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NZ Lawyer column

By Steven | October 19, 2011

In my recent NZ Lawyer column, I reverted to a blog format: 

Let’s face it. You’re busy people. You have short attention spans. So let’s move to a blog format and you can graze the bits you find most interesting.

Pride or prejudice?Some of you may have seen my star turn on TV One News unpacking copies of Nicky Hager’s new book “Other People’s Wars” at his press conference. I had vetted the book. The days leading up to the launch were nervous times. Would the government find out and seek an injunction?The book was based on thousands of leaked confidential documents. Can there be any doubt that the government would have cried to the rooftops that the publication of the book would endanger national security? Indeed, the book included the key parts of a defence review that slated our reconstruction efforts in Bamiyan as ineffective – information that the government had refused to provide in response to Hager’s Official Information Act request because it would have prejudiced our security. Although Hager (rhymes with “lager”, by the way) had a strong public interest defence, it would have been a brave judge who denied an injunction at an interim hearing.

Over the next weeks and months, we will see how much harm the book does to our national security. My prediction: about none. That’s what happened in the Pentagon Papers case, and in the first tranch of Wikileaks releases. Despite vociferous claims that the sky would fall, the sky didn’t fall. Governments are far too ready to invoke the mantra of national security when they’re really seeking to protect themselves from embarrassment or accountability. Too often, I think, the courts defer.

Judges hold they are not breaking the lawYou’ll be familiar with the banner across the top of some (usually criminal) judgments that bans publication, except in law reports or law digests. You might have assumed that judges have the power to make such orders. In fact, it’s not entirely clear. The Criminal Justice Act allows them to suppress evidence and submissions, but not whole judgments. The suggestion that the judges can supplement this with their inherent powers hits a snag in the form of s 138(5), which says that the statutory powers are “in substitution for” inherent ones, “and no court shall have power to make any order of any such kind except in accordance with this section or any other enactment.”You’ll be relieved to hear, then, that a full bench of the High Court has ruled that the courts do have powers to suppress whole judgments. They managed to read down s 138(5) with the happy upshot that hundreds of judicial suppression orders are not, after all, unlawful.

Media misreporting suppression order? Surely you jestSpeaking of suppression orders: Judge Cunningham has copped flak in the media for suppressing the name of the “well-known comedian” accused of sexually assaulting his daughter. Of course, she did no such thing. That was the work of Parliament. The suppression is automatic, and is imposed to protect the identity of the child. The media keep suppressing that bit.Complainant in the wrong for being rightA man who brought a broadcasting standards complaint over an inaccurate TVNZ news item has been stung for costs by the Broadcasting Standards Authority. But not because he was wrong. TVNZ had reported that a 10-year-old Canadian girl had discovered a supernova that was 240 light years away. Don McDonald pointed out that a supernova that close would barbeque the Earth. In fact, it was 240 million light years away.TVNZ admitted the error, but refused to uphold the complaint. The accuracy standard has been rejigged recently, and requires only reasonable efforts to accurately report “material points of fact”. The BSA dismissed the complaint as frivolous and trivial. What’s more, the BSA said it was sick of Mr McDonald’s constant quibbling over minor details. In one previous complaint, he had objected to a report about a “31 percent difference” between two figures. “Percent is times;” he said, “difference is minus”. In another, he criticised a reference to a “wind chill factor below zero”. What’s the scale? he wondered. Farenheit? Celcius? Kelvin? In another, he slammed a journalist for talking of a search of 360,000 kilometres of coast instead of 360,000 square kilometres. We should record that Mr McDonald had a complaint upheld in 2005 when he pointed out a TV3 story about Telecom’s new calling plan wrongly put the price at 8c a minute when it should have been 18c.

Still, the BSA started warning him a few complaints ago that if he kept up the nit-picking about immaterial matters, they would penalise him with a costs order. This time round, they followed through. They ordered him to pay $50 as “some form of deterrent”.

Some have noted that it is a little odd to deter people from correcting errors. And that, in a story about how extraordinary it is that a child could discover something so damned far away, the actual distance involved might be thought immaterial. I’m inclined to think that the BSA might have got confused about the various thresholds involved here. Maybe it’s defensible to say this wasn’t a material error of fact, since the story focuses on a child’s discovery. It’s a different thing to say that the complaint was frivolous and trivial. In this case (though not in some of Mr McDonald’s other complaints), that’s going a bit far, I think. In any event, it’s a different thing again to say that this is one of the set of trivial cases warranting a costs order against a complainant, something the BSA has imposed only a handful of times. This wasn’t the one to pick out and ping him for.

Text messageThese days, I find myself reaching increasingly often for Matt Collins’ terrific textbook “The Law of Defamation and the Internet” (3ed, Oxford). It contains a concise, lucid, up-to-date statement of the common law of defamation, as well as focusing on its implications for online defamation. Whether or not my issue involves the web, his text often offers an easier first port of call than its more compendious grandfather, the venerable Gatley on Libel and Slander.

Topics: General | 4 Comments »

4 Responses to “NZ Lawyer column”

  1. Graeme Edgeler Says:
    October 19th, 2011 at 5:17 pm

    Of course, she did no such thing. That was the work of Parliament. The suppression is automatic, and is imposed to protect the identity of the child. The media keep suppressing that bit.

    The daughter’s name is suppressed automatically. His name is only suppressed if the media or others are stupid enough to announce that the offence involves his daughter.

  2. Steven Says:
    October 19th, 2011 at 5:19 pm

    Which, in fact, they were.
    And almost always are.

  3. Andrew Says:
    October 21st, 2011 at 10:15 am

    On the subject of defamation and the internet, you might like to see this report of a recent Canadian Supreme Court decision (Crookes v Newton).

  4. Judicial Review Over Comedian's Discharge Without Conviction Says:
    October 22nd, 2011 at 8:59 pm

    […] Steven Price reminds complainers that the name suppression in this case is automatic and is to protect the identity of the child. […]


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