On purpose
March 21, 2013
If someone applies for a civil restraining order under our Harrassment Act, there is a defence of lawful purpose.
I’ve often wondered just how far this can be taken. It must surely be a lawful purpose to tell someone that you love them. But it’s hard to see that excusing a fellow who pursues this purpose by emailing and texting his reluctant beloved fifty times a day, writes her letters, waits outside her house, and delivers copious gifts of hand-made Star Wars figures.
The UK Supreme Court may have shed some light on this. In an analogous context, it has ruled that for a purpose to be legitimate, it must be something that they intend (a subjective element), but also that it must not be irrational (an objective element). It remains to be seen whether our courts will pick up on this.
Topics: Harassment Act | Comments Off on On purpose
Leveson solution
March 21, 2013
If you’re interested in what the British politicians have drawn up to implement the Leveson report, you could do worse that take a gander at this summary.
Topics: General | Comments Off on Leveson solution
Law Commission praised
March 21, 2013
Last night, delivering the Robin Cooke memorial lecture, UK Court of Appeal judge Dame Mary Arden was full of praise of NZ’s Law Commission’s paper on media regulation. She noted that, unlike the Leveson inquiry, the Law Commission’s brief was to consider media regulation as a whole, not just focus on print media. The Commission’s paper suggested there should be one independent regulator (with – horror! – some statutory underpinning). Dame Mary said the idea of a converged regulator was “overwhelmingly logical”.
(It will be interesting to see whether the Law Commission maintains this position, and whether it reaches a view on whether membership should be compulsory, and for whom, when it releases its final report, due shortly).
The main point in Dame Mary’s lecture, “Press, Privacy and Proportionality”, was that the judicial review ground of unreasonableness will be replaced by review for proportionality, and that this is nothing to fear. This is a big deal: under the traditional view, to challenge a government decision for unreasonableness, you’ve got to show it’s outlandish. Under a proportionality assessment, if the decision affects rights, the government has to show it’s necessary for some significant purpose. But Dame Arden says that proportionality is a flexible standard: its application will vary depending on things like the expertise of the original decision-maker, and that the courts must be careful to ensure that governments aren’t prevented from fulfilling their constitutional roles.
Certainly it’s true that the European Court of Human Rights and some domestic courts have been using proportionality, or something like it, to strike the balance between free expression and privacy rights for some time now, and that this is reflected in a the emergence of a set of principles concerning responsible journalism, as Dame Adern noted. And some aspects of the Leveson solution (such as the levels of costs and damages) may call for proportionality assessment. But I must confess that the link between this and her point about judicial review seemed somewhat opaque to me.
Topics: General | Comments Off on Law Commission praised
Unhealthy secrecy?
March 20, 2013
A hard call
Was the coroner right to suppress the names of the health care workers involved in the tragic death of Zachary Gravatt of menigicoccal disease in 2009? After all, he found the hospital was swamped with swine flu victims and Zachary’s symptoms were very similar. He was given considerable care and attention, and the disease was identified within five hours of his arrival at hospital. But it was too late.
The coroner said there were errors, but they were systemic ones; individuals weren’t at fault. He said that naming the health care workers would “effectively be punishing individuals for an overwhelmed and overstressed system”. It would “set an extremely dangerous precedent for future media coverage” and “serve to discourage good health professional from seeking employment and experience in the New Zealand Health system. It has the potential to seriously undermine confidence in the health system as well.” He noted the importance of free speech, but pointed out the the health board was making the necessary changes to the system and that his findings could still be publicly understood and debated without the names.
Some points of interest
There are lots of interesting things about this. First: he surely makes some good points. Do we really need to know the names for the public interest to be served? Don’t the workers have some entitlement to privacy? Isn’t it true that they are likely to suffer if publicly named? Shouldn’t we pity them rather than put them in the pillory?
Second, the coroner’s reasoning didn’t have much to do with the things that are being raised in the debate about this case. It was not based on any notion that health care workers would not be free and frank when tragic incidents like this were investigated. This is surely right. In this case anyway, the relevant staff would easily have been identified if only from the paperwork generated during Zachary’s care, and there’s no suggestion that they were less than forthcoming in their contribution to the inquest. Nor was the suppression decision based on any prediction that the news coverage would itself be inaccurate or unfair – rather that the mere publicity would be unfair.
Third, I think he goes a bit far. Will this really stop people from becoming nurses and doctors? How exactly might naming these people undermine confidence in the health system? What precedent is being set except that people in the news can generally be named?
The High Court overturns the suppression
Justice Whata made some of these points in overturning the coroner’s suppression decision. He pointed out that the coroner could only suppress names “if satisfied that it is in the interests of justice, decency, public order, or personal privacy to do so” (s74 of the Coroners Act). He noted that the right to freedom of expression and the principle of open justice were in play.
The general approach to restricting rights
In an important general statement, he set out the proper approach to reconciling these interests. If free expression is at stake, there must be express statutory permission to suppress. (He may be overlooking some common law powers of suppression here, but perhaps he was focusing on the case at hand). Next, that statutory power must be interpreted and exercised consistently with freedom of expression. In other words, when working out the scope of the power to suppress, free speech must be factored in. Wide suppression powers must be read narrowly if necessary to prevent unjustified restrictions on speech. This is about the legal meaning attached to the power of suppression. (This is really no more than section 6 of the Bill of Rights requires).
Third, “even where those two qualifying conditions exist, any discretionary infringement of that freedom must be justified.” So even where there’s a power to suppress, the jugde must weigh up the benefits to society against the harms to free speech in the particular case. This is what section 5 of the Bill of Rights requires.
I think this is to be welcomed: judges don’t always accept that free speech requires this dual approach. How do we interpret the power? Then: how do we apply the power? A restriction on free speech that falls within the scope of a wide discretionary power but produces an outcome that cannot be demonstrably justified is unlawful. (Admittedly, these questions can be difficult to separate sometimes).
The law applied
Justice Whata then rightly looks at the legal grounds available to the coroner: public order, privacy, the interests of justice and decency. Decency plainly isn’t a starter, so he examines the others, each of which was relied on by the coroner.
Public order in this context couldn’t include some generalised concern or fear that other health professionals might be deterred from participating in the health system.
The interests of justice might include reputational impacts (I’m not so sure about that one), but the coroner’s report didn’t impugn the workers’ character or reputation: “the latent potential for unfair media criticism is too opaque a basis to derograte from freedom of speech on interest of justice grounds.”
Personal privacy must relate to reasonable expectations of privacy, and that doesn’t usually include the names and roles of officials.
He concludes that suppression can’t be approached in a broad brush way. “The relevant factors weighing for and against publication must be assessed on a fine grained basis, so that here is surety that the statutory grounds for suppression are present, and that the principles applicable have been applied appropriately and the proper balancing exercise has been undertaken.”
An ongoing theme?
Here we see what’s likely to be an increasing theme in Bill of Rights jurisprudence: judges taking this question of whether a restriction on a right is justified, and turning it into a methodology. Has the original decision-maker weighed up the relevant factors, applied the right principles, asked the right questions? If so, then a judge on review is unlikely to substitute his or her judgement about whether that restriction was reasonable and demonstrably justified.
I’m not sure this is inappropriate, particularly when the initial decision maker (such as a tribunal) has some particular expertise. But it is in tension with recent UK Supreme Court authority in the Denbigh High case, which says that a decision is either a disproportionate or it’s not, and a judge on appeal or review must exercise his or her own judgement about it. That also seems to be the view of our own Chief Justice in the Morse case.
I’m sure the last chapter on this question has not been written. But it may have an extremely important impact on how much bite the Bill of Rights has.
Topics: NZ Bill of Rights Act, Suppression orders | Comments Off on Unhealthy secrecy?
Defamation damages against anonymous Facebook troll(s)
March 18, 2013
The High Court in Northern Ireland has awarded defamation damages against a defendant known only as “a person or persons adopting the pseudonyms Ann Driver and Alan Driver”.
“Ann” and “Alan Driver” had smeared the plaintiffs’ reputations on Facebook. The INFORRM blog suggests that his/her/their true identity was never established, and the judgment will only bite financially in the unlikely event that they are identified.
The court was also prepared to grant the plaintiff’s anonymity.
The judge said the case demonstrates that “the law, through the courts, penetrates the sheilds and masks of anonymity and concealment. Effective remedies are available and will be granted in appropriate cases”.
If INFORRM is rigtht that the defendants weren’t actually identified, that conclusion seems questionable.
Topics: Defamation | Comments Off on Defamation damages against anonymous Facebook troll(s)
In my opinion
March 5, 2013
The UK’s Court of Appeal has once again overturned a High Court ruling that a publication was stating fact, not opinion.
The guidance that the courts give on this elusive distinction is so useless that it seems that often the only way to tell whether something is a statement of fact or opinion is to take the matter to court (and then appeal).
Topics: Defamation | Comments Off on In my opinion
Corrections corrected again
February 20, 2013
Let’s admit it up front: running a prison must be a shit of a job. The inmates hardly have a good track record of playing nice or following rules.
For all that, it’s a bad look when our Department of Corrections itself disobeys the law. Which it seems to do routinely. A few years back it set up a comprehensive “behaviour modification” regime that was comprehensively unlawful, for example. I’d be willing to bet that unlawful actions of prison authorities are myriad. They are not especially sensitive to the rights of prisoners.
I keep a weather eye out for the free speech and media cases that come along, where Corrections is invariably slapped down for being more concerned with its own managament or image imperatives than the rights of the prisoners. Here’s another.
Convicted murderer Scott Watson wanted to attend his mother’s funeral, and read a poem. Temporary removal from prison for “the compassionate or humane treatment of the prisoner or his or her family.” Corrections drew up a plan. They concluded they could manage the security risks. But Watson’s application was declined. Why? “There was a signficant concern over media related matters and public perception of the prisoner, as to how he was being controlled and security”.
In other words, though they felt they could ensure public safety, they didn’t like the idea that the public might object to his attendance.
The judge said this was not the point of the legislation, and was an error of law:
I am of the view that the Department of Corrections’ genuine concerns about the likely intense media attention in this particular case, has led to inappropriate consideration being given to the policy that prisoners are exposed to public view as little as possible.
Topics: Department of Corrections | Comments Off on Corrections corrected again
Bad Target practice
February 19, 2013
Don’t like a decision of the Broadcasting Standards Authority? Well, just ignore it. That’s what the consumer TV programme Target seems to have done.
Back in 2007, the BSA made it clear that Target is invading trade workers’ privacy when it invites them into its mock home for its hidden camera trials. That doesn’t mean it can’t air those trials. But it should be pixilating their faces unless it gets consent for the broadcast from the workers themselves, or uncovers something sufficiently in the public interest to warrant showing their identities. Minor slip-ups aren’t enough. So a home care worker who read from the “patient’s” handbag, or left a front door open, or took chocolate out of the fridge, doesn’t tip the public interest scales far enough.
In short, you have to do something really bad (or provide your consent) before Target can identify you and broadcast its critique of you doing your job on national TV.
Last year, Target tackled electricians. It criticised the safety practices of one of the tradesman’s apprentices, but overall rated him seven out of ten. The application of broadcasting standards can be tricky. But not here. This plainly called for pixilation. Target didn’t.
It tried to argue that it had contacted the employer, and put the criticisms to it, and requested content. It received no reply. So this was “implied consent,” TVWorks argued.
But this was virtually identical to the argument it made in 2007, and which was explicitly rejected by the BSA. “An employer cannot give informed consent on behalf of the employee…” it wrote. “Accordingly, the Authority considers it irrelevant that none of the employers objected to the broadcast.”
My take is that Target simply flouted the BSA’s ruling because it didn’t like it. I find that shocking. Almost as shocking, in fact, as Target’s disgraceful treatment of Cafe Cezanne in 2010. The tradesman didn’t seek any penalty (he just wanted his image pixilated in the online version – something ironically the BSA does not have the power to order, though TV3 did it voluntarily). But I think the BSA should have come down harder on TVWorks and imposed a financial penalty for its repeat offending. Sheesh. Someone should do a hidden camera trial on Target.
Topics: Broadcasting Standards Authority | Comments Off on Bad Target practice
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
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