Free speech vs privacy
June 12, 2011
A New Mexico man puts up a billboard of himself holding the outline of a baby, saying:
This Would Have Been a Picture Of My 2-Month Old Baby If The Mother Had Decided To NOT KILL Our Child!
His ex-partner (who says she had a miscarriage not an abortion) sues for harrassment and invasion of privacy.
A London plummer outraged about his wife’s affair with her boss, the director of one of the world’s largest reinsurance companies, runs a public campaign, include blogging and twittering, to allege that the boss conducted the affair on company time is up on charges of harrassment.
Are these exercises in free speech? Are they, in fact, protest speech? Are they harrassment? Invasions of privacy? All of the above? Does it make any difference whether the facts are right or wrong?
Topics: Harassment Act, Injunctions, Internet issues, Privacy tort, Protest speech | Comments Off on Free speech vs privacy
Sauce for the goose
June 10, 2011
Has anyone else twigged to the irony that the UK media have fought, tooth and nail, against Max Mosley’s attempt to force them to give advance notice to people whose privacy they plan to invade (which would give those people a chance to seek an injunction before the damage was done by publication)… at the same time as they’ve been fighting equally hard for the right to be given advance notice themselves of anyone who seeks an injunction against them (which would give the media a chance to turn up and argue that such an injunction should not be granted)?
For those keeping score: the media won the first point in the European Court of Human Rights (though Mosley is seeking to have the matter heard in the Grand Chamber) and seem to have pretty much won on the second as well. The Neuberger report suggests the media should usually be enabled to appear before injunctions are granted, which might well go a good long way toward killing them off.
Oh, the poor benighted British media, struggling manfully against the evil reach of their country’s gagging laws.
Topics: Privacy tort | Comments Off on Sauce for the goose
Darren Hughes’ accuser: will he be named?
June 9, 2011
Now that the police have decided not to press charges against Darren Hughes, the obvious next question is whether his accuser can be named.
For now, the answer is no. There is still an injunction in place. Someone will have to apply to court to have it lifted.
Will the judge be sympathetic? I suspect so. He says in his injunction order, “If… the Police decide not to pursue the charges… that circumstance would certainly warrant reconsideration of the basis for the present order.”
That order was in large part based on the fact that the accuser would get automatic name suppression as a sex crime complainant if charges were laid. If he was named before any such charges were laid, that protection would effectively be lost. Of course, it’s now clear that no charges will be laid.
It also seems that the accuser himself only argued for protection for the pre-charge period:
The essential thrust of his claim is that the present circumstances of his complaint to the Police and, in the period until the Police decide whether to lay charges in relation to his complaint, the fact that he has made such a complaint, the fact that he has made such a complaint is a matter of private information with a reasonable expectation of respect for that privacy. [Bold added]
Finally, the judge found that the important thing for the public to know was the fact of the complaint, not the identity of the complainant. Things may have changed now. There may now be public interest in knowing more about the circumstances, including the identity of the complainant, in order to evaluate whether Hughes can appropriately return to the political stage, and perhaps to enable Hughes to tell his story if he wishes to.
On the other hand, there is still a general interest in protecting the identities of people who allege, in good faith, that they have been sex crime victims. I haven’t seen any suggestion from the police that the complaint was not made in good faith.
On balance, I’d expect the injunction to be discharged if someone makes the application.
Topics: General | Comments Off on Darren Hughes’ accuser: will he be named?
Hung: drawn and quartered
May 23, 2011
The BSA’s decision on the Hung programme has been put to death by the High Court. (You might have thought this would be a judicial decision of public interest for the Courts of NZ website. Apparently not.)
My article with Claudia Geiringer about the BSA and the Bill of Rights is cited again, perhaps not so favourably this time. At least, that’s what I thought when I first read the decision… on second read, I think the judge buys into most of what we say.
What were the BSA decisions about?
A quick recap. The BSA had found, by majority, that a raunchy oral sex scene in the late-night TVNZ satire Hung breached standards of good taste and decency. It also found that a frisky scene in the TV3 Aussie soap Home and Away breached the same standard, and also the standards on children’s interests and responsible programming. The broadcasters joined forces to lodge appeals.
TVNZ won; TV3 lost.
Why did the TVNZ appeal succeed?
The successful ground of appeal wasn’t about the Bill of Rights. I think Claudia and I can take some credit for that. In our article, we criticised the BSA for its boilerplate consideration of the Bill of Rights. After that, the BSA started more methodically addressing Bill of Rights issues. That included the two decisions under appeal. If they had simply followed their old boilerplate approach, it’s pretty clear from the judge’s comments that the appeals would have succeeded on Bill of Rights grounds.
Anyway, the successful ground of appeal was that the BSA was “plainly wrong” in the way it characterised the narrative context of Hung. Here’s what the BSA said about the sex scene:
… the scene complained about was prolonged, explicit and gratuitous, leaving nothing to the imagination and designed solely for the purpose of shocking and titillating the audience.
But this was flat wrong, on a couple of counts. First, the scene showed a man with his head up a woman’s skirt. There was no mistaking what was going on, but there was almost nothing truely explicit. It came closer to leaving everything to the imagination.
But the judge seized on something more significant. This was not a gratuitous scene. It wasn’t included purely to titillate. Here’s the judge’s perceptive analysis:
Hung’s protagonist is a down and out former teacher who turns to providing sexual companionship to women for pay. Sex plays an inevitable part of the narrative. No viewer could be surprised at a scene with some strong sexual content. The scene formed a natural part of the storyline both of the episode and the series. In its immediate context the scene shows a reversal of the traditional role where sexual exploitation is by men of women, and in a mildly humorous way. In terms of the initiation of sexual contact and payment traditional gender expectations are turned on their head. The themes of role reversal and the exploitation of a male for sexual purposes are reflected in the scene. It is the only sex scene in the particular episode. It demonstrates a modest victory for Lenore in her battle with Tanya for control of Ray. For Ray, it is another dollar. He performs a sexual service for a woman he does not like. It fits naturally into the episode’s storyline. It was not the case, as the majority decided, that the scene was designed “solely to titillate”.
That’s surely right. And it means the decision is fatally flawed.
So Hung is in the clear?
Does that mean the programme is not in breach of the standards? That’s not clear yet. The judge may yet refer it back to the BSA for another go – this time, better advised about the relevant law. Still, even if this happens, it would be a brave BSA which would re-take the decision that this breached the standards.
What about Home and Away?
The BSA made no such error there. Nor the judge say its approach was inconsistent with other decisions. He wasn’t prepared to examine whether the BSA had failed to properly consider its own research. He refused to accept evidence of other material that had screened in the same timeslot and was just as raunchy. He did feel that more fulsome reasons would have been useful, but didn’t find that the reasoning the BSA did provide was so sparse as to constitute an error of law.
What about the Bill of Rights?
The judge had quite a lot to say about how the Bill of Rights affects the BSA. He confirmed that when the BSA upholds a complaint, it must “articulate” why it believes the decision is demonstrably justified under s5, since it penalises expressive rights. He noted that the right to free speech includes the right to shock, offend or disturb. He properly recognised that the Supreme Court has said that the Bill of Rights doesn’t mandate any particular approach to s5, but that the BSA must conduct some analysis.
Julian Miles QC, drawing on our article, suggested that the analysis had to proceed like this:
… it was necessary in such an enquiry to consider the significance in a particular case of the NZBORA values, the importance of the public interest, the extent of the intrusion of the particular right, the limits sought to be placed on the application of the NZBORA provision, and the effectiveness of the intrusion in protecing the interests put forward to justify the limits…. the Authority did not carry out a full s5 analysis involving the exploration and evaluation of free speech values and conflicting legislative objectives, and a process for weighing up the strengths of the interests of each side.
The judge held that such a “detailed process of structured reasoning” was not required in every case. In fact, it wasn’t required in cases like this.
As the judge recognised (not all judges do), there are two aspects to the s5 “demonstable justification” question:
1. what process of reasoning must be followed?
2. how strong must the justification be?
In fact, there’s a third: at what point on either of these scales can the court on appeal intervene to say that the BSA has got it wrong? That is: how bad does the BSA’s Bill of Rights methodology need to be before the court will say the decision is wrong, and (separately), how much slack does a court cut the BSA before saying that the reasons it has advanced justifying the uphold are not sufficient in law to constitute a demonstrably justified limit on the broadcasters’ free speech rights?
The first question is about process; the second is about substance; the third is about (for want of a better word) deference by the courts to the decision-maker.
Methodology
The judge rightly said the courts shouldn’t be riding the BSA’s back about its methodology. Most of its members aren’t lawyers. There’s no public interest in elaborate, technical BSA decisions. Besides, if a decision is plainly demonstrably justified (eg upholding a complaint of inaccuracy against the broadcast of an allegation that the PM tortures kittens, which was based on a transparently biased and unreliable source and has been thoroughly disproved), then the courts have no business overturning it on Bill of Rights grounds merely because the BSA had technically not followed the correct methodology.
Still, the judge said, some degree of formal consideration of the Bill of Rights is required. He agreed with Claudia and I that boilerplate consideration is not good enough. “The Authority should, in its own reasoning, show transparently why it has reached the conclusion that the limitation is justified under s5, and not by reference to generic statements in other earlier decisions.”
Most importantly, more formalism (which I take to mean a more detailed and more closely structured reasoning process) is required where the expression concerned is more important: “the importance of the type of expression restrained will be relevant to the degree of formalism required in the s5 consideration”. What’s more, he suggests that more formalism will be required when the BSA proposes to impose a heavy penalty, such as taking the broadcaster off-air.
However, Home and Away only involved entertainment. It was towards the bottom of the hierarchy of important speech. Accordingly, less formal reasoning was needed. The BSA’s process was “sufficient”. Still, the judge said the BSA’s reasoning was “rather bare” and “it would have been helpful if they had been less conclusory and contained more reasons”:
I take into account that shorter reasons can be justified for a s 5 decision relating to a short sex scene, than might have been expected if a complaint concerning a significant political programme was being upheld.
What’s required is that the BSA carry out “the essential balancing exercise”, and in this case it was not required to “break that exercise down into a series of steps”.
Substance
To some extent, the judge’s reasoning here overlaps with his methodology reasoning. But it seems clear enough that where speech is important, it’s not just more elaborate reasoning that’s required for a limit on speech to be considered demonstrably justifed. It’s more compelling reasons. It would be a nonsense if the BSA could impose a patently unjustified limitation on a broadcaster (eg ordering the broadcaster off-air for 24 hours for a story that inaccurately stated the margin of error in a particular political poll)… and then escape appeal because its reasoning was formally structured and detailed. That’s not the thrust of the judge’s decision.
The judge says that the BSA is required to evaluate – in every case, it seems – the significance of the speech. He cites Baroness Hale in the Naomi Campbell case, sketching out a hierarchy of different types of speech, some of which “are more deserving of protection in a democratic society than others”: political speech, then intellectual and educational speech, then artistic speech. The more important the speech is – in terms of serving society – the greater needs to be the justification for limiting it. This is now standard fare in the UK, and has been in the ECHR for decades. Our appeal judges have said similar things. The Home and Away programme was not terribly important in this scale but was not without redeeming merit, either:
I accept the submission for TVWorks that the programme reflects and explores issues that arise in modern society, including marital problems and sexuality, and in an Australian context that is relevant to New Zealand. But the scene cannot be said to be educative or informative, or the sexual part to reflect a central theme of the programme.
Thus a programme like that may be more readily restricted, though its social value must be considered in the balance. I don’t think the BSA has been very good at this, even in its recent decisions. In fact, the judge’s reasoning about context, discussed above, can also be seen to reflect this failure to assess the value of the speech in Hung.
Once the value of the speech has been assessed, it must be weighed against the social benefit of the restriction. These days the BSA routinely identifies the aim of the standards it is considering, to help it work out whether the social gain from upholding the complaint outweighs the value of the speech. Sometimes it does this very well. The BSA’s description of the aim of the balance/controversial issues standard seems just right:
the balance standard exists to ensure that competing arguments are presented to enable a viewer to arrive at an informed and reasoned opinion
But sometimes the BSA does this less well, I think. It describes the children’s interests standard, for example, as protecting children against “unsuitable material.” But that’s an entirely circular definition. What’s “unsuitable”? Whatever the BSA thinks contravenes the childrens’ interests standard! In fact, a better description would be protecting children against material that might harm them or impair their development. I think that’s plainly what the standard is about. Characterising it that way allows a sensible assessment of whether, and to what extent, a particular programme threatens those interests – and whether and to what extent upholding a complaint will help serve them.
The judge didn’t explicitly say that. But he did say that the BSA’s reasoning was bare and conclusory. So perhaps he had that in mind.
Error
On one point, I think the judge was flat wrong, and the BSA is right. The judge says the BSA should have rolled up its justification into a single exercise, and not conduct it standard-by-standard. After all, he says, there was only one complaint, and there’ll only be one order.
This is surely wrong. For one thing, there’s often more than one complaint, about different standards, and even a single complaint can raise issues under different standards. For another, the judge apparently approved of the way the BSA identified the aims of the various standards, and only wished the BSA could have provided more detailed reasoning about them.
Assessing the aim and justifiability of a restriction based on balance may be entirely different (and even reach a different conclusion) than assessing the aim and justifiability of a restriction based on inaccuracy. The essence of proportionatity is that the harm to a right is weighed against the gain to a competing policy objective. That exercise is very difficult to conduct in relation to multiple different objectives, all at the same time.
I’m not sure what the BSA can do with this dicta from the judge. But I think they should ignore it. No other judge has suggested it. It might be possible to roll this analysis together, but it will be messy and unprincipled; hard to write and hard to follow.
Deference
The judge quite properly indicates that the BSA are the experts here, and he won’t intervene to conduct his own balancing exercise. But the judgment does suggest that things might have been otherwise if the speech had been valuable and the methodology or substantive reasons insufficient…
Conclusion
Overall, this seems to me like a good decision that offers useful guidance to the BSA and other decision-makers whose decisions affect the exercise of rights. I doubt that it will be the last word. But Asher J is grappling with the principles much better than many others have (his decision in another recent Bill of Rights case, Commissioner of Police v Burgess, strikes me as spot on too). This case strikes me as a step in the right direction.
Topics: Broadcasting Standards Authority, NZ Bill of Rights Act | Comments Off on Hung: drawn and quartered
Sign of the times
May 23, 2011
Wouldn’t it be just like some smart-arse protester to sneak in at night and change the WELLYWOOD sign to something like SMELLYWORD?
Not that I’m advocating that, you understand. It would be against the law.
Topics: Protest speech | Comments Off on Sign of the times
Unbelievable
May 21, 2011
Some readers have wondered whether I’m exaggerating when I accuse the British press of being incapable of reporting fairly about so-called super-injunctions. Here I offer Exhibit A: today’s Guardian story about a long-awaited and fascinating report by a committee headed by the Master of the Rolls on the issue of injunctions, super-injunctions and anonymity orders. The headline?
Super-injunctions granted far too readily, say judges
This is, in fact, precisely not what the report says. It says it has been able to find evidence of only two super-injunctions since 2010, one of which was reversed on appeal. The committee (not just made up of judges) says super-injunctions have to be very carefully controlled, granted on strict terms, and granted rarely. And it says that’s just what’s happening. Still, the committee wasn’t certain it had picked up on all the super-injunctions around, including some that may have been granted before 2010.
This is simply nowhere near as big an issue as the media are suggesting.
UPDATE: I was mystified by the way the Guardian quoted the committee as saying that there was “justifiable concern” super-injunctions had been granted “far too readily”. That statement doesn’t appear in the report at all.
But a summary of the report, with accompanying statements by Lord Judge and Lord Neuberger, does say it:
There was justifiable concern, when the Committee was formed, that super-injunctions were being applied for and granted far too readily. This concern has now been addressed. Since January 2010, so far as the Committee is aware, two super-injunctions have been granted, one which was set aside on appeal and the second which was in force for seven days. Super-injunctions are now only being granted, for very short periods, and only where this level of secrecy is necessary to ensure that the whole point of the order is not destroyed.
The Guardian’s headline seems much more justifiable in that light, though it implies that the practice continues when the report says it doesn’t. Still, the story sets out the report’s findings. Oddly, the report itself really doesn’t supply any evidence to substantiate the concern that super-injunctions were granted far too readily before 2010. It does talk (para 2.35) of “justifiable concerns that a form of permanent secret justice was beginning to develop”, and says (para 2.36) that some old super-injunctions may still be in existence. But it provides no statistics or even examples, adn merely reports (para 4.4) that the claims are “impossible to verify”. The report suggests that the higher estimates (up to 300) may based on double-counting, counting anonymity orders, or just exaggerated. The committee sensibly recommends that better statistics be kept.
Topics: General | Comments Off on Unbelievable
Which one is not like the others?
May 16, 2011
Famous victims of the justice system: Lindy Chamberlain, Rubin “Hurricane” Carter, the Guildford Four … and David Bain?
Bain and Joe Karam are lined up to speak with these others at an international conference on justice in Perth next March.
Barry Scheck from the Innocence Project will also be speaking.
Topics: General | Comments Off on Which one is not like the others?
Who slew? Who knew?
May 13, 2011
Let me go on record as saying I think Jon Stephenson’s allegations about NZ involvement in abuses in Afghanistan demand a proper independent investigation. Wayne Mapp seems to have admitted many of them, but somehow the government still seems to be saying “Move along – nothing to see here”. At the same time the PM is attacking Jon Stephenson’s credibility in way that strikes me as being both despicable and entirely beside the point.
Was NZ party to war crimes? I want to know.
Topics: Media ethics | Comments Off on Who slew? Who knew?
Why we should protect flag-burners
May 12, 2011
This piece is in today’s DomPost, but they don’t seem to have put it up online:
I’m astonished by the reaction to the Supreme Court’s decision overturning Valerie Morse’s flag-burning conviction. “Anyone can burn our flag”, thunders the front page of the Dom Post, disapprovingly. It’ll make the police’s job harder, intones Radio NZ news. The decision is “ridiculous”, says an RSA official.
I was one of Valerie Morse’s lawyers, so I’ve thought a lot about her case. And these responses strike me as shallow and misleading.
One reaction I can respect, though, is from those (like other RSA spokespeople) who are appalled that anyone would think of burning a
But protesters are a determined breed. They care passionately about the issues they demonstrate about. Many have devoted their lives to the cause. For Valerie, and others, that cause is our country’s involvement in foreign conflicts. Their banner that day called on the government to pull our troops out of
It is difficult to think of a more important political issue than whether we should involve ourselves in foreign conflicts. And it’s difficult to think of an important political issue that has received less debate and media attention.
Is it any wonder that protesters see the need to shock us out of our complacency? Remember, we’re talking about protesters who tend not to have the money to run big media campaigns. They don’t own newspapers. They don’t feel represented by the political parties. They tend to be regarded as radical. Journalists don’t go to them for quotes and stories.
So why listen to them at all? Why indeed? Why listen to those upstart suffragettes in the nineteenth century? The smelly hippies in the sixties who started drawing attention to environmental degradation? The handful of consumer activists pointing out that our cars were unsafe? The clutch of humourless harpies arguing for equal pay for women?
US law professor Cass Sunstein has written a series of terrific books exploring how ideas take hold in society. The evidence shows we have a strong tendency to conform to prevailing ideas. When those ideas are widespread, but flawed, this can have terrible consequences. We’re often in the most danger when we’re the most smugly sure of ourselves. But the good news is that society can be rattled out of narrow mindsets, and sometimes change direction altogether. All it takes is a handful of dissenting voices. They provide the opening for the rest of us to start considering different approaches. We should encourage dissent, he concludes, not punish it. Conformists benefit their own interests. Dissenters benefit society.
Of course, that doesn’t mean that every protester has magic access to the truth. Some are crackpots. The point is that it is vital for society to be constantly challenged by people who strongly believe that things should be done differently.
Valerie’s flag-burning ignited howls of outrage about her methods. But it also sparked one of the few debates we’ve had about our engagement in
What’s more, it drew a stinging rebuke from the Prime Minister and the leader of the opposition. I’m inclined to think that a dressing down like that is the right place for those seeking to enforce norms of decency in protests. We don’t need to use the criminal courts.
When protesters are brought before the courts, the New Zealand Bill of Rights Act is there to ensure that judges respect rights of free speech, and only restrict it when doing so can be “demonstrably justified in a free and democratic society”. Valerie’s case was about forcing the courts to acknowledge that the police and criminal law must give protesters, and others engaging in speech, more latitude.
This is hardly a radical idea. It is well established internationally that the right to free speech protects protesters and includes the right to shock, offend and disturb. As UK Court of Appeal judge Sir Stephen Sedley put it in a similar protest case: “Freedom to speak inoffensively isn’t worth having”.
There is surely no country on earth that treasures its flag and its troops more than the
The Supreme Court upheld their rights. It said the First Amendment serves to “protect even hurtful speech on public issues to ensure that we do not stifle public debate.”
Our Supreme Court has not gone so far. It has not said it will never be offensive behaviour to burn a flag. It has not stripped police of their powers to intervene in a protest when a breach of the peace is imminent (though the thrust of the decision suggests police should usually restrain crowd members from taking unreasonable retaliatory action, not arrest the protesters).
The court unanimously laid down a principle that we can’t punish behaviour as offensive unless it’s disturbing public order. And when protesters are exercising speech rights, we must be extra tolerant of their views and their methods – even if we despise both – before we can call their conduct criminal.
That seems right to me. That’s what freedom looks like.
*In the comments thread, Russell Brown disagrees that the flag-burning “sparked one of the few debates we’ve had about our engagement in Afghanistan”. I’ve gone back and looked at my files, and he’s got a point. As my op-ed piece accepts, most of the response was about whether it was appropriate to burn a flag. But it did go further than that. In the course of the coverage, the protesters’ message about involvement in foreign military conflicts was fairly widely reported. Three editorials discussing her actions outlined the reasons for them. Several letters to editor were published that addressed the militarism debate (“Our robust independent foreign policy ensures that we make up our own mind on conflict in the world today and I think Morse needs to give New Zealand greater credit for that”, said one. Another suggested that the way we honour our “heroes” sometimes obscures the atrocities that countries commit in wars). I’ve reproduced one of Valerie’s letters below. In addition, Marion Hobbs, who attended the ceremony on behalf of the government, defended our involvement in overseas conflicts as peacekeeping and said Morse must be “crazy” to oppose it. There was also debate about whether ANZAC day was, as Morse contends, a “glorification of war.” But I don’t have any evidence that the debate focussed specifically on Afghanistan.
Topics: Protest speech | Comments Off on Why we should protect flag-burners
Max Mosley slapped down
May 11, 2011
The European Court of Human Rights has unanimously rejected Formula 1 boss Max Mosley’s claim that the UK’s laws didn’t sufficiently protect his privacy because they didn’t require the press to give him advance notice before publishing invasive articles about him.
The most surprising thing about this decision is that the ECHR held that it would be possible to draw up a workable definition of “private life” so that the press would know when they’re about to intrude on it, and who this notice requirement would apply to. (The ECHR did not, however, supply such a definition).
However, it concluded that an advance notification requirement would be unworkable for other reasons. It would have to be subject to a public interest exception, which would fatally undermine it. After all, the News of the World said it believed the footage of Max Mosley having his bottom shaved was in the public interest (both because of what they believed – wrongly – to have been a Nazi theme, and because they asserted that the S and M session depicted a series of assaults!). So it wouldn’t have worked in Mosley’s case.
Such a requirement would also have the potential to chill important speech, the court found. (This isn’t very well explained, I think. It is a universally accepted principle of ethical journalism that people be confronted with serious criticisms so that their response can be included in the publication. That’s not usually regarded as chilling speech. What’s more, the possibility that a person may seek an injunction to prevent publication if they are forewarned like this is not usually regarded as a good reason not to seek such a response.)
More convincingly, the court said that such a rule would be only as effective as the punishment for breaking it. If tabloids ignore the notification rule, what then? Fine them? It would have to be a big fine to provide any real incentive. So big, in fact, that it would probably be disproportionate.
As Hugh Tomlinson QC points out, this is not really a shining triumph for free speech. It is not a backward step in the ECHR’s privacy jurisprudence. There’s no doubt that the judges would have rejected any claim by News of the World that Mosley’s privacy action against them breached their free speech rights.
Topics: NZ Bill of Rights Act, Privacy tort | Comments Off on Max Mosley slapped down
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