Marshalling the facts?
March 31, 2011
You may recall that I blogged about a student who accused journalist Jonathan Marshall of trying to persuade him to lie to university staff to extract information from them. The Sunday Star-Times’ editor called it “complete fantasy”.
I’ve just had another long conversation with the student concerned. His memory of Jonathan’s approach is detailed. He says it happened after a tutorial at 2:30pm on Friday. He says a tall, lean, brown-haired man approached him as he left a university building. The man was wearing a dark suit without a tie, and was accompanied by another man, who was about 40, with brown hair and stubble. The first man looked familiar. The man introduced himself as “Jonathan from the Sunday Star-Times”. The student now recognises him as Jonathan Marshall.
He says Jonathan struck up a conversation about the Darren Hughes incident and asked him, among other things, where the complainant was likely to have his classes, whether there was a bar on campus, and which bars first-year students hang out in.
At one point, he says, Jonathan asked whether he would be prepared to go to the office and say he was a long-lost friend of the complainant, that he wanted to catch up with him, and find out where his classes were. (He refused, but didn’t say to Jonathan’s face that the idea was “morally bankrupt”: that was something he told me and I wrongly thought he’d said it to Jonathan, so I’ve deleted that from the original post).
The student has no reason to lie that is apparent to me. He says he discussed his experience with his father and flatmates before he told me. I found him convincing. I note that Jonathan was himself seen in a nearby university office shortly afterward, wearing a dark suit and no tie.
I don’t think it can really be said that there is “nothing to suggest this supposed incident ever took place” or that it is “complete fantasy”. I think there are good reasons to suspect that Marshall did try to encourage a student to lie for him to get information about the complainant for his story.
I might add that, even if it did happen, there is an interesting debate to be had about whether it’s wrong (or always wrong) for journalists to do that sort of thing.
Topics: Media ethics | Comments Off on Marshalling the facts?
18-year-old in Hughes incident awarded injunction
March 29, 2011
The student who made the complaint against Darren Hughes has obtained a High Court injunction preventing him from being identified.
The claim is made against Fairfax, APN, TVNZ, MediaWorks and bloggers Danyl McLauchlan and David Farrer. The injunction, however, applies to anyone with notice of it. It would be a contempt of court to breach it.
The application was made without notice to any of those defendants because of a fear that the name would be published before the case could be properly argued.
The court decision confirms that the complaint alleges sexual offending. This means that, if charges were laid, the 18-year-old would get automatic name suppression as an alleged sex crime victim.
But that does not apply unless and until charges are laid. So the injunction was based on the tort of privacy.
The judge describes it as “at least a holding injunction”, which suggests that it may be reconsidered after submissions from the defendants. The judge also says it may need to be reconsidered if charges aren’t laid or the information somehow gets out into the public domain anyway.
The privacy arguments are addressed very briefly. Dobson J makes the obvious point that once the name is out, privacy will be lost. He says the plaintiff argues that he has a reasonable expectation of privacy relating to the police complaint, at least while it is being investigated. He recognises that there is a public interest argument here, but says “the larger element of public interest is in the fact of a complaint against a person in Mr Hughes’ former position, rather than the identity of the complainant.” He also notes that publication now would destroy the protection of statutory suppression available to the 18-year-old if sex charges are laid.
He also dispenses with the usual requirement that the plaintiff give an undertaking as to damages. This seems to be significant, because there is conflicting authority about whether he has the power to do so.
The judge explicitly allows the defendants to come back to court to argue for a variation or rescission “at short notice”.
Comment
I think this is probably one of the very rare occasions on which such an injunction can be justified (especially as a holding measure) and when it is fair enough to proceed without notice. But although the Hosking case was cited to support the injunction, there is no mention of the majority judges’ comments on the need for a high threshold for injunctions [para 158]:
… usually an injunction to restrain publication in the face of an alleged interference with privacy will only be available where there is compelling evidence of most highly offensive intended publicising of private information and there is little legitimate public concern in the information. In most cases, damages will be considered an adequate remedy.
This threshold is not uncontroversial. The Chief Justice has suggested that it may need to be lowered. In addition, it might be argued that damages would not be an appropriate remedy in this case. Still, this issue should really have been addressed before the injunction was ordered. Also, it’s arguable that the judge is too dismissive of the public interest arguments. A complainant’s identity may have a bearing on his credibility, and this complaint has had very significant political ramifications.
On the other hand, it’s interesting and commendable that the media have refrained from publishing the name so far. Surely they know it. Perhaps they sense the harm that it could do; perhaps they fear a lawsuit; perhaps they accept that the public interest in the name is limited; perhaps they are worried about audience backlash; perhaps they’re just doing the decent thing.
It will be interesting to see whether the media apply to have the order overturned, and to what extent it may be subverted on the internet.
Topics: Privacy tort | Comments Off on 18-year-old in Hughes incident awarded injunction
Jonathan Marshall’s methods
March 29, 2011
I have been contacted by a student at Victoria University who said he was approached by the Sunday Star-Times’ Jonathan Marshall at university last week, on the hunt for information about the 18-year-old at the centre of the Darren Hughes incident.
He said Marshall asked him to go to a university office and pretend to be a long-lost friend of the 18-year-old and ask for his class timetable. The student said he refused, and good on him.
I note the Press Council’s principle on subterfuge states:
The use of deceit and subterfuge can only be condoned in cases when the information sought is in the public interest and cannot be obtained by any other means.
If the student’s account is accurate, I don’t think there can be much doubt that Marshall was trying to use deceit and subterfuge here, even if he was enlisting someone else to do the actual dirty work. Was it, then, really in the public interest? And mightn’t there be other ways of getting this information?
I think journalists and the public probably admire crafty resourcefulness in the pursuit of an important story. And Marshall certainly breaks a lot of prominent stories. He gets information that others can’t. I’m sure that’s partly due to his excellent contacts and his tenacity. But I suspect this little incident opens a window onto his less ethical methods.
UPDATE: Jonathan Marshall emailed to criticise me for not contacting him for comment before publishing this post. It’s a fair cop. So I asked him for his response to the allegation. So far, he hasn’t replied.
UPDATE 2: This just in from Sunday Star-Times editor David Kemeys:
I have had your post about the conduct of Jonathan Marshall brought to my attention. It is complete fantasy. I have checked with people who were actually there, and there is nothing to suggest this supposed incident ever took place. Pretty disappointing stuff from someone who purports to be a media lawyer.
UPDATE 3: The student insists his memory is accurate.
Topics: Media ethics, Press Council | Comments Off on Jonathan Marshall’s methods
Justice: A book so good that Garth McVicar plans to read it
March 28, 2011
A new book on the justice system has hit the bookshop shelves. It’s called “Justice: Speaking Up For Crime’s Silent Victims”. The cover features a staunch-looking Garth McVicar, whose name also appears in large letters at the bottom.
Guess who wrote this book. Hint: not Garth McVicar. I presume when you open it up you are told that the actual author is Michael Larson, who in fact also made big decisions about the content, such as which Sensible Sentencing Trust controversies to focus on.
But that’s okay, because Garth says he’s “checked the facts, made sure that things are right” , according to an interview with Victoria University student mag, Salient.
Except – and I almost fell out of my chair when I read this – Garth hasn’t finished reading it yet. But he plans to… because, he says, “I understand it’s a phenomenal read”.
UPDATE: Stuff has Garth’s explanation: he’s read it chapter by chapter during the drafting, but not all at once. (If he has read it all though, why does he merely “understand” it’s a phenomenal read?)
Topics: General | Comments Off on Justice: A book so good that Garth McVicar plans to read it
Paul Henry broadcasting complaint
March 27, 2011
The BSA has found that TVNZ’s actions in response to Paul Henry’s ill-judged comments about the Governor-General were sufficient. Good call, I think.
Along the way, though, they also found that the comments breached standards of good taste and decency, fairness and discrimination. Perhaps that’s not too surprising. TVNZ had upheld the complaint on all three grounds.
But I think it is a bit worrying. For the reasons I gave here, there are problems with all three grounds. Those problems are not discussed in the decision, and in fact none of the parties had any particular interest in raising them. But if we take the BSA’s decision at face value, it seems to have lowered the boom for successful complaints for all three of these standards, without explaining why the usual approaches to them don’t apply.
Topics: Broadcasting Standards Authority | Comments Off on Paul Henry broadcasting complaint
Sunday Star-Times looks to be in contempt
March 27, 2011
Publishing interviews with jurors about the case they have decided is a contempt of court. Our courts have said that if jurors thought their deliberations may be made public, they’d be less willing to serve on a jury and less willing to be frank during deliberations. Revisiting cases may also upset the finality of jury verdicts.
These premises are not unchallengeable, and do not even seem to apply with great force here. What’s more, such interviews take place regularly in the US without the sky falling. But our courts have been (sometimes ridiculously) staunch about the rule.
So it’s hard to see how the SST gets away with this and this.
Topics: Contempt of Court | Comments Off on Sunday Star-Times looks to be in contempt
Er
March 18, 2011
Shouldn’t some journalists be asking the government, and Rodney Hide in particular, whether the Canterbury Earthquake Response and Recovery Act follows the principles in the Regulatory Standards Bill…?
Topics: General | Comments Off on Er
The earthquake privacy debate continues
March 18, 2011
The Court Report last week featured a debate over the quake coverage and whether it may have invaded the privacy of some of the victims. (I reprise my role as reporter for the show, and interview Tim Watkin from TVNZ and pundit.co.nz, who defends the coverage). On the panel are VUW senior lecturer Dr Nicole Moreham, Taylor Shaw associate Kathryn Dalziel and Izard Weston partner Robert Stewart).
Meanwhile, the exchange continues over on Pundit, where Tim has posted another column about the issue and there’s a lively thread.
Topics: Privacy tort | Comments Off on The earthquake privacy debate continues
Laws unto himself
March 18, 2011
Michael Laws comes up with a brilliant, savage parody of what a deranged right-winger might think about the case of Arie Smith.
Genius.
Topics: Media ethics | Comments Off on Laws unto himself
You’ve got to be joking
March 9, 2011
Okay, when you’re part of a trash-talking video barracking for Crawley Town in its upcoming fixture with Manchester United, it’s offensive to make airplane crashy dance gestures referencing the famous 1958 tragedy that killed eight Man United players. (Watch the plonker on the right).
But it is surely not criminal. Or so I would have thought. But no, said plonker has just been given a (suspended) jail sentence for using threatening, abusive or insulting words with intent to cause harassment alarm or distress. I think Britain has lost the plot.
Topics: Protest speech | Comments Off on You’ve got to be joking
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