NZ’s Dunne v Canwest
May 3, 2010
Here’s a column I wrote about the Dunne case suggesting that the media’s predictions of doom and gloom were wrong.
Judging by the media reaction, Justice Young’s decision to order TV3 to include Peter Dunne and Jim Anderton in its leaders’ debate last week was one of the most astonishing blunders in judicial history.
Media Freedom Committee Chair Tim Panckhurst called it “bizarre.” The New Zealand Herald said the judge “demonstrated a cavalier disregard for fundamental issues of media freedom and private-company rights” and called his decision “astoundingly inappropriate.” Sunday Star-Times columnist Michael Laws described it as “staggeringly stupid.”
All fretted that the decision paves the way for judges to tell the media what it has to publish. “The ruling implies that every time Mr Anderton, or any other MP, expresses a view during a parliamentary debate, the media will be obliged to report it,” thundered the Herald.
This would indeed be – as Fairfax New
But it’s not.
In fact, it’s difficult to believe that any of them have even read Justice Young’s decision. If they had, they would have found its reach much more limited than they seem to imagine.
Essentially, the judge said that even though TV3 is a private company, there are occasions when companies do things that are so pivotal to our democracy that the courts may have to step in to make sure they don’t make a complete hash of them. Here, TV3 was running a debate that could conceivably affect the make-up of the next government. That possibility isn’t merely theoretical. Recent history shows how a similar debate on TVNZ (which also featured the “worm”) during the last election jump-started the fortunes of United Future. Before that debate United Future was polling at 0.4%. The worm and, afterwards, the media drooled over United Future’s leader, Peter Dunne, and the party garnered 6.9% of the vote at the election.
Even so, TV3 was going to exclude United Future from its leaders’ debate this year. It had earlier announced that only the top six parties in its July 28 poll would make the cut. ACT came in sixth, with 1.6%. United Future was next with 1.4%. Jim Anderton’s Progressive Party scored 0.4%.
Justice Young wasn’t impressed with this selection procedure. Perhaps he recalled his days as president of the Electoral Commission, the agency that divvies up public funding and airtime for party advertisements. It’s a rigorous process that weighs up everything you’d expect, including all recent poll results, existing representation in Parliament, and the results of any recent by-elections.
And here was TV3 basing its whole decision on one poll! A poll whose 3.1% margin of error made the differences between the smaller parties a statistical nonsense! Justice Young concluded that TV3 was acting “unreasonably and arbitrarily.”
The judge wrestled with the problem of who should be included in the debate. He said he would rather let TV3 re-decide itself based on proper principles. But time was running out, so he said the only sensible way to draw the line was to order the inclusion of those who, on the evidence before him, were likely to be in Parliament after the election.
The decision does have its problems. Arguably, Justice Young didn’t pay enough attention to the careful balancing that’s required under the Bill of Rights Act when freedom of expression is at stake.
Arguably, he should have acknowledged that analogous cases where the courts have intervened have involved private organisations that were performing regulatory functions, like the Advertising Standards Authority. TV3 isn’t performing that sort of public function when it holds debates.
And arguably, the judge set the standard of arbitrariness too low. There are cases that say a person’s behaviour has to be “so absurd that he must have taken leave of his senses” before the courts will treat it as “arbitrary.” TV3’s debate decision was based on a scientific poll, and was unbiased, so it wasn’t that absurd.
Bolstering this argument is Justice Young’s botched statistical reasoning. He was wrong to say that the 3.1% margin of error made the minor parties indistinguishable. What he (and the lawyers and most journalists) didn’t realise was that the margin of error shrinks when considering the smaller numbers. They’re more likely to be accurate. For instance, the margin of error for the polling of ACT (1.6%) and United Future (1.4%) is actually about plus or minus 0.8%.
That means Justice Young was right to conclude that ACT and United Future were essentially statistically indistinguishable from each other. But it also means that both are statistically distinguishable from the Progressives on 0.4%.
Ironically, on Justice Young’s reasoning, it may have been rational for TV3 to exclude Jim Anderton, but not Peter Dunne.
So there’s a fair chance that TV3 would win an appeal. But that doesn’t mean the original decision is bizarre or stupid or cavalier. In part it’s because TV3 – who only had a day to prepare its case – didn’t make the most of the available arguments.
Even if Justice Young’s decision stands, it’s very unlikely to usher in a new era of judicial management of the media. True, the door is open a chink for politicians to challenge private media decisions they think are arbitrary and that may undermine democratic rights. And under MMP, where a few votes in key electorates or a fractional shift in party support nationwide can conceivably determine who governs the country, it’s arguable that the media make many decisions that have significant electoral impact.
But Justice Young insisted such cases rarely trigger the court’s powers. His decision is tied closely to the broadcasting framework, so it’s unlikely to affect the print media. It’s hard to see it applying outside election time. Even during election season, how often will a broadcaster make such a manifestly daft editorial decision, in the context of a programme with such powerful democratic relevance?
Sure, other politicians who feel slighted by the media might be tempted to try it on in the courts. But they’re unlikely to get anywhere. For instance, the Destiny Party is now gunning for TVNZ’s Marae programme for excluding them from its scheduled candidates’ debates for Maori seats. Marae’s producer says the debates were restricted to the Labour and Maori parties, who were well ahead in the polls. They made an exception for independent candidate Mere Mangu in Te Tai Tokerau electorate as she was polling well too.
If that’s right, it seems a far cry from the sort of arbitrary media decision-making (and probably the sort of national impact) that Justice Young was talking about in the TV3 case.
Justice Young’s decision doesn’t really have “dangerous implications for a free and robust media in this country” as O’Hara and other media bigwigs contend. If there’s one thing truly guaranteed to damage the media’s role in the democratic process, it’s this sort of self-serving exaggeration from the very people we rely on to deliver accurate and impartial information.
PS. Dean Knight’s analysis of Dunne is here.
Topics: Electoral speech, NZ Bill of Rights Act | Comments Off on NZ’s Dunne v Canwest
Scotland’s Dunne v Canwest
April 30, 2010
Remember Peter Dunne’s successful legal action forcing his inclusion in TV3’s televised election debate?
The Scottish National party has tried it too. Not so successfully though.
[PS Decision here. A few notable things. First, it’s hard to disagree with the party’s claim that the debates really are extremely significant in determining electoral support. The Liberal Democrats’ bounce seems further proof of that:
The impact of the previous two debates on the media coverage of the General Election campaign as a whole, has been demonstrably the single largest factor in the current UK General Election campaign in terms of impact on the media profile , approval ratings of party leaders and overall voting intention …
Second, the delay in bringing the application was unforgivable. They’d known about the format of the debates since last December, and the application wasn’t made until after the first two televised debates. The judge found the delay significant. It may be explained, I think, by (a) the party’s realisation that it had a much better shot at the BBC, which hosted the third debate, since it’s a public body, rather than Sky and ITV which hosted the first two; and/or (b) the party’s realisation that its case was hopeless, and its real objective was to get some publicity during the election and to apply pressure on the BBC to crank up its coverage of the party outside the debates; and/or (c) the party’s desire to keep costs down.
Third, the application was surely doomed from the outset. The BBC’s decision was plainly not unreasonable. Even on the principles laid down in Dunne v Canwest, this application would not have succeeded.
Topics: Electoral speech, General | Comments Off on Scotland’s Dunne v Canwest
Blind, not stupid
April 29, 2010
As Justice McGechan J put it in the Tucker case, justice should be blind, but it should not be stupid. Judges shouldn’t try to suppress information when the public know it already.
The Chief Justice said the same thing in the famous “American Billionaire” case:
Where information as to the identity of someone appearing before the Court is already in the public domain, it will not generally be appropriate to grant name suppression
So what’s going on here?
Two police officers charged after a drinking incident have had their names suppressed, despite being named in a Herald story for several months.
Topics: Name suppression | Comments Off on Blind, not stupid
The Devil’s in the detail
April 28, 2010
How often do you check those website boxes that say “I’ve read the terms and conditions below and agree to them”?
Now, how often do you actually read the terms and conditions? Me neither.
Had we signed up to Gamestation on April Fool’s day, we would have been agreeing to this:
By placing an order via this web site on the first day of the fourth month of the year 2010 Anno Domini, you agree to grant Us a non transferable option to claim, for now and for ever more, your immortal soul.
And this:
Should We wish to exercise this option, you agree to surrender your immortal soul, and any claim you may have on it, within 5 (five) working days of receiving written notification from gamesation.co.uk or one of its duly authorised minions. We reserve the right to serve such notice in 6 (six) foot high letters of fire, however we can accept no liability for any loss or damage caused by such an act. If you a) do not believe you have an immortal soul, b) have already given it to another party, or c) do not wish to grant Us such a license, please click the link below to nullify this sub-clause and proceed with your transaction.
Nice.
Of course, nobody picked it up. It’s a beaut little demonstration of the fact that no-one bothers to read them. They’re probably still binding on us, though. Having ticked the box and all.
What about all those websites that don’t require us to expressly accept the terms and conditions, which will probably just sit under a little-clicked link headed “terms and conditions”? Are they binding on us? Perhaps not. A US court recently ruled that a manifestation of intent to consent was needed before a visitor could be held to a particular condition on the site (ie that they accept Colorado’s jurisdiction over disputes concerning the site). Question: if the particular condition (or the existence of the conditions) was sufficiently prominent, might revisiting the site later – this time, one assumes, aware of the clause – amount to consent?
Topics: Internet issues | Comments Off on The Devil’s in the detail
Laws confused about laws
April 26, 2010
For someone who is readily outraged by news stories that contain falsehoods about him, Michael Laws certainly doesn’t display the same regard for accuracy in his own journalism.
In the Sunday Star-Times yesterday, he railed against the Declaration on the Rights of Indigenous People, arguing that it is likely to be a potent legal force for change in the country. Along the way, he seriously mischaracterises its status, saying it “gifts [Maori] a path toward self-determination”; it will “influence all future law and policy practice”; it will “advance” Maori activists’ “separatist agenda”; “it gifts the right of veto to Maori upon policies that they can consider may not be in their best interests”; it “will soon become a staple in public law lectures across the country”.
Wrong.
For one thing, it’s unlikely to find much of a place in general public law lectures (as opposed to specific courses on indigenous rights). It’s not significant enough. It might rank a bare mention, along with a myriad of international instruments that affect NZ in various ways, but it’s a long way down the list of international documents with serious clout. This remark of Laws’ is best filed under “Laws – Loathing of Law Lecturers” rather than “Public Law – Likely Curriculum”.
I’d also be surprised if there’s a law school in the country whose public law course gives any lengthy play to even the most important international declaration ever: the Universal Declaration on Human Rights (UDHR). Why not? Because its importance is largely rhetorical and historical. It certainly paved the way for other international instruments that did have more bite – such as the International Covenant on Civil and Political Rights (ICCPR). The difference is that the UDHR is non-binding and aspirational; the ICCPR creates obligations for those countries that sign up. There is no formal penalty for countries that sign the UDHR if they later breach it. There is no place even to take a complaint. Countries don’t have to report to any UN committee about how they’re getting on in implementing it. At best it may play into the rules of international law that emerge by a consensus of nations. But it can’t be enforced in any court.
So that’s the status also enjoyed by the Declaration on the Rights of Indigenous People. In fact, it’s much weaker, since it doesn’t have the grandfatherly gravitas of the UDHR.
It might get some teeth if its principles were embodied in a proper treaty like the ICCPR. With the ICCPR, signatories agree to comply with the obligations. They agree to ensure that their domestic laws reflect those obligations. They have to report periodically to an international committee about their progress in implementing those obligations. They may even agree (as NZ has) to allow citizens to make complaints to the Human Rights Committee.
Still, those are not very strong teeth. They are only baby teeth. They don’t have very much bite. There is very limited scope for them to affect the substantive law in NZ. They can’t be directly enforced in our courts. They may be relevant when courts are interpreting a wide statutory power or ambiguous statutory phrase. They are likely to be raised when policy is being developed. So even though such Conventions are binding on the country at international law, they don’t necessarily have much impact at the coalface of the NZ courts and in Parliament. Even if the UN Human Rights Committee upholds a complaint against us, or otherwise criticises our lack of compliance with the ICCPR, we might ignore them. Other countries might frown at us for not playing nice in the community of nations. But it doesn’t change NZ’s laws. For example, the no-fault possession offences in our censorship laws have long been criticised by the UN Human Rights Committee, but we’ve chugged happily along with them.
Remember: that’s the status of the Covenant, an international instrument whose obligations are “binding” on us. A Declaration doesn’t even reach that degree of significance. It’s a ghost in the machine.
Add to that the government’s statement delivered to the UN when signaling its u-turn on the declaration. It’s chock-full of riders and hedges: repeated references to NZ’s “existing frameworks”, “own distinct approach” and “existing legal regimes”, and this:
Those existing frameworks, while they will continue to evolve in accordance with New Zealand’s domestic circumstances, define the bounds of New Zealand’s engagement with the aspirational elements of the Declaration.
In other words, “we’re doing this our way”.
Starting to get the idea that this has been overblown a bit? Right. It doesn’t provide “rights of veto” over legislation. It doesn’t put Maori on a path to self-determination or separatism. It will not influence all future law and policy practice.
Here’s what it might do. Lawyers may occasionally use it to suggest that a particular statute or statutory power should be interpreted consistently with it, but only where:
1. the statute is genuinely ambiguous, AND
2. the declaration is highly relevant to the issue, AND
3. the lawyer is able to slide around the problem that the declaration is not based on any government promises , and so does not technically raise the presumption of consistency with international obligations; AND
4. the lawyer also overlooks the government’s cautious statement to the UN about the boundaries of its support for the declaration; AND
5. there is a favourable wind.
It’s likely to form but one strand of an argument made up of many others, or it’s likely to lose. Hardly “an invitation to existing courts to expand an existing breach into a chasm”, as Laws would have it.
The declaration may also be brought up in discussions of government policy, but I doubt it will have much sway independent of whatever support the government may already have for the policy in question. The Waitangi Tribunal is likely to draw from it, though its jurisprudence will continue to revolve around the Treaty of Waitangi.
Mostly, it will be a rhetorical tool used by Maori interests and a rod for the government’s back by those opposed to it. Like Laws. That may be the biggest impact it has, perhaps bearing out the headline after all: “Ripples from this DRIP will be far-reaching”.
Topics: Media ethics | Comments Off on Laws confused about laws
Flogging content
April 26, 2010
RNZ’s Mediawatch this week looked at the ethics of the media’s practice of drawing content, including pictures, from social networking sites. Host Colin Peacock mentioned a Herald on Sunday article that pulled material from a car accident victim’s Facebook site, including a photo of him, adding:
Like many people using the social networking websites these days, the victim in this case had chosen not to restrict access to the material he posted on Facebook, so there was nothing to stop any journalist looking at it or putting it in their stories.
It’s true that journalists can draw information from such sites, and it’s often good reporting. But it’s not true that there’s nothing to stop them putting the photos in their stories. This will almost always be a breach of copyright, unless the copyright owner’s permission is obtained first. Open access settings on Facebook do not change that basic rule. (True, there’s an emerging public interest defence to breach of copyright – and that’s a welcome development, I think – but it’s rather tenuous at the moment, and at its best will still demand legitimate public concern in the photo itself, a standard which won’t often be satisfied).
Stuff’s social media editor Greer McDonald was interviewed. She said, at various points, that “where possible” they seek permission for the use of such material, and that “on all occasions we seek permission”. She also gave an example of a particular situation where they hadn’t: she didn’t imagine anyone sought permission from the family of murdered Scottish backpacker Karen Aim before using travel photos from her Bebo profile – this “added to the story in a way that wasn’t negative”. Well, maybe. The family, who owned the rights to those photos, may conceivably have taken a different view. (McDonald did note that families were often happy to provide permission in such circumstances, though).
I have heard of situations where media organisations, including Fairfax, have used people’s photos without seeking permission first. I suspect it’s fairly common. If someone objects, they’ll offer them something (maybe a couple of hundred dollars or so). If the copyright owner won’t deal, they’ll probably just take it down. The copyright owner could sue for the brief use of the photo without permission, but who’s going to bother?
Topics: Copyright, Media ethics | Comments Off on Flogging content
Back on the block
April 23, 2010
I’m back in Wellington after a sojourn in Melbourne for most of six months.
While we’re not talking about media law, I will take the opportunity to post the alternate version of the Australian national anthem I composed for them while I was over there. I have long been impressed by the line “Our home is girt by sea”. It’s pithy. It captures an essential feature of the country. It’s undeniably accurate. Alas, the rest of the lyrics do not live up to this impressive standard, so I set about writing ones that did. The tune is the same:
Australia is a continent
With sand and dirt and trees
Inside there’s not much water but
Our home is girt by sea
It’s got a lot of wattle
And the odd Koala Bear
It’s mostly flat but way out back
A giant rock is there
Perhaps we could gently encourage them to adopt this much preferable version by singing these lyrics during the anthem-playing before test matches with Australia…
Topics: General | Comments Off on Back on the block
Talkin’ bout a revolution
April 16, 2010
Check out this fascinating panel discussion about super injunctions and the laws of libel and privacy, hosted by the Frontline Club, involving successful defamation defendant Simon Singh, Carter-Ruck’s Nigel Tait, the Guardian’s investigations editor David Leigh, and media lawyer David Hooper. The debate comes amid British government proposals for libel reform (not enacted in time for the election, but taken up by all three of the main parties in their manifestos); the Court of Appeal’s decision in the Singh case; allegations that the courts are granting hundreds of super-injunctions a year; the recent appointment of a committee to tackle them; and much hand-wringing about legal costs and libel tourism. Is it time for a revolution in defamation law?
There was a surprising amount of consensus. Costs are too high (though not damages). The Press Complaints Commission is doing a lousy job (David Leigh called it a “fraud”). A statutory tribunal with power to deal with at least some less serious defamations, perhaps such as those emanating from blogs, would be a sensible development. There was some support for restricting the ability of corporations to sue – such as requiring them to prove financial loss (which is the current position in NZ; in Australia large corporations can’t sue at all).
They noted that statistics aren’t kept about super-injunctions (but should be). Could the panelists guess how many there were? Nigel Tait said his firm had obtained about 12 in the past 18 months. Schillings may have got a few more. He doubted there’d be many others. Hugh Tomlinson QC from the audience said he thought there were probably fewer than 20 in existence. (Justice Eady has recently said he can’t recall granting any at all. I wonder who’s awarding them?)
Nigel Tait threw some light on the sort of cases where they were sought. Computers are hacked by journalists or stalkers for personal or financial information, for example. He said one celebrity client’s doctor sold the results of his cancer tests to a newspaper before telling him. The superinjunction was to prevent the guessing game that would inevitably commence following the headline “Injunction restrains publication of [named celebrity’s] medical records”. (Fair enough, too, though does it justify the super-injunction? What if the injunction permitted reporting of the fact of the gag, but not that it concerned medical records? Perhaps I’m underestimating the voraciousness of the public’s appetite for knowledge of any information they’re denied.)
David Hooper criticised Tait and Carter-Ruck for being “over-muscular” in the Trafigura case. He thought there was a good case of breach of confidence, but they blew it and ended up looking terrible. Tait, with some justification, blamed the papers, noting that the Guardian had never reported that it initially consented to the super-injunction.
Tait also poured cold water on the idea of reversing the burden of proof for Truth defences, which currently rests on defendants). It would simply make plaintiffs spend up large proving their cases, costs that would inevitably be sheeted home to defendants when the plaintiffs won (or, of course, settled…). Besides, he said, he’s never seen a case decided on burden of proof (ie where the difference between winning and losing rested on whether a particular fact could be proved to a 51% likelihood). Interesting.
I was particularly interested in another factoid from Hugh Tomlinson. How many cases of libel tourism – ie one foreigner suing another in London to take advantage of the plaintiff-friendly British laws – do you suppose there were in the UK last year? Libel capital of the world and all that? The answer: none at all. How many libel lawsuits in the UK each year all up – the European average being about 700? Answer: 250. But Simon Singh treated this as a trump for his argument: libel is too costly in the UK for many to sue. This strikes me as sitting ill with his concern that speech is being chilled all over the place, and that conditional fee agreements and after-the-event insurance mean that plaintiffs can sue too readily. Surely he’d be better off suggesting that there’s likely to be a large number of defendants cowed into settling by the threat of CFA-funded litigation, so the threats never ripen into lawsuits. I don’t imagine there are stats on that either.
CFA fees were discussed at length. Tait explained that costs have gone up because libel procedures – the pre-trial protocol, witness briefs – are themselves expensive; there is now a range of new defences such as qualified privilege that must be tackled; and yes, the win fee and the insurance bill multiplied final costs significantly. The uplift is justified because the law firm is carrying the costs and the risk, he argued. Everyone was duly appalled at the 100% uplift, though Tait explained that the success fee was only 100% if the case went to trial, when both parties could be assumed to believe that they had at least a 50% chance of winning. When there’s early settlement – most cases – it’s 25%. Singh and Leigh rather skewered him by noting that Carter-Ruck is still free to reject cases where the risk is bad and isn’t carrying much risk when it picks likely winners, especially when it knows defendants are risk-averse and likely to settle if the claim has a reasonable prospect of succeeding.
Still, no-one had an answer to Tait’s other point: firms won’t take cases on contingency if the uplift is only 10%, and the unwealthy defamed will have no remedy. Tomlinson suggested that the 10% figure nominated by the government was founded on … no evidence at all. He guessed 40% would probably be about right.
I’d be interested if any kiwi readers know of any conditional fee agreements with success fee components in defamation cases in NZ. I am occasionally willing to take a case on contingency, but so far have only done so where the case seems a slam dunk, and have only taken my usual fee when the case succeeds. I’m not sure how our courts would react to a costs application where a successful party tried to claim a success fee on top of scale or whatever other costs are merited. I rather suspect they wouldn’t be sympathetic. That would also make them rather difficult to negotiate, and there are no requirements here – as there are in the UK – that the other side be notified of any contingency arrangement. I’m also not aware of anyone offering after-the-event insurance to hedge against the possibility of loss here.
Topics: Defamation, Injunctions, Privacy tort | Comments Off on Talkin’ bout a revolution
Fair comment defence succeeds
April 2, 2010
The Simon Singh fair comment appeal has been released. He’s the guy who said of the British Chiropractic Association that it “happily promotes bogus treatments”. Did this accuse them of conscious dishonesty? Eady J said yes, and it was a statement of fact. There was much hue and cry about the death of free speech. The Court of Appeal has held that it was a statement of opinion. Early reaction here and here and here.
Update: … and the British Chiropractic Association has dropped the case.
Topics: Defamation | Comments Off on Fair comment defence succeeds
Burning for reform
March 25, 2010
Are republicans the only people in NZ who can commit the offence of flag-burning by burning a flag?
You might remember that Paul Hopkinson had his conviction for flag-burning overturned in the High Court, because Justice Ellen France held that the offence needed to be interpreted narrowly to provide space for free speech rights under the Bill of Rights. She said that the offence requires that the prosecution prove that the defendant intended to vilify the flag. That’s unlikely to be established where a flag is burned as part of a political protest. (That’s one of the reasons that Valerie Morse, the ANZAC day flag-burner, was charged with offensive behaviour rather than the specific offence of destroying or damaging a NZ flag.)
At first blush, that sounds like good news for the Republic of New Zealand Party members who torched a flag on Parliament’s grounds recently, and are under investigation by the police for it. After all, they too were conducting a political protest, at a political venue, and their message was pretty clear. They too were simply using the flag as a vehicle for that protest.
But hang on. There’s quite a good case for saying that, unlike Paul Hopkinson, these guys really did intend to vilify the flag. They were protesting against the flag itself and all it stands for. A Maori sovereignty protester might who lit up a flag might be in a similar position. But anyone else who uses this device to protest any other government policy almost certainly isn’t.
I rather doubt that charges will be laid. The Attorney-General’s consent is required, for one thing. Goes to show, once again, what a silly offence this is. We should repeal it.
Topics: NZ Bill of Rights Act, Protest speech | Comments Off on Burning for reform
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