September 19, 2014
In a significant Court of Appeal decision (see Murray v Wishart), hot off the press, the judges have unanimously ruled that a third party publisher (the owner of a Facebook page that contained comments by others) was not liable for other people’s comments simply because he “ought to have known” that they contain defamatory material (even if he didn’t actually know of the content of the comments). So hosts of Facebook pages will only be liable for defamation of posters’ comments if (a) they actually knew about the comments and (b) failed to remove them in a reasonable time in circumstances that give rise to an inference that they were taking responsibility for the comments.
Will this apply to other content hosts, such as the Blogger platform, search engines and ISPs? Maybe. The Court said:
Our analysis of the authorities shows how sensitivethe outcome can be to the particular circumstances of the publication. The fact that many of the authorities relate to publication in one form or another on the internet does not provide any form of common theme, because of hte different roles taken by the alleged publisher in each case.
So there’s still room for development of the law here. And the outcomes for online entities that have some role in publishing others’ comments seems somewhat fact sensitive. The indications in this judgment are that the Courts should assess which analogies are most appropriate in the particular circumstances: for example, is the publisher more like a news vendor (who can be taken to have accepted liablity for the publications being sold, subject to an innocent dissemination defence), or the owner of a public noticeboard (who hasn’t really taken part in publication until they are told someone has posted a defamatory notice)?
This offers some comfort to ISPs, who are usually likely to fall into the latter category. But it seems that once they are notified, then it will usually be a short step to the conclusion that they have adopted the statement if they do not remove it within a reasonable time.
September 15, 2014
I’m struggling to find the provisions in NZ’s policy about the classification of documents that allow the PM to declassify documents for the purpose of protecting his reputation (his word, not mine, on Morning Report this morning). Perhaps the PM could help me out here.
The PM has said he would declassify documents to prove he stopped a mass surveillance proposal, in response to criticisms by journalist Glenn Greenwald (and, it seems, whistleblower Edward Snowden).
A few other questions spring to mind:
Why were these documents classified in the first place, and who by? What was the security classification?
If they were classified secret or top secret, what was the “serious” or “exceptionally grave” damage to our security operations that would have been caused if we’d known about them, say, at the time we were debating the proper content of our spy laws? (Or what other secrecy ground was relied on?).
Who is directing the reclassification? Because it sounds like the PM is ordering it. But the decision should surely be made by the intelligence agencies themselves. Chapter 3, para 31 says:
for authority to downgrade or declassify, refer material classified SECRET or TOP SECRET to the point of origin.
So what’s the PM doing making this call? Hasn’t he always told us that operational decisions are the domain of the agencies themselves? (And isn’t his office under investigation for rapidly having SIS information declassified and released to Cameron Slater?)
If the PM is making this decision, is protecting his own reputation a proper consideration?
One might have thought that “overriding public interest” was the proper benchmark for working out whether to declassify a document. That has the beauty of being consistent with the Official Information Act, which still applies to these documents (see Chapter 3, para 6). And surely there is overriding public interest in the release of the documents now. Is the PM reluctant to make this point because of the obvious rejoinder: why were they not in the public interest back when we were debating the law, when similar allegations of mass surveillance by our spy agencies were being made, and when the country was debating what powers and limitations on those powers were appropriate?
Is this declassification process being expedited? Again, on whose instructions?
Or was it already in train? It was widely anticipated that Nicky Hager’s book would include similar allegations to these. Had the PM already begun or even finished the declassification process in order to have the documents lined up for rebuttal?
Why are the only documents being declassified the ones necessary to protect the PM’s reputation by showing how he stopped this “business plan”? If those documents are no longer going to be harmful to release, or if there is sufficient public interest to override any relevant harm, then aren’t there a swag of other relevant documents that should be declassified too?
September 14, 2014
Yes. Yes, he is. The High Court says so, as Whale Oil points out triumphantly. Like the good journalist he is, he even shows us the evidence: para 145 of Justice Asher’s judgment.
Mr Slater then goes on to demonstrate his journalistic chops by entirely failing to report the rest of the judgment. That includes the part where the judge says the material in his posts was “extreme and vindictive” and bore “the hallmarks of a private feud”, was not of any public interest , and was probably unlawfully obtained.
He also omits the judge’s conclusion that he therefore has to turn over his sources, which was in fact the whole point of the application.
August 22, 2014
Some time ago, I wrote about Cameron Slater’s claim to be a journalist, which he is invoking for the purposes of protecting his confidential sources. The District Court ordered him to turn over his sources in a defamation case brought against him by Matt Blomfield. The court said Slater didn’t qualify for source protection under the Evidence Act. I argued that the judge’s reasoning was very poor, and that there were good arguments that he should be treated a journalist. Nevertheless, I noted that the court still had a discretion to order him to turn over his source.
Slater appealed to the High Court. Leading media lawyer Julian Miles QC was appointed as amicus to assist the court. The thrust of Miles’ submissions was that (1) Slater is probably a journalist, but (2) in the exercise of its discretion, the court should probably still order him to turn over his source, because his coverage of the Blomfield issue wasn’t in the public interest and the disclosure order would be unlikely to chill any signficiant stories.
Does Dirty Politics change that? Well, it does contain evidence that might be relevant to the court’s decision, I think.
Ironically, one part of that evidence suggests that it’s more likely that Slater should be considered a journalist. A journalist is defined as:
a person who in the normal course of that person’s work may be given information by an informant in the expectation that the information may be published in a news medium (s68(5) of the Evidence Act).
One issue identified by Miles is whether Slater’s blogging counts as “work” given that Slater has described it as a “hobby”. Blomfield argued that it was restricted to people who made their living from it.
But Dirty Politics shows that Slater was being paid for at least some of his blogging. It seems he was deriving a significant income from it. That makes it easier to class him as a journalist under the Evidence Act definition.
It also may have a bearing on another issue identified by Miles. “News medium” is defined as:
a medium for the dissemination to the public or a section of the public of news and observations on news (s68(5) of the Evidence Act).
To demonstrate his pedigree as a purveyor of news, Slater lists nine stories (or series of stories) he published from the relevant period. This was to relevant to two issues. One was whether he was receiving information from sources in the “normal course” of his work. The stories do seem to demonstrate that - that is, that he was frequently publishing stories, so that it could be said they were part of the “normal course of his work”.
The second issue is whether he was publishing in a news medium - that is, whether he was disseminating news or observations on news. Miles looked at the stories and said “although it seems Whale Oil publishes much that it not news, the articles … it is submitted, qualify as news or observations on news.”
Four of the nine stories Slater has put forward to demonstrate his journalistic chops are mentioned in Dirty Politics. I think the information in the book sheds some new light on those stories that might be of interest to the judge. One is about the Rodney selection battle, and the exposure of the allegedly racist past of the electorate chair. Hager’s book shows that this series of posts was orchestrated by Simon Lusk, who was being paid by one of the candidates for selection. The stories were run to enhance his selection chances. There is evidence suggesting that Slater was being paid for them.
Another is about the Ports of Auckland stories. Slater’s attacks on the union involved information that seemed to have come from the POA. He denied working with them, but boasted of his long chats with the POA chair. The POA has denied collaborating with Slater, and paying him, but Dirty Politics quotes one of its PR agents saying Slater was a “great hired gun”.
Another Slater story is his Labour Party website one. Dirty Politics contains evidence that this story was prepared in collaboration with Jason Ede from the PM’s office.
The fourth is the SIS/Phil Goff story. This involved a surprisingly quick declassification and release of official information to Slater in preference to a mainstream media outlet that was asking for similar information. Slater seems to have had knowledge that it was being expedited. So there’s evidence of collaboration with the PM’s office or the SIS over that one too.
Does that mean that none of this was news? You could still argue that it was, if you regard news as putting out information that people didn’t know before. But I think it raises another issue that isn’t discussed in Miles’ submissions. Doesn’t there have to be a degree of independence for a report to be described as news? An essential fidelity to facts rather than source? A motivation to accurately report information? The Advertising Standards Authority, for example, says that editorial content should include “a value check or independent critical assessment of the information”. Otherwise it’s advertorial.
There must surely be more to the news than simply putting out information that wasn’t there before. Otherwise, this concept of “news” could include, for example, press releases, or Party websites, or even pure advertisements.
In that context, the revelations in Dirty Politics that Slater was willing to post screeds under his byline that he hadn’t written, and that he knew was written by PR agents with their own agendas, and that he may have been being paid to post, are surely relevant to the question of whether what he was publishing was news or commentary on news.
They may well also be relevant to the second question: whether, even if he is a journalist, the court should exercise its discretion to order him to reveal his source. In the exercise of that discretion, the court must weigh the importance of the source’s identity for the defamation case against the likely adverse effect of ordering disclosure on (a) the source and (b) “the ability of the news media to access sources of facts”, thereby serving “the public interest in the communication of facts and opinion to the public.”
I’m inclined to think the information about Slater’s methods detailed in Dirty Politics is relevant to the issue of whether the public interest in the flow of information will really be harmed by ordering Slater to reveal his source to Blomfield. If people like Slater and his sources are chilled from delivering information in his particular fashion, for my part I doubt the public interest will be much harmed.
This case has already been argued, and we are awaiting the High Court’s decision. But I wonder whether anyone will think it appropriate to apply to put the new information before the judge?
PS I see that Slater is facing another case in which his status as a journalist is in issue. The Director of Human Rights Proceedings is bringing an action (note to Herald: it’s not really a “prosecution”) against Slater for using private information in his Blomfield stories, in breach of the Privacy Act. Slater is arguing that Whale Oil is a news medium, and therefore exempt from the Privacy Act. The definition (which I set out here) is slightly different, but similar in many respects. Some of these same issues might well arise.
August 18, 2014
As many of you know, I act for Nicky Hager. I vetted his book, Dirty Politics, and the three before that.
It is a surreal experience watching what happens to Nicky’s books in the days after their publication. It often seems as if the book that’s being discussed by politicians and in the media is entirely different from the one I’ve just spent weeks vetting.
What’s more amazing is that politicians who admit they haven’t read the book and don’t intend to are given free rein to speak authoritatively about its content. Often they say things that are completely contradicted by evidence that’s set out in the book, but aren’t even challenged about it. Nicky is often accused of being a “conspiracy theorist” as if this is an answer to the evidence he sets out in the book.
This time around, though, my sense is that things are different. The government’s denials are such blatant flannel that they are being seen as beyond the pale, even by our most grizzled political journalists, who have seen plenty of spin in their time.
I want to go through some of the spin. I want to do that because the Prime Minister is claiming repeatedly that Nicky has “made stuff up”, that he’s in cahoots with the “Fuck John Key” mob and the “Planet Key” song-writer and the effigy burners, and that he’s done it to distract attention from the real issues.
Let’s just pause on that last one. Anyone with even a nodding acquaintance with Nicky or his writing, whether they agree with him or not, surely cannot escape one conclusion: Nicky’s goal is to get us talking about the real issues, and to expose and critique the tactics that are used to derail genuine political engagement. In fact, Dirty Politics is about exactly that.
I have to say, I really wish Mr Key had displayed this same affection for debating the issues when Nicky put out Other People’s Wars, a book about New Zealand’s hidden foreign policy during conflicts in Afghanistan and Iraq, based on hundreds of leaked defence documents and interviews with insiders, written over the course of ten years. Key’s response? It’s a “conspiracy theory”.
Then there’s the insistence that Nicky makes stuff up and that the allegations are “unravelling”. So what has he got wrong?
National’s involvement in the ”hacking” of the Labour Party database? Nicky doesn’t call it a hack. He exposes and criticises the collaboration between the PM’s office and Cameron Slater. He says they accessed the database, dug around, and downloaded information.
John Key on Thursday said repeatedly that “National had nothing to do with it.” Yet in almost the same breath, he admitted that his staffer Jason Ede might well have gone in and had a look. But that had “nothing to do with National”. In fact, National has also acknowledged that “it appears” a staffer downloaded files. Dirty Politics sets out correspondence between Ede and Slater discussing the information. While Nicky makes it clear that the site was insecure, it’s an open question, as a matter of law, whether this means it was not a crime to go digging around in it.
The PM’s involvement in the extraordinary early release of SIS briefing notes to Slater under the OIA? Nicky says that given the PM was minister for the SIS, the briefing notes were a hot potato, and they got declassified and released to a partisan blogger within days of a request, it looks like the PM knew about it. “The head of the SIS would surely never have done anything so unusual, so public, and so political without their minister’s knowledge and approval,” he suggests. He quotes Cameron Slater emailing friends about it, boasting about the fact that the information was on the way, would be “catastrophic”, and that he had been “sworn to secrecy”.
The PM told journalists last Thursday, ”it was nothing to do with me.” Phil Goff disagrees. The Dominion Post notes that they put in a request for almost the same information at the time and were turned down. This really doesn’t look to me like something that’s been disproved, or can be dismissed as “baseless”. It raises serious questions about the PM’s involvement. I see that blogger The Ruminator says that in 2009 someone in (Corrections Minister at the time) Judith Collins’ office called up to expedite an OIA request to Cameron Slater, pressing for it to be processed within half an hour. And we should remember that Dirty Politics cites other instances of Ede drafting OIA requests for Slater (though the evidence Nicky received doesn’t show him drafting this one).
The alleged attempted blackmail of Rodney Hide? Nicky claimed that Cameron Slater and Simon Lusk conspired to get hold of some compromising text messages sent by (then ACT leader) Rodney Hide, to try to pressure him into resigning. (Let’s not mince words here: Lusk writes they should tell Hide someone has the texts “and will leak them if he doesn’t resign by friday.”) Nicky quotes Slater’s subsequent blog post, which contains hints about Hide so broad you could land a plane on them. Hide resigned shortly afterward. DimPost outlines Hide’s adamant refusal to resign until that point. Dirty Politics says there’s no evidence of any direct threat made to Hide, and there may well have been other reasons for Hide’s resignation.
Hide has laughed off the suggestions that he was blackmailed or that this had anything to do with his resignation. But that doesn’t really answer the point, does it? Was there a plan to blackmail him? It seems there was. It can’t be said, anyway, that this suggestion is a “wild allegation” or ”made up” or ”a conspiracy theory” or “baseless”.
Judith Collins passing on the name of a civil servant so he could be excoriated by Slater? Judith Collins admits she passed on the name to Slater. The PM was asked repeatedly whether this was acceptable behaviour on Morning Report this morning and kept trying to change the subject.
Judith Collins passing on information to Cameron Slater about ACC client Bronwen Pullar? Steven Joyce says this is “completely false”. But Cameron Slater’s messages to a friend at the time say he’s spoken to Collins about it, that he knows the information is in a spreadsheet not a database, that he knows Pullar’s identity (though he doesn’t name her), that she “tried to get money for it” and that she is about to get “rat-fucked”. This all happens shortly before the Pullar/Boag email was leaked to the press. Dirty Politics notes it could have been leaked by ACC or the email’s author Michelle Boag. But Nicky suggests that Judith Collins’ office had more incentive to leak it. Of course, Collins denies this. But again, it can hardly be said that this allegation is fabricated or groundless or wild, or that it’s been proved wrong.
All Nicky’s books contain “left-wing conspiracy theories and don’t stack up”, particularly Seeds of Distrust? The allegations in Seeds of Distrust were submitted to exhaustive scrutiny in the Select Committee’s inquiry into Corngate. That inquiry was controversial and the committee was divided. But half of the members thought Nicky basically got it right - including all the National Party members.
Anything else? As far as I can tell, there is not a jot of evidence that Nicky has “made stuff up.” Nor is there any that his reporting is “baseless”, or that he “doesn’t want facts” as the PM puts it. Judith Collins has called the bits about her mostly lies. But she’s admitted the passing-on-of-the-name allegation, admitted that she has been in frequent contact with Cameron Slater, and said that she wouldn’t be able to sue because the book was full of speculation and might-bes. That doesn’t sound like lies to me. Let’s just treat that as praise for the careful and honest way that Nicky has separated out what he knows from what he’s not sure about, so readers can make up their own minds about the evidence he presents.
I note there has been a roaring silence from others criticised in the book, such as PR agent Carrick Graham and political consultant Simon Lusk. These do not strike me as men who are incapable of putting out their side.
Nicky’s allegations are based on a 150-page book with 500 footnoted sources, most of them from emails that Cameron Slater has admitted were taken from him.
What are your allegations that he “made stuff up” based on, Mr Key?
[I’ve obtained Nicky’s permission to blog about this, but he has not previewed this post. I have disabled the comments function. I’m not really in a position to debate this back and forth publicly and I’m not going to provide a platform for people to slag him. You can email me with comments if you like: email@example.com. I do encourage you to continue to debate the book on other, much better read platforms such as Kiwiblog or Public Address. It would be nice if you based your criticisms on evidence.]
August 11, 2014
For those who haven’t heard, Nicky Hager has a new book coming out this week. It will be launched at Unity Books (57 Willis St) at 5pm on Wednesday. Nicky and others will start speaking at 5:15pm and the book will be made available for sale after that.
All are welcome to attend.
July 28, 2014
Conservation Minister Nick Smith is being accused of political interference for trying to discourage NZ Fish and Game from publicly advocating for cleaner lakes and rivers. Now he’s threatening to sue those who made the claim.
Now, I don’t know what happened at the meeting, and it’s clear there are different recollections of exactly what went on. But on the basis of what’s been reported, I very much doubt Nick Smith will sue.
Why not? There are three main defences to a defamation action. The first is truth. Radio NZ is reporting that there are four people who were at the meeting who confirm the allegations against Smith. The defendants wouldn’t have to prove every detail is right, just that the sting of the allegations is true or not materially different from the truth. Smith has released DOC’s officials notes from the meeting (rather putting that official in a difficult position, I would have said. There are obvious questions to ask of that person about whether s/he remembers anything else relating to these allegations - things that may not have made it into the notes). Anyway, those notes seem fairly brief, and it’s being reported that the meeting was fairly lengthy. It’s a brave person who sues when truth is an issue and four people disagree with his version.
A second defence is honest opinion. Much of the language of Smith’s critics is couched in the language of opinion. There has to be a truthful factual platform for that opinion, but that doesn’t require proof of all the underlying facts about what was said at the meeting.
Finally, there’s qualified privilege (the Lange defence). That applies to criticisms of MPs. It must apply particularly strongly around elections. It can be defeated if Smith can show that the criticisms were made irresponsibly or recklessly. What might amount to recklessness or irresponsibility is relatively clear when the defendant is the media (have they sought and included the other side of the story, for example), but it’s hard to see the court requiring critics in circumstances like this to adhere to the same standards.
Put all that together, and I wouldn’t be recommending a lawsuit. But I suppose there might be some advantage in bandying around the prospect of a lawsuit to discourage further criticism…
July 10, 2014
Former Privacy Commissioner Bruce Slane also criticises the High Court order requiring Kim Dotcom to seek documents from author David Fisher under the Privacy Act so that he can turn them over to the Crown. But he takes a different tack to mine.
He argues (very persuasively, I think) that these documents are not really under the power of Dotcom, even though he can request access to them, since that access is subject to a number of conditions and processes. This is pretty similar to the point Ewan Morris makes in the comments in my previous post. The proper process here would have been for the Crown to apply for third-party discovery from Fisher directly.
Bruce Slane doesn’t comment at length on whether investigative authors come within the definition of news media, though he seems to assume that the status quo is that they don’t and adds that, as far as he’s aware, there have been “no difficult cases of authors facing requests which the Privacy Act procedures have failed to deal with satisfactorily”. It’s not clear whether there have actually ever been any complaints relating to authors. But he suggests that no reform is necessary. He doesn’t explain why he’s so sure an investigative author is not producing “news”, but I think it’s fair to say his views are grist for the mill of Glassboy, who also commented in the previous thread.
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 –
(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.
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).
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.
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.
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.
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