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When half a quote isn’t better than none

August 7, 2008

You might have spotted my star turn on One News last night. It was part of a story about National referring the taped-conversations affair (“CocktailGate”?) to the police. Might there have been a crime? Here’s the quote One News used from me, suggesting that I told them that the recording “may have broken the law”:

If you’re eavesdropping on somebody else’s conversation that you’re not part of, then you might be breaking the law if it’s clear that those people intend it to be private.

Well, true. But I went on to point out that there’s no crime if the people talking could reasonably expect to be overheard – which would probably be the case at a cocktail party. But TVNZ didn’t broadcast or mention that bit. Jessica Mutch, who conducted the interview, said she’d read my blog entries too, so she can’t have been in any doubt about my views.

But I guess that didn’t fit with the story they wanted to tell.

Topics: Media ethics | Comments Off on When half a quote isn’t better than none

Picking up the Bill II

August 6, 2008

So now John Key is accusing Labour of being behind the “bugging” of conversations at the cocktail party. He suggested on Morning Report this morning that the repeated questions put to Bill English about Kiwibank sounded like someone was trying to set him up.

(Key is also throwing in the suggestion that Labour was behind Nicky Hager’s acquisition of National Party emails. He doesn’t supply any evidence of this. That would be because Hager’s material was leaked from within National.)

Still, my previous post left an open question. What if Labour activists had bailed up English and secretly recorded the conversation? I noted that they wouldn’t then be “intercepting” the conversation, so wouldn’t have broken that law. I suspected that there would be public interest defences to any breach of confidence or privacy action, against them or the media.

But was the behaviour lawful? I rather doubt it. I’d need to know more about the openness of the venue, the restrictiveness of the guest list, how they got in, and what (if anything) they told anyone or lead them to believe, in order to get in. It seems likely that along the way, the infiltrators (if that’s what happened) committed the torts of deceit and trespass. There are no public interest defences to those.

The really interesting question: would the courts have granted an injunction to restrain the media from publishing the material if National got wind of it ahead of time? They would probably restrain material obtained during a trespass if the process of gathering it was “unconscionable”. Was this? Maybe. They would probably restrain material allegedly obtained in breach of confidence, at least in the interim, so that issues could be fully argued – in particular the public interest defence. That “interim” period could stretch on for quite a while…

[PS: Since the Privacy Act doesn’t apply to news media in their news-gathering activities, I tend to overlook it. But since those involved in the first-hand gathering of the recorded material here probably weren’t news media folk, the Privacy Act does apply to them. The relevant principle is IPP 4 – information should not be gathered using means that are unlawful, unfair or unreasonably intrusive. Again, lots will depend on the circumstances. But most people wouldn’t expect to have their cocktail party conversations recorded. On the face of it there seem to be grounds for a complaint to the Privacy Commissioner against whoever did the gathering.]

Topics: Breach of confidence, Privacy tort, Trespass | Comments Off on Picking up the Bill II

Picking up the Bill

August 5, 2008

Did whoever surreptitiously recorded Bill English break the law?

What about the media who published the conversation or its contents?

It’s a crime to tape a conversation between other people if the circumstances indicate that one of the conversers wants it to be private (section 216B of the Crimes Act).

I have no idea how the conversation was recorded, except that it took place at a cocktail party. If the person who recorded it was one of the people English was speaking to, no offence has been committed.

If, on the other hand, the tape was made by an eavesdropper, nearby or at some distance, then we have ourselves an issue. It’s probably fairly clear that English meant the conversation to be confined to those he was talking to.

But that’s not the end of the story. There’s a defence if English:

ought reasonably to expect that the communication may be intercepted by some other person not having the express or implied consent of any party to do so.

He’s talking at a cocktail party. Shouldn’t he expect that he might be overheard? (“Interception” includes simply hearing the conversation). It might depend on how many people there were in the room, and whether English taken care to distance himself from them. But it seems likely that this defence will apply.

(There might be interesting non-criminal issues, such as breach of confidence, though. These would most likely come down to the question of whether the use of the material was in the public interest. I would have thought there’d be a fair case that the disclosure was in the public interest).

What about the media? If they were party to an illegal interception, they would be liable as parties if the person doing the actual recording was liable. If they weren’t involved, but knew that the material had been illegally intercepted, it would be an offence for them to disclose it. Neither seems likely here.

There might also be broadcasting standards issues. (These wouldn’t apply to Scoop, though. It’s not a broadcaster). The Broadcasting Standards Authority has held that broadcasting the content of an overheard conversation was a breach of privacy. The eavesdropper had hidden himself so he could overhear a conversation between John Hart and his wife on the street. The BSA said the broadcast of Hart’s comment was offensive, and there was no public interest in it. Similarly, when the Holmes show broadcast Parekura Horomia’s aside to a friend about his distrust of the media during a filming break.

Once again, there’s a public interest defence, though. And once again, there’s a pretty solid argument for it here.

Topics: Breach of confidence, Journalism and criminal law, Privacy tort | Comments Off on Picking up the Bill

Target under fire

July 30, 2008

A few years ago, I did a report for RNZ’s MediaWatch programme, raising questions about whether the hidden camera stings in TV3’s Target programme were complying with broadcasting standards and the law of trespass.

Over the years, Target has survived a string of broadcasting standards complaints. The producers deserve some credit. They always take care to try to ensure their criticisms are fair and that those stung get to have their say too.

Still, Target was also lucky. The wrong people complained, and when the right people complained, they relied on the wrong grounds and arguments.

Now, it seems, Target’s luck has run out. The BSA has upheld a complaint that strikes at the heart of Target’s methodology. It will need to change its ways or face some stiff penalties.

The BSA has always said that hidden cameras are by nature intrusive and unfair, and require some prima facie evidence of wrongdoing before they’re used, and some real public interest in the footage before it’s broadcast. The big problem for Target: how do these rules square with Target’s routine practice of secretly filming people it has no prior reason to believe have done anything wrong, and broadcasting footage that, for most of those depicted, doesn’t really show any significant wrongdoing.

Target argues that the programme as a whole is in the public interest, and that they shouldn’t have to justify each component of the broadcast.

The complaint was about a hidden camera trial involving caregivers who were invited into the Target home to care for a patient (an actor hired by Target). Four caregiver companies were used. Two of the caregivers performed pretty well: the BSA said there was no justification to screen them at all without their consent. Two others were guilty of minor indiscretions (drinking juice from the fridge and taking a bag of chippies without permission, giving the patient cookies contrary to instructions, not giving the patient privacy in the bathroom, etc). The BSA said this just wasn’t bad enough to create the public interest sufficient to justify the severe intrusion involved.

So the BSA upheld complaints based on fairness and privacy. TV3 tried to argue that it effectively had consent: it had written to the companies for their comments and none had objected to the use of the material. But as the BSA pointed out, that’s not the same as approaching the caregivers themselves. Besides, a failure to object is hardly the same thing as giving consent.

On the way the BSA has interpreted the codes in the past, I can’t see how the BSA could have reached any other conclusion. In fact, there may well have been private facts about the caregivers revealed, too. (The BSA didn’t consider that strand of its privacy rules).

So what does this mean for Target? Either an appeal to the High Court, or a change of methodology. The BSA pointed out that Target could have sought actual consent – and the caregivers depicted favourably might have been happy to provide it. (Or not). The others almost certainly wouldn’t – but their faces could be pixelated. The companies could still be identified, and the public interest served that way (presumably as long as this wouldn’t also effectively identify the employee).

Or Target could restrict itself to broadcasting hidden camera footage when it really had something significant to reveal.

I think hidden cameras are deeply intrusive, and TV3 doesn’t appreciate the harm it does to its sting victims – even those who aren’t shown misbehaving. The grainy gotcha flavour of hidden cameras creates an aura of evildoing right from the get-go.

But it’s fair to consider the other side. Target may well have done incalculable good in alerting us to the abuses committed by tradespeople who come into our homes, and perhaps in deterring that sort of misconduct. Isn’t there a sense in which it’s true that the programme as a whole is in the public interest? And it’s notable that the caregivers didn’t themselves complain – which highlights a serious and justified gripe by broadcasters: why should someone who had nothing to do with a programme be able to complain about the personal harm done to someone else?

Topics: Broadcasting Standards Authority, Privacy tort, Trespass | Comments Off on Target under fire

The media’s revenge

July 28, 2008

A MailOnline profile on Justice Eady: “As cold as a frozen haddock, Mr Justice Eady hands down his views shorn of moral balance”. Mean.

News of the World strikes back, too.

Topics: General, Media ethics, Privacy tort | Comments Off on The media’s revenge

Okay, so does Mosley affect NZ law?

July 28, 2008

Quite a bit, potentially.

Remember, there was no claim in defamation (Mosley now says he’ll bring a separate lawsuit for that). And Mosley had failed in his injunction bid because the cat was out of the bag – the pictures were in the public domain.

Remember, too, that the framework of the law in the UK is different to NZ’s. In particular, over there, the judges have to balance the privacy rights against free speech rights – both are contained in the European Convention on Human Rights. Our Bill of Rights makes no direct mention of privacy rights.

Still, there’s a lot of interest here to NZ’s developing law of privacy. Here are some initial thoughts.

A responsible journalism defence? 

Most interestingly, Justice Eady seems to import a “responsible journalism” standard into the defence of public interest. “Responsible journalism” is the quid-pro-quo in defamation cases for the expanded defence of qualified privilege. Now it may be making its way into privacy law. The idea is that, if the journalist has behaved responsibly in developing the story and assessing its public interest, then it may not be held against him or her if some of the facts turn out to be wrong.

So, for example, if the judge had found that the paper, through diligent inquiry, reasonably believed that the story was in the public interest, then the defence might succeed, even if, once all the facts are out, it turns out that the paper was mistaken about some facts and there wasn’t any real public interest in the story after all. (The judge found that the paper had been so reckless that this line of argument wasn’t available to it. But the seeds have been planted for future cases…)

That development might  be echoed here.

“Intense focus on the facts”

The methodology espoused by Eady J is ask, first, is there a reasonable expectation of privacy, and secondly, what does an “intense focus” on the particular circumstances tell us about whether there should be liability. This second stage strikes me as odd. It suggests that the answer is likely to emerge magically from the facts, rather sidestepping the vital role of the judge in assessing them.

It almost suggests that the question is one of fact, which makes it correspondingly more difficult to appeal.

It avoids the very difficult conceptual task of examining whether particular limitations on privacy and freedom of expression are justified in terms of the Convention.

It steers cases away from the helpfulness of guidance of such rules of thumb as “public figures must expect to have less privacy” in favour of a test that says (and I quote the judge) “in every case ‘it all depends'” (ie upon what is revealed by the intense focus on the individual circumstances)”.

I’m not sure this approach will or should be copied in NZ. It seems tied to the Convention “balancing” between rights outlined above. In NZ, I think the process needs to be one of justification of the restriction on freedom of expression. But perhaps what the judge has in mind is “an intense focus on the comparative importance of the specific rights”, as Potter J puts it in A Local Authority v PD [2005] EWHC 1832, which seems more translatable to the NZ scene. Which brings me to…

Proportionality is the touchstone

Was the intrusion, or the degree of intrusion, proportionate to the public interest served by it?

This

necessarily involves and evaluation of the use to which the relevant defendant has put, or plans to put, his or her right to freedom of expression.

For example, political speech should be accorded greater value than gossip. This seems bang on, and is consistent with developments here and in the UK (not to mention the US and the ECHR). But it’s a mindset that is foreign to some judges.

Is intrusion a new branch of privacy?

“…the very fact of clandestine recording may be regarded as an intrusion” in violation of privacy rights, says the judge.

That is, there may be an actionable violation of privacy, even if no private facts are published… if some intrusive method of gathering information is used, such as hidden cameras or long-distance lenses.

Seems right too.

Exemplary damages are not available because invasion of privacy isn’t a tort

Exemplary damages are punitive damages, awarded to mark outrageous breaches of rights when ordinary measures of damages aren’t sufficient to do so.

On current authority, these are only available for torts. In the UK, privacy isn’t a tort. It seems, though, that it is in NZ, which would suggest that exemplary damages are available.

Still, that will probably only happen in rare cases, and exemplary damages tend to be moderate.

What is public interest?

Here’s an interesting observation:

The question has to be asked whether it will always be an automatic defence to intrusive journalism that a crime was being committed on private property, however technical or trivial. Would it justify installing a camera in someone’s home, for example, in order to catch him or her smoking a spliff? Surely not.

First: is this the first judicial use of the word “spliff”? Well done, that man.

Secondly, the answer may be different if the case involves a politician campaigning for harsh penalties against pot-smokers.

Thirdly, otherwise, this seems good and right to me.

The judge makes other significant points about public interest. It’s for the court to decide. It doesn’t revolve around what the journalist knew at the time. Later investigation might reveal facts that bolster a finding of public interest – the fact that these were discovered later will not be “fatal to the defence”. (But see comments on “responsible journalism” above. If a journalist wants to advance that argument, it will obviously depend on what was known at the time.)

He also notes that revealing wrongdoing to the public will not always justify revealing every gory detail. This was clear in the Naomi Campbell case.

Finally, the judge also notes (in line with our BSA, actually) that it may be reasonable and responsible to install or use a hidden camera, based on a “reasonable apprehension that the public interest would be served”. (Incidentally, it seems that this conclusion should only be reached if there’s no other way to get the material. Again, this is in line with the BSA).

But there’s a separate question to be asked about whether the footage acquired as a result is worthy of publication.

How do you measure damages?

It seems that the factors include:

Topics: Broadcasting Standards Authority, NZ Bill of Rights Act, Privacy tort | Comments Off on Okay, so does Mosley affect NZ law?

Highlights from Mosley v News Group Newspapers

July 27, 2008

This is the privacy case against News of the World for publishing hidden camera photos and video clips of Formula One boss Max Mosley’s B & D session with five women. The paper alleged (wrongly, the judge found) that the sessions involved Nazi role-playing that effectively mocked the suffering of the Jews in the death camps.

Adding piquancy was the fact that Mosley’s dad was a leading British fascist, whose wedding was reportedly attended by Adolph Hitler.

The judgment is legally very interesting, and I’ll get to that tomorrow. But for now… some excerpts from Eady J’s judgment.

From the original news story:

His Jew-hating father – who had Hitler as guest of honour at his marriage – would have been proud of his warped son’s command of German as he struts around looking for bottoms to whack.

From the judge’s reasoning:

Mr Thurlbeck [the paper’s chief reporter] also relied upon the fact that the Claimant was “shaved”. Concentration camp inmates were also shaved. Yet, as Mr Price [for Mosley] pointed out [concentration camp inmates] had their heads shaved. The Claimant, for reasons best known to himself, enjoyed having his bottom shaved – apparently for its own sake rather than because of any supposed Nazi connotation.

From an email by one of the women setting up the session:

Hi ladies. Just to confirm the scenario on  Friday at Chelsea with Mike [ie Mosley], starting at 3. If you’re around before then, I’m doing a judicial on him at noon so if you’d like to witness that, be here for 11am…

Doing a judicial! I for one will be doing my best to ensure that this terrific phrase enters the national lexicon. Technically, it apparently refers to a dominatrix wearing judicial robes and where there are prison wardens and beatings. But only the unimaginative will feel themselves confined to this interpretation…

The paper’s attempt to find some public interest justification for the story, when the Nazi angle fell over:

Perhaps the most artificial argument, verging on desperation, was to the effect that [Mosley] was inciting or aiding an offence of assault occasioning actual bodily harm contrary to the Offences against the Person Act 1861 – on himself.

The paper also argued that the women were being assaulted. Justice Eady examined the evidence…

… it is right to acknowledge that some of the young women playing the submissive role also developed a visible coloration of the buttocks. As Woman D accepted, it was painful – “but in a nice way”.

The astonishingly scuzzy behaviour of the paper:

There was discussion as to payment. The husband asked for £25,000 and Mr Thurlbeck agreed on condition that the story was selected to be the “splash” (which indeed in due course it was). Mr Thurlbeck explained that if the story was not the “splash”, there would be less money available. He confirmed that it was within his authority to offer payment of that amount although, of course, later it was reduced. This was explained by Mr Thurlbeck simply on the basis that, after he had obtained the clandestine film from Woman E, “I suggested to [her] that a more appropriate fee for the story was £12,000 and she agreed to this”. Why this was so, despite the fact that the story did in fact become the “splash”, is nowhere explained.

Mr Thurbeck’s emails to two of the other dominatrices, in an attempt to get an interview with them, once it became clear that Mosley was denying the Nazi aspect:

First email:

“I hope you are well. I am Neville Thurlbeck, the chief reporter at the News of the World, the journalist who wrote the story about Max Mosley’s party with you and your girls on Friday.

Please take a breath before you get angry with me!

I did ensure that all your faces were blocked out to spare you any grief.

And soon, the story will become history as life and the news agenda move on very quickly.

There is a substantial sum of money available to you or any of the girls in return for an exclusive interview with us. The interview can be done anonymously and you[r] face can be blacked out too. So it’s pretty straight forward.

Shall we meet/talk?”

Second email:

“I’m just about to send you a series of pictures which will form the basis of our article this week. We want to reveal the identities of the girls involved in the orgy with Max as this is the only follow up we have to our story.

Our preferred story however, would be you speaking to us directly about your dealings with Max. And for that we would be extremely grateful. In return for this, we would grant you full anonimity [sic], pixilate your faces on all photographs and secure a substantial sum of money for you.

This puts you firmly in the driving seat and allows you much greater control as well as preserving your anonimities [sic] (your names won’t be used or your pictures).

Please don’t hesitate to call me … or email me with any thoughts.

Regards and hope to do business.

Neville Thurlbeck, chief reporter, News of the World”

Third email:

“Ok girls, here’s the offer. It’s 8,000 pounds for an interview with one of you, with no name, no id and pixilated face. And we pixilate all the pics I send through to you this morning.

BUT time is running out for us and if you want to come on board, you need to start the ball rolling now. Call me … if you want to.

Best, Neville” 

Justice Eady’s account of Mr Thurbeck’s “interview” with the initial source (who carried the hidden cameras), for his follow-up story:

I was also asked to have in mind Mr Thurlbeck’s approach to Woman E after the original publication and how he obtained the “interview” with her which was published in the following edition. He met her in a hotel in Milton Keynes on the day before publication of the follow-up article and presented her with what purported to be a transcript of an interview which he asked her to sign. It would appear to have been a fait accompli. She made no amendments or corrections to the signed copy at all. He then subsequently added further material to it (some of which was attributed to Woman E in the article). When challenged by Mr Price about this, he responded that it was all based on telephone exchanges with her over several days and that the “interview” represented a genuine reflection of what she had told him. There are unhappily no written notes to confirm this claim, which may be thought surprising for a journalist of Mr Thurlbeck’s experience. It is thus not possible to say how true a reflection the published article was of what Woman E had told him.

Were they prostitutes?

As it happens, some of the women were rather reluctant to accept the description “prostitute”… Several of them offer a variety of services on their website (usually spanking or being spanked in various guises) but expressly warn that they do not offer specifically sexual services. They apparently made an exception in “Mike’s” case and threw in a bit of sex, as it were, as an “extra” between friends. Indeed, sometimes they were not paid at all. As they liked the premises and found the atmosphere relaxing and congenial, things developed from there, Indeed, although the Claimant’s sexual activity as revealed in the DVD material did not seem to amount to very much, some of the women stayed on after the party was over and indulged in same sex action purely for their own entertainment.

Did the News of the World really lose this case?

Since releasing the Max Mosley orgy video no notw.co.uk, traffic on the site has increased by 600%.

How to measure damages?

It would seem that the law is concerned to protect such matters as personal dignity, autonomy and integrity. It has to be recognised, of course, that at first sight these notions appear somewhat incongruous when introduced in the present context.

On the other hand: 

… After all, sexual activity is rarely dignified.

Topics: Media ethics, Privacy tort | Comments Off on Highlights from Mosley v News Group Newspapers

Jesus, this law sucks

July 27, 2008

A belated note: the UK has abolished the offence of blasphemy. It was a stupid offence for any number of reasons, not least of which is that it only applies to insulting Christianity.

I’m with Norightturn, who reckons it’s time to follow suit in NZ.

Blasphemous libel is still in the Crimes Act.  There has only ever been one prosecution for blasphemy in NZ (in 1922), and a prosecution requires the consent of the Attorney-General, so it’s not exactly a huge threat to freedom of expression. But it’s not a justified restriction, and we should dump it, as we did with sedition.

Topics: General, NZ Bill of Rights Act | Comments Off on Jesus, this law sucks

A burning issue

July 25, 2008

I’m afraid my tirade about the ridiculousness of Valerie Morse’s conviction for burning a flag didn’t do any good. She lost her appeal to the High Court.

Morse burned a flag at last year’s Anzac Day dawn parade at the Cenotaph in Wellington. She was gathered with other protestors in the university grounds over the road. She burned it just as the former Secretary of Defence began to address the crowd of 5,000. She burned it to spark political debate about NZ’s involvement in Afghanistan. While she burned the flag, the guy next to her blew a toy trumpet.

People at the dawn parade were upset and angry. Morse was convicted of offensive behaviour.

Note what she wasn’t convicted of: flag-burning. That’s a separate offence – and, you would have thought, the right one to charge here. Perhaps they couldn’t get the Attorney-General’s consent to bring the prosecution. Perhaps they figured they’d lose this case the way they lost the Paul Hopkinson one. Either way, that seems to be a pointer toward not prosecuting, not towards finding some way of circumventing our real flag-burning law.

Justice Miller started off well. He recognised that free speech under the Bill of Rights means the bar for offensiveness is raised in protest situations, where protestors were trying to convey their opinions, so the public have to tolerate a higher level of disturbance than is usually the case. He rightly noted the Brooker case, and its implication that you can’t characterise conduct as offensive if this would overstep the mark of reasonable limits that are demonstrably justified in a free and democratic society.

He even accept that:

Because the protestors were expressing genuine political opinions, a high value must be attached to their freedom of expession in this case.

Right on all counts.

But applying the law to the facts, I think Justice Miller dropped the ball.

He said some people might object to the theme of the protest (a banner said “conscientious objectors – the real war heroes”) as “a protest at the very idea of commemorating those who died while on active service.” But Valerie Morse didn’t carry any banners. Even more fundamentally, this reasoning overlooks the first principle of serious free speech jurisprudence: a towering suspicion of any restriction based on disagreement with the message or viewpoint being conveyed.

Worse than that – the judge regarded the symbolic nature of the protest as an aggravating factor, because the flag was so dear to the hearts of the attendees. Um, that was the point of the protest.

Miller J also said Morse “associated herself” with the noise of the guy blowing the trumpet. But she wasn’t charged with being a party to his offense. In fact, he wasn’t even charged with offensive behaviour – a charge that might have had more merit. It’s troubling to see a criminal conviction turning on this sort of flimsy taint-by-association reasoning.

Finally, Miller J emphasised that some people in attendance were outraged by her conduct, and that their views “were neither surprising nor unreasonable.” Of course, that’s true. But the question isn’t whether it was  reasonable for the people to be offended. The question was whether it was a demonstrably justifiable restriction on Morse’s free speech rights to be arrested, convicted, and fined $500 for burning a flag, without endangering anyone’s safety, as part of a political protest during the speech of a former defence official who was across the road –  in a prosecution that was contrived to circumvent the protections in the law specifically designed to address flag-burning.

I think the answer is plainly no. Not only did both judges disagree with me, they thought the offence was a “serious one of its type”. Good grief.

Her case is going to the Court of Appeal. Let me say again, I hope she fares better on appeal.

Topics: NZ Bill of Rights Act, Protest speech | Comments Off on A burning issue

Well, der.

July 22, 2008

What was Radio NZ thinking?

It tried to appeal against a BSA decision that had RNZ dead to rights.

RNZ didn’t even argue in the High Court that it got its facts right – just that the BSA shouldn’t have ordered it to broadcast a correction. RNZ tried to argue that events had moved on, and that the correction would be confusing. The BSA sometimes accepts this argument, but more often it doesn’t. The BSA’s correction order here was in line with its usual practice, and fully justified. It’s always likely to be a waste of time to seek to challenge the BSA’s discretion on this.

Simon France J wasted no time in tossing the appeal, awarding costs to the other side.

(The case isn’t online yet, but is RNZ v Wellington City Council, CIV 2008-485-514, HC Wellington, 9 June 2008).

Topics: Broadcasting Standards Authority | Comments Off on Well, der.


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