referred to. Those elements seem to be present. (A caveat: I don’t know whether there were significant inaccuracies in the post, and there’s an interesting legal question about whether facts can be said to be accurate if something important is left out. I’d be happy to include any comment or explanation from the Listener here if it likes.)
One bit of the post looks a bit dodgy to me. Although the rest of the post meticulously raises issues rather than making allegations, there’s a passage that says:
The Listener, in caving into their demands, has acted shamefully.
That should be changed to read:
If the Listener has caved into their demands, it has acted shamefully.
In context, though, reasonable readers can easily tell that’s what the blogger was saying.
There are other potential defences. One is truth. HotTopic wouldn’t have to prove that the Listener did indeed cave into pressure, I think. The sting of the article is less than that: it’s that there are reasonable grounds to suspect that it caved in to pressure. That’s an easier thing to prove (though not a gimme). Qualified privilege is also a possible defence, though it would have been wise for the blogger to seek and include comment from the Listener before publishing the post. (Well, if bloggers want to be taken seriously as commentators, then arguably they should be held to the same standards of journalistic responsibility).
The correction and apology looks ham-fisted to me. It even includes a retraction of things that weren’t even in the post.
The proper response would have been a one-line letter politely telling the Listener to sit on its thumb. I doubt that any further action would have been taken. But bloggers, and those who host their blogs, can’t always be that brave. That’s what makes leaning on assertions of legal rights in situations like this reprehensible, I think. I would have been much more persuaded by a thoughtful and factual response from the Listener’s editor on the blog itself setting out the magazine’s version of the story. It would have been much cheaper. And much more in keeping with the Listener’s commitment to open inquiry. And it wouldn’t have produced what’s likely to be an explosion of interest in the criticisms…
Topics: Defamation, Internet issues, Media ethics | Comments Off on To die like a blog
ACCURACY UNDER ATTACK
April 18, 2008
As an occasional critic of the Press Council in the past, it would be churlish of me not to acknowledge its robust (and unanimous) ruling in a complaint I brought on behalf of the Coalition for Open Government. The complaint was mostly about the NZ Herald’s front page editorial excoriating the Electoral Finance Bill, headed “DEMOCRACY UNDER ATTACK”.
The Herald fulminated that the bill would require anyone wanting to spend any of their own money electioneering to register with the Electoral Commission. That seemed to grossly restrict everyone’s political free speech – an impression underscored by the subhead “Speak now or next year hold your peace”. But it wasn’t true. Only those who want to spend more than $12,000 electioneering (or $1000 in an electorate) need to register. Still, much better for the Herald’s campaign to brush over the fact that this would only affect a small number of wealthy people and organisations.
Most irritating Herald argument: its mistake didn’t really matter as “it does not undermine our general view of the shortcomings of this bill.” Well, bully for the Herald. But one might have hoped that they would have felt embarrassed to advance this as a justification for failing to publish accurate information and let readers make up their own minds.
Best Herald argument: it had published the accurate information in three other stories, including one that ran on the front page. But those stories weren’t in the same issues as its misleading editorials; the correct information came toward the very bottom of those stories; and it was omitted from dozens of other stories dealing with the EFB.
The Press Council upheld the complaint, and said the Herald really should have run a correction. As COG had argued, publications are free to comment and campaign as they see fit, but they have to get their basic facts right.
To the Herald’s credit, it published the whole ruling with a teaser (not sure that’s quite the word they’d use here) on the front page. Also to the Herald’s credit, it has been very good at publishing the information accurately since COG laid its complaint.
Topics: Press Council | Comments Off on ACCURACY UNDER ATTACK
New notice-and-takedown regime for ISPs
April 10, 2008
Under the most significant provisions of the new amendments to the Copyright Act (which have been passed by Parliament but haven’t yet come into force), ISPs can be liable if their users infringe copyright. But only if:
- They’ve authorised or controlled the copying; or
- They’ve stored the material and know or have reason to believe it’s an infringement of copyright (for example because they’ve received a notice from the copyright owner telling them it is), and don’t take it down (either by deleting it or preventing access to it).
If the ISP receives a notice – regulations about the content of such notices haven’t been drawn up yet – and takes material down, it must inform the user straight away, and ensure the material isn’t cached.
ISPs must also have policies for terminating repeat copyright infringers.
This notice-and-takedown process actually offers protection to ISPs, who might otherwise be liable for copyright infringements they didn’t even know about. But might it be abused? As I’ve said before, there’s an awful lot of copyright infringement on the web. But by and large, most copyright owners don’t mind. Mostly it’s just ripping off news sites, and usually contains a link. Those who do mind may not care enough to issue a notice. Those who do care enough, well, they’re within their rights. And the remedy doesn’t cost anyone anything much.
What if a copyright holder deliberately asserts rights he or she doesn’t possess? That may be an offence under the Fair Trading Act or the Crimes Act. It’s not likely to happen too often. Anyway, if the true position can be shown, then the ISP will no longer have “reason to believe” it’s an infringement and can put the material back up.
So I don’t think this is likely to pose too much of a threat to free speech in practice. (In fact, this may become a model for other content disputes. Why should copyright owners get a nice shiny new remedy, but not, say, people who think they’ve been defamed, or had their privacy breached, or their confidential information posted? But that’s a much bigger discussion. I don’t want to suggest that there’s an easy answer).
But there’s a gap here. What if the ISP diligently takes down the material, and contacts the user, and the user says: “That’s no breach of copyright! I’ve got a fair dealing defence” (or something like that)? There isn’t anything in the Act to sort out what happens when there’s a genuine dispute. It will be up to the ISP to form a view about whether it has “reason to believe” there’s an infringement. If the ISP takes, and acts on, legal advice about whether there was a copyright infringement, it would be very likely to be safe, even if a court ultimately decides that there was a breach of copyright. Alternatively, the ISP might put the heat on the user, and say: “you provide me with a credible legal opinion, and we’ll put it back up”. Or the ISP might go back to the complainants and ask them to explain why they think it’s a breach.
I rather suspect that this is much more of a role than ISPs are going to want. And that budget-conscious ISPs are going to take the easy way out and keep the material down. Of course, they’ll have to juggle their reputations and customer relations, too…
I don’t want to overstate the problem. Most copyright infringements are obvious.
But I don’t want to understate it either. If you want to fisk someone’s work on your blog, and in the course of that, republish large chunks of it, the fiskee could send a takedown notice, and your material will probably have to be removed. You’ll have to convince your ISP – perhaps at the expense of a getting a legal opinion – to put it back up.
I haven’t thought about this hard, but I’m inclined to think that the best process in such situations would be for the ISP to be required by law to contact the notice-writer and say: “The user disagrees that your copyright has been infringed. Here is the user’s name and address. I am required to reinstate the material in 24 hours unless you get a court order.” This system would be much easier for ISPs to administer, since it wouldn’t revolve around their discretion. It would still provide a remedy for copyright owners, but it would put the heat back on them in cases of dispute. The danger that users could block such notices too easily could be met by requiring them to pay a successful copyright owner’s full court costs. There may be bigger pitfalls to this system than I’m imagining, though…
Topics: Copyright, Internet issues | Comments Off on New notice-and-takedown regime for ISPs
Indian IPL league manacles reporters
April 10, 2008
You can film our 20/20 matches, but you can’t put pictures on the web. Oh, and we can use any pictures you take as we like, for free.
These are the reporting conditions proposed for the IPL’s new cricket league. The UK’s Newspaper Publishers Association calls them “some of the most restrictive and burdensome access arrangements ever seen.”
Conditional access agreements aren’t new. Journalists are given information in exchange for promises of confidentiality. Celebrities may insist on vetting photos or stories as the price of an interview. Interviewees may insist that some topics are off-limits. Concert-goers are prevented from making recordings. PM Robert Muldoon once famously excluded Dominion reporters from his press conferences.
But such restrictions are becoming more serious. The reality is that those who control events or images or information have increasing incentives to exploit their legal rights to crank up the profits, ensure that the coverage is favourable, and punish those whose coverage they disapprove of, or who can’t afford to pay for access, or won’t accept the conditions.
Topics: Copyright | Comments Off on Indian IPL league manacles reporters
Canadian Supreme Court to decide on new defamation defence
April 10, 2008
Leave has been granted for the Canadian Supreme Court to rule on whether Canada will recognise a public interest/responsible journalism defence along the lines of Reynolds in the UK (and related to the Lange cases in NZ and Australia). I discussed the Canadian Court of Appeal decision here. The Canadian decision is likely to be influential in the development of NZ’s law.
Topics: Defamation, General | Comments Off on Canadian Supreme Court to decide on new defamation defence
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