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Tribute to John Burrows

By Steven | February 7, 2008

The University of Canterbury’s law school held a conference in honour of John Burrows last weekend. It was called “Law, Liberty and Legislation” and covered the broad sweep of issues that Professor Burrows has expertise in – from statute and contract law to media law (he’s written the leading texts in all three).

On the media law front, there were presentations from Sunday Star-Times editor Cate Brett; Paul Norris, head of the school of broadcasting at Christchurch Polytechnic; Professor Nigel Gravells form the University of Nottingham; Vic’s privacy law guru Dr Nicole Moreham, President of the Law Commission Sir Geoffrey Palmer; and Ursula Cheer, associate professor at Canterbury. My partner Claudia Geiringer and I chipped in with a paper about the Bill of Rights and the Broadcasting Standards Authority.

Cate Brett spoke on the increasing problems for the laws of sub judice in a digital age. Cate is one of the few journalists I’ve heard who is able to talk thoughtfully and knowledgeably about the laws of contempt. She thinks prejudice to trials is increasingly likely to come from blogs and Trade Me message boards rather than the mainstream media. What are we doing about it? She thinks that the justice system might need to dirty its hands and engage with the audiences on the blogs and message boards in order to arrest prejudice, or explain the background to suppression orders. “An op-ed in the NZ Herald by Justice Randerson isn’t enough,” she said. I find it hard to disagree. (Cate was speaking under the Chatham House rule, but let me say this much. If she can have her arm twisted to include a paper in the forthcoming book containing the conference papers, you might get to see the whole thing).

Paul Norris had recorded his presentation on DVD. It tracked the history of cameras in courts (a development he had a large hand in, though he rightly gave credit for the initiative to the courts themselves). It was a nifty demonstration that in-court footage can provide an extra dimension to court reporting. (Still, what a court reporter needs most is a good understanding of the facts and issues in the case. Without that, it’s impossible to select the key soundbites and provide the right context. I’m not convinced that this is always done well, especially by reporters who come and go during the course of a trial…)

Prof Nigel Gravells talked about the recent UK cases that have looked at the relationship between copyright and freedom of expression. He’s worried that the courts still aren’t very good at grappling with the need to interpret the Copyright Act consistently with freedom of expression.

Nicole Moreham argued that privacy is essentially founded on dignity, which entails a need for others to respect our personal choices and feelings rather than using us a means to their own ends. She says the courts should be protecting people who have a “reasonable expectation of privacy” and that the extra requirement – publicity with a high level of offensiveness – is not necessary. The UK courts don’t have that extra limb, she notes. It follows that the Andrews case in NZ was wrongly decided. You might remember the case involved the broadcast, in a reality TV show on firefighters, footage of the Andrews’ (drunken) car accident just off the motorway, in which a distraught Mrs Andrews was shown saying some fairly intimate things to her husband while rescuers used the jaws of life to cut him from the wreck. The judge said they had a reasonable expectation of privacy in their exchanges, but that the publicity wasn’t sufficiently humiliating to be offensive. (For my part, I’m more inclined to criticise the judge’s other conclusion that there was public interest in those exchanges).

Sir Geoffrey Palmer made the radical suggestion that defamation law is dying out. In an age of multiplying platforms and celebrity culture, nobody is going to take the media seriously enough to sue, he rather thinks. I’m not sure I agree with that one. As long as there are people to besmirch others’ reputations unfairly, there will always be some besmirched with sufficient fury and resources to sue, I think.

Ursula Cheer reviewed the cases and research on the chilling effect of defamation laws. This complements her own recent empirical research on the chill effect. She’s still inclined to think that the chill is not as great as the media often crack it up to be. But she also supports an expanding the Lange defence to include stories about all matters of legitimate public concern, rather than just serious commentary on past, current and aspiring MPs. She has some more thoughts on the proper effect of the Bill of Rights on the law of defamation, but we’ll have to wait for her full paper to get the details…

Topics: Broadcasting Standards Authority, Contempt of Court, Copyright, Defamation, General, Internet issues, Media ethics, NZ Bill of Rights Act, Privacy tort, Suppression orders | 1 Comment »

One Response to “Tribute to John Burrows”

  1. Will de Cleene Says:
    February 7th, 2008 at 9:36 pm

    Thanks for posting that. Pardon me while I channel the old man.

    Re: Arguments by Cate Brett, Nigel Gravells, Sir Geoff

    Although Trevor never had the knack of computers, he understood the legal implications of the internet. No more secrets. Laying aside that NZ is a small community and gossip travels quickly anyway, the internet is too chaotic to control.

    Trev would also agree with Sir Geoff, in that the internet would raise the barriers to defamation. A higher threshold of proof of character loss would be required, leaving it only to the superlatively affluent to attempt such a case. In doing so, they would weigh the disadvantage of media scrutinising any legal proceedings.

    Ditto with copyright. Welcome to perfect information.

    Re: Paul Norris

    In NZ’s first successful murder defence of battered woman syndrome, the old man was also the first lawyer to get microphones installed in courts. It seems that the presiding judge was somewhat deaf and kept nodding off during evidence.


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