Crimes in the public interest
February 14, 2008
A quick note on recent stouch about the journalist who took a knife and toy gun on a regional flight to demonstrate lax security. (Bonus gossip: it was Jonathan Marshall, who was behind a hideously intrusive celebrity expose website, but has since taken a journalism course and is doing serious work).
I say: give that man a badge.
There are times when journalists commit crimes in the public interest. This, I think, was one. (Other journalists have done the same thing in Britain). I also think it’s in the public interest for journalists to occasionally try to obtain passports and credit cards using fake names to expose how easily it can be done, or likewise gather personal data about people or hack important websites. The receipt of leaks of stolen documents or tapes can also raise criminal issues. Journalists have no special defence if they are prosecuted for these crimes.
Usually, as it happens, they are not prosecuted. Under the prosecution guidelines, the public interest is a factor in deciding whether to charge. And any sentence would probably be adjusted down. But that’s an uneasy truce.
Sure, it’s difficult for the law to carve out exceptions to the criminal law for journalists. And sure, if the law did so, there would be journalists who would abuse their special rights. So the truce may be as good as it gets. But under the incentives of the law, it would be prudent for journalists not to take these sorts of risks, even though such stories are very valuable to society. I wonder whether the development of some sort of public interest defence may be needed – or even required under the Bill of Rights Act?
Topics: Journalism and criminal law | Comments Off on Crimes in the public interest
NZLS media law seminar
February 14, 2008
TVNZ lawyer Willy Akel, Fairfax lawyer Robert Stewart and I are presenting a law society seminar on media law in Auckland, Wellington and Christchurch in April. Sign up now!
Watch Willy and I slug it out over the laws of privacy and qualified privilege! He’s bigger than I am, but I’m nippy.
Actually, it will mostly be more sedate than that. Robert will be talking about open justice and suppression issues; Willy will cover privacy; and I’ll be looking at press and broadcasting standards. Then we’ll team up to go over recent developments in qualified privilege.
I will do my best to inject a note of rationality to temper Willy’s wild rants about the need for untrammeled freedom of speech for the media. (Alternative spin: Willy will try to pull my head of the the clouds and force me to grapple with the chilling consequences media restrictions). Robert, who’s so fair and balanced you could put a camera on him and call him a TV channel, will no doubt be umpire and peace-keeper.
You might also be interested in the LexisNexis conference on media law in Auckland in March. There will be presentations on contempt, copyright, media law generally, censorship, the effects of media law on journalists, and the future of media regulation in NZ.
Topics: General | Comments Off on NZLS media law seminar
Osmose part-settled
February 14, 2008
You might remember that the Osmose defamation case in the High Court appeared to revolutionise the defence of qualified privilege: opening it up to all stories about matters of public interest, not just those about politicians, and making it easier for journalists to show they’d acted responsibly (a condition of the defence). The case was appealed to the Court of Appeal. I gather that the suits against the media (TVNZ and Fairfax papers) have been settled. So whatever happens to Osmose’s claims against Nick Smith and Dr Robert Wakeling, the High Court decision looks likely to remain the latest word on qualified privilege as it applies to the media. (For my part, I think it would be dangerous to assume that these new principles will survive Court of Appeal scrutiny in the future, particularly the lowering of the threshold for responsible journalism).
Topics: Defamation | Comments Off on Osmose part-settled
New Law Commission report on privacy out
February 14, 2008
Get your copy here. It’s an early stage in the Commissions Herculian project aimed at reviewing the entire law of privacy. In this study paper they look at the big picture: the concepts behind privacy, and the effect of the rapidly changing social, legal and technological environment. (I’m part of a reference group that the Commission is tapping occasionally for this project).
Topics: Privacy Act, Privacy tort | Comments Off on New Law Commission report on privacy out
More grumbling about the Press Council
February 11, 2008
A lot of lawyers I know think the Press Council is a waste of time. It’s generally pro-press, it’s poorly resourced, its decisions are sloppy, and it has no power to impose a penalty worth spit.
Heck, I’ve criticised the Press Council myself in the past. But recently, I’ve been encouraging people to take another look. Recent decisions seem more rigorous and better structured. They are increasingly holding some papers and magazines accountable for serious lapses (see the Coddington-“Asian Angst” case, for example). There have been some fascinating split decisions, too, with meaty debates about ethical issues (about inaccurate women’s magazine covers and the privacy rights of criminals’ families, for example).
But now, alas, I’m going back to grumping. The latest batch of Press Council decisions contain one that stinks, and a couple that are at least whiffy.
The stinker really needs to be filed under “silly decisions that don’t really count because they’re about trade publications that nobody reads.” (See also: this case). Because if you were to take this decision seriously, it seems to stand for the proposition that a publication can do an end-run around accuracy and balance requirements by simply not publishing any letters to the editor.
There is, it seems, a monthly magazine called “FMCG” that covers businesses involving fast moving consumer goods. It has a circulation of more than 8,000 and was available (the Press Council found) to the public. Last year, it ran a column that I am going to call “the happy chicken column”. Here is an excerpt:
Much like the two-legged New Zealanders, the modern Kiwi chook is demonstrating the benefits of good breeding, freedom from disease and an overall better quality of life and health brought about by modern farming methods and biosecurity measures. Just as we are taller and bulkier than our ancestors, the chicken which, by the same comparison, has advanced the equivalent of hundreds of generations, is an altogether larger, healthier specimen than it has ever been. It also remains a breed apart from its egg-laying cousin with natural breeding selection fostering the attributes of each breed suitable to its various production qualities. This means that the egg you eat today is not the poultry meat you eat tomorrow.
It was by Michael Brooks. Michael Brooks is the executive director of the Poultry Industry Association of New Zealand. Were readers told this? They were not. Was his column accurate? Dr Michael Morris, past chair of the Campaign Against Factory Farming, certainly didn’t think so. He wrote a letter to the editor of FMCG:
Modern chickens are not larger because they are healthier and happier. Quite the contrary. The modern broiler is a genetic freak; selectively bred to grow so quickly that their legs and hearts cannot cope with the extra weight. Animal welfare scientists of international renown agree that this has meant increased incidence of lameness and metabolic disorders such as ascites in broilers. After studies showed that up to 20 percent of European broilers are in constant pain from lameness for the last third of their lives, Professor John Webster of Bristol University described the modern broiler industry as perhaps the ‘single most severe, systematic example of man’s inhumanity to another sentient animal.’ A recent New Zealand study on lameness has revealed that up to 40 percent of broilers may be suffering from this painful condition.
Dr Morris ultimately supported this view with seven peer-reviewed references.
I am no expert in chicken welfare, but I know who I believe. Dr Morris has surely raised a serious question of accuracy, and exposed a need for balance.
What did the editor do? He decided not to print Dr Morris’s letter, because the magazine doesn’t publish letters to the editor. He thought about doing a follow-up news story. He forwarded the letter to the happy chicken columnist, but Mr Brooks did not wish to be involved in such a story. So he decided to take it no further. He did, however, make sure that Mr Brooks’ affiliation was properly included beneath his next column.
The Press Council somehow managed not to uphold this complaint. It’s a column, they said. “Columnists are entitled to state their views, and even to be wrong.”
Well, yes. Except that even columnists must get their basic facts right, as the Press Council has itself said in the past. If the Press Council had reasoned that the competing views were really matters of interpretation, not facts, or that any errors in the column were peripheral to its main substance, I could have bought that. But all we get is that columnists are allowed to be wrong. Except in some other cases where they’re not.
Still, shouldn’t Mr Brooks’ industry affiliation have been noted? Yes, said the Press Council. This was “a regrettable lapse and could have misled the reader.” But never mind: it looks like it was just a slip-up, said the Council. He was identified in other issues of the magazine.
Still, isn’t there a question of balance? Nah – the magazine had a policy of not printing letters. “The Press Council cannot condemn the policy if the magazine is consistent.” What’s more, even if it did publish letters, it didn’t have to publish Dr Morris’s one.
That may be so. But it doesn’t remove the obligation to provide balance somehow, through a news story, for example, or an addendum to a later column, or an editorial.
Well, I would have thought it doesn’t, but the Press Council seems to think otherwise. They just wring their hands. What can we do? He doesn’t publish letters. Doesn’t have to. That’s odd. Why doesn’t he publish letters? You’d think he’d want to. But he doesn’t. And we can’t make him. He was going to do a follow-up story. That’s good. Should’ve done a follow-up. Shouldn’t have dropped the story just because the columnist didn’t want to. Shouldn’t have done that, no. Still, guess we can’t uphold the complaint.
Memo to Press Council: yes you can. You really have a duty to uphold complaints like this one, if the requirement for balance is to mean anything at all.
Briefly, the two whiffy cases:
1. A complaint upheld against the Dominion Post for publishing a leaked draft Maritime Safety Authority report into a Cook Strait ferry incident, noting that the ferry came extremely close to capsizing and suggesting that the skipper showed poor judgment. A majority of the Press Council found the reporting was in the public interest, so it didn’t matter that the draft was plainly supposed to be confidential. But a majority also found it was unfair in that it didn’t state that the report’s conclusions might change. (On this point, the minority thought this was obvious from the word “draft”. I’m with the minority here. Readers know what a draft is. So I don’t think this complaint should have been upheld at all). The real action is over the issue of whether there was public interest in publishing a leaked draft when the investigation isn’t complete. Lawyer Ruth Buddicom sets out a thoughtful dissent arguing that there wasn’t, though it seems to me to be a fair call by the majority.
2. A complaint not upheld against the Otago Daily Times for inaccuracies in a backgrounder about police corruption. Long story. But my beef is with one sentence, about a hotel proprietor, the target of an undercover police sting seeking evidence of his involvement in a sex ring. The story reported, as bald fact, that the hotel proprietor “had made no admissions”. One of the police officers involved disagreed. He said the proprietor had made admissions. In fact, the police officer had written about those admissions in his book “Cover-ups and Cop-outs”. The ODT accepted that the admissions may have been made, but said they “were not a matter of public record”.
It’s an odd definition of public record that doesn’t include a published book, I think.
As the Press Council said, “the ODT incorrectly stated as fact what is a contentious matter.” It also identified two other errors, but regarded all three as minor. I’m not sure the first one was. The question of the proprietor’s admissions seems pretty central to the narrative. The error seems at least as significant as others that have been deemed worthy of upholding complaints in some other decisions.
This case strikes me as further evidence of the need for the Press Council to be able to uphold complaints without necessarily ordering the paper to publish a summary of the decision – to mark a significant error, but reserve the publication penalty for more serious lapses.
Topics: Press Council | Comments Off on More grumbling about the Press Council
Press Council ducks interesting issue
February 10, 2008
If you talk to a journalist on the basis that what you say is “not for publication” and the journalist publishes your remarks anyway, has the journalist behaved unethically? I think most people would think so. In the past, the Press Council has leaned this way, too:
… if the conditions under which the [source] agreed to be interviewed were not accepted by the newspaper, then he was entitled to withdraw his comments. In the council’s view a newspaper cannot unilaterally impose its own rules upon a member of the public while choosing to ignore any conditions he may have set.
But in a recent case, where the issue was squarely before the Press Council, it rather disingenuously avoided it. The DomPost ran a story about a developer whose “army shack” homes had riled neighbours. The story was plainly newsworthy, and the developer was, it seems, a rather unsympathetic fellow. His concerns were mostly about various alleged inaccuracies in the story, which I won’t go into here. But one of his arguments was that he agreed to talk to the reporter only on the basis that the chat was “not for publication” and any comments on the record would be in writing. (He subsequently forwarded some written material). The reporter then quoted the conversation (misquoted, according to the complainant).
The Press Council blythely concluded that there was a “difference in the recollection” of the reporter and the complainant about what was said and that it was “not in a position to rule on these matters”. As for the accuracy of the quoting, that may be so. But look at the DomPost’s argument about the “not for publication” point:
… the reporter identified herself and at no time offered any acceptance of the position that Mr Nolan’s remarks were not for publication.
The DomPost wasn’t disputing that Nolan regarded the remarks as “off the record”. It was simply saying it never agreed to that condition (though the reporter was happy to keep listening to his remarks without informing Nolan that she may ignore it).
Point one: the Press Council should really have addressed this head-on. It was squarely raised by the complainant. It’s an important matter of principle. I know there are journalists who believe that unless they specifically and expressly agree to go off the record, then they can write what they like, even if the person they’re interviewing clearly believes the conversation is confidential. This decision can be read as supporting that view, though I’m not sure the Press Council intends it to. We really need better guidance that this.
Separate point: I think this journalistic approach is unethical, or at least will be in most cases. I think that reporting comments that have been provided on an off-the-record basis is a form of “misrepresentation, deceit or subterfuge” (Principle 9) and can only be justified where the public interest requires. There seemed to be no particular public interest in the material acquired by the deceptive conduct here.
Topics: General, Media ethics, Press Council | Comments Off on Press Council ducks interesting issue
The Broadcasting Standards Authority and the Bill of Rights
February 7, 2008
As I mention below, Claudia Geiringer and I delivered a paper at the conference for John Burrows about the Broadcasting Standards Authority and the Bill of Rights Act (BORA).
The BORA requires the BSA to ensure that any restriction it imposes on the media’s freedom of expression (by upholding a complaint, for example) is reasonable and demonstrably justified under section 5 of the BORA. (It also has to be “prescribed by law”, which raises a few issues, but I’ll put those aside for now).
The BSA is certainly aware of its responsibilities under the BORA. When upholding a complaint, it routinely includes a paragraph saying:
For the avoidance of doubt, the Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching this determination. For the reasons given above [a reference to the BSA’s general reasoning applying the standards but not mentioning the BORA], the AUthority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act.
You might be comforted by that sort of boilerplate. We weren’t. It’s true that the BSA’s decisions are generally carefully reasoned, but we concluded that the BSA needed to approach its obligations under the BORA in a more rigorous and systematic way. (Incidentally, this also applies to the Film and Literature Board of Review, the Advertising Standards Authority and the Press Council, and probably a range of tribunals and bodies whose work impinges on rights).
This isn’t an easy task. The BSA gets little in the way of BORA arguments from the broadcasters beyond a taliesmanic invocation of the right to freedom of expression. It gets almost no guidance from the High Court. The test laid down in the leading case of Moonen is virtually impossible for bodies like the BSA to apply, since it involves identifying different meanings rather than applying standards. The BORA itself sets nebulous standards, and its interaction with statutes like the Broadcasting Act and the Codes of Practice can be complicated. As Professor Burrows has noted, BORA vets of legislation conducted by the Crown Law Office and the Ministry of Justice are often opaque and unhelpful.
Still, it’s not an impossible task. The BORA requires proportionality. This means that benefit to society from upholding a particular complaint must outweigh the harm that’s done to freedom of expression. And that involves (as the courts are increasingly doing) looking to see why we value freedom of expression in the first place. If the particular speech in question is heavily supported by those rationales (such as political speech), the BSA should be slow to restrict it unless there is a very strong countervailing interest (such as great harm to reputation or an inaccuracy that might seriously mislead the public). On the other hand, types of speech that don’t serve those rationales (such as revealing private facts about someone without any public interest justification) may much more readily be restricted.
In our paper, we try to unpack this balancing/justification process and suggest ways that bodies like the BSA might fit it into their reasoning. To cut to the chase, here are a few implications:
- the BSA is right to set high thresholds for upholding complaints about taste and decency, and about denigration/discrimination;
- the BSA is also right to weigh privacy, and especially children’s privacy, heavily in the balance;
- the BSA needs to take extra care to ensure that it isn’t discriminating against radical or unpopular viewpoints in the guise of maintaining good taste or law and order, etc;
- there is probably no justification for upholding complaints about insignificant inaccuracies (the BSA is also heading in this direction);
- when serious inaccuracies are alleged, the BSA needs to be very clear that it gets it right, and this may well involve using its powers to hold hearings, call for disclosure, second experts, and conduct its own inquiries, more than it currently does , which is hardly at all (admittedly, the ordering broadcasters to make disclosure of relevant materials can raise difficult source-confidentiality issues);
- the BSA needs to refer to the BORA in its discussions on penalties;
- upholding a complaint about balance requires less in the way of justification than upholding complaints against other standards. (Broadcasters will love this one! But it follows from the recognition that if you value speech for its ability to produce (or test) truth – the “marketplace of ideas” rationale – then you need to accept that a requirement for broadcasters to air a greater variety of viewpoints both restricts and fosters freedom of expression. Likewise, if you value freedom of expression because it facilitiates democratic self-government, then you really ought to accept that balance and right-of-reply regulations promote this too, by widening the debate, and providing more platforms for civic participation and a greater diversity of information to the public.)
Topics: Broadcasting Standards Authority, NZ Bill of Rights Act | Comments Off on The Broadcasting Standards Authority and the Bill of Rights
Tribute to John Burrows
February 7, 2008
The University of Canterbury’s law school held a conference in honour of John Burrows last weekend. It was called “Law, Liberty and Legislation” and covered the broad sweep of issues that Professor Burrows has expertise in – from statute and contract law to media law (he’s written the leading texts in all three).
On the media law front, there were presentations from Sunday Star-Times editor Cate Brett; Paul Norris, head of the school of broadcasting at Christchurch Polytechnic; Professor Nigel Gravells form the University of Nottingham; Vic’s privacy law guru Dr Nicole Moreham, President of the Law Commission Sir Geoffrey Palmer; and Ursula Cheer, associate professor at Canterbury. My partner Claudia Geiringer and I chipped in with a paper about the Bill of Rights and the Broadcasting Standards Authority.
Cate Brett spoke on the increasing problems for the laws of sub judice in a digital age. Cate is one of the few journalists I’ve heard who is able to talk thoughtfully and knowledgeably about the laws of contempt. She thinks prejudice to trials is increasingly likely to come from blogs and Trade Me message boards rather than the mainstream media. What are we doing about it? She thinks that the justice system might need to dirty its hands and engage with the audiences on the blogs and message boards in order to arrest prejudice, or explain the background to suppression orders. “An op-ed in the NZ Herald by Justice Randerson isn’t enough,” she said. I find it hard to disagree. (Cate was speaking under the Chatham House rule, but let me say this much. If she can have her arm twisted to include a paper in the forthcoming book containing the conference papers, you might get to see the whole thing).
Paul Norris had recorded his presentation on DVD. It tracked the history of cameras in courts (a development he had a large hand in, though he rightly gave credit for the initiative to the courts themselves). It was a nifty demonstration that in-court footage can provide an extra dimension to court reporting. (Still, what a court reporter needs most is a good understanding of the facts and issues in the case. Without that, it’s impossible to select the key soundbites and provide the right context. I’m not convinced that this is always done well, especially by reporters who come and go during the course of a trial…)
Prof Nigel Gravells talked about the recent UK cases that have looked at the relationship between copyright and freedom of expression. He’s worried that the courts still aren’t very good at grappling with the need to interpret the Copyright Act consistently with freedom of expression.
Nicole Moreham argued that privacy is essentially founded on dignity, which entails a need for others to respect our personal choices and feelings rather than using us a means to their own ends. She says the courts should be protecting people who have a “reasonable expectation of privacy” and that the extra requirement – publicity with a high level of offensiveness – is not necessary. The UK courts don’t have that extra limb, she notes. It follows that the Andrews case in NZ was wrongly decided. You might remember the case involved the broadcast, in a reality TV show on firefighters, footage of the Andrews’ (drunken) car accident just off the motorway, in which a distraught Mrs Andrews was shown saying some fairly intimate things to her husband while rescuers used the jaws of life to cut him from the wreck. The judge said they had a reasonable expectation of privacy in their exchanges, but that the publicity wasn’t sufficiently humiliating to be offensive. (For my part, I’m more inclined to criticise the judge’s other conclusion that there was public interest in those exchanges).
Sir Geoffrey Palmer made the radical suggestion that defamation law is dying out. In an age of multiplying platforms and celebrity culture, nobody is going to take the media seriously enough to sue, he rather thinks. I’m not sure I agree with that one. As long as there are people to besmirch others’ reputations unfairly, there will always be some besmirched with sufficient fury and resources to sue, I think.
Ursula Cheer reviewed the cases and research on the chilling effect of defamation laws. This complements her own recent empirical research on the chill effect. She’s still inclined to think that the chill is not as great as the media often crack it up to be. But she also supports an expanding the Lange defence to include stories about all matters of legitimate public concern, rather than just serious commentary on past, current and aspiring MPs. She has some more thoughts on the proper effect of the Bill of Rights on the law of defamation, but we’ll have to wait for her full paper to get the details…
Topics: Broadcasting Standards Authority, Contempt of Court, Copyright, Defamation, General, Internet issues, Media ethics, NZ Bill of Rights Act, Privacy tort, Suppression orders | Comments Off on Tribute to John Burrows
New Yorker cartoon
February 7, 2008
One dog to another: “I had my own blog for a while, but I decided to go back to just pointless, incessant barking.”
Topics: General | Comments Off on New Yorker cartoon
Right Charlies?
February 4, 2008
Was the Advertising Standards Complaints Board right to uphold a complaint about the Charlies “sunbathing” fruit-juice ad? Even after Charlies agreed to screen it only in adult-viewing timeslots?
It’s a typical piece of Marc Ellis larrikinism. He’s shown as a cartoon child spying on a buxom neighbour sunbathing nude (her cartoony breasts are strategically covered, first by a book and then, as the camera zooms in on them like, I guess, a kid’s attention zone, by the top of a fence). The image then dissolves into two hands lovingly rotating fruit over juicers. It doesn’t take a great stretch of the imagination to see a connection.
The advertising standards complaints board was plainly divided over this one. They considered complaints under five different heads, and were split on all of them. They concluded (by majority) that the ad, in that timeslot, wouldn’t cause widespread offence, or violate norms of taste and decency. But they found (by majority) that it breached the rule requiring social responsibility because of the child characters and the sexual overtones. They also upheld the complaint (again by majority) against using sex to sell unrelated products.
Note to those tempted to see this as an example of the excesses of the Nanny State: WRONG. The Advertising Standards Authority is not part of the government, but was set up by industry self-regulation.
Still, it is still conducting a public function and is therefore subject to judicial review, and to the Bill of Rights Act. Is there a possible case? I think there is. Although I’m told that the ASCB considers the Bill of Rights in every case, the decisions don’t mention it. (To be fair, neither do the lawyers’ submissions). It’s very difficult to tell how they use it. It’s not even clear that a rule as broad and vague as a requirement of “social responsibity” is sufficiently precise to count as “prescribed by law”. In any event, that very nebulousness ought to make the ASCB very cautious about the application of that rule. Here, the ASCB was divided, there was an element of humour, and I would have thought the case was generally fairly close to the line: all three tell against upholding the complaint. On the other hand, it’s hard to get past the finding that the ad was using sex to sell an unrelated product. (I’m not inclined to see the emphasis on “nothing artificial” during another cleavage close-up provided sufficient connection).
Overall, this strikes me as something that will quickly be filed under “quaint speech suppression”, like the BSA’s rulings in the 1990s that the taste and decency standard was breached by Lindsay Perigo calling Ministry of Education staffers “child molesters of the mind” and Deborah Coddington calling NZ on Air “Nazis on Air”. Personally I find the ad a bit sleazy, and it would tend to make me want to avoid the product rather than buy it, but I’m not sure the ad ban is really demonstrably justified.
Topics: Advertising Standards, NZ Bill of Rights Act | Comments Off on Right Charlies?
« Previous Entries Next Entries »