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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 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 »

Can Len Brown sue for invasion of privacy?

October 17, 2013

It’s always a bit dangerous to speculate on the legal significance of facts when a story is still emerging and not all those facts have come out. And the tort of invasion of privacy is still itself emerging from the misty depths of New Zealand’s common law, so its outline is not entirely clear either.

But I am inclined to think that Auckland mayor Len Brown has a strong case if he wants to sue Cameron Slater, Stephen Cook, and perhaps even Bevan Chuang, for invasion of his privacy in their reporting about his affair with Chuang.

I’m not saying that he should sue, or that he’s likely to. Just that the elements of a claim are probably made out.

Brown can make out a claim if he can demonstrate the existence of private facts in which he has a reasonable expectation of privacy, and a publication of those facts that is highly offensive to an objective reasonable person. There is a defence if the facts are matters of legitimate public concern.

I imagine some of you are poised over the keyboard, ready to disagree with me already. Hold your horses. The guts of my argument is a fairly narrow one: Brown probably could not succeed in a case alleging that revealing the fact of his affair was a breach of his privacy. So Whale Oil could have told that story. But I think Brown could succeed in arguing that the sordid and salacious detail in the original story on Whale Oil’s blog breached his privacy. In short, this is because it was unnecessary to provide that level of detail to serve the public interest.

I’m not going to list all the details I’m talking about. You can read them here if you must. But they go well beyond the basic facts of the affair and get into a host of sexual particulars.

Hosking v Runting (and a swag of other cases, mostly in the UK) make it clear that we generally have a reasonable expectation of privacy in relation to sexual matters, even if we are public figures. I don’t think it will be difficult to establish that it was highly offensive to publish them. The real issue here is whether there is a defence of legitimate public concern.

As Hosking v Runting makes clear, the more invasive the privacy intrusion, the greater the legitimate public concern will need to be to justify the publication.

There are those who say that what the mayor gets up to in his personal life, including any extra-marital affairs, is nobody’s business but his own. It isn’t a matter of legitimate public concern. Lots of people have affairs. It doesn’t reflect on their ability to fulfil their public responsibilities. On that view, there’s no public interest defence here. And I have to say, I find Whale Oil’s initial justification (Brown used Council resources! He used his family in his campaign, the hypocrite!) less than compelling.

Other facts may emerge about whether there was any real abuse of power here. But anyway, I’m in the camp that says when an elected official is prepared to betray and deceive his wife and family in a fundamental way, then that says something about his character that has relevance for the electorate. Or at least, reasonable members of the electorate are entitled to think so.

So I think there is a defence of legitimate public concern for a story that reveals the affair, and I’m guessing a court would say so too.

But this story went much further. And our privacy cases in the courts and the Broadcasting Standards Authority (which applies very similar principles) make it clear that it’s the invasive material that needs to be in the public interest. In other words, there needs to be a connection between the sordid detail and the public interest that’s being claimed. If you can serve the same public interest without publishing all the invasive material, then you shouldn’t include the detail. On the other hand, if the sordid detail is necessary to tell the story, then it’s covered by the defence.

So that’s my point. Most of the detail in the original story was simply unnecessary to serve the public interest. There was, I think, legitimate public concern in knowing that Brown was having an affair, and probably the central facts about it. But not the parade of grubby particulars.

There are some counter-arguments. The courts have been willing to provide some latitude to journalists for the way they tell their stories. They allow a degree of colour. They don’t want to be censoring journalists’ editorial decisions. But there are three problems here. First, this latitude assumes a responsible editorial process informed by a sense of ethics. I don’t think those things can be assumed here. That is, I doubt a court is going to be as willing to respect the editorial decisions of a blogger like Cameron Slater.

The second is that this story goes far beyond any latitude I’d expect a court to grant.

The third is that this is very invasive story. The public interest defence will accordingly need to be particularly compelling and watertight. It’s not.

Messrs Oil and Cook could also argue that they needed to include that level of detail to demonstrate the truth of the allegations. These showed that their source’s memory was detailed and likely to be accurate. This was necessary to guard against a potential defamation threat.

But this doesn’t really work either. By all means, they should gather as much detail as they can to ensure that the story stands up. But that doesn’t mean they need to print it all. What’s more, I can imagine an awful lot more detail (what was his favourite tie? what did he order when you ate at X restaurant? did he take a phone call when you were alone with him in the office) that would establish veracity without wallowing in salacious detail.

There’s another interesting issue. Chuang was telling her story. Why are these regarded as his private facts? This does provide a little more leeway to argue that there’s no liability here. But not much. Brown still has a strong case that there was an implicit agreement that the dtails of their affair were to remain secret. Incidentally, it’s an implicit agreement that Chuang could rely on if the shoe was on the other foot and Brown was exposing unflattering details of her sex life.

I’m not sure what Chuang was told when she signed that affidavit about how much of it would be published. But assuming she understood that it was all going to be used, then Brown probably also has a good case against her for invasion of privacy and for breach of confidence.

Like I say, this isn’t likely to happen. But what’s particularly interesting, I think, is that the mainstream media have drawn pretty much exactly the line I’m talking about here. They have reported the fact of the affair. They have reported its broad outlines. They have included particular details when those seem to have some public interest justification. But they’ve stopped there.

I wonder whether any of them would have published at all if Whale Oil hadn’t broken the story for them. I’m inclined to regard it as a good thing that our media are not so rapacious that I can genuinely wonder about that.

Topics: Privacy tort | No Comments »

Editorials undefended against defamation suits?

October 8, 2013

Here’s a surprising thing about the Defamation Act 1992. It removes the right for editorials to argue honest opinion (what used to be called “fair comment”).

You ought to be sceptical about that claim. It sounds absurd. Editorials are the very epitome of fair comment/honest opinion. They are written on the assumption that the defence applies. Otherwise, editorials that express critical views of people (and that’s 95% of editorials) may be exposed to defamation lawsuits.

So how do I reach the conclusion that this defence isn’t available? The Defamation Act reformed the law of honest opinion (for one thing, it replaced the name “fair comment”). Here’s the main bit, section 10:

In any proceedings for defamation in respect of matter that includes or consists of an expression of opinion, a defence of honest opinion by a defendant who is not the author of the matter containing the opinion shall fail unless,—

(a) where the author of the matter containing the opinion was, at the time of the publication of that matter, an employee or agent of the defendant, the defendant proves that—

(i) the opinion, in its context and in the circumstances of the publication of the matter that is the subject of the proceedings, did not purport to be the opinion of the defendant; and

(ii) the defendant believed that the opinion was the genuine opinion of the author of the matter containing the opinion:

(b) where the author of the matter containing the opinion was not an employee or agent of the defendant at the time of the publication of that matter, the defendant proves that—

(i) the opinion, in its context and in the circumstances of the publication of the matter that is the subject of the proceedings, did not purport to be the opinion of the defendant or of any employee or agent of the defendant; and

(ii) the defendant had no reasonable cause to believe that the opinion was not the genuine opinion of the author of the matter containing the opinion.

Okay. Boring. What this does is create a tiered system of honest opinion defences. If you are sued for something you wrote yourself, you need to show that it’s your “genuine opinion.”

If you’re publishing something written by your employee or agent, you need to show that you believe it’s his or her genuine opinion.

If you’re publishing something written by someone else (a letter to the editor, for example, or a comment on one of your blog posts, or a quote from a source), you have to show that you have no reason to believe that it’s not his or her genuine opinion.

So far, so good. But notice the fine print. For the last two categories, you also have to show that it doesn’t purport to be your opinion. Ordinarily, that will be easy. The op-ed contributor has a byline. The letter to editor is signed. The quote is attributed to a source. No problems. A newspaper gets sued, and it will readily be able to show it had no reason to doubt the genuineness of those people, and that no-one can be confused about whose opinion is being expressed.

Now think about editorials. They are written by employees of the newspaper. (They are often written at the direction of an editorial board). Sometimes, they’ll be written by contractors. Are you starting to see where I’m going here?

Editorials purport to be the opinion of the paper. That’s the whole point. They are unsigned. They often run under the masthead. They are exactly the paper’s opinion.

Now look again at the requirements for an honest opinion defence. Assume a newspaper is sued for defamation over an editorial. Assume one of the newspaper’s employees wrote that editorial. The paper may be able to prove that it believed the editorial was the genuine opinion of the author. (Actually, right there is a problem too: if a staff editorial writer is instructed by the paper’s editorial board to take a particular line, can the paper say it believed the piece to be the writer’s genuine opinion? What if it’s clear that the author actually disagrees with the party line?)

But let’s say that the paper can show it’s the genuine opinion of the employee who wrote the editorial. There’s a bigger problem. The paper then has to show that the editorial didn’t purport to be its opinion. But it can’t do that. Editorials do purport to be the newspaper’s opinion.

The Defamation Act says that the defence of honest opinon “shall fail” unless these elements can be proved. And I don’t think they can.

Now, I accept that this is a weird outcome. I accept that courts will strain themselves to find a way to allow a newspaper to have a defence of honest opinion for its editorials.

The best I can come up with is that the paper will argue that it falls into the first category above. That is: the paper is the author of the editorial. It will put its editor on the stand, or the head of the editorial board, and that person will speak for the paper and say “this is the paper’s genuine opinion.”

Like I say, that’s the best I can do. But it’s pretty problematic. Because it involves treating the paper as the “author”, and this interpretation is directly contradicted in the very next subsection of the Defamation Act. That’s the one that distinguishes between defendants who are the author, and defendants that hire someone else to be the author. And that seems to be precisely what’s happening with the editorial.

As far as I know, my theory is entirely untested. No one has raised it in the courts. But if someone were to try, the result might give a bunch of newspapers a fright.

Topics: Defamation | 6 Comments »

Defamation ruling not very appealing

October 8, 2013

Reading the Court of Appeal’s decision in Smith v Dooley [2013] NZCA 428, you get the feeling that the High Court blundered in all the ways it’s possible to blunder in a defamation case. Lang J couldn’t even correctly work out what the words meant. And even if he’d got that right, he couldn’t tell that they were actually true. Qualified privilege? He said the defence wasn’t available, but it was. He even botched the question of what the remedy should be.

Lang J granted Dooley a declaration that he had been defamed, and an award of costs (he didn’t seek damages). The Court of Appeal overturned that. Now, six years after the publication of the press release he said defamed him,  Dooley is left with nothing except, I expect, a very large costs bill.

What’s going on here? An inept High Court judgment? Just a series of bad calls? Serious disagreement about legal principle? Or an overweening Court of Appeal?

The facts are rather complicated. But they revolve around an email that Dooley didn’t know about.

Dooley was the chair of Development West Coast, a charitable trust charged with managing a big pool of government money to foster regional economic development. There was vigorous disagreement among trustees over various issues. Trustee elections were looming.  Smith was running for election to the trust, and had been an outspoken critic of Dooley.

In the middle of all this, the DWC’s chief executive sent a controversial email to Ngai Tahu. Ngai Tahu appointed one of the trustees (they weren’t all elected). The email advised Ngai Tahu to watch out for “googlies” in the appointment process - thrown by people trying to oust Dooley.

Dooley didn’t know about this email. But some of the other trustees got wind of it. One asked Dooley whether the trust had written to Ngai Tahu to lobby for the retention of the existing appointee.  Dooley, in turn, asked the chief executive and Ngai Tahu. Both denied receiving any email of that type. Strictly speaking this was accurate. Dooley told the trustees there had been no such email.

The trustee pressed on, asking whether there had been any communication “about the Ngai Tahu appointee to the trust”. Dooley said again there was no such letter. This was arguably inaccurate. The email really was about the appointment of the trust’s appointee. But Dooley didn’t know about it.

There’s more to the story, but the upshot is that Smith learned about the email and the correspondence, and (having discussed it with a trustee) made comment to the media. He said: “The correspondence amounts to serious interference with the electoral process. I find it disturbing that the CEO and Chair denied its existence. Can the (future) trustees have any faith that the CEO or Chair will not be misleading them on matters of significance”? He went on to criticise the CEO for sending the email.

Dooley sued. The first issue was about the meaning of this statement. Did it suggest that Dooley deliberately misled the trust about the email? Lang J said it must do. Smith could only be “disturbed” by the denial if it was a lie.

The Court of Appeal disagreed. It said what Smith found disturbing was merely that Dooley didn’t know about the email, when he should have. Smith said in evidence that’s what he meant. The rest of the press release was criticising the CEO, the judges noted.

I don’t buy this. The judges accept that Smith’s intentions were irrelevant. The question is what ordinary, fair-minded readers would have thought. There’s a powerful argument that they would have thought: “Hmmm. The Chair denied the existence of the email. This bloke Smith says that’s disturbing. Then he says maybe the Chair can’t be trusted not to mislead the trust in future. He must be saying the Chair knew about the email and lied about it.” That’s not because this is the only logical conclusion. It’s because it’s what people will think when they read it.

The next issue was truth. Lang J found that it wasn’t true: Dooley didn’t know about the email after all. The Court of Appeal disagreed again. Even if the meaning was that Dooley had deliberately misled trustees about the email, it was true, they said. He did this by failing to tell the trustees about the email for several days after he found out about it. He didn’t put the record straight when he had the opportunity to.

I’m inclined to think there’s a material difference between a dishonest denial that an email has been sent (which was incidentally how the case was pleaded), and a failure to immediately correct the record (which wasn’t). So I’d side with Lang J again, though perhaps it’s a line call.

The really interesting issue, I think, was qualified privilege. Should it extend to elected officials who aren’t MPs? In what circumstances should it be defeated by improper motivations or failure to act responsibly? Lang J indicated that he thought this defence should apply to criticisms of local body politicians too. This seems like a no-brainer to me. It’s annoying that the Court of Appeal didn’t endorse that observation.

For Lang J, this defence failed because Smith was primarily motivated by personal animosity toward Dooley. He relied mainly on a parade of letters to the editor written by Smith, criticising Dooley. But these were all raising serious political points, and could simply be seen as robust political rhetoric. I think it was a serious error to suggest that this was evidence of the sort of ill-will that defeats a qualified privilege defence.

He also thought Smith acted irresponsibly by failing to examine the emails himself. That would have made him realise that Dooley genuinely didn’t know about the email. I think this is questionable. I doubt he would have believed what Dooley said in his emails. And Smith had phoned a trustee to discuss his allegations before he released his press release.

The Court of Appeal made similar points. It found the qualified privilege defence was made out. I have to agree.

The final issue concerned remedies. Lang J granted the declaration sought. The Court of Appeal felt that would not have been appropriate, even had the defamation been proved. The remedy is discretionary, the judges noted. They said there was a long and not adequately explained delay before filing proceedings (though they refer to a failed settlement agreement that suggests that most of the delay was explained).

I’m mystified by this. A refusal to grant a declaration, once a defamation has been made out, where a plaintiff has foregone a claim for damages and focused on clearing his name, even if there have been large delays, strikes me as churlish and unfair.

So there’s my verdict: High Court judge unfairly maligned. But the Court of Appeal was ultimately justified in overturning the decision on one point.

I think this case also points up a need for possible reform. If a plaintiff only seeks a declaration, why should qualified privilege be a defence?

Topics: Defamation | No Comments »

No one-stop media regulator

October 2, 2013

The good news, for the Law Commission: the government thinks the Commission’s report on media regulation -  recommending the establishment of a one-stop media complaints body serving print, broadcast and online platforms - is “excellent”.

The bad news: the government has rejected that recommendation.

I summarised the Commission’s proposal in an earlier post. In short, the idea was for the creation of an independent media regulator - the News Media Standards Authority - that could draw up codes of ethics and receive complaints about news media misbehaviour. There would be a single port of call for complainants whatever the delivery platform, replacing the increasingly unsustainable mishmash of existing complaints bodies - one for broadcasting, one for print, and a new one for online broadcasters.

Membership would be voluntary. Anyone regularly delivering news or news commentary to a public audience could join (including some bloggers). They would then receive various legal privileges, such as rights of access when courts  were closed, and source protection under the Evidence Act.

This proposal was generally reasonably warmly received by the media.

Why did the government reject it? It gives a series of reasons. There’s no crisis of confidence in the media here. The proposal would require “extensive legislative change”. Some media might not join. It would still leave the problematic category of “entertainment” programmes. Are we really ready to let go of statutory control of broadcasting? ”Careful consideration” is needed before stripping non-members of rights such as immunity from the Privacy Act. We’re regulating about harmful cyber communications shortly - let’s see how that works out. And let’s wait and see what other countries do.

There’s room for some disagreement here. In particular, the government several times talks about careful consideration being needed before significant changes are made. This is rather insulting to the Law Commission, whose report contained oodles of careful consideration of the changes they recommended.

What’s more it’s not entirely clear that the government itself has carefully considered the Commission’s recommendations. Twice the government says that the Commission proposed doing away with the balance standard. It didn’t (though it did suggest that balance was a standard which may not be needed for some news formats, such as blogging).

And the legislative changes recommended (essentially some tweaks to the definition of news media where it appears on the statute book, and the repeal of a big chunk of the Broadcasting Act) are not particularly extensive ones. It’s true that if some of the big media organisations did not join the NMSA, then the regime would probably be doomed. But given that it’s essentially a self-regulatory regime, and would be likely to be replaced with a full-blown statutory one if it didn’t work out, this would involve some spectacular foot-shooting by the media.

Finally, the Commission spends some time making the case that the distinction between news and entertainment, while tricky (consider, for example, reality television), is ultimately workable.

But my main objection to the government’s response is how short-sighted it is. Our existing patchwork system is rapidly passing its use-by date. 

At the moment, it’s really not clear who counts as the news media for the purposes, for example, of the Privacy Act, the Evidence Act, and court access privileges. That’s likely to lead to inconsistencies and confusion and probably litigation. Why not clear up now whether reality TV producers are subject to the Privacy Act. Why not clarify who gets exemptions from Fair Trading Act obligations concerning misleading and deceptive conduct? One pothole waiting for an unwary traveller: the fact that the Fair Trading Act’s exemption for the media may not apply to online publications (is Stuff a “periodical publication published at intervals not exceeding 40 days”?), and plainly doesn’t apply to downloaded news clips and programmes - because these are not “broadcasts” under the Broadcasting Act.

Are the Press Council’s rules really geared to the increasing amount of video newspapers publish online? There’s no power to order a takedown of, for example, footage of a child being bullied.

That raises another point. The Press Council’s standards differ from the Broadcasting Standards Authority’s ones. The Online Media Standards Authority’s differ again. If identical videos are posted on a newspaper’s website, a broadcaster’s website, and broadcast on television, complainants may have to go to different bodies, make different arguments, and receive different outcomes and remedies. That seems insane.

Still, it now seems that the media will be subject to the new cyber-harrassment regime. The Commission had proposed that NMSA members be excluded. Being subject to that regime may come as a shock to the media. But perhaps they will be exempted if they belong to one or more of the existing regimes.

We also have the rather silly situation where Sky TV is subject to a significantly more lenient set of standards in its news and current affairs shows than TVNZ or TV3.

What about the role of the Bill of Rights? NMSA would presumably have led to a fairly rigorous and standardised approach to free expression issues. At the moment, the BSA’s approach differs markedly from the Press Council’s.

The complaints  procedures differ too. For instance, you can’t appeal a Press Council decision, but you can appeal a BSA decision to the courts, and OMSA has  its own appeal body. The Press Council can insist that you forego your right to sue as a precondition for hearing your complaint. The BSA can’t. The Press Council now conducts informal attempts to mediate complaints. The BSA doesn’t.

And currently, there is no standards regime for bloggers to sign up to.

What about mobile phones? When streaming news and current affairs content, they are probably vehicles for broadcasts. Should the originators of such content be subject to broadcasting standards?

In short, the proliferation of platforms is set to create more and more problems for complainants, and the differences between them look increasingly unjustified, confusing, or just silly. But the government hasn’t mentioned any of this in its response to the Law Commission. Instead, it has passed up an opportunity to fix up what even the media agrees is an untenable system. That strikes me as irresponsible.

Topics: Broadcasting Standards Authority, Future of journalism, Internet issues, Media ethics, Press Council | No Comments »

Sign up!

October 2, 2013

Like many others, I’m worried that NZ is about to sign up to a Treaty (the Trans-Pacific Partnership Agreement) that looks like it will have wide-ranging implications for our own laws - our ability to regulate genetically modified products, intellectual property, tobacco and alcohol, the flow of capital, the environment, the purchase of medicines, and more.

What’s more, it looks set to contain dispute resolution systems like the ones that have allowed huge corporations to sue governments for enormous sums for passing laws they claim breach treaty obligations.

There’s plenty of reason to be worried about what this might mean for us. But before we even get there, there’s another battle to fight: getting access to the text before it is finalised and signed by our government.

Yes, it is true that this might create annoying distractions for those charged with negotiating the treaty. Yes, the clamour of objections might make it harder to reach agreement. Some of the debate may be misinformed. Pressure might be brought to bear to change it. I’m sure this will be irritating to the governments trying to reach agreement on the text.

It’s called democracy.

I’ve signed the petition calling for the text to be released so that it can be publicly debated before the governments lock themselves into a version that will be almost impossible to shift. I urge you to do so too.

Topics: General | No Comments »

Nipples of discontent

October 1, 2013

It seems the whole of NZ’s media are carrying stories of the “nipple ban”. The stories say the Commercial Approvals Bureau has denied the NZ Breast Cancer Foundation permission to run an ad about breast cancer because it features nudity.

Reading through the storms of readers’ comments, I’m encouraged to find that most people think this is daffy. (Take a look at the Scottish ad that the NZ Breast Cancer Foundation was planning to copy and decide for yourself. They key point is that the pictures of breasts are largely used to illustrate symptoms of breast cancer - and the ad reportedly has triggered a huge increase in breast cancer awareness in Scotland).

Some are decrying New Zealand’s “nanny state” for this piece of censorship. But that’s not really true, on either count. The Commercial Approvals Bureau (CAB) is not a government agency. And this wasn’t a ban.

The CAB is an industry organisation that acts as a filter for broadcast ads. It’s a collaborative effort by broadcasters to protect the integrity of broadcast advertising by heading off potential breaches of advertising codes (and indeed the broadcasters’ own guidelines) before they are broadcast.

They told me that the Foundation emailed them a link to the Scottish ad, and asked whether it would be okay to screen something like that here. CAB replied that nudity was regarded as a breach of the advertising code, so they probably wouldn’t approve it. They say the Foundation never actually submitted an ad, or came back to argue the toss. The CAB was simply providing advice. It doesn’t have power to issue bans. They’ve only ever refused permission for one ad (though they have required changes to others, and they will only approve late-night scheduling for particularly edgy ads).

It’s true that the CAB doesn’t “ban” ads. But it does perform a gatekeeper function. The reality is that broadcasters are very unlikely to screen an ad that the CAB has not cleared, and will only screen it at times approved by CAB. It’s good that advertisers can get some guidance on standards, and broadcasters display some consistency in their ad decisions, and that problems can be headed off before money is wasted on expensive ads. But. It can mean that - as here - a piece of hasty and boilerplate guidance might rule out the production and screening of what would otherwise be an acceptable ad.

CAB tries to ensure that ads that would breach Advertising Codes aren’t made, but it doesn’t always get it right. The Advertising Standards Complaints Board sometimes upholds complaints about ads that have been cleared by CAB. And we could expect that it might sometimes not have upheld complaints about ads that CAB has nixed.

I expect that would be rare. CAB does not want to hold back ads unless it thinks they are pretty clear breaches. Here, it applied a rule of thumb that nudity wasn’t acceptable in ads. I’m not at all sure that the ASCB would have dinged a version of the Scottish ad, if it were broadcast here. But I’m not confident that they wouldn’t have. The code requires that ads are not indecent or offensive. I’d like to think that this one really isn’t, though I’m sure there are those who’d disagree. This is why I’m heartened by the almost universal feedback in the comments threads that restricting this ad is unjustified.

If anyone’s taking notice, the Bill of Rights would support this conclusion. The speech  is plainly very valuable, so compelling reasons are needed to restrict it. This is not gratuitous nudity. I suspect that both the ASCB and the CAB are performing public functions, and are therefore subject to the Bill of Rights.

Great publicity for the Foundation, anyway.

Topics: General | No Comments »

What took us so long?

September 27, 2013

Great news that NZ has decided to join up to the Open Government Partnership, an international effort to increase government transparency.

It’s a bit odd that our PM made this announcement as a sort of a postscript to a press release about his chummy meeting with UK PM David Cameron - and essentially described our decision to join the Open Government Partnership as a favour to the UK:

At the request of the UK, New Zealand will formally express its intention to join the Open Government Partnership (OGP) later this year.

The UK is the current lead co‑chair of the OGP – a grouping of 58 countries and nine civil society organisations committed to transparent and open government, combatting corruption, and harnessing new technologies.

“The OGP’s goals are consistent with New Zealand values and with our goals for international economic and social development, and I was pleased the UK invited us to join,” Mr Key says.

Yes, thanks UK, for inviting us to join. Except that… we were invited to join a couple of years ago. We’ve been faffing around since then. 54 countries have already joined. It’s not as if it’s exclusive.

Why the delay? After all, our country actually does have a very good track record on transparency. And the National government has already issued its Declaration on Open and Transparent Government, which makes nice noises about actively releasing high value public data.

I suspect it has something to do with the obligations entailed. We’ll have to develop an action plan in consultation with civil society and then assess ourselves against our commitments. Then we’ll have to open ourselves to an independent assessment of our progress. This might involve some cost, and some potential… increases in transparency. I wonder which the government regards as the more problematic?

Might our reluctance also have something to do with embarassment at the government’s recent insulting rejection of nearly all of the Law Commission’s generally very sensible recommendations for improving our official information framework, including subjecting Parliament to the Official Information Act?

Here’s the analysis from MFAT (credit to an OIA request by Andrew Eccleston):

The question of New Zealand’s membership of the OGP is one of weighing the costs of engagement against the risks of domestic and international criticism should New Zealand’s absence become glaring.

Sigh. Is it too much to ask that our officials also factor in the possibility that greater transparency is a good thing for the country all by itself? That it might lead to greater accountability? Maybe even greater public participation? And more effective government? And at least a greater sense of public trust and confidence in government? That our existing law and culture around transparency are not perfect? That we might have something to learn from the sharing of experiences, ideas and evidence of best practices that  the OGP facilitates?

Topics: Official Information Act | No Comments »

My pick for best protest of the year

August 28, 2013

Take a bow Greenpeace.

Somehow Formula One has forced YouTube to take down the video with a copyright claim. Not at all sure how that works: the film is by Greenpeace.

Topics: Protest speech | No Comments »

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