For fuck’s sake
April 19, 2011
I’ve read hundreds of Broadcasting Standards Authority decisions in my time. The vast bulk of them, I agree with. Most of the rest, I figure it’s a line call. Then there are the shockers.
This is one. The BSA has found that a story on the TVNZ current affairs show Sunday about the Aramoana massacre in 1990 has breached standards concerning children’s interests and taste and decency.
Is that because it might be disturbing for children watching at 7:30pm to hear about a gunman who senselessly mowed down a bunch of people, including children? No. That might have made some sense, but that’s not what the complainant complained about or what the BSA found.
It was because a policeman being interviewed – not just any policeman, but the one who shot David Gray – twice used the word “fucking” when describing the events.
Well, he shouldn’t be talking about sex at 7:30pm, you say? But he wasn’t talking about sex.
Well, he shouldn’t be using an abusive word at 7:30, right? But he wasn’t using it in an abusive fashion.
Well, that language isn’t appropriate to describe a police stand-off. But he wasn’t using it to describe what happened. He was quoting what he Gray said to each other.
Well, TVNZ should at least give a warning. But they did. They gave two.
Here’s the excerpt:
I yelled out to him… I never told anybody this and I don’t know if it should be recorded for history or not, but I said to him: “You’re fucking good with women and kids, come out here and have a go at us.
He later quoted Gray as saying
Kill me, fucking kill me.
The majority of the BSA got a lot of things right. They said that context is all-important. They noted that this was high-value speech. They recognised that warnings had been given. They admitted that this programme was not likely to appeal to children. They acknowledged that the Bill of Rights was in play.
But they felt that it was, after all, broadcast at 7:30pm. Children may be watching, and their innocence and vulnerability needs to be protected from inappropriate language. People don’t expect that word to be broadcast then. BSA surveys suggest that more than 70% of us don’t approve of “fuck” in an interview or drama. Besides, the story could be told just as easily if the word was bleeped out.
I think the BSA did not think hard enough about the context here. Or about the need, when they’re evaluating a serious and significant current affairs programme, to come up with a better justification than normal for penalising swear words.
This was not by any stretch of the imagination a gratuitous use of the F-word. It is difficult to imagine a usage better justified by the context. It showed the intensity of the feelings involved. It smacked of their desperation, their urgency. It offered a window onto their mindset. It was part of the reality of the scene. It was not used in a sexual or abusive way. It was fleeting. In their discussion of context, the majority didn’t mention any of these things.
I also think that while the BSA recognise that this is significant speech, they don’t follow through with the implications of that. It means they need a proportionately more compelling justification before penalising it. It also means that they might have to look a bit harder at the actual harms involved. In fact “there is no psychological evidence of harm from fleeting expletives”. The evidence suggests that most kids have already been exposed to these words. It’s ridiculous to suggest that by bleeping them out in some early evening programming, children’s moral innocence will be preserved, even if it were actually under threat from exposure to a little non-abusive swearing.
In addition, a closer look at the BSA’s general research on the word “fuck” shows that it has become increasingly acceptable. Between 1999 and 2009, the proportion of people who find the word fairly or totally unacceptable has fallen from 70% to 51%. But the BSA didn’t cite this bit of the research. It focused on the research about specific scenarios, such as a television drama, which wasn’t really comparable. More comparable were the stats about its use in interviews, but I have a hunch that when 71% of people said they thought the word “fuck” was unacceptable in an interview, whenever broadcast, this was not the sort of interview or the sort of use of the word “fuck” they had in mind. I doubt, for instance, that many New Zealanders disapproved of Bono’s Golden Globe award acceptance speech, when he said “This is really, really fucking brilliant”.
In any event, the BSA has in the past accepted the use of the word “fuck” in other current affairs contexts that seem much less significant (see my post on another unjustified BSA decision here).
The BSA’s chair Peter Radich made most of these points in a compelling dissent:
In my opinion, this was good quality television recording part of our social history, which, with its warnings, was able to be broadcast at the time that it was and which was within the bounds of freedom of expression.
Too right.
Topics: Broadcasting Standards Authority | Comments Off on For fuck’s sake
Memo to Greg O’Connor
April 18, 2011
It’s a bit of a worry when even the police don’t understand the rules of contempt of court.
Police Association President Greg O’Connor scores an F on his understanding of the sub judice rule, as evidenced by his appearance on Close Up to defend the police’s handling of the Tiki Taane arrest.
The sub judice rule says that when a case is before the courts, no-one is permitted to comment on it in a way that may prejudice the outcome.
O’Connor apparently decided that if Tiki Taane was going to flout the sub judice rules by making public statements, it was fair game for the police too. Let’s just hope he doesn’t apply that same reasoning to, say, burglary. The thing about the police is, they’re supposed to obey the law, even when others don’t.
O’Connor also seems to think that the sub judice rule is only there to protect defendants. Wrong. As our current Chief Justice made clear in a recent contempt case, comment that prejudices the prosecution can also be a contempt.
But I suspect that neither side has actually committed a contempt. If this matter goes to trial, it’s likely to be more than 6-8 months away – the time the Court of Appeal says it usually takes jurors to forget news stories. And the failed Fairfax contempt case (in which much more inflammatory material was published) rather suggests that the sub judice is something of a dead letter these days – unless the publication occurs very close to the trial. [Update: Tony Smith has just pointed out to me that since the offence is only punishable by 3 months in prison, there won’t be a jury, another reason to suggest that there has been no contempt here.]
[I suppose I should also note that O’Connor insisted that the arrest had nothing to do with Tiki Taane singing “Fuck the police”. But his account on Close Up of what the case was about was so incoherent that it’s hard to know what to think. He did suggest that Taane rarked up the crowd, and he was leading a chant of “Fuck the police” after a fight broke out on the dancefloor. The bouncer handled the fight, and the police withdrew, said O’Connor, as the mood turned ugly. They returned later for a quiet chat with Taane, he said. At this point, they had no intention to arrest him. Apparently then, whatever role the chanting had, it doesn’t seem to have been grounds for arrest and prosecution.
O’Connor then says Taane was uncooperative, refusing to give his address. (Taane’s account is here). In fact, Taane wasn’t obliged to give his address. And it’s difficult at this stage to see what he might have done that was disorderly, or likely to cause violence. O’Connor seems to realise this and says “there were still people around”. But again, it’s difficult to see where the incitement was at this point. On O’Connor’s account, it seems the police can only have formed an intention to arrest him because of his response to their questioning. If that’s so, he’s right that the arrest had nothing to do with the song. But it also seems to have had nothing to do with disorderly behaviour likely to cause violence to start or continue…
Topics: Contempt of Court | Comments Off on Memo to Greg O’Connor
Jumping the gun?
April 18, 2011
Does Saturday’s front-page DomPost story break the law on reporting possible suicides? I think it does.
The story reports that Timothy Parlane was “killed by a train” shortly after police were warned that he was “suicidal”.
The Coroner’s Act prevents the publication of any particular relating to the manner of death when there’s reasonable cause to believe the death was self-inflicted… unless the Coroner has given permission. The story notes that the matter is before the coroner, but doesn’t say whether any such permission was given (or even sought).
However, the police tend to cut the media an awful lot of slack in enforcing this particular law, so I’m guessing nothing will come of it.
Topics: Journalism and criminal law | Comments Off on Jumping the gun?
CERA sweepstake
April 15, 2011
How long before the first amendments are needed to the new Canterbury Earthquake Recovery Act?
Topics: General | Comments Off on CERA sweepstake
Bouquet to SST
April 13, 2011
Adam Dudding of the SST has written a terrific profile on Paul Henry, deftly revealing him as an egotistical blowhard, but somehow likeable. I am fascinated by Henry’s (no doubt accurate) vision of himself as an opinion merchant. The pride Henry takes in the quality of his opinions is related to their ability to provoke reactions, not any effort he makes to inform himself of facts. It’s an insight to learn that he is a man who is apparently capable of believing both of these things at the same time:
I cannot remember one thing that I have ever said with the aim to cause offence or the aim to get publicity or anything like that.
I have no doubt there will be a lot of people who will listen to me with the sole purpose of being offended. And I hope I don’t let them down.
It all reminds me of this exchange, from US shock jock Howard Stern’s movie, Private Parts:
Researcher: The average radio listener listens for eighteen minutes. The average Howard Stern fan listens for – are you ready for this? – an hour and twenty minutes.
Pig Vomit: How can that be?
Researcher: Answer most commonly given? “I want to see what he’ll say next.”
Pig Vomit: Okay, fine. But what about the people who hate Stern?
Researcher: Good point. The average Stern hater listens for two and a half hours a day.
Pig Vomit: But… if they hate him, why do they listen?
Researcher: Most common answer? “I want to see what he’ll say next.”
Topics: Media ethics | Comments Off on Bouquet to SST
Protesters ahoy
April 12, 2011
Andrew Geddis on Pundit has posted an analysis of some of the legal and constitutional issues surrounding Greenpeace’s protest against mining surveyers on the seas off the East Cape.
Among other interesting points, he suggests that the seas can’t be a public place for the purposes of a charge of disorderly behaviour. I’ve suggested they can, though that’s not to say that such a charge would be appropriate.
UPDATE: the debate has moved well beyond disorderly behaviour, but there’s still a bit of head-scratching as to the width of the police powers.
Topics: Protest speech | Comments Off on Protesters ahoy
Fuck the police indeed
April 12, 2011
If the facts in this story are accurate, this seems a very questionable exercise of police powers:
A number of people at the gig said [singer Tiki] Taane began singing “f*** the police” when they carried out a standard inspection of the club.
When they approached him afterwards “things got out of hand”, a person who did not wish to be identified said….
Taane was arrested while performing at 3am and has reportedly been charged with disorderly behaviour likely to cause violence to start or continue. I’m not sure what “things got out of hand” means, or whose hands they got out of, but this sounds more like a protest than an incitement to me.
PS 1 Here’s Taane’s statement from his Facebook page.
Hey everyone, at 3:25am on Sunday the 10th of April I was arrested at my R18 concert in Tauranga. I was handcuffed and taken to jail were i spent the rest of the night. I have been charged with – Disorderly Behavior, likely to cause violence – for reciting the lyrics to a song by an American rap group called N.W.A. This song is a pr…otest song written by Ice-Cube in 1988, and i have often played and sang along to it at my R18 concerts with no trouble at all. Also arrested was the promoter of the concert, and my DJ, who was later released uncharged. I have had an excellent rapport with the NZ Police and I intend to keep that relationship positive. Im 34 years old and this is my first ever offense, and i feel it is unfortunate that one particular Police Officer became upset with the N.W.A lyric i sang that night. It was an awesome concert with an amazing crowd, and this is why i always come back to Tauranga to play. I would like to thank my whanau and friends for their support, and really do hope this is resolved positively and soon. All the best to everyone involved. Peace & Love Tiki Taane.
I suspect he means it’s his first ever charge rather than offence.
PS 2 Here are the lyrics to “Fuck tha Police” by NWA. I think it’s fair to say it’s a protest against police racism, in the context of a satirical court hearing. It’s also fair to say that a certain amount of retribution is fantasised about. The song has been widely covered, and is ranked 417 on Rolling Stone’s 500 greatest songs of all time.
PS 3 There are lots of interesting comments on Taane’s website. Some claim that the police were being intimidating. Some berate Taane for badmouthing them when they were just doing their job. One says Taane simply started chanting “Fuck the Police” in the middle of a different song (which also suggests that he didn’t cover the more inflammatory lyrics in the NWA song). Another says by their over-reaction, the police undermined their own authority. There doesn’t seem to be any discussion of any violence actually breaking out or being threatened.
Topics: NZ Bill of Rights Act, Protest speech | Comments Off on Fuck the police indeed
Que CERA, CERA?
April 7, 2011
A scenario: a staff-member at the new Canterbury Earthquake Recovery Authority leaks some information to the media. Maybe it’s about waste or inefficiency in the recovery effort. Maybe it’s about a raging personality conflict hampering operations. Maybe it’s about a contractor on the take.
The minister and the chief executive are furious about the leak. What can they do? They might decide to use their power to “require information from any source” to order the media to name their informant. The Cabinet paper (Proposed Government Arrangements: Paper 1) doesn’t suggest any exceptions for confidentiality, or even legal professional privilege.
The exercise of the power would have to be reasonably considered necessary for the purposes of the legislation – but these are wide indeed, and include “ensur[ing] Christchurch and its communities respond to and recover from the impact of the earthquakes”… and providing the Minister and CERA with “adequate powers to assist with the recovery” and restore “social and economic well-being” after the earthquakes. One could take the view that these purposes are wide enough to encompass the need to find the identity of a staff-member who was arguably acting unlawfully and hindering the recovery effort.
The policy papers don’t identify this as a potential rights issue.
The papers do mention (under “risk mitigation”) that the provisions could be similar to section 76, 77 and 82 of the Civil Defence Emergency Management Act. (Section 82 protects legal professional privilege. Section 77 contains an appeal right against “unreasonable” uses of the power).
In light of NBR’s experience with the Serious Fraud Office’s wide powers, I suggest the media take a close look at the CERA legislation when it emerges…
Topics: General | Comments Off on Que CERA, CERA?
A rod for their own backs
April 7, 2011
In the past week or so, both Fran O’Sullivan and Brian Rudman have assailed the courts for removing the Urewera 18’s right to a jury trial. Both are troubled that the reasoning behind the decisions (from the High Court, and then the Court of Appeal) is suppressed. Both say it’s difficult to see how the issues can be so complex as to warrant removing such a fundamental protection.
I’m inclined to wait to see the judgments before slagging them off. I note that the trials are slated for 3 months, and that this is much more than the 6-week threshold at which the Law Commission said it’s quite an imposition to expect jurors to sit. I wonder whether there may indeed be some complexity in directing a jury to about which parts of the 3 months’ worth of evidence applies to which defendant(s). And the decisions may contain reference to evidence or arguments that jury would not be able to see, which may justify suppressing them, on the grounds that if there’s a further appeal, the Supreme Court may yet order a jury trial.
Still, I think these columns, both by thoughtful journalists, serve the judges right. I find it difficult to believe that the whole of the judgments needed to be suppressed. Surely much of the reasoning could create no prejudice in the minds of a future juror. And these are publicly significant decisions. Where’s the justification for suppressing the whole lot? How can this be compliant with the Bill of Rights?
Well, in the High Court anyway, no one asked. The judge simply suppressed the whole judgment, including the outcome. When the Crown suggested this went too far, the judge called a conference. Then she simply deferred to a defence request that the result of the decision was all that could be un-suppressed.
Two things here. Note that it’s the defendants who are asking for this suppression. And note that we shouldn’t be quick to criticise a judge in a high-profile and complicated case who errs on the side of caution to protect what the defendants regard as their interests.
Still. There’s also the public interest to consider. The media is being suppressed from conveying this information to the public. The public loses – right when it matters most – the ability to understand and debate the reasons for this landmark ruling. The judges are supposed to protect those interests too. Especially where the defendants did not seem to be required to come up with any particular justification for the suppression – at least, none that was recorded in the judge’s minute, and there wasn’t so much as a mention of the Bill of Rights and its requirement of a demonstrable justification for such suppressions.
I don’t know whether there was much argument on the point in the Court of Appeal. But judges lose the right to complain about unfair treatment when they deny us the right to properly evaluate their decisions for no good reason.
Topics: General | Comments Off on A rod for their own backs
Worst defamation ever?
April 7, 2011
Dismissing Vince Siemer’s appeal against NZ’s highest ever defamation damages award, the Court of Appeal said:
We have not had our attention drawn to any worse case of defamation in the British Commonwealth, and our own researches have not disclosed one.
Really? It’s hard to imagine they looked very hard. What about the famous case of Lord Aldington, who was labelled a war criminal, responsible for 70,000 deaths, in 10,000 pamphlets distributed to politicians, the media, and his friends? (By contrast, Siemer criticised Michael Stiassny’s business practices and honesty. His criticisms were vehement and repeated, but were mostly made online; there was a billboard but it only referred to the website. Amazingly, the Court of Appeal referred to no evidence about the number of people who may actually have seen Siemer’s allegations).
Lord Aldington was awarded 1.5 million pounds, back in 1989. In the case I’ve linked to, the European Court of Human Rights found that the damages were so excessive as to be disproportionate, and therefore breached free speech rights under the European Convention on Human Rights.
As you may know, we’ve got a Bill of Rights too. It also protects free speech. Any restriction must be demonstrably justified in a free and democratic society. Somehow the Court of Appeal in this case, despite a fairly lengthy traversal of the principles applying to defamation damages, did not once mention the Bill of Rights Act.
Topics: General | Comments Off on Worst defamation ever?
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