Are host ISPs liable for bloggers’ defamation?
February 18, 2013
The answer now appears to be: “yes, after they’ve been notified”.
The English CA has just delivered judgment in the appeal against Eady J’s decision in Tamiz v Google. In that case, Eady J had continued a movement away from what seemed to be the first-principles position: that ISPs hosting blogs are publishers at common law, and therefore prima facie liable for any defamatory content posted by those whose content they host – at least after they have been notified of the defamatory content.
Eady J had held that the position was not so clear cut. It all depends on how much knowledge the ISP has of the content and its potential illegality and on how much control it exercises over that content; the Blogger platform (owned by Google) really exercises very little control over its bloggers; and it’s odd for a letter claiming defamation to convert someone into a publisher when they weren’t before.
The Court of Appeal doesn’t quite agree. The issue is whether the ISP “might be inferred to have associated itself with, or to have made itself responsible for, the continued presence of the material on the blog and thereby to have become a publisher of the material.” This isn’t a bull’s roar from Eady J’s analysis, but the CA’s conclusion is different. Where Eady J said Blogger was like a wall someone had plastered with grafitti, the CA likened it instead to a notice board in a clubroom. The CA is readier to accept the argument that, after it has been notified and been given a reasonable time to take action, the ISP can be said to have acquiesced in the publication (and therefore be treated as a publisher) if it does nothing about it.
This is a significant ruling, with wide potential ramifications. It is probably the law that a letter to an ISP about material it is merely hosting (including comments in a thread on a website it does no more than host) can fix responsibility on the ISP for that material. (It would be wise for anyone writing that letter to set out exactly what’s defamatory, why it’s defamatory and why it’s claimed to be false, but it’s not at all clear how much detail is required under the CA’s ruling).
Some other signficant points:
— this decision was about whether the UK court should decline jurisdiction. The CA only found that the case was arguable (ie that Google was a publisher), when Eady J had found that it wasn’t. Still the ruling on this point is in keeping with recent cases in Australia, and also some obiter in the NZ case of A v Google. It’s very likely that it reflects the law here.
— the CA was happy to accept Eady J’s conclusion that many of the comments at issue were mere “vulgar abuse” and therefore not defamatory. There seems to be more scope for such arguments in an online context.
— The CA accepted Eady J’s finding that damage caused by the posts that were arguably defamatory was trivial, given that the blogger had taken them down after five weeks. Thus the case was not worth the candle, and the CA agreed that permission should be refused for it to continue because there was no “real and substantial tort”. The same result may be reached in NZ in a strike-out application, it is to be hoped.
— Google took about 5 weeks to act on the complaint in Tamiz. The CA said this was arguably too long. But that suggests that a couple of weeks probably won’t be.
— The case also suggests that ISPs will be considered “processors” or “distributors” under s21 of NZ’s Defamation Act (which relates to the defence of innocent dissemination). That means they can escape liablity if they can show that:
(a) that [the ISP] did not know that the matter contained the material that is alleged to be defamatory; and
(b) that [the ISP] did not know that the matter was of a character likely to contain material of a defamatory nature; and
(c) that [the ISP’s] lack of knowledge was not due to any negligence on that person’s part.
That will almost always be the case before the ISP is notified that it’s hosting defamatory material. But once that notification arrives, the ISP’s role in the continuing publication is likely to be very problematic – it can no longer say, for example, that it doesn’t know that the website it’s hosting doesn’t contain defamatory matter.
— The upshot is that ISPs are going to have to take action when they receive letters claiming defamation, or risk being held liable for it. That action might include ordering the material to be removed, or seeking an indemnity from the blogger (assuming the blogger has the resource to meet it), or checking out the claim (which may involve seeking a legal opinion) and perhaps standing by their blogger, or requiring their blogger to provide evidence supporting their blog (or perhaps a reputable legal opinion supporting it). You can see that none of this is very attractive to ISPs. On the other hand, it has probably been the position in NZ for years, and there seem to be few cases on it. I’m not sure there’s been a swarm of legal letters aimed at ISPs, and I rather doubt that this case will make much difference.
Topics: Defamation | Comments Off on Are host ISPs liable for bloggers’ defamation?
A media website complaints system arrives
February 15, 2013
OMSA – the Online Media Standards Authority – is being launched soon. It already has a website, and a code of standards. Looks like it will be operative on, hmmm, April 1.
This is a self-regulation effort by all our major broadcasters, who are looking to fill a gaping chasm in the media regulatory landscape: the content of their websites. At the moment, their programmes are subject to broadcasting standards such as fairness, accuracy, balance and privacy, but their websites aren’t. The Broadcasting Standards Authority could uphold a complaint against a programme, and could make the broadcaster air a corrective statement, but couldn’t require the broadcaster to remove the programme from its website, or even add some balance or pixelate a face.
I see that the NZ Herald’s John Drinnan has given me credit (with Gavin Ellis and Luke Goode) for inventing the system:
OMSA chairwoman Clare Bradley – the company secretary at MediaWorks – said OMSA was developed by former Herald editor-in-chief Gavin Ellis, media lawyer Steve Price and academic Luke Goode and would publish a code of standards and provide a free complaints process.
Clare says she told him nothing of the sort. In fact, OMSA’s code and complaints process was developed by the broadcasters, and we were merely invited to peer review it. We offered comments. The broadcasters took those comments into account in finalising the system.
Topics: Internet issues | Comments Off on A media website complaints system arrives
Parting the clouds
February 15, 2013
Befogged by this cloud computing stuff? The Privacy Commissioner offers some advice.
Topics: Privacy Act | Comments Off on Parting the clouds
Speaking of irresponsible statements by NZ First MPs…
February 14, 2013
In this Campbell Live interview about Richard Prosser’s idiotic column, NZ First leader Winston says this (denying that NZ has a successful multicultural society):
Right now, we have a review commission going on about a Constitution to make the Treaty of Waitangi the cornerstone of our future Constitution.
This is – how shall I put this? – tosh. This is made clear in Karl du Fresne’s odd but ultimately accurate article about the constitutional review in the Listener last year, an article that could be summarised thusly:
Oh my God! They’re going to put the Treaty in our Constitution! Man the barricades. Oh. Wait. No, they’re not. Phew!
Michael Cullen, a member of the advisory panel, tries to put the concerns to bed here, pointing out that the review’s brief is to try to provide information about various aspects of our constitional, stimulate debate, and report back to Ministers about whether there’s anything worth thinking further about. Lauching the review, Bill English emphasised that there would be no changes without widespread consensus.
The role of the Treaty in the Constitution is one of the things they’re looking to have us debate. But I’m sure even Peters realises that there is little realistic prospect of it becoming the cornerstone of our constitution. Handy tool for scare-mongering and subject-changing though.
Topics: General | Comments Off on Speaking of irresponsible statements by NZ First MPs…
Heal thyself
February 12, 2013
Responding to his MP Richard Prosser’s Investigate column about banning all Muslims from airplanes, did Winston Peters really say this?
I’ve told him he cannot have a view that doesn’t have the balance in the other side of the argument.
Where on earth does that come from? This was an opinion column. By a politician. Neither require balance. And if they do, why has Peters never held himself to that standard?
Doesn’t he really mean that Prosser’s view is wacky and embarrassing?
By the way, why is Stuff uncritically running Prosser’s claim that Israel’s El Al airline bans Muslims? A Google search of “El Al” and “ban” and “Muslim” turns up only… Stuff’s stories. The closest I can get is reference to some aggressive racial profiling. But that’s not a ban of Muslims.
UPDATE: At least Stuff is now reporting that the Israeli ambassador says the El Al claims are false. Will someone put that to Richard Prosser?
Topics: Media ethics | Comments Off on Heal thyself
The Official Information Act: should it be reformed?
January 25, 2013
It was the great philosopher T’pau, I think, who said: “Don’t push too far, your dreams are china in your hands.” I sometimes feel that way about our Official Information Act.
It’s easy to dream of improvements. Requesters would like to see an end to game-playing when they make politically sensitive requests. They’d like the deadlines adhered to better. They’d like officials to be a little less ready to invoke withholding grounds whenever there is a mere sliver of justification. They’d like the requirement to balance the reasons for withholding against the public interest in release taken more seriously.
Officials and ministers on the receiving end of requests would like a few more withholding grounds. They’d like requesters to tailor their requests better (and then use the information more accurately!). They would like to be able to more easily reject requests that called for a massive trawl through thousands of files, emails, drafts and memos.
But any reforms have the potential to shatter what is a world-leading official information regime. Too much transparency and important interests such as privacy, commercial confidentiality and legal professional privilege are undermined, and the mechanics of government can be brought to a halt as by the resources consumed responding to requests. Too little, and the law’s laudable aims of promoting accountability, good law-making, public participation and trust are frustrated.
So the Law Commission’s task of reviewing the operation of our official information legislation wasn’t an easy one. It was never going to satisfy everyone. For its part, it says its recommendations pave the way for the law to keep pace with technology and public expectations, while taking advantage of opportunities for improving openness and efficiency. For left-wing blogger NoRightTurn (one of the country’s more astute users of the OIA), the Commission has been used by bureaucrats “to roll back transparency, and reintroduce secrecy and unaccountability for themselves.”
Who’s right? Let me offer a personal scorecard for the Law Commission’s recommendations.
The Commission also puts a lot of emphasis on the development of guidelines. This was also Nicola White’s conclusion in her book Free and Frank: Making the Official Information Act 1982 Work Better. It’s a sensible move. Both officials and requesters will benefit from authoritative guidance, with specific examples and handy rules of thumb drawing from 30 years of experience with the operation of the law. The Commission sees this as filling a lot of gaps: grounds and times for extensions, the public interest test, charging, urgent requests, complex requests, consultation, conditions on requests, proactive release categories, and much more. If someone scrapes together the resources to compile it, and people bother to start using it, it may be the most worthwhile thing to come out of the Commission’s report.
Another big recommendation is the creation of a statutory official information oversight office. This would provide policy advice, keep the law’s operation under review, promote best practice, investigate systemic issues, and oversee training, guidelines and annual reporting. My research found that when things go awry, it’s more often through misunderstanding than game-playing. The re-establishment of such an office (we used to have an Information Authority doing much of this) is in keeping with overseas Information Commissioner offices and can only be a positive thing.
One of the most vexing parts of the existing OIA is the “good government grounds”. These are applied to protect the generation of policy advice and a period of undisturbed deliberation on it. But that’s not what the OIA says. It talks about maintaining “conventions of the constitution”. No-one really knows what that means. The Law Commission has redrafted these grounds so that they are easy to understand and clearly directed at harm to the administration of government. It has also rewritten the commercial sensitivity ground. I suspect the effect is to widen these grounds, which causes me some concern (they now extend to “free and frank information” whatever that might be), but I doubt they will be used to cover anything that the existing grounds aren’t already being stretched to include.
There are plenty of other recommendations to praise, including the development of an accessible user-friendly website for requesters, wider grounds for review by the Ombudsmen, more rigorous rules around urgent requests, clearer rules around transferring requests, and a new power for the Ombudsmen to alert the Chief Archivist to any record-keeping problems that come to light.
Still, I have concerns about some of the Commission’s other recommendations. One is the suggestion that we change the grounds for refusing requests that will be too hard to comply with. At the moment, the agency must show that the requested material “cannot be made available without substantial collation or research”. The Commission recommends this be changed to “substantially and unreasonably divert resources.”
On the one hand, this provision is aimed at a huge problem. Information technology has seen the number of documents in government mushroom. Requests are sometimes extremely wide. You can argue that the new test is more specific and principled – being directed to reasonable uses of resources – and perhaps not enormously different to the old test. All true. But I worry that agencies will readily conclude that particular requests will unreasonably divert their resources, jeopardising the whole transparency regime.
Government lawyers will be interested in the Commission’s recommendation that the legal professional privilege ground be widened. At the moment, it authorises withholding information where necessary to “maintain” legal professional privilege. This recognises that the odd release of legal advice may not itself threaten the edifice of legal professional privilege. Sure enough, legal advice has occasionally been released. The sky has not fallen. But the new test will allow withholding if to release it would merely “breach” legal professional privilege, even if there was no identifiable harm beyond that. But I comfort myself that officials are generally so assiduous in asserting this ground that the change will not make much difference. There is, of course, still the requirement to balance this against the public interest. Sometimes it’s very much in the public interest for the government’s advice to be released.
I also worry about the suggestion that rules about charging be put in regulations. Yes, this will allow for certainty and consistency. But my research showed that charges were only discussed in 4% of requests. I think this is a great strength of our system. Charges have the potential to deter all but corporate requesters. (Even the media are likely to baulk: as my journalism professor at Berkeley used to say, “Journalists and the people who employ them are abidingly cheap”.) I suspect the reason that charges are so seldom imposed has something to do with the extra work that charging requires. It does not seem to be in anyone’s interests to formalise a charging system.
There is one other problem that the Commission recognises but doesn’t really solve. One of the statutory purposes of the OIA is to enable the public’s participation in the making and administration of laws and policies. But ironically, the way the withholding grounds are applied, the sorts of policy information that might actually help people understand what’s going on so that they can have some input is invariably only released after the major decisions have been taken. This is usually explained by the need for governments to have a period of “undisturbed consideration” of the advice they’re given. In the Law Commission’s new phrasing, this emerges as “the ability for Ministers properly to consider advice tendered…”. The disturbance to this proper consideration is, as far as I can tell, public debate. I don’t understand the need to guard against public debate, but it seems to be too deeply embedded in our OIA culture to remove.
Some other recommendations will gladden the hearts of officials: the possibility of charging political requesters for unreasonably broad requests, an allowance for a further time extension after the first one, new withholding grounds for disclosures that might prejudice investigations or inquiries, and a wider definition of vexatious requests.
Overall, it seems to me that if the whole package is accepted and properly implemented, there is much to be gained for requesters and officials. It’s a net gain for both. Whether the government will see its way clear to implement it is another matter…
Topics: Official Information Act | Comments Off on The Official Information Act: should it be reformed?
We don’t need no stinking press regulation
December 6, 2012
The Herald’s lawyer, Alan Ringwood, argues that we don’t need any statutory press regulation in NZ. Don’t listen to Levenson, he says. We don’t need to go there. (Full article here).
I guess it’s not a news flash that the Herald’s lawyer would oppose statutory restrictions on the Herald. But I’m interested in his argument. It’s just not very convincing.
I’m not the only one who thinks so. Check out the comments. I don’t think there’s one person in 30 who agrees with him. They seem to be reacting to this:
It is, however, too easy in New Zealand to take the freedom of the press for granted. It is not unusual to hear politicians, judges, commentators, friends and colleagues bemoan the quality of news reporting, despair at the content of news programmes, criticise the standards of newspapers, and generally treat the press as something common and a little distasteful.
This attitude to the press seems to overlook two important things. The first is that to be a free press, the press must be free to publish what it wants to publish. Freedom of the press means that as well as reporting the proceedings of Parliament and the utterances of politicians, newspapers can also report petty disputes between neighbours and stories about lost pets.
In addition to reporting the proceedings of the courts, newspapers can criticise sentences which appear inadequate, decisions which seem wrong, and judges whose decisions appear inane. In addition to reporting the outcome of international sporting fixtures, newspapers can report the drunken antics or criminal behaviour of sports stars off the sports field.
If celebrities walk our streets or play on our beaches you can see the pictures in the paper. If there are difficulties in the romantic lives of celebrities you can read about that in the magazines. Freedom is the freedom to publish gossip as well as serious investigative journalism.
The second thing that critics of the content of newspapers seem to overlook is that newspapers are a business, and they are largely a paper business in a world that is increasingly digital.
If newspapers are to stay in business then they have no option but to publish what the public wants to read, ie, content that “sells newspapers”; and criticism of the content of newspapers is really therefore just criticism of the tastes of the general public.
People who sniff at the publications of the free press really don’t know how lucky they are. No one but the sworn enemies of western liberal democracy should want the alternative- a press which is not free; not free to criticise the government; not free to embarrass politicians; not free to lampoon the pompous and identify the fools; not free to criticise the courts or judges; not free to campaign for justice; not free to expose wrongdoing, corruption or hypocrisy; not free to take any side in public debates; not free to say what needs to be said on any subject; not free to express any editorial opinion; not free to publish all aspects of the minutiae of daily life in New Zealand no matter how seemingly trivial; not free to publish photographs of celebrities; not free to publish gossip; not free sometimes to be wrong.
Here’s the thing. The people who bemoan the standards of the press do not forget that free speech includes the freedom to publish gossip, or that the media generally has business imperatives (though – hello RNZ – it’s not all a business). Nor do these critics – does this really need to be said? – think that a not-free press would be better. They would just like the press to be more accurate and balanced, focus seriously on issues a little more often, and do a bit of investigative journalism once in a while.
If Ringwood is lauding the press’s freedom to “say what needs to be said on any subject”, then why doesn’t it do it?
Ringwood suggests that Leveson has recommended a new independent regulator that is “established by statute” and “imposed on the industry”. This is what Ringwood opposes for NZ.
But that’s not quite right. Leveson has recommended that the industry set up the regulator itself. It would then be “recognised” in statute. And membership would be voluntary. That statutory recognition would be important, Leveson says, because law changes would be needed largely to confer legal benefits on those who opted to join. Those would include costs awards against those who litigate in court instead of taking advantage of the fast-track arbitral tribunal that he recommends.
This is not a bull’s roar away from what our own Law Commission has recommended. Presumably, this is what Alan Ringwood is taking aim at, though he doesn’t mention it.
I hope that readers of this blog will realise that I’m generally a strong supporter of free speech, but I have to say, I don’t understand the bile and loathing that spews forth whenever someone mentions the prospect of statutory regulation of the press. These proposals, remember, are as light-touch as light-touch regulation gets. In both cases, the primary recommendation is that a regulator be created that is independent of government and the media, and is effective. There are powerful design features aimed at ensuring that independence. In both cases, the statutory recognition is only to bed in the independent regulator, not to control it in any way.
Anyway, why are we supposed to think that any form of statutory regulation will be the death of free speech? The Broadcasting Standards Authority has been “regulating” our broadcast media for 20 years now (as has Ofcom in the UK). Has it killed news reporting? I’ve read a lot of BSA decisions, and I think they are plainly more respectful of free speech considerations than the Press Council is. Partly as a result, they are currently upholding a smaller proportion of complaints than the Press Council. Their decisions are more rigorous. They use their penalties judiciously. Their decisions are challengeable in the courts. They do not require you to sign away your right to sue, as the Press Council does. (I should note that I think the Press Council’s recent approach has been pretty good).
Ringwood doesn’t mention any of this either. His argument: we don’t appreciate free speech (and our media) enough; any restriction that has anything to do with a statute must be warded off like Baal. Like I say, I don’t find it very convincing.
Ringwood’s last point is that the media are under legal siege anyway, so we shouldn’t add to their burden. I hear this a bit and don’t believe it either. Let’s go through his evidence:
We had state interference in media coverage of the last general election when police officers entered newsrooms in the closing stages of the campaign to seize copies of the “teapot tapes”.
Well, true. But how this “interfered” with the coverage, I can’t fathom. It’s not as if the police were arresting journalists or ripping out computers. There was no threat to any confidential source. There were grounds to believe a crime had been committed. Is Ringwood suggesting that evidence should never be required from media outlets? This is, anyway, extremely rare.
We had New Zealand Herald journalists banned from Parliament for 10 days following the publication on the Herald website of a photograph of a man who tried to jump from the public gallery into the debating chamber.
Yes, but the Herald was blatantly flouting the rules. I agree with Ringwood that those rules are silly and unjustified. It’s Parliament being precious. But the modern movement has been toward opening up coverage of Parliament, including with cameras. And this restriction isn’t a big deal in the scheme of things.
We have expansionist privacy laws elbowing freedom of expression aside.
As far as I know, there have been fewer than a dozen privacy actions since this tort was dreamed up in 1986. They have not all been against the media. When they have, the media has usually won. I don’t think damages have ever been awarded against the media for breach of the privacy tort. On the other hand, the media has been stopped from publishing the fact that a well-known person (not on the public payroll) may have attempted suicide a long time ago, and they have been stopped from publishing the name of the student embroiled in the incident with Darren Hughes. In the BSA (which enforces similar rules), a broadcaster was penalised for airing a reality TV show with explicit footage of a woman’s breast augmentation treatment, without properly confirming her consent.
I’m inclined to think that privacy protections are justified and there should be remedies in the rare cases where the media seriously oversteps the line. The changes have been incremental, and have emphasised the need to bear free speech rights in mind. It’s hard to see free expression being “elbowed aside”.
Oh, and the media is exempt from the Privacy Act, when engaged in news gathering.
Our defamation law has not kept up with developments in other common law jurisdictions, with the result that it has a chilling effect beyond that which is inappropriate in the modern age.
I agree that our defamation laws are antiquated and beset with technicalities. They are obscure and expensive to enforce. Often, though, that favours the media. Defamation lawsuits are fairly rare. And, as Ursula Cheer’s research found, serious defamation threats are also relatively rare, and are usually dealt with quickly, often without any payment of damages. She found little evidence of stories not being told because of defamation fears. The chill effect is overstated.
As for the law, recent movements have been in the media’s favour too. In particular, the recently expanded defence of qualified privilege is a boon for our media. We started expanding this defence about the same time as Australia and the UK. Canada has only just got there. Ringwood may be concerned at the limited scope of our defence: on one reading it only protects comments about elected officials. But it is very likely to be extended beyond that, and there’s a NZ High Court case that has done so already. In some ways, our new defence is more media-friendly than the UK’s.
Suppression orders are regularly being made by courts and tribunals in circumstances which do not satisfy the proper criteria for such orders. And it can often then be difficult or impossible to ascertain what exactly has been suppressed.
True. And yes, it’s unjustified. But we should put this in context. Name suppression orders (which are the vast bulk of suppression orders) are given only in about 1 percent of criminal cases. Most of those are temporary. Many of the rest are imposed to protect child witnesses or sex crime victims. Recent legislation has been passed aiming to make suppression orders harder to get, and to make them easier for the media to challenge.
We have controversial restrictions on what can be reported about suicides.
True again. But the media may be its own worst enemy here. The restrictions may well not be as narrow as the media portrays them, and journalists can seek consent for publishing suicide details – but it seems that they almost never do.
We even still – in the 21st century – have a blasphemy crime on our statute books, and it is punishable by a year’s imprisonment, so I would literally risk being jailed for elaborating freely on what I think about that.
True. And the last prosecution for blasphemy was in 1922. The Attorney-General’s consent is required for a prosecution and it seems unrealistic to suppose it will ever be given. Yes, we should dump this law, but it’s hardly interfering with anyone’s free speech. Go on, Alan, say what you think about blasphemy. I’ll defend you for free.
We have seen New Zealand drop out of the top 10 ranked countries for media freedom.
There are two main organisations that measure press freedom, Reporters Without Borders and Press House. We have never been outside the top 20 countries in either of those rankings. As recently as 2010 we were in 8th place in the RWB index. For 2011 and 2009 we were 13th. In 2006 we were 19th. In 2004, we were 9th. I don’t think much has changed in NZ in those years. Maybe other countries have improved markedly. Maybe the data is not very sophisticated. Anyway, this is hardly evidence that our press freedom is in such jeopardy that a statutory-based regulator would bring the sky down.
Like I say, not very convincing.
And he’s somehow forgotten to mention all the recent improvements in press freedom. The Fairfax case has made prosecutions for contempt much less likely in future; the Evidence Act 2006 contains new source protection rules; the Bill of Rights Act is starting to have a notable effect in reshaping the law in the media’s favour; we have one of the best freedom of information regimes in the world; we have bedded in rules permitted cameras in court; we have much better rights of access to court records under new rules; and the “teapotgate” prosecution against a cameraman did not proceed.
I’m not saying everything’s rosy for the media. But it’s not as bleak as Alan Ringwood would have it.
Topics: Broadcasting Standards Authority, Cameras in Court, Censorship, Confidential sources, Contempt of Court, Court records, Defamation, General, Name suppression, NZ Bill of Rights Act, Official Information Act, Press Council, Privacy Act, Privacy tort, Suppression orders | Comments Off on We don’t need no stinking press regulation
Settling down
November 16, 2012
So Judith Collins has sensibly settled her lawsuit against Trevor Mallard and Andrew Little. Here’s the agreed statement:
The parties agree the leak of the email Ms Boag sent to the Minister and forwarded on her instructions, as the responsible minister, to the chairman and chief executive of ACC, raised an issue of serious public concern and that Messrs Mallard and Little were entitled to question who was responsible for that leak.
The parties continue to differ over whether the remarks made by Messrs Mallard and Little respectively on Radio New Zealand implied the minister falsely assured the House that neither she nor her office was responsible for the leak.
Messrs Mallard and Little have confirmed to Ms Collins that was not their intention and wish to make that clear publicly and in the event such meaning was taken, they regret it.
The parties will make no further comment on the proceeding.
I read this as a significant backdown by Judith Collins. There is really no apology here. There is apparently no costs agreement. There is only the dribbliest form of sorrow – “we regret it if someone misread what we were saying”.
We should recall that Mallard said a reliable source indicated that a leaked email from Michelle Boag came “from Collins or Collins’ office”. (He later expanded it to include the Associate Minister’s office). Little said that Collins was “the obvious suspect” and was “right in the thick of it”. (I’d better add that I have no idea one way or another about this).
Now, I think the best reading of these exchanges (in context) is that there was good reason to suspect that Collins had been involved with leaking the email (and therefore lied to the House when she denied it). That’s still defamatory, though it’s not as defamatory as outright alleging that she leaked it. It’s also much easier to prove. They only needed to bring evidence showing that there was good reason to think that Collins or her office were responsible for the leak, and not prove that she actually leaked it.
But the Labour MPs had a powerful potential defence. It was strongly arguable that they were engaging in genuine political debate and therefore were speaking on an occasion of qualified privilege. There would have been an issue about whether they were acting responsibly in the way they put forward their allegations, but given the latitude that the courts tend to give to robust political speech I am inclined to think they would have surmounted that hurdle. Nor could it be shown, I think, that they acted with statutory malice – that is, that they were predominantly motivated by ill-will towards Collins or otherwise took improper advantage of the occasion of publication.
Note that this defence does not turn on whether or not it was true that Collins or her office leaked the email. In fact, Mallard and Little didn’t even plead truth or honest opinion as defences. (The fact that they didn’t plead honest opinion was interesting. I would have thought it was open to them. But they would have had to have proved that the facts they based their opinions on were true.)
If my qualified privilege analysis is right, Collins didn’t have a powerful case. I think it was an ill-judged action. And it would have continued to be very expensive to all three, so it was smart to settle. I suppose it’s a win of sorts for her that the statement comes close to having Mallard and Little retract their allegation that Collins or her office was responsible for the leak. It strikes me as a good compromise, even if it’s somewhat disingenuous.
Topics: Defamation | Comments Off on Settling down
Greg King (1969-2012)
November 5, 2012
There are two New Zealanders whose untimely deaths have left me with a profound sadness, not just for them and their families, but also for the rest of us, because we’ve been deprived of the contribution they would have continued to make. One was Rod Donald. The other is Greg King.
Most people know Greg was a fantastic lawyer. He defended people with flair and passion. His success in many of those battles is testament to his extraordinary skill. He’s the guy I would have gone to if I was charged with murder. Anyone familiar with criminal law will tell you that it takes a rare mix of talents to do it well: doggedness, strategic savviness, a shrewd eye for detail, legal smarts, an instinct for what makes people tick, the gift of the gab, a readiness to be hated, the ability to handle severe pressure for long periods of time. It’s grim work, often tedious, and less glamorous and lucrative than most people think. Greg was one of the best in the business.
Greg was admired for the reasons lawyers like to be admired: he battled for the unpopular people; he often worked pro bono, he was a great orator, he was principled.
Some brilliant trial lawyers find it difficult making the transition to arguing points of law on appeal. Not Greg. I saw him arguing an important case before the Supreme Court, and he was terrific: thoughtful, measured, knowledgeable, convincing.
As some of you will know, I worked with him on the TVNZ7 show The Court Report. He hosted it, and I was the reporter for the first seasons. That was really how I came to know him. I don’t think he had any formal training in broadcasting but he was a natural. The things that made him a great lawyer also made him a great presenter: he was a good listener, he was funny, he was self-effacing, he was a quick study, he liked people, he was a tremendous communicator, he had a wide knowledge of how the law worked, he cared about issues, and he had a good bullshit detector. He was often more interesting to listen to than the guests (and that would include me…).
I remember that he was always immaculately dressed. He had presence. Even his hair had a devoted following.
It continues to astonish me how he got on so well with the people who should, by rights, have loathed him. He was mates with Garth McVicar. He got on well with Greg O’Connor. He was on friendly terms with Sophie Elliot’s parents, even though he defended her murderer. (He was flattered when they told him he was the only one who took the time to explain to them what was going on during the trial). And there is the measure of the man: he took time for people, talked to them, joked with them, had a drink with them, shared a yarn, asked after them, passed on some gossip, debated them, charmed them.
If there’s a heaven, Greg is no doubt being a devil’s advocate. I wouldn’t bet against an acquittal.
Topics: General | Comments Off on Greg King (1969-2012)
Bouquet
October 29, 2012
Media Watch’s Colin Peacock did a particularly excellent job this week in holding the media’s feet to the fire about its reporting on the firestorm about bail laws.
Topics: Media ethics | Comments Off on Bouquet
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