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Pike River privacy II

December 2, 2010

I’ve since discussed Nicole Moreham’s post (below) with another privacy expert, who agrees with her wholeheartedly.

For myself, I’m not quite so sure. Certainly the grieving families were caught in a distraught and vulnerable moment. I’ll assume that there was no way for them to use to escape the assembled media. Coverage of children and those who were telling the media to piss off seems particularly offensive. And there’s really no redeeming public interest: the stock media argument that the public needs to see the families’ reaction to understand the enormity of the problem just doesn’t wash. This was grief porn: there was no legimate public interest in seeing it.

Still. The tort in New Zealand, as established in Hosking v Runting, revolves around the publication of sensitive private facts. By contrast, in England, the emphasis is on breaches of someone’s reasonable expectation of privacy. That formulation more readily lends itself to invasive intrusions on people’s privacy, even when they don’t reveal any particularly sensitive private information.

True, the definition of a private fact in Hosking is a fact in which there is a reasonable expectation of privacy. Am I splitting hairs? I don’t think so. In New Zealand, you still need to be revealing facts. It’s not about protecting our reasonable expectations of privacy in certain situations, but about protecting against the revelation of information about ourselves. Perhaps the appearance and behaviour of the grieving relatives might be a private fact. But that seems a stretch. We’re not really being told anything we didn’t know before.

In Hosking, the judges say that there will rarely be a reasonable expectation of privacy in relation to photographs taken in a public street. But they say that

in exceptional cases a person might be entitled to restrain additional publicity being given to the fact that they were present in the street in particular circumstances.

The examples they give are Campbell (where a famous model was photographed outside a Narcotics Anonymous meeting, revealing that she had lied about her drug problems) and Peck (where the media published CCTV footage of a man on a public street shortly after he had attempted suicide). It’s certainly arguable that the Pike River families are in a similar position: in a highly vulnerable state in public, and could reasonably expect not to receive publicity. But I wonder whether the analogy is quite apt. The Pike River families surely knew they were being photographed. They had taken no particular steps to shield themselves from public gaze. The footage didn’t reveal a secret (like drug addiction) or capture anything quite as extreme as the aftermath of a suicide attempt. Could it really be said that they had a reasonable expectation of privacy in the circumstances? Maybe. But it doesn’t seem like a slam dunk to me. 

Topics: Privacy tort | Comments Off on Pike River privacy II

Pike River privacy breach

November 26, 2010

My colleague, privacy expert Dr Nicole Moreham, reckons the media are guilty of breach of privacy with their splashy coverage of the victims’ grief-stricken families emerging from the briefing where they were informed of their loved ones’ fate. She has kindly allowed me to cross-post (original source here):

There would be few New Zealanders who are not aware that on Wednesday afternoon, after six days of desperate waiting, family members of the men trapped in the Pike River mine were informed that an second explosion had occurred. There could be no survivors. Family members were informed of the explosion at a public meeting. Numerous media were gathered outside. As the family members emerged from the meeting, just moments after receiving the news, their every expression and reaction was filmed and photographed by waiting reporters. These people did not want their pictures taken. Some gave hand gestures and others told photographers to ‘f%^* off’. Photographs were nonetheless taken and printed. Within hours, detailed images of relatives’ faces were circulated around the world. They appeared on the websites of The New York Times, The Melbourne Age, The Sydney Herald, The Times, The Guardian and the Telegraph. A montage of the same grief-stricken faces (including those of two primary school age children) were spread across the front page of the New Zealand Herald the next morning. Similar photographs appeared on page 2 of the Dominion. Concern has been raised that by disseminating these images, the media have turned individual grief into a commodity to be captured, printed and sold. People are shown at their most desperate and vulnerable: mascara is running, faces are twisted with emotion, people are crying. TV footage shows relatives interrupting tears and intimate conversations to deal with encroaching media. Interviews reveal that for many family members media intrusion has made an already unbearable situation even worse.

It seems that the media’s conduct at Pike River crossed an ethical line. In my view, they have also crossed a legal one. There is a good argument, first, that some members of the media have committed the tort of breach of privacy. The tort’s first requirement is that the relatives had a reasonable expectation of privacy in respect of the events depicted in the images. This is almost certainly established. Courts have made it clear that individuals have a right to be left alone if they are experiencing something traumatic, distressing or humiliating, even if they are in a public place at the time. Leaving a meeting at which one has been told that there is no hope of finding one’s loved ones alive is a paradigmatic example of that situation. The tort’s second requirement is that the publicity given to the images be ‘highly offensive’ to an objective, reasonable person in the shoes of the individual being photographed. A number of factors make this coverage offensive. The photographs were published in the immediate aftermath of the tragedy; they were close up, detailed, and showed the subjects in a raw emotional state. In many cases, the photographs were published in spite of the subject’s objection to their being taken. Some showed children whom courts are particularly astute to protect. It is highly unlikely that relatives were told that publication was imminent. Most people, it is suggested, would find being treated find being treated in that way highly offensive.

Media defendants are therefore likely to be liable unless they can establish that the relatives’ right to be left alone at this moment of grief was outweighed by an overriding ‘legitimate public concern’ in seeing the material. It is not enough to show that there is a general public concern in the Pike River tragedy itself nor that that the public is interested in seeing these kinds of images. Media defendants would have to show that there was a good reason for publishing these images and that the public interest in them outweighed the relatives’ competing right to privacy. The media’s usual argument that publication of the images was justified because they brought home the enormity of the situation is particularly unconvincing here. Few people lack the imagination to understand the despair relatives would feel on receiving news of the deaths after six anxious days of waiting. And there is no suggestion that the country was not taking the situation seriously. Government had already signalled its intention to launch a commission of inquiry. The defence would be unlikely to succeed.

Damages are available under the tort of privacy – the most substantial award so far has been $25,000. But there are costs and risks associated with bringing an action which can deter all but the wealthiest of claimants. (One would like to hope that this was not a consideration when the media decided to publish the images.) Other, more accessible, outlets for redress are also available. If privacy was breached in a television broadcast, any member of the public can make a complaint to the Broadcasting Standards Authority (the BSA). Principle 3(iii) of the BSA’s Privacy Principles provides specific protection against an intrusion which takes place in public if ‘the individual whose privacy has allegedly been infringed was particularly vulnerable’ and the disclosure was highly offensive to an objective reasonable person. Both requirements would seem to be satisfied here. Privacy Principle 7 also requires that ‘children’s vulnerability… be a prime concern to broadcasters’ and that broadcasters satisfy themselves that ‘the broadcast is in the child’s best interests’. Filming a child leaving that meeting is very unlikely to meet that test. The Press Council also give some redress for print media intrusions although their powers are less extensive than the BSA’s and they are in general less inclined to use them.

Families of the lost men will currently have more immediate concerns than the law of privacy and, even with the passage of time, might not wish to bring an action. However, it is important to register that intrusive media conduct is not a necessary incidence of modern life. On the contrary, it is an infringement of a legally protected right to be left alone at times of significant distress and trauma. 

Topics: Broadcasting Standards Authority, General, Press Council, Privacy tort | Comments Off on Pike River privacy breach

Bill of Yeah Rights

November 11, 2010

Since the Bill of Rights was enacted, the government has, on average, ignored one section 7 report a year, according to the Minister of Justice. (A section 7 report is a legal opinion given by the Attorney General to Parliament that the proposed legislation breaches fundamental rights in an unjustified way.) Simon Power was addressing a symposium today on the NZ Bill of Rights Act, 20 years after its enactment. Here’s what he said:

You might be surprised to know that there have been 57 section 7 reports since 1990.   Of those, six bills are currently before the House. Of the remaining 51: 

  • 21 have been withdrawn or defeated outright.
  • 10 have been amended to address the inconsistency.  
  • 20 have been enacted unchanged. 

Of the 20 that have been enacted unchanged, only one was a non-Government bill. 

I haven’t done the maths, but I suspect that that rate of nose-thumbing at section 7 reports has increased under Power’s watch.

We should recall, however, that the absence of a section 7 report doesn’t mean that the proposed law is necessarily squeaky clean. Recall that the original version of Labour’s Electoral Finance Bill astonishingly did not attract a section 7 report; and it seems that Margaret Wilson overrode officials’ advice that the Foreshore and Seabed Bill should have been slapped with a section 7 report.

My sense is that current Attorney-General Chris Finlayson has presided over a pretty robust approach to scrutinising his party’s legislation under the BORA. Section 7 reports this year have included government bills on misuse of drugs, social assistance, tax and liquor, for example.

Incidentally, this record compares very unfavourably with the UK. I’m not sure any law has been passed there after an adverse report from its joint committee on human rights.

Topics: NZ Bill of Rights Act | Comments Off on Bill of Yeah Rights

Read this

November 8, 2010

If you haven’t seen it already, I recommend Emma Woods’ thoughtful and moving response to Michael Laws’ attack on her in the Sunday Star-Times. In some ways, it’s an indictment of every columnist who sallies forth based on some incomplete news report, every ideologue who tries to marshall someone’s story to support their pet cause, every law-and-order table thumper who thinks all crime victims should react the same way. But mostly, it’s just an indictment of Michael Laws.

Topics: Media ethics | Comments Off on Read this

Irony

October 31, 2010

Something sounded funny to my ear on this morning’s episode of MediaWatch on Radio NZ National. Colin Peacock referred to the Listener’s Quips and Quotes column, which had quoted the following journalistic aphorism and told readers it was attributed to the City News Bureau of Chicago:

If your mother tells you she loves you, check it out with two independent sources.

Like anyone who’s spent more than five minutes at an American journalism school, I’d heard this before, but I’d heard a shorter, punchier version:

If your mother tells you she loves you, check it out.

I don’t actually know which is right, and it’s conceivable that they both are, since one is a shortened version of the other. But the longer version sounds to me as if it’s a stitching-together of two ideas. I’m guessing the Listener’s source was Wikipedia, though this entry doesn’t give any direct source for its information.

The irony? It doesn’t seem that the Listener has a second independent source. Google returns all of six websites mentioning the quote in its long version, and they all in turn seem to be sourced from Wikipedia. (There are nearly 9000 sites quoting the shorter version, many of which also attribute it to the Chicago City News Bureau).

Topics: Media ethics | Comments Off on Irony

Double jeopardy?

October 29, 2010

Is the Law Commission being tasked with a job already farmed out to the Dean of VUW’s law school?

The Attorney-General engaged VUW dean Tony Smith to write a paper on our contempt of court laws, including the ways in which they are being affected by the internet. Is it undermining confidence in court orders, or courts’ ability to do their jobs? Tony Smith is the author of the leading text on contempt, and is tackling the research with recently retired Court of Appeal judge Bruce Robertson.

Then we get Simon Power’s announcement that the Law Commission will look at… much the same thing. Its task will be broader – “to review the adequacy of regulations around how the Interent interacts with the justice system” – but there seems to be overlap:

Issues I’m concerned about include how trials can be prejudiced by information posted on websites and seen by jurors, real-time online streaming of court cases, breaches of court suppression orders, and re-publication of a libel.

Another odd thing about Power’s press release. Having said that this is his concern, here’s his summary of the issues he’s referring to the Commission:

• How to define ‘news media’ for the purposes of the law.
• Whether and to what extent the jurisdiction of the Broadcasting Standards Authority and/or the Press Council should be extended to cover currently unregulated news media, and if so what legislative changes would be required to achieve this.
• Whether existing criminal and civil remedies for wrongs such as defamation, harassment, breach of confidence, and privacy are effective in the new media environment, and if not whether alternative remedies are available.

So… where’s the directive to look at “how trials can be prejudiced by information posted on websites and seen by jurors, real-time online streaming of court cases, breaches of court suppression orders…”?

Presumably, that stuff gets covered by the words “such as”…

Power calls the Internet a “bit of a Wild West” because “bloggers and online publishers are not subject to any form of regulation or professional or ethical standards.” Let’s be charitable and call this language merely loose. Of course bloggers are subject to the same criminal and civil laws – name suppression, defamation, censorship laws, etc – as anyone else. Those laws are not so easily avoided online as some commentators believe. In fact, in some ways it’s easier to attack online publications because ISPs often fear associated liability and can be persuaded to pull the plug on bloggers’ content themselves.

But Power is generally right to say that online publishers are not subject to equivalent ethical regulation to the Press Council and Broadcasting Standards Authority. But the Press Council does consider complaints about websites associated with print publications (and may even have its arm twisted to consider complaints about news sites that are purely online, such as Scoop… I don’t think anyone’s tried yet). It is silly that the BSA has no power to touch the clips on broadcasters’ websites, so that broadcasters can post them with impunity even when complaints against them have been upheld.

Still, whether their powers ought to be extended to bloggers is a different kettle of fish…

By the way, with John Burrows and Cate Brett at the helm, this project ought to be a corker.

Topics: Contempt of Court, General, Internet issues | Comments Off on Double jeopardy?

Hobbiter dicta

October 29, 2010

It’s now clear that the government intends to change the law relating to employment contracts for the film industry. So why are some in the media still calling this a “clarification”? Does it have anything to do with journalists’ warm regard for the elasticity of the appellation “clarification” as illustrated by their frequent use of it to describe what are really corrections?

And why are they still parroting the government’s line that this was necessary to restore stability? Andrew Geddis is as mystified about this as I am. It’s like reporting that Graham Henry said it was necessary to pick a new goal-kicker to solve our line-out problems. Hard to imagine anyone would report that sort of gibberish straight.

[Update: this terrific article by the NZ Herald’s Derek Cheng goes some way to doing what the government has not: explaining how the employment law change plays into Warners’ instability concerns.]

Topics: Media ethics | Comments Off on Hobbiter dicta

Burning questions

October 28, 2010

For those interested in the Morse flag-burning case that I argued with Tony Shaw and Felix Geiringer in the Supreme Court earlier this month, Greg King interviewed me about it on The Court Report. (It’s part 3 of the show).

Topics: NZ Bill of Rights Act, Protest speech | Comments Off on Burning questions

Key questions

October 28, 2010

I’m no expert on employment law. I claim no insider knowledge on the Hobbit fiasco. But there are some obvious questions that I haven’t seen anyone in the media ask:

1. John Key says he’s going to pass law “clarifying” the difference between employees and contractors, at least in connection with the film industry. What exactly is it that needs clarifying? What is he going to clarify that wasn’t clarified by the Supreme Court in the 2005 Bryson case?

2. Doesn’t he actually mean “change” the law? If so, how? If not, why bother passing new law?

3. In fact, doesn’t he really mean: “make it harder for people on independent contracts to argue that they’re actually employees, even if they’re being treated as employees”? If so, what’s the justification for this?

4. In particular, since it seems that all the actors are happy being on independent contracts, and as far as I know none has ever challenged such a contract, or is likely to, then isn’t this change actually only going to affect the techies and the crew? In which case, is this about the threatened strike at all?

5. How is it going to be achieved? Will the government simply introduce a rule that if the parties describe their arrangement as a contract for services, that will be the end of the story? That is, the courts will not be able to look behind the contract to see if in practice it’s really an employment relationship, even if the studio exercises close control over the worker during an extended period of time, provides workplace and equipment, and integrates the worker into the fabric of the workplace? Or will the government instead be setting a higher threshold before independent contractors can show that they’re really employees? If that threshold is expressed in terms of a general test, or series of factors, how will this provide any greater “clarity” than we had before?

6. If it’s justified to change these rules for the film industry, why isn’t it justified to change them for everyone else? And if it’s not justified to change them for everyone else, why is it justified to change them for those in the film industry?

7. And why do this under urgency, in one day? Legislation can still be passed quickly without doing it this quickly. Isn’t there a danger that it will be rushed and botched? Isn’t it undemocratic to rush it through without at least allowing some degree of input from the public and interested parties through the Parliamentary process? Did Key promise Warners to pass it this way?

Topics: Media ethics | Comments Off on Key questions

Did Paul Henry breach broadcasting standards?

October 7, 2010

As you know, TVNZ Breakfast presenter Paul Henry asked the PM whether he would appoint someone to Governor-General who looked and sounded more like a New Zealander, plainly suggesting that because Sir Anand Satyanand is ethnically Fijian-Indian (though born and bred in NZ), he’s not appropriate for the job.

I think that’s racist.  But I’m not entirely sure it breaches the Free-to-Air TV code.

It strikes me that there are three possible grounds of complaint:

Discrimination and Denigration

Under this standard, broadcasters should not

encourage discrimination against, or denigration of, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status, or as a consequence of legitimate expression of religion, culture or political belief.

The threshold for a successful complaint is high. The BSA says there must be a “high level of invective”. Inflammatory comment won’t necessarily breach it. Expressions of genuinely held opinion are exempted. The broadcast must “blacken the reputation of a class of people”. It must “encourage negative treatment” of them.

I’m not at all sure that’s the case here. Henry’s really suggesting that our Constitutional head should live up to his idea of kiwiness, which is presumably white. I suppose this could have the effect of causing people to think ethnic minorities are less kiwi. But it seems a stretch to call this “encouragement” of racial denigration. It seems a long way from Voice of Islam’s televised condemation of gay people as “sick”, criticising their “filthy practices”, noting that the Islamic position on homosexuality is death and calling on people to “take a stand – and it’s not enough to call names”… or Michael Laws’ tirade against the Exclusive Brethren as “strange and weird beasties”, “dangerous little buggers”, “not normal people”… “you just want to take them outside and de-knacker them so that they can’t breed”. The BSA upheld denigration complaints in both cases. But here…?

Fairness

The code requires broadcasters to “deal fairly” with any person referred to. Sir Anand was surely referred to. Unfairness usually involves misleading portrayals, broken promises, bullying interviews, distorted editing, one-sided programmes and the like. It’s aimed at harm caused to particular people featuring on programmes.

How was Sir Anand treated unfairly? By suggesting he wasn’t even a New Zealander? (The PM put Henry right on that score). By implying that he wasn’t qualified for Governor-General because of his ethnicity? This feels more like an opinion, and it was also countered to some extent by the PM. The criticism wasn’t really targeted at Sir Anand personally. The guts of the problem doesn’t feel like unfairness to me.

Taste and decency

Broadcasters must “observe standards of good taste and decency”. They should take account of “current norms” of taste and decency. This standard is mostly about sex, nudity, graphic pictures and swearing. The threshold again is very high. Not many taste and decency complaints are upheld. There was nothing smutty about this interview.

Broadcast material that is personal or abusive can be offensive. Programmes that are humiliating to crime or accident victims, the vulnerable or those suffering grief or distress. Very offensive jokes. Shock jock pranks. Whatever you think of Henry’s remarks, they don’t seem to belong here.

I note that TVNZ’s statement about its punishment of Paul Henry slides around the question of whether he breached any broadcasting standards (and if so, which ones) by simply describing his conduct as “inappropriate”.

In the end, while I think Henry is fostering a stupid and dangerous attitude that people with different racial backgrounds are different and inferior to everyone else (akin to National’s “mainstream New Zealanders” concept), I think what I’m ultimately doing is disagreeing with his opinion. Maybe it’s right that broadcasting standards shouldn’t reach this. The proper remedy is public reaction, and I’m heartened by how that’s gone.

I’d be interested in what others thought.

[Update: TVNZ has upheld the complaint on all three grounds, probably a sensible move strategically. It doesn’t make me change my mind about anything above, and I wouldn’t be quick to assume it represents a change of TVNZ’s usual attitude to complaints under these grounds.]

Topics: Broadcasting Standards Authority | Comments Off on Did Paul Henry breach broadcasting standards?


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