Falun Going Going Gong?
March 3, 2008
Can the Wellington City Council ban Falun Gong’s signs from the Botannical Gardens? In a typically thoughtful and comprehensive post, Dean Knight concludes: nope, unless they’re attached to structures. He also notes that there’s no rule as such against political signs. It seems from today’s DomPost (offline) that the council might be softening its attitude. For analysis on the extremely interesting issues about FG’s ability to participate in council-sponsored parades, keep an eye on Dean’s blog.
It’s a bit disturbing to see the council trying to control political speech using a rule that doesn’t exist. (Or has its position been misreported?) Its lack of any appreciation of the importance of political speech is also disturbing. The council has been treating it, effectively, as a nuisance, egged on by a few garden-goers who are irked by it. But there’s a very strong argument under the NZ Bill of Rights Act that political speech is actually more important, and requires greater-than-usual justification to restrict, even if the council does have the power to control such signs.
See also this terrific backgrounder by Tim Hume in the Sunday Star-Times, suggesting that Falun Gong are their own second-worst enemy.
Topics: NZ Bill of Rights Act, Protest speech | Comments Off on Falun Going Going Gong?
Your news leader
February 29, 2008
I’ve just come back from the injunction hearing. The application has been adjourned for 7 days to allow the defendants to look at the documentation (which they’ve only just received) and work out what position to adopt. This is pretty standard. The injunctions are continued in the meantime.
There are two sets of proceedings: one by the Director-General (founded on breach of confidence, not privacy) and one by HealthCare NZ.
Fairfax and APN were both represented. They said they did not have copies of the draft report.
As Robert Stewart pointed out for Fairfax, in proceedings against the government, the onus is on the government to show that there is public interest in secrecy, it’s not on the defendants to show there is public interest in publication. That may not apply to HealthCare NZ.
An interesting issue is likely to crop up: if the finalised report is released, and it has been substantially changed from the draft, is the public entitled to see the draft so that it can ask why the changes were made?
Topics: Breach of confidence, Suppression orders | Comments Off on Your news leader
Illegal exclusion of media?
February 29, 2008
Yesterday, Justice Panckhurst closed the court to the media in a preliminary hearing on the Bain case. He is reported as saying that discussions were sensitive and could have implications for a fair trial. But these are not grounds for excluding the media. Check out section 138 of the Criminal Justice Act:
138 Power to clear court and forbid report of proceedings
(1) Subject to the provisions of subsections (2) and (3) of this section and of any other enactment, every sitting of any court dealing with any proceedings in respect of an offence shall be open to the public.
(2) Where a court is of the opinion that the interests of justice, or of public morality, or of the reputation of any victim of any alleged sexual offence or offence of extortion, or of the security or defence of New Zealand so require, it may make any one or more of the following orders:
(a) An order forbidding publication of any report or account of the whole or any part of —
(i) The evidence adduced; or
(ii) The submissions made:
(b) An order forbidding the publication of the name of any witness or witnesses, or any name or particulars likely to lead to the identification of the witness or witnesses:
(c) Subject to subsection (3) of this section, an order excluding all or any persons other than the informant, any member of the Police, the defendant, any counsel engaged in the proceedings, and any officer of the court from the whole or any part of the proceedings.
(3) The power conferred by paragraph (c) of subsection (2) of this section shall not, except where the interests of security or defence so require, be exercised so as to exclude any accredited news media reporter.
(4) An order made under paragraph (a) or paragraph (b) of subsection (2) of this section—
(a) May be made for a limited period or permanently; and
(b) If it is made for a limited period, may be renewed for a further period or periods by the court; and
(c) If it is made permanently, may be reviewed by the court at any time.
(5) The powers conferred by this section to make orders of any kind described in subsection (2) of this section are in substitution for any such powers that a court may have had under any inherent jurisdiction or any rule of law; and no court shall have power to make any order of any such kind except in accordance with this section or any other enactment.
Upshot: even if the court is closed, the media is allowed to stay, unless national defence or security is at stake. Here, it’s not. The proper course is to make suppression orders, not exclude the media. Note that under subsection (5) any inherent power the court might have in the background is extinguished. Still, I understand that some judges do go into chambers and exclude the media for preliminary hearings in criminal cases. As far as I know, the question of whether judges retain some residual power to do this, perhaps on the grounds that a chambers hearing is not a “sitting” of court, has not been tested. I’m inclined to think that such a power would be inconsistent with section 138, which seems very widely drafted.
Topics: Suppression orders | Comments Off on Illegal exclusion of media?
Media gagged on Health Board report
February 29, 2008
The Director-General of Health has won an injunction preventing media publication of a draft report into the conflict of interest at the Hawke’s Bay District Health Board. The Herald is reporting that the court order also requires the media to deliver up any copies they may hold. The Dominion Post reports:
But last night the Crown Law Office threatened the newspaper with a court injunction, saying the report was confidential and “circulated on a restricted basis only to the parties directly affected by the content of the draft report”.
“The director-general [of health] asserts a right of confidentiality and privacy in the draft report. Any publication or dissemination will breach the confidence attached to the draft report and its contents.”
Publication would be likely to expose The Dominion Post to defamation or other proceedings, the Crown Law Office said.
The case is against Fairfax, APN, TVNZ and CanWest. There’s no statement of claim, just an ex parte application for an injunction. It seems to be based on breach of confidence and privacy. The interim injunction was granted by Mallon J, who’s no knee-jerk anti-media type. It explicitly also binds Hawke’s Bay Today. The case is set down for further argument at 2pm today.
The Crown Law Office’s nod towards defamation proceedings is interesting, and may have been a mistake. To the extent that the injunction is seeking to prevent defamation (and perhaps even to the extent that it is seeking to protect reputation, which may be a different and wider thing), then it’s particularly hard to obtain an injunction. The courts will grant an injunction only if there’s no possibility of a defence succeeding.
Privacy is also interesting. The government surely doesn’t have privacy rights. Those referred to in the report might have. But does the government have the right to bring an action to protect someone else’s privacy? (It seems that Peter Hausmann is represented; that might resolve that).
There’s no claim for breach of copyright, it seems.
The problematic claim is breach of confidence. It’s not clear what the injunction threshold is (it may not be as high as the threshold for defamation, and probably ought not to be). The big issue will be whether there is public interest in the draft report sufficient to outweigh the confidentiality interest. Judges usually find this hard to determine without a full argument on the evidence. And full arguments usually take months to organise. The release of the Winebox documents were held up like this for two years. This isn’t really satisfactory, and it’s questionable whether it’s in keeping with the NZ Bill of Rights Act.
I’m not sure what power the court is relying on to order up delivery of the documents.
Topics: Breach of confidence, Injunctions, NZ Bill of Rights Act, Privacy tort, Suppression orders | Comments Off on Media gagged on Health Board report
Ad strategy: attract complaints?
February 27, 2008
Surely Hell Pizza is trying to make its ads offensive so that it can attract extra publicity by having complaints against them upheld. How else to explain its direct mail ad that says:
Hell Spicy BBQ Pork Spare Ribs are by all accounts a lot like having sex with Jenny Shipley – messy but good.
I’m guessing Hell knew the ad would be shot down, and eagerly anticipated the free media publicity (like this, perhaps?). Hey, extra bang for your advertising buck. So to speak.
Hell isn’t the first to twig to this tactic. But it does raise some questions about the advertising regulatory system. There’s no extra penalty for deliberately flouting the system, even if that could be proved. There’s no real way to stop the complaints system being used as leverage for extra publicity. And the ASA’s only remedy (having the ad withdrawn) only kicks in after the pamphlets have all been delivered. I doubt they were planning on using that ad again anyway.
Which raises an interesting general question: how many of the decisions upholding complaints against ads are delivered after the ad campaign is already over? If a company knows that its ad campaign will be finished before any complaint can be ruled on, and that the only penalty it can expect is to withdraw the ad that it is no longer using anyway… how much of an incentive does that company have to comply with advertising standards? And if the company wants to promote an image as edgy and daring, don’t the incentives work the other way?
I should point out that many of the ASCB’s upholds a lot of complaints on the grounds that they are misleading, and that’s hardly a reputation any company wants.
Topics: Advertising Standards | Comments Off on Ad strategy: attract complaints?
Something to get depressed about
February 27, 2008
The coverage of the story about the effectiveness of anti-depressants. Russell Brown provides some context. Russell also had to clean up the mess 60 Minutes made of the Herceptin story. And who can forget TVNZ’s leap onto the miracle cancer-cure lyprinol bandwagon? I mean, really, can’t we expect the paid journalists to do this work before they run the story? A few years ago, NBR ran a front-page story claiming that an entire year’s tax take was in jeopardy because of a court ruling. It just wasn’t true, as any number of experts could have told NBR. Still, why let that get in the way of a good story? I’m not saying the Herald’s story was that bad. I am saying that when you are prominently featuring a story that’s going to have a powerful impact, you owe it to the public to take extra care to provide context.
Topics: Media ethics | Comments Off on Something to get depressed about
NZ and Aussie Press Councils to co-host public forum
February 26, 2008
It’s called “The Press and the Right to Know Under Seige”, and will feature a key-note address from Media Law Guru John Burrows QC, and presentations from the chairs of the NZ and Australian Press Councils, Barry Paterson QC and Prof Ken McKinnon respectively. It will be chaired by Justice Randerson.
It will be held on 13 March from 5:30pm to 7pm at the BP Theatrette on the ground floor of the BP building 20 Customhouse Quay (entrance from Johnston St or Waring Taylor St).
Admission is free, but you should email presscouncil@asa.co.nz to indicate your attendance.
Topics: General | Comments Off on NZ and Aussie Press Councils to co-host public forum
Police raid TV3
February 22, 2008
It’s being reported that police are executing a search warrant in TV3’s premises.
As I’ve noted, given the case law, I’m not surprised that the police were able to obtain a warrant. An important factor for a judge in deciding whether to grant the warrant is the cogency of the evidence. Here it seems likely that TV3 have information about the identity of a confessed criminal. (NB It seems TV3 is denying that they actually know who he is).
The Court of Appeal did say that judges should be very slow to grant warrants where the search might cause confidential sources to dry up. I wonder how much that factored into the judge’s decision here.
Topics: Confidential sources, General, Search warrants | Comments Off on Police raid TV3
“Confusing” is right
February 22, 2008
Deborah Hill Cone opines that the Advertising Standards Complaints Board decision about the Charlies ad is “confusing”.
So’s her column.
She says the decision, upholding the complaint about the ad, is confusing because much more graphic non-cartoony stuff is shown on telly, such as Californication.
Then she says that the ads have commercial motives, and that this is a reason that they are not allowed to be as risque. Then she says that it’s doubly odd because the Burger King ad featuring nublile lovelies on horseback got the ASCB’s blessing. Then she says at least the ASCB doesn’t seem to “rush to censor everything” like the BSA does.
Confusing, indeed. Why point to the BSA’s permissiveness toward dramas like Californication in the same column as you slag the BSA for censoriousness? In fact, the BSA is remarkably robust about allowing edgy drama, even where there’s sex and nudity. Of course, the BSA can’t “censor”, anyway, just uphold complaints. But can Deborah point to examples of a rash of upheld complaints by the BSA that aren’t justified, especially on grounds of taste and decency or denigration? Her column doesn’t contain any.
The Burger King ad featuring horseback bikini girls was, in fact, upheld by the Advertising Standards Complaints Board. So the ASCB isn’t being inconsistent. [Graeme Edgeler has pointed out that the complaint against the original horseback bikini girls ad was rejected. So Deborah was right (sorry, Deborah). It was a later Burger King ad, which also happened to feature use of the horseback bikini girls, that was upheld.]
I haven’t seen any reasoning from either the BSA or the ASCB that says ads have to comply with higher standards of taste because they’re seeking business. If the standards are different, it’s because the industry has created them that way. The ASA regime is voluntary self-regulation after all.
Deborah then points to the ASCB’s 15% uphold rate (for 2007, I guess) as evidence that they are more reasonable than the BSA. This doesn’t really work. First, she ignores the complaints that are “settled” – that is, the advertiser pulls the ad, acknowledging that it was in breach. It’s very likely that most of these complaints would have been upheld. Secondly, the uphold figure for 2006 was 36% (and the upheld/settled rate was 57%), so the 15% figure is uncommonly low. The upheld/settled rate is usually around 50%. But this is a bit misleading too, because it ignores the many complaints that are weeded out early in the process as being hopeless. The BSA does almost no such weeding. Its uphold rate in 2006 was about 12%, though that was an abherration, too – usually it’s around 20-25%.
So comparisons are difficult. But Deborah has hardly justified her gratuituous smack at the BSA, or the reasoning beyind her swipe at the ASCB. (As I’ve said, I do agree that the ASCB’s decision is questionable, but for other reasons).
Topics: Advertising Standards, Broadcasting Standards Authority | Comments Off on “Confusing” is right
BSA finds TV screwed up coverage of Electoral Finance Bill
February 22, 2008
I brought these complaints, together with the Coalition for Open Government. The BSA has found TV3’s and TVNZ’s coverage of the Electoral Finance Bill, when it was first revealed to the public, contained significant inaccuracies.
These complaints related only to this early coverage, though I think we could have complained about other coverage, too.
COG thought that it was particularly important that the public be properly informed about the bill, and were dismayed that both channels rather suggested that the bill as introduced included some provisions increasing the transparency of political donations to parties via anonymous donations and secret trusts. It didn’t. (The later version of the bill did contain some new controls on such political donations, so this BSA decision is now mostly only of historical interest. The BSA quite rightly found that there was no point in ordering the channels to broadcast a statement now about how they’d got it wrong).
A few observations:
First, a little sympathy for the reporters. Then-Minister of Justice Mark Burton didn’t make the best job of explaining the effect of the bill in his press conference. However, a press release and explanatory Q and A contained accurate information, as did the bill itself, with its explanatory notes offering a summary of its effects.
Second, we hoped that the stations would quickly realise their errors and feed the correct information into some follow-up stories. We would have been satisfied with that and withdrawn the complaints – we only wanted the public to be presented with accurate information. Instead, they both simply tried to defend the stories. I’ve got to say, I’m appalled by this approach. Of course mistakes are going to happen. When they are pointed out, newspapers are pretty good at feeding in the correct information into later coverage (of course, they have the useful mechanism of letters to the editor and small “corrections” or “clarifications” slots). But TV’s approach tends to be to retreat to the ramparts and fight it out.
Third, some of the arguments put forward by the channels were self-serving and even ridiculous. It was pretty clear that they either didn’t really understand what the bill said, or were disingenously trying to suggest that viewers would interpret the stories in ways that were basically contrary to the very words that were spoken in them.
Fourth, the complaints may have been entirely counter-productive for COG. We were never approached by TVNZ for comment on the EFB, and it wasn’t for months that TV3 approached us again. Was it spite? Was it a poor campaign by COG? Maybe both?
Fifth, COG also has a complaint before the Press Council against the NZ Herald’s editorial coverage of the EFB. The argument is that the Herald misled its readers by telling them that under the EFB everyone who engaged in electioneering would need to register, without properly informing them that the registration threshold was in fact $12,000 (it’s $1000 in electorates) – something that affects considerably fewer people. Watch this space.
Topics: Broadcasting Standards Authority, Media ethics | Comments Off on BSA finds TV screwed up coverage of Electoral Finance Bill
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