February 13, 2014
An interesting warning from the Northern Ireland High Court:
Before I go on … I should say that anyone who uses Facebook does so at his or her peril. There is no guarantee that any comments posted to be viewed by friends will only be seen by those friends. Furthermore it is difficult to see how information can remain confidential if a Facebook user shares it with all his friends and yet no control is placed on the further dissemination of that information by those friends.
February 11, 2014
I am a barrister specialising in media law and a lecturer in media and privacy law at Victoria University of Wellington’s law school. I am also a blogger and occasional journalist. I am the author of a textbook for journalists called “Media Minefield”. I have dealt with, studied, and commented on many cases involving harmful digital communications.
I support this Bill, and particularly the provisions creating a new complaints regime. In the first part of this submission, I explain why. In the second part, I suggest some changes. In the third part, I make some concluding comments.
1. Why I support the Bill
There is plenty of evidence that digital harassment is a problem, and a unique one. I need only refer to the Law Commission’s research about the extent of New Zealanders’ experience of harmful digital communications, particularly those involving young people. It is sometimes very serious indeed, and in NZ and overseas has been a factor in suicides. I agree that the nature of such bullying - it can be easy to start, instantly and widely accessible, searchable, and difficult to remove - means it presents challenges we haven’t seen before.
Existing remedies are inadequate. It can be argued that our existing laws are sufficient to tackle the various problems. The law of defamation, privacy and breach of confidence, the powers of the Privacy Commissioner, the Harassment Act, other laws governing threats and incitement, cover much of the territory of this Bill. That is particularly so if the amendments in the Bill to the Privacy Act, the Human Rights Act, the Crimes Act and the Harassment Act (which I also support) are passed. But that does not solve the problem. The remedies under these laws are not always accessible, sufficient or available. What is needed is a quick and cheap method of obtaining an injunction or take-down order when truly damaging material is posted online. These laws don’t provide it. In some cases (such as in criminal cases) there is no take-down power. Nor can the Privacy Commissioner issue take-down notices. In some cases (such as the torts of defamation and privacy and the Harassment Act) the victim needs thousands of dollars to take a civil action. In any event, the case law sets extremely high thresholds before injunctions can be granted. The law and procedures are arcane. Costs spiral. Delays are rife.
The Bill addresses the remedies gap. The principles at the heart of the Bill are designed to reflect the current law. I think they largely do so, when read in conjunction with the limiting factors in clause 17. What is significantly new are the remedies. These offer informal resolution by the Agency, and a new court process for obtaining orders for take-down, cease-and-desist, and unmasking anonymous posters.
The Agency offers crucial support for complainants. Complainants are often faced with digital material harming them now, but have little in the way of resources or knowledge of the law and its processes. The Agency would provide information and advice. Someone to try to reach resolution on their behalf - get the bullying stopped and/or the harmful material removed. Someone who’s got an existing relationship with Facebook and Twitter, has experience with the issues, and is able to negotiate “in the shadow of the law” - ie “if you don’t remove the post, this person can apply to court for an order taking it down.” Particularly for young people, this may be an enormous benefit, even if it doesn’t work all of the time. Netsafe is performing some of this function now, but those posting or hosting harmful material - including Facebook and other sites - will be more likely to take notice of an official government agency than a lobby group.
The Bill contains protections to ensure the powers are not misused. I think there are sufficient protections in the Act to stop any unjustified uses of the law to attack legitimate speech. The coercive powers in the complaints regime are limited. The biggest gun is the take-down order. That cannot be used unless the complainant has first tried to resolve the complaint through the Agency. The breach of the principles must be serious or repeated. The harm must be “serious emotional distress”. No order can be made unless it is demonstrably justified under the Bill of Rights Act. It must be made by a judge, who must apply the principles of natural justice. And the judge will have to consider a range of sensible contextual factors under cl 17(4), including whether the communication was true, whether it was in the public interest, the conduct of the parties, and the vulnerability of the victim. There is a right of appeal.
2. Some suggested changes
Clause 3: Deterrence and prevention of harm should be added in the purpose section.
Consideration should be given to including a definition of “victim”, to constrain the operation of the complaints regime to those who are deliberately targeted by the harmful communication, rather than to anyone who may feel offended and seriously distressed by it. This means that the communication would have to be sent to them or be about them personally, for them to be a victim. This has been done in clause 19(4), in relation to the offence. But not in relation to the complaints regime.
It seems strange to me that the Act hasn’t worked out what to do with the Agency. Will it be Netsafe? A government department? That shouldn’t be left open in the Bill.
The Agency should have to consider the clause 17(4) contextual factors.
Clauses 11(1) and 12(2)(a): It should be made clear that the Agency has the power to approve the rapid referral of a complaint to the court if the circumstances require it.
The Agency should be empowered to act on behalf of complainants before the court when it deems this appropriate and the complainant requests it, as it can do under clause 20(4) when dealing with online content hosts.
The Agency should have specific power to refer the complainant to the police or BSA, Press Council, etc.
The Agency should be tasked with gathering statistics about cyber-bullying.
Clause 8(1)(a): as presently worded, this allows the Agency to consider complaints about any sort of serious emotional distress caused by digital communications, whether or not they breach the principles. Is this deliberate?
Clause 8(2): this allows the Agency to seek and receive information it considers necessary to resolve complaints, etc. Is it necessary to spell this out? Is it intended that this creates an obligation on others to comply with requests for information? It is not clear.
The threshold for court intervention
Clauses 10(1)(a) and 11(2): Threats to cause serious harm should also be a ground for an injunction. Why should complainants have to wait until the harm has been done if someone is (eg) threatening to post a naked photo of them?
Clause 10(2): the Coroner has power to seek a takedown order (etc), but only if the Coroners Act is contravened. Should this include the (newly amended in the Bill) provisions of the Crimes Act dealing with suicide?
The content of the principles
These should make it clear that impersonation of someone (eg fake Facebook page) is covered. This is not clearly a “false allegation” or “grossly offensive” or part of a pattern of harassing conduct.
The limiting factors in clause 17(4)
Consideration should be given to including some provision addressing the role of humour. This is somewhat vexed. Humour can be nasty and harmful, especially to young people. It can also leaven a communication that might otherwise be harmful, or encapsulate a satirical point of importance.
“The extent to which the communication is a legitimate news story” should be a factor in clause 17(4). There may well be a difference between a blogger publishing a communication that says the world is a better place for the death of a “feral” West Coast man in a car accident (which may be grossly offensive, justifying a remedy) and a news story that reports on that blog post (which may well not be). That difference is probably captured in the other limiting factors, but it may be as well to add this as a factor.
Alternatively, the mainstream media should be excluded from the complaints regime in cases where there is an established complaints body with power to issue take-down orders, and rapidly if necessary, such as the Online Media Standards Authority. (This may incentivise the Press Council to acquire this power).
Consideration should be given to including some provision dealing with opinions. They are generally regarded as being more important to protect because they often contribute to a debate, and less harmful because the audience know they can disagree with them. This can be overstated - opinions expressed by influential people can be very harmful, and opinions do not always contribute to useful discussions. But “the extent to which the communication is recognisable as the expression of opinion” may be worth including in the clause 17(4) list.
Clause 17(5) seems partially to duplicate clause 6(2).
Cases involving child and youth bullying should go to the Youth Court, not the ordinary District Court.
When the Act talks about “content hosts”, it should clarify whether it means site hosts or page administrators or both (clauses 17, 20).
Orders against third parties should only be made when those parties have a right to be advised of the application in advance and right to respond, except in exceptional circumstances.
Consideration should be given to what happens when two complainants complain about each other’s communications.
Clause 15(1) touches on this, but it should be made explicit that both parties have a right of appeal.
Clause 17(1): Tehre should be an additional remedy requiring deletion of material, and a remedy preventing publication of something that hasn’t yet been published.
Clause 17(2)(b): The power to unmask someone who’s anonymous should include a power to unmask someone who’s using a pseudonym.
Clause 17(2)(b): It should be made explicit that the court should consider the impact on free expression, both in the individual case, and on the flow of communications by anonymous people generally (which can be socially valuable) before ordering the release of the identity of an anonymous author. (It should also be made clearer to whom the identity is to be released. To the complainant? The judge? To the world?)
Clause 17(1)(e): Consideration should be given to elaborating on the right of reply. What if the proposed reply itself arguably breaches the principles? Are there limits on what topics can be raised or whether strong personal criticism can be included? How are disputes about the wording to be determined?
Clause 17(1)(f): I am not sure that an apology is a justified remedy. An ordered apology is not sincere. It doesn’t seem to me to add much to the rest of the remedies.
Clause 17(3)(a): Might this apply to the world at large? There seem to be arguments each way. It is certainly easy to imagine blog posts encouraging all readers to engage in harmful communications to someone. But the more natural reading of this clause is that it only applies to particular listed people. There seems to be no requirement that there be any evidence that those people be likely to engage in that conduct. In any event, the sorts of orders that can be made against a primary defendant (take-down, correction, rights or reply, unmasking anonymity, etc) do not seem to lend themselves to third parties, and certainly not if they ave not yet acted on the encouragement.
It should be made clear that the court can give orders even in relation to organisations outside NZ’s jurisdiction, and even when there is no identification of the wrongdoer. (Because such orders might be complied with by responsible websites).
3. Concluding comments
There should be provision for training of judges in the principles of the Bill and their interface with the Bill of Rights Act. This was organised in the UK before the Human Rights Act came into force, and meant that judges were equipped to deal with the new framework. I am concerned that District Court judges are not well equipped to deal with cases that raise complicated questions engaging free expression rights.
Most of my submissions ahve been directed to the complaints regime. I ahve also supported the tweaks to the Human Rights Act, Privacy Act, Harassment Act and Crimes Act. That leaves two other elements of the Bill: the new offence, and the liability of online content hosts.
The new offence (clause 19)
I have less to say about this. I accept that sending deliberately harmful communications about someone, which in fact do serious emotional harm, may be conduct that warrants criminalising. But I note that the threshold for this criminal offence, in some ways, seems lower than that for the complaints regime. There is no requirement that any principle be breached, so its reach is in that respect greater. Nor does the breach have to be “serious or repeated”. The list of contextual factors in clause 19(2) is shorter than that in clause 17(4), since it’s aimed at assessing whether harm has been caused, so it doesn’t address contextual factors that may render the communication significant. Nor does it explicitly require that any assessment be consistent with the Bill of Rights Act, which makes the reader wonder whether this omission is deliberate, since it is (twice) set out for the complaints regime. (On the other hand, the offence is narrower than the complaints regime in other respects: it only involves digitally sending or posting information about someone, it must be deliberately harmful, and the bar for “harm” may be set higher).
Much of what is published on the internet is “information, whether truthful or untruthful” about someone else. A significant amount of it may be said to cause that person serious emotional distress. A news story about a funeral or accident, for example. A piece of critical investigative journalism. A critical blog post. Coverage of a court case. Tweets about Charlotte Dawson. It may be thought that these are not deliberately harmful. But the criminal law can treat as intentional something that is done with foresight of consequences, even if those consequences weren’t the motivation for the action.
The offence essentially criminalises (among other things) deliberate defamations and privacy invasions. But it does not provide any of the defences that constrain those torts, such as honest opinion or legitimate public concern. The law of tort has struck a careful balance between speech and the harms caused by speech. This provision seems unnuanced.
I am concerned that the offence as drafted is too wide.
Online content host liability (clause 20)
I note that on its face, this seems to create a general “safe harbour” regime for ISPs and other content hosts. That is, it is not restricted to preventing liability arising under the Bill’s complaints regime or its new offence. It would also apply to other civil or criminal liability, including defamation, invasion of privacy, and breach of confidence. This conclusion is strengthened by the specific exclusion of copyright breaches in clause 20(6). If so, this seems a very significant provision.
In general, I support the creation of a general safe harbour provision, where accompanied by requirements on the host to behave responsibly, if it does not impose unworkable burdens on ISPs, and balances the rights of authors. I make the following observations:
It is not clear to me whether content hosts include, for example, bloggers that hosts comments threads, or mainstream media sites that host bloggers but don’t edit them. The definition seems to cover them. This should be clarified.
It creates a powerful incentive for the content host to remove material upon receipt of a complaint. It is the easiest thing for them to do. They may well penalise speech that isn’t unlawful at all.
What is threshold for a complaint? It seems extraordinarily low. The complaint can allege unlawfulness, but need not do so. It can merely allege that the hosted material “ought to be taken down because it is harmful or otherwise objectionable”. It does not even have to allege that the the content breaches a communications principle (which itself would be a low threshold, given that the communications principles do not themselves create legal obligations, and can only be used as stepping stones to court orders that must pass other thresholds). This seems too low, and open to abuse by complainants. I think they should have to allege that a law has been broken, and not even merely a communications principle.
I welcome the provision that requires complainants to identify the precise material they challenge, and explain why they think it is unlawful (or harmful/objectionable).
The requirement to take “reasonable steps” carries a lot of water in this provision. If an ISP concludes in good faith, but wrongly, that the post complained about doesn’t break the law, and so can remain up, is that taking “reasonable steps”? I think it should be.
There seems to be no requirement for the author of the material to be informed about these complaints, or given a right to challenge them, or any process by which the author can argue that the content is not unlawful, harmful or objectionable. There should be a mechanism to challenge them, but one that does not involve the ISP making a ruling on legality.
The Bill doesn’t say, but does create an argument, that any content host that does not respond to a complaint under this section thereby becomes liable for the content it allows to remain up. I am inclined to think that it should be made clear that there is no such presumption, which would allow ISPs and their ilk to rely on the developing law relating to when they can be regarded as publishers.
December 5, 2013
To all those people who insistend that the government’s constitutional consideration was a stalking horse for formally entrenching the Treaty of Waitangi and racial bias into our constitution: time to start wiping the egg off your face. I’m looking at you, Chris Trotter and Winston Peters and John Ansell and the folk at the Independent Constitutional Review. And please don’t pretend that it was only your brave voices that stopped the constitutional advisory panel from recommending it. It was never on the cards.
December 1, 2013
More specifically, is Cameron Slater entitled to the same privilege to protect sources that other journalists have?
As the NZ Herald reports, the owner/operator/author of NZ’s most widely read blog is being sued for defamation. The plaintiff has formally asked him whether he knows the name of his source. (You might have thought that the answer to this might simply be “yes”. But I guess there’s an obvious follow-up). Slater has refused to answer on the grounds that he is a journalist, writing for a news medium, and therefore does not need to reveal his source. This rule is contained in s68 of the Evidence Act 2006.
Note a couple of things. First, in order to get this source protection, Slater has to show that his blog is a “medium for the dissemination to the public or a section of the public of news and observations on news.”
Second, even if he is a journalist, that doesn’t guarantee that he won’t be ordered to reveal his source(s). The judge can order him to identify his source on the grounds that the public interest in disclosure outweighs the negative impact on the source and the general impact on the flow of information to journalists. This rule applies to all journalists.
Anyway, Slater claims this prima facie right to protect his source. But the judge ruled that he doesn’t even get that. This is because:
Whale Oil is a blog site. It is not a news medium within the definition of s68… of the Defamation Act. It is not a means for the dissemination to the public or a section of the public of news and observation on news.
The judge gives very little reason for this conclusion. It seems a very questionable one. Whatever you think of WhaleOil, it’s hard to deny that he breaks news stories, and that he writes commentary on news. When you factor in the requirement that the courts are supposed to have regard to rights of freedom of expression under the Bill of Rights Act when interpreting statutes - and there’s a respectable argument that protecting sources facilitates the flow of important information - then there seems a powerful argument that this section ought to be construed widely enough to encompass at least some bloggers.
The judge cites a Law Commission report in support of his conclusion that what bloggers do isn’t news. The Commission pointed out that bloggers were often highly partisan, could be offensive and abusive, and weren’t accountable to anybody.
There are several problems with this. One is that the judge was in fact quoting from a Law Commission issues paper, not its final report.
Another is that the Law Commission in its final report had some complimentary things to say about bloggers: (2013 final report on News Media meeting New Media (p61, para 3.39):
There is ample evidence of the profound and growing influence new media are having both on mainstream media’s culture and content. As we discussed in chapter 2 of our Issues Paper, there are well over 200 current affairs bloggers in New Zealand, some of which have become a rich alternative source of information and commentary. Although primarily a forum for the expression of robust opinion, a number of high profile blog sites are used to break news. Blogger are also increasingly taking on a watch dog role over mainstream media, critiquing their performance and alerting the public to their alleged failures.
Another is that the Law Commission was discussing whether bloggers should be included in a new regulatory regime for the media, not how the Evidence Act should be interpreted. Its recommendations have been rejected by the government.
Yet another problem is that the Commission’s inclination was to allow bloggers to be included in the regime, on the grounds that it made no sense to distinguish between mainstream media and bloggers when both were serving the interests of free speech. It would have treated anyone as media who regularly published news and opinion of current value to a public audience, providing they agreed to be bound by an ethics regime. This last element is problematic for Cameron Slater’s case. But in the end the thrust of the report is the need to recognise the valuable news-role played by at least some bloggers.
So in the end, the judge’s conclusion is simply not convincing.
It gets worse though. The judge goes on to consider the High Court rules. He cites a rule that says a defamation defendant doesn’t have to disclose sources before trial when pleading honest opinion or privilege. The judge says this rule doesn’t apply because Cameron Slater didn’t argue a defence of “honest opinion on a matter of public interest.” This reasoning seems particularly weird to me. The defence of honest opinion no longer requires that the comment be on a matter of public interest. He doesn’t need to plead public interest: it would be superfluous. It seems to me that this rule surely applies to a defendant who pleads honest opinion, which Slater did. So I think the judge is wrong there too.
What’s more, there’s also a rule called “the Newspaper rule” that the judge doesn’t discuss that allows media defamation defendants to refuse to disclose sources before trial – Cameron Slater could have tried to invoke that too, but it’s not clear he did.
Where does this leave us? I’m not entirely sure. Is the judge saying that no bloggers can invoke the Evidence Act to protect sources? That’s certainly one way of reading the decision, since he doesn’t go into any real detail about the Whale Oil blog.
But another way of reading it is that it’s only bloggers like Slater who aren’t really providing news who don’t get the source protection privilege. Other bloggers may be.
In any event, bloggers who blog for mainstream news outlets seem to be covered by the source protection rule, since the outlet they’re writing for is purveying news and observations on news.
Apparently, Slater is appealing. (Now, there’s a sentence I didn’t ever expect to write). I have said that I don’t think the judge’s reasons are convincing. But that doesn’t necessarily mean that the High Court judge will overturn the decision. There is a still an argument to be made that to provide “news” requires some degree of adherence to traditional journalistic ethics. At heart, this requires some commitment to an ethic of verification. Perhaps it also requires some element of fairness and balance. A readiness to correct errors. A respect for privacy. A sense of responsibility. More formally, a line might be drawn around media that are subject to complaints regimes such as the Broadcasting Standards regime and the Press Council regime. But that would exclude all the bloggers.
Anyway, it could be argued that Cameron Slater doesn’t satisfy this requirement, so that whatever he produces on WhaleOil, it can’t be said to be “news”. This may be attractive to a judge on appeal, given that otherwise, essentially anyone can set themselves up as a news blogger and automatically gain the power to allow sources to defame people with impunity, and to deny plaintiffs the right to assess the degree of care and responsibility taken by the blogger in preparing the story. The identity of a source may be relevant to at least a couple of defamation defences. (Of course, as Graeme notes in the comments, the blogger can still be sued for defamation. But the source may get away with it, as well as getting away with any breaches of the law that may be involved in the disclosure of the information, such as a breach of employment obligations of confidentiality).
Another way of putting this: if the blogger’s delivery of information to the public is so steeped in ideology, invective and irresponsibility, then there’s surely a case for saying it’s not “news”.
But that argument that no slam dunk. And it creates a difficult line for the courts to draw. Which blogs are delivering “news”, and how can you tell?
Still, remember that even if bloggers are given this right, a judge can still order the blogger (or any other journalist) to disclose a source.
A final thing worth bearing in mind. Even if the worst happens for bloggers and none of them is allowed this privilege, I’m not sure the sky will fall. They will argue that this will create a huge chilling effect and their sources will dry up. The media also make this argument. But there’s very little evidence that it’s true. People have lots of reasons for talking to journalists and bloggers. Defamation cases are rare. Some journalists (and presumably bloggers) are prepared to go to jail for contempt rather than comply with a court order to name a source. So sources may well not be familiar with the law, and even if they are, they may be willing to run the risk.
My prediction is that even if WhaleOil loses this case, it will pretty much be business as usual for most bloggers.
November 1, 2013
My colleague at VUW’s law school, Dr Nicole Moreham, asked me to post this:
A scholarship is available for a student wishing to complete an LLM by thesis on the law of privacy at Victoria University of Wellington in New Zealand. The thesis will be supervised by Dr Nicole Moreham (co-editor of Tugenhat & Christie: The Law of Privacy and the Media (2nd ed)). Study must commence in either March or July 2014.
Scholarship and thesis details
The successful application will be required to complete a 50,000 word thesis (including footnotes and bibliography) and LAWS 581, an advanced legal study course. Thesis topics are agreed in consultation with the supervisor but might include research into the protection of privacy in English, Commonwealth or US common law; the concept of privacy in search and seizure cases; press regulation; data protection; or privacy in Article 8 of the European Convention on Human Rights.
The successful applicant will have a strong academic record – he or she will be expected to have the equivalent of first class honours at undergraduate level. An undergraduate law degree is expected but not required. Both New Zealand and international graduates are eligible to apply. The stipend covers living expenses (up to NZ $16,000) and tuition fees (up to approximately NZ $7,300 ie full domestic fees or a proportion of international fees).
The closing date for applications is 22 November 2013. If a suitable candidate is not found, the scholarship will be re-advertised after that date. Scholarships will also be available in subsequent years.
Application forms and further information
For further information and application forms, please click on the link below:
About Dr Nicole Moreham
Dr Nicole Moreham is an Associate Professor at the Faculty of Law, Victoria University of Wellington. As well as being co-editor of and contributor to The Law of Privacy and the Media (2nd ed, Oxford University Press, 2011, 952 pp), she has published numerous articles on the protection of privacy in England and Wales, New Zealand, and Europe. Her other research interests include the law of tort and media law. Before joining the Victoria Faculty in 2006, Dr Moreham spent seven years at Gonville and Caius College, University of Cambridge; first as an LLM and PhD student and then as a Fellow and Lecturer in Law. In 2011, Dr Moreham was awarded a Rutherford Discovery Fellowship by the Royal Society of New Zealand which is providing the funding for this scholarship.
About Law at Victoria University of Wellington
The Faculty of Law at Victoria University of Wellington is based in an historic building opposite New Zealand’s Parliament Buildings and the Supreme Court. It was judged the best law faculty in New Zealand in the 2011 PBRF (Performance Based Research Funding) evaluation. It is also ranked 19th in the 2013 QS World University Rankings Survey, making it the only faculty in New Zealand to reach the top 20.http://www.victoria.ac.nz/law
October 17, 2013
It’s always a bit dangerous to speculate on the legal significance of facts when a story is still emerging and not all those facts have come out. And the tort of invasion of privacy is still itself emerging from the misty depths of New Zealand’s common law, so its outline is not entirely clear either.
But I am inclined to think that Auckland mayor Len Brown has a strong case if he wants to sue Cameron Slater, Stephen Cook, and perhaps even Bevan Chuang, for invasion of his privacy in their reporting about his affair with Chuang.
I’m not saying that he should sue, or that he’s likely to. Just that the elements of a claim are probably made out.
Brown can make out a claim if he can demonstrate the existence of private facts in which he has a reasonable expectation of privacy, and a publication of those facts that is highly offensive to an objective reasonable person. There is a defence if the facts are matters of legitimate public concern.
I imagine some of you are poised over the keyboard, ready to disagree with me already. Hold your horses. The guts of my argument is a fairly narrow one: Brown probably could not succeed in a case alleging that revealing the fact of his affair was a breach of his privacy. So Whale Oil could have told that story. But I think Brown could succeed in arguing that the sordid and salacious detail in the original story on Whale Oil’s blog breached his privacy. In short, this is because it was unnecessary to provide that level of detail to serve the public interest.
I’m not going to list all the details I’m talking about. You can read them here if you must. But they go well beyond the basic facts of the affair and get into a host of sexual particulars.
Hosking v Runting (and a swag of other cases, mostly in the UK) make it clear that we generally have a reasonable expectation of privacy in relation to sexual matters, even if we are public figures. I don’t think it will be difficult to establish that it was highly offensive to publish them. The real issue here is whether there is a defence of legitimate public concern.
As Hosking v Runting makes clear, the more invasive the privacy intrusion, the greater the legitimate public concern will need to be to justify the publication.
There are those who say that what the mayor gets up to in his personal life, including any extra-marital affairs, is nobody’s business but his own. It isn’t a matter of legitimate public concern. Lots of people have affairs. It doesn’t reflect on their ability to fulfil their public responsibilities. On that view, there’s no public interest defence here. And I have to say, I find Whale Oil’s initial justification (Brown used Council resources! He used his family in his campaign, the hypocrite!) less than compelling.
Other facts may emerge about whether there was any real abuse of power here. But anyway, I’m in the camp that says when an elected official is prepared to betray and deceive his wife and family in a fundamental way, then that says something about his character that has relevance for the electorate. Or at least, reasonable members of the electorate are entitled to think so.
So I think there is a defence of legitimate public concern for a story that reveals the affair, and I’m guessing a court would say so too.
But this story went much further. And our privacy cases in the courts and the Broadcasting Standards Authority (which applies very similar principles) make it clear that it’s the invasive material that needs to be in the public interest. In other words, there needs to be a connection between the sordid detail and the public interest that’s being claimed. If you can serve the same public interest without publishing all the invasive material, then you shouldn’t include the detail. On the other hand, if the sordid detail is necessary to tell the story, then it’s covered by the defence.
So that’s my point. Most of the detail in the original story was simply unnecessary to serve the public interest. There was, I think, legitimate public concern in knowing that Brown was having an affair, and probably the central facts about it. But not the parade of grubby particulars.
There are some counter-arguments. The courts have been willing to provide some latitude to journalists for the way they tell their stories. They allow a degree of colour. They don’t want to be censoring journalists’ editorial decisions. But there are three problems here. First, this latitude assumes a responsible editorial process informed by a sense of ethics. I don’t think those things can be assumed here. That is, I doubt a court is going to be as willing to respect the editorial decisions of a blogger like Cameron Slater.
The second is that this story goes far beyond any latitude I’d expect a court to grant.
The third is that this is very invasive story. The public interest defence will accordingly need to be particularly compelling and watertight. It’s not.
Messrs Oil and Cook could also argue that they needed to include that level of detail to demonstrate the truth of the allegations. These showed that their source’s memory was detailed and likely to be accurate. This was necessary to guard against a potential defamation threat.
But this doesn’t really work either. By all means, they should gather as much detail as they can to ensure that the story stands up. But that doesn’t mean they need to print it all. What’s more, I can imagine an awful lot more detail (what was his favourite tie? what did he order when you ate at X restaurant? did he take a phone call when you were alone with him in the office) that would establish veracity without wallowing in salacious detail.
There’s another interesting issue. Chuang was telling her story. Why are these regarded as his private facts? This does provide a little more leeway to argue that there’s no liability here. But not much. Brown still has a strong case that there was an implicit agreement that the dtails of their affair were to remain secret. Incidentally, it’s an implicit agreement that Chuang could rely on if the shoe was on the other foot and Brown was exposing unflattering details of her sex life.
I’m not sure what Chuang was told when she signed that affidavit about how much of it would be published. But assuming she understood that it was all going to be used, then Brown probably also has a good case against her for invasion of privacy and for breach of confidence.
Like I say, this isn’t likely to happen. But what’s particularly interesting, I think, is that the mainstream media have drawn pretty much exactly the line I’m talking about here. They have reported the fact of the affair. They have reported its broad outlines. They have included particular details when those seem to have some public interest justification. But they’ve stopped there.
I wonder whether any of them would have published at all if Whale Oil hadn’t broken the story for them. I’m inclined to regard it as a good thing that our media are not so rapacious that I can genuinely wonder about that.
October 8, 2013
Here’s a surprising thing about the Defamation Act 1992. It removes the right for editorials to argue honest opinion (what used to be called “fair comment”).
You ought to be sceptical about that claim. It sounds absurd. Editorials are the very epitome of fair comment/honest opinion. They are written on the assumption that the defence applies. Otherwise, editorials that express critical views of people (and that’s 95% of editorials) may be exposed to defamation lawsuits.
So how do I reach the conclusion that this defence isn’t available? The Defamation Act reformed the law of honest opinion (for one thing, it replaced the name “fair comment”). Here’s the main bit, section 10:
In any proceedings for defamation in respect of matter that includes or consists of an expression of opinion, a defence of honest opinion by a defendant who is not the author of the matter containing the opinion shall fail unless,—
(a) where the author of the matter containing the opinion was, at the time of the publication of that matter, an employee or agent of the defendant, the defendant proves that—
(i) the opinion, in its context and in the circumstances of the publication of the matter that is the subject of the proceedings, did not purport to be the opinion of the defendant; and
(ii) the defendant believed that the opinion was the genuine opinion of the author of the matter containing the opinion:
(b) where the author of the matter containing the opinion was not an employee or agent of the defendant at the time of the publication of that matter, the defendant proves that—
(i) the opinion, in its context and in the circumstances of the publication of the matter that is the subject of the proceedings, did not purport to be the opinion of the defendant or of any employee or agent of the defendant; and
(ii) the defendant had no reasonable cause to believe that the opinion was not the genuine opinion of the author of the matter containing the opinion.
Okay. Boring. What this does is create a tiered system of honest opinion defences. If you are sued for something you wrote yourself, you need to show that it’s your “genuine opinion.”
If you’re publishing something written by your employee or agent, you need to show that you believe it’s his or her genuine opinion.
If you’re publishing something written by someone else (a letter to the editor, for example, or a comment on one of your blog posts, or a quote from a source), you have to show that you have no reason to believe that it’s not his or her genuine opinion.
So far, so good. But notice the fine print. For the last two categories, you also have to show that it doesn’t purport to be your opinion. Ordinarily, that will be easy. The op-ed contributor has a byline. The letter to editor is signed. The quote is attributed to a source. No problems. A newspaper gets sued, and it will readily be able to show it had no reason to doubt the genuineness of those people, and that no-one can be confused about whose opinion is being expressed.
Now think about editorials. They are written by employees of the newspaper. (They are often written at the direction of an editorial board). Sometimes, they’ll be written by contractors. Are you starting to see where I’m going here?
Editorials purport to be the opinion of the paper. That’s the whole point. They are unsigned. They often run under the masthead. They are exactly the paper’s opinion.
Now look again at the requirements for an honest opinion defence. Assume a newspaper is sued for defamation over an editorial. Assume one of the newspaper’s employees wrote that editorial. The paper may be able to prove that it believed the editorial was the genuine opinion of the author. (Actually, right there is a problem too: if a staff editorial writer is instructed by the paper’s editorial board to take a particular line, can the paper say it believed the piece to be the writer’s genuine opinion? What if it’s clear that the author actually disagrees with the party line?)
But let’s say that the paper can show it’s the genuine opinion of the employee who wrote the editorial. There’s a bigger problem. The paper then has to show that the editorial didn’t purport to be its opinion. But it can’t do that. Editorials do purport to be the newspaper’s opinion.
The Defamation Act says that the defence of honest opinon “shall fail” unless these elements can be proved. And I don’t think they can.
Now, I accept that this is a weird outcome. I accept that courts will strain themselves to find a way to allow a newspaper to have a defence of honest opinion for its editorials.
The best I can come up with is that the paper will argue that it falls into the first category above. That is: the paper is the author of the editorial. It will put its editor on the stand, or the head of the editorial board, and that person will speak for the paper and say “this is the paper’s genuine opinion.”
Like I say, that’s the best I can do. But it’s pretty problematic. Because it involves treating the paper as the “author”, and this interpretation is directly contradicted in the very next subsection of the Defamation Act. That’s the one that distinguishes between defendants who are the author, and defendants that hire someone else to be the author. And that seems to be precisely what’s happening with the editorial.
As far as I know, my theory is entirely untested. No one has raised it in the courts. But if someone were to try, the result might give a bunch of newspapers a fright.
October 8, 2013
Reading the Court of Appeal’s decision in Smith v Dooley  NZCA 428, you get the feeling that the High Court blundered in all the ways it’s possible to blunder in a defamation case. Lang J couldn’t even correctly work out what the words meant. And even if he’d got that right, he couldn’t tell that they were actually true. Qualified privilege? He said the defence wasn’t available, but it was. He even botched the question of what the remedy should be.
Lang J granted Dooley a declaration that he had been defamed, and an award of costs (he didn’t seek damages). The Court of Appeal overturned that. Now, six years after the publication of the press release he said defamed him, Dooley is left with nothing except, I expect, a very large costs bill.
What’s going on here? An inept High Court judgment? Just a series of bad calls? Serious disagreement about legal principle? Or an overweening Court of Appeal?
The facts are rather complicated. But they revolve around an email that Dooley didn’t know about.
Dooley was the chair of Development West Coast, a charitable trust charged with managing a big pool of government money to foster regional economic development. There was vigorous disagreement among trustees over various issues. Trustee elections were looming. Smith was running for election to the trust, and had been an outspoken critic of Dooley.
In the middle of all this, the DWC’s chief executive sent a controversial email to Ngai Tahu. Ngai Tahu appointed one of the trustees (they weren’t all elected). The email advised Ngai Tahu to watch out for “googlies” in the appointment process - thrown by people trying to oust Dooley.
Dooley didn’t know about this email. But some of the other trustees got wind of it. One asked Dooley whether the trust had written to Ngai Tahu to lobby for the retention of the existing appointee. Dooley, in turn, asked the chief executive and Ngai Tahu. Both denied receiving any email of that type. Strictly speaking this was accurate. Dooley told the trustees there had been no such email.
The trustee pressed on, asking whether there had been any communication “about the Ngai Tahu appointee to the trust”. Dooley said again there was no such letter. This was arguably inaccurate. The email really was about the appointment of the trust’s appointee. But Dooley didn’t know about it.
There’s more to the story, but the upshot is that Smith learned about the email and the correspondence, and (having discussed it with a trustee) made comment to the media. He said: “The correspondence amounts to serious interference with the electoral process. I find it disturbing that the CEO and Chair denied its existence. Can the (future) trustees have any faith that the CEO or Chair will not be misleading them on matters of significance”? He went on to criticise the CEO for sending the email.
Dooley sued. The first issue was about the meaning of this statement. Did it suggest that Dooley deliberately misled the trust about the email? Lang J said it must do. Smith could only be “disturbed” by the denial if it was a lie.
The Court of Appeal disagreed. It said what Smith found disturbing was merely that Dooley didn’t know about the email, when he should have. Smith said in evidence that’s what he meant. The rest of the press release was criticising the CEO, the judges noted.
I don’t buy this. The judges accept that Smith’s intentions were irrelevant. The question is what ordinary, fair-minded readers would have thought. There’s a powerful argument that they would have thought: “Hmmm. The Chair denied the existence of the email. This bloke Smith says that’s disturbing. Then he says maybe the Chair can’t be trusted not to mislead the trust in future. He must be saying the Chair knew about the email and lied about it.” That’s not because this is the only logical conclusion. It’s because it’s what people will think when they read it.
The next issue was truth. Lang J found that it wasn’t true: Dooley didn’t know about the email after all. The Court of Appeal disagreed again. Even if the meaning was that Dooley had deliberately misled trustees about the email, it was true, they said. He did this by failing to tell the trustees about the email for several days after he found out about it. He didn’t put the record straight when he had the opportunity to.
I’m inclined to think there’s a material difference between a dishonest denial that an email has been sent (which was incidentally how the case was pleaded), and a failure to immediately correct the record (which wasn’t). So I’d side with Lang J again, though perhaps it’s a line call.
The really interesting issue, I think, was qualified privilege. Should it extend to elected officials who aren’t MPs? In what circumstances should it be defeated by improper motivations or failure to act responsibly? Lang J indicated that he thought this defence should apply to criticisms of local body politicians too. This seems like a no-brainer to me. It’s annoying that the Court of Appeal didn’t endorse that observation.
For Lang J, this defence failed because Smith was primarily motivated by personal animosity toward Dooley. He relied mainly on a parade of letters to the editor written by Smith, criticising Dooley. But these were all raising serious political points, and could simply be seen as robust political rhetoric. I think it was a serious error to suggest that this was evidence of the sort of ill-will that defeats a qualified privilege defence.
He also thought Smith acted irresponsibly by failing to examine the emails himself. That would have made him realise that Dooley genuinely didn’t know about the email. I think this is questionable. I doubt he would have believed what Dooley said in his emails. And Smith had phoned a trustee to discuss his allegations before he released his press release.
The Court of Appeal made similar points. It found the qualified privilege defence was made out. I have to agree.
The final issue concerned remedies. Lang J granted the declaration sought. The Court of Appeal felt that would not have been appropriate, even had the defamation been proved. The remedy is discretionary, the judges noted. They said there was a long and not adequately explained delay before filing proceedings (though they refer to a failed settlement agreement that suggests that most of the delay was explained).
I’m mystified by this. A refusal to grant a declaration, once a defamation has been made out, where a plaintiff has foregone a claim for damages and focused on clearing his name, even if there have been large delays, strikes me as churlish and unfair.
So there’s my verdict: High Court judge unfairly maligned. But the Court of Appeal was ultimately justified in overturning the decision on one point.
I think this case also points up a need for possible reform. If a plaintiff only seeks a declaration, why should qualified privilege be a defence?
October 2, 2013
The good news, for the Law Commission: the government thinks the Commission’s report on media regulation - recommending the establishment of a one-stop media complaints body serving print, broadcast and online platforms - is “excellent”.
The bad news: the government has rejected that recommendation.
I summarised the Commission’s proposal in an earlier post. In short, the idea was for the creation of an independent media regulator - the News Media Standards Authority - that could draw up codes of ethics and receive complaints about news media misbehaviour. There would be a single port of call for complainants whatever the delivery platform, replacing the increasingly unsustainable mishmash of existing complaints bodies - one for broadcasting, one for print, and a new one for online broadcasters.
Membership would be voluntary. Anyone regularly delivering news or news commentary to a public audience could join (including some bloggers). They would then receive various legal privileges, such as rights of access when courts were closed, and source protection under the Evidence Act.
This proposal was generally reasonably warmly received by the media.
Why did the government reject it? It gives a series of reasons. There’s no crisis of confidence in the media here. The proposal would require “extensive legislative change”. Some media might not join. It would still leave the problematic category of “entertainment” programmes. Are we really ready to let go of statutory control of broadcasting? ”Careful consideration” is needed before stripping non-members of rights such as immunity from the Privacy Act. We’re regulating about harmful cyber communications shortly - let’s see how that works out. And let’s wait and see what other countries do.
There’s room for some disagreement here. In particular, the government several times talks about careful consideration being needed before significant changes are made. This is rather insulting to the Law Commission, whose report contained oodles of careful consideration of the changes they recommended.
What’s more it’s not entirely clear that the government itself has carefully considered the Commission’s recommendations. Twice the government says that the Commission proposed doing away with the balance standard. It didn’t (though it did suggest that balance was a standard which may not be needed for some news formats, such as blogging).
And the legislative changes recommended (essentially some tweaks to the definition of news media where it appears on the statute book, and the repeal of a big chunk of the Broadcasting Act) are not particularly extensive ones. It’s true that if some of the big media organisations did not join the NMSA, then the regime would probably be doomed. But given that it’s essentially a self-regulatory regime, and would be likely to be replaced with a full-blown statutory one if it didn’t work out, this would involve some spectacular foot-shooting by the media.
Finally, the Commission spends some time making the case that the distinction between news and entertainment, while tricky (consider, for example, reality television), is ultimately workable.
But my main objection to the government’s response is how short-sighted it is. Our existing patchwork system is rapidly passing its use-by date.
At the moment, it’s really not clear who counts as the news media for the purposes, for example, of the Privacy Act, the Evidence Act, and court access privileges. That’s likely to lead to inconsistencies and confusion and probably litigation. Why not clear up now whether reality TV producers are subject to the Privacy Act. Why not clarify who gets exemptions from Fair Trading Act obligations concerning misleading and deceptive conduct? One pothole waiting for an unwary traveller: the fact that the Fair Trading Act’s exemption for the media may not apply to online publications (is Stuff a “periodical publication published at intervals not exceeding 40 days”?), and plainly doesn’t apply to downloaded news clips and programmes - because these are not “broadcasts” under the Broadcasting Act.
Are the Press Council’s rules really geared to the increasing amount of video newspapers publish online? There’s no power to order a takedown of, for example, footage of a child being bullied.
That raises another point. The Press Council’s standards differ from the Broadcasting Standards Authority’s ones. The Online Media Standards Authority’s differ again. If identical videos are posted on a newspaper’s website, a broadcaster’s website, and broadcast on television, complainants may have to go to different bodies, make different arguments, and receive different outcomes and remedies. That seems insane.
Still, it now seems that the media will be subject to the new cyber-harrassment regime. The Commission had proposed that NMSA members be excluded. Being subject to that regime may come as a shock to the media. But perhaps they will be exempted if they belong to one or more of the existing regimes.
We also have the rather silly situation where Sky TV is subject to a significantly more lenient set of standards in its news and current affairs shows than TVNZ or TV3.
What about the role of the Bill of Rights? NMSA would presumably have led to a fairly rigorous and standardised approach to free expression issues. At the moment, the BSA’s approach differs markedly from the Press Council’s.
The complaints procedures differ too. For instance, you can’t appeal a Press Council decision, but you can appeal a BSA decision to the courts, and OMSA has its own appeal body. The Press Council can insist that you forego your right to sue as a precondition for hearing your complaint. The BSA can’t. The Press Council now conducts informal attempts to mediate complaints. The BSA doesn’t.
And currently, there is no standards regime for bloggers to sign up to.
What about mobile phones? When streaming news and current affairs content, they are probably vehicles for broadcasts. Should the originators of such content be subject to broadcasting standards?
In short, the proliferation of platforms is set to create more and more problems for complainants, and the differences between them look increasingly unjustified, confusing, or just silly. But the government hasn’t mentioned any of this in its response to the Law Commission. Instead, it has passed up an opportunity to fix up what even the media agrees is an untenable system. That strikes me as irresponsible.
October 2, 2013
Like many others, I’m worried that NZ is about to sign up to a Treaty (the Trans-Pacific Partnership Agreement) that looks like it will have wide-ranging implications for our own laws - our ability to regulate genetically modified products, intellectual property, tobacco and alcohol, the flow of capital, the environment, the purchase of medicines, and more.
What’s more, it looks set to contain dispute resolution systems like the ones that have allowed huge corporations to sue governments for enormous sums for passing laws they claim breach treaty obligations.
There’s plenty of reason to be worried about what this might mean for us. But before we even get there, there’s another battle to fight: getting access to the text before it is finalised and signed by our government.
Yes, it is true that this might create annoying distractions for those charged with negotiating the treaty. Yes, the clamour of objections might make it harder to reach agreement. Some of the debate may be misinformed. Pressure might be brought to bear to change it. I’m sure this will be irritating to the governments trying to reach agreement on the text.
It’s called democracy.
I’ve signed the petition calling for the text to be released so that it can be publicly debated before the governments lock themselves into a version that will be almost impossible to shift. I urge you to do so too.
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