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Chasing Ali

By Steven | February 15, 2010

The latest development in the Alison Mau saga reads like a media law exam question.

On Breakfast TV she took a swipe at Woman’s Day, saying its “paparazzi photographer has been stalking me, my children and my friends for a month now, quite possibly more, following me to the supermarket, the kids’ tennis and touch rugby, to and from school.”

She pointed to two photos, one of her carrying some take-out hot drinks, which she said was taken last month, and others taken last week.”In my mind, that’s a gross intrusion of our privacy and frankly, more than a little creepy.”

She went on: “Just give me an idea when the dogs will be called off and me, my friends and my family can go about our business without having creepy guys in Corolla station wagons following us around?”

She invited viewers to send in their comments on this behaviour, either to Breakfast, or by emailing the Woman’s Day editor, whose email was printed onscreen.

Where to start? I confess I’m not a regular viewer of Breakfast, so I haven’t tuned into this discussion segment on gossip magazines before. Do the presenters commonly express outrage at the excesses of the gossip magazines when they intrude on the lives of other celebrities? I’m sure they wouldn’t stoop to showing us other papped photos on that segment, anyway.

Still, the papping does sound creepy. (This is because papping is creepy). Was it also harassment? It does seem to fall under the definition in the Harassment Act (you need to read secs 3 and 4). Mau would need to show a pattern of conduct involving at least two “specified acts” in a 12 month period. Specified acts include following and watching.

It’s not harassment if it’s done for a “lawful purpose”. It’s not clear how that defence might apply. “I wanted to show her I loved her” is an entirely lawful purpose, but it is unlikely to avail a stalker who tails an ex for a week. Likewise, there must come a point at which gathering information for a magazine (would they try to dress it up as “news?”) ceases to be a lawful purpose.

Mau could therefore apply for a restraining order, if she could show that the she reasonably felt distress about the harassing behaviour and that an order was necessary and proportionate to tackle it. Seems at least arguable. She’d have to identify the photographer, though, and if she wanted to include the magazine, she’d have to prove their involvement too.

Is it churlish to note that journalists from her own station are sometimes accused of harassing people, too, and not always with much of a public interest justification?

We should bear in mind that Woman’s Day says the photos it used were taken over a 24-hour-period, and the magazine had nothing to do with whoever was following Mau around. (Did their photographer drive a corolla station wagon? They didn’t say).

So… Mau falsely accused Sarah Henry and Catherine Mitford of hiring someone to stalk her for a period of weeks. That looks like… defamation. (It’s also probably a breach of broadcasting standards requiring accuracy and fairness).

Unless Mau’s right and the magazine did authorise or encourage this photographer, in which case the editor has falsely accused Mau of falsely accusing them of stalking her. That looks like… defamation too! (What’s more, the harassment itself may warrant a complaint to the Press Council against the magazine.)

Either way, there’s another issue about whether it’s fair for Mau to air  her personal grievance against the magazine on national TV. The BSA has previously found that the use of the airwaves to vent a private complaint can be a breach of the fairness standard.

PS Let me go on the record with who think it was poor form for the Herald on Sunday to out her in the first place  (assuming it’s true). And putting on my media lawyer hat again, she may have a right to sue for breach of privacy. This may depend on how many people knew, though a privacy action can still succeed if a limited group of people were already in the know. Of course, a Press Council complaint is another option here too.

Topics: Broadcasting Standards Authority, Defamation, Harassment Act, Press Council, Privacy tort | 13 Comments »

13 Responses to “Chasing Ali”

  1. Graeme Edgeler Says:
    February 15th, 2010 at 8:01 pm

    (It’s also probably a breach of broadcasting standards requiring accuracy and fairness).

    Does the accuracy standard even apply to the women’s mag preview segment of magazine show like Breakfast?

    I’m surprised that more celebrities/people who suddenly find themselves newsworthy in New Zealand don’t avail themselves of the Harassment Act. It seems almost tailor-made for those situations where the media are camping outside someone’s house.

    Someone’s bound to do it to a major news organisation sooner or later (assuming they haven’t already).

    And as an aside, the stalker ex could just probably rely on s 9(4) of the Harassment Act (which precludes its application to domestic relationships).

  2. Steven Says:
    February 15th, 2010 at 8:27 pm

    Harassment legislation has been used against the media in the UK (though the legislation there is a bit different). And it’s happened in analogous contexts in NZ. (If the stalker ex could slip out of the harassment legislation – did you mean “just possibly”? – but would presumably then be caught by the Domestic Protection Act.

    As for the accuracy standard: it applies to news, current affairs and factual programmes. TVNZ bills Breakfast as a “news and current affairs show” (though I’m sure that wouldn’t stop TVNZ backing away from that characterisation if it suited them in a BSA argument). The BSA has upheld an accuracy complaint for Breakfast, though admittedly that was a harder news segment. I’m inclined to think the standard applies, at least insofar as the hosts are purporting to be conveying facts to viewers.

    [PS This decision (which I think is wrong) offers support for your view, though: http://www.bsa.govt.nz/decisions/2002/2002-148.html%5D

  3. ursula cheer Says:
    February 16th, 2010 at 11:49 am

    Might it not be a breach of BSA Privacy Principle 4 – giving out of name and address etc where this would be offensive etc? This principle was originally intended to stop broadcasters using the airwaves inappropriately.

  4. Steven Says:
    February 16th, 2010 at 12:26 pm

    Possibly. But only with respect to the name. The principle only relates to names and addresses and phone numbers. I think it’s a stretch to call an email address an “address”. The problem is that the name of the editor is published in the magazine, so it also seems a bit of a stretch to call this a privacy breach.

  5. Steve_Melrose Says:
    February 16th, 2010 at 1:55 pm

    Legal details aside, to be honest, I have little sympathy for Mau. Maybe it is a taste of her programme’s own medicine. The show regularly has a piece that highlights magazines that use the antics that she is against. Interesting to see how she’s reacting just because the shoe is on the other foot… rather than commenting on Brangelina’s latest break-up.

  6. Scott Says:
    February 17th, 2010 at 9:45 pm

    Perhaps the most disturbing thing about the entire story is how Close Up had an interview between Mark Sainsbury and Mike Hosking about Mau’s outburst. That’s a TVNZ presenter interviewing another TVNZ presenter about what a TVNZ presenter said on another TVNZ show.

    And it was interesting to hear Hosking continuing to assert that he won his privacy case, when he actually lost. Apparently you can lose and still win. I assume he claims victory because the Court found a tort of privacy existed, even if it did dismiss his appeal.

  7. Steven Says:
    February 17th, 2010 at 10:09 pm

    Very nice.

    Which makes it a TVNZ presenter interviewing another TVNZ presenter with an obvious bias against privacy intrusions about what a TVNZ presenter said on another show.

  8. E.Beer Says:
    September 11th, 2010 at 5:08 pm

    Hi,

    You mention in this post that “The BSA has previously found that the use of the airwaves to vent a private complaint can be a breach of the fairness standard.”

    I wondered if you are able to tell me which case that was in relation to?

    I have tried searching the BSA website but I’m not having much luck, I think you need to be rather specific to find what you want!

    Thanks heaps 🙂

  9. Steven Says:
    September 11th, 2010 at 7:26 pm

    Here’s an example: http://www.bsa.govt.nz/decisions/2002/2002-077_078_079_080.html

  10. Ali Romanos Says:
    September 14th, 2011 at 11:51 pm

    Hi Steven,

    A hypothetical exercise:
    If there were two instances of possible defamation action here, then either side would have a complete defence by proving truth, or material truth, of their statement. But if it came to proving the existence or non-existence of photographers working as agents for Women’s Day, who would the burden of proof would fall on if statements of claim were issued simultaneously?

    Best,
    Ali

  11. Steven Says:
    September 15th, 2011 at 3:14 pm

    For each action, the relevant defendant would need to prove the truth of the sting of the particular statement they’re suing on. I doubt the cases would be heard together, and if they were, I assume the jury would have to be directed as to the separate burdens.

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