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Climate action

July 7, 2021

This isn’t about media law. It is much more important.

Lawyers for Climate Action NZ is seeking judicial review of the Climate Change Commission’s recommendations. It argues that the recommended cuts are not enough to contribute to keeping warming to 1.5 degrees as we’ve pledged to do in the Paris Accord. It also alleges that the Commission’s accounting measures are flawed and make our carbon picture look rosier than it is.

This may be the most important piece of litigation in any of our lifetimes.

I’m a member of LCANZI. All its work is voluntary. LCANZI is seeking donations to help hire an administrator to help manage this and other climate change projects. I encourage you to chip in. I have.

 

For what it’s worth, here is my submission on the Commission’s draft advice. I figure it’s important for people to talk about this.

 

24 March 2021

 

Dr Rod Carr

Chairperson

Climate Change Commission

PO Box 24448

Wellington 6142

 

Dear Dr Carr,

 

I am a barrister, an adjunct law lecturer at VUW, and a journalist. I do not have any expertise in climate science, though I have read widely on the issue. I am a member of Lawyers for Climate Action. I am also on the legal working group for NZ’s Extinction Rebellion. Over the years, I have hardly been a poster child for carbon restraint, but I now walk and bike more, buy second-hand more, drive an electric car, eat little meat or dairy products, and seldom take flights.

I make this submission in my personal capacity.

I am alarmed about climate change. It seems to me the only sensible response to what the scientists are saying.

I am by nature an optimistic person. But I am pessimistic about our ability to make the radical changes necessary to avoid catastrophe. It seems to me that it will require a massive and immediate international effort to turn things around, involving great investment and great sacrifices. I see very little evidence of that happening on anywhere near the necessary scale.

I have read the Commission’s draft advice.  I am not the best person to offer analysis, but it strikes me overall as a thoughtful stab at a difficult task. However, I think there is a sense in which the Commission has sought to recommend as little as we can get away with, and to look to minimise harm at the expense of the rapid change necessary.

I do not think this will be enough. I also do not think it is fair, internationally or inter-generationally.

I am also concerned that it is not lawful, for the reasons set out in the submission of Lawyers for Climate Action.

I urge that the Commission recommend much more ambitious and speedy targets and actions. Again, I agree with the caps recommended by LFCA. I think there should be more emphasis on government investment in buses, trains, cycling and walking, on reducing waste, on reducing agricultural emissions (with support for farmers) and less dependence on offshore mitigation. I support a carbon tax.

I am not sure whether this is really your role, but I also think there must be much more emphasis on girding the country for this task and trying to get everybody on board. I’d like to see a country where we as a people are proud to take responsibility for the sacrifices that need to be made.

I am 53. I’m well-off and living in New Zealand, which is not facing the worst impacts of climate change. I figure I’m going to be dead before this really bites. I feel vaguely guilty for that. Climate change is not really my problem. But we need leaders to step up and make it my problem or the planet is doomed.

 

Yours faithfully,

 

Steven Price

Topics: General | No Comments »

Hate speech: a question

July 5, 2021

A question occurs to me that seems worth throwing into the debate.

An ambiguity

I think there’s an ambiguity in the proposed law. We don’t know the exact wording of the offence. It seems the government doesn’t have one. It’s not in the Cabinet paper or the discussion paper anyway. That makes it hard to analyse. But it seems to me that one question leaps off the pages of the discussion paper.

The discussion paper says:

It would be a crime to intentionally incite/stir up, maintain or normalise hatred…

(if it’s a threatening, abusive or insulting communication, including inciting violence, and is aimed at particular discriminated-against groups).

Let’s focus on the intent to incite, stir up, maintain or normalise hatred. My question is: does this require proof of any harm or likelihood of harm that is manifested in the real world? Or is it just a mental element?

In other words, is the proposed offence committed if it can be shown that what’s going on in my head is an intent to incite or normalise (etc) hatred?

Or does it also have to be proved that some sort of hatred has been incited or normalised?

Or – and this is a halfway house – that my speech has a tendency of some sort to incite or normalise hatred?

I don’t think this is clear in the proposal. Neither does an expert on criminal law I talked to.

You-already-know-this-bit-but-I-think-I-should-spell-it-out

Before I go through the possible interpretations of intentionally inciting hatred, I just want to remind any alarmable persons who happen to be reading that a prosecution would ALSO require (a) a threatening, abusive or insulting communication, (b) that is aimed at a particular listed group, (c) consent of the Attorney-General, and (d) a Bill of Rights analysis designed to ensure that any convictions can be demonstrably justified in a free and democratic society.

Possibility one: It’s all the in head

If the intentionally-inciting-or-normalising-hatred element of the crime is only about what the defendant intends, it’s arguably too wide. We are punishing someone for their thoughts when no social harm needs to be proved. Still, it might be thought that once you’ve shown someone has made some threatening, abusive or insulting speech against a group, and you can prove they intended to incite hatred, it stands to reason that this will probably have an effect on the audience, so maybe it’s right to criminalise it. This does seem to be what the Royal Commission had in mind.

Possibility two: You need to prove some real-world impact

On the other hand, if it requires proof that some hatred has been produced or normalised in the world, that might be a difficult task for a prosecutor. It won’t always be impossible: it’s possible that violence might erupt shortly after and as a result of the speech, or people might pile on in a way that demonstrates hatred has been stirred up. But often it will be tough to show that the levels of hatred in the world have been affected as a result of the speech. Anyway, it would be harder to prove than the existing law against racial hate speech.

Possibility three: The half-way house

The existing hate speech law  requires proof of likelihood of harm (that harm being contempt, hostility, ridicule or ill-will against racial or ethnic groups). That’s quite a high threshold, but doesn’t require evidence of harm in the world. What needs to be shown is “a real and substantial risk” of such harm. The Canadian Supreme Court (cited in a NZ case) said the question is “Would a reasonable person consider that the expression vilifying a protected group has the potential to lead to discrimination and other harmful effects?” So you can reason your way to a conclusion that the speech is likely to cause harm in the world without evidence that it has actually happened, evidence that might be very difficult to come by, even if the speech really has had a serious impact on some people’s hearts and minds.

I have to say, this seems like the sensible option to me. There’s just one problem. The Royal Commission recommended that this “likelihood” test be dumped and the government has followed its advice. So it’s hard to see how the government’s proposal can be interpreted to include some liklihood of external manifestation of hatred. (But not impossible to imagine. I could see the courts getting hold of this, and being reluctant to interpret the law as either possibility one or possibility two. They could read in some sort of tendency-to-create-hatred as implicit in the offence, or required by the Bill of Rights Act. After all, the courts read in a damages remedy in the Bill of Rights Act when Parliament deliberately left it out. But it’s not a good thing to leave this sort of thing up in the air).

Conclusion

This should be clarified. It’s easy to write a law so that it makes it clear which bits of the offence are in the head (mens rea) and which are in the world (actus reus). It probably won’t be ambiguous if and when a Hate Speech Bill is produced. But it would be helpful to have this point clarified during the public debate right now, so that we are all on the same page when we make our submissions on the discussion paper.

There’s an easy solution: the government could issue a draft of the actual wording of the reform its proposing. Or at least put out some sort of statement making clear what exactly it’s proposing here. I doubt it’s an exaggeration to say that some people’s position on the proposal will depend on which of these three possible interpretations is the real one.

I’m no criminal lawyer, but I wonder whether one possibility is to have a reverse onus – eg it’s a defence to establish on balance of probabilities that, in the particular circumstances of the case, no hatred has been likely to have been incited or normalised.

 

PS

I’ve just seen the government’s regulatory impact statement. It says this:

The Ministry intends to further assess the benefits and disadvantages of this element
following consultation. It could be argued that removing this objective element might limit
freedom of speech, honest opinion, art and debate by criminalising intent rather than
harmful effects or a risk of harm. Retaining this element also appears to align better with
guidance by the United Nations under the ICCPR. On the other hand, it would simplify
the test. This issue should be covered in the consultation.

so the Ministry was aware of the issue. And yet…. it’s not in the consultation.

 

Topics: Free speech theory, Hate speech | 1 Comment »

The case for hate speech laws

July 5, 2021

Graeme Edgeler has a terrific post making the case for hate speech laws. He is at best ambivalent about hate speech laws, and says he will also be putting up a post making the case against them.

This is where the debate should be. It’s dispiriting how far away from this the debate is.

Topics: Hate speech | No Comments »

NZME admits it misled listeners by buying into Trump’s ridiculous election fraud claims – but BSA somehow finds broadcasting standards not breached

July 1, 2021

Something is going wrong here.

On NewsTalk ZB’s overnight talkback show, host Bruce Russell endorsed Trump’s claim that there was electoral fraud in Georgia, playing clips from people who said things like “there was fraud in Georgia’s election, we can prove it with data”. Russell concluded: “I think it speaks for itself, receiving 75 percent or more votes for one candidate in a precinct is historically abnormal.”

He also said, of Trump’s call to Georgia’s Secretary of State to persuade him to overturn the election result: “In fact, what Trump was doing was talking about the votes that had been given to Biden, and wanting them because they were Trump votes, to be credited to him.” There seems little doubt that Russell was saying Trump was right about this.

Someone brought a broadcasting complaint, arguing this breached standards of balance and fairness.

NZME admitted:

We recognise that there has been no concrete evidence presented by Trump or his allies to substantiate their claims of electoral fraud and that Brad Raffensperger’s office has launched a probe into whether Trump had violated electoral law during this call. The Content Director has spoken to the host about these matters.

The BSA did not uphold the complaint.

What’s going on? A mix of things, I think.

First, this isn’t really a fairness complaint. That’s about the treatment of individuals. It’s really more of an accuracy complaint. But the complainant didn’t raise accuracy. I have to say, it’s unlikely she would have succeeded anyway, because the BSA said it was a talkback show where topics and comments came from the host’s perspective and reasonable listeners would realise they were getting opinion.

There’s an element of truth to that. But I worry that  the BSA too readily classes things as opinion that are really assertions of fact. Here the host played clips containing unchallenged assertions of fact that were wrong. He made factual statements, one of them beginning with the words “in fact”. What’s more, there’s no indication in the network’s promotion of this show that listeners are getting opinion from a particular defined perspective. Someone tuning in couldn’t be expected to know where he was coming from.

But okay, listeners know that talkback has a lot of opinion, and this particular discussion contained bits of fact and opinion, so perhaps it’s not off the planet to say it didn’t breach accuracy standards.

What you might expect, though, is a finding that this was unbalanced. It was an attempt to convince listeners to believe in the “facts” presented. The host marshalled selective evidence to do so. He played clips as “proof”. The host clearly took some time over it. The station admits there is no concrete evidence for what he was claiming. Why was this not found to be unbalanced?

The answer lies in the BSA’s approach to balance, especially on talkback. Balance will almost never be found necessary in talkback, even when the host (who surely appears authoritative to listeners, and will certainly be doing his or her best to come off that way) makes claims of fact about controversial issues. That is built into the broadcasting codes, and the BSA’s commentary on them. But it’s also built into the BSA’s approach. In other cases, they have sometimes found that talkback like this doesn’t even amount to a “discussion” of a controversial topic. (Thank goodness this decision doesn’t take that approach).

The BSA found that the station was discussing a controversial issue of public importance. That triggers an obligation to:

… make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest.

But the BSA found the station didn’t have to do this. In effect, it found that making no effort at all to present the other side was reasonable. It’s not clear that Newstalk presented any evidence of its other coverage that provided the true picture. Nor did the BSA require it. But both agreed that there was a lot of other media coverage of the subject. And that was good enough.

Again, kind of a fair point. I would have hoped that Newstalk would have felt obliged to show the BSA how its recent news coverage on this point was accurate, but the guidelines make it clear that sufficient coverage on other media can be taken into account. I have to say that I’m a bit sceptical that Newstalk listeners would necessarily have tuned into, for example, Radio NZ or read Stuff or the NZ Herald to get accurate information.

Why not insist that talkback hosts on mainstream stations at least nod toward the existence of contrary views when they’re making factual assertions about significant controversies?

If you look at the context of Russell’s quoted remarks, he did say:

… media will tell you that Trump is coercing the Georgia Secretary of State into rigging the election result in his favour. In fact, what Trump was doing was talking about the votes that had been given to Biden, and wanting them because they were Trump votes, to be credited to him.

You could argue that this is at least cluing listeners in to the other point of view. But the BSA did not make that point. It didn’t require it. It seems that even this minimal level of balance is not necessary to meet the balance standard.

Topics: Broadcasting Standards Authority | No Comments »

Hating on hate speech laws

June 29, 2021

What is it with the media and hate speech laws? They loathe them. And in their anxiousness to ridicule and discredit them, and excite contempt against them, they seem happy to distort the debate. Do hate speech laws need hate speech protection?

Newshub’s recent coverage

Look at Newshub’s coverage in the past 24 hours. They interviewed the PM, then posted two columns – by Tova O’Brien and Duncan Garner – excoriating her (and Minister of Justice Kris Faafoi) for failing to understand “the policy direction and intent of the law” (O’Brien), misleading  us about it, and “trying to shut down debate” (O’Brien). They said the proposed reform could “make it against the law to insult and/or offend people” (Garner).

O’Brien’s column is sub-headed: “Jacinda Ardern is wrong about her own hate speech law. Completely and utterly wrong”.

You’d hope that journalists who were attacking someone for inaccuracy would take a bit more care over their own facts. Or at least, if you’re going to call someone “completely and utterly wrong” then it would have to be a slam dunk.

It’s not, though fair to say the PM could have spoken a bit more clearly.

“Shutting down debate”?

Let’s start with the alleged “shutting down” of the debate. Really? I mean, really? The government has just released a policy proposal in a discussion paper that literally says, several times, “the government wants to hear from you”. Even if the PM’s responses were “glib” and “dismissive”, that is not shutting down a debate. Different people could have different views about whether her comments were glib or dismissive. Some might even think that glib and dismissive were pretty accurate descriptions of Newhub’s coverage.

The threshold for criminality

Is Duncan Garner right to say that the law could make it against the law to “insult and/or offend people”? No he’s not. The bar is much higher than that. To be criminal, someone’s speech would have to do ALL of six things:

This is a far cry from a law that protects people from just being offended.

That also means Tova O’Brien was wrong to say that “the proposed threshold is as low as ‘insulting’ someone”.

She was right to say that the law isn’t restricted to situations where someone incites violence. But that’s not what the PM said. The PM said it was about “inciting violence and abuse“. She said that twice. Depending on what “and” means here, the PM is (roughly) right. The law would cover inciting violence, and it would also cover inciting abuse. I think you shouldn’t call someone out for being “completely and utterly wrong” on the basis of an ambiguity.

Is incitement of something required at all?

But is the PM right to say that the law requires “inciting” something? She also told Newshub that it required stirring up “action and activity”. But the proposed law would cover speech that merely “normalises” hatred. If you squint hard enough, you could make a case that the PM’s still in the ballpark. If you say something that normalises hatred, you can be said to be inciting it, and encouraging people to take action on it. You might think that she was characterising (accurately, I think) the intent of the policy direction and the gist of the new offence. You could remember the words of Oliver Wendell Holmes that “every idea is an incitement”. But I think that the PM, in an attempt to convince people the bar was really high, went a bit far here. The proposed offence covers inciting or normalising hatred, and the draft and the discussion paper treat these as different things. I wouldn’t call the PM “completely and utterly wrong” though.

Could political opinion be hate speech?

What about the scope of the proposed law – who is protected by it? Does it include political opinion?  O’Brien said it does and the PM got it wrong. (“… a journalist writing an opinion piece titled, Jacinda Ardern is a dictator, could see the journalist liable. Hmmm.”)

Responsibly, O’Brien’s column sets out some of the facts so that readers can see that the PM is not as wrong as O’Brien claims she is. As she says, “The proposal seeks to protect more groups.” Notably, these are likely to include religious people and gay people – a gap identified by the Royal Commission on the Christchurch shooting. The reform paper points to the list of categories of discrimination in the Human Rights Act. It says that “some of all of them” may be used in the hate speech law. This list includes discrimination on the basis of political opinion.

The PM seemed then to categorically rule this out. That’s not consistent with the discussion paper, which seeks feedback on which groups should be in or out. If that decision has already been made, then as O’Brien points out, it’s odd to include it in a consultation document. But neither is it completely wrong. The proposal doesn’t say that political opinion will definitely be a ground of hate speech. In any event, even if it is, it’s pretty hard to imagine a situation where political speech is found to be hate speech, given what has to be proved to mount a prosecution (the five things above). It’s extremely hard to imagine a scenario where genuine political commentary is found to be hate speech. It’s impossible to imagine a scenario where a political journalist could be prosecuted for comparing Jacinda to a dictator.

Could criticism of boomers be hate speech?

Does it protect baby boomers from criticism by millennials (or as Duncan Garner put it in a question to the PM, “Let’s go and attack baby boomers because they’ve gone really well in life. I mean, that would be inciting violence wouldn’t it?”)

The answer of course is no.

Garner has just played the clip of Kris Faafoi being asked whether millennials could be prosecuted for criticising boomers. He responded: “it depends what you say” and “if your intent is to incite hatred against them, then potentially.”

This is a textbook-perfect response. Age is another category that is in the Human Rights Act. So it’s possible that it might be included in the law, depending on our feedback and the government’s decisions after that.

So Faafoi could have added: “Hate speech on the basis of age is one possible category that’s in the discussion paper, and we’re interested in people’s feedback on that. It’s not at the core of what we’re trying to do, which is to stop people from vilifying religious minorities. It would have to be a pretty stunning attack to be found to incite hatred, and to pass the other thresholds in the law. It’s a bit hard to see how an attack like that would “normalise hatred” since there doesn’t seem to be any particular age-hatred around to normalise. Our experience with 5o years of the racial hate speech law in the Human Rights Act, which is pretty similar to what we are proposing, is that prosecutions are very rare because the bar is so high.”

Final comment

Here is the thing about hate speech: it’s really hard. The harms that can be caused by hate speech are terrible, and they are not necessarily easy for people who aren’t targeted to understand. (If you don’t believe me, read a book called “Words that Wound” and then we’ll talk.)

But it’s almost impossible to define. Any attempt is likely to cover too much speech or too little, or have the appearance of covering too much but the effect of covering too little. How can you juggle all the things it’s supposed to deliver: alleviating the harms of hate speech, protecting important speech that might cause offence, using the law as a signal, using it as a whip, maintaining flexibility, creating clarity, being workable, gaining legitimacy, not creating counter-productive backlash? How do you clearly define the type of speech, the effect it must have, the mental element, and what exceptions there might be for humour or satire, news reporting, drama or for other speech in which there might be overwhelming public interest?

The solution to date, in the criminal law anyway, has been an offence that is effectively limited to racial hate speech, that is a bit confusing, that sets a high bar in order to protect free speech, and that has led to – I think – one successful prosecution in more than 40 years (of a pamphleteer who vilified Jews).

The government says its new law is clearer. That is sort of true. It now revolves around hatred, rather than a grab-bag of other concepts – hostility, ill-will, contempt, ridicule. That’s cleaner, at least. Is it really clearer? I don’t know. It’s not very clear to me. What is hatred exactly? What is normalisation? How do you show someone intended to incite or normalise hatred?

Another imponderable: how will this dovetail with the Bill of Rights?

The government is in a bit of a bind. It wants the new law to be more effective, but also wants to insist that the very high bar is much the same as before. I don’t think we can have it both ways. If the bar is the same as before, the law is very unlikely to be more effective.

I suspect that the real criticism of the law is that it’s being oversold. It’s not likely to be used much at all. That’s even though the proposal would expand hate speech to cover more groups, and – yes –  lower the bar somewhat, because the proposed law now covers “normalising” hate as well as producing it.

[UPDATE. I’ve thought about this a bit more. Is the bar really lowered? After all, “hatred”, whatever it means, seems harder to prove than hostility, ill-will, contempt or ridicule. What judicial interpretation there has been of the phrases in the current law sets a high bar, and much of the language of the old law has been retained. The PM says it’s only for “extreme speech” and that the old approach is expected to continue. But on balance, I think I’ll stick to my guns. Hatred is amorphous. More to the point, an intent to normalise hatred is new, and strikes me as a lower bar than stirring it up. The proposed offence would cover both. What’s more, there would no longer be any requirement to prove that the any resulting hatred is “likely”. The current law requires proof that creating hostility, ill-will, contempt, or ridicule is both intended and likely.]

Yet it’s likely to generate more heat than any number of more important government policies and genuinely effective government policies, some of which also deal with the Royal Commission’s recommendations and are listed on page 25 of the discussion paper.

I’ll be interested to see whether the media will be so consumed by its fears of excessive uses of the proposed law that it never asks questions from the other direction – about whether the law will in fact be too ineffective.

 

TOP FIVE RECENT MEDIA BEAT-UPS ABOUT LAWS THAT WILL DESTROY FREE SPEECH

  1. Hate speech.
  2. The Privacy Act.
  3. The privacy tort.
  4. The Harmful Digital Communications Act.
  5. The Dunne v CanWest decision that made TV3 include Peter Dunne in the election debate.

 

TOP FIVE MOST IMPACTFUL RECENT DEVELOPMENTS IN FREE SPEECH LAW

  1. The right to freedom of expression in the NZ Bill of Rights Act 1990.
  2. The new public interest defence in defamation.
  3. The new threshold for “serious harm” in defamation
  4. The tightening of name suppression laws.
  5. The repeal of criminal libel, blasphemy and sedition laws.

 

(Okay, this is a bit of an exaggeration. I’m trying to show that while the main media concerns focus on things that might restrict speech – I could add deplatforming and name suppression – whereas actually the arc of media law is long but bends towards more free speech. The reality is that most developments in media law, positive or negative, don’t have very much effect at all. To be fair, that includes the repeal of criminal libel, sedition and blasphemy).

 

PS. I have updated this post after a slightly more careful reading of page 33 of the discussion paper.

 

 

Topics: Hate speech | 46 Comments »

When free speech creates disorder or hate

June 28, 2021

“De-platforming”. It’s the free-speech zealot’s issue-du-jour. I’m looking at you, Damien Grant.

It seems so exactly what cancel culture is. Don’t like the speech? Ban it.

Except it’s not really a ban, is it? There is nothing to stop those poor begagged individuals from putting out press releases and YouTube videos, railing on social media, and speaking out on television and radio about… how their speech has been shut down so outrageously.

Other pressure groups can only dream of such opportunity to put across their views, such a terrific… platform. What if the Free Speech Union itself were deplatformed? Can you imagine how gleeful they would be?

So I find it difficult to get too worked up about it. That’s not to say it’s not a serious issue, especially when it’s a public agency doing the de-platforming. It’s just that, as a speech restriction, it’s so partial (there’s nothing to stop them seeking out another venue, for example, and it does not affect all their other avenues of speech), and so often counter-productive (how many of us would even know Stefan Moleneux and Lauren Southern’s names if it wasn’t for their Auckland deplatforming?) and so rare, that, for me anyway, it doesn’t rank right up there in the list of top threats to free speech.

But Damien Grant sees the Molyneux/Southern case as a backdown by the courts, and a troubling precedent – one that reflects our “milquetoast” right to freedom of expression in the Bill of Rights Act. The US, with their much more powerful First Amendment, wouldn’t have a bar of it.

Damien describes himself as a “free speech absolutist” and wouldn’t stop anyone from holding a public meeting in a library. This is good news for those wanting to introduce a wider audience to the delights of child pornography or give instructions on how to make bombs with household ingredients or publicly release all of Damien’s private and business correspondence. But for the free speech moderates among us, the issues are trickier. (Incidentally, free speech doesn’t get quite the free ride in the US that most people assume. It is common, for example, for protesters in public places to be herded and ringfenced in the name of public order).

Fair enough, I think, for Damien to wonder if the Auckland Council authorities were truly concerned with public safety, as opposed to the likely content of Molyneux and Southern’s speeches. But on the evidence before the Court of Appeal, that was the reason; there was some support for it; and it wasn’t an unreasonable basis for the decision, even though, as the judges pointed out, others may have reached a different decision. That’s judicial code for: you should probably line up a better justification next time.

Damien is in a flap about the decision for several reasons, some of which make sense. He says anyone holding a meeting will now have to “consult the rabble of discontented on Facebook and Twitter”. Let’s grant poetic licence for that piece of nonsense. More to the point, he argues that the decision gives opponents of any particular speech a “heckler’s veto”. By threatening disruptive counter-protest, protesters can create a lawful pretext for officials to cancel the meeting. This is a genuine problem, at least in theory. But I note that it’s the job of the police to prevent disorder and if, at a particular event, this was imminent, that would involve intervening to stop those threatening the violence. Why are we assuming, at the point of giving permission for the meeting, that violence will break out and the police couldn’t handle it?

I’m saying that the heckler’s veto is overstated. That’s because it can usually be managed, and because it really doesn’t happen very often. And in this, I’m really agreeing with Damien. It’s not a usually very good reason for cancelling a meeting like that one.

Then Damien points to the recent Speak Up For Women cases.  SUFW booked a room for a public meeting in the Palmerston North library. The library later cancelled it, replacing it with a debate on similar issues, to be scheduled sometime in the future. Damien says this is because they regarded SUFW’s message as a safety and wellbeing issue, and felt they had a licence to shut down meetings of groups that might have threatened “social and cultural wellbeing”, which could be anything they disagreed with.

If he’s correct about that, then they got a rude awakening. The court said this was plainly not a lawful reason to cancel the booking. It readily found that no violence was threatened and if a debate about the issues would not raise any safety concerns then surely a meeting by one side couldn’t either. There was no reason to think there would be a disturbance, and free speech isn’t predicated on having an opposing voice present. I think Damien and I would both applaud that.

I’d just point out, as Damien didn’t, that this decision applied the Court of Appeal decision in the Molyneux/Southern case. That is, it followed the instructions in that case for how to deal with de-platforming issues. The Court of Appeal had set a fairly high bar, and the High Court ruled here that the Palmerston North City Council didn’t clear it. The rule is that you need a pretty rigorous justification, based on good evidence, to overcome the presumptive right to free speech at a public venue, especially where the speech is political.

That seems like a reasonable rule. It will usually require evidence of likely violence. But the really interesting case will come when someone is promoting truly hateful speech (and I do not put SUFW in that category; neither did the judge) and seeking a public platform for it, but where there is no realistic violence issue. Speech that perhaps has a political edge, but is full of racial or religious smears, harmful misinformation, and/or insidious but not explicit calls for action against a historically disadvantaged group.

Is it lawful and justified to put some restriction that speech by denying it a public platform? I think that’s a hard issue.

 

 

 

 

 

 

 

 

 

Topics: Free speech theory, NZ Bill of Rights Act | No Comments »

A quick response to Matthew Hooton

May 30, 2019

I see Matthew Hooton has noted that I have acted for Nicky Hager and accused me of hypocrisy for suggesting that National broke the law with its budget leaks.

He seems to think his logic is obvious. I guess it’s that Hager published confidential material leaked from the government (see especially: Other People’s Wars and The Hollow Men) and I didn’t accuse them of breach of confidence.

That can only be explained by the fact that I am a lefty, Labour-apologist lickspittle.

I thought my argument was clear from my blog post yesterday, but let me spell it out anyway:

Hager made unauthorised use of leaked confidential government material, and he had a defence of public interest.

National made unauthorised use of leaked confidential government material, and they didn’t have a defence of public interest because that same material was going to be made public two days later.

I explained why I thought there was no public interest, and even tried to spell out some arguments for National that I might be wrong.

Call that hypocrisy if you like, I suppose.

 

Topics: Breach of confidence | 35 Comments »

Budget leak: Nats’ behaviour “entirely appropriate”?

May 29, 2019

I’ve just been listening to Simon Bridges’ press conference at Parliament about the budget leak. His main point was to deny that the leaked budget material was a result of a hack. But he made the broader claim that the Nats’ behaviour throughout was “entirely appropriate”. He said there had been “nothing illegal or anything approaching that from the National Party.” He denied that their conduct was at any point unlawful.

I think he’s wrong. I think the Nats have probably engaged in  unlawful behaviour from the get-go. That’s regardless of whether the budget material they released was hacked. The Nats have broken the law relating to Breach of Confidence.

That’s not a crime. It’s a civil claim, like defamation or negligence. But it is the law.

Breach of confidence elements

If information is confidential in nature – that is, not in the public domain – and was created and shared in circumstances in which those possessing it knew is was supposed to be confidential, and was then disclosed without permission, that’s a breach of confidence. That obligation of confidence will usually bind anyone else who comes into possession of the information.

The public interest defence

There is a public interest defence. That’s what usually protects the media when they receive leaks. Otherwise, as you might have noticed, almost all leaks to the media (especially from employees with clear obligations of confidentiality) fall foul of this law. But usually, there will be some substantial justification the media can use. They will be able to point to some significant way the public is being served by the release of the information that would otherwise be protected by the obligation of confidence.

Is there public interest here? I can’t see it. The information was to be publicly released in two days. The National Party could freely criticise it then. How are the public really made better off by learning of these criticisms two days in advance? Is there really any benefit to a matter of legitimate public concern that overrides the obvious – and perhaps even constitutional – confidentiality that attaches to budget papers?

Nor can National argue that it needed to release the information to hold the government to account for its bungling in allowing the leak. It could have made that case without actually releasing the data.

Now, I’m not saying anyone’s going to get sued. There doesn’t seem to be much point (though if the government did sue, there would be an interesting battle over the confidentiality of the Nats’ source  – politicians aren’t protected by the journalists’ source-protection provision in the Evidence Act).

I’m just irritated at the sanctimoniousness of Simon Bridges’ denial that the Nats had done “anything approaching” illegality.

Possible National arguments?

What could National argue? The best I can come up with is: “We felt it was in the public interest to prick the balloon of spin that the government was floating about the budget being a ‘wellbeing’ budget, and itself revealing bits of it in advance, by providing the public with information that revealed these claims to be misleading. In this we were fulfilling our constitutional duty to hold the government to account. And we didn’t release any market sensitive information.”

I don’t think that works. They could make those arguments in two days time and the public would be no worse off. I also note that it turns on the accuracy of the criticism. If the numbers are wrong, or taken out of context, or do not really reveal any misleading government behaviour, that would undermine any attempt to say that the releases were in the public interest. Finally, the fact that the National Party was drip-feeding the leaks tells against any claim that the public needed to have the information urgently and couldn’t wait two days for the budget.

A couple of other arguments for National occur to me. One is that, as recipients of the information, they were not bound by the confidence. It is only those who have “acted unconscionably in
relation to the acquisition of information or in the way it has been employed” who are bound by the confidence. They didn’t hack it themselves, they’ll say. They didn’t steal it. It didn’t do any real harm. They didn’t reveal any sensitive part of it. They believed its use was lawful. Maybe they even took legal advice.

I don’t think that works either. The Court of Appeal has made it clear that the main factor in assessing whether someone has behaved unconscionably in using information is whether they knew (or should have known) that it was confidential. That’s just a slam dunk here. They can’t say that they didn’t know how secret the budget material was supposed to be. They have done harm to the budget process, at the very least. If their use of the material was selective and inaccurate, they’ve also done unfair harm to the government. If they took legal advice, then I think it would have been negligent not to advise of the law of Breach of Confidence and the (legal if not practical) risks involved. I note that Simon Bridges is himself a lawyer.

Finally, there are some cases that say that the government is a bit different in Breach of Confidence cases. The information it possesses is really the people’s information. So, to sue for Breach of Confidence, the government must show that there’s a public interest in keeping the information secret. That might be hard here. The flip side of the observation that there’s not much public interest served in hearing about the budget in advance is that, at least in relation to what the National Party did actually disclose, there wasn’t much harm done to the government. Besides, the government itself had been selectively releasing some of it. Still, it would be a brave lawyer who argued that there was not a compelling general public interest in keeping budget information secret prior to budget day. Obviously some of it could be extremely market sensitive (and I’m not saying the National Party released any of that). But the early release of some of the rest may have implications that are not immediately obvious. And the release of drafts may be dangerous. Since there may be changes as the budget evolves, a court is likely to see an important public interest in the integrity of the budget process as a whole.

I am inclined to think there was a Breach of Confidence here. You could argue the toss. But you can’t argue that National have not done anything “even remotely approaching illegality.”

UPDATE: I should add that if National got it through some area of Treasury’s (or some other government) website that was technically publicly accessible, then that would at least raise arguments that it wasn’t confidential in the first place, because it was in the public domain. That might depend on how easy it was to find and extract. But I suspect a court would be reluctant to say that it was not still confidential, especially if few knew about it.

Crime?

National have denied that the information came from a hack. They won’t tell us how they got it, but it must follow that they know how it came into their possession. It seems the most likely path is through an official. (UPDATE: unless it was taken from a government website as above).

If that’s the case, then that person was probably committing an offence:

Every official is liable to imprisonment for a term not exceeding 7 years who, whether within New Zealand or elsewhere, corruptly uses or discloses any information, acquired by him or her in his or her official capacity, to obtain, directly or indirectly, an advantage or a pecuniary gain for himself or herself or any other person.

I think it’s hard to argue that an official who is releasing secret budget information to the opposition for the purposes of embarrassing the government is acting anything other than corruptly, and is surely doing it to obtain an advantage for the National Party MPs. It’s also hard to see how that official could be regarded, even colloquially, as a whistle-blower. (Legally, they would not fall under the protections in our whistleblower protection law).

Any person who encouraged such an official to release such information would potentially be criminally liable as a party to the offence. I’m not saying the National Party did that. I am saying there are some questions to be asked. And one of them might be: even if you didn’t encourage your source to provide you with that information, what it ethical for you to profit from what seems to have been obviously criminal conduct?

Again, how did the public really gain from it?

 

 

Topics: Breach of confidence | 48 Comments »

Farewell Guyon

May 7, 2019

I’m sorry to see Guyon depart the presenter’s chair on RNZ’s Morning Report. I think he’s one of the best interviewers RNZ has ever had. He is well-informed, thoughtful and persistent. He consistently asks good questions and presses for answers. He is fearlessly independent. And I salute his use of te reo Maaori, which always gives me a little squirt of pride. He was part of a great team with Susie Ferguson.

He’s also right that it’s his job to interrupt sometimes, even if some listeners don’t appreciate it. These days, politicians and spokespeople are coached by savvy media trainers in how to run out the clock on awkward interviews rather than answer difficult questions.

One of the lesser-known theories supporting free speech is that is promotes “the Checking Function”. This suggests that people in power are worried about being publicly exposed through hard questions and diligent journalism, and it’s that fear that keeps them honest. When I was studying in the US, I used to tell people that one of the terrific things about NZ was that, when something went wrong, the relevant government minister was basically obliged to front up on Morning Report the next day and answer questions about it. Sadly, that’s not so true today. But we should not underestimate the importance of the daily Checking Function that is Morning Report, and correspondingly, the importance of the quality and ethics of the interviewers.

No pressure, Corin Dann.

Topics: General | No Comments »

Whale Oil definitely Beef Hooked

May 2, 2019

Cameron Slater, aka Whale Oil, has never been a journalist in any sensible sense of the word. That’s despite the shameful Canon media award he received for wallowing in the sordid details of a mayoral affair. And it’s despite the High Court ruling that for the purposes of the Evidence Act, he could be treated as a journalist for source protection reasons (the judge found that the Evidence Act didn’t require any assessment of the quality or  independence of Slater’s posts, and then he ordered Slater to reveal his sources anyway, since his campaign against Matt Blomfield wasn’t really in the public interest and appeared to be driven by people with a personal vendetta against Blomfield).

I think the reality has always been that Slater lacks the key attribute of a journalist – a commitment to seeking the truth to serve the wider public interest. That attribute not only defines a real journalist, but tends to help ensure that ethical journalists don’t make harmful mistakes, or at least act responsibly when they do.

So I have to say that I’m pleased that Slater has got his come-uppance in the courts, even if it has taken a long time. In the last few months, we’ve seen the High Court strike out his defences in Blomfield’s defamation case against him, holding that he had repeatedly failed to point to specific facts that supported his allegations against Blomfield, and that there seemed to be no cogent evidence for any of them. (Slater appealed, then subsequently abandoned it).

And we’ve also seen the Human Rights Review Tribunal rule that Slater is not a journalist for the purposes of the Privacy Act. So when he gleefully published Blomfield’s private documents that the High Court said were probably unlawfully acquired, he breached the Privacy Act. He was not entitled to the exemption for news media. He had to pay Blomfield $70,000 damages.

I want to make a few comments about that decision. It strikes me as very significant in lots of ways that haven’t been talked about much. I’m going to criticise the decision a bit. But I want to make clear that I am not criticising the result. What Slater did to Blomfield was horrible; it was an outrageous breach of his privacy; and it’s a good thing that he’s been hauled over the coals for it.

For all that, the decision is remarkable for several reasons.

It’s extremely late

The most obvious one is how long it has taken. The decision has taken four years to arrive. I’m not sure I’ve ever seen a decision so late. On what planet is that acceptable? Justice delayed is justice denied, especially when a ruling involves an aspect of public vindication, as this one does. I’m not entirely sure where the fault lies. There was a procedural hitch but it doesn’t come close to justifying the delay. The problems of the resourcing and backlog of the Human Rights Review Tribunal have been discussed elsewhere. But something has gone very badly wrong here.

It reaches a different decision to the High Court

Slater tried to rely on the High Court’s ruling that he was a journalist. The HRRT pointed out that one civil judgment isn’t evidence in another proceeding. It also said that the definition of “news medium” in the Evidence Act is different to that in the Privacy Act. That’s true. And you might think that we would want to give a wide meaning to “news medium” when it’s in a provision whose purpose is protecting confidential sources in order to promote journalism in the public interest, and be more sympathetic to a narrower reading of “news medium” in a provision whose purpose is to give a get-out-of-jail free card to those infringing others’ privacy. (This supports the HRRT’s conclusion but isn’t a point that the HRRT makes).

Anyway, the HRRT finds that it can take into account the High Court decision, but that “the Evidence Act provisions provide little assistance to the interpretation of the relevant Privacy Act provisions”. That strikes me as taking things a bit too far. The definitions are not identical, but they are similar in many ways. The core issue for both is identifying what features are at the heart of the news business, such that the law should give benefits to those who fit the definition. And in fact, the HRRT does reach a similar conclusion to the High Court about what “news” is – the provision of new information about recent events of interest to the public. This is not limited to traditional mainstream media.

Maybe only commercial news media are protected

The Privacy Act definition refers to agencies “whose business… consists of a news activity.” Does that mean there needs to be a commercial element? Maybe, says the HRRT. It didn’t need to decide the question because it found that Slater was making some money from his blog. But the HRRT leaves open the possibility that a blog or website that is non-commercial (one that’s publicly funded – hello Radio NZ!, or funded through donations, or a labour of love) may not get the Privacy Act exemption even if it is plainly producing news. It seems the Director of Human Rights Proceedings supported this view. That seems like a conclusion that is not compelled by the language of the media exemption, and would not survive a Bill of Rights analysis.

News activities must be “responsible” to qualify for the exemption

Woah! This is a big deal. The HRRT have grafted on a new element to the definition of news media. You can only qualify for the exemption if you are acting responsibly.

What does this mean? “The basic elements of responsible journalism include accuracy, fairness, balance, error correction and right of reply.”

The HRRT says this is implicit in the Privacy Act. “The exemption was not granted to facilitate the making of extreme and vitriolic accusations… or to disseminate false news.” It says this is consistent with the new responsible communications defence in the “analogous field” of defamation law. It cites Justice Asher from the High Court Blomfield case, twice. It cites the Harmful Digital Communications Act, saying its conclusion is broadly consistent with the framework there.

Let  me count the ways this is a bit weird.

First, it’s really not implicit in the Privacy Act. This is the first time anyone has suggested this element might be in there. The reports that the HRRT draws on (by the Law Commission and the UK’s Cairncross review) to establish the significance of responsibility post-date the Privacy Act by decades.

Second, despite the fact that the HRRT cites Justice Asher in support of its conclusion, this is not what he decided. He said he wasn’t required to assess the quality or ethics of the posts when evaluating whether Slater was a journalist.

Third, there’s no particular reason that the common law of defamation (and in particular a case that was not concerned with defining a news medium but was concerned with encouraging free speech) should shape the interpretation of a statutory provision in an Act aimed at protecting privacy.

Fourth, I’m not sure the HRRT has grappled with just how nebulous this responsible journalism requirement might be. In particular, it has found that non-traditional media may be entitled to this exemption in some situations, but seems to have subjected them to traditional news ethics. Admittedly, that’s also what the High Court has done recently in Slater’s defamation battle with Colin Craig. The HRRT simply says that the “concept of responsible journalism is not new and is well understood in the media field”. That’s sort of true. But it is not well understood in the non-media field. There may well be an argument that a openly partisan but independent blog, that breaks news and is diligent about accuracy and corrections, but doesn’t seek and include balanced viewpoints, is nevertheless a news medium. The Court of Appeal in Durie seemed to accept that the rules might be different for different publishers. The HRRT doesn’t seem to leave that door open. The HRRT asserts that its interpretation is consistent with the Bill of Rights Act, and it might be, but the HRRT never does the analysis that you might think was required by the Supreme Court’s decision in Hansen, given that the interpretation reached by the HRRT actual narrows free speech protection.

Fifth: no right to disseminate false news? What happened to the idea that the breathing space required by a free society requires protecting the right to be wrong? We might accept that it doesn’t include the right to knowingly spread lies. But most cases aren’t about that. They are about publications that the publisher thought were true, but turned out to be wrong.

Sixth, it’s a bit  of a stretch to say this development is consistent with the Harmful Digital Communications Act. Or that that Act has much to say about the definition of news in the Privacy Act.

Seventh (and this is a bit picky), if we’re looking for contextual clues as to whether the news medium exception should be read broadly or narrowed down to “responsible” journalism, we might be tempted to look closer to home than the common law of defamation or the Harmful Digital Communications Act. Section 14 of the Privacy Act itself requires the Privacy Commissioner to have due regard for “the general desirability of a free flow of information”. Might that not suggest a wider approach?

For all of that, I have a sneaking fondness for this change, as a matter of policy. It accords with my notion that news isn’t really news unless there’s an ethic of adherence to truth and public service. It will help manage the difficult questions of who counts as media in the modern age. It  makes publishers earn their protection. It’s based on principle. It incentivises ethical behaviour, much of which is common sense. And it is broadly consistent, as the HRRT points out, with current thinking among judges, jurists and reform agencies.

But still…

Doesn’t this mean that even mainstream media may lose this protection for news activities that fail this “responsible journalism” hurdle? Sure looks like it. And fail it they sometimes do: just look at the decisions of the Media Council and the Broadcasting Standards Authority, or listen to a few episodes of RNZ’s Media Watch. Journalists might find lawyers like me starting to argue that they might generally have an exemption under the Privacy Act, but it doesn’t apply in this particular instance because they haven’t acted responsibly. That would expose them to a complaint before the Privacy Commissioner that they have revealed personal information without consent (and without falling into one of the other fairly other narrow exceptions in the Act) thereby causing humiliation, loss of dignity, or injury to the feelings of the complainant. There’s no public interest defence either. Damages are awardable by the HRRT.

I think I might have buried the lead.

It didn’t even apply this new responsibility test

Most bizarrely, perhaps, the HRRT – having developed this flash new requirement of responsibility – doesn’t even apply it almost the very first time it is called upon to do so.

The first Whale Oil posts Blomfield complains about accuse him of ripping off a kids’ charity. The HRRT cites some of the posts and concludes “we accept that an allegation concerning the scamming of a charity would potentially engage the public interest… We are satisfied Mr Slater has established the news medium exemption in relation to this blog.”

Wait a minute. What happened to responsibility? Were these allegations responsible? This can be readily checked. Whale Oil posted his source material. Did the underlying documents, taken from Blomfield’s own computer system, bear out the allegations? Blomfield says they don’t. The High Court said they provided no cogent support for any of Slater’s allegations. They plainly lack balance, since Blomfield’s views were not sought and included in the posts. But the HRRT doesn’t even look at this question. It’s extraordinary.

The HRRT finds the other posts do not qualify for the exemption, mostly because they do not relate to recent events, are not “worthy of discussion”, have not attracted significant public interest, were not driven by altruistic motives, or  – in relation to the new responsibility test – were unbalanced, gratuitous, or unsubstantiated.

It seems to award damages for defamation

The HRRT finds that the posts, by publishing Blomfield’s personal and private documents, interfered with his privacy. It then considers damages. You might expect that the HRRT would look at the published documents to see how private they were. Do they show him visiting a brothel? Watching porn? Making very sensitive or intimate comments? In fact they do not. They are not generally very sensitive at all. The worst is some bank records. The rest is mostly boring commercial correspondence that has been wildly misinterpreted by Slater.

Don’t get me wrong. Slater has done horrible things to Blomfield. But in terms of harm to Blomfield’s privacy, there’s not much there. But the HRRT does not conduct this exercise. It looks at how Slater used the private material, even though it wasn’t very private. He used it to misportray the documents and suggest terrible wrongdoing. And that, for the HRRT, justifies one of its biggest awards of damages ever: $70,000. This was because Slater must have known the documents were illegally obtained (fair enough; this seems relevant to the infringement of privacy).

It was also because the Slater’s allegations were extreme, and part of a concerted campaign, and held Blomfield up to ridicule. This seems like damages for defamation. It seems rather far removed from what the Privacy Act was designed to protect against – disclosures of true but private information.

The HRRT finds that the privacy breach was a “material cause of the harm suffered by Mr Blomfield.” That seems true as far as it goes, but it does set a very low threshold for the award of damages where the real harm isn’t really the revelation of something private.

It’s up to the High Court in the defamation case to set damages for defamation in an upcoming hearing. Will the judge have to factor in the compensation already awarded for much the same thing by the HRRT? (Not that it’s likely to make much practical difference, since Slater is now bankrupt).

So

A landmark case. But an odd one. I’ll be very interested to see how it shakes down.

 

 

 

 

 

 

Topics: Defamation, Privacy Act | 34 Comments »


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