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Press Council ducks interesting issue

February 10, 2008

If you talk to a journalist on the basis that what you say is “not for publication” and the journalist publishes your remarks anyway, has the journalist behaved unethically? I think most people would think so. In the past, the Press Council has leaned this way, too:

… if the conditions under which the [source] agreed to be interviewed were not accepted by the newspaper, then he was entitled to withdraw his comments. In the council’s view a newspaper cannot unilaterally impose its own rules upon a member of the public while choosing to ignore any conditions he may have set.

But in a recent case, where the issue was squarely before the Press Council, it rather disingenuously avoided it. The DomPost ran a story about a developer whose “army shack” homes had riled neighbours. The story was plainly newsworthy, and the developer was, it seems, a rather unsympathetic fellow. His concerns were mostly about various alleged inaccuracies in the story, which I won’t go into here. But one of his arguments was that he agreed to talk to the reporter only on the basis that the chat was “not for publication” and any comments on the record would be in writing. (He subsequently forwarded some written material). The reporter then quoted the conversation (misquoted, according to the complainant).

The Press Council blythely concluded that there was a “difference in the recollection” of the reporter and the complainant about what was said and that it was “not in a position to rule on these matters”. As for the accuracy of the quoting, that may be so. But look at the DomPost’s argument about the “not for publication” point:

… the reporter identified herself and at no time offered any acceptance of the position that Mr Nolan’s remarks were not for publication. 

The DomPost wasn’t disputing that Nolan regarded the remarks as “off the record”. It was simply saying it never agreed to that condition (though the reporter was happy to keep listening to his remarks without informing Nolan that she may ignore it).

Point one: the Press Council should really have addressed this head-on. It was squarely raised by the complainant. It’s an important matter of principle. I know there are journalists who believe that unless they specifically and expressly agree to go off the record, then they can write what they like, even if the person they’re interviewing clearly believes the conversation is confidential. This decision can be read as supporting that view, though I’m not sure the Press Council intends it to. We really need better guidance that this.

Separate point: I think this journalistic approach is unethical, or at least will be in most cases. I think that reporting comments that have been provided on an off-the-record basis is a form of “misrepresentation, deceit or subterfuge” (Principle 9) and can only be justified where the public interest requires. There seemed to be no particular public interest in the material acquired by the deceptive conduct here.

Topics: General, Media ethics, Press Council | Comments Off on Press Council ducks interesting issue

The Broadcasting Standards Authority and the Bill of Rights

February 7, 2008

As I mention below, Claudia Geiringer and I delivered a paper at the conference for John Burrows about the Broadcasting Standards Authority and the Bill of Rights Act (BORA).

The BORA requires the BSA to ensure that any restriction it imposes on the media’s freedom of expression (by upholding a complaint, for example) is reasonable and demonstrably justified under section 5 of the BORA. (It also has to be “prescribed by law”, which raises a few issues, but I’ll put those aside for now).

The BSA is certainly aware of its responsibilities under the BORA. When upholding a complaint, it routinely includes a paragraph saying:

For the avoidance of doubt, the Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching this determination. For the reasons given above [a reference to the BSA’s general reasoning applying the standards but not mentioning the BORA], the AUthority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act.

You might be comforted by that sort of boilerplate. We weren’t. It’s true that the BSA’s decisions are generally carefully reasoned, but we concluded that the BSA needed to approach its obligations under the BORA in a more rigorous and systematic way. (Incidentally, this also applies to the Film and Literature Board of Review, the Advertising Standards Authority and the Press Council, and probably a range of tribunals and bodies whose work impinges on rights).

This isn’t an easy task. The BSA gets little in the way of BORA arguments from the broadcasters beyond a taliesmanic invocation of the right to freedom of expression. It gets almost no guidance from the High Court. The test laid down in the leading case of Moonen is virtually impossible for bodies like the BSA to apply, since it involves identifying different meanings rather than applying standards. The BORA itself sets nebulous standards, and its interaction with statutes like the Broadcasting Act and the Codes of Practice can be complicated. As Professor Burrows has noted, BORA vets of legislation conducted by the Crown Law Office and the Ministry of Justice are often opaque and unhelpful.

Still, it’s not an impossible task. The BORA requires proportionality. This means that benefit to society from upholding a particular complaint must outweigh the harm that’s done to freedom of expression. And that involves (as the courts are increasingly doing) looking to see why we value freedom of expression in the first place. If the particular speech in question is heavily supported by those rationales (such as political speech), the BSA should be slow to restrict it unless there is a very strong countervailing interest (such as great harm to reputation or an inaccuracy that might seriously mislead the public). On the other hand, types of speech that don’t serve those rationales (such as revealing private facts about someone without any public interest justification) may much more readily be restricted.

In our paper, we try to unpack this balancing/justification process and suggest ways that bodies like the BSA might fit it into their reasoning. To cut to the chase, here are a few implications:

Topics: Broadcasting Standards Authority, NZ Bill of Rights Act | Comments Off on The Broadcasting Standards Authority and the Bill of Rights

Tribute to John Burrows

February 7, 2008

The University of Canterbury’s law school held a conference in honour of John Burrows last weekend. It was called “Law, Liberty and Legislation” and covered the broad sweep of issues that Professor Burrows has expertise in – from statute and contract law to media law (he’s written the leading texts in all three).

On the media law front, there were presentations from Sunday Star-Times editor Cate Brett; Paul Norris, head of the school of broadcasting at Christchurch Polytechnic; Professor Nigel Gravells form the University of Nottingham; Vic’s privacy law guru Dr Nicole Moreham, President of the Law Commission Sir Geoffrey Palmer; and Ursula Cheer, associate professor at Canterbury. My partner Claudia Geiringer and I chipped in with a paper about the Bill of Rights and the Broadcasting Standards Authority.

Cate Brett spoke on the increasing problems for the laws of sub judice in a digital age. Cate is one of the few journalists I’ve heard who is able to talk thoughtfully and knowledgeably about the laws of contempt. She thinks prejudice to trials is increasingly likely to come from blogs and Trade Me message boards rather than the mainstream media. What are we doing about it? She thinks that the justice system might need to dirty its hands and engage with the audiences on the blogs and message boards in order to arrest prejudice, or explain the background to suppression orders. “An op-ed in the NZ Herald by Justice Randerson isn’t enough,” she said. I find it hard to disagree. (Cate was speaking under the Chatham House rule, but let me say this much. If she can have her arm twisted to include a paper in the forthcoming book containing the conference papers, you might get to see the whole thing).

Paul Norris had recorded his presentation on DVD. It tracked the history of cameras in courts (a development he had a large hand in, though he rightly gave credit for the initiative to the courts themselves). It was a nifty demonstration that in-court footage can provide an extra dimension to court reporting. (Still, what a court reporter needs most is a good understanding of the facts and issues in the case. Without that, it’s impossible to select the key soundbites and provide the right context. I’m not convinced that this is always done well, especially by reporters who come and go during the course of a trial…)

Prof Nigel Gravells talked about the recent UK cases that have looked at the relationship between copyright and freedom of expression. He’s worried that the courts still aren’t very good at grappling with the need to interpret the Copyright Act consistently with freedom of expression.

Nicole Moreham argued that privacy is essentially founded on dignity, which entails a need for others to respect our personal choices and feelings rather than using us a means to their own ends. She says the courts should be protecting people who have a “reasonable expectation of privacy” and that the extra requirement – publicity with a high level of offensiveness – is not necessary. The UK courts don’t have that extra limb, she notes. It follows that the Andrews case in NZ was wrongly decided. You might remember the case involved the broadcast, in a reality TV show on firefighters, footage of the Andrews’ (drunken) car accident just off the motorway, in which a distraught Mrs Andrews was shown saying some fairly intimate things to her husband while rescuers used the jaws of life to cut him from the wreck. The judge said they had a reasonable expectation of privacy in their exchanges, but that the publicity wasn’t sufficiently humiliating to be offensive. (For my part, I’m more inclined to criticise the judge’s other conclusion that there was public interest in those exchanges).

Sir Geoffrey Palmer made the radical suggestion that defamation law is dying out. In an age of multiplying platforms and celebrity culture, nobody is going to take the media seriously enough to sue, he rather thinks. I’m not sure I agree with that one. As long as there are people to besmirch others’ reputations unfairly, there will always be some besmirched with sufficient fury and resources to sue, I think.

Ursula Cheer reviewed the cases and research on the chilling effect of defamation laws. This complements her own recent empirical research on the chill effect. She’s still inclined to think that the chill is not as great as the media often crack it up to be. But she also supports an expanding the Lange defence to include stories about all matters of legitimate public concern, rather than just serious commentary on past, current and aspiring MPs. She has some more thoughts on the proper effect of the Bill of Rights on the law of defamation, but we’ll have to wait for her full paper to get the details…

Topics: Broadcasting Standards Authority, Contempt of Court, Copyright, Defamation, General, Internet issues, Media ethics, NZ Bill of Rights Act, Privacy tort, Suppression orders | Comments Off on Tribute to John Burrows

New Yorker cartoon

February 7, 2008

One dog to another: “I had my own blog for a while, but I decided to go back to just pointless, incessant barking.”

Topics: General | Comments Off on New Yorker cartoon

Right Charlies?

February 4, 2008

Was the Advertising Standards Complaints Board right to uphold a complaint about the Charlies “sunbathing” fruit-juice ad? Even after Charlies agreed to screen it only in adult-viewing timeslots?

It’s a typical piece of Marc Ellis larrikinism. He’s shown as a cartoon child spying on a buxom neighbour sunbathing nude (her cartoony breasts are strategically covered, first by a book and then, as the camera zooms in on them like, I guess, a kid’s attention zone, by the top of a fence). The image then dissolves into two hands lovingly rotating fruit over juicers. It doesn’t take a great stretch of the imagination to see a connection.

The advertising standards complaints board was plainly divided over this one. They considered complaints under five different heads, and were split on all of them. They concluded (by majority) that the ad, in that timeslot, wouldn’t cause widespread offence, or violate norms of taste and decency. But they found (by majority) that it breached the rule requiring social responsibility because of the child characters and the sexual overtones. They also upheld the complaint (again by majority) against using sex to sell unrelated products.

Note to those tempted to see this as an example of the excesses of the Nanny State: WRONG. The Advertising Standards Authority is not part of the government, but was set up by industry self-regulation.

Still, it is still conducting a public function and is therefore subject to judicial review, and to the Bill of Rights Act. Is there a possible case? I think there is. Although I’m told that the ASCB considers the Bill of Rights in every case, the decisions don’t mention it. (To be fair, neither do the lawyers’ submissions). It’s very difficult to tell how they use it. It’s not even clear that a rule as broad and vague as a requirement of “social responsibity” is sufficiently precise to count as “prescribed by law”. In any event, that very nebulousness ought to make the ASCB very cautious about the application of that rule. Here, the ASCB was divided, there was an element of humour, and I would have thought the case was generally fairly close to the line: all three tell against upholding the complaint. On the other hand, it’s hard to get past the finding that the ad was using sex to sell an unrelated product. (I’m not inclined to see the emphasis on “nothing artificial” during another cleavage close-up provided sufficient connection).

Overall, this strikes me as something that will quickly be filed under “quaint speech suppression”, like the BSA’s rulings in the 1990s that the taste and decency standard was breached by Lindsay Perigo calling Ministry of Education staffers “child molesters of the mind” and Deborah Coddington calling NZ on Air “Nazis on Air”. Personally I find the ad a bit sleazy, and it would tend to make me want to avoid the product rather than buy it, but I’m not sure the ad ban is really demonstrably justified.

Topics: Advertising Standards, NZ Bill of Rights Act | Comments Off on Right Charlies?

Eady listening

January 28, 2008

So, the law of privacy is largely settled now, David Eady was telling me on Friday.

(Heads-up: this is a brazen name-drop, and you are supposed to be suitably impressed by it. David Eady is Justice Eady, the British High Court judge who hears most of the media law cases. He’s also co-author  – with Victoria law school’s esteemed Dean, Tony Smith – of the leading text on contempt of Court.)

Justice Eady has been at the centre of several seismic shifts in media law over the past decade, including the rapid creation of an action for infringement of privacy (under the guise of breach of confidence), and the development of what’s effectively a public interest defence to defamation. The catalyst for change has largely been the passage of the Human Rights Act, which shifts the Eurpean Convention on Human Rights and Fundamental Freedoms into centre stage in British law. The Convention expressly protects privacy; our Bill of Rights Act doesn’t. But developments in British law, and especially the role of free speech, are still sure to be influential over here. So his take on the trends is fascinating. Here are some highlights:

Topics: Injunctions, Privacy tort | Comments Off on Eady listening

Handy info for Contempt lawsuits

January 21, 2008

Today’s DomPost has some useful information for those advising the media on contempt of Court issues. The average length of time between committal and trial, in the District Court and the High Court, is just under a year. Add to that an average of six to nine months between arrest and committal, and you’ve got more than 18 months between arrest and your average trial. For big cases, it’s likely to be longer. Given that the Court of Appeal has said that in the normal course of things, potential jurors’ memories of particular publicity can be expected to fade in six to eight months, that means publicity around the time of an accused’s arrest will have to be seriously splashy and prejudicial before it will be taken to have created a real risk of affecting the fairness at trial.

Topics: Contempt of Court | Comments Off on Handy info for Contempt lawsuits

Canada moves toward expanded libel defence

January 16, 2008

Canada is finally jumping on the US, UK, Australian, South African and NZ bandwagon and providing protection to political (and other public-interest) speech against defamation actions. The Ontario Court of Appeal has created a Reynolds-type privilege for “responsible journalism”. (It’s all obiter, though, and the Canadian Supreme Court has yet to confirm the new direction).

They’ve gone with the UK’s Reynolds/Jameel form of the defence, which is not closely limited to political speech, as in NZ and Australia.

Still, this case helps confirm that our courts are likely to look to the factors set out by Lord Nicholls in Jameel as indications of whether journalists are acting responsibly, and are therefore protected by the defence. This underscores the importance of journalists behaving in line with those factors if they want this extra defamation protection. For those unfamiliar with them, here’s an outline (my book contains more detailed guidance):

Note that there are some who say this is unfair to plaintiffs whose reputation has been besmirched by false, but responsible journalism, because they are left without a remedy. I’m not one of them. One of the key factors in the question of “responsibility” is getting and reporting the other side – so almost all plaintiffs will at least be given a platform to put their views.

Topics: Defamation, General | Comments Off on Canada moves toward expanded libel defence

A prediction about the Electoral Finance Act

January 14, 2008

I don’t want to say too much about the Electoral Finance Act. Some of you will know that I have been the spokesperson for the Coalition for Open Government, which generally supported the new law, arguing that it’s much better than the system we used to have, serves important democratic ends, and is much less of an imposition on free speech than its opponents claim. But in this blog, I’m wearing my media lawyer hat. And wearing that hat, let me make this prediction: the EFA will not produce a swag of litigation.

If I’m right about this, then most of the political journalists in this country, along with many MPs and a horde of bloggers, ought to be extremely embarrassed. They have been confidently telling us that the EFA will trigger a deluge of court cases.

I think they’re wrong, and here’s why:

— For anyone spending less than $12,000 on electioneering, the only real issue is whether they have put their name and address on the ad. We’ve seen Andy Moore get warned for not putting his name to his Don’tVoteLabour site. (In the Herald, Andy rather unconvincing told us that one of the reasons he didn’t put his name on the site was that he lived at home and wanted to protect his family. No doubt his family will feel much safer now that he’s discussed it in the Herald. The Herald itself was also outraged by this. How can you justify a policy that requires people to reveal their identities before speaking out on public issues? Of course, the Herald itself doesn’t require its correspondents to provide their names. Oh, wait…) It was already the law that you have to put your name on electioneering handbills and posters and newspaper ads. This reform can be seen as simply updating that law. My point: hardly anyone ever got prosecuted for breaching this law. I doubt it will be much different with websites. If someone refuses to comply with a gentle warning from the Electoral Commission, they can be a martyr to the following proposition: “it’s an outrage that I have to tell the people I’m trying to influence who I am (though I haven’t ever objected to similar name requirements on fliers and posters and newspaper ads).” I think the number of people who will want to take that stand is limited.

— Those who neglect to put their name on a placard during a political demonstration or on a usenet post will not be prosecuted. They are covered by legislative instruction to the Electoral Commission not to worry about minor infringements.

— Those wanting to spend more than $12,000 to spend on electioneering have to register with the Electoral Commission. We’re down to a very small number of people and organisations here. It’s possible that one might decide to flout this law by not registering. I think a prosecution would be likely to demonstrate that: (a) not that many people need to register, (b) the registration requirement is to offer an additional guarantee that the public know the identity of big-spending election advertisers, and (c) registration is not that onerous. None of it is very hot publicity for the anti-EFA cause.

— Someone may decide to flout the $120,000 spending cap on third party electioneering, to show that it’s an unfair restriction on their speech rights. Only a handful of people and organisations can afford to do this, and they would risk drawing attention to that fact. Tim Shadbolt might get prosecuted, but I rather think he’ll be perceived as using the EFA as a publicity stunt. It’s tough for him to argue that he hasn’t been able to get his message about SIT funding across to the voters.

— The limits are much lower for constituencies (register at $1000; cap at $4000). If there is legal action, it’s much more likely to be at the local level, I think. I expect this will most often be due to lack of knowledge of the law. Where they are discovered, a warning may be thought sufficient.

— The legislation only applies to ads aimed at influencing voting behaviour. The Electoral Commission has interpreted this very narrowly, so it catches only a small set of messages: those that are explicitly aimed at the election. The Commission is providing a lot of latitude for “issue ads” even when these may have some effect on the election. So those who might want to prompt a lawsuit to demonstrate that the law is (a) unclear, or (b) too restrictive, face electoral authorities who have drawn a fairly clear bright line which allows maximum play for free speech. Anyone who wants to provoke a prosecution will have to push the line very hard, and most ordinary people will end up thinking: “Huh? But that really is an election ad. This hardly shows that the law casts its net too widely”.

— A prosecution would have to go through two layers: the Electoral Commission would have to decide it’s infringing and serious enough to refer to the police, who would then have to decide whether to exercise their discretion to prosecute (and let’s not forget that they didn’t prosecute anyone under the Electoral Act last election despite good evidence of a pile of electoral offences).

— Could someone try to engineer a case before the courts to get a ruling on a particular ad? Courts are reluctant to issue declaratory judgments on moot points.

— Any prosecution is likely to occur after the election, rather negating its election publicity value.

That’s not to say that there are not grey areas in the law. Just that they are not nearly as likely to be litigated as the EFA’s detractors seem to think, and certainly not before the election.

What there will be, I guess: a barrage of stories about the evils of the law, and its lack of clarity; an increased involvement of lawyers behind the scenes giving advice on ads; and a range of people and organisations exploiting loopholes in the new law. The big story, I suspect, is not that the EFA is an outrageous blow to freedom of expression, but that it does little to achieve its purposes. Watch for the bill’s detractors to slyly switch critiques.

Topics: Electoral speech, General, Media ethics | Comments Off on A prediction about the Electoral Finance Act

A potty Potter-right copyright case

January 11, 2008

Good grief. JK Rowling is joining the Idiot Copyright Lawsuit club, suing the folk who want to publish in book form the material on website the Harry Potter Lexicon. (She’s happy with the website). The book would be a sort of encyclopaedia of Potterworld. The sort of encyclopaedia, in fact, that she would like to write herself. But unless it’s going to grab great big chunks of text from her books, or claim some sort of official authorisation that it doesn’t have, there’s nothing illegal about this. You don’t have copyright you can assert against other people discussing your work. At least, you don’t in the Muggle world. In fact, as Tim Wu explains on Slate, Rowling’s threats make her sound “entirely too much like a Death Eater”. She has obtained an injunction for now. Let’s hope the federal courts give her the old avra cadavra.

Topics: Copyright, General | Comments Off on A potty Potter-right copyright case


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