New media Downstage play
April 2, 2012
This looks interesting. Downstage are putting on a play satirising the news and involving the live editing of footage and commentary supplied by the audience. Starts April 13.
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Silliest statement by an Attorney-General ever?
March 27, 2012
On Sunday, former Police Minister Annette King told TVNZ’s Q and A that the Labour government ministers had merely been briefed on Operation 8, and at the last minute at that; that they were given assurances by Solicitor-General David Collins that the process was correct; and that they were dismayed by the way the police conducted the raids and what seemed like an about turn by Collins when he said later that the law was incoherent and much of the evidence inadmissable.
Yesterday, Attorney-General Chris Finlayson accused her of contempt of court. Her interview might prejudice “ongoing matters in the trials arising out of that operation”: sentencing, the possibility of an appeal, and the possibility of a re-trial.
I find it hard to see anything in Annette King’s interview that might cause serious risk of prejudice to any of those matters. On the other hand, the interview did begin to explore interesting and important questions about what the government knew, and when, and what was the quality of the advice that the government was receiving.
But the Attorney-General visits la-la land with his final sentence, which seems to have been widely and uncritically quoted:
It is inappropriate for anyone, but particularly for politicians, to comment publicly on matters that are before the Courts.
This is tosh. Of course we can talk about court cases. The only thing we can’t do is publish things that cause real risk of prejudice to the administration of justice. That’s a pretty narrow category of things.
This is the sort of tosh usually dished up by those who simply don’t want to talk about the issues arising out of particular cases.
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Cairns v Modi judgment
March 27, 2012
Is here.
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Doesn’t sound like a fair go to me
March 1, 2012
So the head of TVOne and Two, Jeff Latch, asks for a powwow with Fair Go staff. Labour broadcasting spokesperson Clare Curran asks whether, at that meeting, he asked them to go easy on TVNZ’s advertisers. Here’s his response:
“The key points I made at that meeting was that the heart of Fair Go for the past 20 odd years it has been on television, is that it represents the underdog and the small guy and stands up for them,” he told Parliament’s commerce select committee.
“I also made the observation we operate in a commercial environment and Fair Go, like all our programmes, need to exercise care in the way they handle stories.”
Journalists needed to make sure stories were always balanced with the views of both sides of the story, he said.
“A story that is not balanced could be something that is not really what we would want to run on that network.”
Latch said there was “nodding acceptance around the room that that made sense”.
It does make sense. So much sense, in fact, that you have to wonder why Jeff Latch had to organise a meeting with Fair Go to tell them that. Did he also mention that they should try to be accurate? Not defame people? Latch should know that Fair Go are probably the TVNZ reporters best versed in broadcasting standards and media law, since they deal with them every week. (Back in my days at Kensington Swan, I used to provide advice to them).
Asked if he was instructing Fair Go not to produce programmes that upset advertisers, he said “it wasn’t an instruction, per se.”
Not per se? This sounds weasily to me. Was it a hint, Mr Latch?
Because actually, Fair Go has a pretty good track record in its broadcasting standards complaints. It has not been listed in the BSA’s “Most complained about” shows for at least the past three years, despite the fact that it often makes serious accusations against people with the resources to sue. Likewise, there haven’t been any reported defamation cases against them in the last few years, as far as I can tell. Was there a big secret settlement recently?
If not, Mr Latch – how should I put this? – you should stay the fuck away from the Fair Go staff. It’s their job to tackle TVNZ’s advertisers when that is merited, and it’s your job to hire good journos then leave them to get on with their job.
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Should we have a tort of intrusion?
February 28, 2012
How far does our privacy tort stretch? Does it – should it – include offensive intrusions into someone’s affairs?
e covert filming or illegal interception. The Privacy Act may provide protection: you can complain, for instance, if material about you has been gathered in a way that is unfair, unlawful or unreasonably intrusive, and you can show that you’ve suffered harm as a result.
The intensity and complexity of life, attendant upon advancing civilisation, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress far greater than could be inflicted by mere bodily injury.
(“The Right to Privacy”, 4 (5) Harvard Law Review, 193).
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Well, you would be, wouldn’t you?
February 20, 2012
Lovely NZ Herald headline:
Man critical after being set on fire
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Offensive offence
February 16, 2012
A few years back, the censor banned this T-shirt (scroll down) depicting a masturbating woman and the words “Jesus is a cunt”. I questioned the ban.
Now the retailer who sold the T-shirts has been convicted for possessing them. I note that this offence also applies to everyone who owns such a T-shirt, whether they wear it or not. Are they to be prosecuted too?
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Lawyer’s name suppression bid fails
February 13, 2012
Criminal lawyer Barry Hart’s long attempt to have his name suppressed for his disciplinary tribunal charges has failed at the final hurdle, having also failed pretty much all the hurdles before that. The Supreme Court said:
The likely particular impact of publicity on [the person applying for suppression] will always be relevant, but it is untenable to suggest that professional people of high public profile, such as the applicant, have anything approaching a presumptive entitlement to suppression.
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Online defamation: is it any different?
January 30, 2012
This is my column in NZ Lawyer magazine for 27 January 2012.
Are the laws of defamation different online?
Alas, the courts seem to pay little respect to this line of jurisprudence. Early on, it was apparent that anyone who believed the online world somehow gazumps defamation laws was in for a nasty surprise. “I know no forum in which an individual has the freedom to say what he likes and in any manner he wishes about another individual citizen with immunity from suit for all consequences,” said Judge Ross in 2001. “Merely because the publication is being made to cyberspace does not alter this.” (O’Brien v Brown [2001] DCR 1065).
That’s your standard legal analysis. It’s still the best starting point. But a few recent cases suggest that things may be starting to shift a bit. Some judges seem receptive to an argument that readers of some online postings won’t take them seriously. This has been described as the “ALL-CAPS” defence to defamation.
More recently, a superior court judge in Ontario issued a remarkable decision granting summary judgment against a plaintiff for an attack against him made on a website (Baglow v Smith 2011 ONSC 5131). He was a prominent political blogger called, for reasons best known to himself, “Dr Dawg”, though it was well known that his real name was John Baglow. Baglow argued that Omar Khadr, a 15-year-old Canadian national captured by US forces in Afghanistan and taken to Guantanamo Bay, should be repatriated. A right-wing blogger accused Baglow of being “one of the Taliban’s more vocal supporters”. In fact, Baglow had frequently criticised the Taliban as dangerous, theocratic and tyrannical.
The judge found these words were protected by the defence of fair comment (here, honest opinion). Maybe that’s so. But he also found that they weren’t defamatory in the first place. How did he figure that? His most convincing justification was that readers would think that “one of the Taliban’s more vocal supporters” was not literally true but merely shorthand for “he’s effectively helping the regime.” Still, that’s not enormously convincing. For one thing, it’s not clear why readers would reach that conclusion. For another, it still seems a bit defamatory. Most importantly, the judge’s job was to weed out meanings that the words were incapable of bearing. Can it really be suggested that those words weren’t capable of meaning… just what they said? The judge seems to have usurped the jury’s function, which was to determine the actual meaning.
But the judge then lists other, even more interesting, reasons for his conclusion:
Internet blogging is a form of public conversation. By the back and forth character it provides an opportunity for each party to respond to disparaging comments before the same audience in an immediate or a relatively contemporaneous time frame. This distinguishes the context of blogging from other forms of publication of defamatory statements…
He said in many online environments, readers expect cut and thrust. They expect a defamatory statement to be parried. He said a “simple rejoinder” (he even went to the trouble of drafting one) could have “nipped in the bud” the risk to the plaintiff’s reputation.
In essence, I am suggesting that the Court, in construing alleged defamatory words in an ongoing debate, should determine whether the context of the comment from the perspective of the reasonable reader or listener is one that anticipates a rejoinder, which would eliminate the possible consequence of a statement lowering the reputation of the plaintiff in their eyes.
This seems to involve heroic assumptions. Why would readers necessarily discount an unrebutted statement? Why would a rebuttal necessarily undo all the harm? Still, putting aside its lack of coherence (it’s under appeal) the decision can still be seen as part of a trend: it treats online speech as distinctive; it suggests the best remedy for harmful speech is further debate; it incentivises rights of reply; it may reflect a sense that that the ICBM of defamation law is an inappropriate response to an online foodfight.
A US judge last year also refused to recognise online attacks as harmful. A bankruptcy specialist working at Obsidian Finance sued the author of “obsidianfinancesucks.com” (Obsidian Finance Group v Cox USDC, Oregon, 23 August 2011) for calling him a fraudster, thief, and liar who had engaged in corruption, pay-offs and cover-ups. The judge said that blogs “are a subspecies of online speech which inherently suggest that statements made there are not likely provable assertions of fact”.
Bear in mind that in the US, the First Amendment gives statements categorised as opinions a bulletproof jacket against defamation suits. And it’s certainly true that the blogger used lots of capitals, bold type and hyperbolic language, which many would have seen as clues to her credibility.
Still, the implicit assumption that inflammatory blogs are so overheated as to be self-evidently harmless seems questionable. I’m inclined to think a proportion of us (not me or you, of course) are credulous enough to lap this sort of attack up. Others may at least wonder whether there’s any fire under all that smoke. Are the victims of such attacks to be left without remedy?
Which takes us again back to the Law Commission’s search for the Holy Grail: a speedy, effective, and cheap means of determining online disputes like this. Should we set up a Communications Tribunal or Commissioner? The Commission is still taking submissions…
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Silly old TVNZ
January 27, 2012
This is why I don’t like doing TV. I gave TVNZ news an interview on the teapot saga yesterday, explaining my views as below that the risk is low for anyone who publishes the contents of the tape.
Their broadcast asserts as a fact that “we can’t broadcast what was said for legal reasons”. Later the reporter says “legal experts” (who are the others, I wonder?) say police will struggle to charge the leakers, and then there’s me saying that it’s hard to see how the police could prove the publishers knew they were publishing an illegally obtained recording. Of course, that also applies to the media, not just the leakers.
So why is it that TVNZ can’t publish for legal reasons?
Topics: Internet issues, Journalism and criminal law, Media ethics | Comments Off on Silly old TVNZ
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