No Sentence or Sensibility
June 5, 2008
I’m not sure the implications of this extraordinary Dominion Post story have been explored quite enough:
The practice of offering rewards in murder cases is under review after the defence in the Foreman trial used the proposed payout to undermine the Crown’s star witness.
The Sensible Sentencing Trust was set to pay $50,000 to Donna Kingi if Murray Foreman was convicted of the murder of Hawke’s Bay farmer Jack Nicholas, but Mr Foreman’s lawyer, Bruce Squire, QC, said Ms Kingi was motivated only by money and discredited her evidence.
Mr Foreman was acquitted on Wednesday, and trust spokesman Garth McVicar said it was unlikely rewards for information leading to conviction would be offered in future.
Memo to Garth: good plan. Quite apart from handing the defence the witness’s head on a platter, the reward is probably a contempt of court. It creates a real risk of influencing the evidence of a witness. Fair to say, many witnesses might manage a surprising clarity of recall of incriminating evidence if fifty grand is riding on the outcome.
The Sensible Sentencing Trust: committing crimes so the criminals can get away with them.
(I know, I know… that last sentence is cute, but I need to note that I didn’t follow the Foreman trial closely enough to have any idea of whether it’s fair to say that he got away with murder).
Topics: Contempt of Court | Comments Off on No Sentence or Sensibility
Judicial Smackdown II: The Empire Strikes Back
May 31, 2008
Well, one judge does anyway.
You’ll remember that Justice Fogarty controversially ruled that some of the the guidelines for cameras in court were illegal (I discussed the ruling here). Another High Court judge, Keane J, has disagreed. In R v Crutchley, he said that the guidelines are “entirely compatible with a trial judge’s duty to secure that justice is done.” He notes that they are merely guidelines. He doesn’t think that the filming of an accused person in the dock is akin to pillory. He says that a degree of humiliation is part and parcel of the trial process, and is not enough to exclude the public from the courtroom, including the amplification that cameras provide.
I think he’s right.
Topics: Cameras in Court, General | Comments Off on Judicial Smackdown II: The Empire Strikes Back
Review of Review of the Law of Privacy
May 28, 2008
Earlier this year, the Law Commission released its Review of the Law of Privacy. It’s well worth a read.
It demonstrates what a nebulous and problematic concept privacy is. The review is part of a four-stage inquiry into the whole gamut of privacy laws, including the Privacy Act, public registers, the tort, and other privacy-related laws. This paper really just sets the scene, summarising current laws and exploring issues and challenges, including its application to the media, the health system, the workplace, and surveillance.
There’s lots of food for thought here. For example, the paper busts the myth that we live in an age when privacy is under greater threat than ever before. In fact, the notion of privacy barely existed a few generations ago. Until pretty recently, we spent most of our lives in extended families in small towns, eating, sleeping, working, traveling and even poohing directly under the gaze of others.
That’s not to say that galloping technology isn’t creating privacy problems hitherto unseen. The paper canvasses some of the threats, which seem to have come straight from the pages of a science fiction novel:
Next generation facial recognition softeware may also allow cameras to gauge a person’s thoughts by mapping facial geometry using algorithms.
One hybrid project aims to produce camera-carrying insects whose nerves have grown into their internal silicon chip and whose flight muscles can be remotely controlled.
A market research company has patented a system which identifies shoppers and tracks their purchase patterns using facial recognition.
The paper also tracks the vast range of laws touching on privacy, the growing international efforts to tackle privacy issues, the extraordinary diversity of public opinion about them (including different attitudes emanating from different cultures and age groups), and the scary amount of false information out there about us.
Refreshingly, it’s grounded in a discussion of the principles underlying privacy and other related principles (such as freedom of expression). Too often NZ tends to muddle through with jury-rigged solutions to particular problems so that our law develops without any coherency. (By contrast, for example, German law is rooted in the fundamental constitutional norm of human dignity). The Commission finds that privacy is rooted in values of respect and autonomy, but that it needs to be considered in particular contexts. You can’t make general rules about privacy.
The Commission also notes that:
— most authority is against corporations having privacy rights.
— our law is inconsistent on the question of dead people’s privacy rights.
— the right to receive information (often an aspect of freedom of expression) has been interpreted to relate only to information that others want to give you and not, for example, to include rights of access to government information.
— privacy language is increasingly finding its way into other areas of the law, eg name suppression
— the tort of invasion of privacy still has uncertain boundaries, but by its nature is unlikely to lead to many court cases (plaintiffs concerned about keeping their images clean hardly like to launder their washing in the court).
I think this is a terrific report. But there was one passage that struck me as so gob-smackingly wrong that it made me gasp out loud. It’s in the section dealing with surveillance. It imagines a scenario in which Ms X, a well-known actress, is bathing topless beside her swimming pool in a garden surrounded by a high fence. A photographer climbs a tree some distance away and takes some snaps using a tele-photo lens. These are published. Might she succeed in a lawsuit for invasion of privacy?
Hmmm, says the Law Commission. Maybe. But maybe not:
What Ms X does in her leisure time may be the subject of legitimate public interest given her prominence. She is clearly a person well known to the public.
A public interest defence to the publication of private topless photos? What were they thinking? Can anyone conceive of a situation in which these might be in the public interest?
Topics: General, Privacy Act, Privacy tort | Comments Off on Review of Review of the Law of Privacy
Regulating broadcasting content
May 26, 2008
You may know that the government is having a big think about what to do about the patchwork of increasingly moth-eaten laws and regimes that govern broadcasting content.
It has produced discussion papers and invited feedback. The submissions are here.
Topics: Advertising Standards, Broadcasting Standards Authority, Copyright, General, Internet issues, Media ethics, Press Council | Comments Off on Regulating broadcasting content
The biggest mystery about the Kahui case…
May 25, 2008
… is why so many journalists seem to have no idea of what an acquittal means.
I’m getting pretty sick of statements like this one, from today’s Herald on Sunday:
…the jury of seven men and five women were unanimous in their view that he was not the killer.
No, they weren’t (or if they were, their verdict doesn’t tell us so). All they found was that the charge hadn’t been proved against him beyond reasonable doubt. For all we know, every man jack on that jury believed he was guilty – but just couldn’t be sure enough to convict.
Juries don’t find people innocent. Nor do they “clear” people, really. A juror can be 90% convinced of guilt and still vote to acquit. This shouldn’t be difficult for journalists to understand and write about properly.
Topics: Media ethics | Comments Off on The biggest mystery about the Kahui case…
Flashbacks
May 20, 2008
A few of these posts might be familiar to those who have subscribed to the discussion group NZMLJ. From time to time, I’ll reproduce some posts of interest from the archives.
Topics: General | Comments Off on Flashbacks
How the Clean Slate Act applies to the media
May 20, 2008
The Clean Slate Act effectively expunges people’s old, minor criminal offences. But does that mean the media can’t publish them?
Reading the Act as a whole, it looks like it doesn’t. Yes, it’s an offence for a journalist to ask someone to disregard the Act, which allows people to lie about particular convictions if they qualify. And it’s an offence for officials who know about the convictions to reveal them to the media. But what if the media know about them already? What if, say, a reporter does a news search and discovers a story about an old conviction that’s covered by the Clean Slate Act? Or finds out from a third party? Can that be included in a story?
My view is that it can. The Act only seems to apply to questions asked directly of an individual and government agencies holding that information. Section 6 says as much, and seems to limit the scope of the Act. But there’s one thing that gives me pause. Section 17(1) says:
A person commits an offence if the person has access to criminal records, and knowing that he or she does not have lawful authority under this Act, or being reckless as to whether or not he has lawful authority under this Act, discloses to any person, body or agency the criminal record, or information about the criminal record, of an eligible individual that is required to be concealed.
Might that cover the media? Here’s my thinking:
- The media don’t have access to criminal records as defined under the Act, which seems to be limited to “official records”. If the media get the information elsewhere, they can publish.
- The media aren’t given lawful authority under the Act to publish, but they don’t need it, because the Act doesn’t apply to them.
- In publishing information acquired elsewhere, they are not revealing information that is “required to be concealed”. Nowhere does the Act require the information generally to be concealed. It requires particular people to conceal it in particular circumstances. And it requires particular questions not to be asked directly of the Clean Slated person. But that’s all.
- The Bill of Rights would support a narrow reading of the section, as does the scheme of the Act.
This seems to accord with Professor Burrows’ view in the Journalists’ Guide, and Burrows and Cheer in Media Law in NZ, who note that the Select Committee accepted that some information was in the public domain and nothing could be done about that.
Topics: General, Journalism and criminal law, Privacy tort | Comments Off on How the Clean Slate Act applies to the media
Who needs the BSA?
May 20, 2008
This might surprise you.
I was looking at broadcast licences the other day. As you might guess, they can be subject to conditions, and most of the ones that are imposed relate to technical issues: making sure there’s no overlapping use of the spectrum, for example. Mostly, they’re nothing to do with the content of what’s broadcast. But there’s an exception. All broadcast licences under the Radiocommunications Act (and that includes TV broadcast licences, since they have to use the spectrum too) are subject to the conditions in Schedule 1 (see sections 99 and 101).
What are those conditions? The interesting one requires licencees not to broadcast material that is false, fictitious or misleading. (MED tells me that this may have had its genesis in preventing false distress signals, though the schedule creates obligations that are untrammelled and seem to apply to all broadcast programming).
Even more interesting: the Radiocommunications Act contains some fairly detailed remedy provisions. On my reading of the Act, a broadcast that breaches the conditions of the licence (including those in Schedule 1) is a prohibited broadcast (see sections 101(2) and 103). This is an offence (sections 103 and 128) and can trigger civil remedies – damages and an injunction (sections 103 and 117-119). Really – those remedies are actually set out.
MED tell me that these provisions have never been used (or even attempted to be used) to punish or restrain a broadcast programme, though oblique reference was made to them in Ransfield v TRN [2005] 1 NZLR 233, at para [23].
But it remains an intriguing possibility. It seems to present an alternative remedy to going to the BSA, and indeed to an action for defamation, in cases where broadcasts are – or will be – false or misleading. It’s better than a complaint to the BSA in several ways: it can found an injunction or damages, and may be less subject to the BSA’s ability to carve out exceptions to the accuracy principle (though it’s possible – likely even – that the courts would create their own limitations, such as a materiality requirement). Injunctions may be easier to get than they are in defamation cases, where they are almost impossible, though again, it’s not clear what threshold questions would be applied, or how the remedies might dovetail with the NZ Bill of Rights Act.
Topics: Broadcasting Standards Authority, Defamation, Injunctions, NZ Bill of Rights Act | Comments Off on Who needs the BSA?
Chatham House Rule
May 20, 2008
There is only one Chatham House Rule, and this is it:
When a meeting, or part thereof, is held under the Chatham House Rule, participants are free to use the information received, but neither the identity nor the affiliation of the speaker(s), nor that of any other participant, may be revealed.
Note that it allows quoting, as long as the speaker is not identified. I’m increasingly getting the feeling that when people blithely say “Chatham House rules apply”, they don’t understand this implication. Should journalists rely on it? (I confess I have).
Topics: Media ethics | Comments Off on Chatham House Rule
Free speech log
May 12, 2008
Some upcoming free speech cases:
Electoral Finance Act judicial review: strike-out application to be heard on 15 May. Applicants John Boscawen, Garth McVicar, Rodney Hide, and Graham Stairmand now want the court to rule that the Attorney-General should have advised Parliament that the Electoral Finance Bill was inconsistent with the Bill of Rights Act, and that the Electoral Finance Act, now that it’s passed, is inconsistent with the Bill of Rights Act. The Crown seeks to strike out both challenges, on the grounds that they are contravene Parliamentary privilege.
My guess: the first challenge (the missing A-G report) will be struck out, and the case will be allowed to proceed on the second (the question of the inconsistency of the Act with the Bill of Rights).
[PS: On Wednesday, the Wellington High Court will hear National’s judicial review application against the Electoral Commission’s decision that the EPMU can be a third party for EFA purposes.]
Fairfax/Pankhurst contempt: set down for five days in the week beginning 15 September before a full bench of the High Court (two judges). This concerns several Fairfax newspapers’ “Terrorism Files” stories. It is shaping up to be the most significant contempt of court case in NZ’s history.
Important fact from the Crown’s application: the Crown’s case crucially revolves around the papers’ publication of material from communications intercepted by police: material that is (a) illegal to publish, (b) inadmissible in the trial, and (c) pretty damned prejudicial.
Fascinating issue: to what extent will the public interest in the information be relevant?
Broadcasting Standards Authority challenges: TVNZ’s lawyer Willy Akel has two challenges to BSA decisions. One was argued last week, against this BSA decision, a finding that a Close Up story about a suburban brothel was inaccurate and unfair because there wasn’t sufficient evidence that the place was indeed a brothel. The key issue seems to be whether the BSA should have given TVNZ notice that they were looking at concluding that the house wasn’t a brothel.
The second challenge is to this decision (which I discussed here). It’s being heard on Thursday in the Wellington High Court.
Topics: Broadcasting Standards Authority, Contempt of Court, Electoral speech, NZ Bill of Rights Act | Comments Off on Free speech log
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