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Throwing the book at the Chief Judge

July 3, 2014

News media activities are exempt from the strictures of the Privacy Act, which generally requires that people gather information directly from those concerned, explain what they’ll do with it, keep and securely, and don’t use or disclose it for unauthorised purposes. The Privacy Act also allows those affected to access information about them, and seek to correct it if it’s wrong. The media lobbied hard for exclusion from these rules, arguing that they would make the media’s task unworkable.

Parliament agreed, and journalists breathed a sigh of relief. But what does this mean for authors of non-fiction books? Are they part of the media? Or are they subject to the Privacy Act?

Justice Winkemann, the Chief High Court Judge, has ruled that authors of non-fiction books are not exempt from the Privacy Act (see paras 56-78). That means (among other things) when authors gather material about people, they have to turn it over to them on request, unless some other exception applies. (Note, though, that there are some source-protection provisions).

The ruling came in the context of Kim Dotcom’s case against the government, alleging it illegally spied on him and raided his property. As is standard procedure in civil lawsuits, the government sought access to of all relevant documents in the possession or control of Dotcom. It argued that these should include relevant documents about Dotcom held by his biographer, journalist David Fisher - for example, notes of interviews. You might wonder why that is, given that Fisher was holding those documents. (Incidentally, there would have been nothing to stop the government applying for third party discovery against Fisher). The government argued that Fisher’s documents were within Dotcom’s “control” since he had a legal right of access to them. How? Through the Privacy Act. Dotcom could ask Fisher for access to documents about him. So he effectively controlled them, and should have to turn them over to the government.

Dotcom argued that he didn’t have the right to see the documents, since Fisher fell within the news media exemption. As we know, Winkelmann J ruled against him.

This ruling has attracted a storm of criticism because of the difficulties it creates for authors. I think there’s some truth in that. Though we should bear in mind that there are two mainstream media organisations that are already subject to the access rights in the Privacy Act: Radio NZ and TVNZ. They hate this. And they fight against requests. But they are subject to the access requirements and the sky hasn’t fallen (largely, I suspect, because hardly anyone knows about these access rights).

My criticism is different. I think the judge got this one flat wrong.

She begins by finding that David Fisher, himself, is an agency, and is therefore subject to the Privacy Act. Since the definition includes people, she’s surely right about that. The big question is whether he counts as a news medium, and therefore is exempted. A news medium is:

any agency whose business, or part of whose business, consists of a news activity

So what’s a news activity?

(a) The gathering of news, or the preparation or compiling of articles or programmes of or concerning news, observations on news, or current affairs, for the purposes of dissemination to the public or any section of the public:

(b) The dissemination to the public or any section of the public, of any article or programme of or concerning –

(i) News:

(ii) Observations on news:

(iii) Current affairs.

The judge concludes that David Fisher doesn’t fall within this definition. Here’s why:

First, Mr Fisher’s authorship of the book was not undertaken by a “news medium”. It is true that Mr Fisher is a journalist working for a news medium, the New Zealand Herald, and that in that capacity he has written extensively on Mr Dotcom. But his book on Mr Dotcom is not affiliated with the Herald, and was published by an independent publishing agency. There can be no suggestion that Mr Fisher is himself a news medium as that phase is defined in the Privacy Act.

My second reason is that the writing and publication of a book cannot, at least in this instance, be construed as news activity. The definition of news activity protects two different forms of journalistic endeavour in its two limbs: preparing stories and disseminating stories. The first limb protects gathering, preparing, compiling, and making of observations on news, for the purpose of dissemination. The second limb protects the dissemination of the prepared story, provided it is about news, observations on news or current affairs. The end product of the two activities is specifically provided for in the definition: articles and programmes. Investigative journalism takes its form in long, detailed articles, which are covered by the Act’s definition. Books, however, are not.

I think both of these reasons are wrong. Let’s start with the first reason. The judge says “there can be no suggestion that Mr Fisher is himself a news medium as that phrase is defined in the Privacy Act”. Why not? After all, he’s an agency, as the judge finds. Writing a book for commercial sale is certainly his business, or at least part of his business. There’s an issue about whether that business is a news activity, but that’s the judge’s second reason. That aside, there seems to be no reason for not treating Fisher as a news medium.

In other words, I don’t think the judge has two reasons at all. They both collapse into one. Was what David Fisher was doing a “news activity”?

The judge recognises that the definition contains two limbs: “two different forms of journalistic endeavour: preparing stories and disseminating stories”. Right. And it follows that he only has to be doing one of these to come under the definition. If he satisfies either one of them, he can be a news medium.

The judge says that “the end product is specifically provided for in the definition: articles and programmes. Investigative journalism takes its form in long, detailed articles, which are covered by the Act’s definition. Books, however, are not.”

It’s true that books aren’t mentioned in the definitions. But are they excluded? They certainly seem to be excluded from the second limb of the definition, because it only applies to “any article or programme.”

But - and here’s my point - books are not specifically excluded from the first limb. Let’s look at it again:

The gathering of news, or the preparation or compiling of articles or programmes of or concerning news, observations on news, or current affairs, for the purposes of dissemination to the public…

Notice the “or” (which I’ve conveniently highlighted). This definition isn’t a model of clarity. But it is clear that “gathering of news” need not be connected with the “compiling of articles or programmes” for the definition to be satisfied. The gathering of news for the purposes of dissemination to the public will be enough.

So the really interesting issue is whether researching a book on a topical issue is “the gathering of news”. And the judge does not address that issue at all.

I suppose it might be said that “news” is more high-turnover, transient and perishable than can be encompassed in the activity of producing a book. But as the judge points out, long-form journalism is contemplated in the definition. And the Bill of Rights requires statutes to be read consistently with the right to freedom of expression if possible. I think there’s a compelling argument that the gathering of news can include research for a topical non-fiction book.

Alas, that ship has sailed. My understanding is that there is to be no appeal, so this stands as the law unless and until it is reformed by Parliament or revisited by the courts.


Topics: Privacy Act | 11 Comments »

Law Commission on contempt

May 23, 2014

The Law Commission has released its discussion paper on contempt of court.

It covers changes to the sub judice rule (under which you can be punished for publishing something that interferes with fair trial rights), scandalising the judicary (under which you can be punished for suggesting judges are biased or corrupt), contempt in the face of the court (under which you can be punished for disobeying a judge’s instruction or throwing a dead cat at him or her), civil contempt (under which you can be punished for disobeying court orders), and rules regarding jurors (under which they can be punished for googling the defendant or tweeting their views during a trial and the media can be punished for seeking to interview them afterwards).

The good

It’s a thoughtful and generally thorough paper and contains much to admire. It is grounded in principles, which are set out. It surveys historical developments. It provides an excellent summary of the existing law. It is alive to the challenges created by burgeoning technology, the needs of the modern media and the signficance of freedom of expression in discussing the courts.

Many of the (preliminary) recommendations strike me as entirely sensible. They think we should jettison the ancient offence of scandalising the judiciary. I agree. They suggest that when someone commits contempt in the face of the court, they should have the right to a hearing before another judge if they are to be punished beyond locking them up for the day. You bet. They think we should dump the vexed distinction between civil and criminal contempt. Yes.

In general the Commission favours codifying the law. This is because the law of contempt is largely not a creature of statute. It’s the only crime that remains defined by judges not Parliament. The Commission says that there’s a constitutional issue here: Parliament should set the parameters of the criminal law; the judges’ role it to interpret the criminal law, not create it. That’s surely a good point.

The missing 

But I wonder whether it misses another constitutional issue: don’t judges need to control the reach of the power to punish those who impede the administration of justice? If Parliament defines what sorts of behaviour might threaten the administration of justice, Parliament can change those definitions. And let’s not forget that it’s sometimes MPs themselves whose statements create grave risks to the administration of justice. For example, National MP Nick Smith was punished for contempt of court for his scathing criticisms of the court and one of the parties in an ongoing Family Court case. What happens if Parliament sets boundaries for acceptable criticism of judges, or behaviour in court, or compliance with court orders, that judges think are so loose they threaten their ability to dish out justice? In other words, is the executive (the Law Commission) recommending that the legislature (Parliament) muscle in on judicial terrain? Does this threaten the separation of powers?

I suspect I’m overstating the problem here, and I don’t see anything in the width of the the Commission’s recommendations (which still leave a lot of power with judges to preserve the authority and operation of the courts) to be much concerned about. Still, I’m a bit surprised not to see any mention of the issue.

There’s another omission I’m surprised and disappointed about. The Commission didn’t see any need to look at the contempt laws relating to influencing parties or witnesses or judges. There are some great big grey areas here, and I wish the Commission had tackled them. For instance, there are mixed messages in the cases about whether it can be a contempt to publish something in prejudicial when a case is before a judge alone. Some cases say that judges are specially trained and experienced in putting media comment out of their minds and will never be influenced by it. Others say that judges are human and might be swayed by something in the media. Which is it to be? Of is it to be some halfway house - it can be contempt to publish prejudicial material in a judge-alone case, but the threshold is higher? If so, can the law please describe that different threshold more clearly so that we know where it is?

Another problem is that the general rule with publication contempt is that it must create a real risk of prejudice to the fairness of a trial. But influencing contempt can be found when there’s no real risk - if someone intends to influence the court or a witness etc. So technically, it’s a contempt for an unrepresented litigant who doesn’t know any better to write to the judge seeking to affect the outcome of a case against him or her. I don’t think it should be. I think real risk should be the touchstone across the board.

Finally, it can be a contempt to publish something about a civil case if it goes beyond fair and temperate criticism and “might inhibit suitors generally from resorting to the courts to vindicate their rights”. What the hell does that even mean? Pretty much any article painting a party in a bad light potentially triggers this rule. But it’s hardly ever invoked. This should be tackled too.

All these things are potentially within the Commission’s terms of reference for this project.

The bad

I’m not sure this next bit is exactly bad. Perhaps the heading should be the “open to criticism.”

The Commission is dead right when it emphasises that a significant problem with the current law of contempt is its lack of clarity. In fact, the Commission uses the words “clear” or “unclear” or “clarity” no fewer than 64 times in its report. It knows that this leads to confusion about the law, and that in turn this confusion can affect freedom of expression when people are commenting on courts. It’s right. It is to be congratulated for explicitly setting out to make the law more clear, particularly in the area of sub judice or “publication” contempt.

Plainly, the Commission thinks its recommendations achieve this clarity. But I can’t agree. I think their publication contempt proposal makes the law less clear, and what’s more, I think it widens the net so that it captures even more speech.

The current rule is basically this: it is a contempt of court to publish something that creates a real risk - as opposed to a remote possibility - of prejudice to the fairness of a trial. (An example: a newspaper publishes information about a defendant’s previous convictions, something the jury is usually not told because it’s their job to focus solely on the evidence against the defendant in relation to this particular accusation).

The problem is that this test is nebulous. Yes, we know it covers previous convictions, and appearances at court on other charges, but how much more does it cover? Reporting that the accused has confessed, when that may not be admissible in trial? That’s almost certainly contempt. Showing photos of the accused when identity is at issue? That is too, since witnesses memories may be influenced by seeing the photos. Reporting on old gang associations? Reporting about previous accusations of misconduct? Discussing the evidence in an unbalanced way? Calling for a conviction? These may well be contempts too. But it’s not clear exactly when they will be.

Whether the publication creates a real risk of prejudice might depend on when the story was published, how widely it was read, how splashy it is, how accurate it is, what the trial issues are, and many other factors. That’s now complicated by the fact that once it’s published, it’s probably available online awaiting jurors to Google it a year later when the case comes to trial.

At the press conference on Monday, the Law Commissoners said they believed their recommendations would tighten and clarify this test. Let me say at once that these are laudable aims. Now, let’s look at what they recommend”

1. Make it a crime to publish a defendant’s convictions or concurrent charges in a specified period leading up to trial without the court’s permission.

Well, this is mostly fine. It’s good that this rule would be set out in statute. And it creates a bright line. But it seems to apply to judge-alone trials, even when the convictions have been mentioned in court. Those might not have been regarded as contempt under the old rules. Still, I doubt anyone would prosecute. On the other hand, this merely codifies the easy part of the law of contempt. There is never much doubt that publishing these things will be a contempt.

2. Empower the courts to make advance rulings setting out what information cannot be published because it will endanger the trial.

In fact, the courts have this power. But they hardly ever use it. The threshold for such injunctions is very high. The Commission implies that we should get over that, but doesn’t say why. In fact, I agree. The chilling effect of a law is related to how clear the rule is, and how certain and severe the punishment is. A set of detailed prohibitions in the lead-up to a court case might actually be less chilling than the current nebulous and poorly understood rule banning anything that might “prejudice the administration of justice.”

Problem is, it’s hard to see how this will operate in practice. The judges are surely not going to want to act as censors, going through proposed publications line by line. The media aren’t going to want that either. And the things that need to be banned will depend to some extent on what the trial issues are. (For example, if identity isn’t at issue, you don’t need to worry about banning photos of the defendant.) It won’t always be clear early on what the issues are. Some very prejudicial publications come out of the blue and aren’t likely to be the subject of a prior order - for example, an expose on a defendant published the day before trial, that reveals that her family hate her. Who’s going to think to ban that in advance?

I like the idea of more communication between judges and the media in the period leading up to and during the trial. This is happening already in some jurisdictions. And it makes sense to give clear rulings in advance about some particular evidence or categories of evidence that can and can’t be published. But I doubt this can be taken too far. And I can see judges being very unwilling to engage in any of it, particularly if by proscribing some particular thing they can be taken as approving something else by implication.

3. Making it an offence to create a real risk, as opposed to a remote possibility, of interfering with the administration of justice by prejudicing a fair trial. (Or better still, says the Commission: making it an offence to create “more than a remote risk” of interfering with the administration of justice by prejudicing a fair trial).

I have to say, I can’t see how this helps improve the clarity of the law. The first one is the same test. The second one looks like it’s lowering the boom. The Commission disagrees: it says it is not designed to change the law. But I look at that second test and say “the emphasis seems to be on the remoteness of the risk - if it passes that remoteness threhold, it’s a contempt”. The benchmark is remoteness. A remote risk is a pretty damn small one. I look at the old test and say “the emphasis seems to be on there being a real risk - that means there has to be a solid, substantial, appreciable risk. Remoteness is mentioned, but only to emphasise that the risk must not be fanciful. The benchmark is a real risk. That’s something bigger than a pretty damned small one.”

If I’m right, then the Law Commission just recommended making contempt even wider. And even if I’m not right about that, this proposal surely makes the law less clear.

Now there are reasons for this change, and they are not stupid ones, but they are complicated and you’ll have to read about them for yourself in the discussion paper. My point is that none of this creates the clarity the Commission says it has achieved.

I have to admit, I’m not sure it’s possible. But I would have been interested to see the Commission’s analysis of how a similar codification has fared in the UK. That was in 1981. My impression is that their law is still just as nebulous as ours. But the Commission doesn’t discuss this.

A final gripe

I’ve banged on about this before… If we are in the business of reforming our law of publication contempt to ensure that it is only used to punish people when they are jeopardising the justice system, then why on earth aren’t we looking at the burgeoning social science research into how jurors are affected by publicity? I really don’t understand it. Professor Neil Vidmar has been doing this work for decades and publishing his findings.

I can only repeat something I wrote in a column after the Fairfax contempt case:

Judges routinely say that the social science research isn’t very helpful. But I think it tells us a lot about what sorts of coverage creates the sort of prejudice that’s likely to stick in the minds of people and taint their views if they later become jurors. Mostly it suggests that the risks aren’t big. One-off stories don’t generate much prejudice.

Interestingly, stories published during a trial aren’t usually harmful (jurors just laugh at the inaccuracies), unless they contain information that jurors aren’t allowed to see. Jurors tend to forget the details of stories quickly.

On the other hand, potential jurors do tend to remember stories that evoke a strong emotion, affect their sense of community and welfare, involve public figures, and are reinforced by earlier stories and, in turn, fuel gossip. It’s the interplay of media coverage and gossip that matters, and the combined effect of different forms of prejudice.

I think we really need to feed that research back into our contempt laws to ensure that the limits we are placing on speech are actually justified - and whether they need to be expanded. One example from Vidmar’s research is that serious prejudice can arise from media coverage shortly before the trial - even if that coverage is not about the trial. Imagine a defendant charged with sex crimes involving children. A local newspaper runs a huge feature the day before the trial decrying the failure to take strong action against pedophiles. Even if that feature has nothing to do with the trial or the defendant, it is going to cause serious prejudice. Our current laws almost certainly don’t touch it.

This feels to me like an opportunity missed. Still, this is a discussion paper. So nothing is fixed in stone and the Commission is encouraging us to make submissions. This is pretty much my one. I’ll blog some thoughts on their recommendations on Googling jurors later.

Topics: Contempt of Court | No Comments »

Taurima Report

May 14, 2014

As many of you know, I was on the panel for the TVNZ inquiry into Labour Party activities at TVNZ by Shane Taurima and other TVNZ staff members. Other panel members were TVNZ’s Head of Corporate and Legal Affairs Brent McAnulty and CEO of the Radio Broadcasters Association Bill Francis, and we were ably assisted by TVNZ’s Senior Counsel Helen Wild and BRG Director Chris Wikaira.

The report is here.

Topics: General | No Comments »

Press Council to tackle bloggers

May 14, 2014

This is my column for the first edition of the NewLaw magazine.

The Press Council wants to spread its wings. It has decided to fly farther afield, casting its eagle eye over new terrains on the internet, including bloggers. Will the online community welcome the attentions of this defender of speech and guardian of journalistic standards? Or will it resist this as a new attempt to shit on it from a great height?

The Press Council is an industry body that considers complaints against newspapers and magazines and their websites. It evaluates those complaints using its “Statement of Principles”, a sort of code of ethics containing rules about things like accuracy, balance, fairness, privacy, and maintaining the distinction between fact and opinion.

But it has become increasingly clear that there is a regulatory gap. Stand-alone digital media, including bloggers, aren’t covered by any form of ethical regulation, even though they are often performing the same functions as mainstream news media in gathering and commenting on news and current events.So the Press Council is opening its doors to new media members. “The media world is changing and fragmenting,” says Rick Neville, who chairs the Press Council’s executive committee. “It’s important that a body set up to maintain high standards, and provide an avenue for reader complaints, keeps pace with those changes.”

Too right. But will this do the trick? Will bloggers, for instance, want to join? Neville suggested on Radio New Zealand National’s Media Watch that subscription fees will be kept low – merely in the “hundreds” of dollars. For my part, I doubt there will be many bloggers who will want to pay hundreds of dollars to join.

What’s in it for them? Some may welcome the sense of legitimacy it bestows. They are journalists too, see? No longer the poor relations. Readers and sources may be more inclined to trust them if they know that standards are being enforced. It may also help bloggers in arguing for source protection, exemption from the Privacy Act, and access to courtrooms and the Parliamentary Press Gallery, for example.

A bigger attraction may be the waiver that many Press Council complainants are required to sign. Complaining is free, but complainants have to promise not to sue in court. This waiver is of very questionable legality – there’s a serious question about whether forcing complainants to forego their rights of access to court is void for public policy reasons – but it has never been challenged. You can see why this waiver system might be bait for bloggers. What’s more, the Press Council cannot award damages or costs.

Big bloggers such as Whale Oil, Public Address and Kiwiblog have indicated willingness to consider signing up. A prediction: if Whale Oil joins, he will withdraw in rage after the first complaint against him is upheld and make it his mission in life to ridicule and smear everyone associated with the Press Council, their children, neighbours, gardeners and pet labrador Boomer. 

How will it work for the others? The obvious first question is: what standards will apply? Surely bloggers won’t be expected to display the sort of balance that is supposed to be a staple of mainstream journalism. Will the same conflict of interest rules apply? Others have noted that the Statement of Principles includes a requirement to disclose any financial inducements and avoid obligations to news sources. Does that describe the political blogosphere?

Comment and fact must be distinguished. Now, New Zealand’s 600 or so bloggers are invariably careless, partisan, malicious or deranged, and are generally incapable of seeing any difference between their views on any particular issue and someone else’s idea of “the facts”. (Was that last sentence fact or comment?)

You see the problems. Let me say at once that the Press Council has a good track record of giving wide latitude to the expression of commentary, especially in op-ed pages. As it said in its 2012 Annual Report, “the Council has always upheld the right to publish opinions even when readers have vehemently disagreed with them of considered them abusive, unfair or obnoxious.” There is nothing in the Statement of Principles outlawing offensiveness. Nevertheless, the Council does insist that any facts on which the opinions are based are accurate, and it outlaws disparaging and gratuitous emphasis on things like race. These strike me as the makings of a set of principles that can apply to the blogosphere.

That said, I can’t escape the conclusion that there really needs to be a separate Statement of Principles, for blogs. Balance could be replaced by rights of reply. The disclosure rules may be looser where the ideological leanings of the blogger are obvious. There probably need to be rules about comments moderation (this applies to the mainstream media’s comments threads too). Links to source material, and opposing views when they’re being criticised, should be encouraged.

I see the Press Council is discussing these sorts of issues, and plans to issue its new complaints rules in the near future. Those rules will include the power for the Press Council to order something to be taken down if “the potential harm or damage to an organisation outweighs the need to keep the public record straight” (this will apply to mainstream media too). It may also address whether bloggers themselves will have representatives on the Council.

Last year, the Law Commission recommended the creation of a new multi-platform news media regulator to replace the Press Council, the Broadcasting Standards Authority, and the Online Media Standards Authority (which hears complaints about broadcasters’ websites). Membership would have been open to news bloggers, which would also have solved the increasingly difficult problem of when the law should grant them the same legal rights and privileges as journalists. But the government, displaying all the vision and judgment of Mister Magoo, rejected it. That’s left the Press Council to try to pick up some of the pieces.

As I said, I wonder how many bloggers will feel it’s worth their while forking out a subscription fee for the privilege of being judged and perhaps criticised and ordered about by the Press Council. But a word of warning to those who gleefully refuse to sign up: in the past, the Press Council has taken it upon itself to consider complaints against media organisations, like NBR, that hadn’t joined, though of course it couldn’t order them to publish its rulings. It could do the same to blogs if it liked.

Topics: General, Internet issues, Press Council | No Comments »

The news according to Mike Hosking

April 3, 2014

I was watching Seven Sharp on Tuesday, and caught Mike Hosking’s closing monologue:

Bad news. I’m afraid the IPCC – the International Panel on Climate Change – has issued its latest report. It’s 2,600 pages long and spans 32 volumes. But I can sum it up for you. Ah, we’re stuffed. The seas are rising, the storms are coming, the locusts are close, we are going to climatic hell in a handcart. That’s of course, if you believe them. Which, as it turns out, I don’t.  Twenty years ago they said we had 20 years to turn things around. We haven’t. The Kyoto Protocol was a last-ditch attempt to save us all. No-one adhered to it. The lesson they have not learned is that freaking people out doesn’t get buy-in. I mean if the met service struggles with the accuracy of a five-day forecast, I’m thinking the accuracy of a long-range prediction that takes in 86 years might be a bit dodgy. So my advice: don’t let it ruin your night.

I was gob-smacked. If you believe them?  Is he really suggesting that hundreds of the world’s leading climate scientists have conspired to make this up? Let’s be charitable to Hosking then: he’s merely suggesting that the overwhelming majority of the world’s climate scientists are incompetent.

What expertise does he have to make that call? None, as far as I can tell. Has he even read their report? It doesn’t look like it. Does he disagree with their evidence or their analysis? He doesn’t challenge any of it. He simply thinks he knows better.

It’s as if he said: Almost all the world’s scientists say smoking causes lung disease. That’s if you believe them. Which, as it turns out, I don’t. Don’t lose any sleep over it.

It’s as if he just pooh-poohed the theory of evolution.

There comes a point during a scientific debate when things aren’t a matter of belief any more. The IPCC presents overwhelming evidence that climate change is happening right now.

Hosking’s reasoning is risible. He confuses weather with climate. He proffers the failure of Kyoto as evidence that climate change isn’t happening. He accuses the scientists of trying to “freak people out” in order to “get buy-in”.

Don’t let it ruin your night? This is the overwhelming majority of the world’s climate scientists warning us about what is probably the biggest issue facing the planet.

Let’s put aside the fact that  Hosking’s view is deeply anti-scientific. Let’s even put aside that it’s staggeringly arrogant. He’s allowed to have moronic and galactically egotistical views.

What I can’t get past is that he and TVNZ would think it appropriate to broadcast a comment so inane on a matter of such importance on a prime-time show that TVNZ touts, however euphemistically, as current events. TVNZ is presenting Hosking as a journalist and a credible commentator.

However much slack you want to cut Seven Sharp (and in particular, that closing segment of the show) for its edginess and provocativeness, I think this crosses the line into something that no longer even resembles journalism.  I think Mike Hosking has just disqualified himself as a credible journalist.

[I’m especially grumpy about this because I’ve been doing quite a lot of reading about climate change recently. If you are on the fence about this, I suggest you take a look at . I’ve become so concerned that I’ve joined the lobby group]

Topics: Media ethics | 15 Comments »

Post at your own risk!

February 13, 2014

An interesting warning from the Northern Ireland High Court:

Before I go on … I should say that anyone who uses Facebook does so at his or her peril. There is no guarantee that any comments posted to be viewed by friends will only be seen by those friends. Furthermore it is difficult to see how information can remain confidential if a Facebook user shares it with all his friends and yet no control is placed on the further dissemination of that information by those friends.

Topics: Injunctions, Internet issues, Privacy tort | No Comments »

Harmful Digital Communications Bill submission

February 11, 2014


I am a barrister specialising in media law and a lecturer in media and privacy law at Victoria University of Wellington’s law school. I am also a blogger and occasional journalist. I am the author of a textbook for journalists called “Media Minefield”. I have dealt with, studied, and commented on many cases involving harmful digital communications.

I support this Bill, and particularly the provisions creating a new complaints regime. In the first part of this submission, I explain why. In the second part, I suggest some changes. In the third part, I make some concluding comments.

1. Why I support the Bill

There is plenty of evidence that digital harassment is a problem, and a unique one. I need only refer to the Law Commission’s research about the extent of New Zealanders’ experience of harmful digital communications, particularly those involving young people. It is sometimes very serious indeed, and in NZ and overseas has been a factor in suicides. I agree that the nature of such bullying - it can be easy to start, instantly and widely accessible, searchable, and difficult to remove - means it presents challenges we haven’t seen before.

Existing remedies are inadequate. It can be argued that our existing laws are sufficient to tackle the various problems. The law of defamation, privacy and breach of confidence, the powers of the Privacy Commissioner, the Harassment Act, other laws governing threats and incitement, cover much of the territory of this Bill. That is particularly so if the amendments in the Bill to the Privacy Act, the Human Rights Act, the Crimes Act and the Harassment Act (which I also support) are passed. But that does not solve the problem. The remedies under these laws are not always accessible, sufficient or available. What is needed is a quick and cheap method of obtaining an injunction or take-down order when truly damaging material is posted online. These laws don’t provide it. In some cases (such as in criminal cases) there is no take-down power. Nor can the Privacy Commissioner issue take-down notices. In some cases (such as the torts of defamation and privacy and the Harassment Act) the victim needs thousands of dollars to take a civil action. In any event, the case law sets extremely high thresholds before injunctions can be granted. The law and procedures are arcane. Costs spiral. Delays are rife.

The Bill addresses the remedies gap. The principles at the heart of the Bill are designed to reflect the current law. I think they largely do so, when read in conjunction with the limiting factors in clause 17. What is significantly new are the remedies. These offer informal resolution by the Agency, and a new court process for obtaining orders for take-down, cease-and-desist, and unmasking anonymous posters.

The Agency offers crucial support for complainants. Complainants are often faced with digital material harming them now, but have little in the way of resources or knowledge of the law and its processes. The Agency would provide information and advice. Someone to try to reach resolution on their behalf - get the bullying stopped and/or the harmful material removed. Someone who’s got an existing relationship with Facebook and Twitter, has experience with the issues, and is able to negotiate “in the shadow of the law” - ie “if you don’t remove the post, this person can apply to court for an order taking it down.” Particularly for young people, this may be an enormous benefit, even if it doesn’t work all of the time. Netsafe is performing some of this function now, but those posting or hosting harmful material - including Facebook and other sites - will be more likely to take notice of an official government agency than a lobby group.

The Bill contains protections to ensure the powers are not misused. I think there are sufficient protections in the Act to stop any unjustified uses of the law to attack legitimate speech. The coercive powers in the complaints regime are limited. The biggest gun is the take-down order. That cannot be used unless the complainant has first tried to resolve the complaint through the Agency. The breach of the principles must be serious or repeated. The harm must be “serious emotional distress”. No order can be made unless it is demonstrably justified under the Bill of Rights Act. It must be made by a judge, who must apply the principles of natural justice. And the judge will have to consider a range of sensible contextual factors under cl 17(4), including whether the communication was true, whether it was in the public interest, the conduct of the parties, and the vulnerability of the victim. There is a right of appeal.

2. Some suggested changes


Clause 3: Deterrence and prevention of harm should be added in the purpose section.


Consideration should be given to including a definition of “victim”, to constrain the operation of the complaints regime to those who are deliberately targeted by the harmful communication, rather than to anyone who may feel offended and seriously distressed by it. This means that the communication would have to be sent to them or be about them personally, for them to be a victim. This has been done in clause 19(4), in relation to the offence. But not in relation to the complaints regime.

The Agency

It seems strange to me that the Act hasn’t worked out what to do with the Agency. Will it be Netsafe? A government department? That shouldn’t be left open in the Bill.

The Agency should have to consider the clause 17(4) contextual factors.

Clauses 11(1) and 12(2)(a): It should be made clear that the Agency has the power to approve the rapid referral of a complaint to the court if the circumstances require it.

The Agency should be empowered to act on behalf of complainants before the court when it deems this appropriate and the complainant requests it, as it can do under clause 20(4) when dealing with online content hosts.

The Agency should have specific power to refer the complainant to the police or BSA, Press Council, etc.

The Agency should be tasked with gathering statistics about cyber-bullying.

Clause 8(1)(a): as presently worded, this allows the Agency to consider complaints about any sort of serious emotional distress caused by digital communications, whether or not they breach the principles. Is this deliberate?

Clause 8(2): this allows the Agency to seek and receive information it considers necessary to resolve complaints, etc. Is it necessary to spell this out? Is it intended that this creates an obligation on others to comply with requests for information? It is not clear.

The threshold for court intervention

Clauses 10(1)(a) and 11(2): Threats to cause serious harm should also be a ground for an injunction. Why should complainants have to wait until the harm has been done if someone is (eg) threatening to post a naked photo of them?

Clause 10(2): the Coroner has power to seek a takedown order (etc), but only if the Coroners Act is contravened. Should this include the (newly amended in the Bill) provisions of the Crimes Act dealing with suicide?

The content of the principles

These should make it clear that impersonation of someone (eg fake Facebook page) is covered. This is not clearly a “false allegation” or “grossly offensive” or part of a pattern of harassing conduct.

The limiting factors in clause 17(4)

Consideration should be given to including some provision addressing the role of humour. This is somewhat vexed. Humour can be nasty and harmful, especially to young people. It can also leaven a communication that might otherwise be harmful, or encapsulate a satirical point of importance.

“The extent to which the communication is a legitimate news story” should be a factor in clause 17(4). There may well be a difference between a blogger publishing a communication that says the world is a better place for the death of a “feral” West Coast man in a car accident (which may be grossly offensive, justifying a remedy) and a news story that reports on that blog post (which may well not be). That difference is probably captured in the other limiting factors, but it may be as well to add this as a factor.

Alternatively, the mainstream media should be excluded from the complaints regime in cases where there is an established complaints body with power to issue take-down orders, and rapidly if necessary, such as the Online Media Standards Authority. (This may incentivise the Press Council to acquire this power).

Consideration should be given to including some provision dealing with opinions. They are generally regarded as being more important to protect because they often contribute to a debate, and less harmful because the audience know they can disagree with them. This can be overstated - opinions expressed by influential people can be very harmful, and opinions do not always contribute to useful discussions. But “the extent to which the communication is recognisable as the expression of opinion” may be worth including in the clause 17(4) list.

Clause 17(5) seems partially to duplicate clause 6(2).

Procedural matters

Cases involving child and youth bullying should go to the Youth Court, not the ordinary District Court.

When the Act talks about “content hosts”, it should clarify whether it means site hosts or page administrators or both (clauses 17, 20).

Orders against third parties should only be made when those parties have a right to be advised of the application in advance and right to respond, except in exceptional circumstances.

Consideration should be given to what happens when two complainants complain about each other’s communications.

Clause 15(1) touches on this, but it should be made explicit that both parties have a right of appeal.


Clause 17(1): Tehre should be an additional remedy requiring deletion of material, and a remedy preventing publication of something that hasn’t yet been published.

Clause 17(2)(b): The power to unmask someone who’s anonymous should include a power to unmask someone who’s using a pseudonym.

Clause 17(2)(b): It should be made explicit that the court should consider the impact on free expression, both in the individual case, and on the flow of communications by anonymous people generally (which can be socially valuable) before ordering the release of the identity of an anonymous author. (It should also be made clearer to whom the identity is to be released. To the complainant? The judge? To the world?)

Clause 17(1)(e): Consideration should be given to elaborating on the right of reply. What if the proposed reply itself arguably breaches the principles? Are there limits on what topics can be raised or whether strong personal criticism can be included? How are disputes about the wording to be determined?

Clause 17(1)(f): I am not sure that an apology is a justified remedy. An ordered apology is not sincere. It doesn’t seem to me to add much to the rest of the remedies.

Clause 17(3)(a): Might this apply to the world at large? There seem to be arguments each way. It is certainly easy to imagine blog posts encouraging all readers to engage in harmful communications to someone. But the more natural reading of this clause is that it only applies to particular listed people. There seems to be no requirement that there be any evidence that those people be likely to engage in that conduct. In any event, the sorts of orders that can be made against a primary defendant (take-down, correction, rights or reply, unmasking anonymity, etc) do not seem to lend themselves to third parties, and certainly not if they ave not yet acted on the encouragement.

It should be made clear that the court can give orders even in relation to organisations outside NZ’s jurisdiction, and even when there is no identification of the wrongdoer. (Because such orders might be complied with by responsible websites).

3. Concluding comments

There should be provision for training of judges in the principles of the Bill and their interface with the Bill of Rights Act. This was organised in the UK before the Human Rights Act came into force, and meant that judges were equipped to deal with the new framework. I am concerned that District Court judges are not well equipped to deal with cases that raise complicated questions engaging free expression rights.

Most of my submissions ahve been directed to the complaints regime. I ahve also supported the tweaks to the Human Rights Act, Privacy Act, Harassment Act and Crimes Act. That leaves two other elements of the Bill: the new offence, and the liability of online content hosts.

The new offence (clause 19)

I have less to say about this. I accept that sending deliberately harmful communications about someone, which in fact do serious emotional harm, may be conduct that warrants criminalising. But I note that the threshold for this criminal offence, in some ways, seems lower than that for the complaints regime. There is no requirement that any principle be breached, so its reach is in that respect greater. Nor does the breach have to be “serious or repeated”. The list of contextual factors in clause 19(2) is shorter than that in clause 17(4), since it’s aimed at assessing whether harm has been caused, so it doesn’t address contextual factors that may render the communication significant. Nor does it explicitly require that any assessment be consistent with the Bill of Rights Act, which makes the reader wonder whether this omission is deliberate, since it is (twice) set out for the complaints regime. (On the other hand, the offence is narrower than the complaints regime in other respects: it only involves digitally sending or posting information about someone, it must be deliberately harmful, and the bar for “harm” may be set higher).

Much of what is published on the internet is “information, whether truthful or untruthful” about someone else. A significant amount of it may be said to cause that person serious emotional distress. A news story about a funeral or accident, for example. A piece of critical investigative journalism. A critical blog post. Coverage of a court case. Tweets about Charlotte Dawson. It may be thought that these are not deliberately harmful. But the criminal law can treat as intentional something that is done with foresight of consequences, even if those consequences weren’t the motivation for the action.

The offence essentially criminalises (among other things) deliberate defamations and privacy invasions. But it does not provide any of the defences that constrain those torts, such as honest opinion or legitimate public concern. The law of tort has struck a careful balance between speech and the harms caused by speech. This provision seems unnuanced.

I am concerned that the offence as drafted is too wide.

Online content host liability (clause 20)

I note that on its face, this seems to create a general “safe harbour” regime for ISPs and other content hosts. That is, it is not restricted to preventing liability arising under the Bill’s complaints regime or its new offence. It would also apply to other civil or criminal liability, including defamation, invasion of privacy, and breach of confidence. This conclusion is strengthened by the specific exclusion of copyright breaches in clause 20(6). If so, this seems a very significant provision.

In general, I support the creation of a general safe harbour provision, where accompanied by requirements on the host to behave responsibly, if it does not impose unworkable burdens on ISPs, and balances the rights of authors. I make the following observations:

It is not clear to me whether content hosts include, for example, bloggers that hosts comments threads, or mainstream media sites that host bloggers but don’t edit them. The definition seems to cover them. This should be clarified.

It creates a powerful incentive for the content host to remove material upon receipt of a complaint. It is the easiest thing for them to do. They may well penalise speech that isn’t unlawful at all.

What is threshold for a complaint? It seems extraordinarily low. The complaint can allege unlawfulness, but need not do so. It can merely allege that the hosted material “ought to be taken down because it is harmful or otherwise objectionable”. It does not even have to allege that the the content breaches a communications principle (which itself would be a low threshold, given that the communications principles do not themselves create legal obligations, and can only be used as stepping stones to court orders that must pass other thresholds). This seems too low, and open to abuse by complainants. I think they should have to allege that a law has been broken, and not even merely a communications principle.

I welcome the provision that requires complainants to identify the precise material they challenge, and explain why they think it is unlawful (or harmful/objectionable).

The requirement to take “reasonable steps” carries a lot of water in this provision. If an ISP concludes in good faith, but wrongly, that the post complained about doesn’t break the law, and so can remain up, is that taking “reasonable steps”? I think it should be.

There seems to be no requirement for the author of the material to be informed about these complaints, or given a right to challenge them, or any process by which the author can argue that the content is not unlawful, harmful or objectionable. There should be a mechanism to challenge them, but one that does not involve the ISP making a ruling on legality.

The Bill doesn’t say, but does create an argument, that any content host that does not respond to a complaint under this section thereby becomes liable for the content it allows to remain up. I am inclined to think that it should be made clear that there is no such presumption, which would allow ISPs and their ilk to rely on the developing law relating to when they can be regarded as publishers.

Topics: General, Internet issues, NZ Bill of Rights Act | 11 Comments »

Constitution, reviewed

December 5, 2013

To all those people who insistend that the government’s constitutional consideration was a stalking horse for formally entrenching the Treaty of Waitangi and racial bias into our constitution: time to start wiping the egg off your face. I’m looking at you, Chris Trotter and Winston Peters and John Ansell and the folk at the Independent Constitutional Review. And please don’t pretend that it was only your brave voices that stopped the constitutional advisory panel from recommending it. It was never on the cards.

Topics: General | No Comments »

Is Whale Oil a journalist?

December 1, 2013

More specifically, is Cameron Slater entitled to the same privilege to protect sources that other journalists have?

As the NZ Herald reports, the owner/operator/author of NZ’s most widely read blog is being sued for defamation. The plaintiff has formally asked him whether he knows the name of his source. (You might have thought that the answer to this might simply be “yes”. But I guess there’s an obvious follow-up). Slater has refused to answer on the grounds that he is a journalist, writing for a news medium, and therefore does not need to reveal his source. This rule is contained in s68 of the Evidence Act 2006.

Note a couple of things. First, in order to get this source protection, Slater has to show that his blog is a “medium for the dissemination to the public or a section of the public of news and observations on news.”

Second, even if he is a journalist, that doesn’t guarantee that he won’t be ordered to reveal his source(s). The judge [update: note that this must be a High Court judge] can order him to identify his source on the grounds that the public interest in disclosure outweighs the negative impact on the source and the general impact on the flow of information to journalists. This rule applies to all journalists.

Anyway, Slater claims this prima facie right to protect his source. But the judge ruled that he doesn’t even get that. This is because:

Whale Oil is a blog site. It is not a news medium within the definition of s68… of the Evidence Act. It is not a means for the dissemination to the public or a section of the public of news and observation on news.

The judge gives very little reason for this conclusion. It seems a very questionable one. Whatever you think of WhaleOil, it’s hard to deny that he breaks news stories, and that he writes commentary on news. When you factor in the requirement that the courts are supposed to have regard to rights of freedom of expression under the Bill of Rights Act when interpreting statutes - and there’s a respectable argument that protecting sources facilitates the flow of important information - then there seems a powerful argument that this section ought to be construed widely enough to encompass at least some bloggers.

The judge cites a Law Commission report in support of his conclusion that what bloggers do isn’t news. The Commission pointed out that bloggers were often highly partisan, could be offensive and abusive, and weren’t accountable to anybody.

There are several problems with this. One is that the judge was in fact quoting from a Law Commission issues paper, not its final report.

Another is that the Law Commission in its final report had some complimentary things to say about bloggers: (2013 final report on News Media meeting New Media (p61, para 3.39):

There is ample evidence of the profound and growing influence new media are having both on mainstream media’s culture and content. As we discussed in chapter 2 of our Issues Paper, there are well over 200 current affairs bloggers in New Zealand, some of which have become a rich alternative source of information and commentary. Although primarily a forum for the expression of robust opinion, a number of high profile blog sites are used to break news. Blogger are also increasingly taking on a watch dog role over mainstream media, critiquing their performance and alerting the public to their alleged failures.

Another is that the Law Commission was discussing whether bloggers should be included in a new regulatory regime for the media, not how the Evidence Act should be interpreted. Its recommendations have been rejected by the government.

Yet another problem is that the Commission’s inclination was to allow bloggers to be included in the regime, on the grounds that it made no sense to distinguish between mainstream media and bloggers when both were serving the interests of free speech. It would have treated anyone as media who regularly published news and opinion of current value to a public audience, providing they agreed to be bound by an ethics regime. This last element is problematic for Cameron Slater’s case. But in the end the thrust of the report is the need to recognise the valuable news-role played by at least some bloggers.

So in the end, the judge’s conclusion is simply not convincing.

It gets worse though. The judge goes on to consider the High Court rules. He cites a rule that says a defamation defendant doesn’t have to disclose sources before trial when pleading honest opinion or privilege. The judge says this rule doesn’t apply because Cameron Slater didn’t argue a defence of “honest opinion on a matter of public interest.” This reasoning seems particularly weird to me. The defence of honest opinion no longer requires  that the comment be on a matter of public interest. He doesn’t need to plead public interest: it would be superfluous. It seems to me that this rule surely applies to a defendant who pleads honest opinion, which Slater did. So I think the judge is wrong there too.

What’s more, there’s also a rule called “the Newspaper rule” that the judge doesn’t discuss that allows  media defamation defendants to refuse to disclose sources before trial – Cameron Slater could have tried to invoke that too, but it’s not clear he did.

Where does this leave us? I’m not entirely sure. Is the judge saying that no bloggers can invoke the Evidence Act to protect sources? That’s certainly one way of reading the decision, since he doesn’t go into any real detail about the Whale Oil blog.

But another way of reading it is that it’s only bloggers like Slater who aren’t really providing news who don’t get the source protection privilege. Other bloggers may be.

In any event, bloggers who blog for mainstream news outlets seem to be covered by the source protection rule, since the outlet they’re writing for is purveying news and observations on news.

Apparently, Slater is appealing. (Now, there’s a sentence I didn’t ever expect to write). I have said that I don’t think the judge’s reasons are convincing. But that doesn’t necessarily mean that the High Court judge will overturn the decision. There is a still an argument to be made that to provide “news” requires some degree of adherence to traditional journalistic ethics. At heart, this requires some commitment to an ethic of verification. Perhaps it also requires some element of fairness and balance. A readiness to correct errors. A respect for privacy. A sense of responsibility. More formally, a line might be drawn around media that are subject to complaints regimes such as the Broadcasting Standards regime and the Press Council regime. But that would exclude all the bloggers.

Anyway, it could be argued that Cameron Slater doesn’t satisfy this requirement, so that whatever he produces on WhaleOil, it can’t be said to be “news”. This may be attractive to a judge on appeal, given that otherwise, essentially anyone can set themselves up as a news blogger and automatically gain the power to allow sources to defame people with impunity, and to deny plaintiffs the right to assess the degree of care and responsibility taken by the blogger in preparing the story. The identity of a source may be relevant to at least a couple of defamation defences. (Of course, as Graeme notes in the comments, the blogger can still be sued for defamation. But the source may get away with it, as well as getting away with any breaches of the law that may be involved in the disclosure of the information, such as a breach of employment obligations of confidentiality).

Another way of putting this: if the blogger’s delivery of information to the public is so steeped in ideology, invective and irresponsibility, then there’s surely a case for saying it’s not “news”.

But that argument that no slam dunk. And it creates a difficult line for the courts to draw. Which blogs are delivering “news”, and how can you tell?

Still, remember that even if bloggers are given this right, a judge can still order the blogger (or any other journalist) to disclose a source.

A final thing worth bearing in mind. Even if the worst happens for bloggers and none of them is allowed this privilege, I’m not sure the sky will fall. They will argue that this will create a huge chilling effect and their sources will dry up. The media also make this argument. But there’s very little evidence that it’s true. People have lots of reasons for talking to journalists and bloggers. Defamation cases are rare. Some journalists (and presumably bloggers) are prepared to go to jail for contempt rather than comply with a court order to name a source. So sources may well not be familiar with the law, and even if they are, they may be willing to run the risk.

My prediction is that even if WhaleOil loses this case, it will pretty much be business as usual for most bloggers.

Topics: Defamation, General, Media ethics, NZ Bill of Rights Act, Protecting sources | 16 Comments »

Privacy scholarship

November 1, 2013

My colleague at VUW’s law school, Dr Nicole Moreham, asked me to post this:

A scholarship is available for a student wishing to complete an LLM by thesis on the law of privacy at Victoria University of Wellington in New Zealand.  The thesis will be supervised by Dr Nicole Moreham (co-editor of Tugenhat & Christie: The Law of Privacy and the Media (2nd ed)).  Study must commence in either March or July 2014.

Scholarship and thesis details

The successful application will be required to complete a 50,000 word thesis (including footnotes and bibliography) and LAWS 581, an advanced legal study course.  Thesis topics are agreed in consultation with the supervisor but might include research into the protection of privacy in English, Commonwealth or US common law; the concept of privacy in search and seizure cases; press regulation; data protection; or privacy in Article 8 of the European Convention on Human Rights.

The successful applicant will have a strong academic record – he or she will be expected to have the equivalent of first class honours at undergraduate level.  An undergraduate law degree is expected but not required.  Both New Zealand and international graduates are eligible to apply.  The stipend covers living expenses (up to NZ $16,000) and tuition fees (up to approximately NZ $7,300 ie full domestic fees or a proportion of international fees).

The closing date for applications is 22 November 2013.  If a suitable candidate is not found, the scholarship will be re-advertised after that date.  Scholarships will also be available in subsequent years.

Application forms and further information

For further information and application forms, please click on the link below:

About Dr Nicole Moreham

Dr Nicole Moreham is an Associate Professor at the Faculty of Law, Victoria University of Wellington.  As well as being co-editor of and contributor to The Law of Privacy and the Media (2nd ed, Oxford University Press, 2011, 952 pp), she has published numerous articles on the protection of privacy in England and Wales, New Zealand, and Europe. Her other research interests include the law of tort and media law.  Before joining the Victoria Faculty in 2006, Dr Moreham spent seven years at Gonville and Caius College, University of Cambridge; first as an LLM and PhD student and then as a Fellow and Lecturer in Law.  In 2011, Dr Moreham was awarded a Rutherford Discovery Fellowship by the Royal Society of New Zealand which is providing the funding for this scholarship.

About Law at Victoria University of Wellington

The Faculty of Law at Victoria University of Wellington is based in an historic building opposite New Zealand’s Parliament Buildings and the Supreme Court.   It was judged the best law faculty in New Zealand in the 2011 PBRF (Performance Based Research Funding) evaluation. It is also ranked 19th in the 2013 QS World University Rankings Survey, making it the only faculty in New Zealand to reach the top 20.

Topics: General | No Comments »

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