Defending the Law Commission
August 29, 2012
The Law Commission’s brainchild is being bullied online. It has recommended the creation of a tribunal to hear claims of digital harrassment, privacy invasion, intimidation, bullying and defamation. Not surprisingly, perhaps, it’s now being attacked by netizens as a terrible threat to free speech. Also not surprisingly, many of these people do not seem to have read the Law Commission’s actual proposal, which answers many of the criticisms. There are also some thoughtful criticisms from sensible people.
There’s certainly room for debate about this proposal. I have some concerns about it myself, though overall I support it. (In fact, the Law Commission draws to some extent on some suggestions I made here). But if we accept that there are real harms being done to people here – many of them children – then what’s really needed is constructive dialogue about how to address them. The Law Commission spends two chapters marshalling the evidence of harm and explaining why existing remedies aren’t adequate to address it. If you think a tribunal with powers to issue take-down notices is a dumb idea, then what’s your alternative? Just putting up with photos of a kid being bullied being posted on Facebook?
I want to deal with some of the objections I see as misguided before dealing with my own (much better directed!) concerns, in a later post.
“It’s a general censorship body”! For some people, the tribunal seems to loom as something of a censorship juggernaut, bestriding NZ’s internet landscape pulverising innocent articles and comments. For example, Idiot/Savant from NoRightTurn asserts that the proposal is simply a “heckler’s veto”, meaning that anyone merely has to object in order to have something removed. That’s vastly overstating its likely impact. To get yourself a take-down order from the communications tribunal, you’re going to have to do all of the following things:
1. Show that one of the 10 principles has been breached (eg someone’s published a false allegation, a private fact, a threat, etc: these are designed to reflect the existing law);
2. Show that this breach has caused you – the victim – “significant harm”;
3. Show that you’ve pursued all reasonable other avenues first (this is in the Law Commission’s report, but not explicitly in the draft legislation);
4. Show that you’ve referred the matter to an “approved agency” (the Law Commission recommends Netsafe) first, and it has considered exercising its functions first. These include investigation and mediation. The tribunal is likely to take into account the agency’s determination and the reasons for it;
5. Convince the tribunal (a District Court judge) that a take-down order is appropriate. It is discretionary. The tribunal must weigh up things like the public interest in the communication, its truth, the good faith motives behind it, the robustness of the forum, a lack of evident harm, the limitation of circulation, the contribution of the victim to the harm — factors that, if present, will make your application a hard sell;
6. Convince the tribunal that a take-down notice is a demonstrably justified restriction on the right to freedom of expression contained in the NZ Bill of Rights Act.
The person you’re complaining against will be given the right to argue against any such order before it’s made and (I’m sure) the right to appeal against it (this too is absent from the draft legislation, which only gives appeal rights to the complainant – this looks like a simple oversight to me). You will not get the right to seek damages. You will not be able to complain against mainstream media.
“The Law Commission hasn’t made out a case for this tribunal.” This is the main criticism of barrister John Edwards on Russell Brown’s Media3 programme on Saturday. He thinks there isn’t enough evidence of harm, and quotes the Law Commission saying:
We note that the paucity of quantitative national data on cyber-related communication harms creates challenges for policy makers.
But he doesn’t refer to the 20 pages of evidence assembled by the Commission it its briefing (chapter 2), and all the evidence amassed in its earlier report. That includes a string of particular examples and a series of surveys consistently revealing that at least 10% of people have suffered harrassment or bullying online. Nor does he refer to the Commission’s lengthy (and I think pretty compelling) discussion of why existing avenues of legal recourse are ineffective. The Commission’s conclusion is that at least some of the incidents are so bad that:
Irrespective of the quantum of the problem, in our view, this potential to cause significant harm, some of it indeed devastating, demands an effective legal remedy.
“I’d like some mechanism for more speech, not less” This criticism comes from Thomas Beagle from TechLiberty, also on Media3. I incline to the view that the internet is not lacking in mechanisms for more speech. Anyway, presumably Thomas would be much in favour of the tribunal’s power to order a right of reply. The mere existence of that power could be expected to incentivise more-speech responses. But there are plenty of situations (threats, publication of private facts or confidential material, many types of bullying) where “more speech” isn’t really the appropriate answer.
Quick memo to Russell Brown: Couldn’t you find someone in favour of the tribunal for Media3? Why two opponents? After all, the proposal is supported by the Privacy Commissioner, the Human Rights Commission, the police, Netsafe, Trade Me, the Post-Primary Teachers’ Association, and most of the submitters including the members of the Auckland law faculty on the Equal Justice Project. Also: me. It would have made for a better discussion.
“We shouldn’t protect people from hurt feelings”. Too late, I’m afraid. Unless perhaps, you’d like to do away with the law of defamation and privacy and intentional infliction of emotional distress, the Privacy Act, the Harrassment Act, the Domestic Protection Act and laws concerning threats. And maybe you would. Maybe you’d also like to ignore the growing acceptance that psychological harms can be as damaging as physical ones.
But perhaps your objection is simply that the threshold has been set too low. If so, bear in mind the things that need to be proved, listed above. It’s not about “stopping people from ever getting upset”. If you’re still unconvinced, I’m up for a debate about it. Let’s see your re-draft.
The Law Commission doesn’t seem to be suggesting remedies for anything not already covered by the law, so why bother? Graeme Edgeler, step up to the plate. Graeme referred to two examples given in the Law Commission’s paper: two older guys coerced a drunken 16-year-old into performing sexual acts that they then recorded on a cell-phone, showed people, and talked about on Facebook; and young people being threatened in texts including pictures of mutilated bodies and said:
if someone could point out how a Communications Tribunal could possibly help in either of the scenarios described, it would be appreciated
But as Graeme surely knows, the power of courts to grant an injunction to restrain a crime is not clear (and very rarely exercised), and their power to restrain torts, or threatened ones, is expensive and unlikely to be exercised at an interim stage. That’s the gap the Law Commission is looking to fill here. In both these cases, but particularly the first, the tribunal could have made an order for the material to be taken off-line (Facebook would almost certainly have complied, as would any relevant ISP), or not distributed further. At present, the police and the courts don’t have this power.
To be fair, Graeme seems to backtrack shortly afterward, when he says:
There are clearly circumstances in which a low level Communications Tribunal will enable people to obtain a solution to a problem that they could not have obtained otherwise.
However using factual scenarios from the past where people have been (or could have been) prosecuted and in some cases actually ended up in prison as a reason to change the law is unlikely to win converts.
But this still misses the point. No doubt the 16-year-old would have been delighted to have an avenue to have this removed early. Prosecution isn’t what this remedy is about. The point of the Law Commission’s proposal is to reflect what’s already in the law and provide an effective, timely and cheap remedy for breaches.
“The horse has bolted”. This is Thomas Beagle again, and multitudes of others. If something is published online, they say, the harm is done. Russell Brown rightly rejects this. True, harm arises immediately something is posted online and may be very damaging if word spreads quickly. What’s more, the material may never go away. It may migrate overseas. But it can be made much harder to find, and it can be removed from sites that give it the most currency and credibility. I mean, really: if images of your daughter being sexually violated were posted on Facebook, and there was some opportunity to have them removed, would you be saying “oh well, the horse has bolted”?
“The police can deal with it.” The police say they can’t. They certainly can’t deal with tort issues (defamation, breach of confidence). They can try to persuade people to take things down, and they can charge them with offences, but they have no general power to force people to remove anything. Frankly, I’m a bit concerned that they seem to try to do so anyway. “In Netsafe’s experience,” the Law Commission says (para 5.8), “the majority of interventions by the law usually occur on an informal, ad hoc basis and involve police officers contacting the alleged offenders and requesting that the threats of harm desist”. I can certainly imagine situations where this would be entirely appropriate. I can also imagine others where police were leaning on someone to remove something, having an incomplete view of the facts, a limited understanding of the law, and an inflated sense of their own righteousness and power. Perhaps one salutary effect of a new tribunal would be to ensure that these sorts of requests were channeled to the agency and tribunal where they could be dealt with in a consistent and principled way.
There are criminal penalties! This too is a concern of Thomas Beagle’s. He’s right that it’s an offence to disobey a tribunal order. It’s hard to see how it could be otherwise. Are defendants supposed to be able to ignore a take-down notice with impunity? But this is different to making the principles they’re enforcing criminal offences. It’s not an offence, for example, to make a false allegation, or disclose a sensitive personal fact. It only becomes an offence if the process above is followed, and order is made, and the defendant fails to act on it.
Education is the answer. This emerged from the Media3 discussion, and all seemed to agree on it. We can be educated into being responsible digital citizens. I’m not opposed to anything that tries to help people understand the harms people can suffer from irresponsible communications, and tries to encourage them to behave civilly. But it’s surely pie in the sky to think this is the complete answer. People will be evil. And when they are, we need to act against the harm, not pretend that we might be able to convince the next generation of people not to be evil.
It doesn’t properly protect free speech, especially free political speech. I think it probably does. The tribunal must have regard to the importance of freedom of expression. It must consider “the extent to which the communication is in the public interest” and its content, purpose and context. And although it’s not expressly spelled out (I think it should be), the NZ Bill of Rights Act applies to the tribunal. There is little doubt that political speech will receive particular protection under these provisions.
It’s a licence for lawyers to print money. I doubt this. I suspect most people will be unrepresented, as is the case with the Press Council and Broadcasting Standards Authority. The tribunal is required to act with as little formality and technicality, and as speedily, as it reasonably can. It is designed to be accessible to unrepresented litigants.
I don’t think the tribunal proposal is perfect. I think there are a few tweaks that should be made, and then it will still be imperfect. But the question is, will it do more good than harm? And I think it will.
Topics: Internet issues | Comments Off on Defending the Law Commission
Inquiring minds want to know
August 26, 2012
Do we have to rename the Beast of Blenheim the Beast of Whanganui?
Topics: General | Comments Off on Inquiring minds want to know
Lawsuit for intrusion allowed in NZ
August 26, 2012
At a time when the British tabloids are wringing their hands over whether to publish naked photos of Prince Harry, the High Court in NZ has ruled that the mere taking of such photos, whether or not they are published, is an actionable breach of privacy.
The case involved a woman who was filmed naked in the bathroom by a man who co-owned her boyfriend’s house, who had installed a hidden camera in a roof cavity.
The boyfriend found the footage and the man pleaded guilty to making an intimate visual recording. (He was ordered to pay $1000 in reparation and given no further penalty, which seems on the face of it a bit light, though I haven’t seen the sentencing decision).
The woman decided to sue in tort. The court was immediately faced with the issue of whether the tort of invasion of privacy can extend to situations where there has been intrusive behaviour, but no publication of private facts. The leading case, Hosking v Runting, left this question open. The High Court has now answered it: yes.
In a thoughtful and thorough decision that echoes the reasoning process followed in Hosking, Whata J has recognised intrusion as a form of privacy violation, if the following elements can be proved:
There is a defence of legitimate public concern.
In doing so, the judge has mirrored this strand of the tort as it exists in the US, also recently recognised in Canada, and for many years now applied by our Broadcasting Standards Authority. I advocated this development here.
The case is C v Holland [2012] HC 2155 CIV 2011-409-002118 HC Christchurch, 24 August 2012
Topics: Privacy tort | Comments Off on Lawsuit for intrusion allowed in NZ
Kiwi Rail injunction lifted
August 26, 2012
They say they had nothing to hide and just wanted to protect free and frank discussion. Clearly, they had nothing to hide except for the things they didn’t want the public to know they were discussing.
The lifting of the injunction rather calls into question the wisdom of spending public money taking out the interim injunction in the first place.
Topics: Breach of confidence | Comments Off on Kiwi Rail injunction lifted
Railing against illegal disclosure
August 24, 2012
On late Wednesday night, Kiwi Rail obtained an injunction stopping Radio NZ publishing copies of a leaked draft plan about its infrastructure and engineering. The next day (after distributing a press release about the injunction, I’m told) Labour MP Phil Twyford used parts of the draft plan to ask questions of government minister Gerry Brownlee. Was the infrastructure in danger of declining? Were there safety issues? Gerry Brownlee seemed to waver between not knowing what Twyford was talking about, and knowing full well. He hadn’t been advised about these issues, he said, and also that Twyford seemed to be basing his questions on a misinterpretation of a stolen scoping report. The media have been noticeably quiet in their reports on this, particularly before the High Court relaxed the injunction to exclude fair and accurate reports of yesterday’s statements in Parliamentary debate.
What’s the law here? Why was Kiwi Rail granted an injunction against Radio NZ? And so quickly? What about the public interest? Also, what’s the good of an injunction if it can be circumvented in Parliament? Who is allowed to report what?
Breach of confidence law
I was interviewed today on Morning Report on some of these matters. In short, it looks to me as if the injunction was based on breach of confidence. Kiwi Rail need to show that the draft plan had the necessary “quality of confidence” (that is, it’s essentially still secret, even if known to a small group); that it was “imparted in circumstances importing an obligation of confidence” (that is, it was created and distributed on the understanding that it was to be kept secret); and that there is public interest in keeping it secret. That last requirement only applies to government trying to gag people from revealing information about itself, as opposed to a private agency like Telecom. The idea is that we all have an interest in being able to criticise Parliament, so the government should have to show why that doesn’t apply here. If KiwiRail can make out such a case, then RNZ are probably bound by the confidence as well. Third parties are roped in when they receive material that they know (or should know) is meant to remain confidential.
The reality is that these elements are usually not difficult to prove, especially where a document (as here) is marked “confidential” and is distributed only to a limited number of people for particular purposes and on the understanding that they are not to be passed on.
RNZ would then need to make out a defence. They might argue that it’s in the public domain. They might argue that it’s in the public interest. The reality is that this is trickier to prove. There may be complicated arguments about what sort of harm might be done by disclosure and whether that is outweighed by the benefit to the public in knowing the information and holding the government to account.
So the law is in favour of someone seeking an injunction like this. That’s doubly so if the injunction application is an urgent, get-the-judge-out-of-bed application. The are ways of ensuring that the other side gets heard in urgent cases like this, but it’s on very short notice and with very little information. There’s no real ability to argue the case properly. Judges usually grant an interim injunction as a holding pattern and set a date for argument within a week. That’s what happened here.
Interim injunctions
It’s hard to criticise the judge. Kiwi Rail was no doubt alleging that all sorts of terrible harm would befall it if this information was published, and it surely had a good case that the material was confidential. And she was no doubt aware that the injunction would only be for a very short period of time. The very short notice given to RNZ would have made it difficult to marshall arguments to resist the injunction.
Still, I’m a bit uneasy about this process. After all, the courts have said that injunctions that affect freedom of expression can only be granted for clear and compelling reasons. It’s not enough to raise a mere arguable case. Here, the evidence hadn’t even been filed when the injunction was granted. What’s more, there were some fairly clear indications that at least some of the material raised serious public interest issues. But at the end of the day, I’m not sure the judge had much choice. I would expect her to take a harder line with Kiwi Rail at the full hearing (which I’d hope would be next week).
Deja vu: the NZ Post case
Interestingly, this is exactly what happened in 2001 when Richard Prebble got hold of a NZ Post’s business plan for Kiwi Bank. Some of the material had been disclosed in Parliament.
NZ Post applied for and was granted a brief interim injunction against him pending full argument. After full argument some days later, the injunction was denied. Justice Gendall pointed out that NZ Post was publicly owned, that the report contained matters of public interest, that much of it was already in the public domain, and that the issues were deserving of public debate. The parallels are obvious, and they suggest that Kiwi Rail may face a similar uphill battle.
On the other hand, in NZ Post, the defendant was an MP, there may have been a wider circulation of the business plan, NZ Post had provided it to the government, and the government had made use of some of it for its own purposes. Those factors aren’t present here.
I think Justice Gendall was right to deny the injunction then… but not for all the right reasons. I think he applied the wrong test – looking only for an “arguable case” (for trainspotters, that’s the standard in American Cyanamid) even though the Court of Appeal ruled in Fahey (the doctor and mayoral candidate caught on TV3’s hidden camera sting) that:
Any prior restraint of freedom of expression requires a much higher threshold than the arguable case standard.
What’s more, Gendall J didn’t consider the cases that require the government to show that secrecy is in the public interest.
Locking the case up in the courts
There is a danger in cases like this that the judge may be tempted – even after next week’s hearing – to hold that the issues concerning public interest require a full evidentiary hearing. That would be likely to lock the case up in the courts for months, and possibly years. That’s what happened in the Winebox case, where material that was surely in the public interest didn’t come out for two years. It is not an unsensible strategy for a plaintiff to argue that public interest issues require careful consideration based on the full evidence and should not be decided at an interlocutory (that is, pre-trial) stage, and that the injunction should be continued in the meantime. There may even be occasions when such an argument is correct.
I have to say, I am extremely sceptical of the sorts of projected harms that are routinely advanced in support of cases seeking to keep a lid on material that might be embarrassing to governments. Look at Wikileaks, the Pentagon Papers, Nicky Hager’s Other People’s Wars: these contained extremely sensitive information and their release did not make the sky fall.
I take some comfort in the fact that lawsuits like this are rare. It is because they are often spectacularly counter-productive. They get everyone excited about the contents of the documents. People start wondering what the organisation is trying to hide. The contents then often start being hinted at or dribbling out all over the place. The story has legs. Most PR people will say it’s better to get the stuff out there, deal with it, and move on.
The rest of the media
Can the rest of the media (or anyone else) publish this draft plan? After all, the injunction is only againt Radio NZ. The answer is that it would be very risky. There is a string of cases in the UK that make it clear that it can be a contempt of court to publish material that someone else has been gagged from publishing, because this would frustrate the purpose of the injunction and undermine the authority of the courts.
What about MPs?
That risk applies to them too. Of course, if they disclose the contents of a gagged report on the floor of the House, then they are immune from lawsuit or prosecution. But if they do it outside the protection of Parliamentary privilege, they are potentially liable for contempt. And if they undermine court processes by their statements within the House, they may be hauled up before the House’s Privileges Committee. I think it’s fair to ask questions about the appropriateness of Phil Twyford taking it upon himself to use the umbrella of privilege to gazump the effect of a court order.
Can the media safely report what happens in Parliament?
The media think so. “Anything said in Parliament may be quoted with impunity”, writes Jane Clifton. She’s only half right about that. The media (and others) have a statutory qualified privilege against defamation lawsuits when they fairly and accurately report on what happens in Parliament. But that protection doesn’t include a shield against lawsuits for other wrongs – breach of a name suppression order, for example, or contempt of court, or breach of confidence. In practice, though, it’s very unlikely anyone would be successfully prosecuted or sued for reporting what happened in the House. That’s especially so with breach of confidence, given that it would be hard to convince a judge that something said in Parliament hadn’t fallen into the public domain such that it had lost its quality of confidence.
Topics: Breach of confidence | Comments Off on Railing against illegal disclosure
SC agrees to hear Siemer contempt appeal
July 30, 2012
Do judges have power to suppress the contents of whole judgments in criminal cases?
If not, then perhaps Vince Siemer has a defence to the contempt ruling against him for posting a suppressed judgment in the Urewera case.
The High Court and Court of Appeal said “yes” (discussions here and here). The Supreme Court has agreed to consider this question. I’m betting it will reach the same conclusion.
Topics: Contempt of Court, Suppression orders | Comments Off on SC agrees to hear Siemer contempt appeal
Some sense at last
July 28, 2012
Paul Chambers, the guy who was convicted of sending a menacing communication for a tweet about blowing up an airport after it was closed due to bad weather, has won his appeal. In fact it took two appeals before he got some judges who realised what everyone else knew from the get-go: this was joke. The lower court judges had no problems taking his tweet seriously but didn’t take the same attitude to his free speech arguments.
Topics: Internet issues | Comments Off on Some sense at last
How to apply the Bill of Rights
July 27, 2012
The Broadcasting Standards Authority (in the wake of several High Court decisions, and perhaps aware of some of the criticisms I made with Claudia Geiringer) commissioned me to provide some advice on how the Bill of Rights applies to them and how they can practically integrate it into their decision-making. They have posted my paper here. I think their recent decisions are displaying a much more principled and nuanced approach to free speech issues.
I also like to think the analysis in that paper is of relevance to others who have to juggle free speech issues, most notably the censor’s office, the Press Council and Advertising Standards Authority (who are surely performing a public function, so the Bill of Rights applies) and the courts.
Topics: Advertising Standards, Broadcasting Standards Authority, Censorship, NZ Bill of Rights Act, Press Council | Comments Off on How to apply the Bill of Rights
Uninsightful journalism
July 23, 2012
Maybe I’m being overly nitpicky in objecting to this headline in a story on nzherald.co.nz:
Harawira’s asset sale comments ‘insightful’ – BSA
The Broadcasting Standards Authority was rejecting a complaint from Family First over a 3 News story that mentioned John Key’s assurance that asset sale share prices would be “affordable for a lot of New Zealanders”, and Hone Harawira’s response: “bullshit”.
The BSA said this did not breach standards concerning taste and decency or children’s interests.
The BSA never used the word “insightful”. Isn’t that a good reason, right there, not to put the word in quotes?
Nor did the BSA suggest that Harawira’s comment was any sort of insightful analysis of the PM’s statement. Isn’t that what the headline and first paragraph suggest?
It’s only if you read down into the story that you realise that the BSA was saying that the use of the language offers insight into Harawira’s character:
The word “bullshit” was used by Mr Harawira to convey his opposition to a major Government policy that had been the subject of much controversy. In this respect, the comment provided viewers with information about a political response to the issue, as well as insight into the characteristics of a political figure in terms of the way he chose to express himself. We consider that this was of high value in terms of the right to freedom of expression, and we should be cautious about interfering with its broadcast and its reception.
The BSA also noted that children were unlikely to be watching the news unsupervised, and that its own research did not find high levels of objection to the word “bullshit”.
The BSA and TV3 got this one dead right, I think. This is a very good example of the Bill of Rights being used to put a thumb in the scale to reject the penalisation of a story with political significance. What I find in poor taste is the rest of the media twisting the decision to oversell its story.
Topics: Media ethics | Comments Off on Uninsightful journalism
Scott Guy Verdict: Survey reveals journalists don’t have a clue
July 12, 2012
According to a recent poll, 48% of us think it’s likely that Ewen Macdonald killed Scott Guy. Only 20% of us think it’s likely that he was not guilty.
Apparently, the Dominion Post believes that this means that:
…just 20 per cent of people surveyed agreed with Ewen Macdonald being acquitted of slaying Mr Guy outside his rural Feilding home in July 2010.
Of course, it doesn’t mean this at all, as anyone with any elementary knowledge of the justice system would realise.
What the jury found was that the murder charge had not been proved beyond reasonable doubt. That’s a lot different to the question of whether it was “likely” that Macdonald was guilty of murdering Guy.
It is entirely possible that every member of that jury thought it was likely that Ewen Macdonald killed Scott Guy. And it’s possible that they didn’t. We don’t know.
We also don’t know how many members of the public think it has been proved beyond reasonable doubt that Macdonald was guilty. It’s quite possible that most of those who told the pollster that they think Macdonald is guilty actually agree with the jury that it wasn’t proved beyond reasonable doubt.
Even if they didn’t, defence lawyer Greg King is quite right to say that the statistic would not mean much given that the public haven’t seen all the evidence.
This story somehow spins the poll into a suggestion that the jury got it wrong, or that 48% of the public public disagree with the outcome. Someone should shoot this messenger.
Topics: Media ethics | Comments Off on Scott Guy Verdict: Survey reveals journalists don’t have a clue
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