Press Council review: it’s a bit weird
November 29, 2007
The good
As I said earlier, I agree whole-heartedly with almost all of the recommendations made by the reviewers of the Press Council, Sir Ian Barker and Prof Lewis Evans. Yes, scrap the requirement for complainants to sign away their rights to go to court: as the reviewers say, it’s of very doubtful legality. Hell yes, beef up the PC’s power to mediate complaints if possible, and add in a general fast-track complaints consideration process. You bet, shore up the organisation’s independence by making it an independent legal entity and distancing it from its industry funders. (Will they buy the idea that the PC should set its own budget though?!) Sure, appoint a full-time CEO who’s a trained mediator. Absolutely, review the Statement of Principles to provide greater detail and guidance. And by all means, better advertise the existence of the Press Council.
The bad
A couple of quibbles: first, is it really such a great idea for the PC to be “promoting freedom of expression”? Complainants may be forgiven for thinking that this rather queers the pitch. Admittedly, the reviewers recommend that the promotion of freedom of expression should occur “through a responsible and independent print media and through adherence to high journalistic and editorial standards”. Alas, ghosting behind these lofty principles is the reality that free speech and holding the press to particular standards are often in tension, or at least would be seen to be by the parties to many free speech disputes. Adding another layer of complexity is that it’s hard for the PC to speak out on issues that might come before it, even if it can quickly form views about free speech issues in time to contribute to public debate. What might it have said about the recent DomPost/Press “Terrorism Files” stories, for example?
Second, I’m disappointed that they have merely tweaked the penalty system by adding a power to reprimand as the highest penalty. I would have liked them to allow the PC to use the publication of a statement summarising their decision as a penalty, rather than have it be automatic. In other words, I wish they had the discretion to uphold a complaint (for cases of technical or minor breaches) without ordering publication of their decision. The BSA has this power, and uses it often. Without it, I think the PC tends to have too high a threshold for upholding complaints. Worried about imposing its only punishment too readily, the PC too often finds flaws with a newspaper’s ethics, but doesn’t uphold the complaint. That ends up being unfair on the complainant, I think. It also leads to some pretty silly decisions.
Those fairly minor points aside, I think the recommendations are great, and I hope they are adopted. Given the significant funding increase they will require, though, I wonder whether that will happen.
But the rest of the nearl 200-page report is, I think, often very odd. In places, it’s quite bizarre.
The ugly: bias
The report kicks off with a consideration of first principles. Is self-regulation better than government regulation? Good question to pursue, you’d think. But what follows is hopelessly biased in favour of self-regulation. Government intervention costs too much, it says. It’s wasteful. And it can fall prey to special interest groups, who may be “poorer quality regulators”. The industry, on the other hand, knows the business and can therefore draw up “more effective standards that are then more likely to be complied with”.
All fair points. But shouldn’t an honest discussion look at the other side of the argument? That industry self-regulation can lead to underfunding? That it too can be biased toward a particular special interest group: the one that set it up and funded it? As it emerges later in report, these are the two most common criticisms of the PC.
And why not look to the obvious comparison in NZ with the BSA, which is an example of government regulation? A compelling case can be made that the BSA is performing much better than the PC on almost all the yardsticks the reviewers apply. The BSA is more transparent, is better known, offers clearer guidance to the media in its codes and decisions, reviews its performance more readily, is adequately funded, and, I think, is fairer to the complainants. (This is my impression from reading all of the decisions of both bodies for the past decade. I can almost always predict which way the BSA will go on the basis of its earlier decisions, and the outcomes almost always seem right – or at least justifiable – to me. I find it much harder to predict PC decisions, much harder to extract the principles they are applying, and am sometimes surprised at their failure to uphold what even they seem to accept are justified complaints. And there’s really no evidence (I’ve looked) that the decisions of the BSA are politically biased). Finally, it’s become pretty clear to me that the vast bulk of the PC’s decisions are not well known in the media industry: they don’t get translated into newsroom practice. I suspect that the BSA fares a little (but only a little) better on that score.
The reviewers blithely state that the BSA’s uphold rate is comparable: 12% in the year to June 2006. This is rather disingenuous. The BSA routinely upholds about 25% of complaints, as is very clear from its annual reports. The PC routinely upholds fewer than 20% of complaints.
I’m not saying the PC should be regulated by the government. I am saying I would have expected a more balanced discussion.
The ugly: missing data
I also expected a bunch of other things that don’t feature in the report:
- a chart setting out the number of complaints received each year, and the proportion upheld. (We only get figures for the last six years. Were they different in the 70s and 80s? I would have thought that would be central to any consideration of the history of the PC).
- some indication of whether the nature of the complaints had changed. Are there more political complaints these days? More or fewer about taste and decency? Is the tendency to whinge about non-publication of letters to the editor just a recent phenomenon? Is fairness featuring more?
- some indication of the contents of some of the documents mentioned. There’s a fascinating reference to a pamphlet put out in the early years of the PC giving advice to publications about matters of sex and nudity. What did it say? We’re not told. The PC apparently conducted a review of press standards in 1981. What did it conclude? We’re not told. It seems the PC “came under attack from several sources” in 1993. Who? For what? We’re not told.
- what the Constitution says. I’ve got a copy of this myself, but I doubt many others have. Why wasn’t it an appendix?
Instead, we get a lengthy chapter on the history of the PC that contains almost no interesting information. It’s largely full of smug quotes from successive Chairmen about how fine and independent the PC is.
The ugly: shonky data analysis
Next, there is the series of “surveys” carried out by the reviewers – surveying the public, organisations, the media, and complainants. Those interested were asked to fill out lengthy questionnaires, which were available online. In places the reviewers admit that there is “an element of self-selection” in these surveys. That’s like saying there’s an element of sand on the beaches. These surveys are stupendously non-representative, and do not come close to representing the views of the groups purportedly surveyed. The reviewers cannot justify referring, as they often do, to “the public’s views” on this or that on the basis of the survey. Let’s look at the numbers: 147 members of the “public” responded. (The PC thought this was “a relatively strong response”. Ahem.) 30.6% were employed in education. More than a third had worked for the media before. About a quarter had complained to the media in the past five years; about 12% had complained to the PC. Does this sound like the public to you? We’re looking at a bunch of teachers, former journalists and media complainants.
How do the reviewers use this information? Here’s an example: “According to the survey of the public we conducted, very few individuals in the last five years had complained to a media organisation (28.4%) or the Press Council (12.1%).” Where do you start? In fact, if accurate, this would constitute a staggeringly high proportion of the public. On the survey figures, it would suggest that nearly half a million people had complained to the Press Council alone in the past 5 years, for instance. The real number is more like 250. The reviewers note that “the proportions in the report are higher than we would anticipate for the public as a whole”. No shit. The problem here is that the sample is not by any stretch of the imagination random, and it shouldn’t be used in any sentence that contains the words “the public”.
While on the subject of statistical illiteracy, get a load of this:
The survey indicates that the public are generally satisfied with the press. On the whole, individuals agreed that the press collects information responsibly (31.2%) and does a good job of providing [an] accurate account of events in news stories (34.8%).
Um. “On the whole?” In fact, almost as many respondents disagreed or strongly disagreed, and as many again ticked “neutral”. The former members of the media were much more likely to think the media was doing a good job, and were pushing up the numbers. Elsewhere, the reviewers summarised these responses as saying “The majority of respondents agreed that the press does a good job of providing accurate accounts of events in news stories”. You’d have thought that a judge and an economics professor would realise that a “majority” means more than half.
Respondents were also asked to evaluate this statement: “Considering deadline pressures, the press provides as much accurate information as can be expected”. The reviewers note that the most common response was to disagree, then added:
However, those respondents who had worked for a media organisation (and therefore would be aware of the accuracy of the information and the deadline pressures faced) agreed with this statement…
This could equally be phrased this way:
However, more than a quarter those respondents who had worked for a media organisation (and therefore could be expected to be sympathetic to the media’s performance) nevertheless also felt that the press wasn’t producing as much accurate information as can be expected taking deadlines into account. Fewer than half of these people agreed or strongly agreed with the statement.
This doesn’t feel like analysis, it feels like spin. To be fair, much of the data is reported straight, and the tables at the back allow the reader to work out what the numbers are.
Still, similar problems did pop up with the analysis of the rest of the data. Only 34 organisations responded to the survey of organisations. Hardly any were businesses. Three respondents were journalistic organisations! What the hell were they doing there? There were usually 5 or 6 “no response” answers to most of the questions. Again, this was hardly much of a sample of anything. Yet the reviewers kept using decimal places in their descriptions of responses. Yes, 8.8% of respondents described themselves as businesses. You get a very different impression when you hear that this in fact means that three businesses responded.
Similarly, less than a quarter of complainants (60 out of 355) returned the survey of complainants, and often as many as 10 or more of them didn’t respond to a particular question. Weirdly, two complainants believed that the PC prevents the free flow of information. Perhaps they thought it was referring to the PC’s ability to get information from the publications being complained about. Also weirdly, five complainants thought there should be no limitations on what the press can publish. This belief apparently didn’t stop them using the PC. Perhaps they thought it was asking about prior restraint.
And again, only 18 media organisations replied to the survey of the media, and often 5 to 8 of them didn’t respond to many questions. Still, interestingly, 4 felt that the PC should have the power to fine media organisations, 5 thought it should be able to make media organisations apologise, 3 had no process to deal with complaints, 2 thought that the PC’s investigations weren’t thorough enough to determine the truth, and only 5 were prepared to say that the PC’s decisions had a long term positive effect on the their performance. Two-thirds felt that advocacy for, and education about, the importance of a free press by the PC is valuable. And yet, the PC at present does almost none of that. Still, I’m not sure how much can be taken from any of this.
The good, reprise
In the end, none of these criticisms really affect the recommendations. The 20 pages or so out of 200 that discuss the recommendations are generally very good (though a bit light, I think). It’s the other 180 pages that don’t provide the sort of historical and statistical resource that might have been expected. That’s according to 100% of the public polled in this survey.
Topics: Broadcasting Standards Authority, Media ethics, Press Council | Comments Off on Press Council review: it’s a bit weird
Why did Radio Waatea pull its interview with Clint Rickards?
November 26, 2007
The media don’t usually go along with requests from an interviewee’s lawyers to pull a plum interview. I can’t think of any legal rule they’d be breaking by running the interview. If Rickards is breaching his agreement with the police, that’s his problem.
[Update: the interview has now been broadcast]
Topics: Media ethics | Comments Off on Why did Radio Waatea pull its interview with Clint Rickards?
S-G contacts Fairfax about contempt
November 23, 2007
The Solicitor-General is reportedly asking Fairfax newspapers to explain their actions (publishing the “terrorism files” information), saying they may be in contempt.
The story doesn’t say whether he’s suggesting they breached the Crimes Act, too, by publishing information obtained by interception warrants.
A “please-explain” letter strikes me as a bit odd in the circumstances. What can they say? Nothing that would provide a defence. The S-G really just needs to decide whether the publications create a real risk of prejudicing the upcoming trials, and it’s hard to see how anything they say could be relevant to that. Nor to the question of breach of the Crimes Act. But perhaps he’s just following the principles of natural justice.
Still, the S-G is in a bit of a bind here. If he’s suggesting that the papers have created a real risk of prejudicing these trials, that makes it much more difficult for him to resist an application by the defendants for a stay of proceedings because of the prejudicial publications. Just as in the Mossad spy cases, the defendants making the stay application can gleefully point out that the S-G himself had concerns about contempt…
Topics: Contempt of Court, Suppression orders | Comments Off on S-G contacts Fairfax about contempt
Comments on Rogers case
November 21, 2007
The missing angle in the media
Did anyone in the media report that virtually all the Supreme Court judges seem to believe that, as Blanchard J puts it, “the police would appear to have acted beyond their powers” in releasing the videotaped confession to the media, because they are required to treat evidence as secret unless there is some operational reason to disclose it? Police illegally leaking material to the media? Isn’t that a bit… topical?
The missing angle in the judgments
The police gave the video to the media after TVNZ had asked them for it. Isn’t that… an Official Information request? If the resulting handover of the tape was in good faith, then section 48 applies to protect the police and the media from civil or criminal proceedings for making it available “or for any consequences that follow from the making available of that information.” (Still, it wouldn’t prevent TVNZ being sued for breach of confidence: see section 48(2).) This section is a bit complicated, and my analysis here is superficial. But my point is that surely it’s relevant, though it didn’t get a mention.
This was fairly close
The judges decided 3-2 to allow the broadcast. Two would have continued the injunction and sent the case back to the High Court. One wonders whether any of the other three might have been tempted to do the same thing, but were embarrassed to do so given the length of time it has taken them (damn near a year) to put out this judgment.
The case is a mess
The parties never produced pleadings to clarify the issues. Several important evidential issues had not been resolved. For example, it wasn’t clear on what conditions TVNZ received the tape. The police were given leave to withdraw from the case early on. What should have been treated as an interlocutory decision (ie a holding-pattern case prior to trial) was treated as a final decision (disposing of the case for good.) The Supreme Court produced five different judgments. Two of them moan about the process that had been followed and would have sent it back. Three of them launch on a hypothetical discussion about what would have happened if TVNZ had made an application under the search rules (an exercise the Chief Justice slams as “having no very sound foundation”). I’m inclined to think this case isn’t much of a precedent for anything.
What about the Court of Appeal’s decision to exclude the videotaped confession?
Reading between the lines, it looks like at least some of the Supreme Court judges think the CA got that right. Blanchard J describes the police breaches as “grave”.
Does the case affect the privacy tort?
Not really. Justice Anderson tries to explain that he agrees with the Chief Justice that the existence and scope of the tort of invasion of privacy is still an open question “and will fall to be reviewed by this Court in an appropriate case”. You’ll remember that he was in the minority in Hosking v Runting. He thought there should be no such tort.
He’s right that the Supremes will have the last word on that. But he’s stretching things a bit to say that the Chief Justice doubts the “existence” of the tort. She says that the “limits” of the tort are not firmly settled. (Interestingly, she casts doubt on whether we need an element that publication be offensive, as well as the element that there must be a reasonable expectation of privacy. This change would potentially expand the tort). I can’t see that the CJ anywhere casts doubt on the existence of the tort.
The other judges simply apply Hosking and say that
There seems to be some disagreement about the injunction threshold for privacy cases. Tipping J says the position is “broadly analogous” to defamation (ie very hard to get an injunction if you assert any sort of defence) [66]. The CJ suggests that injunctions ought to be granted more readily in privacy cases [38], saying that the analogy is imperfect, since a failure to grant an injunction in privacy cases means the ballgame is over.
Congratulations to Nicole Moreham and John Burrows
…who picked this as a breach of confidence case, if anything. That’s what the CJ and
I’d have to say that given that there’s a strong flavour of public interest that comes through most of the decisions, it’s hard to see how it would be any different under breach of confidence. I’d also wonder whether the material is “obviously confidential” under the Spycatcher case (cited by the CJ) given that (a) the contents of the video had been described publicly and in a judgment and (b) TVNZ was on the scene when it was made.
Hypothetical consideration of a search application – legitimate?
Three judges asked themselves what they would have done had this been an application under the search rules for access to the video. MAYBE we should read this as a way of saying, well, if TVNZ could ask for it now and be given it, then the rest of the argument doesn’t matter much. That might be okay. But in fact, they seem to go further. They seem to import all the factors that they would apply to a search application to the test for an injunction against the media who already have the tape. Isn’t that different? What rule of law are the courts referring to when they give themselves the power to restrain the media on the basis of a hypothetical application that the media don’t need to make? Isn’t the starting point that they should be able to use it unless there’s some law that can be used to restrain them? It may be comforting that the judges come to the conclusion that the search application would have been successful. But what about the next case?
McGrath J goes further (and Tipping J indicates agreement with McGrath’s reasoning). He says the courts have the power to restrain the use of the tape as an abuse of the court’s process. That seems like a long bow to me. I might have a bit of a bias: with this piece of dicta, McGrath has called into question the principle laid down in the case I argued (Hunt v A) that a person who obtains material from the court record from a party is free to publish it without making a search application.
Use of the Bill of Rights Act – legitimate?
This is also a bit startling. The judges seem ready to consider the proposition that excluding evidence from a court may not be a sufficient remedy when it has been illegally obtained. They contemplate the possibility of restraining the media (where here, there is no evidence that it did anything unlawful in acquiring the evidence) from broadcasting it – as part of a remedy for the police breach of the defendant’s rights. Again, they find that excluding the evidence is sufficient vindication of the rights breached (right to silence; right to consult a lawyer). But again, they seem to leave open the possibility in a future case, I think. I would have thought the starting point would have been, again, to ask whether there is any law that prevents publication, and then to ask whether its application in the circumstances would be a proportionate restriction on the media’s right to freedom of expression.
It’s a bit murky, and I may not have read the case closely enough. But I guess what I’m saying is that this case is no ringing endorsement of the right to free speech and open justice. Fair to say, though, that the facts of the case are very unusual, as is the process that was followed. So I’m not sure it stands for anything much. And there’s lots of useful dicta about how court decisions aren’t the last word on a person’s guilt or innocence: the media have the right to ask those questions for themselves afterward, and the importance of allowing the public to see the actual evidence in such cases. (What I don’t like, though, is the continuing idea that if the public get to sit in on the case, that’s enough for open justice. As I’ve said before, what if the significance of the case only becomes apparent afterwards? It may be only then that a journalist can really get his or her teeth into it – and the public interest may well require access to the evidence.)
Topics: Breach of confidence, Contempt of Court, Court records, Injunctions, NZ Bill of Rights Act, Official Information Act, Privacy tort | Comments Off on Comments on Rogers case
Sunday and the Rogers case
November 19, 2007
Okay, I’ve seen the programme now.
Interestingly, TVNZ has also posted the whole interview with Noel Rogers. Good on them for that, I think.
As I’ve said all along, I think there was public interest in the videoed interview, for at least three reasons:
1. It allows us to better judge whether the Court of Appeal got it right in excluding the evidence (given that part of their reasoning was that Rogers was effectively taken advantage of);
2. It allows us to better judge the consequences of the Court of Appeal decision, in terms of how cogent we think the excluded evidence was;
3. It allows us to better form a view on the big question of who we think did it, and in the process, how it was that after two confessions we have no-one in jail.
So I was pleased with the Supreme Court decision (which I confess I still haven’t finished reading; more later).
Still, as I feared, I found the Sunday programme terribly unfair on Rogers (and the jury). Although there were some “we’ll-never-know” type statements, the thrust of it was that Rogers was guilty and the jury would probably have found him so if they’d just seen the confession.’
That’s not to say I think Rogers is innocent. What I think is that there was ample evidence before the jury for them to find him not guilty.
Some of that evidence was mentioned in the programme. In a wee rush at the end it noted that Noel had alibi evidence, that police witnesses doubted his confession, that there was expert evidence that the killing was a dream, and the Crown never proved the clothes Rogers had led them to at the crime scene belonged to the victim. It was a bit like the fine print they hide at the bottom of an ad for a new medicine. (“May cause headaches, vomiting, and occasionally death”).
What TVNZ didn’t tell you (if I’m correctly reconstructing my notes from a conversation I had with Rogers’ defence counsel last year):
1. There were many other confessions that the jury did get to hear about.
2. Rogers’ confessions were inconsistent with each other.
3. He told the police that the material they’d find hidden in the long-drop was sheets and teatowels he’d used to mop up the blood. What was discovered were strips of rag. There was no blood on them. There was no DNA on them.
4. The evidence from the cognitive scientist was unopposed, and suggested that Rogers was easily led.
5. There were aspects of the excluded confession video that the defence counsel could have argued were inconsistent with the crime scene evidence about how the offence took place. I would have been interested to see something about that.
Remember that Borrie Lloyd’s story (“I cant remember what happened; I woke up and there was her body, so I buried it; I later confessed but I was bullied into it”) is hardly very convincing. (Lloyd’s account was included in the programme).
I would have thought all of that would be necessary to a fair and balanced analysis of the case.
I would also have thought that there might have been room or some discussion of the propriety of the Court of Appeal decision. Several people I know (including an evidence lecturer) would have been happy to explain succinctly why they thought the Court of Appeal got it wrong when it ruled the video inadmissible. Given that TVNZ was arguing in court that this was an important aspect of the public interest, you might have expected them to deal with it in the item. (They did explain, quite well, the reasoning behind the CA decision, but didn’t have anyone commenting on it.)
I can’t say I feel much better informed about the Rogers case having seen Sunday’s treatment of it.
Topics: Broadcasting Standards Authority, Media ethics | Comments Off on Sunday and the Rogers case
Press Council review is out
November 16, 2007
The review of the operations of the Press Council has now been released.
It’s long. There’s an extensive list of recommendations, and most of them look pretty sensible to me. They involve:
— a much expanded budget and administration;
— new fast-track complaints mechanisms (a mediation option involving a Chief Executive, and a rapid-consideration option for a small committee to determine urgent cases (with a right of appeal to the whole PC);
— the introduction of the new, elevated penalty of a “censure” (though no financial penalties, contrary to what NBR has written here)
— a general tightening of timeframes and formalisation of the structure of decisions;
— regular review of the Statement of Principles (starting immediately);
— the dumping of the requirement for complainants to waive their right to go to court;
— encouragement of parties (though not lawyers) to attend PC meetings;
— a revamp of the website;
— moves to make the PC more independent;
— moves to promote the PC more;
— moves to increase the PC’s independence;
— recommendations that the PC engage in advocacy and research.
I hope the powers that be act on this, but it remains to be seen.
Topics: Press Council | Comments Off on Press Council review is out
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