What is this “Google” of which you speak?
January 9, 2008
The Listener’s cover story this week is headed: “Strike the best sites on the internet”. Boy, does it deliver. Apparently, there’s this thing called “Google” that allows you to search trillions of websites. And there are other “search engines”, too. The story even mentions one. And that’s not all. Who knew that the Guardian and the New York Times had websites – that you can, like, check out for free?! Looks like there’s a cool site called something like “Arts & Letters Daily” (strange name though!), and a really useful encyclopaedia-type thing called “Wikipedia” (also really strange sounding, but good). Rounding out the list of useful sites are Project Gutenberg, the Art Renewal Centre, and picwash.
Believe it or not, there are actually more websites than that; there’s a bigger list online, including websites for NZ newspapers!
The Listener has also given us helpful advice about how to send emails. Thanks, Listener!
Question for discussion: what proportion of the Listener’s readers will find this information useful? It’s a serious question. I use the web a lot; maybe it’s me that’s out of touch. Am I wrong to suggest that many more readers will find this story disappointing and even insulting than will find it helpful?
Topics: Media ethics | Comments Off on What is this “Google” of which you speak?
Did the Minister of Commerce defame Green Acres?
January 8, 2008
On Summer Report this morning, the chief executive of ironing franchise Green Acres accused Commerce Minister Lianne Dalziel of defaming his company. He said she told a bunch of scammed investors that Green Acres was under investigation by the Serious Fraud Office. In fact, he said, it was the fraudulent franchisee who was under investigation, not the company, which had lodged the complaint in the first place. He called for Dalziel to apologise.
This raises an important question: why the hell is an ironing franchise calling itself “Green Acres”? [Update: I gather Green Acres is primarily a gardening and lawn maintenance franchise]
There’s also an interesting defamation issue here. Did Dalziel defame the company?
Probably not. But the media might be doing so.
First, a few lawyerly caveats. I don’t know what Dalziel told the meeting of franchisees. I don’t know the scope of the SFO’s investigation. I don’t know the precise relationship between the alleged scammer and the company, though chief exec Andrew Chisholm was anxious to let us know that he was not an employee but a contractor. There’s an interesting legal issue about whether the company can be held responsible for the conduct of one of its franchisees (and much will turn, I expect, on the degree that the actions of the company helped defrauded franchisees to think that the scammer was acting on its behalf) – but I’d need to know a lot more before addressing that.
The starting point: it probably is defamatory to say that a company is under investigation for fraud if it isn’t. The company would have to prove financial loss (or likely financial loss), but if the allegation reflects on particular people (such as the CEO), they would only need to show that the defamatory words were conveyed. Of course, this will depend on what the Minister said and what the SFO is investigating.
An aside: if it is defamatory to talk about the SFO investigation without making it clear that it’s into the man and not the company, it looks like National has made the same mistake.
But the Minister almost certainly has a defence: qualified privilege. This defence (not to be confused with the Lange defence, which is a sub-species) used to baffle me as a law student. It applies when one person has a “social, moral or legal” duty or interest to convey some information, and someone else has a corresponding interest or duty in receiving it. What does that mean? It’s best explained by example. If you dob me in to the police for running a meths lab, and it turns out you got it wrong, I won’t be able to sue you for defamation, as long as you haven’t acted vindictively. You’ve got a social or moral duty or interest in tipping off the police. They have a corresponding duty to receive such information. On the other hand, if you went to the media, the courts would say that you’d exceeded your privilege: the whole public don’t have a corresponding interest in this information. You’d probably lose the defence.
Here, the Minister of Commerce’s responsibilities include helping fraud victims. She spoke to them alone, it seems (it might be different if there were reporters present). If she got some facts wrong about the scope of the SFO investigation, it doesn’t matter, because they were spoken on a privileged occasion.
If the Minister spoke “maliciously” she could lose the privilege. Malice means, essentially, bad faith; having an ulterior purpose. Although there was a political component to the meeting, I’d be very surprised if it could be shown that the Minister’s statement was malicious.
Still, this defence doesn’t protect the media from making the same statement. Nor does it protect disgruntled franchisees from saying that the scammer was an employee (as one said on NatRad this morning) if in fact he wasn’t, or that Green Acres have been slow to act, if in fact they haven’t.
The media are potentially in the gun for reporting such comments, though things get complicated here. They’d have a goodly range of arguments: bane and antidote, honest opinion, an expanded Lange defence, defence against attack, neutral reportage… which I’m not going to go into here. Perhaps most powerful of all is the fact that not many people sue for defamation.
Topics: Defamation | Comments Off on Did the Minister of Commerce defame Green Acres?
Scott Watson battle in media
January 6, 2008
Keith Hunter thinks he’s not guilty, and has produced a documentary and book about it.
North & South and the Herald on Sunday are weighing in on Watson’s side.
Meanwhile, the Listener is weighing in for the prosecution, with a cover story featuring interviews with prosecutor Paul Davison QC and Deputy Police Commissioner Rob Pope.
Despite the spate of recent media coverage, alas, we’re not left much better informed about whether or not Watson did it.
I reviewed Hunter’s book for the law society mag LawTalk last year. I said I thought his book raised serious questions about Watson’s guilt, and about the operation of the justice system. (Incidentally, today’s Herald on Sunday story, with its front page tag “SOUNDS MURDERS: THE NEW EVIDENCE”, in fact contains no new evidence at all. It merely repeats the old evidence in Hunter’s book. The only thing that’s new is that Watson says he’d be prepared to give evidence if he was given another trial. Well, bully for him. In fact, he had the right to give evidence at his first trial, and chose not to, no doubt on the advice of his legal team, who are terrific lawyers. It’s not especially surprising that his conviction may have prompted second thoughts about that call. But those second thoughts are hardly compelling all by themselves. The question to ask, which it seems the HOS didn’t, is: what evidence would he give? The HOS might also have pressed him (or at least his lawyers) on what he did with the clothes he was wearing on that fateful night – something that is not adequately dealt with in Hunter’s book, I think. If Watson were to give evidence, he would face some very uncomfortable cross-examination. But at least the HOS’s journalists are thoughtfully sparing him that for now.)
The Listener article errs – and more seriously – in the other direction. The story was a great opportunity for the Crown to provide its response to Hunter’s apparently meticulous criticisms and restore the public’s faith in the justice system. What did Hunter get wrong? What compelling evidence of Watson’s guilt did he slide over? Why are his arguments unconvincing?
In particular: why are three key witnesses now mistaken about who it was who got on the boat with Ben and Olivia, and what sort of boat it was? Aren’t the identifications of almost all the other witnesses, who almost uniformly described the mystery man’s hair as medium-length, unkempt and wavy, rather dodgy? Hasn’t Hunter proved it’s impossible for the Blade to have made it out to Cook Strait and back in the time they suggested? And that Watson couldn’t have made it back ashore at the time the Crown said he did? What about all the sightings of the boat they insist doesn’t exist?
I hope there are good answers to the questions. The Listener did raise some of these questions, but made little effort to press Davison and Pope about Hunter’s criticisms. Certainly, there’s a place for the Crown’s elimination-of-all-other-possibilities reasoning, though we’ve already heard it. And it’s useful to be reminded of some of significant evidence against Watson, including his professed plans to kill a woman.
But what’s their answer to Hunter’s specific criticisms? Can they answer them?
Instead, the story is basically a platform for Davison and Pope to trash their detractors, and repeat what little they’ve already said about the prosecution. The jury heard all the evidence, and that’s what counts. The Court of Appeal rejected the appeal. Criticism is uninformed and “unsophisticated”. Hunter and the rest of the media haven’t gone into the trouble of getting into the detail of the case. (This is extremely insulting to Hunter. Read his book, and you’ll see he has gone into exhaustive detail about the case).
I still have strong doubts about the conviction. But maybe that’s because I’m being “sensationalist” and “superficial in the extreme.”
Topics: Media ethics | Comments Off on Scott Watson battle in media
Solicitor-General to prosecute Fairfax for contempt
December 21, 2007
The DomPost is reporting that the papers that ran the “terrorism files” story are to be prosecuted for contempt. The S-G has also set his sights on DomPost editor Tim Pankhurst, but not the editors of the Press or the Waikato Times.
The essence of the allegation is that the stories will interfere with the defendants’ right to a fair trial, by tainting them as terrorists in the minds of any juror. And ask yourself this: if you were a juror on a gun charge relating to someone from Ruatoki who tries to run a “lawful possession” defence, what would be going through your mind? You’ll be thinking “the bugger’s one of those terrorists”. It doesn’t help that none of the accused were named in the story. In some ways, that just makes it worse. I gather that most of the really inflammatory remarks that were published were made by only three or four of the accused. But all the others are now tarred with them. Sure, the trials will be held in Auckland, but Stuff put the story on the web, and it had a very wide readership.
There’s an added ground (or perhaps just a factor that makes the alleged contempt worse): it’s a crime for the media (or the rest of us, actually) to disclose material obtained via an interception warrant. It seems clear that the story contained such material.
The story doesn’t mention that some of the published material may have been suppressed by a District Court judge in some of the cases. I don’t know whether that forms part of S-G’s case.
It strikes me as a strong case. But it’s not open and shut. The issue is whether the coverage created a “real risk” of prejudice to the administration of justice, especially including someone’s right to a fair trial. The DomPost will argue that the trials are likely to be a long way off, and the Court of Appeal has said that potential jurors are likely to forget publicity after six to eight months. (The court also said potential jurors are likely to remember the publicity for longer if it’s particularly striking or sensational…). The DomPost will also argue that it had already been announced that the defendants wouldn’t be facing terrorism charges, only arms charges. Because Arms Act charges are largely a “tick the box” matter (did they have a gun? did they have a licence? etc), there’s not much room for prejudice to affect a jury. Justice Potter in the Mossad spy case accepted this sort of reasoning in relation to passport fraud. (Still, some experts I’ve discussed this with doubt this conclusion, believing that a hostile jury can always find ways to hold that sort of knowledge against the defendant). The DomPost will also say it minimised the harm by not naming individual defendants, so jurors couldn’t have anyone particular in mind in connection with any particular statement. And they’ll no doubt call in aid the NZ Bill of Rights Act, though that didn’t work too well in the Court of Appeal case I mentioned above.
Interesting times ahead.
Topics: Contempt of Court, Journalism and criminal law | Comments Off on Solicitor-General to prosecute Fairfax for contempt
Editors and name suppression
December 19, 2007
Are editors liable if their publications breach name suppression? Not if they didn’t read the story, and it was reasonable for them not to, according to a British case. The story identified the victim of a sex offence. But the editor said he hadn’t read it. It was on page 35, and the editor had been on holiday shortly before the issue was published. (The company that published the story was still liable, though).
Would it work here? The editor was relying on a statutory defence that doesn’t exist in New Zealand. But the same sort of factors may be being applied. Editors rarely get charged in NZ for breaches of suppression orders. I can recall two cases: Louis Pierard of Hawke’s Bay Today and Paul Thompson of The Press – both charged for breaching suppression rules by identifying sex victims. Thompson hadn’t read the story; the charges were dropped (after some expensive legal wrangling). The reporter agreed to accept diversion. Fairfax pleaded guilty. The same went for Pierard: the publisher (APN) was found guilty but the charges against the editor were dropped. (There’s a terrific story “Applying the law, or getting personal?” by Geoff Collett of The Press (not online; 23 Dec 2006), that explore the issues in a very balanced way).
The bottom line: editors aren’t likely to be charged very often (though there mayt be some increase in the probability for editors who have rubbed local police the wrong way). And if they are, they’re unlikely to be convicted unless it’s clear they’ve seen the story before it went to print. Publishers, however, are more likely to carry the can for breaches.
What’s disturbing, though, is that there are literally hundreds of stories that reveal details about people whose names have been suppressed – from victims to defendants – sufficient to identify them. It seems very unfair on the few who are singled out for punishment.
Topics: Name suppression | Comments Off on Editors and name suppression
Has John Edwards ripped off Coldplay’s “Clocks” too?
December 14, 2007
Have a gander at this. Has US Presidential candidate John Edwards breached Coldplay’s copyright like John Key did? Or has his production team done just enough to tweak the track?
Topics: Copyright, Electoral speech, General | Comments Off on Has John Edwards ripped off Coldplay’s “Clocks” too?
Journalist sacked for swearing at boss
December 14, 2007
The Employment Relations Authority has upheld the Press’s sacking of sports journalist John Coffey. Sports editor Coen Lammers had added in some words to one of his cricket stories. The words were “New Zealand’s youngest in a decade”. In fact, the phrase should have been “New Zealand’s youngest in over half a century”.
When he saw the change (incidentally, before the paper was put to bed), Mr Coffey was not best pleased. He said something like: “leave my fucking copy alone” and “you always fuck it up” and “don’t feel too bad about it because they (pointing at the editors’ office) also fuck things up.”
This needs to be said: there is no rage quite like the rage one feels when someone fucks with one’s copy.
(This also needs to be said: there is no gratitude quite like the gratitude one feels for someone who corrects one’s embarrassing cock-up before it goes to print).
Is this really a sacking offence? We’re talking about a newsroom here. We’re talking about a sports journo. There are newsrooms where nobody thinks you’re serious about something unless you use the F-word.
The rest of the ERA’s decision makes it clear that there’s more to the firing than one outburst. Coffey had twice been formally warned about offensive and confrontational behaviour in the preceeding months: once for threatening to “wring the fucking neck” of a subeditor, and once for calling Lammers “a fucking idiot”. The first warning came with an offer of confidential counselling which he didn’t take up. The second warning said Coffey may be dismissed if it happened again. The editor gave him a full opportunity to explain himself, but in the end wasn’t satisfied, and fired him. No doubt, beneath the narrative of the legally salient facts, there’s a more complex undercurrent of relationships going sour.
I’m not an employment law expert, but the firing strikes me as harsh but not outside the law.
Amusingly, the NZ Herald’s report of the case mixes up the botched phrase added to Coffey’s story with the phrase that ought to have been added. No doubt some fucking idiot of an editor screwed with the copy.
Topics: General, journalist employment issues | Comments Off on Journalist sacked for swearing at boss
Christians vs South Park: the sequel
December 14, 2007
And I’m afraid it’s 2-0 to South Park.
The BSA has once again refused to uphold a complaint against a sacreligious South Park show.
In the episode complained about, a cut-out picture of Jesus says to George Bush “Look at me, I’m Jesus. Would you like me to crap on you Mr Bush?”, and then proceeds to spray brown pellets across the screen, making loud farting noises.
If you don’t think that’s funny all by itself, there is context. The programme was mocking the squeamishness and hypocrisy of the US TV networks and public in censoring pictures of Mohammed, and also satirising itself for its part in the arms race of offensiveness in US cartoon shows.
It’s a close call, though, whether the episode was funnier than the complaint, which argued that South Park breached the law and order standard by (among other things) dissing the US flag. It also said the programme also breached standards of taste and decency and denigration (no, but worth a shot, I suppose) and accuracy, privacy, fairness and balance (WTF?).
Really, these sorts of complaints (the last one went to the High Court) do more harm than good to the Christian cause, I would have thought.
Topics: Broadcasting Standards Authority | Comments Off on Christians vs South Park: the sequel
DomPost editor says a bunch of interesting stuff
December 12, 2007
DomPost editor Tim Pankhurst gave a very interesting keynote address at the Jeanz conference called “The Power of Print”. Here are some highlights:
The relevance of print
The DomPost’s coverage of Louise Nicholas, Donna Awatere Huata, the Capital and Coast Health issues and the “Terrorism files” shows that print has “undiminished power” – in the sense that these stories wouldn’t have had the same impact if they had been purely from a web-based news source. (The second part of the sentence is unquestionably right, though I’m not sure it proves the first part).
The growing importance of the net
Newspapers are still profitable, but circulation is in decline and “old established methods” or news gathering and presentation are under threat. The challenge will be adapting. The web is starting to pay it’s own way: Fairfax’s digital arm is now contributing 14% to the company’s bottom line, if I understood Tim correctly. Wow.
He also stuck a thumb in the eye of the newspaper-doom merchants. “If any sector of the media should be worried [about convergence], it is television.” Evidence: a clip on Stuff of two DomPost journalists interviewing each other in the newsroom immediately after Graham Henry’s re-appointment. The audience will like the grainy immediacy, Pankhurst says. (Isn’t the new 24-hour news channel something of an answer to this? And won’t the broadcasters be looking to use their websites in similar ways, with more professional production? Still, the point is intriguing, because I suspect that people do turn to the newspapers’ websites for news, rather than the broadcasters’ ones, and that’s certainly an edge they could exploit).
DomPost 1 NZ Herald 0
Stuff beat the NZ Herald by five minutes with the story on Henry’s reappointment. Suck on that, granny!
The thinking behind the “Terrorism Files” story
Tim Pankhurst was very candid about the DomPost’s decision to run a front-page story about the content of the police affidavit. He wanted to show the public “what all the fuss was about”. He said it wasn’t a difficult call. How could we be in contempt, he wondered, when the situation is so confused? Even the Solicitor-General was saying terrorism laws were a mess. There was widespread criticism of the police actions and the affidavit helped explain to the public why they took the action they did.
The DomPost figured terrorism charges couldn’t be laid; the story was highly unlikely to affect trials on arms charges that were a year out, and judges and juries are robust enough to put aside this sort of publicity. The paper removed the names so that particular defendants wouldn’t be identified.
He said the paper took legal advice, which was encouraging enough for them to go ahead. He summarised the advice as: “it was along the usual lines: there is risk, but on balance, we think you can get away with it, but it will be on your head.” Later, he said that the paper didn’t want to compound this risk by posting the whole affidavit on line. “We were pushing it, as it was, legally.” (This advice may not sound very helpful. But the laws of contempt are vague enough that media lawyers have to say this sort of thing all the time. Of course, I haven’t seen the legal advice. But this summary of it rather downplays the extraordinarily prejudicial effect of the story, even though the defendants weren’t named. I would have expected this to be identified as a high risk story. I would also have expected the advice to explore whether some of the published material was suppressed, and whether the paper would be breaching the Crimes Act, which prohibits the disclosure of material obtained by interception warrant. (Perhaps it did). I also wonder about the wisdom of discussing that advice, on the record, in front of a roomful of journalists, when the paper is corresponding with the Solicitor-General about a possible contempt prosecution. Also, isn’t this explanation a bit at odds with the paper’s own unequivocal assurance to its readers that the story was lawful?).
An aside
(Still, isn’t it refreshing that an editor is prepared to stump up and justify his publication decisions? Former editor of the Press, Paul Thompson, was also very good at this. This is to be contrasted with the appallingly craven refusal of the editorial team at the NZ Herald to front up and answer questions about their campaign against the Electoral Finance Bill).
Terrorism files II
Tim Pankhurst explained that the DomPost had thought hard about how to “maximise such a story”. Should they put it online? Would that hurt casual sales? No, he decided. If we didn’t put it online, someone else would. In the event there were more than 3,500 extra casual sales, a huge spike in online traffic up to 150,000 hits. This sort of result, and the burgeoning interest in online reporting generally, means “it is a wonderful time to be in journalism,” he said.
He also noted that Fairfax management stood by the decisions of its editors. He had advised them that the story was coming. They have backed us, he said. (What’s particularly encouraging about this is that it answers concerns about the foreign domination of our media. I’ve heard the same thing about lack of editorial dictation from owners from many different people. I’m inclined to think that the impact of foreign ownership is much more closely related to the owners’ policies on investing money in good journalism – or conversely, screwing money out of the news operation).
Tim Pankhurst on the NZ Herald’s Electoral Finance Bill campaign
He was a bit bemused. “Good on them,” was his attitude. But he thought it would be boring the Herald’s readers to tears.
Populist? You bet
Pankhurst has no time for people who whine about stories on Paris Hilton. “Get real”, he says. Those stories are popular. Readers want them. Being popular is a sign of business success, a necessity, really. Besides, news would be unremittingly dull if it was filled with the critics’ ideas of worthy stories. Should we dump the Beckham coverage too? What you need is a mix. (Sorry, Tim, I’m a grinch. I like to think that worthy stories can be told in an interesting way. And I think that it’s disingenuous for the media to say they are simply feeding the public appetite for fluff, when they’re actually instrumental in creating that appetite. I think there’s a place for interesting-but-not-especially-important stories, but the media are overdoing it, and it’s creating an ever-shrinking hole for public discussion of important issues. Still, I think newspapers (and public radio) are doing the best job of maintaining that discussion. I have a hunch that Tim and I aren’t really so far apart on this issue.)
Those damned blogs
You get the feeling Tim Pankhurst is a bit ambivalent about blogs. “They have little news credibility, but they do use up limited news consumers’ time”, he said. Time that should be spent looking at newspapers, damn it!
Yet he’s still prepared to host a range of blogs on Stuff’s website. Presumably these have more news credibility.
[Note: some quotes above are very slightly changed from the original post. I have since watched the video of the speech and corrected some small errors.]
Topics: Contempt of Court, Future of journalism, General, Internet issues, Journalism and criminal law, Media ethics | Comments Off on DomPost editor says a bunch of interesting stuff
Has fairness swallowed privacy?
December 11, 2007
What would you do with this complaint?
During a Close Up item about the “naming and shaming” of drunk drivers by a Wellington newspaper, a woman was approached outside court after being convicted of her second drink driving offence. Although the woman declined to be interviewed for fear of losing her job, she was shown running down the street to get away from the reporter, and her age, marital status and salary were reported. Her face was initially pixelated, but she was “unmasked” and named later in the item.
Interestingly, it wasn’t a privacy complaint. (The complaint wasn’t made by the woman, but by a couple who watched the programme and thought it was unfair on her). Privacy might have struck some problems: was her conviction a private fact? Was there public a public interest defence? Was she “vulnerable” so that her privacy might be infringed, even though she was in a public place?
The BSA didn’t have to ask those questions. But it still upheld the complaint – on grounds of fairness. The woman was singled out and humilated, they said. They were particularly concerned about the footage of her running from the reporter, but they also found the “unmasking” at the end “sensational and gratuitous”. TVNZ singled her out and used her as an example. It was mean (the BSA didn’t use that word, but that’s the flavour.) The BSA also said that the result might well have been different if the woman was a public figure.
So: has fairness swallowed up privacy?
I’ve long suggested that everyone who claims breach of privacy should add in a claim for unfairness, even though you have to go to the broadcaster first, and can’t get damages for fairness (you can for privacy). This case is more evidence of the wisdom of this course. When the elements of privacy aren’t quite there, what looks like a privacy issue often falls within fairness. Hidden cameras are argued under both standards.
Did the BSA get it right? We’re talking about a drunk driver here. Doesn’t she deserve shaming? Just because other drunk drivers don’t get similar treatment – does that mean she shouldn’t get it either? Yet TVNZ’s treatment of her was pretty horrible. I’m still not quite sure where I stand on this one.
Topics: Broadcasting Standards Authority | Comments Off on Has fairness swallowed privacy?
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