Regulating broadcasting content
May 26, 2008
You may know that the government is having a big think about what to do about the patchwork of increasingly moth-eaten laws and regimes that govern broadcasting content.
It has produced discussion papers and invited feedback. The submissions are here.
Topics: Advertising Standards, Broadcasting Standards Authority, Copyright, General, Internet issues, Media ethics, Press Council | Comments Off on Regulating broadcasting content
The biggest mystery about the Kahui case…
May 25, 2008
… is why so many journalists seem to have no idea of what an acquittal means.
I’m getting pretty sick of statements like this one, from today’s Herald on Sunday:
…the jury of seven men and five women were unanimous in their view that he was not the killer.
No, they weren’t (or if they were, their verdict doesn’t tell us so). All they found was that the charge hadn’t been proved against him beyond reasonable doubt. For all we know, every man jack on that jury believed he was guilty – but just couldn’t be sure enough to convict.
Juries don’t find people innocent. Nor do they “clear” people, really. A juror can be 90% convinced of guilt and still vote to acquit. This shouldn’t be difficult for journalists to understand and write about properly.
Topics: Media ethics | Comments Off on The biggest mystery about the Kahui case…
Flashbacks
May 20, 2008
A few of these posts might be familiar to those who have subscribed to the discussion group NZMLJ. From time to time, I’ll reproduce some posts of interest from the archives.
Topics: General | Comments Off on Flashbacks
How the Clean Slate Act applies to the media
May 20, 2008
The Clean Slate Act effectively expunges people’s old, minor criminal offences. But does that mean the media can’t publish them?
Reading the Act as a whole, it looks like it doesn’t. Yes, it’s an offence for a journalist to ask someone to disregard the Act, which allows people to lie about particular convictions if they qualify. And it’s an offence for officials who know about the convictions to reveal them to the media. But what if the media know about them already? What if, say, a reporter does a news search and discovers a story about an old conviction that’s covered by the Clean Slate Act? Or finds out from a third party? Can that be included in a story?
My view is that it can. The Act only seems to apply to questions asked directly of an individual and government agencies holding that information. Section 6 says as much, and seems to limit the scope of the Act. But there’s one thing that gives me pause. Section 17(1) says:
A person commits an offence if the person has access to criminal records, and knowing that he or she does not have lawful authority under this Act, or being reckless as to whether or not he has lawful authority under this Act, discloses to any person, body or agency the criminal record, or information about the criminal record, of an eligible individual that is required to be concealed.
Might that cover the media? Here’s my thinking:
- The media don’t have access to criminal records as defined under the Act, which seems to be limited to “official records”. If the media get the information elsewhere, they can publish.
- The media aren’t given lawful authority under the Act to publish, but they don’t need it, because the Act doesn’t apply to them.
- In publishing information acquired elsewhere, they are not revealing information that is “required to be concealed”. Nowhere does the Act require the information generally to be concealed. It requires particular people to conceal it in particular circumstances. And it requires particular questions not to be asked directly of the Clean Slated person. But that’s all.
- The Bill of Rights would support a narrow reading of the section, as does the scheme of the Act.
This seems to accord with Professor Burrows’ view in the Journalists’ Guide, and Burrows and Cheer in Media Law in NZ, who note that the Select Committee accepted that some information was in the public domain and nothing could be done about that.
Topics: General, Journalism and criminal law, Privacy tort | Comments Off on How the Clean Slate Act applies to the media
Who needs the BSA?
May 20, 2008
This might surprise you.
I was looking at broadcast licences the other day. As you might guess, they can be subject to conditions, and most of the ones that are imposed relate to technical issues: making sure there’s no overlapping use of the spectrum, for example. Mostly, they’re nothing to do with the content of what’s broadcast. But there’s an exception. All broadcast licences under the Radiocommunications Act (and that includes TV broadcast licences, since they have to use the spectrum too) are subject to the conditions in Schedule 1 (see sections 99 and 101).
What are those conditions? The interesting one requires licencees not to broadcast material that is false, fictitious or misleading. (MED tells me that this may have had its genesis in preventing false distress signals, though the schedule creates obligations that are untrammelled and seem to apply to all broadcast programming).
Even more interesting: the Radiocommunications Act contains some fairly detailed remedy provisions. On my reading of the Act, a broadcast that breaches the conditions of the licence (including those in Schedule 1) is a prohibited broadcast (see sections 101(2) and 103). This is an offence (sections 103 and 128) and can trigger civil remedies – damages and an injunction (sections 103 and 117-119). Really – those remedies are actually set out.
MED tell me that these provisions have never been used (or even attempted to be used) to punish or restrain a broadcast programme, though oblique reference was made to them in Ransfield v TRN [2005] 1 NZLR 233, at para [23].
But it remains an intriguing possibility. It seems to present an alternative remedy to going to the BSA, and indeed to an action for defamation, in cases where broadcasts are – or will be – false or misleading. It’s better than a complaint to the BSA in several ways: it can found an injunction or damages, and may be less subject to the BSA’s ability to carve out exceptions to the accuracy principle (though it’s possible – likely even – that the courts would create their own limitations, such as a materiality requirement). Injunctions may be easier to get than they are in defamation cases, where they are almost impossible, though again, it’s not clear what threshold questions would be applied, or how the remedies might dovetail with the NZ Bill of Rights Act.
Topics: Broadcasting Standards Authority, Defamation, Injunctions, NZ Bill of Rights Act | Comments Off on Who needs the BSA?
Chatham House Rule
May 20, 2008
There is only one Chatham House Rule, and this is it:
When a meeting, or part thereof, is held under the Chatham House Rule, participants are free to use the information received, but neither the identity nor the affiliation of the speaker(s), nor that of any other participant, may be revealed.
Note that it allows quoting, as long as the speaker is not identified. I’m increasingly getting the feeling that when people blithely say “Chatham House rules apply”, they don’t understand this implication. Should journalists rely on it? (I confess I have).
Topics: Media ethics | Comments Off on Chatham House Rule
Free speech log
May 12, 2008
Some upcoming free speech cases:
Electoral Finance Act judicial review: strike-out application to be heard on 15 May. Applicants John Boscawen, Garth McVicar, Rodney Hide, and Graham Stairmand now want the court to rule that the Attorney-General should have advised Parliament that the Electoral Finance Bill was inconsistent with the Bill of Rights Act, and that the Electoral Finance Act, now that it’s passed, is inconsistent with the Bill of Rights Act. The Crown seeks to strike out both challenges, on the grounds that they are contravene Parliamentary privilege.
My guess: the first challenge (the missing A-G report) will be struck out, and the case will be allowed to proceed on the second (the question of the inconsistency of the Act with the Bill of Rights).
[PS: On Wednesday, the Wellington High Court will hear National’s judicial review application against the Electoral Commission’s decision that the EPMU can be a third party for EFA purposes.]
Fairfax/Pankhurst contempt: set down for five days in the week beginning 15 September before a full bench of the High Court (two judges). This concerns several Fairfax newspapers’ “Terrorism Files” stories. It is shaping up to be the most significant contempt of court case in NZ’s history.
Important fact from the Crown’s application: the Crown’s case crucially revolves around the papers’ publication of material from communications intercepted by police: material that is (a) illegal to publish, (b) inadmissible in the trial, and (c) pretty damned prejudicial.
Fascinating issue: to what extent will the public interest in the information be relevant?
Broadcasting Standards Authority challenges: TVNZ’s lawyer Willy Akel has two challenges to BSA decisions. One was argued last week, against this BSA decision, a finding that a Close Up story about a suburban brothel was inaccurate and unfair because there wasn’t sufficient evidence that the place was indeed a brothel. The key issue seems to be whether the BSA should have given TVNZ notice that they were looking at concluding that the house wasn’t a brothel.
The second challenge is to this decision (which I discussed here). It’s being heard on Thursday in the Wellington High Court.
Topics: Broadcasting Standards Authority, Contempt of Court, Electoral speech, NZ Bill of Rights Act | Comments Off on Free speech log
Okay, have at me
May 11, 2008
This blog is mostly about free speech. It should be becoming clear that my philosophy is that freedom of expression is extremely important and that any limits on it should be carefully defined and properly justified. That philosophy tracks closely with the framework of the Bill of Rights Act, which is relevant to almost all speech issues in NZ, and that’s why I often discuss it and get steamed up when (as often happens) it is overlooked or poorly applied. I’m about to run a series of posts taking pot-shots at the system for checking compliance with the Bill of Rights before bills are introduced into Parliament.
So: I expect there are people out there who would accuse me of hypocrisy for supporting the Electoral Finance Act.
I don’t think I’m being hypocritical. I accept that electoral finance laws limit speech, but I argue that the advantages of reform meet the test of demonstrable justification under section 5 of the Bill of Rights Act. I set out some of my arguments here. I absolutely accept that others disagree, and do so strongly. Still, I am not blindly cheering for the Electoral Finance Act. I think (and have said) that the process followed by the government was terribly flawed, that the first version of the bill contained unjustified restrictions on speech, and that the new law isn’t perfect.
I don’t especially want to get into a debate about the nuances of the law. Go to NoRightTurn or Kiwiblog for that. But I thought I’d carve out a space for people to give me a slap over this if they feel like it.
I think I might kick things off by linking to Bryce Edwards and Stephen Franks, who hold contrary views.
Topics: Electoral speech, NZ Bill of Rights Act | Comments Off on Okay, have at me
Get over it!
May 11, 2008
Some people think flag-burning is offensive. Fine.
Some argue that it’s not speech. Not so fine. One of them, somewhat extraordinarily, is Stephen Franks:
The effect of flag-burning derives solely from its power to shock and offend. It is not speech; it is not expression. It is the suppression and destruction of others’ expression.
As someone with respectable libertarian credentials, Franks ought to know better. He was condemning Paul Hopkinson’s burning of the NZ flag outside Parliament. After taking great care to ensure that the burning did not endanger anyone, Hopkinson torched a flag to protest against the NZ government’s hosting of Aussie PM John Howard, given Australia’s involvement in the Iraq war.
I think Hopkinson’s message was pretty clear. He destroyed a symbol of our state because he was so disgusted with the government associating itself with that war, and he wanted to invite us to notice and share his outrage. Yes, he could have written a letter to the editor, which may or may not have been published, or held up a wee sign, which may or may not have attracted attention. There is a long tradition of flag-burning for political effect. It’s seldom difficult to work out what message is being conveyed. People don’t tend to burn flags just for the sake of it.
Apparently for Franks, though, Hopkinson’s message was as obscure and offensive as if he had dressed up in a bunny suit outside the railway station and thrown faeces at people. “Flag burning is not speech,” Franks says.
I’m pretty sure that Franks was just posturing. He’s smart enough to work out that flag-burning is communicative behaviour. He just didn’t like the judge’s decision, because he felt she mangled the interpretation of the Flags, Emblems, and Names Protection Act to let Hopkinson escape prosecution. That’s a fair argument to make. I confess I was surprised at the decision, too. At best, it was pushing the Bill of Rights Act to its limit.
Still, Franks has called for flag-burning to be properly banned. Franks wouldn’t normally argue for speech to be outlawed just because he (or even many people) disagree with it. What I think he really meant was that Hopkinson’s manner of conveying his message was so offensive that there is justification for banning it. And by “offensive” he means, ultimately… many people disagree with that manner of conveying a message.
I say to those people: suck it up. One of the things that flag stands for is the right to convey your message in ways that other people might find offensive. I don’t want the state telling me how I should restrain my expression of political views to means it finds congenial. Being shocking might be part of the way I like to speak. It may be the best or only way I can attract attention to my message. If I’m not hurting or endangering anyone, or breaking any other laws, there’s no justification for limiting my speech.
Part of the judge’s reasoning in Hopkinson was that there’s no demonstrable justification under the Bill of Rights for preventing non-dangerous flag-burning, and she surely got that bit right. It wouldn’t have been an offence, for example, for Hopkinson to burn an Australian flag outside Parliament, which shows how silly the law is. The US Supreme Court has reached a similar conclusion. [Update: but see Graeme’s delightful post in the comments section.]
The sensitivities around the flag-burning offence are one reason that the Solicitor-General must give consent before anyone can be prosecuted for flag-burning. Good. But now it looks as if police are seeking to do an end-run around the flag burning law. They’re using the offence of offensive behaviour instead. I think that stinks.
In this case, they successfully prosecuted Valerie Morse for offensive behaviour for burning a flag during a last year’s Anzac Day ceremony. She was protesting against the address of the Secretary for Defence. The ceremony was by the cenotaph. Morse was across the road in the University’s grounds.
The district court judge accepted that Bill of Rights was relevant, and that he should be guided by the Court of Appeal’s approach in Brooker v Police. I won’t do an exhaustive legal analysis here. But I’m surprised and concerned that, in the judge’s discussion of whether a finding of offensive behaviour is justified, there is no mention of the fact that there’s a specific crime of flag-burning which requires the Solicitor-General’s consent before prosecution. This use of the offensive behaviour offence can be seen to cut across that law, and there’s a good argument that the use of the more general section is not a justified limitation on free speech. Nor is there much acceptance of the centrality of political speech to section 14 of the Bill of Rights Act, the widely recognised importance of giving protesters considerable leeway in their manner of speech, and the need to treat manner-and-form restrictions (ie the ever-present argument that “we’re not affecting your speech, simply the manner of delivery”) suspiciously when they’re aimed at content.
But perhaps that’s too much to expect at the District Court level. The judgment is under appeal, and I’d hope for more from the High Court.
My argument is not solely a legal one. As a public, we’ve got to grow up, put aside whatever ire we feel at flag-burners, and just accept that they’re part of the cost of freedom of expression. Treating flag-burning as offensive is… offensive to democracy.
If you’re reading this, Stephen, I’m looking forward to your reply. I defy you to stick to the issue here and not try to sidetrack the debate onto the Electoral Finance Act, which I suspect you’ll be tempted to do. I’m happy to open up a debate on that separately. [In fact, I’ve just done so, in the post above.]
Topics: NZ Bill of Rights Act, Protest speech | Comments Off on Get over it!
JK Rowling and the Chamber of Secrets
May 11, 2008
Actually, it’s not a chamber that she’s looking to keep secret. It’s a photograph on the open street.
She’s sued over the publication of some paparazzi photos of her and her husband on a street pushing a baby buggy containing David, their 19-month old baby. And the UK Court of Appeal has just ruled that they have (or rather David has) an arguable case.
You might recall that this case is almost identical to the NZ case of Hosking v Runting, where our CA rejected a privacy claim.
This falls against the backdrop of a clash between the European Court of Human Rights in the Von Hannover case (which held that Princess Caroline and her family have privacy rights even when doing non-embarrassing things in mostly public places, unless the pictures related to some public issue) and the House of Lords in the Naomi Campbell case (which held that even celebrities don’t have privacy rights when they pop out for a pint of milk). The judge at first-instance followed Campbell and biffed out the Rowlings’ case. The Court of Appeal has reinstated the case.
A few quick comments:
- The CA is not saying the Rowlings win, just that they can go to trial. Ultimately, the British courts might yet find no liability here. (Or there might be an appeal).
- The CA focuses entirely on David’s rights. JK and her hubby have not argued for privacy rights for themselves in this case.
- The CA notes that the test in the UK is different. In the first place, their law simply looks for a reasonable expectation of privacy. The CA says maybe bubs has a reasonable expectation that photos of him won’t be published, given that they were taken in a clanestine way, by a paparazzi firm, out for commercial gain, knowing that the parents had tried to protect their children’s privacy and would object to the publication. The next stage in UK law is what they call a proportionality analysis, in which privacy rights are balanced against freedom of expression. This is a rather nebulous exercise and the CA says little about it, except that it’s arguable. In NZ, by contrast, after identifying a reasonable expectation of privacy, we ask whether the publicity is highly offensive, raising the bar for plaintiffs.
- Amusingly, the judgment records that “it is accepted by the plaintiff that he was not himself upset by the taking of the photos.” (When questioned about the issue, he is understood to have said “urf, gesplursh, wheephle” and stuck his fist in his mouth).
- As is becoming increasingly common, the judgment mischaracterises the Peck case as involving a man caught on closed circuit TV “attempting to commit suicide”. No. It was shortly after he had attempted suicide, a significant difference, I think, given that people seeing the footage would just see a distraught guy with a knife.
- The CA seems attracted to a test that says: would you publish this if it involved non-celebrity children? By contrast, the NZ courts seem to accept that there is an element of loss of expectation of privacy just by being a celebrity’s child. This dicta suggests otherwise.
- The overwhelming thrust of the decision, however, is that privacy expectations all depend on the circumstances. In particular: did the parents previously expose the children to publicity? How private is the occasion being photographed? (Family and sporting activities seem generally off-limits).
Perhaps most significant is this comment:
The approved test is not whether a person of ordinary sensibilities would find the publication highly offensive or objectionable, even bearing in mind that young children are involved, but … what a reasonable person of ordinary sensibilities would feel if he or she was placed in the same position as the claimant and faced with the same publicity. The [NZ Court of Appeal] judges did not consider either of the two questions posed through the eyes of the reasonable child, or (more realistically) through the eyes of the reasonable parent on behalf of the child. Although the judge [in this case] recognised the error, he said that neither Lord Hope nor Baroness Hale expressed any doubts about the decision in Hosking v Runting…
This is grist for the mill of those who worry that the test for reasonable expectations of privacy is taking on a subjective flavour, strongly seasoned by the views of those insisting their privacy has been infringed. This is sometimes contrasted with the views of the “reasonable bystander” who might be more detached and objective, and less inclined to see invasions of privacy. The UK court is saying that our judges fell into “error” by not properly taking account of the circumstances of the claimant.
I’m still unconvinced about this. The NZ CA judges did take into account the circumstances of the plaintiff, and in particular, the special position of children. On the other hand, the UK CA insists that its test is an “objective” one (see para 39). I think they would bridle at any suggestion that they were influenced by the particular attitude of the plaintiff (as opposed to the plaintiff’s circumstances) when carrying out their assessment of the reasonableness of the expectation of privacy.
I don’t think there’s a fundamental difference between their approaches. The controlling requirement is the reasonableness of the expectation. That needs to take account of all the circumstances. But ultimately the assessment is an objective one for the judge.
Still, expect commentators to keep making jokes about the ludicrousness of talking about the expectations of the “reasonable drunk” (Andrews) or the “reasonable child molester” (Brown).
Should JK win? I don’t think so. I’m all for hiking privacy protections for children, but I think it goes too far to say that a celebrity’s baby who is in a public place, not doing anything embarrassing, who doesn’t even see the photographer and who won’t even be recognisable from the photos in a year or two, has a reasonable expectation that photos won’t be taken and published. I think our CA got this one right.
Topics: Privacy tort | Comments Off on JK Rowling and the Chamber of Secrets
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