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Lundy case is falling down?

February 11, 2009

I commend to your attention Mike White’s terrific article questioning the conviction of Mark Lundy in North & South magazine.

It seems Lundy is to be added to New Zealand’s increasingly large stack of questionable convictions.

When serious questions like this arise, I don’t think it’s enough for police and prosecutors to respond, as they often do, by saying “the jury saw all the evidence, and they were satisfied beyond reasonable doubt”. If some of that evidence is open to serious challenge, the prosecutors should be answering those questions. If prosecutorial misconduct is alleged, such as a failure to turn over relevant evidence to the defence, prosecutors should be addressing that too. If a journalist uncovers compelling reasons to doubt some of the evidence that it seems the jury relied on, prosecutors should at the very least be prepared to point to other compelling evidence that indicates guilt.

To be fair to prosecutors, it’s sometimes hard to respond to criticisms of a lengthy and complicated trial process, to journalists who weren’t there for it all, don’t understand the law’s procedures and content, may well misunderstand or misquote explanations, are looking for an exciting angle, and may be little more than pawns of a lobby group. 

But when a reporter does what seems to be an in-depth, balanced, careful feature, I think it’s incumbent on the authorities to explain the other side, and to front-foot any shortcomings. The public’s confidence in the justice system is rocked far more by an article like this than by almost anything else I can think of.

I’m not holding my breath. But this may give some impetus to the case (made by Justice Thorp and others) for a Criminal Appeals Review Office, as exists in Canada and the UK.

Topics: General | Comments Off on Lundy case is falling down?

Books are doomed

February 10, 2009

Yeah, I don’t much like e-books either. But here’s the thing: that doesn’t matter. Old paper-and-binding books are doomed anyway.  Don’t believe me? Read this. The logic is unassailable, I think.

Topics: General | Comments Off on Books are doomed

Books banned in New Zealand

February 5, 2009

The censor’s office has posted an interesting list of the books banned or restricted here since 1965.

250 books have been banned or restricted in that period. Interestingly, nearly two-thirds of those bans/restrictions have been since the passage of the Films, Videos and Publications Classification Act in 1993, and nearly a third were in the period 1996-1998.

I doubt this is an indication that we’re more censorious these days, though. No doubt the volume and offensiveness of objectionable publications is much higher in modern times. It’s hard to see the current lot banning Why He Was Born So Beautiful And Other Rugby Songs, as the Indecent Publications Tribunal did in 1968, for example. (Other curious bannings: The Kama Sutra Illustrated (1971), The Complete Marquis de Sade (1975), The Limerick Vols 1 and 2 (1977), The World’s Best Dirty Jokes (1979), The Joy of Gay Sex (1983), The Autobiography of a Flea (1987), The World of the American Pit Bull Terrier (1991), and A Guy With Tits (2001)).

The bans seem to fall loosely into three categories: making drugs (Brownie Mary’s Marijuana Cookbook and Denis Peron’s Recipe for Social Change, The Construction and Operation of Clandestine Drug Laboratories, Opium for the Masses), advice on hurting people and making weapons (Kitchen Improvised Plastic Explosives, How to Kill Vol 11, Physical Interrogation Techniques, Ragnar’s Guide to Home and Recreational Use of High Explosives, Bazooka – How to Build Your Own), and coercive sex (Raped and Tortured Schoolgirl, Raped Daughter then Mother, Bound Black Wench and – gotta love this one – A Librarian Enslaved).

Bans and restrictions in recent years tend to relate to books about drugs, weapons and criminal techniques.

Topics: Censorship | Comments Off on Books banned in New Zealand

In Jesus’ name, amen

February 5, 2009

Someone complained to the Advertising Standards Authority that a Christmas ad from Bond and Bond was offensive to Christians. The ad said:

CELEBRATE THE BIRTH OF JESUS WITH SOME NEW GEAR, IT’S WHAT HE’D WANT

Offensive to Christians? Well… maybe some. But it’s mostly spoofing the brazen commercialisation of Christmas, including by Bond and Bond. Damn my atheist heart, but I think it’s bloody funny. (The ASA quite rightly didn’t uphold the complaint).

Topics: Advertising Standards | Comments Off on In Jesus’ name, amen

“Vile racist abuse?”

February 4, 2009

Here’s Vince Siemer’s case in a microcosm. Siemer writes intemperately about Stiassny. The courts overreact to Siemer. Siemer overreacts to the courts.

In the $920,000 damages judgment, Justice Cooper accuses Siemer of directing “vile racist abuse” at Stiassny. Here’s his reasoning:

[48] [Stiassny] complained also that some of the language used by Mr Siemer had apparently been calculated to be offensive to him and caused distress. Examples that he gave included ridicule of his name. Mr Siemer had distributed stickers saying “There is an ‘ass’ in our website www.stiassny.org”. Also there had been references to his Jewish religion and to the persecution of the Jews. Thus, in his letter to the New Zealand Institute of Chartered Accountants of 14 February 2005 Mr Siemer had written:

News Flash! Michael Stiassny tells Professional Conduct Committee that sky is yellow… again, the sky is yellow.

[49] Further, on www.stiassny.org, on the “interviews page” Mr Siemer had referred to him as a man with “exceptional sway within the small Jewish community” and had commented that “when the judiciary determines that a ruthless and powerful man’s reputation is so priceless…the Gestapo cannot be far behind…people like Adolph[sic] Hitler…”.

[50] On a page headed “the Smartest Guy in the Room”, Mr Siemer had stated:

Stiassny will likely have taken his family and ill-gotten gains to exile in Israel or Switzerland.

[51] On the welcome page, Mr Siemer had referred to Mr Stiassny in the phrase:

…what a good Jew he is (no joke).

I find this a bit mystifying. What part of the “News Flash” comment refers to Stiassny’s religion? How is the comment about the Gestapo and Hitler anything other than a criticism of the judiciary – and one that draws a sympathetic comparison between Siemer and Jews as victims? Why is the exile comment anti-Semitic?

Yep, the “what a good Jew he is” comment is yucky. But is it “vile racist abuse”? Siemer is right to regard the judge’s characterisation of his attacks as unfair, I think.

So how does Siemer respond? By saying in a letter he’s circulated that the judge “simply made it up”. But this is nonsense, too. You can see from Siemer’s own website that the quotes are accurate, and the bits the judge has abbreviated don’t change the sense of the words, or take them out of context. The problem isn’t that the judge invented them or used them unfairly, it’s that they’re not really vile racist abuse. (Siemer doesn’t discuss the “good Jew” quote).

I’d have more sympathy for Siemer if he didn’t engage in such ridiculous exaggeration. But I have to say, I’m much more troubled when the courts do it…

[Update:  On the “good Jew” quote, Siemer says he was responding to this NZ Herald article, which quotes Stiassny saying “I’m Jewish. I support Israel but it would be inappropriate for me to talk about that.” Siemer says he was simply summarising this comment, accurately characterising it as Stiassny saying what a good Jew he is. I don’t have the context of Siemer’s original statement to evaluate that, but if true it very much changes the complexion of the quote.]

Topics: Defamation | Comments Off on “Vile racist abuse?”

Siemer files appeal

January 30, 2009

Vince Siemer has filed an appeal against Cooper J’s judgment awarding $920,000 in damages against him.

Can a person who is debarred from defending a case appeal against it? I guess we’ll find out.

Topics: Defamation | Comments Off on Siemer files appeal

Coverage of Siemer case

January 30, 2009

Jock Anderson of Truth writes to say the Siemer decision didn’t slip under his radar. So those readers who take a regular interest in his august organ (a hideous image, yes) will have read about the result a couple of weeks ago.

The DomPost also covered it today, under the headline “$920,000 payout for defamation”, saying “An Auckland businessman is to receive nearly $1 million in damages in New Zealand’s biggest defamation case”.

Um, unlikely. Siemer is bankrupt in NZ, and although he has assets in the US, Stiassny will struggle to have his judgment enforced over there. The US courts are very hostile to decisions based on free-speech thresholds lower than those set in the First Amendment.

A nitpick: $20,000 of the $920,000 is for breach of contract, not defamation.

Topics: Defamation | Comments Off on Coverage of Siemer case

Judge awards highest ever defamation damages

January 29, 2009

This news seems to have slipped under the media radar: just before Christmas the courts handed down the highest defamation damages award in NZ’s history.

Cooper J awarded Michael Stiassny and his firm $920,000 damages against Vince Siemer for his long-running attacks on Stiassny, including $900,000 for defamation. (To recap: those are the attacks that led to the injunction that led to the contempt of court cases that led to Siemer being fined and jailed for breaching the injunction and then let out of jail to argue that he should have been given a jury trial. Judgment’s still pending on that last one).

Those contempt cases also led to a huge award of costs – more than $180,000 – against Siemer (joining many other costs awards against Siemer). He didn’t pay them. So Potter J debarred him from defending Staissny’s defamation case.

So it can’t have been much of a defamation trial. You had the country’s most famous media lawyer, Julian Miles QC, arguing one side, and on the other…. nothing. There’s a huge hole in the judgment where the discussion of defences would usually come. Were the attacks true? Were they simply honest opinion? Were they protected by qualified privilege? The judge didn’t have to decide. 

At one point Cooper J said: “there is no substance in the allegations that Mr Siemer makes”. The judge really had no place saying that. Siemer has insisted all along that his criticisms are true. He’d been prevented from putting forward evidence to prove them. The judge didn’t know what that evidence might have been.

And that’s surely got to give anyone pause for thought. Nearly a million dollars in damages awarded against someone who was denied the right to present evidence in his own defence. That’s in addition to being sent to jail for contempt for saying things he continues to insist are true, and which have never been disproved, in breach of an injunction he believes was wrongly imposed.

The picture is different from Stiassny’s perspective, of course. Stiassny would say he has been subject to years of false and damaging invective from Siemer, has been forced to spend more than a million dollars on the defamation/breach of contract lawsuit, has won almost every point he argued, and has been granted costs awards in his favour, but Siemer has refused to pay them – and worse, has flouted the court’s injunction and continued to spread his poison. Why should he be put to the expense of a full trial when Siemer won’t pay for the costs of the pre-trial skirmishes – many of which Siemer initiated?

Still, this is a whopping award. It includes aggravated damages ($150,000) and exemplary damages ($25,000).

Not surprisingly, Julian Miles argued that the case was broadly analogous to two other giant NZ defamation awards: $675,000 in the Ray Columbus case and the eventual $650,000 in Quinn, though these involved national publications; Siemer’s statements were made on a short-lived billboard, some fairly obscure websites, and in letters, stickers and notices.

Also not surprisingly, Miles seems to have made no mention of the dozens of other defamation awards, many of them for fairly serious defamations much more widely published than Siemer’s, that came in well under $100,000.

Not surprisingly once again, the entire judgment feels very one-sided. It’s hard to believe that this sum would have been awarded if the case had been fully argued. (And that’s putting aside the question of whether Siemer would have been able to establish a defence). Whatever you think of Vince (and I’ve been critical of him), it’s also hard to be comfortable about the circumstances in which this award was made.

[For completeness, I should note that Terry Quinn was originally awarded $1.5 million by a jury for two defamatory programmes, but the damages bill was reduced to a total of $650,000 on appeal]. 

Topics: Defamation | Comments Off on Judge awards highest ever defamation damages

Talkback officially a balance-free zone

January 22, 2009

In this extraordinary decision, issued this month, the BSA has effectively re-written the Broadcasting Act and exempted talkback radio from the balance standard. It also seems to largely give talkback shows a pass when it comes to fairness complaints.

The BSA had already established a rule that talkback hosts could be inaccurate pretty much whenever they liked. Now they can be unfair and unbalanced too.The upshot: a talkback host can launch a three-hour diatribe against a public figure and on an issue of public importance, basing the criticisms on botched facts, and encouraging callers to join the chorus. The talkback broadcaster doesn’t have to seek or broadcast any other sides to the debate, the way all other broadcasters have to. It doesn’t have to offer those excoriated an opportunity to defend themselves, even if they call in a couple of days later wanting to put the record straight.

I think this decision is a shocker. It is poorly reasoned, contains at least two jaw-dropping errors of law, reverses the BSA’s previous approaches without saying so, flies in the face of the wording and policy of the Radio Code and the Broadcasting Act, and leaves talkback listeners at the mercy of unscrupulous talkback hosts fixated on ratings and contemptuous of ethics.

Disclosure: I argued this case, so take all this with a grain of salt if you like. (These are my views, not necessarily the Commissioner’s, though she has kindly given me permission to publish this post.)

Some background: a talkback host attacks the Children’s Commissioner 

One Friday last August Michael Laws broadcast a three-hour talkback show almost wholly devoted to an attack on a report into child poverty commissioned by Barnardos and Children’s Commissioner Dr Cindy Kiro. (In fact, this is just the latest attack in Laws’ campaign against the Commissioner. Earlier last year, RadioLive broadcast an apology to her for Michael Laws’ string of botches and personal abuse).

Still, if you’d tuned in that Friday, you would have heard that the child poverty research was crap, subversive, lazy and a cop out and “mostly consists of giving beneficiaries more money”. The real problem is “useless parents” and “sick” Maori and Pacific Island culture. Dr Kiro – of “Maori extraction” – was an “apologist for dropkick mums and deadbeat dads” and the Maori community’s failures. Dr Kiro was described as incompetent, biased toward her race, out of touch, wasteful, deluded, lazy and politically motivated. There was much, much more in that vein. Three hours of it.

I don’t believe that Michael Laws had actually read the report. If he had, he would have seen that its main conclusion was that the best pathway out of poverty was helping parents into full-time paid work (many of its recommendations were aimed at that goal). He would have seen that it recommended direct help for children, such as improving immunisation, expanding free medical visits for children, and reading recovery programmes. He would also have seen that it was written by experienced and well-qualified researchers who pointed to evidence that low benefit levels were compromising the health, nutrition and educational and social development of young children, particularly in solo parent families. If Laws had done a jot more research, he would have found that Dr Kiro frequently speaks out against bad parenting, and often calls on the Maori community to take greater responsibility for their problems (while noting that Maori aren’t the sole culprits). But Michael Laws isn’t one to let facts get in the way of a good tirade.

“The talkback show that wouldn’t let me talk back” 

RadioLive alerted the Children’s Commissioner’s office to the programme about half an hour into the programme. But Dr Kiro was giving other interviews about the report. Besides, she didn’t know what criticisms had already been made. She decided to wait until she could ascertain what exactly had been said and respond to it after the weekend.

Dr Kiro called up the station the next Tuesday morning and asked to be given a chance to answer the criticisms. What did Michael Laws do? This is the same Michael Laws who has (inaccurately) ridiculed Dr Kiro for failing to come on his show. It’s the same Michael Laws who promised his listeners he’d be revisiting the child poverty issue again. You guessed it – he refused to let her come on air. “I feel like it’s a talkback show that wouldn’t let me talk back,” Dr Kiro told me.

The producer said the show had moved on to other topics that day, and she’d had her chance on Friday. Dr Kiro offered to appear in a show later that week. They refused that, too.

A free speech issue

Michael Laws believes this case is about free speech. So do I. At this point in the proceedings, whose speech looks as if it’s being suppressed?

What do you expect from talkback?

Fair to ask: isn’t this par for the course in talkbackland? Isn’t it what everyone really expects? Don’t listeners know what they’re getting? Doesn’t there have to be some flexibility in the broadcasting codes to accommodate talkback?

Yes. And the BSA has always applied the radio code less rigorously to talkback. It would be absurd if the broadcaster were accountable for every factual mistake by a caller, or had to give a right of reply to everyone who copped a bit of flak. The code has never been interpreted that way, and rightly so.

But there must be limits. The balance standard and the fairness requirement in the Broadcasting Act don’t contain exceptions for talkback. The policy of the Broadcasting Act is that broadcasters should treat people fairly and should give listeners exposure to a range of views when important issues are being discussed. Here the issue was child poverty. It’s plainly publicly important. The criticisms were severe. They were largely wrong. They went on for hours. The Commissioner actually called in a requested the opportunity to provide a response. If ever balance or fairness were to be applied to talkback, it’s here.

The BSA turned down the Commissioner’s complaint. The BSA has now completely closed off the possibility of a successful talkback balance complaint and severely restricted talkback’s obligations of fairness. 

Jaw-dropping BSA error number one

Under the Broadcasting Act, broadcasters must act consistently with the principle that:

when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.  

See if you can guess how the BSA has interpreted this statutory provision in order to conclude that it doesn’t apply to Dr Kiro’s complaint. Go on, stretch your imagination.

Did the BSA say “The station did make reasonable efforts to include Dr Kiro’s view?” The show did contact her, after all. No, that’s not what the BSA said. That reasoning would have had a sliver of merit. Not much of a sliver: it’s hardly reasonable to expect someone to drop everything else they’re doing and answer criticisms that they haven’t heard.

But the BSA didn’t talk about the broadcaster’s reasonable efforts. So think of something else. Something really implausible. Something like: oh, in a three-hour talkback programme devoted to a particular issue that issue isn’t being “discussed”.

That’s really what they said.

An issue is only being “discussed”, said the BSA, when a broadcaster “purports to present a serious and even-handed examination of an issue”. That’s not the case where the show is “unambiguously opinion-based, as most talkback is, and in which the host’s role is to elicit audience reaction by taking a strong position on a topical issue”. Of course, on this definition, almost no talkback will ever contain a “discussion”, so the balance standard will never apply. (To be fair to the BSA, they have applied this approach to some talkback comments in the past. I couldn’t believe they’d apply it to an entire programme about an issue. I was wrong).

Nowhere does the BSA explain why it needs to interpret the word “discussed” so narrowly. Remember, this is a word in an Act of Parliament we’re talking about. The words are supposed to be interpreted in light of their natural meanings and the purpose of the Act. I have taught statutory interpretation. I can’t see any tenable argument that Laws wasn’t “discussing” a controversial issue.

What about the Bill of Rights? 

Is this interpretation forced on the BSA by the Bill of Rights Act? After all, it contains a direction that laws should be interpreted consistently with freedom of expression where possible. Well, the BSA doesn’t so much as mention the Bill of Rights, though it was raised in argument. If this was part of its thinking, you’d think the BSA might have said so.

And you’d also think that they’d have applied the law. R v Hansen would have required them to explain why the ordinary meaning of “discussed” would not have been demonstrably justified here. They would also have had to confront my argument (based on overseas cases and scholarship) that a balance requirement is a double-edged sword. Certainly, balance restricts broadcasters’ freedom of speech, by compelling them to publish something they wouldn’t otherwise. But it also enhances freedom of speech. It serves the speech of the person being attacked. It serves the listeners’ interests in hearing the other side. It serves democratic debate more generally. It promotes the “marketplace of ideas” that underpins free speech.

That means the issue is complicated. It’s not just about RadioWorks’ free speech rights.

What else is wrong with the balance conclusion? 

Do you need anything else? Oh well. It’s also inconsistent with other BSA decisions that say balance can apply to talkback. (The BSA doesn’t discuss the reasons for its u-turn).

It’s inconsistent with the guidelines Radio Code, which say that talkback “may be subject to a lesser requirement” for balance, but not none at all. (The BSA doesn’t discuss the guidelines.) Its reasoning is illogical. The BSA says that balance

is not intended to prevent the kind of discussion for which talkback radio is well known – free-ranging, robust, spirited, and strongly opinionated.

It’s not clear where the BSA gets its ideas about the intent behind the balance standard. Not from the words of the statute, evidently. Anyway, it’s hard to see how allowing a person who is subject to serious and protracted criticism concerning an important issue to go head-to-head with the talkback host would involve any sacrifice of robust, spirited or opinionated talkback. “Free-ranging” seems to be code for “the broadcaster decides what topics to pursue and when”. As far as I know, this notion has never prevented the balance standard from being applied to other programmes with set formats. That is, if they fail to provide balance in one programme, the BSA may force them to do so later, even though they’ve moved on to other matters. Of all the types of programming I can think of, talkback is far and away the most compatible with this sort of right of reply. They have acres of timetable to fill. They rove from topic to topic, often within the same show. Their very purpose is supposed to be lively debate.

The BSA’s reasoning on balance is, I think, plainly an error of law.

Jaw-dropping BSA error number two 

The BSA also seems to have revisited its approach to fairness, at least when public figures complain about a talkback programme.The fairness standard is about how people are treated, rather than about serving the needs of listeners. It’s rather an amorphous standard, but over the years the BSA’s approach has become pretty clear. In particular, the BSA generally regards it as unfair:

  1. to seriously criticise someone without giving them a right to respond.
  2. to broadcast serious inaccuracies about someone.
  3. to broadcast personal abuse.

Well, rules 1 and 2 no longer apply to talkback, it seems. Dr Kiro raised both. She described the criticism. She pointed out the volley of inaccuracies. The BSA did not address those arguments at all, concluding only that:As an appointed official carrying out a public function, Dr Kiro’s work and her conduct were appropriately the subject of scrutiny, comment and criticism. The question for the Authority is whether that criticism overstepped the boundaries of fairness, that is, whether it strayed into abusive personal territory. The Authority is not persuaded that this was the case. Actually, Dr Kiro never said she wasn’t game for criticism and she did not try to persuade the BSA that Laws was abusive. 

More importantly, under this new approach to fairness in talkback, broadcasters can now say whatever they like about public figures. As long as they don’t descend into personal abuse, it will not be unfair. The BSA seems to be laying down a general rule here (“the question for the Authority”). This is a significant decision. Once again, we could have expected more than three paragraphs of reasoning. We might have expected the BSA to address the arguments that were raised. We might have expected the BSA to explain why it was changing its approach. But no.

I think this new approach is plainly wrong as a matter of law, and at the very least failed to grapple with a range of relevant considerations.

Have I lost my objectivity? 

Fair question. But I’ve spoken to three other lawyers with expertise in this area, and all agree this decision sucks. I’d be very interested to hear from any lawyer with a different view.

An appeal? 

Complainants are entitled to appeal to the High Court against BSA decisions.

The BSA has been found at fault in a string of appeals last year. I think this would have been another.

However, the Commissioner has chosen not to bring an appeal. So the decision stands.

So what standards of accuracy, fairness and balance do apply on talkback? 

Not many. You can complain about personal abuse. You could complain if there is an inaccuracy if a host makes “unqualified statements of material fact that set the basis for discussion”. And you may have a right to be put on-air if you become aware that you’re being seriously criticised and you phone in immediately. Which of course means you’re out of luck if (a) you don’t hear about it, (b) you don’t hear about it in time to make sense of the criticisms that have been made, or (c) you’re busy with something else at the time.

A victory for free speech?

RadioWorks has called this decision “a real fillip for free speech”. Michael Laws accused me of hypocrisy for teaching freedom of expression but trying to suppress his.

I asked to go on air to argue the toss about that. He refused.

Topics: Broadcasting Standards Authority, Media ethics, NZ Bill of Rights Act | Comments Off on Talkback officially a balance-free zone

Gold star awards

January 7, 2009

David Farrar weighs in on the drink-driving debate with the sort of thoughtful analysis that threatens to give blogging a good name.

NoRightTurn does the same thing with the Crown Law Office’s vet of the Domestic Violence (Enhancing Safety) Bill.

Well done, those chaps.

Topics: General | Comments Off on Gold star awards


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