Whale Oil loses his appeal
May 11, 2011
Cameron Slater has lost his High Court appeal against his convictions for breaching a variety of name suppression orders, and against the penalties imposed (ie fines totalling $6750). Remarkably, none of the 16 king-hit arguments he boasted of has found favour with either of the judges who has considered his case.
Topics: Name suppression | Comments Off on Whale Oil loses his appeal
Super-injunctions debunked
May 10, 2011
If you want to know what’s going on with so-called “super injunctions” (that is, court orders that not only suppress particular information but also suppress the fact of their existence), I suggest you don’t read the British press. Or anything that comes out of it. The British papers are so incensed by the idea of the super injunction that they are incapable of reporting that super injunctions are very rare, are usually plainly justified (because they deal with blackmail, for example), are usually very short-term, are often not even challenged by the media, and almost always involve information that is of no conceivable public interest.
Some of the ballyhoo has been about the “super injunction” granted to journalist Andrew Marr, who has now outed himself as the plaintiff. In fact, that was never a super injunction, just an ordinary one, and was reported on at the time it was granted. The wire-sourced Stuff article I’ve linked to above gets this wrong (a Stuff-up?). As does this other one in the NZ Herald (no fancy pun for that).
Topics: Injunctions | Comments Off on Super-injunctions debunked
Mosley decision imminent
May 10, 2011
Max Mosley has argued before the European Court of Human Rights that the right to privacy requires that people subjected to invasive intrusions by the media must be informed about them before publication to give them a chance to challenge them in the courts before the damage is done. This has the potential to throw the media into a tailspin. The ruling will be released later today.
Topics: Privacy tort | Comments Off on Mosley decision imminent
Igniting debate
May 10, 2011
Yesterday, I was on TVNZ’s Breakfast show to talk about the Morse decision.
Topics: Protest speech | Comments Off on Igniting debate
Flag that
May 7, 2011
Anyone reading today’s front-page story on the Morse flag-burning decision has every right to be confused.
The paper correctly reports that the Supreme Court has found that it’s necessary to prove that offensive behaviour must give rise to a “disturbance of public order” before a conviction can be entered. But the paper reports that a protester was punched after the burning. Did the court decide that wasn’t a disturbance of public order?
The paper notes that:
It is illegal under the Flags, Emblems and Names Protection Act of 1981 to destroy the flag with the intent of dishonouring it.
Did the court also rule on that Act, and perhaps find that it, too, required some sort of disturbance of public order?
The paper reports Bill Hodge saying the decision means the police no longer have the right to pre-emptively take action to prevent a breach of the peace. Is that what the judges say?
No, no and no.
The punch
The punch wasn’t thrown at Valerie Morse, but at another protester, who had blown a horn, then tussled with the police when they tried to remove the horn, then tried to run away through the crowd. (This is discussed in the judgment). It wasn’t in any sense a consequence of the flag-burning and the Crown didn’t allege that it was. If someone had tried to punch Valerie while the burning flag was aloft (or throw something at her or threaten her), there’s an interesting question about whether that would be the sort of disturbance of public order that the Supreme Court were talking about. After all, you can’t hold a protester responsible for the unreasonable reactions of onlookers. The thrust of the decision, I think, is that onlookers are generally required to show restraint and tolerate the views and methods of protesters, even if they despise those views or methods.
What’s more, most of the judges noted that there was some level of disturbance of public order in response to the Anzac day protest. Some at least might have been prepared to say that it was enough disturbance for her to be convicted. But they weren’t confident about the evidence, and didn’t think it was fair to hold it against her since during the trial nobody had realised how significant it was. For example, the defence might well have cross-examined harder about it.
The Flags, Emblems and Names Protection Act
This wasn’t mentioned by the court at all. Valerie wasn’t charged under it. You might remember that Paul Hopkinson, who protested at Parliament against the Iraq war by burning a flag was prosecuted under this statute. You might remember that he got off on appeal. The judge said our right to freedom of expression under the Bill of Rights meant that the offence had to narrowly interpreted. It required an intent to villify the flag. Most protesters don’t have that. Most plainly use the flag as a vehicle to protest against particular government actions and policies.
That case rather made the Flags, Emblems and Names Protection Act a dead letter. One of our arguments before the Supreme Court was that the prosecution shouldn’t be allowed to use the vague offence of offensive behaviour to avoid a prosecution under the Flags Act, which Parliament clearly intended to be the relevant offence. The Court didn’t address it.
Powers of arrest
I think Bill Hodge is wrong. There is no discussion in this case of the police’s powers concerning breach of the peace. They still have the power to arrest to prevent an imminent breach of the peace. This is essentially a crowd control measure, and doesn’t itself mean that an offence has been committed by anyone. This case doesn’t change that.
Topics: General | Comments Off on Flag that
Victory for protesters’ rights
May 6, 2011
Valerie Morse has won her appeal in the Supreme Court against her conviction for offensive behaviour for burning a NZ flag in protest at the 2007 Anzac Day dawn ceremony. (I represented her, along with Tony Shaw and Felix Geiringer).
Valerie lost in the District Court, High Court and Court of Appeal. But the decision in the Supreme Court was unanimous in her favour. They have found that protesters can’t be arrested and convicted for offensive behaviour unless the police can show there is a disturbance of public order.
Topics: NZ Bill of Rights Act, Protest speech | Comments Off on Victory for protesters’ rights
Journalists I like
May 4, 2011
I’m conscious of the fact that I often bag on journalists and media organisations. So I’ve decided to throw out the occasional bouquet too, in the interests of balance.
First up: take a bow Margo White. Her recent Listener story on the Maungatautari Ecological Island reminded me what a terrific journalist she is: thorough, smart, fair, and eloquent. She had to boil down some particularly tough issues and hold the balance between the warring factions. Gareth Morgan’s slightly whiny claim that she’d failed to “grasp the nettle” seems little more than a complaint that she didn’t side with him.
Topics: General | Comments Off on Journalists I like
Information sharing recommendations
May 4, 2011
New Zealand’s laws setting out what information government agencies are able to share with each other is a bit chaotic. In the Brown case, the judge noted with alarm that the Department of Corrections had cited the Privacy Act for its refusal to share information about a recently released convicted pedophile with Police in the locality he’d moved into. Apparently, this has been sorted, but similar issues crop up all the time. The Law Commission has come up with what look to me like a sensible set of recommendations for dealing with government information-sharing. Essentially, they suggest a process for developing approved sharing programmes through Orders in Council, against a set of criteria requiring necessity, transparency, and safeguards.
Topics: Privacy Act | Comments Off on Information sharing recommendations
Is the BSA becoming more conservative?
May 3, 2011
Broadcasters claim that our new crop of BSA members are more conservative than the last lot. They point to the decisions upholding good taste and decency complaints against Hung, Home and Away and the documentary about Aramoana.
Are they right?
In short: I don’t really think so. I had a quick squizz through the last 100 BSA decisions, dating back to about the time of the Hung and Home and Away decisions late last year. What’s extraordinary is that no fewer than 43 of them raised good taste and decency issues. Maybe complainants are getting more conservative, or more bolshy. Maybe broadcasters are pushing the boundaries more. But this is a very high rate of complaining about taste and decency. Usually taste and decency complaints comprise less than 30% of complaints, not 43%.
The BSA upheld 9 of these complaints (including Hung, Home and Away and the Aramoana decisions). That’s an uphold rate of 21%. That’s high, but not unheard of. Around 2000 to 2003 the BSA was upholding around a quarter of good taste and decency complaints. In more recent years, though, that rate has dropped markedly, often dipping well below 10%. Still, in 2008 and 2010 it was 16%. Obviously, a lot depends on the sort of material referred to them by complainants.
Their upholds have covered things like a rape scene in a movie, a Close Up interview with a porn star showing clips from her movies, a pretty explicit sex scene in a movie broadcast at 8:30pm, and raunchy clips from Outrageous Fortune broadcast on TV3 news. I doubt these really show any change of direction by the BSA.
A couple of other upholds seem more marginal to me. I’ve already discussed the Aramoana decision. The High Court overturned the decision in Hung. I’m not really sure the BSA needed to uphold the complaint against Ski FM’s morning host for wondering:
Which would be worse, sucking diarrhoea through a straw from someone else’s butt, or sucking diarrhoea through a straw from your own butt?
On the other hand, it’s not a breach to ask:
Which is worse, drinking pigs’ urine, or your own urine?
Just so we’re clear about that.
But overall, there’s much more fodder here for those who think the BSA is too permissive: a scene from Babel where a Japanese girl exposed her genitals; a talent show spoof on What Now where a judge said to Cinderella: “Next time I’m holding one of my balls, you’re invited”; grainy photos of Shane Warne with naked women (breasts blurred) on TV3 news; characters in a movie having sex in front of a dead body; the main guy in Extreme Male Beauty exposing genetalia and talking about something that made his “winkle bleed”; oral sex on Sex and the City; a couple simulating sex in public…. none of these good taste and decency complaints were upheld. The BSA members are not a bunch of wowsers.
Some complainants are, though. For example, someone complained that a Masterchef segment on how to humanely boil lobsters breached good taste and decency.
And someone had the poor taste to complain about this fine story, where 3 News speculated about the titles of porn videos rented on the public dime by MP Shane Jones:
At the conclusion of the coverage, the presenter mentioned that people had been making humorous suggestions on the social website Twitter as to the possible titles of the pornographic films Mr Jones had watched. She said:
Among the suggestions: “Shane and the Party Whip”, “If It Pleases the Speaker”, “Bipartisan Bitches” and, dare we say it, “Withdraw and Apologise”.
Not upheld.
All in all, it’s pretty hard to conclude that the new BSA is much more conservative than the old crowd.
But much more striking than their high uphold rate in good taste and decency complaints is their extraordinarily low uphold rate for all other types of complaints. By my count, of those other 57 complaints that weren’t about good taste and decency, the BSA has upheld just six. They upheld just one accuracy complaint (though another was subsumed) and only one balance complaint (in a case I argued).
I haven’t looked at the content of those decisions, so I’m not saying they got them wrong. But on the face of it, these figures suggest that if there’s anything conservative about this BSA it’s their reluctance to hold broadcasters to account for alleged lapses that aren’t related to taste and decency…
Topics: General | Comments Off on Is the BSA becoming more conservative?
BadJournalism
May 2, 2011
Meant to write about this last week.
How is it that the Sunday Star-Times can believe that a rehashed UK book on criminal justice (Badlands, NZ: A land fit for criminals) is important enough to be front-page news, but that the claims it makes are not important enough to seek out some New Zealand experts to evaluate them?
Topics: Media ethics | Comments Off on BadJournalism
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