To die like a blog
April 19, 2008
Poneke is reporting that blogger HotTopic has withdrawn a post criticising the Listener and its editor after receiving a (presumably defamation) threat from the magazine’s lawyers.
In its place, there’s a fullsome correction and apology (which looks to have been drafted by said lawyers).
In the comments section of the correction and apology, someone has helpfully posted a link to a copy of HotTopic’s original post. Don’t you just love the internet? On the off-chance that the link is removed in the near future, let me take the liberty of reproducing it here. By all means, pay a visit, and encourage others to do likewise. I hope that the post receives exponentially greater attention as a result of this legal threat.
I don’t say that because I’m a free speech absolutist, or because I think the internet ought to be a law-free zone. In general, I think people who defame others online deserve all they get. I doubt this is the first time internet material has been removed in NZ as a result of a legal threat, and I’m sure it won’t be the last. Nope, I object to this because I think the Listener has used a tenuous legal claim to bully a blogger into retracting some moderate and reasonable criticisms. I don’t like it when anyone does this, but it’s particularly ugly when the heavies are acting for the media.
Some context: HotTopic – a serious blog about global warming – questioned the Listener’s removal of Dave Hansford as its Ecologic columnist. The blogger wondered whether Hansford’s removal had anything to do with his recent column criticising climate change sceptics. The post is largely a model of fairness. It sets out the background facts. It raises questions rather than making allegations. It even allows that the Listener’s editor may have made the change for other reasons. It plainly expresses comment. Readers can judge for themselves what to think. Bloody hell: how many blog posts merit that accolade? (For my part, I doubt Hansford was removed because of the column. The blog post is temperate enough that others have reached that view too).
Those familiar with the laws of defamation will see where I’m going. It looks to me as if there’s an honest opinion defence available here. The law lets people air their opinions, as long as they’re clearly expressed as opinions, honestly held, and based on facts accurately set out or referred to. Those elements seem to be present. (A caveat: I don’t know whether there were significant inaccuracies in the post, and there’s an interesting legal question about whether facts can be said to be accurate if something important is left out. I’d be happy to include any comment or explanation from the Listener here if it likes.)
One bit of the post looks a bit dodgy to me. Although the rest of the post meticulously raises issues rather than making allegations, there’s a passage that says:
The Listener, in caving into their demands, has acted shamefully.
That should be changed to read:
If the Listener has caved into their demands, it has acted shamefully.
In context, though, reasonable readers can easily tell that’s what the blogger was saying.
There are other potential defences. One is truth. HotTopic wouldn’t have to prove that the Listener did indeed cave into pressure, I think. The sting of the article is less than that: it’s that there are reasonable grounds to suspect that it caved in to pressure. That’s an easier thing to prove (though not a gimme). Qualified privilege is also a possible defence, though it would have been wise for the blogger to seek and include comment from the Listener before publishing the post. (Well, if bloggers want to be taken seriously as commentators, then arguably they should be held to the same standards of journalistic responsibility).
The correction and apology looks ham-fisted to me. It even includes a retraction of things that weren’t even in the post.
The proper response would have been a one-line letter politely telling the Listener to sit on its thumb. I doubt that any further action would have been taken. But bloggers, and those who host their blogs, can’t always be that brave. That’s what makes leaning on assertions of legal rights in situations like this reprehensible, I think. I would have been much more persuaded by a thoughtful and factual response from the Listener’s editor on the blog itself setting out the magazine’s version of the story. It would have been much cheaper. And much more in keeping with the Listener’s commitment to open inquiry. And it wouldn’t have produced what’s likely to be an explosion of interest in the criticisms…
Topics: Defamation, Internet issues, Media ethics | Comments Off on To die like a blog
ACCURACY UNDER ATTACK
April 18, 2008
As an occasional critic of the Press Council in the past, it would be churlish of me not to acknowledge its robust (and unanimous) ruling in a complaint I brought on behalf of the Coalition for Open Government. The complaint was mostly about the NZ Herald’s front page editorial excoriating the Electoral Finance Bill, headed “DEMOCRACY UNDER ATTACK”.
The Herald fulminated that the bill would require anyone wanting to spend any of their own money electioneering to register with the Electoral Commission. That seemed to grossly restrict everyone’s political free speech – an impression underscored by the subhead “Speak now or next year hold your peace”. But it wasn’t true. Only those who want to spend more than $12,000 electioneering (or $1000 in an electorate) need to register. Still, much better for the Herald’s campaign to brush over the fact that this would only affect a small number of wealthy people and organisations.
Most irritating Herald argument: its mistake didn’t really matter as “it does not undermine our general view of the shortcomings of this bill.” Well, bully for the Herald. But one might have hoped that they would have felt embarrassed to advance this as a justification for failing to publish accurate information and let readers make up their own minds.
Best Herald argument: it had published the accurate information in three other stories, including one that ran on the front page. But those stories weren’t in the same issues as its misleading editorials; the correct information came toward the very bottom of those stories; and it was omitted from dozens of other stories dealing with the EFB.
The Press Council upheld the complaint, and said the Herald really should have run a correction. As COG had argued, publications are free to comment and campaign as they see fit, but they have to get their basic facts right.
To the Herald’s credit, it published the whole ruling with a teaser (not sure that’s quite the word they’d use here) on the front page. Also to the Herald’s credit, it has been very good at publishing the information accurately since COG laid its complaint.
Topics: Press Council | Comments Off on ACCURACY UNDER ATTACK
New notice-and-takedown regime for ISPs
April 10, 2008
Under the most significant provisions of the new amendments to the Copyright Act (which have been passed by Parliament but haven’t yet come into force), ISPs can be liable if their users infringe copyright. But only if:
- They’ve authorised or controlled the copying; or
- They’ve stored the material and know or have reason to believe it’s an infringement of copyright (for example because they’ve received a notice from the copyright owner telling them it is), and don’t take it down (either by deleting it or preventing access to it).
If the ISP receives a notice – regulations about the content of such notices haven’t been drawn up yet – and takes material down, it must inform the user straight away, and ensure the material isn’t cached.
ISPs must also have policies for terminating repeat copyright infringers.
This notice-and-takedown process actually offers protection to ISPs, who might otherwise be liable for copyright infringements they didn’t even know about. But might it be abused? As I’ve said before, there’s an awful lot of copyright infringement on the web. But by and large, most copyright owners don’t mind. Mostly it’s just ripping off news sites, and usually contains a link. Those who do mind may not care enough to issue a notice. Those who do care enough, well, they’re within their rights. And the remedy doesn’t cost anyone anything much.
What if a copyright holder deliberately asserts rights he or she doesn’t possess? That may be an offence under the Fair Trading Act or the Crimes Act. It’s not likely to happen too often. Anyway, if the true position can be shown, then the ISP will no longer have “reason to believe” it’s an infringement and can put the material back up.
So I don’t think this is likely to pose too much of a threat to free speech in practice. (In fact, this may become a model for other content disputes. Why should copyright owners get a nice shiny new remedy, but not, say, people who think they’ve been defamed, or had their privacy breached, or their confidential information posted? But that’s a much bigger discussion. I don’t want to suggest that there’s an easy answer).
But there’s a gap here. What if the ISP diligently takes down the material, and contacts the user, and the user says: “That’s no breach of copyright! I’ve got a fair dealing defence” (or something like that)? There isn’t anything in the Act to sort out what happens when there’s a genuine dispute. It will be up to the ISP to form a view about whether it has “reason to believe” there’s an infringement. If the ISP takes, and acts on, legal advice about whether there was a copyright infringement, it would be very likely to be safe, even if a court ultimately decides that there was a breach of copyright. Alternatively, the ISP might put the heat on the user, and say: “you provide me with a credible legal opinion, and we’ll put it back up”. Or the ISP might go back to the complainants and ask them to explain why they think it’s a breach.
I rather suspect that this is much more of a role than ISPs are going to want. And that budget-conscious ISPs are going to take the easy way out and keep the material down. Of course, they’ll have to juggle their reputations and customer relations, too…
I don’t want to overstate the problem. Most copyright infringements are obvious.
But I don’t want to understate it either. If you want to fisk someone’s work on your blog, and in the course of that, republish large chunks of it, the fiskee could send a takedown notice, and your material will probably have to be removed. You’ll have to convince your ISP – perhaps at the expense of a getting a legal opinion – to put it back up.
I haven’t thought about this hard, but I’m inclined to think that the best process in such situations would be for the ISP to be required by law to contact the notice-writer and say: “The user disagrees that your copyright has been infringed. Here is the user’s name and address. I am required to reinstate the material in 24 hours unless you get a court order.” This system would be much easier for ISPs to administer, since it wouldn’t revolve around their discretion. It would still provide a remedy for copyright owners, but it would put the heat back on them in cases of dispute. The danger that users could block such notices too easily could be met by requiring them to pay a successful copyright owner’s full court costs. There may be bigger pitfalls to this system than I’m imagining, though…
Topics: Copyright, Internet issues | Comments Off on New notice-and-takedown regime for ISPs
Indian IPL league manacles reporters
April 10, 2008
You can film our 20/20 matches, but you can’t put pictures on the web. Oh, and we can use any pictures you take as we like, for free.
These are the reporting conditions proposed for the IPL’s new cricket league. The UK’s Newspaper Publishers Association calls them “some of the most restrictive and burdensome access arrangements ever seen.”
Conditional access agreements aren’t new. Journalists are given information in exchange for promises of confidentiality. Celebrities may insist on vetting photos or stories as the price of an interview. Interviewees may insist that some topics are off-limits. Concert-goers are prevented from making recordings. PM Robert Muldoon once famously excluded Dominion reporters from his press conferences.
But such restrictions are becoming more serious. The reality is that those who control events or images or information have increasing incentives to exploit their legal rights to crank up the profits, ensure that the coverage is favourable, and punish those whose coverage they disapprove of, or who can’t afford to pay for access, or won’t accept the conditions.
Topics: Copyright | Comments Off on Indian IPL league manacles reporters
Canadian Supreme Court to decide on new defamation defence
April 10, 2008
Leave has been granted for the Canadian Supreme Court to rule on whether Canada will recognise a public interest/responsible journalism defence along the lines of Reynolds in the UK (and related to the Lange cases in NZ and Australia). I discussed the Canadian Court of Appeal decision here. The Canadian decision is likely to be influential in the development of NZ’s law.
Topics: Defamation, General | Comments Off on Canadian Supreme Court to decide on new defamation defence
BSA in a bind
April 3, 2008
I think the BSA has broken the law.
I think they’ve done it in order to avoid breaking the law.
Confused? Let me explain. They’ve issued a decision upholding (by majority) a complaint against TVNZ’s Sunday programme on grounds of inaccuracy and unfairness. But the decision contains no reasoning. It seems this is because the reasoning cannot be explained without breaching a name suppression order.
The BSA is not obliged to publish reasons for its decisions (though until now, it always has, as far as I can tell). But under section 15 of the Broadcasting Act:
Copies of the decision of the Authority… , which copies shall include in each case the Authority’s reasons for its decision, shall be procurable by purchase from the Authority at a reasonable price.
I phoned the BSA yesterday and asked to buy a copy. Today, they declined.
That seems to me to be a breach of section 15. They simply don’t have the power to refuse me. What’s more, this was a majority decision, with one member dissenting. The public should be allowed to critique it. Even more importantly, we do not have access to whatever guidance the decision contains about what amounts to unfairness and inaccuracy.
Still, it’s quite possible to imagine a BSA decision that’s impossible to write without providing details that would breach a suppression order. That would obviously put the BSA in a damned-if-you-do/damned-if-you-don’t sort of fix. If that’s the case, it’s hard to be too critical of the BSA.
Perhaps, though, it suggests that they should have declined to determine the case in the first place, which is something a High Court judge recently suggested they should have done in a different context. I’m hesitant to advance even that criticism, though. It may not have become apparent until well into the process that the decision would inevitably involve a breach of a suppression order. In any event, declining the complaint may have denied a justly aggrieved complainant a remedy.
Topics: Broadcasting Standards Authority | Comments Off on BSA in a bind
BSA round-up
April 2, 2008
When showing graphic footage (such as autopsy photos) on the news, the broadcaster should use a warning, and put the graphic footage far enough into the news item to give parents a chance to turn off the TV. When running a story about a campaign against child abuse, showing some photos of the beaten body of an abused child, TVNZ did exactly this and got a delicate balance just right. Still, two BSA members felt that the warning (“viewers might find some images in this next report disturbing”) could have made specific reference to the autopsy photos.
—
More evidence that broadcasters are given a lot of leeway in taste and decency matters. See the autopsy photos above, and the BSA’s rejection of a raft of complaints against Californication, mostly for indecent language, sex and (top-half) nudity, and its green-lights to a skit about bogie-eating on a children’s programme, a partly visible breast in a promo for The Tudors, a comedy character describing his wife’s vagina as looking like “a pair of padded coathangers” after group sex, and nudity in How to look good naked. The BSA would also have okayed the screening of 9 Songs, which is basically explicit sex from beginning to end, on Sky and TelstraClear at 8:30, if there had been a proper warning.
—
Kudos to Fair Go for surviving a searching complaint about one of its programmes (and others here and here). When you’re dealing with messy disputes that always hurt someone’s reputation, it’s easy to make mistakes of fact or process that (a complainant asserts) leave a programme inaccurate or unfair. What’s more, the BSA says consumer advocacy programmes have to make special efforts to be scrupulously fair. Even when rejecting most of the grounds of a complaint, the BSA often finds one or two small parts justified. One of the big points in Fair Go‘s favour here was the fact that it sent a comprehensive list of its questions and concerns for the person to respond to, and fairly summarised his response. That practice is guaranteed to head off most complaints.
Topics: Broadcasting Standards Authority, General | Comments Off on BSA round-up
UK political broadcast ad ban upheld
March 31, 2008
In NZ, we ban the broadcast of election ads, except for those paid for out of the broadcasting allocation. That means a pot of about $3 million of public money gets divvied up between the parties (along with a bit of free air time that some publicly minded stations throw in) – and that’s the only election advertising allowed to hit the airwaves. Issue ads – that don’t encourage us to vote one way or another or support a candidate – are allowed.
The rationale: broadcast ads are so potent and so expensive (and, perhaps, so capable of providing distortion and manipulation) that it’s in the interests of democracy that important political debate shouldn’t be skewed in favour of those who can afford to pay for ads.
Given the importance of political speech, I’ve sometimes wondered whether this ban is justified under the NZ Bill of Rights Act. Of course, our Bill of Rights doesn’t override other laws. But it may well be possible to have a judge rule on the question of consistency. And inconsistencies are supposed to be flagged to Parliament before laws are passed. That didn’t happen here, because the ban was passed before the Bill of Rights Act.
I’m torn about this. Such speech is of vital importance, and ought not to be restricted without very good justification. But the current law avoids the sort of saturation of the airwaves by misleading negative ads that’s endemic to US politics.
Well, now I have an answer, of sorts. An ad ban is a justified limitation on freedom of expression. In fact, an ad ban against the television broadcast of any political ad (including a political ad aimed at “influencing public opinion on a matter which… is a matter of public controversy) is justified. That’s the law in the UK. And it was upheld this month by the House of Lords, in a case involving an animal rights group that wanted to broadcast an ad about endangered primates.
Here’s the key paragraph, from Lord Bingham:
The fundamental rationale of the democratic process is that if competing views, opinions and policies are publicly debated and exposed to public scrutiny the good will over time drive out the bad and the true prevail over the false. It must be assumed that, given time, the public will make a sound choice when, in the course of the democratic process, it has the right to choose. But it is highly desirable that the playing field of debate should be so far as practicable level. This is achieved where, in public discussion, differing views are expressed, contradicted, answered and debated. It is the duty of broadcasters to achieve this object in an impartial way by presenting balanced programmes in which all lawful views may be ventilated. It is not achieved if political parties can, in proportion to their resources, buy unlimited opportunities to advertise in the most effective media, so that elections become little more than an auction. Nor is it achieved if well-endowed interests which are not political parties are able to use the power of the purse to give enhanced prominence to views which may be true or false, attractive to progressive minds or unattractive, beneficial or injurious. The risk is that objects which are essentially political may come to be accepted by the public not because they are shown in public debate to be right but because, by dint of constant repetition, the public has been conditioned to accept them. The rights of others which a restriction on the exercise of the right to free expression may properly be designed to protect must, in my judgment, include a right to be protected against the potential mischief of partial political advertising.
This conclusion rather flies in the face of a European Court of Human Rights decision, so there’s an interesting potential clash coming up.
It is founded on a belief in the importance of the ban, a degree of defence to Parliament, and a finding that it’s impractical to draw a narrower distinction, banning (say) ads for political parties but not issue ads, as NZ has done.
Needless to say, this decision would not fly in the US. I wonder whether even Canada would buy it. To me, it seems long on deference and short on evidence, for all that I have some sympathy for the reasoning.
[In addition, as Graeme Edgeler has noted, there are a couple of ways in which the UK ban may be more justified than NZ’s rules. First, it only applies to TV and not radio. Second, the way NZ’s ad-spending money is divvied up creates a bias in favour of the big parties, which get the biggest share, and consequently caps the little parties’ spending at low and unequal levels.]
An aside: any second thoughts from all those who opposed NZ’s dumping of the Privy Council (which has the same judges as the House of Lords) because their judges were better and more able to protect our rights than ours?
Topics: Electoral speech, Free speech theory, NZ Bill of Rights Act | Comments Off on UK political broadcast ad ban upheld
Headline: Police do good job
March 26, 2008
You don’t see that headline too often. This is a bit off-topic, but I had an experience of an emergency 111 call-out over Easter. It turned out to be a false alarm, but police were there within five minutes (a second car arrived a couple of minutes later). They were thoroughly professional. Well done, them. I’m not sure the police get enough credit for the things they do right.
Topics: General | Comments Off on Headline: Police do good job
Helpful access-to-court-records case
March 25, 2008
This judgment from Harrison J is a useful addition to journalists’ armoury in their ongoing battle for access to court files.
The Sunday News wanted to see the file on Matthew Ridge’s leaky home litigation. The Registrar refused, saying that the paper needed to show “an interest [in the case] greater than that of the public at large'” (This phrase was taken from an earlier case. Alas, the cases are rather contradictory).
Harrison J said this was the wrong question. As the Court of Appeal found in McCully v Whangamata Marine Society [2007] 1 NZLR 185, the issue is whether the media has a “genuine and proper interest” [the actual phrasing of the test is “genuine or proper interest”], but the threshold is not high. The Court of Appeal said Registrars should ask whether the application for access is “frivolous or vexatious or merely prurient”.
Harrison granted access. The paper had written about leaky homes, leaky homes are a matter of public interest, and the Bill of Rights supported access. The paper didn’t need to show some special interest in the particular case.
An interesting footnote: the judge added the condition that
any article published in relation to the proceeding gives appropriate and balanced prominence to the nature of the claim and the nature of the defences.
I’m not aware of other judges adding conditions like this relating to substantive reporting. I’m not sure this is the sort of condition that’s contemplated by the rules. I’m also not sure how it would be enforced, though it would be a contempt of court not to comply. I wonder if judges will start making a habit of this…
Topics: Court records, General | Comments Off on Helpful access-to-court-records case
« Previous Entries Next Entries »