Read this, if you haven’t already
May 21, 2013
Andrew Geddis nails the government for another constitutional abuse.
Topics: General | Comments Off on Read this, if you haven’t already
Defamation and satire
April 24, 2013
Memo to anyone thinking of suing or threatening someone else for defamation after that person made fun of them.
Don’t.
It’s not that the law clearly protects humorous speech and satire. That question is a bit vexed. It’s defamatory to say something that brings another person into ridicule. So it looks like that is fairly easily satisfied. Actually, those looks are deceptive.
But that’s not the reason not to bring the threat. The reason is that you will invariably look like a complete plonker who can’t take a joke. This is what has happened, I think, to Colin Craig.
(Also, unless you want to look even more like a plonker, try to refrain from admitting that the article you’re objecting to is obviously satire when your lawyer’s letter says it “cannot be dismissed as satire”.)
If that’s not enough, there are also legal reasons not to threaten defamation.
For a start, in many cases, a court will find that the article would not have been understood in a defamatory sense. That is, it won’t affect your reputation because everyone will realise that it’s made up. That’s particularly the case where there are strong contextual indications that it is satire (such as other, obviously made up quotes in the story, obvious exaggeration, a ridiculous headline, and a bunch of other equally silly stories surrounding the article “Bob Parker waiting to be returned to space). Be aware that the courts are also starting to accept that online speech is often to be taken with a grain of salt.
You might be frustrated that some people come up to you and say “Damn, Craig, I was surprised to see you say that”. You can’t line up some people in court to say what they think the article meant. That’s a question for the court to determine itself, on the basis of what some hypothetical ordinary, reasonable reader would have thought.
But that’s not the end of it. The plaintiff would have to identify a “sting” – that is, the barb between the lines that says something bad about him. What is it here? Here’s what he was (falsely!) quoted as saying:
Williamson likes to talk about big gay rainbows,” said Craig, “but it would help if he understood what the rainbow actually means. After Noah’s flood, God painted a giant rainbow across the sky, which was a message that he would never again flood the world, unless we made him very angry. And we have.”
What is the sting here? That he has extreme Christian beliefs? It’s not entirely clear – and I see that Mr Craig’s lawyer didn’t identify one. Once such a sting is spelt out, as it must be, it can – even in humour cases – then open up some other defences. It might be argued that the sting is true, or that it’s honest opinion, or that it’s covered by qualified privilege.
Those defences can be problematic in humour cases (“Oh, of course I didn’t intend it to be taken seriously, but if it was, it was my honest opinion”.) But those defences can’t be dismissed out of hand. I would expect a court to be sympathetic to an honest opinion defence in many satire situations.
I note that Colin Craig has reportedly withdrawn his threat. Good on him. But too late to avoid looking like a plonker.
Incidently, The Civilian handled the whole thing with aplomb, I think. He quickly added an amusing clarification that removed even the faint possibility that anyone could any longer regard it as defamatory. But he didn’t accede to Mr Craig’s more unreasonable demands. Well played, that man.
Topics: Defamation | Comments Off on Defamation and satire
Information-sharing by the government: deja vu
April 11, 2013
Radio NZ is reporting that:
The Government is considering a massive expansion of data-sharing between ministries and agencies and has asked the Treasury to assess the potential impact on people’s privacy.
This seems to be a closely-related extension to the recent information-sharing legislation, which was preceded by a ministerial briefing on information-sharing by the Law Commission.
So, why this:
The Treasury has advertised for a consultant to assess assess the privacy implications of greater government data-sharing, and is seeking bids for the work.
Why isn’t this being done by the Law Commission (which incidentally has also done a vast amount of other work on privacy issues recently)? Or by the Privacy Commmissioner, who might be expected to have some relevant expertise too?
Topics: Privacy Act | Comments Off on Information-sharing by the government: deja vu
Review of law of contempt: deja vu
April 11, 2013
The Law Commission has announced that it will review NZ’s laws of contempt of court. This will involve a discussion paper about the issues, to be issued next year.
I wonder how this fits with another issues/discussion paper commissioned by the government and issued almost exactly two years ago: Reforming the New Zealand Law of Contempt of Court – An Issues/Discussion Paper, by Tony Smith, the co-author of the leading text book on contempt.
Perhaps the idea is to produce issues papers every two or three years and hope the problems sort themselves out.
Topics: Contempt of Court | Comments Off on Review of law of contempt: deja vu
Interim injunction against EQC blogger
April 10, 2013
I feel as if I write this same thing about once every year. Someone rushes to court to get an injunction preventing the release of information. It’s based on breach of confidence. Here it’s the Earthquake Commission seeking to prevent the release of a database containing assessments about 83,000 Christchurch claims.
The court grants the injunction, without notice to the other side. Usually, as here, there’s another hearing in the next day or two. The defendant scrambles to instruct a lawyer, and the lawyer has some very limited ability, on very short notice, to make some arguments. Then the interim injunction is confirmed. As here.
Collins J’s decision is available on the “decisions of public interest” page of the courts’ website – see Earthquake Commission v Unknown Defendants. (Good on Justice Collins and the court staff for getting this up so promptly, by the way. That seldom happens).
And here’s the thing I always say. I think there may be good grounds for the injunction. But I am shocked that the court has failed to address basic aspects of the law.
The most glaring one here is that this is government information. In such cases, the plaintiff needs to go further than asserting and proving the basic elements of breach of confidence: that the information has the necessary quality of confidence, that it was imparted in circumstances importing an obligation of confidentiality, and that unauthorised disclosure has occurred or is threatened. (Those are usually easy to satisfy). When a government agency wants to keep information secret it has to prove something more:
In the case of a government plaintiff, it will not succeed unless it can show that it is in the public interest to enforce secrecy.
That’s a quote from NZ’s leading textbook on media law (Burrows and Cheer, Media Law in NZ, 6ed, 288) citing authoritative UK and Australian authority. This is a significant hurdle for a government plaintiff and the EQC is a statutory body. How was it overlooked?
Even putting that aside, the blogger concerned put forward a defence of public interest. Once raised, that surely needs to be addressed in assessing whether there was a sufficiently compelling case to found an injunction. The judge didn’t even mention it.
How sufficiently compelling must that case be? Collins J applies an arguable case threshold. I’ve always felt that the Court of Appeal should be taken seriously when it said, in the Fahey case:
Any prior restraint of free expression requires a much higher threshold than the arguable case standard…jurisdiction to restrain the proposed publication is exercisable only for clear and compelling reasons.
This approach was endorsed by Henry J in the A-G of Wales case, who said a “stricter approach” may be required in breach of confidence cases when free speech is at stake (which will be most of them, I’d imagine.) That high threshold is applied in defamation and privacy cases.
Nor did the judge apply the Bill of Rights, despite the fact that he cannot by law grant an injunction that affects free speech rights unless he finds that to do so is demonstrably justified in a free and democratic society. The courts have laid down principles for assessing that. Not only did he not apply the Bill of Rights, he didn’t even refer to it. I would have thought there was a fair case to be made that the free speech interests here are strong ones: the blogger has alleged that the email reveals incompetent and biased claims assessment.
At the very least, you might expect the judge to weigh the general interest in free speech as part of the balance of convenience. Nope.
To repeat: I’m not saying the judge got this wrong. But in the absence of a proper analysis of the legal principles, he provides no reason for us to be confident that he’s got it right.
You may be interested in reading the blogger’s response to the Court’s approach, both before and after this interim injunction was confirmed. Not all of it seems convincing or cogent. And you’ll see that he starts off saying he’ll respect the court, but has ended up deciding to release the whole database sometime today in defiance of the ruling. It seems he’s claiming that he lives overseas, so if he stays there, he may well be beyond the reach of our contempt laws. (Incidentally, if he does publish the database, this would be yet another example of a plaintiff heading to court to try to gag information who later finds that this was utterly counterproductive).
But you’ll also see material on his website – some of which the blogger explicitly put before the judge, and some of which was posted before the judge released his decision – which the judge makes no mention of either: that he seeks anonymity to protect his sources; he was given no notice of the proceedings though he could easily have been emailed; that he believes the information is in the public interest (he goes some way toward explaining why); that he had been trying to release relevant parts of it only to those whose identities he was able to confirm; that he wanted to raise issues of jurisdiction, service, notice and venue; and that he sought an adjournment (without the injunction) to allow him to better prepare his defence. There’s also some pretty good evidence of public support for his stance in the comments threads, which might be relevant to his public interest defence, or to whether the government can establish that releasing the information would compromise the public good.
I don’t say that these points produce an unassailable case, or even that they’re all relevant or even helpful. He also rather ill-advisedly points out in the comments that:
My main regret is that this information is not as useful as I would like it to be, but it will undoubtedly be of use to tens of thousands who are unable to see their information.
But again, it’s a bad look for a judge not to mention any of that, even though he purports to summarise the blogger’s position (para [9]).
I keep whining that the courts often don’t take free speech seriously. This is why.
PS Some of the blame, perhaps, should lie on the shoulders of EQC’s lawyers, who are supposed to draw the court’s attention to relevant law, even if it goes against them. I don’t know what they argued, so I don’t know how much or little they presented.
I see that Mr Staples, the original recipient of the email with the spreadsheet on it, was represented by a lawyer who had to call in by phone (she was in Christchurch; the hearing was in Wellington). But her arguments, whatever they were, are not mentioned in the decision either. The decision mostly concerns the blogger, but the final order applies to anyone who received the spreadsheet.
Topics: Breach of confidence | Comments Off on Interim injunction against EQC blogger
Wha…?
April 7, 2013
I confess I’m entirely befuddled by the Dominion Post’s front-page lead on Saturday, “Prosecution for breaching paedophile’s rights”. Can someone help me out here?
Isn’t the story conflating the Commission with the Office of Human Rights Proceedings, an independent office within the HRC? But why is the Office of Human Rights Proceedings bringing a “prosecution”? Does the DomPost mean a claim before the Human Rights Review Tribunal (it seems so, since it mentions the Tribunal later on)? That’s not a prosecution, which is a criminal action.
Or is it a charge that the Sensible Sentencing Trust has breached name suppression? Now, that would be a criminal prosecution, but why isn’t it being brought by the police?
If it’s a Human Rights Proceedings Office case, it sounds like a Privacy Act claim, and not a charge for breach of name suppression at all (some of the language in the story suggests it’s about the Privacy Act, though the Act gets barely a mention in the story). That would also suggest that the Privacy Commissioner has already been involved and either refused to uphold the complaint or couldn’t reach a settlement with the Sensible Sentencing Trust. That would be interesting to know.
The story suggests that the Office of Human Rights Proceedings is bringing a claim against the Sensible Sentencing Trust for posting the name and details of a man who has been convicted of child sex offences, and who may have had name suppression:
The commission says this breaches his privacy because the trust does not mention that he has name suppression.
Why would it be a breach of someone’s privacy merely not to mention that he has a name suppression order? It may be a breach of suppression laws to publish his name. It may be a breach of the Privacy Act to publish his details. But neither claim revolves around a failure to mention a suppression order. They may be about a failure to respect it.
The story suggests the OHRC is concerned that without the suppression information the publication isn’t accurate (that is, it breaches the Information Privacy Principle that information be checked for accuracy before publication). That seems a bit odd to me. I’m not sure how this omission – if that’s what it is – renders the rest of the website information inaccurate or why it’s that omission that has caused any harm.
The story suggests that perhaps there may never have been a suppression order. Did anyone ask whether suppression may have arisen by operation of the law, which automatically protects child victims and witnesses in sex cases and therefore might have the effect of protecting the convicted man, because he’s a “relative” so that naming him may inevitably give away their identity? (I don’t know the details here, but it seems an obvious question to ask).
My best guess is that the Office of Human Rights Proceedings is bringing a civil claim on behalf of a convicted sex offender against the Sensible Sentencing Trust for unlawfully disclosing personal information about his convictions on its website or for failing to take reasonable steps to ensure that its information was accurate, relevant, up-to-date and complete, and thereby causing him harm, and also for refusing him access to information it holds about him. The name suppression (if it exists) seems to be being used to support the claim that the publication was improper, but isn’t the basis of the claim.
If so, that looks like it might raise some interesting issues. But I don’t know if it is so.
Topics: Media ethics, Name suppression, Privacy Act | Comments Off on Wha…?
Digital harrassment remedies coming
April 4, 2013
Justice Minister Judith Collins has (by and large) accepted the Law Commission’s recommendations to better protect victims of cyber-harrassment. (I have explained and defended and critiqued and defended again the Law Commission’s proposals elsewhere).
Note that this is not the same as the Law Commission’s recently confirmed plan to set up a one-stop regulator for the news media (discussed here and in subsequent posts). That only applies to news and current affairs and it only applies to those who voluntarily sign up. The new cyber-bullying civil remedies, by contrast, apply to everyone except the news media who sign up to that regulator. And the new criminal reforms apply to everyone, fullstop.
I think these reforms are justified. The Law Commission has made a good case that there’s plenty of cyber-bullying going on, and some of it is very harmful indeed. Most of the criminal law changes are about tweaking the law to ensure that it can apply online. The new civil remedy, which includes take-down orders made by judges, is beset by protections for free speech, so it ought not to be used except where strictly justified. To get a take-down order, you’ll have to do all of the following:
— show that someone has caused you digital harm, which can include significant emotional distress
— show that they’ve done so by breaching one of ten principles, designed to reflect existing law (eg they’ve disclosed sensitive personal facts about you, or has been intimidating or threatening)
— take your complaint to an approved agency (which might be Netsafe), who can give you advice, and perhaps try to resolve the complaint by mediation
— (it seems) obtain Netsafe’s certification that its attempts to resolve the situation have failed and the case is appropriate to go before a judge
— convince a judge that one or more of the principles have been breached, causing you harm
— convince a judge that the context of the digital communication and the surrounding circumstances do not tell against a remedy
— convince a judge that the Bill of Rights guarantee of free speech does not tell against a remedy
If you can do all that, you may get a take-down order, or a right of reply, or a correction, but you won’t be able to get damages. And the person concerned may appeal. So there are sufficient protections, I think, against abuse. Still, I expect there to be wails of protest from free speech absolutists, who are unlikely to draw attention to the protections I’ve just set out, and may not even be aware of them.
I still have some concerns, and they’re mostly set out in my critique of the Law Commission’s report.
But some are new. The biggest difference between the Law Commission’s recommendations and the government’s plan is the dumping of the separate Communications Tribunal. Instead, District Court judges are to be given powers to hear these cases and make these orders. What’s that you say? Is our entire body of district court judges tech-savvy enough, and alive enough to the nuances of the Bill of Rights, to handle these cases? How many of them have, for example, visited Facebook or read a tweet? The Law Commission proposed a panel of specialist judges with this interest and skill (come in: David Harvey) to head the tribunal. No problem, says the government. “It is envisaged that in assigning cases account would be taken of a particular judge’s interest, understanding and expertise in media law. This would allow greater expertise in the subject matter to be developed over time.”
It’s true that the judiciary do engage in a bit of horses-for-courses when assigning cases for hearing. But I doubt this is the answer here. For a start, this is up to the judiciary. Are the regulations going to tell judges how they are supposed to assign their cases? I think that’s opening a can of constitutional worms and I bet they avoid it. Besides, many of these cases are going to be urgent. And they could come in at any time, in any part of the country. Often, there won’t be time to track down an expert judge. So I worry that we’re going to get decisions by some judges who can barely work their email and who have never had to deal with the Bill of Right’s free speech clause before. I am sceptical about the development of greater expertise in a specialist subset of judges.
I also have a question about the new offence of using a communications device with intention to cause harm. The government’s press release says that this offence is about sending or posting messages that are grossly offensive, indecent, obscene, menacing or knowingly false. And that’s what the Law Commission talks about. But para 116 of the Cabinet paper talks of people “using technology to control their partners, including tracking and monitoring of their partners’ movements by reading text messages and internet search histories, and reviewing GPS usage.” It suggests the new offence of using a communications device with intent to cause harm will “go some way to protect” such people. That implies that the offence (whose wording has not been finalised) isn’t just about sending and posting messages. It may be about accessing information too. Now, I’m not sure whether this is what the government intends to do. I’m not even sure it would be terrible. But it’s not what the Law Commission was talking about and seems to warrant a bit more thought and debate.
Then there’s the bit about the Bill of Rights. Under the proposal, the court is supposed to “take account” people’s right to freedom of expression. I’ve assumed that this means that they must properly apply the Bill of Rights. But that’s more than “taking account” of the right to free speech. It means complying with that right, unless any particular restriction is demonstrably justified under section 5 of the Bill of Rights. So I’m suspicious of this language of “taking account” which on one reading may imply something less. But the Bill of Rights applies to the courts and must surely apply to the public functions of the approved agency. So I’m hoping there’s nothing in this point.
And I’m still worried about the mechanics of unmasking anonymous posters and ensuring that those who might be subject to take-down orders (including third parties) or unmasking orders get a proper chance to argue the toss before the order is made. To some extent, the devil will be in the details. The government has left a lot of work to the drafters of the legal framework.
Incidentally, that legal framework will be contained in regulations. That strikes me as a little bit odd. The government is creating a new remedies regime, and conferring extra juridiction upon the courts. The Law Commission was envisaging a statute. The advantage of regulations is that they can be easily changed without full Parliamentary rigmarole and scrutiny. The disadvantage of regulations is that they can be easily changed without full Parliamentary rigmarole and scrutiny. I would hope that at least the essential foundations of this new law will be set out in a statute.
Topics: General, Injunctions, Internet issues | Comments Off on Digital harrassment remedies coming
Live public debates on our Constitution
April 3, 2013
Debating the Constitution
During April and May, the NZ Centre for Public Law (with generous support and funding from the NZ Law Foundation) will host a series of debates on issues raised by the Government’s review of the New Zealand constitution. The debates will be broadcast on Radio NZ National. Join us on VUW Kelburn campus to be part of our live public audience.
Moderator: Steven Price, barrister
“What’s the problem?” Monday 8 April, Hunter Council Chamber, 6:30pm
Speakers: Professor Bruce Harris, Moana Jackson, Dame Claudia Orange, Dr Matthew Palmer
An examination of the origins of the constitutional review, and the process set up to support it. Should we be cynical about its political motives, embrace it as an opportunity for public engagement, neither or both? Do its terms of reference make sense? Is a process like this necessary or desirable? Has the process been set up in a way that could support real change?
“Reforming our democratic institutions” Monday 15 April, Hunter Council Chamber, 6:30pm
Speakers: Dr Maria Bargh, Colin James, Professor Elizabeth McLeay, Sir Geoffrey Palmer QC
The constitutional review’s terms of reference include the term of Parliament (and whether it should be fixed), the size of Parliament, the size and number of electorates, and issues relating to Māori electoral representation. The debatees will cover these issues and others that they consider important to the quality and effectiveness of our democratic system.
“Māori aspirations for constitutional change” Monday 22 April, Te Herenga Waka Marae, 6:30pm
Speakers: Tai Ahu, Dr Rawinia Higgins, Veronica Tawhai, Valmaine Toki
Four newer voices from the Māori community discuss the nature of Māori aspirations for constitutional change, broadly conceived. The discussion will move well beyond the status of the Treaty of Waitangi, and include consideration of alternative models of Māori-Crown relationships, the development of a kaupapa Māori or tikanga-based constitution, and Māori constitutional aspirations in the context of indigenous peoples’ rights at the international level.
“Human rights in the constitution” Monday 29 April, Hunter Council Chamber, 6:30pm
Speakers: Professor Andrew Geddis, Jack Hodder QC, Stephen Whittington, Professor Margaret Wilson
New Zealand has no formal written constitution and its bill of rights is an ordinary law that cannot be used to strike down other laws. Should our Bill of Rights be entrenched and supreme law, or not? Should we have one at all? If so, what other rights should it include? Or not include? In broader terms, what steps ought to be taken to protect the human rights of New Zealanders?
“Time to be a Republic?” Monday 6 May, Hunter Council Chamber, 6:30pm
Speakers: Jim Bolger, Professor Janet McLean, Michael Mabbitt
Is it time to replace the Queen as our head of state and become a republic? If not, will it ever be? What would that involve, and what will be the major issues confronting us if and when we do so?
The NZ Centre for Public Law wishes to acknowledge the generous financial support of the NZ Law Foundation for this event.
Topics: General | Comments Off on Live public debates on our Constitution
The NZ Herald’s weird response to the Law Commission
March 28, 2013
The NZ Herald has editorialised about the Law Commission’s proposal to set up a new News Media Standards Authority.
It seems to veer between cautiously welcoming the report, and suggesting that the system ain’t broke. (No mention of the increasing absurdity of having different standards and complaints processes applying to what is essentially identical material, or the problem of working out who should receive the legal privileges bestowed upon the media. Or the troubling fact, unearthed by a Law Commission survey, that three quarters of us have never even heard of the Press Council, the complaints body you could take your NZ Herald complaint to.)
The Herald’s main theme is that media self-regulation is essential. We don’t need government involvement. (Where have we heard this before? Oh yes, the Herald).
The Herald concludes that
Press freedom is not abused in this country, New Zealanders do not pay for unreliable news.
The NZ Herald, of course, is “reliable news”, that New Zealanders do pay for. (Any bets on how much longer this will last? Do falling circulations mean its reliability is declining too?).
I wonder whether it’s worth complaining to the Press Council about the statement that “Press freedom is not abused in this country.” It’s plainly inaccurate. The Herald itself had to make a front page apology for its misleading campaign against the Electoral Finance Bill, for example. Anyone who believes the media doesn’t abuse its freedoms in NZ could spend a profitable hour or two at the websites of the Press Council and the Broadcasting Standards Authority.
It’s surely also wrong to say that we don’t pay for unreliable news. I can think of several patently unreliable magazines that are still in the bookstores. Unethically gathered and presented news and commentary is often more popular than “reliable” journalism.
But it’s surely fair to say that our mainstream media is generally pretty ethical, and perhaps that’s all – with some rhetorical licence – the Herald meant.
That’s no excuse for the other inaccuracies in the editorial, though.
The Herald says:
The Law Commission’s final suggestions for media regulation were tabled in Parliament yesterday and they are a good deal better than its proposal of 15 months ago. Crucially, there is now no suggestion that a new adjudication panel for public complaints will be a created by statute.
This is artfully misleading. The Law Commission never recommended a new complaints panel “created by statute”. It put forward two options: a complaints system where membership was voluntary, and one in which it was compulsory (at least for big media). “We seek views on the preferable option,” it wrote.
It said both of these options would require statutory backing. The first would require a little more, since membership could only be made compulsory by statute. In fact, the Law Commission’s final proposal also requires statutory backing. But whichever option was selected, it is clear that the Law Commission did not have in mind a complaints body created by statute, in the sense that the Act would spell out the complaints process and the standards and provide for government appointments. The models it looked at – whichever option was chosen – were about “a regulatory system operating quite independently of the state.” Even if membership was to be made compulsory, all the important design features of the system would be drawn up independently of the government.
The Herald says the new NMSA
would assess complaints against a code of practice agreed with the industry and members…
Nope. NMSA would draw up the code itself – after consultation with industry and the public. There’s a significant difference here. The media get no veto right over content.
The Herald says:
Only those who submitted to the new authority would enjoy the “privileges” of recording proceedings of Parliament and the courts…
Wrong again. The Law Commission didn’t make recommendations about recording proceedings in Parliament or the courts. One of the privileges is about access to court proceedings when a courtroom is closed to the public, but it’s very likely that a judge would have the power to allow in others (such as the editor of a legal magazine not published to the public).
The Herald says bloggers are unlikely to join so that:
Many of them might remain answerable to no authority except the common law – if it can find them.
Yes. And the criminal law too, let’s not forget, and civil obligations under statute. So that’s name suppression laws, threats, harrassment, criminal trespass, illegal interception, the Privacy Act and quite a lot more. Or does the Herald think that’s part of the common law? You know, I think it probably does.
But putting all that aside, surely it’s significant that the blogger who doesn’t sign up to NMSA will be – as the Law Commission points out – subject to the Communications Tribunal it recommended in December to deal with online harrassment. So perhaps there’s a little more incentive than the Herald is suggesting for a news blogger to join NMSA and a stronger laws for that blogger to navigate if she or he doesn’t .
Helpfully, the Herald also says:
Those receiving the commission’s report might need reminding that no serious problem exists.
Compared with the outrageous press abuses such as phone hacking and bribery of police that triggered the Leveson inquiry, this is undoubtedly true. But those receiving the Law Commission’s report will not need reminding of it. The Law Commission makes precisely that point, several times. In fact, on the front page of its press release, it says:
It is important to understand that unlike Britain’s Leveson Inquiry, the Commissions’ review was not driven by a crisis in confidence in the mainstream media.
And it’s not true that no serious problem exists. The problem is digital convergence. And if the Herald doesn’t like the Law Commission’s solution, which is pretty similar to the regime its own industry set up, then I’m sure we’d all be interested in what it suggests instead…
Topics: Broadcasting Standards Authority, Press Council | Comments Off on The NZ Herald’s weird response to the Law Commission
TVNZ’s weird response to the Law Commission
March 28, 2013
Stuff is reporting that the NMSA is “not to broadcasters’ liking” and that “broadcasting agencies said dissolving the BSA would leave gaping holes for their non-news content.”
Odd. For one thing, Stuff only seems to have talked to one agency, TVNZ. The TVNZ spokeswoman said she was concerned that broadcasters like TVNZ, which show both news and current affairs content and entertainment programming, would be accountable to different standards bodies.
“You have to ask if that will be any less confusing to viewers who want to lay a formal complaint.”
This hardly makes any sense at all. Is TVNZ worried that there would be gaps for non-news content (because the BSA would be abolished) or that there would be two sets of standards (because the BSA would be retained)?
I don’t know whether the confusion comes from Stuff or TVNZ, but I do know there’s confusion.
The Law Commission’s proposal only relates to news, current affairs and factual programming. So there may be some residual role, perhaps temporarily, for the BSA, in relation to entertainment content (ie does it breach standards of taste and decency? is it unsuitable for children?, but not whether it’s fair and accurate). In a short chapter in the end, the Law Commission suggests that the government review the question of how we set standards in relation to entertainment content.
True, there will be some fuzziness about the edges of the concept of factual programming. When does reality TV become entertainment? Docu-dramas? The Law Commission says if it purports to provide factual information about real people, it’s within NMSA’s bailiwick. There’ll be a few programmes on the margin. But not many. It will usually be obvious who to complain to. And it’s likely that the censor’s office and the remaining BSA powers will be rolled up at some stage: that’s another messy interface in the law.
But the biggest head-scratcher here is the suggestion that broadcasters are hostile to the report. Most have accepted the looming need for a converged regulator. Many have been suspicious of the BSA and its political appointments and statutory basis. They prefer self-regulation. Well, the Law Commission’s proposal seems a big step in the right direction by those lights.
If there’s a real dual-complaint issue, then surely it’s the problem that many people will complain both to the BSA (about a particular broadcast) and the new Online Media Standards Authority (about the fact that it’s now on the broadcaster’s website), so the broadcaster will have to track two sets of standards and two sets of complaints jurisprudence.
It gets better: their funding obligations may be smaller. They get an appeal right to an NMSA appeal body (easier than using the courts, and probably with a wider appeal remit). There’s a mediation process that may head off court claims. There is no chance that damages will be awarded against them, and the Law Commission makes no mention of costs.
If you’re a broadcaster, what’s not to like?
Topics: Broadcasting Standards Authority | Comments Off on TVNZ’s weird response to the Law Commission
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