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Book Review: Media Law in New Zealand

By Steven | April 28, 2011

Media Law in New Zealand

John Burrows and Ursula Cheer

LexisNexis New Zealand, 6ed, 2010  

Reading the latest edition of this terrific text, it’s hard not to be struck by the breathtaking rate of change of New Zealand’s media law. The five years since the last edition have seen the Fairfax contempt prosecution and a string of cases involving Vince Siemer testing the boundaries of the law of contempt; the tug of war between High Court judges over cameras in court; the Mafart and Prieur case and the rewriting of the rules on access to court records; the abolition of sedition laws; reform of the Press Council following a roots-and-branch review; new source protection provisions in the Evidence Act and their first outing in the Campbell “medal thieves” case; a plethora of significant Broadcasting Standards Authority decisions (and some on appeal); the anti-satire rules for Parliamentary coverage; the Danish cartoons imbroglio; several important decisions on the vexed question of defamation pleading; the battle between MediaWorks and Sky TV over copyright in rugby clips; and much more besides.The sixth edition of John Burrows’ and Ursula Cheer’s textbook, as ever, offers authoritative and practical guidance to these developments, stitching them into the fabric of New Zealand’s media law. Its sensible structure and lucid commentary makes it accessible to media law specialists, those in general practice, students and journalists alike. It is seasoned with reference to key overseas authorities. It should be anyone’s first port of call when media law storms strike.

Media Law in New Zealand doesn’t just provide a comprehensive overview of the disparate laws (criminal, tortious, and administrative) that apply to journalists. It also gives sharp analysis of the content of the law. The authors predict that the Lange defamation defence of qualified privilege for political speech is likely to “grow into a full public interest defence”, and they approve of overseas developments protecting neutral reportage. They note the problems with the remedies in the Defamation Act. They suggest journalists’ source protection should be enforced more rigorously. They sensibly recommend that New Zealand dumps its blasphemy laws. Their discussion of the case law on the various suppression laws is particularly helpful, and exposes the worrying lack of clarity in the suppression laws in civil cases.

Of course, recent editions have had to grapple with two seismic changes: the internet and the New Zealand Bill of Rights Act. The internet is increasingly becoming the battlefield for media law developments, and that’s reflected in much of the new material: commentary on ISP liability, online copyright infringement, the courts’ jelly-nailing attempts to control suppressed information once it hits the web, the problem of the status of bloggers when they perform journalist-like functions, and possible liability under censorship laws for visiting websites containing objectionable material.

References to the Bill of Rights are sprinkled throughout the text, but the main discussion is in a short chapter at the end. Alas, this offers limited guidance on the vexed issues surrounding the interface between the right to freedom of expression and the common law, statutory interpretation, and the exercise of discretions, and in particular, the mechanics of the key Bill of Rights provision, s 5, which allows “demonstrably justified” restrictions. But it’s hard to fault the authors too much here. Practitioners and judges are just beginning to come to terms with these issues themselves, and too often they are fudged or overlooked altogether.

It might be said that in this edition, Media Law in New Zealand has something of the feel of a venerable mansion, periodically modernised by the addition of extra rooms and ensuites. It is still a delight to visit and explore. All of the amenities are sound. Much of the architecture is lovely. But some rooms feel slightly musty (I’m not sure that all of the examples of defamation – and even broadcasting – cases reflect the approach the courts and BSA would take today). There’s need for a wing dealing with advertising standards decisions (the “lack of space” excuse trotted out in the last three editions wears a bit thin when each successive edition finds another 200 pages for other developments!). And I hope that later editions will find sufficient material to incorporate the Bill of Rights more closely into the foundations rather than consign it to its own room.

But any criticism feels like blasphemy. This is far and away the best book on New Zealand’s media law, and in fact has been influential in its recognition and development as a branch of law. The nation’s media lawyers, judges, journalists and students owe deep gratitude to the authors (mostly Ursula Cheer this time round) for putting in the long hours to compile this tremendously useful resource.

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