PN Name suppression decision considered
February 17, 2010
I think the decision is wrong, but I can sympathise with the judge. He cites R v Wilson & Horton (the American billionaire case) but not the other leading case of R v Liddell, where it was held that:
[name suppression orders] are never to be imposed lightly, and in cases of conviction for serious crime the jurisdiction has to be exercised with the utmost caution.
and
… anguish to the innocent family of an offender is an inevitable result of many convictions for serious crime. Only in an extraordinary case could it outweigh, in relation to the reporting of the name of a person convicted of a serious crime, the general principle of open justice and the open reporting of justice.
This case can fairly be described as serious crime, as the judge accepted. It has a maximum penalty of 10 years in jail. The defendant had thousands of images of girls in explicit sexual poses, and had on one occasion distributed nine of them. He was therefore complicit in the abuse of children. What’s more, he didn’t display any concern for the children in the photos, and how they were exploited. He was sentenced to four months of home detention, during which he was barred from owning or using a computer without permission from the parole officer.
The judge accepted that the public have an interest in knowning of this man’s character, particularly as he is a professional person. How, then, could he justify a name suppression order?
Here are the factors that led to his sentencing and suppression decision. If you want to criticise the suppression then you’re saying you disagree that these factors amount to extraordinary circumstances. As I’ve said, I don’t think they get there. But I can understand why he thinks they do. Anyone fairly reporting this decision really should mention them. Hardly anyone has. Outraged media, this means you.
1. He was abused and neglected in his childhood.
2. It seems he attempted suicide. A psychiatrist said he is still a suicide risk, and that the risk would be “greatly increased” if he were named publicly.
3. He had a clinical addiction to the images. He is in treatment for it. That treatment would be jeopardised by publicity.
4. He had a series of glowing references, from people who now knew about the offending, saying he was a “particularly contientious, intelligent, responsible family man”.
5. He lost his employment and his professional practising certificate. He may be de-registered from his profession. He has lost his income.
6. Publicity might destroy his marriage and cause his wife to lose her job.
7. He has two children who would also be badly affected by publicity.
8. The psychiatric evidence was that he posed no risk to children. The judge concluded that naming him was not going to help flush out other potential offending he’d done, or help keep people safe.
9. He did not look at the vast majority of the images. They images were at the low end of the objectionable-image scale (I assume this means they were pictures of children who were naked and in sexualised poses, but not being actively abused beyond the abuse inherent in such pictures).
10. The evidence was (quite rightly, as it’s turned out) that there was likely to be high media interest in the case, which would intensify the damage from his naming.
These are hard calls. I wouldn’t want to be making them.
Topics: Media ethics, Name suppression | Comments Off on PN Name suppression decision considered
The Palmerston North name suppression decision
February 16, 2010
Is here.
Topics: Name suppression | Comments Off on The Palmerston North name suppression decision
Chasing Ali
February 15, 2010
The latest development in the Alison Mau saga reads like a media law exam question.
On Breakfast TV she took a swipe at Woman’s Day, saying its “paparazzi photographer has been stalking me, my children and my friends for a month now, quite possibly more, following me to the supermarket, the kids’ tennis and touch rugby, to and from school.”
She pointed to two photos, one of her carrying some take-out hot drinks, which she said was taken last month, and others taken last week.”In my mind, that’s a gross intrusion of our privacy and frankly, more than a little creepy.”
She went on: “Just give me an idea when the dogs will be called off and me, my friends and my family can go about our business without having creepy guys in Corolla station wagons following us around?”
She invited viewers to send in their comments on this behaviour, either to Breakfast, or by emailing the Woman’s Day editor, whose email was printed onscreen.
Where to start? I confess I’m not a regular viewer of Breakfast, so I haven’t tuned into this discussion segment on gossip magazines before. Do the presenters commonly express outrage at the excesses of the gossip magazines when they intrude on the lives of other celebrities? I’m sure they wouldn’t stoop to showing us other papped photos on that segment, anyway.
Still, the papping does sound creepy. (This is because papping is creepy). Was it also harassment? It does seem to fall under the definition in the Harassment Act (you need to read secs 3 and 4). Mau would need to show a pattern of conduct involving at least two “specified acts” in a 12 month period. Specified acts include following and watching.
It’s not harassment if it’s done for a “lawful purpose”. It’s not clear how that defence might apply. “I wanted to show her I loved her” is an entirely lawful purpose, but it is unlikely to avail a stalker who tails an ex for a week. Likewise, there must come a point at which gathering information for a magazine (would they try to dress it up as “news?”) ceases to be a lawful purpose.
Mau could therefore apply for a restraining order, if she could show that the she reasonably felt distress about the harassing behaviour and that an order was necessary and proportionate to tackle it. Seems at least arguable. She’d have to identify the photographer, though, and if she wanted to include the magazine, she’d have to prove their involvement too.
Is it churlish to note that journalists from her own station are sometimes accused of harassing people, too, and not always with much of a public interest justification?
We should bear in mind that Woman’s Day says the photos it used were taken over a 24-hour-period, and the magazine had nothing to do with whoever was following Mau around. (Did their photographer drive a corolla station wagon? They didn’t say).
So… Mau falsely accused Sarah Henry and Catherine Mitford of hiring someone to stalk her for a period of weeks. That looks like… defamation. (It’s also probably a breach of broadcasting standards requiring accuracy and fairness).
Unless Mau’s right and the magazine did authorise or encourage this photographer, in which case the editor has falsely accused Mau of falsely accusing them of stalking her. That looks like… defamation too! (What’s more, the harassment itself may warrant a complaint to the Press Council against the magazine.)
Either way, there’s another issue about whether it’s fair for Mau to air her personal grievance against the magazine on national TV. The BSA has previously found that the use of the airwaves to vent a private complaint can be a breach of the fairness standard.
PS Let me go on the record with who think it was poor form for the Herald on Sunday to out her in the first place (assuming it’s true). And putting on my media lawyer hat again, she may have a right to sue for breach of privacy. This may depend on how many people knew, though a privacy action can still succeed if a limited group of people were already in the know. Of course, a Press Council complaint is another option here too.
Topics: Broadcasting Standards Authority, Defamation, Harassment Act, Press Council, Privacy tort | Comments Off on Chasing Ali
What can Crown lawyers say to the media?
February 10, 2010
The Crown Law Office has put out a very sensible, but rather general, protocol containing guidance for prosecutors when dealing with media inquiries.
It doesn’t mention civil proceedings, but it does apply to the Crown Law Office itself, and the general principles at the beginning seem broad enough to cover civil cases too.
It makes no attempt to define who the media is for the purposes of commenting. Presumably it includes freelancers? Probably it includes people writing for trade magazines. Might it include bloggers?
While the policy emphasises that it’s for guidance only, there is an expectation that prosecutors will (a) have a media policy and (b) generally release particular sorts of information when asked.
There’s an enticing heading “Information on the internet” but the discussion there contains no information on prosecutors making public statements. It just notes that it’s a growing challenge and that “prosecutors may need to take steps more frequently and at an earlier stage of the proceedings to seek suppression orders” (eg concerning prior convictions).
Practically speaking, the protocol effectively gives some handy advice to journalists about what questions they can expect prosecutors to answer:
1. Was there an arrest? Where was it? What is the nature of the charges?
2. (After the accused has been in court) what is his/her name, age and region of residence?
3. When’s the next court appearance?
4. What sort of hearing is it (remand, committal, plea, pre-trial hearing)?
5. What are the names of the prosecutors and defence lawyers?
6. What has happened procedurally in the case so far?
7. Has advice been sought from the Crown Law Office or Crown Solicitor?
8. (Once submissions have been presented) Can I have a copy of the submissions please?
In general, reporters can also expect prosecutors to explain the law or procedure after the proceedings, and also to indicate whether the Solicitor-General is considering an appeal.
The protocol says summaries of facts should not be given out until the prosecution presents its submissions in open court and “where there is a contest over the accuracy of the summary it should not be made available in that form until the contest has been resolved.” This seems wrong. There’s no reason to force reporters to rely on their notes of an oral presentation of the summary of facts once they’re read out in open court. The prosecutor should hand over the summary to help ensure accuracy in reporting, and alert the journalist to the fact that the facts are contested.
Requests for exhibits during court proceedings are supposed to be referred to the court for an application under the search rules. This is a bit unfortunate. Some exhibits have already been dealt with in open court (a transcript of a key tape recording might be an example) and not having access to them is a barrier to accurate reporting. Court search requests can take a long time.
The protocol also says information concerning Chambers/in camera hearings should generally not be provided. I think this is odd, too. The media are specifically entitled to be present in almost all criminal proceedings, even when the rest of the public are excluded. And the reporting of chambers proceedings in civil cases is not a contempt of itself. The fact that a hearing is in chambers is often (though not always) an indication that there may be sensitivities, and possible legal restrictions, concerning the matters discussed. But that doesn’t seem to justify this blanket rule. I hope that at least it will be subject to the general rule that prosecutors will explain the process when asked.
A little PS: Information held by the Crown Law Office (and by Crown solicitors on contract to the Crown) is generally subject to the Official Information Act. That’s not mentioned in the protocol. A request for information from a journalist will be an OIA request, even if it doesn’t mention the OIA, and if it’s being refused in any way, it needs to be refused properly… that is, statutory reasons for refusal must be given, and the requester told of the right to have the decision reviewed. There may often be good reason to withhold information, such as legal professional privilege, privacy, possible contempt, and prejudice to the maintenance of the law, but those exceptions certainly don’t cover all the information held by prosecutors. And they doesn’t mean that requesters OIA rights can be ignored, annoying as they may be to prosecutors.
Topics: Internet issues, Journalism and criminal law, Media ethics, Official Information Act | Comments Off on What can Crown lawyers say to the media?
Another interesting thing about the Terry case
February 9, 2010
Look at the standard the judge applies to the injunction: the rule in Bonnard v Perryman. This is a famous case that sets the bar very high in defamation cases. Bonnard holds that no pre-trial injunction will be granted in a defamation case unless it’s entirely clear that no defence might apply. In practice, this means that defendants (usually media) need only say they’ll argue a defence (providing that argument isn’t off the planet) to defeat any chance of an interim injunction for defamation.
If you’re a plaintiff, that rather puts a premium on finding another cause of action on which to base your injunction. Privacy, perhaps? Some judges have said that they won’t countenance an attempt to do an end-run around the Bonnard rule by casting what is really a defamation case as something else. Here, Justice Tudendhat goes a step further. He’s applying the Bonnard rule in what really does seem to be a genuine privacy case – John Terry didn’t deny the affair – because “the nub of this application is a desire to protect what is in substance reputation”.
As I’ve noted before, many – perhaps most – privacy cases will concern the plaintiff’s reputation. Most of these are not defamation cases in drag. The ECHR has recognised that protection of privacy involves protection of reputation. That seems to mean that most privacy cases will be subject to a very high injunction threshold, at least where the information relates to conduct that is “voluntary, discreditable and personal (eg sexual or financial)”, as the judge puts it. He puts involuntary private matters (the example he gives is “disease”; it’s possible that sexual orientation may fit in here too), but the category doesn’t seem to be a big one. Private non-reputational material (such as the wedding photos in Douglas or private photos of children) don’t raise reputation issues either, but nor is that a very big category.
Adding to the general confusion is a recent speech by Justice Eady, who suggested that the rule in Bonnard may need to be revisited, since defamation concerns reputation, and reputation is protected under the right to private and family life (as the ECHR has found). This would mean the high threshold collapses into the usual balancing of the relative importance of the rights in play, via an “intense focus on the facts”.
Under the Hosking case in NZ, the injunction threshold in privacy cases is very high, though this is obiter and the Chief Justice in Rogers questioned whether it should be lower. It’s not clear how NZ courts will treat the developments in Britain, where the underlying constitutional framework is different, but where there is a much greater supply of case law!
Topics: Defamation, Injunctions, Privacy tort | Comments Off on Another interesting thing about the Terry case
Super-Injunction denied
February 3, 2010
A fascinating insight into super-injunctions
English football captain John Terry’s failed attempt to obtain an injunction gagging revelation of his affair with his team-mate’s ex contains a lot of fascinating information about so-called super-injunctions. A super-injunction is a gag that not only prevents particular information from being published, it also stops anyone even mentioning the injunction. The Terry case (listed as LNS v Persons Unknown) shows us the gall of the lawyers seeking the gag, how they operate, what controls there are on them, and (something about) how many have been granted.
The problem with super-injunctions
Super-injunctions can make terrible inroads into the principle of open justice. They stop the media even reporting the existence of cases that may raise very important issues. One party may be trying to squelch the revelation of publicly important information. And even where (as here, I think) the information at the heart of the case isn’t especially significant, super-injunctions prevent the media (and the public, and other lawyers, and academics, and commentators) from evaluating the court’s use of its powers.
The problem with media reporting about super-injunctions
Super-injunctions have another downside. The media can’t really be trusted to report on them fairly. For instance, the judge didn’t “change his mind” about the injunction, as the Guardian would have it. The Guardian is so apoplectic about super-injunctions that it loses the plot in its reporting. As Justice Tugendhat explains in his judgment, he did initially grant a very temporary super-injunction, to allow time for the case to be argued and him to reach his decision, which he did, precisely a week later. The order lapsed, and he decided not to grant the injunction sought.
The extraordinary order sought
So what order was sought? Even the judge boggled at it. Terry wanted to be able to serve anyone (read: especially media organisations) with the order, which would then stop them mentioning the affair, providing any details about it, publishing photos about it, or mentioning the court case itself, on pain of contempt of court. The recipients would be given the barest of information about the case, and wouldn’t be entitled to see most of the court documents, (though their right to apply to the court for a variation of the order would be mentioned). They would not be told the basis for the injunction.
Terry wanted these orders to be made after a private hearing without giving notice to anyone in the media who might argue against them.
Then he wanted the court file to be sealed from search and the case to be kicked to touch, with no guarantee that it would ever come back before the court. The claim itself is against “persons unknown”, and Terry would be very unlikely to actually serve the proceedings (as opposed to the gag order) on anyone. A gag order is supposed to be an ancillary measure, but for Terry, it was the whole ballgame. No trial was ever likely to be held.
He wanted the order made without giving any evidence himself (he was too busy, he said), and with only hearsay evidence from Vanessa Perroncel, gathered by Terry’s business partners. The judge wonders whether Perroncel was paid to say she too wanted the affair kept private.
Super-injunctions: how many?
How often are such wholesale orders made? The judge (who’s fairly new) didn’t know of any, but Richard Spearman QC told him there had been “some”. The free speech lobby group Index on Censorship quotes UK media lawyer Mark Stephens saying that at any given time there are 200 to 300 super-injunctions in force. I’m a bit skeptical about this. The Guardian says it has received 23 in the last three years. I’d expect the Guardian to be getting most of them.
Justifications for super-injunctions
What Index on Censorship doesn’t mention is how many of those super-injunctions were fleeting – to put the clamps on information pending the court’s consideration of the application. For instance, Justice Tugendhat’s decision in this very case, which has been widely applauded in the British press, can technically be chalked up as another super-injunction because of his week-long interim order.
The judge also notes that short-term super-injunctions may be justified in some other situations:
The reason why, on some occasions, applicants wish for there to be an order restricting reports of the fact that injunction has been granted is in order to prevent the alleged wrongdoer from being tipped off about the proceedings before an injunction could be applied for, or made against him, or before he can be served. In the interval between learning of the intention of the applicant to bring proceedings, and the receipt by the alleged wrongdoer of an injunction binding upon him, the alleged wrongdoer might consider that he or she could disclose the information, and hope to avoid the risk of being in contempt of court. Alternatively, in some cases, the alleged wrongdoer may destroy any evidence which may be needed in order to identify him as the source of the leak. Tipping off of the alleged wrongdoer can thus defeat the purpose of the order.
Such super-injunctions, he notes, will usually expire quickly. They don’t raise the sorts of concerns that long-term super-injunctions do, I think. Richard Spearman QC could not cite an example of a super-injunction that lasted beyond the service of the order on the respondent, and without a return date.
I also wonder how many super-injunctions actually prevent us learning about or discussing truly signficant things. I’m sure many do, and the Trafigura case is a good example. But super-injunctions protecting details about celebrities’ sex lives are of a different order than those protecting issues being discussed about matters of legitimate public concern.
Of course, it’s in the nature of super-injunctions that we know almost nothing about them, and that’s a big part of the problem.
The law and the court rules that guard against unjustifiable super-injunctions
Still, the Tugendhat judgment is very robust in rejecting the claim. The judgment shows the protections that are in place to try to prevent unjustified injunctions: there must be good evidence of a threat to publish sensitive private material; the possible publication should be truly distressing; the evidence should be first-hand; privacy injunctions aren’t there to protect claimants who are primarily concerned about their reputations; media defendants should be alerted in almost all cases so they can present arguments; in no-notice hearings the applicant’s lawyers are required to draw the court’s attention to information that may count against them; they have to prove that any defences (such as public interest) that might be available are not likely to succeed; the court will almost always require a later hearing with the respondents present; court files are not usually sealed; documents can generally be made available with anonymity orders and the sensitive information kept back in a confidential schedule; if the information is already circulating, that will tell against an injunction; open justice and free speech weigh heavily in the balance.
The judge ruled against Terry on a wide variety of grounds, including the inadequacy of the evidence of a real threat to publish sensitive details, the possibility of a public interest defence, the failure to notify media respondents, and his assessment that Terry was really trying to protect his sponsorship deals. The judge also pointed out that even if Terry had succeeded, the order would be in much more limited terms than Terry sought, and would not have included a super-injunction element.
So… super-injunctions: bad. But we need more information before we thump the table too hard about them, I think.
Topics: Injunctions, Privacy tort, Suppression orders | Comments Off on Super-Injunction denied
Name revelation
January 22, 2010
I see that Whale Oil has been publishing a series of posts under the heading “Interesting names” that contain nothing but a person’s name. I might take a wild stab in the dark and guess that those were names that had been suppressed. Is he breaking the law?
It’s an offence to publish a name (or identifying details) “in any report or account relating to the proceedings”. No doubt Mr Oil is relying on that clause. Of course, it wouldn’t be a breach of a name suppression order protecting someone accused of assault, for example, to report that he had just won a flower show, without mentioning the criminal proceedings at all. So just publishing a name in a vaccuum would seem to put Mr Oil in the clear. And after all, publishing names this way does protect any victims and doesn’t do an awful lot of harm to the defendants.
Still. I think he’s still dicing with danger. The courts have interpreted the “relating to the proceedings” clause fairly widely (though not this widely) in the past. They are unlikely to be sympathetic to him. They may feel, given the context of his campaign, that this series of posts does relate to proceedings. More likely, the charge may be one of evading or attempting to evade a suppression order, which doesn’t require a “report or account relating to the proceedings”. In any event, he’d better be pretty careful with his comments threads. If others make links between his names and particular proceedings, that could compromise his defence.
Topics: Name suppression, Suppression orders | Comments Off on Name revelation
Crashing and burning
January 21, 2010
Valerie Morse has lost her appeal to the Court of Appeal over her conviction for flag-burning at the Anzac Day Dawn Service. (For some reason, this wasn’t regarded as a “decision of public interest”, but it’s posted here).
The judges all wrote separate judgments. Justice Arnold and the President of the Court of Appeal, William Young, voted to uphold the conviction. Justice Glazebrook wrote a dissent. (I think her dissent is very convincing, but I would say that: Tony Shaw and I represented Valerie.)
Still, perhaps the final chapter has not yet been written. The Supreme Court may yet grant leave for an appeal.
I won’t go into a detailed analysis of the judgments. But I do want to make one point, despite knowing that it’s a bit naff arguing the toss with a judge after a judgment.
You’ll see that at para [48], William Young P says:
In the course of argument, I pressed Mr Price for the appellant to identify an error of law made in the Courts below. His answers were variations on the theme that the outcome was simply wrong. This rather makes me think that the fundamental challenge to the conviction turns on the factual accuracy of the findings made in the District Court and the High Court. But such a challenge, at least in simple terms, is off-limits in this Court in a second appeal…
I’m not sure where this came from. First, the Court of Appeal itself gave leave on the of whether the conviction was consistent with the Bill of Rights Act. It characterised this as a question of law.
Second, here our our written submissions on the errors of law in the courts below:
The failures of the courts below
The courts below failed to properly conduct an analysis of the impact of ss14 and 5 of the BORA in that:
– they did not adopt a rights-centred approach;
– they did not acknowledge that the right to offend, shock or disturb is an indispensable aspect of freedom of expression, and particularly political expression;
– they did not acknowledge that limitations on BORA rights should be construed narrowly, convincingly established, and strictly applied in favour of the rights at issue;
– they did not properly assess the significance of freedom of expression in the circumstances of this case;
– they did not identify any legitimate purposes for the restriction on the appellant’s right to burn the NZ flag, the starting point for any proportionality analysis;
– they did not consider whether the appellant’s conviction was “demonstrably justified” in a free and democratic society;
– they appeared to treat the symbolic nature of the act of flag-burning as an aggravating rather that mitigating factor;
– they did not properly apply the Brooker test, which significantly lifted the bar in cases of protest; nor did they create and apply an analogously high bar for offensive behaviour;
– they did not consider the relevance of the offence of flag-burning under the Flags, Emblems, and Names Protection Act 1981;
– they apparently regarded the proportionality analysis as an ad-hoc balance between the rights of the appellant and the rights of the others in attendance, rather than a structured process of justification that revolves around evaluating the legitimacy, relevance and strength of the state interests in the restriction.
Also, as Justice Arnold notes at para [14], we supplied three alternative approaches to interpreting the offense of offensive behaviour, all of which we said were consistent with the Bill of Rights, and none of which were adopted by the District and High Court judges.
Finally (and I’m taking this from the notes I wrote during the break in order to respond to William Young P’s question), we emphasised that the fundamental failure of the judges was in adopting the wrong approach to the question of justifying restrictions on free speech. The correct legal approach required them to acknowledge that the starting point was freedom of expression and that the burden of justification lay with the Crown; the second step was to examine how deeply the right to freedom of expression is involved in the particular circumstances; the third step was to assess the countervailing state interests and the extent to which they were harmed; and the final step was to assess whether that harm outweighed the damage to freedom of expression. This is the sort of analysis, we noted, that Canadian courts conduct all the time.
I guess that, to the President, that didn’t sound like an error of law. It sounded like a fancy way of dressing up a bare claim that the lower courts had just “got it wrong”. In any event, he wasn’t convinced by our arguments.
And to be fair, the essence of our argument was indeed that on any properly rigorous justification analysis, a conviction could not be found proportionate. There’s a big difference between that sort of robust approach, and one that merely plays a bit of lip service to free speech, refers to a few factors that seem relevant to a “balancing” exercise, and reaches an airy conclusion that a conviction is justified. I think Justice Glazebrook was the only judge to really grapple with all the facts and apply a rigorous justification analysis. She found the conviction unjustified.
Topics: NZ Bill of Rights Act, Protest speech | Comments Off on Crashing and burning
Meanwhile, over at Whale HQ
January 14, 2010
Mr Oil has an odd post calling attention to the discrepancy between the “liberal crim huggers” (does that include the people who support him, one wonders?) who point out that many name suppressions exist to protect victims, including one of the ones he’s alleged to have breached, and this case:
An Auckland methodist minister has been charged with a sex offence against a teenage youth.
Kenneth Smith appeared in Rotorua District Court this morning accused of indecently assaulting the 17-year-old boy at a motel on January 10.
Mr Oil’s point?
Sex Crime, victim, no name suppression… Now you can’t get more shameful than that and yet there isn’t any name suppression.
His post is headed “Why no victim protection in this case?”. There’s a simple answer. The victim’s name is in fact suppressed. It happens by operation of the law, automatically. The reason the papers can name the defendant is that this doesn’t reveal the identity of the victim. That’s completely different to a situation where the relationship between the defendant and the victim is already in the public domain… in those circumstances, naming the defendant would identify the victim.
I believe the liberal crim-huggers’ viewpoint is simply that sex victims’ identities should be protected (or perhaps that the laws providing such protection should be obeyed). It’s not inconsistent to decry a blogger who reveals a victim’s identity and have no problems with a story that doesn’t.
Topics: Name suppression | Comments Off on Meanwhile, over at Whale HQ
Solicitor-General not going Whale hunting
January 14, 2010
The Solicitor-General has decided not to pursue Mr Oil for contempt of court “at this stage”, though he says he supports the prosecutions for name suppression. He adds that contempt proceedings “remain an option” if Mr Oil’s offending continues or escalates, but would probably be brought after the suppression breaches trial.
Topics: Contempt of Court, Name suppression, Suppression orders | Comments Off on Solicitor-General not going Whale hunting
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