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BSA and ASA to political parties: “sure, lie all you like”

September 21, 2017

When I first saw the National Party’s blatantly misleading “Let’s Tax This” ad, I thought: the Advertising Standards Authority would have to uphold a complaint about this one. And if the ad is broadcast on TV or radio, the Broadcasting Standards Authority will have to as well.

Not that I think that complaints against political ads should usually be readily upheld. I don’t. I panned the ASA for upholding a complaint against a Labour ad in 2008 where the error was a nit-picky one. The basic point of the ad was right, I said. Political speech needs to be given room for exaggeration, colourful language, even minor mistakes. I also gave the ASA a serve for upholding an complaint against an ACT ad that was also basically correct. And I’ve provided advice to the BSA that it needs a compelling justification before upholding complaints against serious political programmes or political ads.

But it seemed to me that this ad crossed the line. Well, not so much “crossed” as flew over it on a monster truck.

When I heard that a bunch of law students from were putting in a complaint, headed by Josh Trlin, I agreed to lend a hand. In the end, though, I thought Josh made the points really well and I didn’t have much to add. It looked compelling. The main point: the ad asserted Labour would impose taxes that were no part of Labour’s platform, including some it had repeatedly publicly ruled out.

A majority of the ASA disagreed. And, in a similar complaint, so did the BSA.

(I should note that the ASA and BSA were looking at slightly different things. The ASA had to decide whether the ad created an overall impression, which directly or by implication, omission, ambiguity or exaggerated claim was misleading or deceptive, or likely to mislead or deceive the consumer. Since it was an advocacy ad, they also had to decide whether it expressed opinion which was clearly distinguishable from factual information. The BSA had to decide whether the factual information was clearly distinguishable from opinion or advocacy, but did not need to rule on whether it was otherwise misleading).

I think they were both seriously wrong, to the point where they’ve abdicated their statutory and contractual responsibilities. That’s a harsh call, so let me explain it.

First, let’s look at why they did not uphold the complaints. Similar themes run through both decisions. They said the starting point was freedom of expression. That’s particularly important for political speech at election time. Viewers could understand that this was a political ad. Viewer would realise it was merely presenting an opinion, not factual information. The National Party had provided some justification for each of its assertions. And viewers could view the ad against the other substantial coverage in the media and elsewhere about tax issues.

The first bit of that is fine. No disagreement that political speech is important and you need very good reason to uphold a complaint against a political ad at election time.

But that’s where we part company. Let me list their errors.

Viewers’ impressions

Both the BSA and ASA are big on looking at the way ads will be understood by ordinary viewers. The ASA calls this the “consumer take out” and the BSA says it’s the impression left on ordinary viewers. You will have seen that the ad starts off with a casually dressed couple entering a leafy suburban house with a “for sale” sign in the yard. Arrows then appear asserting that the house will be subject to capital gains tax and the ground under it, a land tax. National argued that “there is no suggestion that the home shown in the advertisement was the family home.” I think it would probably be more correct to say that this particular clip was specifically chosen because National could not find another one that more clearly evoked a family home. The “consumer take out” here is obvious. The ASA ignored it.

The ad also shows a glass of water. A label suggests a water tax will apply to it. National explains that it showed “bottled water”. I do not doubt that this is true. There is only one problem: there is no bottle there, and without the bottle, it looks to ordinary viewers like tap water. If National wanted viewers to think “bottled water”, do you know what they could have done? Go on, wrack your brain. The point: without the bottle, this is asserting a tax on municipal water. Labour is not proposing that, and National knows it. The ASA and BSA should have called them on this: they are creating misimpressions for viewers. It is not subtle.

I could go on. For example, pretty much everyone who’s considered National’s claim that Labour will hike income tax had concluded it’s misleading. Not the ASA though. But let’s move on to an even bigger problem.

Opinion

Both the BSA and the ASA somehow conclude that this ad “made it clear it presented [National’s] opinion and what they considered to be a point of difference in policy” (ASA) or that it was “clear to viewers that the advertisement did not contain factual information, but rather National’s own analysis of Labour’s comments, policies and tax announcements” (BSA).

I think to call this an “opinion” butchers the language. In its own decision, the ASA says the ad has to be “clearly distinguishable from fact”.  The BSA points out that parties have to “take care not to mislead viewers by presenting political assertions as statements of fact.”

But this ad plainly makes a series of assertions of fact. No other conclusion is open. The ad uses Labour-red arrows called Capital Gains Tax, Land Tax, Regional Fuel Tax, Income Tax, Water Tax and Fart Tax, pointing them at a house and land and a wallet and a gas pump and water and a cow. The voice-over says “There’s only one way to stop Labour’s taxes…”. This is not, by any stretch of the imagination, an expression of opinion. It is not, as National tries to argue, “raising questions”. (It could have done that by using question marks in its arrows, which certainly would have made it less misleading).  Nor is it, as National’s lawyers heroically try to suggest, a manifestation of “our argument… that their plans lack sufficient detail for New Zealanders to understand what they’re proposing and why…” or “our position that the representation in the advertisement is that Labour has a range of tax policies it will consider implementing that will affect New Zealanders.” That’s all very well, but it’s not what the ad says.

I really have no idea what the ASA and BSA believe amounts to an “opinion”. They don’t tell us. I’ve done quite a lot of thinking about the distinction between facts and opinions, partly because it comes up a lot in defamation law. The best definition of an opinion I’ve come up with is that it’s something that is conveyed in a way that the reader knows it’s open to be disagreed with. “We think you shouldn’t trust Labour not to enact a mass of new taxes”. That’s an opinion. Even: “Don’t trust Labour on taxes”. I’ll buy: “Will Labour pass new taxes?” But not: “Labour is going to put a tax on the family home and the land under it” or “Labour will pass a capital gains tax” or “Labour will tax drinking water” or “Labour will increase income taxes”. Those are assertions of fact. And those assertions are conveyed by this ad.

I have never seen a definition of opinion that would cover this ad.

Even though there is a plain political context to this ad, that does not change the nature of what it says. Or what ordinary people will take it to mean. And they will take it to be expressing facts about Labour’s policy. Because that’s  what it does.

The harm

The BSA quite properly notes that it needs to weigh the significance of the speech against “the level of actual or potential harm that might be caused by the broadcast.” Then it doesn’t do this.  The closest it comes is to point out that there’s a lot of other coverage about taxes. The ASA notes this too. The reasoning here is that informed viewers will understand that taxes are being debated, that Labour has denied they will impose CGT or a land tax on the family home, that National’s claim about income taxes is really about Labour reversing tax cuts that have not yet taken effect, that fart tax isn’t really a tax at all, but a reference to the Emissions Trading Scheme, even though the Greens are in fact proposing a carbon tax, which is different, and… are you starting to see the problem here?

There really is no reason to assume that viewers, or even most of them, will be sufficiently up to speed with the nuances of the tax debate to (a) have an insight that what is being expressed here is an opinion, not assertions of fact and (b) that when the ad claims that Labour will impose CGT on what looks like the family home and tax drinking water, it really means they might impose CGT on something that’s not the family home and tax bottled water.

The real harm here  is that a substantial number of viewers will be deceived into thinking that these really are Labour’s policies. And that might affect their vote. That harm is deepened by the fact that tax is an issue that affects everybody seriously. And is central to the differences between the parties. And is hard to understand. All of that should lead to the conclusion that there is a better-than-usual justification for holding advertisers to account for the accuracy of their claims. I think the ASA and BSA, both of whom barely mention this, have seriously under-estimated the potential harm here. It is not putting it too strongly to wonder whether the misleading claims in this ad have contributed to the apparent significant late swing against Labour.

Timid decision?

I think these decisions are timorous ones. I suspect those making them were worried about being seen as interfering with the election. Of course, the danger is that National will now crow that they’ve been proved right by two formal complaints bodies.

It’s also disappointing to see how little the ASA and BSA bothered to address the arguments made to them. For instance, the ASA only looked at the argument around whether Labour planned to introduce a “Fart Tax”. That’s a marginal call. Other parts of the complaint are much stronger. The justification provided by the National Party simply didn’t bear out the allegations in the ad.

The minority of the ASA (stand up and bow, whoever you are) got it right, saying:

the advertisement implied Labour would introduce the taxes presented and it conflated taxes that had been announced by the Labour Party with those that had not. … The advertisements were likely to mislead consumers in breach of Rule 2 of the Code of Ethics and had not been prepared with a due sense of social responsibility to consumers required by Basic Principle 4 of the Code of Ethics.

So what does this all mean? The clear message it sends is that political ads will always be treated as opinion, and that as long as a party has a fleck of a sliver of a shard of justification for its claims, these bodies will not call them out even if their ads are very seriously misleading and misinforming people about issues that are pivotal to the election.

That means it’s up to the media to do that job.

Topics: General | 1 Comment »

Scandalised by the Law Commission’s recommendation

August 23, 2017

In my last post, I discussed the Law Commission’s report on contempt of court. I generally supported the recommendations. Here’s one I think they got wrong.

The Commission proposes replacing what is now called “scandalising the judiciary” with a new, more limited, statutory offence. I think it should be scrapped altogether, as has been done in England, Canada and the United States, and as has been recommended by the Australian Law Reform Commission.

The existing law is amorphous and multi-pronged, if such a thing can be. Wade through the Nick Smith contempt case if you dare. The law aims to protect the justice system against unfounded attacks that damage its functioning, usually by impairing public confidence through attacks on the integrity of judges. It has always seemed to me to rest on a series of extremely dubious assumptions:

  1. There are attacks on judges out there that actually do cause some widespread loss of confidence in the judiciary.
  2. Those attacks are entirely untrue and unjustified.
  3. The public believe them anyway.
  4. This demoralises the public so much that we don’t trust the court to hear our cases properly, so we don’t take cases to court, or it disinclines us to obey court orders.
  5. Those making such attacks, and others disposed to do so, will be deterred by a law against scandalising.
  6. Confidence in the judiciary will be restored by a finding by judges that the attacks on judges are unfounded.
  7. This restorative effect will be stronger than the harm caused to public confidence in the justice system by (a) drawing attention to the attacks and (b) judges punishing people for criticising them.
  8. The scandalising law will actually be enforced, consistently and even-handedly.
  9. Authors, lawyers and courts can readily and objectively distinguish between legitimate criticism of the judiciary and illegitimate, criminal attacks on their integrity.
  10. The law will not have the effect of deterring more legitimate criticism than illegitimate attacks.
  11. Any scandalous attacks cannot be adequately met with a defamation lawsuit, which judges do sometimes bring, an action under the Harassment Act or the Harmful Digital Communications Act, or a response by the Law Society, the Attorney General or the head of one of the judicial benches.
  12. Judges can be trusted to resolve these issues sensibly, when they tend to engage in reasoning such as this (from Solicitor-General v Smith):

The rights guaranteed by the Bill of Rights depend upon the rule of law, the upholding of which is the function of Courts. Courts can only effectively discharge that function if they command the authority and respect of the public. A limit upon conduct which undermines that authority and respect is thus not only commensurate with the rights and freedoms contained in the Bill of Rights, but is ultimately necessary to ensure that they are upheld.

In other words, anything that punishes someone for hurting the reputation of the judiciary cannot be inconsistent with the right to free speech in the Bill of Rights, because we need judges to protect our rights. The reasoning really is that circular and self-serving.

Wait. Did I just scandalise the judiciary?

The Law Commission does address some of these points, but doesn’t reach what seems to me to be the obvious conclusion: let’s just ditch it.

Instead, they want to codify it, trimmed back a bit. The proposal would make it an offence to publish:

an allegation or accusation…against a judge or court, and there is a real risk that the publication could undermine public confidence in the independence, integrity or impartiality of the judiciary or a court.

The court could then order material to be taken down or withdrawn (and a correction or apology published) if it finds an “arguable case” that an offence has been committed.

Shall I count the ways this is a bad idea?

No public interest defence

There’s no public interest defence, as the Commission proposes for sub judice contempt. Courts often say that their powers are not to be exercised to prevent legitimate criticism, and that they are  not there to protect  judges’ reputations but the integrity of the system. So why not spell that out? Isn’t the absence of a parallel public interest defence inviting the inference that it’s been deliberately omitted?

Nor is there a defence of qualified privilege, in marked contrast to the courts’ willingness to immunise political criticisms from legal repercussions, even when they are wrong and cause harm, because of the importance of free-flowing discussion about representative and responsible government. Mightn’t the same be said about the importance of commentary about our courts?

The role of truth

After some hand-wringing, the Commission accepts that there must be a truth defence. In the body of the Commission’s report, it describes the offence as publishing “untrue” allegations. But that’s not reflected in its draft law. The draft law makes it a defence to show that the allegations were true, which isn’t quite the same thing.

That truth defence is taken almost straight out of the Defamation Act. Yet there’s no consideration of how truth works in defamation cases. The first and often the most significant battle in defamation cases is over meaning. The Commission’s discussion effectively assumes that this will not be an issue. The meaning will be obvious. This flies in the face of experience. What if it’s ambiguous? Who has  to prove meaning? The prosecution? By what standard? The defamation standard? In a criminal offence?  Can the defendant raise a contested meaning and bring evidence to prove that?

No honest opinion defence

The Law Commission says the offence “covers statements of opinion, which are not capable of proof”. But it rules out an honest opinion defence. This seems astonishing.

Its reasoning is equally astonishing:

This defence has never been a part of the law of contempt, and it is not consistent with the overall purpose of this part of the law of contempt, which is to protect the independence,
integrity and impartiality of the judiciary as an institution. Further, the likely effect of a defence of honest opinion would be to confine the proposed offence to a very small selection of
exceptional cases.

So… almost all cases covered by this offence would be otherwise covered by an honest opinion defence, and we can’t have that. Let me spell that out. This means that – according to the Commission – most cases covered by this offence are expressions of genuine opinion, clearly conveyed to the audience as opinions, based on sufficient true facts that are set out or well known. Those are the requirements of an honest opinion defence. They’d stop a judge suing for defamation. But not a Solicitor-General prosecuting for criminal contempt.

It’s worse than that. If you take the care to express your view clearly as an opinion based on accurate facts, you are in a worse position than if you just expressed it as a factual allegation. Because the Commission says you can’t have a truth defence for an expression of opinion and you can’t have an opinion defence at all. Might as well rark up the rhetoric. Instead of “I think the judge might be corrupt”, say “The judge is corrupt”. At least you’ll have a shot at a defence.

I admit, this is a bit unreal. It’s extremely unlikely that the Solicitor-General would choose to prosecute a carefully reasoned criticism. I’d hope that if the attack was clearly expressed as an opinion then it wouldn’t get prosecuted at all, even if it was irrational or extreme. But that’s no excuse for not making sure that the ambit of our criminal law is sensibly constrained.

Real risk

How do you prove, beyond reasonable doubt, that someone’s publication has created a real risk that the public’s confidence in the independence, integrity or impartiality of the judiciary could be undermined? The test in publication contempt cases (real risk of prejudice to a fair trial) is bad enough. But at least we have some fairly well-defined notions of what a fair trial requires. This test is far more amorphous. It’s hard to imagine what evidence could be brought to bear. A poll? What will happen is that a particular judge will think that public confidence might be undermined, and that will be enough. I am  inclined to think that this offence actually creates a very low threshold, partly because it is proved by showing mere possibilities that are incapable of being factually proved or disproved (“risk”, “could”), partly because judges have a tendency to over-estimate the dangers of this sort of threat, and partly because the wording of the section (and the “demonstrably justified” provision in the Bill of Rights Act) allows free reign for judges’ perceptions.

Injunction threshold

You read that right. The judges can issue a gag based on an “arguable case” that this offence has been committed. First thing to note: you can’t get an injunction in a defamation case based on an arguable case. That’s because of the importance of free speech and the dangers of judges acting as censors. Not here.

We now have a situation where a judge can order your criticism taken down (by your web host if you won’t do it) on a showing that there is an “arguable case” that your criticism creates a “real risk” that public confidence in the judiciary “could” be undermined. Let’s call that at least a 20% chance that there’s a 30% chance that there’s a 25% chance that public confidence in the judiciary will be undermined.

Compare this with the injunction threshold in privacy cases: “compelling evidence of most highly offensive intended publicising of private information and there is little legitimate public concern in the information”.

Recall that falsity is not an element of the offence. And since take-down orders can be made before any charges are filed, and in the absence of the defendant, it may well not be clear whether the defendant wants to advance a truth defence, and on what basis. Do the courts even have to consider the potential truth of the allegation before making such an order?

But perhaps the interests to be protected here – the integrity of the justice system – are more important than some ordinary plaintiff’s reputation. Perhaps. I don’t buy it. Here are some of the descriptions of particular named judges on Vince Siemer’s Kiwisfirst site, based on what purports to be an objective survey of lawyers:

impervious to the law and often undeterred by facts

obsessed with self-image, which this judge understands can only be maintained by kowtowing to powerful special interests

an intellectual and moral lightweight

few lawyers were convinced this judge has anything but a facade of integrity

a bent judge whose recklessness has increased with his time on the bench

generally regarded as highly partisan to self-serving interests, with suspect use of discretionary powers to get around the law

I suspect that most of these judgments arise from the acerbic anonymous comments of a handful of disgruntled lawyers, but they are not portrayed that way. If Vince Siemer’s website, which stabs at the heart of judicial integrity, can exist for years without doing any noticeable harm to the justice system, it’s hard to see what can. At least, it’s hard to see a need for this sort of urgent injunctive power.

Note too that the Commission would allow the courts to order a defendant to apologise, a power that has always struck me as silly. Defendants who don’t actually feel sorry are put in the position where they are breaching a court order if they don’t lie.

Yes, these powers must be exercised consistently with the Bill of Rights Act, which protects freedom of speech. But judges are not always very good at applying it. And it too provides a lot of room for expansive views about what sorts of limits on speech can be justified.

Do we need it?

There’s little demonstrated need for this offence. The last scandalising prosecution was in 2004, against Nick Smith, in a case that would have been decided the same way even without a scandalising law. The Law Commission can point to few examples of threats to confidence in judicial integrity, and those it does point to include pickets and complaints to the Judicial Conduct Commissioner, which would not fall under this law.

There is no attempt real attempt to see whether the sky has fallen in the countries that have abolished the law. The Commission does point to some news stories in Britain about a Supreme Court decision about Brexit:

three newspapers published photos of the three judges involved, with headings such as “enemies of the people” and “the judges versus the people” and, within the articles, making allegations that the judiciary was biased: “infested with Europhiles”, as well as making attacks on each of the judges on a personal level.

A few things. Do our papers ever go this far? If they did, is it obvious that we’d want to criminally prosecute them? Might the Press Council be a better remedy?

The Law Commission’s justifications for keeping the offence of scandalising

Here’s the Commission’s reasoning, and a few comments from me.

(a) It is in the public interest we maintain confidence in the independence, integrity and impartiality of the justice system. False allegations, which are published without justification and which carry a real risk of undermining public confidence in the judiciary as an institution, should not go unanswered. Maintaining public confidence in the judiciary as an institution is essential for upholding the rule of law in New Zealand.

In fact, the best response to most false criticisms, such as those on Mr Seimer’s website, may well be to leave them unanswered. It is, at least, what we’re doing now. And there’s been no noticeable undermining of public confidence in the justice system. It hardly follows that this offence is the best way to go about answering such allegations.

(b) As we have noted, since the Smith case in 2004 there have in fact been several serious false allegations made against judges which have gone unanswered.

This seems to contradict the premise in (a) that the rule of law will be seriously jeopardised if such allegations are left unanswered. I take it as relatively clear that the rule of law is doing pretty nicely in NZ at the moment, given that we’re 8th out of 113 countries in the World Justice Project’s Rule of Law index.

(c) The general remedies (defamation, trespass, harassment, and harmful digital communications) do not address the public interest in maintaining confidence in the judiciary as an institution. Instead, they focus on the interests of the individual judge. They also require the judge to initiate proceedings, which almost inevitably involves further personal publicity, time and cost for the judge.

I think in many cases, those general remedies would work just fine. Some judges sue for defamation, for instance. Those remedies would be good enough for all of the (few) examples raised by the Law Commission in its illustrations of unanswered contempt. But they’re not really being tried, sometimes for good reason. Besides, there are other avenues to reduce challenges to public confidence, including rebuttal statements by heads of bench or the Attorney-General, whose job it is to defend the judiciary. (Hello? Chris Finlayson? Have you ever done any of this?)

Also: if those remedies have failed, why assume that this one will work better?

Also: we already have the power to deal with this sort of contempt. It’s called contempt by scandalising the judiciary. We’re not using it. Why assume we’ll use the new statutory offence?

 

 

 

Topics: Contempt of Court | 2 Comments »

The Law Commission reports on Contempt of Court

August 23, 2017

A press conference ignored

A press conference on the Todd Barclay affair rather gazumped the launch of the Law Commission’s report on contempt of court in June. No-one from the media turned up. That’s a shame, because the Commission is recommending some significant changes.

Some notable recommendations

In 2014, I commented on the Commission’s discussion paper, where the Commission mooted most of the reforms it now formally recommends. They include:

The law of contempt is a grab-bag of powers, some of them ill-defined, that the courts can use to ensure that litigants’ cases aren’t compromised by activities inside or outside the courtroom – the publication of suppressed or prejudicial material, the intimidation of witnesses or jurors, violation of court orders, disruption in the courtroom, unfounded attacks on the integrity of judges.

As the Commission notes, the law of contempt isn’t easy to find, or to understand. It’s outdated. It’s seldom enforced. The Commission is surely right that it’s ripe for reform.

In general, the Commission’s recommendations make sense to me. In particular:

Again, in general, the research seems thorough and the discussion thoughtful.

The sub judice reform

That’s not to say I agree with it all. As I’ve discussed, it doesn’t make much sense to me to claim that statutory implementation of the sub judice rule suddenly makes it “clear”. It really doesn’t. It’s still about as well-defined as a cloud of mosquitoes. Yes, it’s good to know that publishing previous convictions or related charges with a trial looming is a contempt, but that was already pretty clear. True, it would be nice to be sure that the contempt rules don’t apply until someone is arrested. And it will be helpful to give the court power to rule early on about some of the other things that can’t be published.

But the new statutory test contains all the vagueness of the current common law one, revolving around “a real risk that the publication could prejudice the arrested person’s right to a fair trial”. In fact, it may create more uncertainty, because the courts would have to figure out whether this was intended to represent a change.

Still, the Commission has set out a list of statutory factors for determining what counts as a real risk, including a set of things – such as publications that dwell on defendant’s bad character, poor credibility or gang associations – that may be treated as creating a real risk, and that may be about as much as we can hope for. I note, though, that this list of factors seems to be drawn from the common law, and seems untouched by the burgeoning social science evidence on what sorts of things in fact tend to prejudice jurors. That social science research – especially by world authorities Neil Vidmar and (in NZ) Warren Young – is not even mentioned in this report, which I find baffling.

A public interest defence

Most interesting is a proposed new public interest defence. I don’t recall this being mooted in the discussion paper. It applies where “the publication was in good faith made as a contribution to or part of a discussion of public affairs or matters of general public interest”. I’m a fan of public interest defences, but the courts have generally drawn a very strong line here. As Thomas J put it in R v Burns:

[O]nce … it has been determined that there is a significant risk that the accused will not receive a fair trial, the issue ceases to be one of balancing. The principles of freedom of expression and open justice must then be departed from, not balanced against.  There is no room in a civilised society to conclude that, ‘on the balance’, an accused should be compelled to face a fair trial.

Is the Law Commission saying that a good faith discussion in the public interest will not be in contempt even if it creates a real risk of prejudice to someone’s trial? It seems to be.

What will the government do?

In what reads to me like a pretty lukewarm response, the government is only promising to “carefully consider” the recommendations and respond in due course. Here’s Justice Minister Amy Adams:

We need to consider how these recommendations would work in practice so that any changes we make are effective and fair.

Silly old Law Commission for not bothering to think about how its recommendations would work in practice and whether they are effective or fair! On my reading,  considerations of practicality, effectiveness and fairness are threaded into the Commission’s discussion throughout. Has the Minister read it? Or is she signalling some disagreement? Who knows! But I’m not holding my breath for a new contempt bill in the near future.

I’ll blog on the reform of scandalising the judiciary shortly.

Topics: Contempt of Court | 3 Comments »

Winston Peters sues for defamation

August 18, 2017

Winston Peters has sued AM Show presenter, former Black Cap opener, and general larrikin Mark Richardson for defamation. The NZ Herald summarises the offending statements:

Richardson said Peters was a “political predator” and took advantage of civil unrest to grandstand, attaching himself to an injury like a “political white blood cell”, or pus.

Now, I haven’t seen the statement of claim, so I don’t know whether this is the thrust of the claim. And I didn’t hear the programme, so I don’t know the context to the statements, which can often affect their meaning. I can’t guess whether they could be provably true.

Nevertheless this lawsuit seems… optimistic. On the face of it, it looks like these comments would probably be found to be recognisable as opinion, which gets you half-way to an honest opinion defence. It would not be too hard to identify a factual platform for the opinion – Mr Richardson would only need to set out some well-known events that might be said to be “injuries” that Mr Peters has commented upon to political advantage. That would get him most of the rest of the way to an honest opinion defence. The opinion need not be sound or reasonable, it need only be honestly held.

And even if that defence failed, this is surely political speech covered by the the Lange case. That defence is lost if Mr Richardson has failed to give such responsible consideration to the truth or falsity of his comments as a jury finds he should have given. Just how much care is required of a breakfast TV sidekick is something our courts have yet to pronounce on. It would be interesting to see them do so if the case gets that far.

Topics: Defamation | 2 Comments »

What to know what’s happening in Charlottesville?

August 18, 2017

Do yourself a favour and watch this.

Topics: General | 3 Comments »

Check this out

August 16, 2017

The Spinoff has a terrific tool that lets you see and compare the leading parties’ election policies. You can tick your favourites and then see which way you lean based on your policy choices. It is beautifully done. It almost makes you feel as if we’re living in a democracy where people choose the party with the best ideas.

Topics: General | 2 Comments »

Hammering the MC

August 11, 2017

Mike Hosking for TVNZ election debate moderator? Doesn’t look like many would vote for him, even though he’s the best person for the job according to a very well-placed source.

The problem is obvious. He is, in fact, biased. Apparently this doesn’t concern TVNZ, which seems remarkable right there. On the other hand, as Bill Ralston points out, the role is basically that of a traffic cop. I think this understates the importance of the choice and tone of the questions (which I hope are at least being overseen by someone else). It also understates the dangers of being pulled over by a traffic cop who thinks you are contemptible.

So 18,000 people on current count have signed a petition to dump Hosking as debate moderator. I don’t think Hosking should be moderator. But I haven’t signed the petition. That’s because it invokes the balance standard from the Broadcasting Act. Here it is:

Section 4(1)(d) of the Broadcasting Act 1989 requires broadcasters to maintain standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Call me a media law geek, but I have to point out that this is basically irrelevant to the question. For one thing, we can’t tell whether Hosking has breached this standard until we have seen his performance. He didn’t do a bad job last time.

For another, it applies over a period of time, and across all the coverage. Any lack of balance in one programme can be corrected by supplying it in a later one.

For another, this standard is about issues, not about people.

The standard that may be relevant is fairness. Every programme has to be fair to those involved. But again, that will turn on Hosking’s performance. You can’t complain under the Broadcasting Act in advance of a programme about the selection of a host.

But for me, there’s a more powerful reason to criticise TVNZ’s debate coverage. It screws over the Greens and NZ First, and therefore the voting public. I know their polling has dipped a bit, but a debate with them included would be much more useful to the public than one between the two major parties. The debates matter, and can have real effects. TVNZ is picking sides: it’s biased toward the two big parties. It sends the implicit message that they’re the only ones worth taking seriously. That other parties’ agendas aren’t worthy of the big stage.

I’m not suggesting this is legally challengeable. Judges won’t interfere with decisions like this unless they are utterly bone-headed. And excluded parties broadcasting standards challenges have never succeeded. TVNZ can certainly come up with a rationale to survive those sorts of challenge.

But, really. Why not have a leaders’ debate with the two big parties, then a four-party one, then one with the minor parties?

TV3, I hope you’re listening.

 

 

Topics: General | 1 Comment »

A couple of significant defamation appeals

August 8, 2017

In defamation law, there are three basic defences. The first one, aptly called “truth”, protects you if you basically got it right. The second is called “honest opinion”. You can use it where you’ve clearly expressed an opinion, it’s honest, and its based on facts you have set out or which are generally well known. That way, people can tell they are getting a viewpoint and what it’s about, and can then figure out whether they agree or disagree.

The third one is known as privilege. That’s for when you have screwed up, your facts are wrong, and you haven’t expressed it as an opinion. Privilege protects you even though you’ve published a defamatory smear and hurt someone’s reputation. It protects you because the judges say that the free flow of candid speech between some people, on some occasions, is so important that we don’t want to discourage it by subjecting those involved to defamation law, even though some people are likely to be harmed by some of that speech when it’s wrong. The obvious example is debate on the floor of Parliament.

But there are other examples too. The protection isn’t quite as all-powerful as the complete immunity we give to those in Parliament. It can be lost if its not exercised in good faith. That’s known as “qualified privilege”. In 2000, our Court of Appeal ruled that it could protect the media when publishing important commentary on current, past and aspiring MPs (and perhaps others directly concerned in the functioning of representative and responsible government). That privilege could be lost if it is not used responsibly.

That’s been the law for the last 17 years. But there are unresolved questions around the fringes. What about commentary on other matters of public interest besides the conduct of politicians? Might that be protected by qualified privilege too?

And what, exactly, counts as not using the privilege responsibly? Might it differ depending on who the defendant is? For example, if responsible journalism usually requires seeking and reporting the other side, is that also a requirement for bloggers, or a lobby group, or another politician, who is sued for attacking an MP? And who has to prove it? Does the plaintiff have to show that the defendant behaved irresponsibly (as is the NZ rule in cases brought by MPs), or does the defendant have to show it has behaved responsibly (as is the rule in the UK, which already has a broad public interest defence?)

And what if the media is reporting on a couple of MPs slagging each other off? Can they just report the crossfire? Would that be responsible? Or do they have to check out each allegation before publishing it?

We have some High Court authority on some of these questions, though it’s somewhat sparse and inconsistent. The Court of Appeal and the Supreme Court have  not weighed in yet. But two upcoming cases may change that. (Disclaimer: I have a hand in both). In Hagaman v Little the Court of Appeal may have to examine the boundaries of qualified privilege when claimed by a politician criticising a businessman, and the question of whether a defendant in these circumstances has to establish they have behaved responsibly in order to get the defence, and what responsibility may mean in that context. (That’s if the case survives the preliminary question of whether the appeal can continue despite the Mr Hagaman’s death).

In Durie v Gardiner and Maori Television Service, the Court will also have to grapple with the question of whether and how qualified privilege applies outside attacks on MPs (the plaintiffs are the then co-chair of the Maori Council and a lawyer acting for the Council), and what counts as responsibility . In particular, should NZ adopt developments in the UK and Canada that say it can sometimes be responsible to publish unverified allegations, if they shed important light on a public dispute, though they might be quite wrong? If so, then in what circumstances?

So these are pretty big cases for defamation law in New Zealand. And as ever, they will force the courts to reckon with the elemental contest between speech and reputation, and to explain more about how the elusive concept of responsibility acts as an arbiter between those two primal values.

 

 

Topics: Defamation, General | 1 Comment »

Protection of journalists’ sources

August 7, 2017

Here’s a useful resource for journalists trying to communicate with confidential sources without leaving electronic (or other) footprints that might unwittingly burn them.

Topics: Confidential sources | 1 Comment »

Is it possible that Todd Barclay did not commit an offence?

June 20, 2017

Newsroom has done a terrific job of trying to get to the bottom of the allegation that National MP Todd Barclay secretly recorded his former electorate agent Glenys Dickson.

Newsroom claims Barclay left a dictaphone in the Gore electorate office and recorded Dickson’s side of phone conversations. It suggests that he may have recorded conversations between electorate staff too. It suggests he used the material against her in some unspecified way. It’s not clear whether this happened only once or multiple times.

Barclay has denied all this. But it seems that not everything he said has turned out to be entirely accurate. (For instance, he’s quoted saying he would cooperate with any police investigation, but according to police, he refused to be interviewed).

It’s a crime to use a recording device to record a private conversation that you are not a party to. It sure sounds like Barclay has committed that crime. Newsroom certainly asserts it. It looks like Barclay (or someone) told Bill English about it, and Newsroom has texts where Bill English talks about this. So why did the police, after investigating, decide that it didn’t have enough evidence to prosecute?

I don’t know. But here are a few things that I suppose might be murky, or might provide a defence:

I haven’t seen the police advice. Maybe I’ve missed something. But I have to wonder about their conclusion.   Isn’t it about now that Graham McCready usually puts in an appearance?

I note, in any event, that this issue about the Crimes Act doesn’t exhaust the legal analysis here. There are also possible breaches of the Privacy Act (we might start with the general obligation to let people know when you’re collecting information, and the obligation to do so in a way that is lawful, fair and not unreasonably intrusive). There are also possible tort claims  for intrusion and breach of confidence. Then there are employment issues about duties of trust and confidence (though how that plays out given that the Parliamentary Service is the employer, I’m not sure; but I’d expect at least a duty to investigate properly).

 

Topics: Journalism and criminal law, Privacy Act, Privacy tort, Whistle-blowing | 1 Comment »


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