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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 »

Vince Siemer and Supreme Court accuse each other of contempt

July 31, 2013

When Vince Siemer was charged with contempt for flagrantly breaching a court suppression order, he made a novel argument: he was upholding the rule of law.

The suppression order was made by Winkelmann J in the famous proceedings against the Urewera 18 relating to their alleged para-military exercises in the bush. Winkelmann J ruled that three of the defendants should be tried separately, and the remaining 15 should be tried by judge alone.

Winkelmann J suppressed her judgment – including any reporting of the result. She didn’t give any reasons, but she clearly intended to protect fair trial rights. Her decision discussed evidence that may have later been ruled inadmissible. No defence representative opposed the order.

Mr Siemer was outraged. For him, this decision denied most of the defendants their fundamental right to trial by jury. For him, it was a clear breach of the law, including the Bill of Rights Act. (In fact, it wasn’t a clear breach of the law, but Mr Siemer seems unburdened by the distinction between a decision that may be open to criticism and one that is an attack on the very foundations of justice so blatant and destructive of the rule of law that it can only be the product of corruption).

For Mr Siemer, the suppression of the judgment was also appalling. How could a decision to deny defendants a jury be secret? The suppression order could not be valid. So he breached it by publishing the whole judgment on his website. Or, to put it another way, he took it upon himself to resurrect the rule of law from the dark moratorium of illegality into which the chief judge had consigned it.

For this he was found to have committed a contempt of court, and sentenced to six weeks in jail. As Mr Siemer eloquently puts it, “I can show no better respect for the rule of law than contempt for the judges who pervert it.”

In the Supreme Court, his lawyers advanced a battery of arguments. The courts have no inherent power to make suppression orders against the world. Or if they do, that power has been superceded by the Criminal Justice Act. Or it is inconsistent with the Bill of Rights Act. Or at least, it should have been exercised consistently with the Bill of Rights Act, but wasn’t. And in any case, anyone charged with breaching a court order must be allowed to argue its invalidity as a defence.

The judges all agreed that the court does have inherent power to issue suppression orders that bind non-parties (in contrast to UK law), partly for the slightly unsatisfactory reason that this is the way we’ve always done it. But these suppression orders may only be issued when they can be clearly justified – such as when the order is temporary and is necessary to avert a real risk to the fairness of a trial. (The majority found that this power had not been gazumped by legislation.)

This immediately presents a very interesting, and one would have thought, intensely relevant question. Did Winkelmann J’s order make the grade? Was it justified in these terms? It was designed to protect fair trial rights. But was it necessary? Would publication have created a real risk to the defendants’ fair trial rights?

The answer is fairly clear: it wasn’t. Or at least, it was plainly too wide for it to be wholly justified. The judge herself accepted this when the Crown applied twelve days later for it to be narrowed. She ruled that at least the result of her decision could be published. There was surely no ground for that ever to be suppressed. But she maintained the suppression of all of her reasoning. Was that justified? Her discussion of some of the evidence may well have created the possibility of prejudice (perhaps justifying suppression of portions of the judgment), but it is very difficult to see why it was necessary to suppress the whole judgment, particularly as there was surely strong public interest in the reasoning behind her decision to deny most of the defendants a jury trial.

But the Supreme Court didn’t find it necessary to assess the validity of the order. The majority found that, once the order was made by a judge who had power to make it, the courts will generally not allow someone charged with contempt to mount a defence that the order was invalid.

There are certainly powerful arguments to deny such a collateral challenge. We can’t have people breaching orders willy-nilly because they take it into their heads that they are invalid. Instead, they should apply to the court to have the order varied or rescinded. The Supreme Court found that this can be done by informal application, and that they may even have rights of appeal under the Judicature Act. Vince Siemer should surely have tried to challenge the order before he flouted it. This seems a tidy solution.

But is it? In fact, it’s not clear how readily courts have entertained such informal challenges. Mr Siemer and a supporter both had their (extremely belated) challenges to Winkelmann J’s order rejected by the High Court for lack of jurisdiction. No doubt things will be different now, and that will certainly be a comfort to Mr Siemer in his jail cell.

And isn’t there a more fundamental problem? Mr Siemer is in jail for breaching an order that certainly shouldn’t have been made in the terms that it was, and perhaps shouldn’t have been made at all. The Supreme Court unanimously emphasised the high threshold for such orders. But it also recorded that they seem to have become routine, and this one was issued without any supporting justification.

As the Chief Justice pointed out in dissent, the possibility of a contempt prosecution will surely act as a brake on people’s willingness to breach orders, even if they are permitted collateral challenges. In a remark that could almost have come from Vince Siemer, she noted that “a rule which countenances such injustice [the possibility of punishment of someone for breaching an invalid order] is not calculated to promote respect for the rule of law, the basis on which the requirement to observe court orders rests.”

Topics: Contempt of Court | 3 Comments »

Has the Harrassment Act just swallowed the law of defamation?

July 31, 2013

In a landmark judgment, a court has ordered a blogger to indefinitely remove more than a hundred posts and comments attacking the reputation of a lawyer, and not to write about her again.

The decision (Flannagan v Sperling DC Waitakere, 4 June 2013, Harvey DCJ, CIV 2012-090-986) may have opened up a cheap highway through the expensive labyrinth of defamation law. Why sue for defamation when you can get an injunction by showing that a publisher has harassed and distressed you instead? For one thing, you don’t need to worry about all those pesky defences such as truth and honest opinion.

The case was brought by lawyer Madeleine Flannagan who was repeatedly savaged online by Jacqui Sperling, a friend she fell out with. Sperling called her a liar, a perjurer, a prescription drug addict, a vexatious litigant, and a fraudster, and labelled her incompetent, abusive and “bonkers”. She also published private financial and medical details about Flannagan.

Although Sperling did not defend the proceeding, it should be said that there seems to be very little foundation for her accusations. Many of them may well have been defamatory.

But what’s interesting is that Judge David Harvey didn’t have to make that call. All he had to decide was whether the posts and comments amounted to a pattern of behaviour of “specified acts”, whether Flannagan reasonably suffered distress, and whether a restraining order was necessary and justified.

The Harrassment Act sets out a menu of “specified acts”. The relevant one here was “giving offensive material to a person or leaving it where it will be found by, given to, or brought to the attention of, that person”. Harvey J is surely right to conclude that repeated offensive blog posts aimed at someone can satisfy this limb. He said these were offensive because “they disclose personal and private information and include disparaging remarks about [Flannagan’s] morality, integrity, professional ability, intelligence and honesty that go beyond the robust exchange that one sees on the Internet.” He also held that she suffered the requisite distress and that a restraining order was necessary.

As the author of New Zealand’s leading text on internet law, Judge Harvey is better placed than most to comment about internet standards. And I don’t think it can be said that he was a pushover here. He had denied Flannagan’s earlier Harrassment Act application against Sperling, in part because Flannagan had engaged with Sperling online, and had herself gone looking for Sperling’s derogatory comments.Still, there is no getting away from the fact that Judge Harvey’s findings of offensiveness and distress revolve crucially around the damage to Flannagan’s reputation, which he mentions repeatedly. He also notes the extra harm done in an online context in the age of Google.

Judge Harvey recognises that Flannagan’s harms “could be remedied by defamation proceedings” but says they fall under the Harrassment Act too, and that’s all he has to look at. That’s true. But Sperling had a defence if she could show she was acting for a lawful purpose (s17). At least one judge has held that this requires an examination of the law of defamation to see whether a defence of truth or honest opinion might be available, and warned that harrassment law should not be used to undermine the high threshold for an injunction in defamation cases: B v Reardon [2000] DCR 575. As noted, Sperling didn’t advance any defence.

But I couldn’t help but notice the plethora of issues that this case would have raised in a defamation context. Hmmm, I thought, some of those statements look like they might be protected by honest opinion.

And: I’m not sure there’s a clear defamatory meaning for one or two others.

And: isn’t there a case that one or two of those allegations might attract a qualified privilege defence?

And: should we be troubled by the fact that the judge doesn’t have to make a finding that these harassing smears are untrue?

Judge Harvey knows the New Zealand Bill of Rights needs to be factored in. He assures us he has “weighed each post and considered whether, in terms of content and the competing interests of the parties, the removal of the post would amount to a justifiable limitation upon Ms Sperling’s free expression rights.” But he gives us little sense of how that justification process was conducted, except in his analysis of the appropriate duration of his takedown order. And that takedown order is a whopper: not only does it order Sperling to remove dozens of posts unless and until the court permits reinstatement, it also forbids her from directly or indirectly mentioning Flannagan or her family on any website she moderates. That seems to prevent her from discussing Judge Harvey’s decision, for example.

This is a long way from the courts’ great reluctance to grant injunctions affecting free speech in most other contexts.

But there is something to be said for that. The law of defamation is byzantine. It would not offer most people an easy remedy here. There’s much evidence that Sperling’s posts were malicious and harmful, and they are now banned. Sperling could have raised arguments in her defence, but didn’t. She has not been forced to pay damages. She can still raise her concerns in other fora. These applications aren’t simply rubber stamped, and the judge clearly gave close attention to the justifiability of the order. An appeal is available.

In fact, this is not unlike the cyber-bullying regime the Law Commission recommended, recently accepted by the government. The grounds for take-down orders under the Commission’s proposal include the publication of false allegations causing significant personal harm – though this requires a consideration of a range of contextual factors such as the level of offensiveness and harm, the purpose of the post, its subject matter, any public interest in it, and the vulnerability of the complainant.

Madeleine Flannagan may well still have got herself a takedown order under this procedure. But I think it is helpful to require judges to consider those wider factors first.

Topics: Defamation, Harassment Act | No Comments »

Read this, if you haven’t already

May 21, 2013

Andrew Geddis nails the government for another constitutional abuse.

Topics: General | No Comments »

Defamation and satire

April 24, 2013

Memo to anyone thinking of suing or threatening someone else for defamation after that person made fun of them.


It’s not that the law clearly protects humorous speech and satire. That question is a bit vexed. It’s defamatory to say something that brings another person into ridicule. So it looks like that is fairly easily satisfied. Actually, those looks are deceptive.

But that’s not the reason not to bring the threat. The reason is that you will invariably look like a complete plonker who can’t take a joke. This is what has happened, I think, to Colin Craig.

(Also, unless you want to look even more like a plonker, try to refrain from admitting that the article you’re objecting to is obviously satire when your lawyer’s letter says it “cannot be dismissed as satire”.)

If that’s not enough, there are also legal reasons not to threaten defamation.

For a start, in many cases, a court will find that the article would not have been understood in a defamatory sense. That is, it won’t affect your reputation because everyone will realise that it’s made up. That’s particularly the case where there are strong contextual indications that it is satire (such as other, obviously made up quotes in the story, obvious exaggeration, a ridiculous headline, and a bunch of other equally silly stories surrounding the article “Bob Parker waiting to be returned to space). Be aware that the courts are also starting to accept that online speech is often to be taken with a grain of salt.

You might be frustrated that some people come up to you and say “Damn, Craig, I was surprised to see you say that”. You can’t line up some people in court to say what they think the article meant. That’s a question for the court to determine itself, on the basis of what some hypothetical ordinary, reasonable reader would have thought.

But that’s not the end of it. The plaintiff would have to identify a “sting” - that is, the barb between the lines that says something bad about him. What is it here? Here’s what he was (falsely!) quoted as saying:

Williamson likes to talk about big gay rainbows,” said Craig, “but it would help if he understood what the rainbow actually means. After Noah’s flood, God painted a giant rainbow across the sky, which was a message that he would never again flood the world, unless we made him very angry. And we have.”

What is the sting here? That he has extreme Christian beliefs? It’s not entirely clear - and I see that Mr Craig’s lawyer didn’t identify one. Once such a sting is spelt out, as it must be, it can - even in humour cases - then open up some other defences. It might be argued that the sting is true, or that it’s honest opinion, or that it’s covered by qualified privilege.

Those defences can be problematic in humour cases (”Oh, of course I didn’t intend it to be taken seriously, but if it was, it was my honest opinion”.) But those defences can’t be dismissed out of hand. I would expect a court to be sympathetic to an honest opinion defence in many satire situations.

I note that Colin Craig has reportedly withdrawn his threat. Good on him. But too late to avoid looking like a plonker.

Incidently, The Civilian handled the whole thing with aplomb, I think. He quickly added an amusing clarification that removed even the faint possibility that anyone could any longer regard it as defamatory. But he didn’t accede to Mr Craig’s more unreasonable demands. Well played, that man.

Topics: Defamation | 1 Comment »

Information-sharing by the government: deja vu

April 11, 2013

Radio NZ is reporting that:

The Government is considering a massive expansion of data-sharing between ministries and agencies and has asked the Treasury to assess the potential impact on people’s privacy.

This seems to be a closely-related extension to the recent information-sharing legislation, which was preceded by a ministerial briefing on information-sharing by the Law Commission.

So, why this:

The Treasury has advertised for a consultant to assess assess the privacy implications of greater government data-sharing, and is seeking bids for the work.

Why isn’t this being done by the Law Commission (which incidentally has also done a vast amount of other work on privacy issues recently)? Or by the Privacy Commmissioner, who might be expected to have some relevant expertise too?

Topics: Privacy Act | 4 Comments »

Review of law of contempt: deja vu

April 11, 2013

The Law Commission has announced that it will review NZ’s laws of contempt of court. This will involve a discussion paper about the issues, to be issued next year.

I wonder how this fits with another issues/discussion paper commissioned by the government and issued almost exactly two years ago: Reforming the New Zealand Law of Contempt of Court - An Issues/Discussion Paper, by Tony Smith, the co-author of the leading text book on contempt.

Perhaps the idea is to produce issues papers every two or three years and hope the problems sort themselves out.

Topics: Contempt of Court | 1 Comment »

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