Harvey’s online gag
August 26, 2008
Sounds like a prank website, doesn’t it?
Of course, I mean Judge Harvey’s recent order that non-internet media can report on the proceedings against the accused killers of John Hapeta. Still, some people have been wondering: is this a joke? Isn’t trying to put a lid on the internet rather like trying to bottle a hurricane? Does he even have the legal power to do it?
The decision
I’ve just seen his reasons for decision, so I feel like I can say something sensible about it. First up: why’s he done this? Judge Harvey is probably the most tech-savvy judge on the bench at the moment. He’s written the leading text on internet law in New Zealand, and he lectures on the subject at the University of Auckland. This isn’t some knee-jerk order from a judicial luddite.
Judge Harvey points out that the days of “partial obscurity” are over. “Partial obscurity” is what you get when you combine open justice with the fact that almost everybody (including me, I confess) suffers from CRS: Can’t Remember Stuff. So if a news story about a defendant contains something inaccurate and unfair, or prejudicial, then by the time the trial rolls around, the jurors are likely to have forgotton this. The judge quotes Sir Edward Coke, who calls this, rather delightfully, “slippery memory”. The upshot: fair trials aren’t usually prejudiced by bad reporting because most of us have memories like sieves.
Yes, jurors could bowl along to the library to check their archives. But that’s a lot of effort. It’s fair to assume that hardly anyone ever does that.
Is it equally fair to assume that jurors aren’t going to go home and Google the defendant’s name? Of course not. What if the judge tells them not to, as some have suggested?
Now jurors. I am warning you not to go home and Google the defendant’s name. You must not do that. Even if you are tempted. Even if you are very, very tempted, and you are at home, and the computer is sitting right there, calling to you, with its little Google maw imploring you to feed it just one little defendant’s name, just for five minutes, what harm can that do, just a peek at the forbidden information – there must be some, mustn’t there, otherwise why this order not to look – just a peek, surely more information is better than less, we want to get the verdict right after all, and no-one’s going to find out anyway…
So this is Judge Harvey’s attempt to head this problem off at the pass. Once prejudicial information is up there, it gets archived and stored and cached in all sorts of places, commented on, added to, and twisted. Even an accurate account of what’s known early on may become misleading and distorted in the light of information that turns up later.
Lawyers and policy-makers have been grappling with this problem for some time. They haven’t been making much progress. You can argue that Judge Harvey is ahead of the curve. I’m inclined to think the most likely effect of his order is to get officials talking about how to handle this better. That’s got to be a good thing.
Another point in favour of Judge Harvey. He’s not really banning online publication. The case was heard in the Youth Court because one of the defendants is young. That means media reports of the proceedings are banned by the Children, Young Persons and Their Families Act 1989, unless the judge gives leave. (That law also automatically suppresses the name and identifying details of the youth – so don’t blame the judge for that either). Judge Harvey gave leave – but only to those media that weren’t going to create searchable records. It might have been a different story if he was issuing a suppression order under section 140 of the Criminal Justice Act.
The ban
What exactly has he banned? Oddly, this is not really very clear. The bold type on the front of the decision, which may or may not form part of the decision, says:
PUBLICATION IS LIMITED TO PUBLICATION IN A NEWSPAPER OR BY WAY OF CONTEMPORARY RADIO OR TELEVISION BROADCAST. PUBLICATION ON, OR BY WAY OF STORED VIDEO OR IMAGES ON, A WEBSITE OR INTERNET SERVER IS PROHIBITED.
Some points:
- Unless the judge has something against fuddy-duddy shows (anything hosted by Wayne Mowat, perhaps), I think the word “contemporary” should read “contemporaneous”.
- It doesn’t seem to be restricted to names and images of the defendant.
- It doesn’t seem to allow publication in magazines.
- It doesn’t seem to prevent publication of the adult defendants’ images on television (though not on a TV website).
- It doesn’t seem to allow simulcasts, which would be publication on a website, even though it’s the sort of transitory thing that the judge isn’t trying to prohibit.
- It’s not consistent with the reasoning in the decision itself. The last sentence says:
I have ordered that there be no publication of the names or images of he accused on internet based news dissemination sites.
Earlier in the decision, he says the suppression order relates to:
the publication of any accounts of what took place in Court on the internet by way of online news publication or stored video, which can be replayed or accessed at a later stage.
These would allow publication in magazines, and probably simulcasts, and maybe blogs, and may only be suppressing names and images rather than any accounts of the proceeding.
Memo to judges: sort this shit out. We need to know, definitively, what we’re not allowed to publish.
My critique
For me, the biggest head-scratcher about this decision, is: why this case? Judge Harvey identifies no particular material that is likely to cause prejudice if it’s published and later accessed by jurors. He doesn’t even say that such material is more likely to be published in this case than any other. I don’t think he’s assuming that the mere name or image of the defendants is likely to cause any prejudice by themselves. Those are both going to be obvious to jurors. No, he’s assuming that that the names will be a sort of search-gateway to prejudicial information that will be likely to gather itself out there in internetland. (Incidentally, as David Farrar has noted, the victim’s name might well serve as another such search-gateway, but there’s no restriction on publishing that online).
In short, his reasoning seems to apply to every single criminal case, or at least, any that’s likely to have any sort of profile.
Without such a reason, he seems short of real justification for the way he’s carved up different types of media in his order.
What’s more [warning: pet peeve looming], there’s no consideration of the Bill of Rights Act. He’s exercising a statutory discretion. It is affecting freedom of expression. Is it demonstrably justified in terms of section 5?
Of course, the irony is that this case is likely to get much more coverage, online and off, lawful and not, here and overseas, because it’s the first time such an order has been made. For those tempted to breach it (and that includes posting it on a foreign website, if the posting can be traced back to you), you’re up for a fine of up to $2000, and if it’s flagrant enough, a possible application to hold you in contempt of Court.
Where to from here?
Media organisations are thinking of challenging the order.
But I suspect they might be better off waiting for the case to hit the High Court (at least with respect to the adults), when the order will have to be revisited.
Topics: Contempt of Court, Name suppression, Suppression orders | Comments Off on Harvey’s online gag
Unprejudiced
August 25, 2008
Some defence lawyers have been getting their knickers in a knot about reporting on the Veitch case in yesterday’s Sunday Star-Times and Herald on Sunday.
Can’t say I share their concerns. Certainly, now that charges have been laid, publishing material that tends to create a real risk of prejudice to Veitch’s trial will be a contempt of court. But there doesn’t seem to be much in these stories to create such a risk.
They essentially summarise the police allegations. It looks like they came from the police summary of facts. The papers reported them as allegations. They note that Veitch denies them. They don’t get into assessing the evidence. They have reported no more than is almost certain to come out in depositions. Any trial is a good long way away, so any possible effect on jurors is almost sure to dissipate.
The police have denied leaking the information, so there’s some chance that it came from Veitch’s camp – perhaps to help get us used to the idea that the case won’t be about a one-off assault, and highlight the fact that one of the allegations includes throwing water and thereby discredit the case.
(The Herald on Sunday made the most of this, but its headline was a bit of a stretch:
Water assault charge for Veitch
In fact, as the story notes, the alleged circumstances are that he pushed her onto a bed and threw water in her face. I don’t think the water-throwing alone – while technically an assault – would have formed the basis of a charge).
There is some danger in reporting the summary of facts as the papers have done here. It’s possible that some charges may be withdrawn or that better information may become available as the case proceeds. It also effectively gives one side a chance to put its spin on the case. Both of these things mean that readers – potential jurors – have their perceptions coloured by material that may be inaccurate or irrelevant. But the risk seems pretty low to me here.
Topics: Contempt of Court | Comments Off on Unprejudiced
Hooten boasts of flouting the law
August 24, 2008
I guess you have to admire Matthew Hooten’s honesty for admitting that, as a Beehive staffer, he’s advised departments to breach the Official Information Act. And I don’t doubt that this government does the same thing. But I find this high-fiving about it pretty sickening:
As a Beehive staffer in the 1990s, I regularly “suggested” that departments delay the release of information that could embarrass the government. My personal best was 12 months, an 11-month breach of the law.
Topics: General, Official Information Act | Comments Off on Hooten boasts of flouting the law
It’s defiance, Susan, but not as we know it
August 24, 2008
Huh?
Here’s Susan Pepperell’s lead in today’s Star-Times story about the Sensible Sentencing Trust’s plan to “defy” the Electoral Finance Act:
Lobby group the Sensible Sentencing Trust is planning to defy the Electoral Finance Act in the lead-up to the general election.
Its evidence that this will be an act of defiance? Read on:
McVicar said Sensible Sentencing had sought a number of legal opinions on what they “could and couldn’t do” and received a variety of views. “Some said we would be skating on thin ice but no one said we would actually be in breach of the act.”
Not one of their legal advisors said they were breaching the Act?
I know the laws are murky, but how is this an act of defiance?
Topics: Electoral speech, Media ethics | Comments Off on It’s defiance, Susan, but not as we know it
It’s censorship, John, but not as we know it
August 15, 2008
Poor John Boscowan. He’s been censored.
I know this, because he’s got “censored” written across his full-page Sunday Star-Times ad opposing the Electoral Finance Act.
Yes, apart from being one of the few people in the country able to afford to express his views in 850 words in a full-page ad in one of the nation’s biggest newspapers, he’s been gagged.
And that gag is contained in the Electoral Finance Act. That dastardly law muzzles people like him wanting to spend money on political ads. They have to register and are limited to spending $120,000 if they want to publish an ad … like this one. Oh hang on. Not this one. No, this is an issue ad. It’s not caught by the EFA. So it doesn’t matter than John has spent more than $120,000, and hasn’t registered. In fact, his advice is that he doesn’t have to.
So what this ad really does is prove that you can still engage in some fairly nakedly electoral-type political speech without infringing the EFA. And John’s point was…?
Oh yes. “There’s much we dare not say, and you’ll never know what it is! That’s censorship. Pure and simple.”
“Dare not say” … because that speech is banned, and he’d risk prosecution for it? No. “Dare not say” because he’d have to register and be subject to the spending limits. So in fact, he could say pretty much anything he wants, but has chosen not to, in order to keep outside the EFA’s regime, which requires a degree of transparency and some financial checks that he doesn’t want to bother himself with. And fair enough, too. But this doesn’t look like censorship to me.
Fortunately for the good of the country, I am here to say the things that he fears not to. What he wants to say is: “Don’t vote for the parties who voted for the EFA”.
What? You thought that was pretty obvious, despite his transparent attempt to gussie up the ad as a plea to politicians to repeal the law? So again, we can thank John for demonstrating so graphically that the EFA isn’t censoring issue-related speech, even when it has a partisan flavour.
Well done, that man.
Topics: Censorship, Electoral speech, Protest speech | Comments Off on It’s censorship, John, but not as we know it
Keeping abreast of legal issues
August 15, 2008
Dean Knight and I have been debating one of the finer points of the Bill of Rights Act. We’ve been talking about how it might apply to the proposed boobs-on-bikes parade. (I gather an injunction application is being argued as I type).
The question relates to Bob McCoskrie’s [corrected spelling courtesy of Robyn: see comments] claim that the parade involves “sexualised nudity”. This presumably makes the nudity more offensive, and also suggests an element of lewdness that’s necessary for the charge of indecent exposure (and that might be missing, for example, from the naked bike protest).
It also relates to the extra protection that the Bill of Rights requires for political speech.
The debate goes something like this:
Steven: You know what? I think it might depend on the amount of jiggle.
Dean: I think that’s right.
Steven: If there’s more jiggle, then it looks more sexualised – so arguably more lewd and offensive. Then controlling the parade fits better with the purposes of the Local Government Act, and the offences of offensive behaviour and indecent exposure. You’ve got less wiggle room for an argument based on the significance of the speech. More jiggle – less wiggle.
Dean: No, I disagree. If there’s more jiggling, there’s more of a political component to the protest. It is deliberately provocative. It underscores the parade’s message being more open about sexuality. It emphasises that the protest is defying convention, and the council’s attempts to scotch it. There’s less reason to protect an unjiggly naked protest, because the nakedness is less central to the protesters’ purpose. Jiggling provides better grounds for a defence for boobs on bikes. More jiggle – more wiggle.
Such is the stuff of academic discourse. Though it’s fair to say that Dean doesn’t normally evince this degree of interest in women’s breasts.
Topics: Local government regulations, NZ Bill of Rights Act, Protest speech | Comments Off on Keeping abreast of legal issues
Dollar votes?
August 15, 2008
Russell Brown is pointing out that TV3’s election website is flogging profile pages to candidates at $299 a pop.
There’s no indication on the profile pages themselves that the MPs have to pay for them (though there is a “purchase page” tab on the main page that might clue readers in).
They’re also charging $399 for a favourable mention in Duncan Garner’s blog and $999 for party leaders to select their own soundbites in news stories. No, I made that up. Maybe next election.
The Press Council has upheld complaints against similar practices by newspapers, saying it:
breaches the traditional ethic of journalism to maintain a separation between the editorial side of a newspaper publication and the business side.
However, you can’t complain about a broadcaster’s website to the Press Council. Nor can you complain to the Broadcasting Standards Authority about broadcasters’ websites, even about the content of downloadable video (though you can complain about any content that’s actually broadcast, if you meet the complaint deadline).
It’s a bit of a gap in our regulatory framework.
Topics: Electoral speech, Media ethics | Comments Off on Dollar votes?
Auckland Council boob-oo?
August 15, 2008
Can the new Auckland Council bylaw requiring permits for (among other things) “any organised temporary activity including an organised gathering, parade, protest…” on public streets possibly be lawful?
Administrative law expert Dean Knight doesn’t think so. His terrific analysis concludes:
I am very confident in saying that, to the extent that the bylaw requires citizens to seek prior approval from a state body for a protest in a public place, it is patently inconsistent with the Bill of Rights and other fundamental common law rights, and is therefore unreasonable and invalid. There was, rightly, a public outcry a few years ago when Wellington City attempted to do this; it backed down. Also, it’s the very thing that many folk are pointing the stick at the Chinese government at the moment with the Olympics in Beijing. The requirement of prior approval is outrageous, particularly in the light of the restriction of protests and so forth.
Check out the Council’s flimsy Bill of Rights justification:
The council does not consider that the proposed bylaw is inconsistent with freedom of expression or freedom of peaceful assembly, or alternatively it considers that any limits in the bylaw are justified under section 5 of the NZBOR Act. The clauses do not prohibit the activities but rather impose reasonable conditions to ensure that those freedoms can be exercised in an orderly manner, and in a way that protects the public from nuisance, promotes and maintains public health and safety and minimises the potential for offensive behaviour in public places.
“Not inconsistent” with freedom of expression? It’s requiring a permit for a protest! The Council is giving itself power to refuse to allow a protest against it. This is like saying waterboarding isn’t inconsistent with the right to be free from torture. The real question is whether the restriction is demonstrably justified. The Council does address this, but after that start, it’s hard to have much confidence in its legal analysis. The fact that its section 5 analysis is one sentence long doesn’t help.
Dean rightly concludes that the extremely wide bylaw cannot be demonstrably justified, but thinks that a narrower one might be.
I’d add that the fact that the bylaw seems to have been aimed at the boobs-on-bikes parade means that the Council had a content-related motivation for passing the law – another reason the courts should treat it with suspicion.
Topics: Local government regulations, NZ Bill of Rights Act, Protest speech | Comments Off on Auckland Council boob-oo?
Upcoming privacy forum
August 13, 2008
If you’re interested in privacy, you might like to register for the Privacy Commissioner’s Privacy Issues Forum, to be held in Wellington on 27 August.
The programme includes a keynote speech from the Commissioner herself and a presentation on the Law Commission’s work on privacy by Sir Geoffery Palmer and John Burrows QC, as well as sessions on:
- Health: screening programmes and genetic research
- Controversial issues in dettecting an preventing crime (DNA and sex offender notification)
- Is good privacy good business?
- Employment and privacy
- Investigations (PIs and police)
- Technology (including social networking and foreign government access issues)
- A legal update on Privacy Act and privacy tort developments
- The Ombudsmen and the Privacy Commissioner
Topics: Privacy Act, Privacy tort | Comments Off on Upcoming privacy forum
But is it privacy?
August 13, 2008
The Evening Standard has printed an apology for falsely reporting that Prince Philip was suffering from prostate cancer:
We now accept that the story was untrue and that he is not suffering from any such condition. We unreservedly apologise both to him and to his family for making this distressing allegation and for breaching his privacy.
The apology was brokered by the Press Complaints Commission – further evidence that a complaints body is at its best when negotiating a quick solution to a media lapse.
Memo to our Press Council: this is another good reason to take up the recommendation of the recent review of the Press Council and establish a mediation arm.
But wait up. The paper got it wrong. Why is it apologising for a breach of privacy?
Gotta say, I’m not very comfortable with this. It seems to me that if you get something wrong, you’re not invading privacy, you’re committing some other sort of wrong. But I think we’re going to have to get used to this reasoning.
For one thing, as those who are frequently bagged in the media will tell you, media inaccuracies about you feel like an invasion of privacy.
More importantly, UK privacy cases are increasingly recognising that falsely reported facts can give rise to privacy issues. And the US has long recognised a strand of privacy that involves portraying someone in a “false light”, even if that false light isn’t strictly defamatory.
Still, this has the potential to blur the boundaries – especially between privacy and defamation. At the moment, it’s very hard to get an injunction in defamation cases, but it’s likely to be easier in privacy cases. Does that mean I can dress up my defamation case as a breach of privacy one, to make it easier to get an injunction? The UK courts seem to think they can resist this, but I’m not so sure.
Topics: Press Council, Privacy tort | Comments Off on But is it privacy?
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