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How the Film and Literature Board of Review almost derailed the Film Festival

September 11, 2015

Here’s an article I wrote about 10 years ago. It’s about how the President of the Film and Literature Board of Review used her powers to make interim publication orders…. and then stopped. Bits of the law and practice may now be a bit out of date. But I’m inclined to think it’s relevant to the current debate about Into the River, especially the suggestion at the end that if the Board were to meet by telephone conference, this whole problem would disappear.

On the morning of Friday, July 12, everything was set for the launch of this year’s Auckland Film Festival. The programmes were printed. The theatres were booked. Hundreds of advance tickets had been sold.There was just one snag: festival director Bill Gosden didn’t know whether he’d be allowed to screen the opening film.


Gosden had good reason to sweat. Four days earlier, the Society for the Promotion of Community Standards had challenged the censor’s R18 rating for the opening film, Y tu mama tambien. The next day, the society asked for an “interim restriction order” – a temporary ban preventing the film from being publicly screened until the challenge could be determined.


The challenge wouldn’t be determined until the members of the Film and Literature Board of Review could meet together to discuss the film. That wasn’t going to happen for at least another five weeks.


So, eight hours before the Y tu mama tambien reels were due to roll, Gosden still didn’t know whether he was allowed to put them on the projector. He was seething with frustration and indignation. “The three days before the Auckland Film Festival opened were bad for my life expectancy,” he says.


Everything depended on whether the temporary ban would be imposed. The signs weren’t good. Earlier in the year, the SPCS had challenged the ratings of two films that were due for screening in Beck’s Incredible Film Fest, Bully and Visitor Q.

It also applied for temporary bans. It got them.


“It is in the public interest to allow applicants the right of review as set out in the Act,” wrote Claudia Elliott, the Rotorua-based lawyer who heads the Film and Literature Board of Review. “If the film is shown in the interim, the effect of the review would be lost.”


Elliott alone has to decide whether or not to grant these interim applications. The law doesn’t give her much help. It just says she has to impose an interim ban if she’s satisfied that it’s “in the public interest” to do so.


It’s a tough call. If she bans the film, she prevents hundreds of festival-goers from exercising their rights, even though the chances are high that the Board of Review will simply confirm the censor’s rating. (Last year, of 15 ratings referred to the Board of Review, 13 were left as they were.)


If she doesn’t ban the film, she’s denying the society its day in court, and frustrating a right of challenge that Parliament clearly provided for. What’s the point of a review if the film could be screened, and the damage done, before the review is even held?


In the Bully and Visitor Q decisions, Elliott signalled that she was going to protect the integrity of the review system over the rights of film-goers. She warned festival organisers that they would just have to get their films classified earlier to give a fair shot to anyone who wanted to challenge the classification.

Any lawyer looking at those decisions on July 12 would have sighed grimly, clapped Bill Gosden on the shoulder, and said, “sorry mate, you’re buggered. Better find another film in a hurry.”


But Gosden didn’t give in. He put together some submissions, desperately trying to convince Elliott that an interim ban wasn’t in the public interest. The SPCS hadn’t even seen the film, he asserted. Its claim that the film showed boys being “exploited by an adult woman for the purposes of sexual gratification” wasn’t warranted.


The film isn’t harmful at all: it’s been favourably reviewed, it’s not exploitative or pornographic, it’s been released with popular success overseas. Besides, it’s restricted to those over 18 who see it at the festival. Festival-goers are sensible, mature types. An AC Neilson survey shows that 60 percent are Concert FM or National Radio listeners. Governors General attend! Where’s the harm?


On the other hand, if the ban were imposed, the festival would suffer serious harm to its finances, its credibility and its reputation for providing worthy – if provocative – fare, rather than child porn.


Most of these arguments were relevant and well-made. Problem was, most of them were also made during the argument about the Bully and Visitor Q bans. Elliott didn’t accept them then. And when you looked at the reasoning in those cases, there didn’t seem to be any good reason to treat Ytu mama tambien differently.




At high noon on the opening day of the festival – really, exactly 12:00 – the fax machine at the Department of Internal Affairs spat out Elliott’s decision: no interim ban.


The society hadn’t made out an arguable case, she found. She acknowledged that it was hard for the society to do so without having seen the video. But now the public interest demanded that overseas ratings be taken into account, and the merit of the film, and the fact that it was subtitled and therefore of limited appeal. This time, she cited cases emphasising free speech. This time, the public interest required respect for the integrity of the censor’s original decision rather than the society’s right to challenge it.

Gosden, of course, was elated. For him, this was plainly the right decision, even if it was a change of direction. “It seems to me that Claudia Elliott has been on something of a learning curve,” he suggests.


What changed? Elliott didn’t respond to requests for an explanation.


Gosden wonders whether Elliott has grown more savvy about the realities of film festival organisation. Festivals source films from an enormous variety of distributors and sales agents, he explains. Some give you a copy of the film months in advance. Some don’t send it through until two days before it’s due to screen. Gosden recalls that Elliott questioned him closely about issues like this during a recent Board of Review hearing on another film. Elliott’s decision in Y tu mama tambien acknowledges Gosden’s argument that he submitted the film as early as he could for classification. Then she immediately notes that the society had every right to make the application it did.


Ant Timpson, who organises Beck’s Incredible Film Fest, has a different explanation. “She has made a definite distinction between two different film festivals…an elitist one,” he wrote in an email. “Are they saying the audience that attends my festival is ‘dangerous’? That they aren’t adult enough? Insane.”


Elliott doesn’t say any of that in her decisions. But nor does she give any principled reason for treating the films differently, so Timpson can be forgiven for wondering what’s going on.


Timpson is sure that if it had been him and not Bill Gosden who wanted to screen the films, Elliott would have granted the interim ban. He sees it as straight-up bias. And he’s furious about it.


Gosden suspects Timpson rather shot himself in the foot by “presenting every film as if it were an occasion for moral panic.”


Timpson had indeed ramped up interest in his festival by hyping the films as controversial and cutting-edge. “Believe me, some of these films will be very lucky if they manage to slip past the realm of the censors,” said his programme guide. “If last year’s fest was the equivalent of bungee jumping, you could say that this is the year the rubber snapped.”


Timpson says his films have been pushing boundaries for ten years. That’s what his festival is about. Yes, he’s upfront about the content of the films. He thinks that’s a useful service to people who are thinking of coming along.

And he can’t see what his attitude – even if it is disrespectful – has to do with the classification of films.




So…how do films get classified? What exactly is relevant? Films - along with videos, books, newspapers, CDs, computer files, magazines, billboards, and even t-shirts and playing cards – are dealt with by the Films, Videos, and Publications Classification Act. This Act is much more interesting than it sounds, because it contains the law on what we’re allowed to see and hear and what we’re not.


The crux of this Act is the definition of “objectionable”. Nothing can be banned or even age-restricted unless it’s objectionable. To be objectionable, a publication, including a film, must deal with matters such as sex, horror, crime, cruelty or violence. (That’s been interpreted by the courts to mean that things like hate speech can’t be restricted in any way, unless they’re associated with, say, violence.)


So far, no problem. All the festival films under challenge deal with sex. And how. Many of them contain goodly amounts of cruelty, violence and crime as well. But that’s not enough by itself. To be objectionable, their availability must be “likely to be injurious to the public good.”


How can you tell whether a film is likely to be injurious to the public good? You can’t. There’s really no science about it. There’s a list of factors in the Act: is there torture or sexual coercion? Is it degrading? Does it promote or encourage criminal acts? Does it have artistic, social or cultural merit? But at the end of the day, it boils down to a gut feeling about whether the publication is harmful.


So the key question in the censorship system – in any censorship system – is: whose gut is consulted?


In New Zealand, the most important gut belongs to Chief Censor Bill Hastings. Hastings was one of my lecturers at law school in the late eighties. He was hip, approachable and slightly eccentric, wont to stop lectures in the middle and talk about his baby daughter. Some lecturers present the law like a maths problem: a set of rules that, properly applied, produce clear answers. Not Bill. Hastings emphasised the ambiguities. He presented law as a tug of war between competing interpretations and interests. For him, law is not so much about finding the right answer as finding the better argument. It’s an approach that leaves room for strong views and genuine disagreement, and for conclusions that are robust and rigorously tested but don’t claim to be divine truth.


It may be the only approach to censorship that makes any sense.




Hastings and his staff look at the statutory criteria, and classify the films. (Actually, if a film isn’t restricted in Australia or the UK, then we just piggy-back on Australia’s classification. If it is age-restricted there, we decide what to do with it for ourselves.)

If you’re dissatisfied with the censor’s decision, there’s a right of review to the Film and Literature Board of Review. This contains the nine next most important guts in the country.


How are they chosen? They’re appointed by the Governor General on the recommendation of the Minister of Internal Affairs with the agreement of the Minister of Justice and the Minister of Women’s Affairs. (“What is the Minister of Women’s Affairs doing there?” asked lawyer Don Dugdale in the New Zealand Law Journal, shortly before the Act was passed.) The President has to be a lawyer, but the only qualification for the rest is “knowledge of, or experience in, the different aspects of matters likely to come before the Board.”


What comes before the Board is often hard-core pornography and graphic violence. So that’s interesting.


Troubling fact: add together the vagueness of the definition of objectionability the Board members are applying, and the fact that the law says they don’t actually need any evidence in order to find that a particular film might be “injurious to the public good,” and you get a recipe for danger: will this coterie simply apply their own whims and agendas and prejudices, and dress them up as reasons to ban and restrict things?


Comforting fact: in the years since the Board of Review was created in 1993, there have been only six court challenges to its decisions.


Troubling fact: in five cases, the court has found that the Board made a legal botch of one kind or another.


Comforting fact: by and large, the Board’s decisions aren’t out of line with the classifications reached overseas.


In recent years, the Board has tended to be a little more liberal than the Censor’s office, lowering age restrictions on Savage Honeymoon, Cruel Intentions, Joan of Arc, and Saving Private Ryan, for example. It reduced the classification on the only film festival film taken to the Board before this year, the Danish comedy-drama Mifunes Sidste Sang, from R18 to M (unrestricted but recommended as suitable for those 16 years and over.) “The sexual material and coarse language in the film is only given sufficient screen time to keep the plot moving along,” it found.


The Board has very rarely banned anything. But its President, as we’ve seen, does have the power - never used before this year as far as I can tell - to ban things temporarily, as a holding pattern between the original classification by the censor and the Board’s review. This is the power that the rejuvenated SPCS called upon to throw a spanner in the projector of Timpson’s Incredible Film Fest. This is the power Elliott refused to exercise to stop Y tu mama tambien and another festival flick, The Piano Teacher.




Elliott’s u-turn on interim restriction orders has produced an exquisite irony: common ground between Timpson and his nemesis David Lane, the SPCS’s secretary.

Lane, too, is outraged at Elliott. His reasons are a bit different though. He thinks Elliott has changed the ground rules in a way that’s illegal and unfair on those who want to challenge the censor’s classifications.


On the basis of the latest decisions, Lane and the society will have to come up with arguments about how any particular film is detrimental to the public interest, and make out an arguable case, before a temporary ban will be ordered.


Often, he’ll have to do this without even seeing the film. He won’t say whether or not he has seen the films the society has complained about (though it’s difficult to see how he could have). But he says that’s irrelevant anyway. “We don’t have the intention of being censors,” explains Lane. “If we feel there are good grounds for concern [about a film], we put it over to the President of the Board to decide whether it warrants an interim restriction order.”


How does the society decide whether it has concerns? It looks through the festival programmes, and identifies films it thinks are objectionable. Then it gets a copy of the censor’s decisions on those films, which provide further information about their content. It might read whatever it can get over the internet. If the society thinks the classification looks dodgy, it puts in a challenge. Then it asks for a ban in the meantime.


The society’s lawyer, Peter McKenzie QC, says it’s not up to the society to prove that a ban is in the public interest. Once the question is referred to Elliott, it’s up to her to look at the film and make up her own mind about whether the public interest justifies an interim ban. “She’s required by the statute to make her own judgment on the issue,” he says.


Again, the law isn’t much help here. All it says is that Elliott must be “satisfied” that an interim ban is in the public interest. Does that put an obligation on anyone seeking such a ban to convince her? The festivals think so. Chief Censor Bill Hastings thinks so. The Society doesn’t.


Nor, apparently, did Elliott when she granted interim bans on Bully and Visitor Q. Elliott noted that the Society hadn’t seen Visitor Q, but that didn’t stop her granting the interim ban.


But, apparently, it does now. Under her new approach, there’s a rather glaring problem for the Society. What’s it supposed to do? Phone up Ant Timpson and ask for a copy of any video it wants to challenge so that it can make better arguments for a ban?


Where does all this leave us? We have two different sets of decisions from Claudia Elliott. One set seems to justify an interim ban in almost any case, and could be used to upset any film festival that can’t push its films through the censorship process about three months in advance.


The other set seems to preclude an interim ban in almost any case, and could be used to give the green light to the public screening of any film even if a serious challenge is pending.


It’s difficult to understand why these decisions are different. It’s difficult to predict which will be used in the future, unless we assume that the latest decisions (the Gosden ones) represent an ongoing change of policy.


Big deal? Maybe bigger than you think. Mainstream film distributors have been watching these developments nervously. Imagine, for example, if someone took exception to Lord of the Rings: the Two Towers, lodged an application for review a few days before its premiere, and asked for an interim restriction order. Blockbuster films are scheduled months in advance. Distributors promise to deliver movies to cinema owners on particular dates. TV and magazine advertising is lined up. Increasingly, films are released internationally on the same day. Once a film is queued up in this process, it’s very hard to replace. “The possibility exists that we could be derailed,” says Andrew Cornwell, General Manager of Columbia Tristar (N.Z.) Ltd, which has distributed films like Spiderman, Men in Black II, and Black Hawk Down. “We’d be absolutely gutted.”


He may be right to be afraid. Arguably, it’s easier to justify a temporary ban on mainstream films than film festival ones. Such a delay would only bump the screening back a bit, not stymie the few public screenings of a film that may never return to the country.


Gordon Adam, of arthouse film distributors Metropolis Film, is worried too. “It could cost us thousands in forward buying of advertising space which I can’t recover,” he says. Sure, there might be a bump in interest if the restriction order gets splashy publicity. But that will have dissipated if the Board doesn’t give the go-ahead pretty quickly after that.

Adam and Cornwell are breathing a sigh of relief about Elliott’s refusal to stop Y tu mama tambien. “I think she did do an about face,” says Cornwell, “but she made the right decision. If she’d opened the sluice gates, she would’ve found it hard to turn down any application in the future.” Why did she change direction? “She had a bit more blowtorch put on her. A restriction order would’ve unleashed hell.”


Still, the conflicting decisions from Elliott don’t give the distributors any assurance that what happened to Ant Timpson won’t happen to them. Consider Monster’s Ball, which Adam distributes. There’s sex: a father and a son (separately) bonk a hooker in a hotel room. There’s violence: the son shoots himself in the head. You can imagine an organisation like SPCS regarding it as injurious to the public good, even though it earned Halle Berry an Oscar.


As it happens, Hastings arranged a screening for a cross-section of the public to get some feedback before his office classified it. He made it R18.


None of that would have prevented a temporary restriction order from wreaking havoc with the film’s scheduling if someone applied to have it reviewed.


The distributors don’t object to the censorship system. What infuriates them is the cumbersome way it’s being run. “The main problem is that the Board is not able to meet in a timely manner,” says Cornwell. “There is flexibility within the system,” he points out. The Board just isn’t using it.


It seems like the perfect solution. If the Board can hear and determine applications quickly, then temporary bans won’t be necessary, and if granted, won’t matter.


The Board’s nine members are scattered around the country, and getting them together in one place is logistically difficult. But it’s also unnecessary. Under the censorship law, the Board can sit in divisions. It can determine its own procedure. When the Board receives a challenge to a particular film, there’s nothing to stop Elliott from firing copies off to three Board members and holding a hearing via teleconference. Objectors get their day in court. Usually, the Board will uphold the censor’s decision, and the screening can go ahead as scheduled. If the Board finds the film objectionable and bans it permanently, the film-shower will have a chance to make alternative arrangements.


But the Board hasn’t been doing this. It has never sat in divisions. It has never held meetings by teleconference. It is required to conduct reviews “as soon as practicable”, but it can take months to hear some applications.


Elliott didn’t reply to questions about the Board’s procedure. Perhaps the Board prefers to meet in person because that’s the way it has always been done. Perhaps, since most of the latest members were appointed only last June, they think it’s important that they deliberate together while they get a feel for the job.


There may be another, more convincing, reason. Anyone who wants to challenge one of the censor’s classifications has six weeks to do so, after the classification is published.

The current Board’s practice is to wait for those six weeks to elapse before conducting its review.


It seems a justifiable interpretation of the law. Just because one application is lodged early on, that doesn’t mean another one won’t turn up toward the end of the appeal period.


Never mind that this has never happened before.


Never mind that previous Boards often conducted reviews before the appeal period had expired.


Never mind that media lawyer Sarah Bacon of Izard Weston, media law lecturer Ursula Cheer of Canterbury University and Chief Censor Bill Hastings all think the Board can hear reviews within the six week period.


Never mind that once an application has been lodged, others affected can come along and submissions without lodging their own applications.


Never mind that this solution would often suit everyone, and it’s difficult to think of anyone who would complain about it.


It seems that the Board’s convenience is more important than the public’s.

Topics: General | 1 Comment »

Open Government: your chance to have your say

September 7, 2015

As you might know, the New Zealand government has signed up to the Open Government Partnership, a forum of countries working to promote government that is open, accountable and responsive to citizens.

Last year, the New Zealand government issued its first OGP Action Plan for 2014-2016. It sets out commitments by the NZ government aimed at improving our systems of integrity, transparency, participation and accountability over the ensuing two years.

I’m the New Zealand researcher for the IRM, the agency responsible for assessing New Zealand’s performance under the OGP. I am convening a meeting at lunchtime on 14 September 2015 to provide an opportunity for those interested in the OGP to comment on New Zealand’s Action Plan. Do you support it? Could it be improved? Has there been proper consultation? Has the plan been put into action in the past year? What has been achieved? Is it making a difference? Might it be done better next time? How?

·         Meeting to comment on New Zealand’s Action Plan

·         14 September 2015, noon

·         Victoria University Law School, Moot room, 3rd Floor, Old Government Buildings

You can find links to NZ’s Action plan and relevant documents here.

The State Services Commission’s site on the OGP is here.

The international OGP site is here.

UPDATE: to help you think about this, you might like to read Murray Petrie’s comment on New Zealand’s performance here.

Please RSVP (or send your comments directly) to or call 463 6336 or 022 026 2997.

Topics: General, Official Information Act | No Comments »

The blogger and the journalist

October 28, 2014

The Whale certainly created a splash in the last election. More accurately, it was investigative journalist Nicky Hager and his book Dirty Politics that created the splash. The Whale – controversial right-wing blogger Cameron Slater and his Whale Oil blog, whose emails were leaked to Mr Hager – copped most of the spray. (I should disclose that I act for Nicky Hager).

But Mr Slater has also been making life busy for the courts. In recent months, he has been at the forefront of two significant High Court cases. In the first, he argued that he was a journalist, and should not be required to turn over his sources in a defamation suit against him. In the second, he sought an injunction against several media defendants and a hacker to prevent the further publication of the leaked emails about him that formed the basis of Dirty Politics.

The decisions were released within a week of each other shortly before the election. Mr Slater had mixed success with them. He was found to be a journalist, but the court ordered him to disclose his sources anyway. He got his injunction against the hacker, but not against the media.

Both cases revealed interesting things about the state of our media law.

First, the source protection case. The Evidence Act allows journalists to protect the identity of their sources, if they have promised them confidentiality. But it also allows judges to override that promise and compel them to disclose their sources. A judge has to decide whether the public interest in knowing the source’s identity outweighs the harm to the source together with the public interest in the flow of information from confidential sources.

What’s a journalist? Someone who, in the normal course of work, receives information from informants in the expectation that it will be published in a news medium. What’s a news medium? A medium for the dissemination to the public, or a section of the public, of news and observations on news.

This raises big questions. Is a blog a news medium? Is a blogger a journalist? Are they sometimes? If so, when? The District Court judge had held, rather peremptorily, that Mr Slater’s blog was not disseminating news, and that was the end of the story.

In the High Court, Asher J disagreed. In a lengthy and thoughtful judgment, he accepted that Mr Slater qualified as a journalist at the relevant time. Mr Slater spent a lot of his life blogging. He frequently received information from sources, promising confidentiality. He broke news stories. He published opinions on news. In this context, the judge said, purveying “news” means “providing new information to the public about recent events of interest to the public… on a regular basis… for the purpose of disseminating news”. Making a profit isn’t necessary. No particular format is required. The journalist doesn’t need to be subject to an ethics complaints system. A style of journalism that may be dramatic or abusive or hyperbolic doesn’t disqualify a journalist either. A pattern of consistent inaccuracy or deceit may mean that a blogger is not a journalist, but there was no evidence of that before the judge.

Of course, this isn’t a definition of “journalist” for all purposes, just for the Evidence Act. It’s a fiendishly difficult topic, and this strikes me as a pretty good stab at it. It’s similar to the definition the Law Commission has used.

The judge then went on to order Mr Slater to reveal his sources anyway. He explained that the identity of the sources may be crucial to evaluating pleaded defences of truth and honest opinion. What was there in the balance favouring source protection? Almost nothing. The posts were about a private dispute, they contained “extreme and vitriolic statements,” they “bore the hallmarks of a private feud”, and the source material seemed to have been obtained illegally. It was not a whistleblower case.

Ironically, Mr Slater’s “news” site reported only that he had been declared by the High Court to be a journalist. It didn’t see fit to mention the rest of the judgment. All in all, though, Asher J’s decision seems right on target, and gives very helpful guidance in a difficult and fast evolving area of law.

The same can’t be said, I think, of Fogarty J’s decisions on Mr Slater’s application to prevent further publication of his hacked emails.

This case, too, bristled with fascinating issues. Recall that the emails had been illegally obtained by someone calling himself “RawShark”, who had first given them to Mr Hager for his book, and after the book was published, began releasing them online and providing them to journalists. The application alleged breach of confidence and invasion of privacy. Some of the material (omitted from Dirty Politics) was clearly very personal. RawShark had released some of this, then apologised and said he’d vet the releases more carefully in future. There was a strong argument that all of the material was subject to an obligation of confidence, and that this obligation bound third parties, such as the media, who acquired it. But public interest is a defence to both causes of action.

The PM had accused Mr Hager of “making stuff up”. The emails supported the book’s veracity. Did that establish public interest in them? Would that only apply to the ones mentioned in the book? Was there public interest in some of the emails that weren’t in the book? The media had published some others. Emails showing contacts between political figures and Mr Slater were particularly pertinent with an election pending. Did that establish public interest? Would a judge be prepared to evaluate where the public interest lay without seeing all the emails and hearing argument on the context?

The interim injunction thresholds are very high. Courts are reluctant to gag speech. In privacy cases, for example, the Court of Appeal in Hosking v Runting held that there must usually be “compelling evidence of most highly offensive intended publicising of private information and there is little legitimate public concern in the information.” Was that test satisfied?

Who knows? Fogarty J’s 9-paragraph decision – gagging the hacker but not the media – sheds little light on these issues. He doesn’t cite Hosking, or the test for a privacy injunction. He doesn’t cite any breach of confidence cases at all.

The judge is surely right to conclude that there is an arguable case against RawShark (as indeed there is against the media). But is this the right standard? Hosking seems to set the bar for an injunction higher. So do many other free speech injunction cases. What’s more, the judge doesn’t mention the right to free speech in the Bill of Rights Act. Given that the injunction restricts what might include significant political speech, we might have expected an explanation of why it is demonstrably justified under section 5.

Remarkably, the judge doesn’t even explain why he didn’t grant the injunction against the media. If he accepted that the media were publishing information in the public interest, on what grounds was he satisfied that RawShark wasn’t? The judge points out that there is a difference between preventing the further circulation of what’s already in the public domain, and preventing RawShark from putting more hacked emails into the public domain. But that ignores another category: the emails leaked by RawShark to the media and not yet published. The injunction permitted the media to publish anything they liked from this category. But the judge gives no reason to differentiate between those emails and anything RawShark may still have had. He conducts no evaluation of any of the specific information leaked, published or not, and what public interest there may have been in it.

Was the judge worried that RawShark would again release very private information in which there was no public interest, since he’d done so before? The judgment doesn’t say.

As it happened, that afternoon RawShark said he had given all his information to the media and was shutting up shop. Did the judge know about this? Did he believe it? Did it make him more inclined to feel that any significant information was now in the responsible hands of the media and so it would not do any harm to gag RawShark? The judgment doesn’t say.

Perhaps the judge was comforted by the fact that Dirty Politics and the media seemed to have already had an opportunity to air the most significant parts of the hacked emails. But the judgment doesn’t say that either.

The upshot of this decision seems to be this: if the injunction application had been made before Dirty Politics was published, and before any of the emails had been leaked to the media, then an injunction would certainly have been granted against everyone, no matter what the degree of public interest may have been.

Now, I think we have to be very sympathetic to judges who have make difficult decisions on interim injunctions quickly and without the benefit of all the evidence and full argument. RawShark was not represented. What’s more, further argument was scheduled for the following week, and the judge permitted any defendants to apply for the orders to be varied on 24-hours’ notice. But even so, I think this loses sight of the principle that interlocutory applications must be scrutinised particularly carefully when they are likely to finally dispose of the case. In relation to RawShark, that’s exactly what’s happened.

I’m not saying that the ultimate decision Fogarty J reached was wrong. It’s possible that this outcome could be defended. But the judgment itself is so sparse and unsatisfactory that I don’t think it can be.

Topics: Breach of confidence, Confidential sources, Journalism and criminal law, Name suppression, Privacy tort, Protecting sources, Whistle-blowing | No Comments »

Broadcasting Standards issue

October 3, 2014

I wonder when the Broadcasting Standards Authority are going to tell us that one of the BSA board members quit a couple of weeks ago. That hasn’t come out yet, has it? A member of the BSA has up and walked. They haven’t mentioned that one yet, have they?

(Some might say that I have just made an unqualified factual assertion that a member of the BSA resigned. Not the BSA, though! They said a statement just like this one, by Martin Devlin on Radio Sport, was pure speculation and gossip, and therefore not subject to the accuracy standard. So even though it turned out to be entirely untrue, there was no breach of broadcasting standards. In fairness to the BSA, this was during talkback, Devlin is provocative and not always to be taken seriously, and the producer did add “we’ll wait for that story to break”. But I don’t think those factors tell against what was plainly an assertion of fact. Here’s the full statement and BSA’s reasoning:

I wonder when Team New Zealand are going to tell us all that one of their chief designers quit a couple of weeks ago. …That hasn’t come out yet, has it? Because you know how they wanted their salaries to keep all their designers and stuff? But one of their main designers has up and walked. They haven’t mentioned that one yet, have they? … I don’t think that one’s coming out yet, is it?

We do not think that this amounted to an unqualified statement of fact which was subject to standards of accuracy, or which listeners would have interpreted as authoritative or certain. Rather, most listeners would have taken the comments in the nature of speculation or gossip, due to the host’s repeated questioning whether it had ‘come out yet’. The impression created was that Mr Devlin had perhaps heard rumours, but this clearly had not been stated or corroborated by ETNZ itself. This was supported by the producer’s reaction when he said, ‘we’ll wait for that story to break’, again indicating it had not been confirmed.)

Topics: Broadcasting Standards Authority | No Comments »

Web hosts’ defamation liability restricted

September 19, 2014

In a significant Court of Appeal decision (see Murray v Wishart), hot off the press, the judges have unanimously ruled that a third party publisher (the owner of a Facebook page that contained comments by others) was not liable for other people’s comments simply because he “ought to have known” that they contain defamatory material (even if he didn’t actually know of the content of the comments). So hosts of Facebook pages will only be liable for defamation of posters’ comments if (a) they actually knew about the comments and (b) failed to remove them in a reasonable time in circumstances that give rise to an inference that they were taking responsibility for the comments.

Will this apply to other content hosts, such as the Blogger platform, search engines and ISPs? Maybe. The Court said:

Our analysis of the authorities shows how sensitivethe outcome can be to the particular circumstances of the publication. The fact that many of the authorities relate to publication in one form or another on the internet does not provide any form of common theme, because of hte different roles taken by the alleged publisher in each case.

So there’s still room for development of the law here. And the outcomes for online entities that have some role in publishing others’ comments seems somewhat fact sensitive. The indications in this judgment are that the Courts should assess which analogies are most appropriate in the particular circumstances: for example, is the publisher more like a news vendor (who can be taken to have accepted liablity for the publications being sold, subject to an innocent dissemination defence), or the owner of a public noticeboard (who hasn’t really taken part in publication until they are told someone has posted a defamatory notice)?

This offers some comfort to ISPs, who are usually likely to fall into the latter category. But it seems that once they are notified, then it will usually be a short step to the conclusion that they have adopted the statement if they do not remove it within a reasonable time.

Topics: Defamation, Internet issues | No Comments »

Some questions for the PM

September 15, 2014

I’m struggling to find the provisions in NZ’s policy about the classification of documents that allow the PM to declassify documents for the purpose of protecting his reputation (his word, not mine, on Morning Report this morning). Perhaps the PM could help me out here.

The PM has said he would declassify documents to prove he stopped a mass surveillance proposal, in response to criticisms by journalist Glenn Greenwald (and, it seems, whistleblower Edward Snowden).

A few other questions spring to mind:

Why were these documents classified in the first place, and who by? What was the security classification?

If they were classified secret or top secret, what was the “serious” or “exceptionally grave” damage to our security operations that would have been caused if we’d known about them, say, at the time we were debating the proper content of our spy laws? (Or what other secrecy ground was relied on?).

Who is directing the reclassification? Because it sounds like the PM is ordering it. But the decision should surely be made by the intelligence agencies themselves. Chapter 3, para 31 says:

for authority to downgrade or declassify, refer material classified SECRET or TOP SECRET to the point of origin.

So what’s the PM doing making this call? Hasn’t he always told us that operational decisions are the domain of the agencies themselves? (And isn’t his office under investigation for rapidly having SIS information declassified and released to Cameron Slater?)

If the PM is making this decision, is protecting his own reputation a proper consideration?

One might have thought that “overriding public interest” was the proper benchmark for working out whether to declassify a document. That has the beauty of being consistent with the Official Information Act, which still applies to these documents (see Chapter 3, para 6). And surely there is overriding public interest in the release of the documents now. Is the PM reluctant to make this point because of the obvious rejoinder: why were they not in the public interest back when we were debating the law, when similar allegations of mass surveillance by our spy agencies were being made, and when the country was debating what powers and limitations on those powers were appropriate?

Is this declassification process being expedited? Again, on whose instructions?

Or was it already in train? It was widely anticipated that Nicky Hager’s book would include similar allegations to these. Had the PM already begun or even finished the declassification process in order to have the documents lined up for rebuttal?

Why are the only documents being declassified the ones necessary to protect the PM’s reputation by showing how he stopped this “business plan”? If those documents are no longer going to be harmful to release, or if there is sufficient public interest to override any relevant harm, then aren’t there a swag of other relevant documents that should be declassified too?

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Is Whale Oil a journalist (3)?

September 14, 2014

Yes. Yes, he is. The High Court says so, as Whale Oil points out triumphantly. Like the good journalist he is, he even shows us the evidence: para 145 of Justice Asher’s judgment.

Mr Slater then goes on to demonstrate his journalistic chops by entirely failing to report the rest of the judgment. That includes the part where the judge says the material in his posts was “extreme and vindictive” and bore “the hallmarks of a private feud”, was not of any public interest , and was probably unlawfully obtained.

He also omits the judge’s conclusion that he therefore has to turn over his sources, which was in fact the whole point of the application.

Topics: Confidential sources | No Comments »

Is Whale Oil a journalist (2)?

August 22, 2014

Some time ago, I wrote about Cameron Slater’s claim to be a journalist, which he is invoking for the purposes of protecting his confidential sources. The District Court ordered him to turn over his sources in a defamation case brought against him by Matt Blomfield. The court said Slater didn’t qualify for source protection under the Evidence Act. I argued that the judge’s reasoning was very poor, and that there were good arguments that he should be treated a journalist. Nevertheless, I noted that the court still had a discretion to order  him to turn over his source.

Slater appealed to the High Court. Leading media lawyer Julian Miles QC was appointed as amicus to assist the court. The thrust of Miles’ submissions was that (1) Slater is probably a journalist, but (2) in the exercise of its discretion, the court should probably still order him to turn over his source, because his coverage of the Blomfield issue wasn’t in the public interest and the disclosure order would be unlikely to chill any signficiant stories.

Does Dirty Politics change that? Well, it does contain evidence that might be relevant to the court’s decision, I think.

Ironically, one part of that evidence suggests that it’s more likely that Slater should be considered a journalist. A journalist is defined as:

a person who in the normal course of that person’s work may be given information by an informant in the expectation that the information may be published in a news medium (s68(5) of the Evidence Act).

One issue identified by Miles is whether Slater’s blogging counts as “work” given that Slater has described it as a “hobby”. Blomfield argued that it was restricted to people who made their living from it.

But Dirty Politics shows that Slater was being paid for at least some of his blogging. It seems he was deriving a significant income from it. That makes it easier to class him as a journalist under the Evidence Act definition.

It also may have a bearing on another issue identified by Miles. “News medium” is defined as:

a medium for the dissemination to the public or a section of the public of news and observations on news (s68(5) of the Evidence Act).

To demonstrate his pedigree as a purveyor of news, Slater lists nine stories (or series of stories) he published from the relevant period. This was to relevant to two issues. One was whether he was receiving information from sources in the “normal course” of his work. The stories do seem to demonstrate that - that is, that he was frequently publishing stories, so that it could be said they were part of the “normal course of his work”.

The second issue is whether he was publishing in a news medium - that is, whether he was disseminating news or observations on news. Miles looked at the stories and said “although it seems Whale Oil publishes much that it not news, the articles … it is submitted, qualify as news or observations on news.”

Four of the nine stories Slater has put forward to demonstrate his journalistic chops are mentioned in Dirty Politics. I think the information in the book sheds some new light on those stories that might be of interest to the judge. One is about the Rodney selection battle, and the exposure of the allegedly racist past of the electorate chair. Hager’s book shows that this series of posts was orchestrated by Simon Lusk, who was being paid by one of the candidates for selection. The stories were run to enhance his selection chances. There is evidence suggesting that Slater was being paid for them.

Another is about the Ports of Auckland stories. Slater’s attacks on the union involved information that seemed to have come from the POA. He denied working with them, but boasted of his long chats with the POA chair. The POA has denied collaborating with Slater, and paying him, but Dirty Politics quotes one of its PR agents saying Slater was a “great hired gun”.

Another Slater story is his Labour Party website one. Dirty Politics contains evidence that this story was prepared in collaboration with Jason Ede from the PM’s office.

The fourth is the SIS/Phil Goff story. This involved a surprisingly quick declassification and release of official information to Slater in preference to a mainstream media outlet that was asking for similar information. Slater seems to have had knowledge that it was being expedited. So there’s evidence of collaboration with the PM’s office or the SIS over that one too.

Does that mean that none of this was news? You could still argue that it was, if you regard news as putting out information that people didn’t know before. But I think it raises another issue that isn’t discussed in Miles’ submissions. Doesn’t there have to be a degree of independence for a report to be described as news? An essential fidelity to facts rather than source? A motivation to accurately report information? The Advertising Standards Authority, for example, says that editorial content should include “a value check or independent critical assessment of the information”. Otherwise it’s advertorial.

There must surely be more to the news than simply putting out information that wasn’t there before. Otherwise, this concept of “news” could include, for example, press releases, or Party websites, or even pure advertisements.

In that context, the revelations in Dirty Politics that Slater was willing to post screeds under his byline that he hadn’t written, and that he knew was written by PR agents with their own agendas, and that he may have been being paid to post, are surely relevant to the question of whether what he was publishing was news or commentary on news.

They may well also be relevant to the second question: whether, even if he is a journalist, the court should exercise its discretion to order him to reveal his source. In the exercise of that discretion, the court must weigh the importance of the source’s identity for the defamation case against the likely adverse effect of ordering disclosure on (a) the source and (b) “the ability of the news media to access sources of facts”, thereby serving “the public interest in the communication of facts and opinion to the public.”

I’m inclined to think the information about Slater’s methods detailed in Dirty Politics is relevant to the issue of whether the public interest in the flow of information will really be harmed by ordering Slater to reveal his source to Blomfield. If people like Slater and his sources are chilled from delivering information in his particular fashion, for my part I doubt the public interest will be much harmed.

This case has already been argued, and we are awaiting the High Court’s decision. But I wonder whether anyone will think it appropriate to apply to put the new information before the judge?

PS I see that Slater is facing another case in which his status as a journalist is in issue. The Director of Human Rights Proceedings is bringing an action (note to Herald: it’s not really a “prosecution”) against Slater for using private information in his Blomfield stories, in breach of the Privacy Act. Slater is arguing that Whale Oil is a news medium, and therefore exempt from the Privacy Act. The definition (which I set out here) is slightly different, but similar in many respects. Some of these same issues might well arise.

Topics: General | No Comments »

Did Nicky Hager “make stuff up”?

August 18, 2014

As many of you know, I act for Nicky Hager. I vetted his book, Dirty Politics, and the three before that.

It is a surreal experience watching what happens to Nicky’s books in the days after their publication. It often seems as if the book that’s being discussed by politicians and in the media is entirely different from the one I’ve just spent weeks vetting.

What’s more amazing is that politicians who admit they haven’t read the book and don’t intend to are given free rein to speak authoritatively about its content. Often they say things that are completely contradicted by evidence that’s set out in the book, but aren’t even challenged about it. Nicky is often accused of being a “conspiracy theorist” as if this is an answer to the evidence he sets out in the book.

This time around, though, my sense is that things are different. The government’s denials are such blatant flannel that they are being seen as beyond the pale, even by our most grizzled political journalists, who have seen plenty of spin in their time.

I want to go through some of the spin.  I want to do that because the Prime Minister is claiming repeatedly that Nicky has “made stuff up”, that he’s in cahoots with the “Fuck John Key” mob and the “Planet Key” song-writer and the effigy burners, and that he’s done it to distract attention from the real issues.

Let’s just pause on that last one. Anyone with even a nodding acquaintance with Nicky or his writing, whether they agree with him or not, surely cannot escape one conclusion: Nicky’s goal is to get us talking about the real issues, and to expose and critique the tactics that are used to derail genuine political engagement. In fact, Dirty Politics  is about exactly that.

I have to say, I really wish Mr Key had displayed this same affection for debating the issues when Nicky put out Other People’s Wars, a book about New Zealand’s hidden foreign policy during conflicts in Afghanistan and Iraq, based on hundreds of leaked defence documents and interviews with insiders, written over the course of ten years. Key’s response? It’s a “conspiracy theory”.

Then there’s the insistence that Nicky makes stuff up and that the allegations are “unravelling”. So what has he got wrong?

National’s involvement in the ”hacking” of the Labour Party database? Nicky doesn’t call it a hack. He exposes and criticises the collaboration between the PM’s office and Cameron Slater. He says they accessed the database, dug around, and downloaded information.

John Key on Thursday said repeatedly that “National had nothing to do with it.” Yet in almost the same breath, he admitted that his staffer Jason Ede might well have gone in and had a look. But that had “nothing to do with National”. In fact, National has also acknowledged that “it appears” a staffer downloaded files. Dirty Politics sets out correspondence between Ede and Slater discussing the information. While Nicky makes it clear that the site was insecure, it’s an open question, as a matter of law, whether this means it was not a crime to go digging around in it.

The PM’s involvement in the extraordinary early release of SIS briefing notes to Slater under the OIA? Nicky says that given the PM was minister for the SIS, the briefing notes were a hot potato, and they got declassified and released to a partisan blogger within days of a request, it looks like the PM knew about it. “The head of the SIS would surely never have done anything so unusual, so public, and so political without their minister’s knowledge and approval,” he suggests. He quotes Cameron Slater emailing friends about it, boasting about the fact that the information was on the way, would be “catastrophic”, and that he had been “sworn to secrecy”.

The PM told journalists last Thursday, ”it was nothing to do with me.” Phil Goff disagrees. The Dominion Post notes that they put in a request for almost the same information at the time and were turned down. This really doesn’t look to me like something that’s been disproved, or can be dismissed as “baseless”. It raises serious questions about the PM’s involvement. I see that blogger The Ruminator says that in 2009 someone in (Corrections Minister at the time) Judith Collins’ office called up to expedite an OIA request to Cameron Slater, pressing for it to be processed within half an hour. And we should remember that Dirty Politics cites other instances of Ede drafting OIA requests for Slater (though the evidence Nicky received doesn’t show him drafting this one).

The alleged attempted blackmail of Rodney Hide? Nicky claimed that Cameron Slater and Simon Lusk conspired to get hold of some compromising text messages sent by (then ACT leader) Rodney Hide, to try to pressure him into resigning. (Let’s not mince words here: Lusk writes they should tell Hide someone has the texts “and will leak them if he doesn’t resign by friday.”) Nicky quotes Slater’s subsequent blog post, which contains hints about Hide so broad you could land a plane on them. Hide resigned shortly afterward. DimPost outlines Hide’s adamant refusal to resign until that point. Dirty Politics says there’s no evidence of any direct threat made to Hide, and there may well have been other reasons for Hide’s resignation.

Hide has laughed off the suggestions that he was blackmailed or that this had anything to do with his resignation. But that doesn’t really answer the point, does it? Was there a plan to blackmail him? It seems there was. It can’t be said, anyway, that this suggestion is a “wild allegation” or ”made up” or ”a conspiracy theory” or “baseless”.

Judith Collins passing on the name of a civil servant so he could be excoriated by Slater? Judith Collins admits she passed on the name to Slater. The PM was asked repeatedly whether this was acceptable behaviour on Morning Report this morning and kept trying to change the subject.

Judith Collins passing on information to Cameron Slater about ACC client Bronwen Pullar? Steven Joyce says this is “completely false”. But Cameron Slater’s messages to a friend at the time say he’s spoken to Collins about it, that he knows the information is in a spreadsheet not a database, that he knows Pullar’s identity (though he doesn’t name her), that she “tried to get money for it” and that she is about to get “rat-fucked”. This all happens shortly before the Pullar/Boag email was leaked to the press. Dirty Politics notes it could have been leaked by ACC or the email’s author Michelle Boag. But Nicky suggests that Judith Collins’ office had more incentive to leak it. Of course, Collins denies this. But again, it can hardly be said that this allegation is fabricated or groundless or wild, or that it’s been proved wrong.

All Nicky’s books contain “left-wing conspiracy theories and don’t stack up”, particularly Seeds of Distrust? The allegations in Seeds of Distrust were submitted to exhaustive scrutiny in the Select Committee’s inquiry into Corngate. That inquiry was controversial and the committee was divided. But half of the members thought Nicky basically got it right - including all the National Party members.

Anything else? As far as I can tell, there is not a jot of evidence that Nicky has “made stuff up.” Nor is there any that his reporting is “baseless”, or that he “doesn’t want facts” as the PM puts it. Judith Collins has called the bits about her mostly lies. But she’s admitted the passing-on-of-the-name allegation, admitted that she has been in frequent contact with Cameron Slater, and said that she wouldn’t be able to sue because the book was full of speculation and might-bes. That doesn’t sound like lies to me. Let’s just treat that as praise for the careful and honest way that Nicky has separated out what he knows from what he’s not sure about, so readers can make up their own minds about the evidence he presents.

I note there has been a roaring silence from others criticised in the book, such as PR agent Carrick Graham and political consultant Simon Lusk. These do not strike me as men who are incapable of putting out their side.

Nicky’s allegations are based on a 150-page book with 500 footnoted sources, most of them from emails that Cameron Slater has admitted were taken from him.

What are your allegations that he “made stuff up” based on, Mr Key?

[I’ve obtained Nicky’s permission to blog about this, but he has not previewed this post. I have disabled the comments function. I’m not really in a position to debate this back and forth publicly and I’m not going to provide a platform for people to slag him. You can email me with comments if you like: I do encourage you to continue to debate the book on other, much better read platforms such as Kiwiblog or Public Address. It would be nice if you based your criticisms on evidence.]

Topics: General | No Comments »

New book by Nicky Hager

August 11, 2014

For those who haven’t heard, Nicky Hager has a new book coming out this week. It will be launched at Unity Books (57 Willis St) at 5pm on Wednesday. Nicky and others will start speaking at 5:15pm and the book will be made available for sale after that.

All are welcome to attend.

Topics: General | No Comments »

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