Court of Appeal weighs in on Simunovich defamation case
September 25, 2008
The defamation lawsuit brought by Simunovich Fisheries against TVNZ and others looks, from afar, like it involves the parties running an ultra-marathon through a labyrinth. Still, it’s the biggest defamation claim in NZ’s history (the plaintiffs are seeking nearly $30 million, and are arguing that most of that is actual financial losses). So there’s a lot at stake.
The Court of Appeal has issued a judgment on some of the early skirmishes relating to what documents have to be disclosed and how the issues have to be pleaded. (I say “early”, but it is some five years after the coverage in question). The decision is of interest mostly to trainspotters. Significantly, though, the court has recognised that draft scripts given by the media to lawyers for vetting don’t have to be turned over
The decision is available here.
Topics: Defamation | Comments Off on Court of Appeal weighs in on Simunovich defamation case
Public meeting on Urerewa raids
September 22, 2008
I’m speaking at a public meeting tonight on the contempt of court aspects of the Urewera raids.
The meeting is organised by supporters of the defendants, and will also include a discussion of the broader issues around the raids, and the Search and Surveillance Powers Bill.
I’m not a member of the October 15th solidarity group, but I’ll be interested to hear what they have to say.
Do feel free to come along. It’s at St John’s in the City, cnr Willis and Dixon Streets, at 6:30pm.
Topics: Contempt of Court, General | Comments Off on Public meeting on Urerewa raids
Fairfax contempt case: some impressions
September 19, 2008
I caught some parts of the evidence, but not the submissions, so I’m a bit limited in what I can add to my original thoughts here.
But that’s also the case with the media coverage generally. While the press bench was full to overflowing, the journalists might just as well have been reporting on a rugby game by looking through a camera focused on a 10 square metre area of the field. The primary evidence was contained in affidavits, which weren’t read out. The witnesses were referring to four bundles of documents, which the press couldn’t see. The cross-examination did little more than snipe around the edges of those affidavits. It was difficult to get a handle on what was really going on, even for those reporters with a solid grasp of the intricacies of the law and procedure of contempt of court.
The tremendous Wendy Murdoch from the DomPost applied for access to the affidavits, which was granted, so we may see more details emerging in future.
And as usual, the evidence was given in painstakingly short and slow bursts punctuated by long pauses so that the court stenographer could get it all down. (Is there some reason we can’t simply record the proceedings and have someone type them up in the next room? This would allow witnesses to talk at a natural pace, and cases could be completed in half the time. The transcript could be prepared almost as quickly, and the recording could be rewound when necessary to check on exact words). As it was, Randerson J had to keep telling people to pause or slow down. Shorter questions would help, he added a bit testily. Later on he rather undermined his point by asking a question so long and quick that the stenographer couldn’t get that down either.
What did we learn? Not that much. When pressed, Fairfax’s Paul Thompson admitted that he “may not” have made the same decision to publish if he’d known the full details of the suppression orders and the provision in the Crimes Act banning disclosure of intercepted communications.
DomPost editor Tim Pankhurst admitted he knew “broadly” about that Crimes Act provision.
The elephant in the room was the legal advice they received. In fact, that elephant was not in the room, since they chose not to reveal it and so could not rely on it in court. But that elephant’s shadow was there. What did that advice say about the Crimes Act? How much was known about the suppression orders? (I know from my own experience how hard it can be to find out what exactly has been suppressed, and there were numerous disparate bail hearings. I doubt the full set of orders was available for many months.) Was Fairfax advised that they should hold off till they got more information about what was suppressed?
In the end, Thompson and Pankhurst’s evidence seems to be that they knew there was a range of suppression orders, that they didn’t know the precise content of all of them, but on the basis of what they did know, they believed it was safe to publish. It’s not clear whether they were diligent enough in hunting out those suppression orders.
In an editorial, the DomPost claimed they believed it was legal to publish. But at a journalism conference, Pankhurst had admitted that the lawyers had said there were risks (though he didn’t say what the nature of the risks was. Suppression orders? Crimes Act? Prejudice to the trial?)
Embarrassingly for Fairfax, it emerged at trial that some of the allegedly prejudicial material (I think only the editorial that accompanied the front page story) was still available on some part of a Fairfax website.
Ooops.
It also seemed that the Solicitor-General was still in the process of tracking down all the suppression orders. W. T. F?
At the heart of the case is the question of whether the coverage will have tainted the minds of potential jurors. On that question, we had dueling experts. And what experts! One was Duke University’s Neil Vidmar, probably the world’s foremost expert on jurors and prejudice. The other was our own Dr Warrent Young, undoubtedly New Zealand’s leading expert, and 2IC at the Law Commission. They’re cobbers from way back, so it was all very amicable, and they had very sensibly submitted a joint memorandum setting out their areas of agreement and disagreement, as well as their own affidavits.
I haven’t seen any of those documents either. Sigh. Memo to courts: stop whinging about uninformed coverage unless you’re prepared to make it easier for journos to access the raw material of court proceedings. Why not have the lot electronically available to journalists on the spot (unless there’s some reason to exclude any)? Attach a copy of the suppression order at the top.
Anyway, Vidmar gave evidence by video-link and seemed articulate and authoritative. He’s a strong believer in jury trials, but he says research suggests that jurors are affected by this sort of material, and it influences the way they do their job, particularly when issues are finely balanced. Warnings to the jury don’t necessarily work.
Young was in the court and seemed articulate and authoritative. I think he also believes in the jury system, and he draws on his NZ research into juries as well as the general literature. He says that the risk of this particular material influencing them was “real” but “very small”, mostly because the process of deliberation between jury members ameliorates the effect of prejudice.
It will be interesting to see what the judges make of that. It is, at any event, heartening to see these decisions based on evidence rather than the traditional method of resolving this issue: judges consulting their gut feelings.
I’ll write more when I’ve seen the submissions and the affidavits.
Topics: Contempt of Court | Comments Off on Fairfax contempt case: some impressions
Judge Harvey lifts internet suppression order
September 19, 2008
It seems the media’s submissions on Friday were successful. Haven’t seen the decision yet.
Topics: Internet issues, Suppression orders | Comments Off on Judge Harvey lifts internet suppression order
Just wondering…
September 4, 2008
Did Judge Perkins consider the NZ Bill of Rights Act before issuing a blanket suppression order in the Arms Act charges relating to the police raids last year? These sorts of discretions must be exercised consistently with the BORA – so the restrictions should be demonstrably justified in terms of the tests laid down by the courts. Not sayin’ the result would be different, just that it’s, you know, the law to engage in this analysis. Still, I do have to wonder whether “some evidence might later be ruled inadmissible” and “it’ll be inconvenient to separate out and argue the suppression issues” (if that reasoning has been accurately reported) really cut the mustard as a demonstrable justification…
Oh, and Fairfax papers: might be a good idea if you stopped using the phrase “anti-terror raids” in these stories. You do know you’re up on a contempt charge for that sort of thing, starting in a couple of weeks?Adding a “so-called” doesn’t necessarily help. And, um, who did “so-call” them that? Wasn’t by any chance… Fairfax papers, was it?
Topics: Contempt of Court, NZ Bill of Rights Act, Suppression orders | Comments Off on Just wondering…
How to shut down speech on the internet. Maybe.
September 4, 2008
Sebastian Hoegl, a masters student from Germany in my media law seminar, made a startling suggestion this week.
Since we all access the internet via an ISP (we put in a web address, the ISP hives off, collects the data, and sends it to our computers), then the ISPs are publishing that material to us. All of it. Sebastian’s point: if ISPs are sending us material that is defamatory, or in contempt of court, or breaches confidentiality or privacy or a suppression order… aren’t they liable for it?
I’m not debating whether they ought to be liable for it. The question is, under our law at the moment, are they?
Take defamation. ISPs might well be innocent disseminators of this information (I discussed this here). But as soon as they are alerted to defamatory material, they lose this defence. If they don’t stop their publication of the material – even in response to users’ requests – they become liable for the defamation. That means they’d have to block users’ access to that particular material or site. So what’s to stop a lawyer, whose client feels defamed online, from writing to all ISPs in the country (or at least all the main ones) asserting the defamation, and insisting that they block their users’ access to the site or they’ll face a defamation action for their role in the publication? Remember that under normal rules, everyone in the chain of distribution is liable for the defamation, from the journalist to the publisher, and the printer and bookshop owner are only off the hook until they get notice that what they’re printing or selling may contain defamatory material. Why are ISPs different?
Of course, the lawyer already has the ability to write to the ISP hosting the site (if it’s a NZ site), give notice of the defamation, and tell them to have it taken down or face joint liability for it. But what if that ISP is ornery, or badly advised, or taking a principled stand to uphold the rights of its clients? Or, more to the point, what if the host is overseas-based? Sebastian’s suggestion allows the targeting of the NZ entities facilitating access to the material.
Take another example. If the Solicitor-General writes to all the New Zealand ISPs and says: “X blog contains material that is prejudicial to upcoming trial Y. You are not hosting X blog, but you are allowing your users to access it when they type in X blog’s URL. If you continue to allow such access, you may be prosecuted for contempt of court”. I can’t see that that the ISP has any choice but to block the material. China manages it, so it must be technically possible.
Again – I’m not trying to argue that this is necessarily a good thing. The implications are profound, I think, and I want to mull them over. What I’m wondering now is: have I missed anything that undermines this legal analysis?
Topics: Breach of confidence, Contempt of Court, Defamation, Internet issues, Suppression orders | Comments Off on How to shut down speech on the internet. Maybe.
Talk about giving with one hand…
September 3, 2008
On the same day the Hawke’s Bay Today was writing to Peter Hausmann to offer to correct its editorial of five days earlier for inaccurately founded attacks, guess what it printed in its paper? The same inaccurately founded attacks. Nice.
The Press Council has found this “inexplicable“, and it doesn’t seem that the paper even tried to explick it.
The following week, the paper published more inaccurate criticisms of Peter Hausmann, without properly seeking his response, as the Press Council found. When it finally published a correction, it botched that too.
The Press Council upheld complaints about all four items, on various grounds of inaccuracy, unfairness and imbalance.
It noted that Hausmann was difficult to get comment from (he said he was worried about confidentiality undertakings), which understandable irked the paper, but “principles of accuracy, fairness and balance always apply and therefore reporters are obliged to strive for the other side, no matter what difficulties exist.”
It was also critical of Hawke’s Bay Today for relying on the information reported in another paper, inaccurately as it turned out.
They should have known that you can’t believe what you read, these days.
Topics: Media ethics, Press Council | Comments Off on Talk about giving with one hand…
Where’s the media?
September 3, 2008
According to this report, Judge Harvey seems bemused that the media haven’t turned up to make submissions about his order allowing only non-online reporting of details about the Hapata case. “Not even an RSVP?” he’s reported to have asked.
Topics: Contempt of Court, Suppression orders | Comments Off on Where’s the media?
The value of the press
September 1, 2008
From Winston Peters’ blog:
Today we have been doing some jobs at home, pausing occaisionally [sic] to look out the window at the teams of journalists, camera people and photographers camping on the footpath. At the same time, it occurred to me that the money spent on these people could be used on a force for real good within the community.
Topics: General | Comments Off on The value of the press
Defamation liability for threads on blogs and news websites
August 31, 2008
Remember the basic rule of defamation: you publish it, you’re liable for it.
That includes everyone involved in the publication. In a newspaper: the quoted source, the reporter, the subeditor, the editor, the publisher, the printer, the paperboy, and the bookshop. (The last three probably have a defence of innocent dissemination, as long as they’ve got no reason to think there’s anything defamatory in the paper).
Similarly, broadcasters are liable for the statements of their contributors – even callers on live talkback radio. That’s why they employ delays and dump buttons.
And so online. If you’ve got comments on your website, then you’re liable for them if they turn out to be defamatory. That’s certainly the case if the comments are moderated, and particularly if they’re pre-approved. But based on first principles, it’s also probably the case where the site simply invites comments and allows them to be posted.
If you’re managing a website and want to give yourself the best chance of avoiding liability for others’ comments, then don’t have anything to do with the comments, and put up a dirty great sign telling everyone that you’re not checking the content of the comments. Then stick to this. Don’t even reply to any of them, lest you give the impression that you’re reading them and therefore implicitly approving them. Then, if someone does complain about a particular comment, check it out or take it down. The possibility that you have avoided liability runs out at the point that someone draws it to your attention.
Now, I doubt even these precautions will work for you. You’re still publishing it, and you’ve invited the comments. You’re probably still liable for them. But they give you the best chance. They try to set you up as an “innocent disseminator” – like the bookshop – rather than the main publisher. They try to put you in the same position as the ISP. On current authority, ISPs are probably “innocent disseminators” – again, until they’re given notice that some content may be defamatory. At that point, they become potentially liable for it unless they remove it.
Out-law.com reflects the debate:
“Many lawyers I’ve spoken to now view the invitation of content – so if you have a comments section at the end of an article on a newspaper site – they view that as inviting comment and therefore you are responsible for it and therefore you probably want to consider pre-moderating all the content that goes there,” said Danny Dagan, a moderation consultant who has helped establish online communities for The Sun newspaper, amongst others.
On the other hand:
John Mackenzie, a litigation partner with Pinsent Masons, the law firm behind OUT-LAW.COM, disagrees with Dagen and Sparkes.
“It is likely that the courts will focus on whether or not a publisher reviewed content, rather than the form of the publication,” he said. “It isn’t likely to make any difference whether or not it is an invitation to comment or a bulletin board. They amount to much the same thing. If the comments are not moderated, the publisher is probably safe, at least until notified of any allegedly defamatory posting.”
Topics: Defamation, Internet issues | Comments Off on Defamation liability for threads on blogs and news websites
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