Media Law Journal

Time 2021-10-17 19:03:49

Web Name: Media Law Journal

WebSite: http://www.medialawjournal.co.nz

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Lawyer Steven Price blogs about media law and ethics in New ZealandSteven PriceAbout meMy professional servicesContact meBlog policyMy bookAbout itBuy it

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Bill of Rights ActBORA and the BSAMedia law resourcesUseful linksFeeds (RSS)PostsComments MembersLog inRecent Posts Climate action Hate speech: a question The case for hate speech laws NZME admits it misled listeners by buying into Trumps ridiculous election fraud claims but BSA somehow finds broadcasting standards not breached Hating on hate speech laws When free speech creates disorder or hate A quick response to Matthew Hooton Budget leak: Nats behaviour entirely appropriate? Farewell Guyon Whale Oil definitely Beef Hooked Archives July 2021 June 2021 May 2019 April 2019 November 2018 November 2017 September 2017 August 2017 June 2017 January 2017 December 2016 August 2016 February 2016 October 2015 September 2015 October 2014 September 2014 August 2014 July 2014 May 2014 April 2014 February 2014 December 2013 November 2013 October 2013 September 2013 August 2013 July 2013 May 2013 April 2013 March 2013 February 2013 January 2013 December 2012 November 2012 October 2012 September 2012 August 2012 July 2012 June 2012 May 2012 April 2012 March 2012 February 2012 January 2012 December 2011 November 2011 October 2011 September 2011 August 2011 July 2011 June 2011 May 2011 April 2011 March 2011 February 2011 January 2011 December 2010 November 2010 October 2010 September 2010 August 2010 July 2010 June 2010 May 2010 April 2010 March 2010 February 2010 January 2010 December 2009 November 2009 October 2009 August 2009 July 2009 June 2009 May 2009 April 2009 March 2009 February 2009 January 2009 December 2008 November 2008 October 2008 September 2008 August 2008 July 2008 June 2008 May 2008 April 2008 March 2008 February 2008 January 2008 December 2007 November 2007 Topics Advertising Standards Breach of confidence Broadcasting Standards Authority Cameras in Court Censorship Confidential sources Contempt of Court Copyright Court records Defamation Department of Corrections Electoral speech Free speech theory Future of journalism General Harassment Act Hate speech Injunctions Internet issues Journalism and criminal law journalist employment issues Local government regulations Media ethics Name suppression NZ Bill of Rights Act Official Information Act Parliamentary privilege Press Council Privacy Act Privacy tort Protecting sources Protest speech Search warrants Suppression orders Trespass Whistle-blowing Climate action

July 7, 2021

This isnt about media law. It is much more important.

Lawyers for Climate Action NZ is seeking judicial review of the Climate Change Commissions recommendations. It argues that the recommended cuts are not enough to contribute to keeping warming to 1.5 degrees as weve pledged to do in the Paris Accord. It also alleges that the Commissions accounting measures are flawed and make our carbon picture look rosier than it is.

This may be the most important piece of litigation in any of our lifetimes.

Im a member of LCANZI. All its work is voluntary. LCANZI is seeking donations to help hire an administrator to help manage this and other climate change projects. I encourage you to chip in. I have.

For what its worth, here is my submission on the Commissions draft advice. I figure its important for people to talk about this.

24 March 2021

Dr Rod Carr

Chairperson

Climate Change Commission

PO Box 24448

Wellington 6142

Dear Dr Carr,

I am a barrister, an adjunct law lecturer at VUW, and a journalist. I do not have any expertise in climate science, though I have read widely on the issue. I am a member of Lawyers for Climate Action. I am also on the legal working group for NZ’s Extinction Rebellion. Over the years, I have hardly been a poster child for carbon restraint, but I now walk and bike more, buy second-hand more, drive an electric car, eat little meat or dairy products, and seldom take flights.

I make this submission in my personal capacity.

I am alarmed about climate change. It seems to me the only sensible response to what the scientists are saying.

I am by nature an optimistic person. But I am pessimistic about our ability to make the radical changes necessary to avoid catastrophe. It seems to me that it will require a massive and immediate international effort to turn things around, involving great investment and great sacrifices. I see very little evidence of that happening on anywhere near the necessary scale.

I have read the Commission’s draft advice.  I am not the best person to offer analysis, but it strikes me overall as a thoughtful stab at a difficult task. However, I think there is a sense in which the Commission has sought to recommend as little as we can get away with, and to look to minimise harm at the expense of the rapid change necessary.

I do not think this will be enough. I also do not think it is fair, internationally or inter-generationally.

I am also concerned that it is not lawful, for the reasons set out in the submission of Lawyers for Climate Action.

I urge that the Commission recommend much more ambitious and speedy targets and actions. Again, I agree with the caps recommended by LFCA. I think there should be more emphasis on government investment in buses, trains, cycling and walking, on reducing waste, on reducing agricultural emissions (with support for farmers) and less dependence on offshore mitigation. I support a carbon tax.

I am not sure whether this is really your role, but I also think there must be much more emphasis on girding the country for this task and trying to get everybody on board. I’d like to see a country where we as a people are proud to take responsibility for the sacrifices that need to be made.

I am 53. I’m well-off and living in New Zealand, which is not facing the worst impacts of climate change. I figure I’m going to be dead before this really bites. I feel vaguely guilty for that. Climate change is not really my problem. But we need leaders to step up and make it my problem or the planet is doomed.

Yours faithfully,

Steven Price

Topics: General | No Comments

Hate speech: a question

July 5, 2021

A question occurs to me that seems worth throwing into the debate.

An ambiguity

I think theres an ambiguity in the proposed law. We dont know the exact wording of the offence. It seems the government doesnt have one. Its not in the Cabinet paper or the discussion paper anyway. That makes it hard to analyse. But it seems to me that one question leaps off the pages of the discussion paper.

The discussion paper says:

It would be a crime to intentionally incite/stir up, maintain or normalise hatred

(if its a threatening, abusive or insulting communication, including inciting violence, and is aimed at particular discriminated-against groups).

Lets focus on the intent to incite, stir up, maintain or normalise hatred. My question is: does this require proof of any harm or likelihood of harm that is manifested in the real world? Or is it just a mental element?

In other words, is the proposed offence committed if it can be shown that whats going on in my head is an intent to incite or normalise (etc) hatred?

Or does it also have to be proved that some sort of hatred has been incited or normalised?

Or and this is a halfway house that my speech has a tendency of some sort to incite or normalise hatred?

I dont think this is clear in the proposal. Neither does an expert on criminal law I talked to.

You-already-know-this-bit-but-I-think-I-should-spell-it-out

Before I go through the possible interpretations of intentionally inciting hatred, I just want to remind any alarmable persons who happen to be reading that a prosecution would ALSO require (a) a threatening, abusive or insulting communication, (b) that is aimed at a particular listed group, (c) consent of the Attorney-General, and (d) a Bill of Rights analysis designed to ensure that any convictions can be demonstrably justified in a free and democratic society.

Possibility one: Its all the in head

If the intentionally-inciting-or-normalising-hatred element of the crime is only about what the defendant intends, its arguably too wide. We are punishing someone for their thoughts when no social harm needs to be proved. Still, it might be thought that once youve shown someone has made some threatening, abusive or insulting speech against a group, and you can prove they intended to incite hatred, it stands to reason that this will probably have an effect on the audience, so maybe its right to criminalise it. This does seem to be what the Royal Commission had in mind.

Possibility two: You need to prove some real-world impact

On the other hand, if it requires proof that some hatred has been produced or normalised in the world, that might be a difficult task for a prosecutor. It wont always be impossible: its possible that violence might erupt shortly after and as a result of the speech, or people might pile on in a way that demonstrates hatred has been stirred up. But often it will be tough to show that the levels of hatred in the world have been affected as a result of the speech. Anyway, it would be harder to prove than the existing law against racial hate speech.

Possibility three: The half-way house

The existing hate speech law  requires proof of likelihood of harm (that harm being contempt, hostility, ridicule or ill-will against racial or ethnic groups). Thats quite a high threshold, but doesnt require evidence of harm in the world. What needs to be shown is a real and substantial risk of such harm. The Canadian Supreme Court (cited in a NZ case) said the question is Would a reasonable person consider that the expression vilifying a protected group has the potential to lead to discrimination and other harmful effects? So you can reason your way to a conclusion that the speech is likely to cause harm in the world without evidence that it has actually happened, evidence that might be very difficult to come by, even if the speech really has had a serious impact on some peoples hearts and minds.

I have to say, this seems like the sensible option to me. Theres just one problem. The Royal Commission recommended that this likelihood test be dumped and the government has followed its advice. So its hard to see how the governments proposal can be interpreted to include some liklihood of external manifestation of hatred. (But not impossible to imagine. I could see the courts getting hold of this, and being reluctant to interpret the law as either possibility one or possibility two. They could read in some sort of tendency-to-create-hatred as implicit in the offence, or required by the Bill of Rights Act. After all, the courts read in a damages remedy in the Bill of Rights Act when Parliament deliberately left it out. But its not a good thing to leave this sort of thing up in the air).

Conclusion

This should be clarified. Its easy to write a law so that it makes it clear which bits of the offence are in the head (mens rea) and which are in the world (actus reus). It probably wont be ambiguous if and when a Hate Speech Bill is produced. But it would be helpful to have this point clarified during the public debate right now, so that we are all on the same page when we make our submissions on the discussion paper.

Theres an easy solution: the government could issue a draft of the actual wording of the reform its proposing. Or at least put out some sort of statement making clear what exactly its proposing here. I doubt its an exaggeration to say that some peoples position on the proposal will depend on which of these three possible interpretations is the real one.

Im no criminal lawyer, but I wonder whether one possibility is to have a reverse onus eg its a defence to establish on balance of probabilities that, in the particular circumstances of the case, no hatred has been likely to have been incited or normalised.

PS

Ive just seen the governments regulatory impact statement. It says this:

The Ministry intends to further assess the benefits and disadvantages of this element
following consultation. It could be argued that removing this objective element might limit
freedom of speech, honest opinion, art and debate by criminalising intent rather than
harmful effects or a risk of harm. Retaining this element also appears to align better with
guidance by the United Nations under the ICCPR. On the other hand, it would simplify
the test. This issue should be covered in the consultation.

so the Ministry was aware of the issue. And yet. its not in the consultation.

Topics: Free speech theory, Hate speech | 1 Comment

The case for hate speech laws

July 5, 2021

Graeme Edgeler has a terrific post making the case for hate speech laws. He is at best ambivalent about hate speech laws, and says he will also be putting up a post making the case against them.

This is where the debate should be. Its dispiriting how far away from this the debate is.

Topics: Hate speech | No Comments

NZME admits it misled listeners by buying into Trumps ridiculous election fraud claims but BSA somehow finds broadcasting standards not breached

July 1, 2021

Something is going wrong here.

On NewsTalk ZBs overnight talkback show, host Bruce Russell endorsed Trumps claim that there was electoral fraud in Georgia, playing clips from people who said things like there was fraud in Georgias election, we can prove it with data. Russell concluded: I think it speaks for itself, receiving 75 percent or more votes for one candidate in a precinct is historically abnormal.

He also said, of Trumps call to Georgias Secretary of State to persuade him to overturn the election result: In fact, what Trump was doing was talking about the votes that had been given to Biden, and wanting them because they were Trump votes, to be credited to him. There seems little doubt that Russell was saying Trump was right about this.

Someone brought a broadcasting complaint, arguing this breached standards of balance and fairness.

NZME admitted:

We recognise that there has been no concrete evidence presented by Trump or his allies to substantiate their claims of electoral fraud and that Brad Raffensperger’s office has launched a probe into whether Trump had violated electoral law during this call. The Content Director has spoken to the host about these matters.

The BSA did not uphold the complaint.

Whats going on? A mix of things, I think.

First, this isnt really a fairness complaint. Thats about the treatment of individuals. Its really more of an accuracy complaint. But the complainant didnt raise accuracy. I have to say, its unlikely she would have succeeded anyway, because the BSA said it was a talkback show where topics and comments came from the hosts perspective and reasonable listeners would realise they were getting opinion.

Theres an element of truth to that. But I worry that  the BSA too readily classes things as opinion that are really assertions of fact. Here the host played clips containing unchallenged assertions of fact that were wrong. He made factual statements, one of them beginning with the words in fact. Whats more, theres no indication in the networks promotion of this show that listeners are getting opinion from a particular defined perspective. Someone tuning in couldnt be expected to know where he was coming from.

But okay, listeners know that talkback has a lot of opinion, and this particular discussion contained bits of fact and opinion, so perhaps its not off the planet to say it didnt breach accuracy standards.

What you might expect, though, is a finding that this was unbalanced. It was an attempt to convince listeners to believe in the facts presented. The host marshalled selective evidence to do so. He played clips as proof. The host clearly took some time over it. The station admits there is no concrete evidence for what he was claiming. Why was this not found to be unbalanced?

The answer lies in the BSAs approach to balance, especially on talkback. Balance will almost never be found necessary in talkback, even when the host (who surely appears authoritative to listeners, and will certainly be doing his or her best to come off that way) makes claims of fact about controversial issues. That is built into the broadcasting codes, and the BSAs commentary on them. But its also built into the BSAs approach. In other cases, they have sometimes found that talkback like this doesnt even amount to a discussion of a controversial topic. (Thank goodness this decision doesnt take that approach).

The BSA found that the station was discussing a controversial issue of public importance. That triggers an obligation to:

make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest.

But the BSA found the station didnt have to do this. In effect, it found that making no effort at all to present the other side was reasonable. Its not clear that Newstalk presented any evidence of its other coverage that provided the true picture. Nor did the BSA require it. But both agreed that there was a lot of other media coverage of the subject. And that was good enough.

Again, kind of a fair point. I would have hoped that Newstalk would have felt obliged to show the BSA how its recent news coverage on this point was accurate, but the guidelines make it clear that sufficient coverage on other media can be taken into account. I have to say that Im a bit sceptical that Newstalk listeners would necessarily have tuned into, for example, Radio NZ or read Stuff or the NZ Herald to get accurate information.

Why not insist that talkback hosts on mainstream stations at least nod toward the existence of contrary views when theyre making factual assertions about significant controversies?

If you look at the context of Russells quoted remarks, he did say:

media will tell you that Trump is coercing the Georgia Secretary of State into rigging the election result in his favour. In fact, what Trump was doing was talking about the votes that had been given to Biden, and wanting them because they were Trump votes, to be credited to him.

You could argue that this is at least cluing listeners in to the other point of view. But the BSA did not make that point. It didnt require it. It seems that even this minimal level of balance is not necessary to meet the balance standard.

Topics: Broadcasting Standards Authority | No Comments

Hating on hate speech laws

June 29, 2021

What is it with the media and hate speech laws? They loathe them. And in their anxiousness to ridicule and discredit them, and excite contempt against them, they seem happy to distort the debate. Do hate speech laws need hate speech protection?

Newshubs recent coverage

Look at Newshubs coverage in the past 24 hours. They interviewed the PM, then posted two columns by Tova OBrien and Duncan Garner excoriating her (and Minister of Justice Kris Faafoi) for failing to understand the policy direction and intent of the law (OBrien), misleading  us about it, and trying to shut down debate (OBrien). They said the proposed reform could make it against the law to insult and/or offend people (Garner).

OBriens column is sub-headed: Jacinda Ardern is wrong about her own hate speech law. Completely and utterly wrong.

Youd hope that journalists who were attacking someone for inaccuracy would take a bit more care over their own facts. Or at least, if youre going to call someone completely and utterly wrong then it would have to be a slam dunk.

Its not, though fair to say the PM could have spoken a bit more clearly.

Shutting down debate?

Lets start with the alleged shutting down of the debate. Really? I mean, really? The government has just released a policy proposal in a discussion paper that literally says, several times, the government wants to hear from you. Even if the PMs responses were glib and dismissive, that is not shutting down a debate. Different people could have different views about whether her comments were glib or dismissive. Some might even think that glib and dismissive were pretty accurate descriptions of Newhubs coverage.

The threshold for criminality

Is Duncan Garner right to say that the law could make it against the law to insult and/or offend people? No hes not. The bar is much higher than that. To be criminal, someones speech would have to do ALL of six things:

be of a particular type (insulting, threatening or abusive) ANDbe aimed at having a particular effect (incite or normalise hatred, including violence) ANDhave a particular intention (an intention to incite or normalise hatred) ANDbe aimed at a particular group (eg racial or religious) ANDIn the way it is applied in the courts it will have to also have to overcome the protection for free speech in the Bill of Rights Act: that is, a court will have to be satisfied that any conviction is demonstrably justified in a free and democratic society. (Note to Bill of Rights nerds: I say this because of precedents like Browne v CanWest and because the law seems sufficiently open-textured that it could not be said to dictate an outcome inconsistent with the Bill of Rights) ANDbe sufficiently bad to convince the Attorney-General give consent to a prosecution.

This is a far cry from a law that protects people from just being offended.

That also means Tova OBrien was wrong to say that the proposed threshold is as low as insulting someone.

She was right to say that the law isnt restricted to situations where someone incites violence. But thats not what the PM said. The PM said it was about inciting violence and abuse. She said that twice. Depending on what and means here, the PM is (roughly) right. The law would cover inciting violence, and it would also cover inciting abuse. I think you shouldnt call someone out for being completely and utterly wrong on the basis of an ambiguity.

Is incitement of something required at all?

But is the PM right to say that the law requires inciting something? She also told Newshub that it required stirring up action and activity. But the proposed law would cover speech that merely normalises hatred. If you squint hard enough, you could make a case that the PMs still in the ballpark. If you say something that normalises hatred, you can be said to be inciting it, and encouraging people to take action on it. You might think that she was characterising (accurately, I think) the intent of the policy direction and the gist of the new offence. You could remember the words of Oliver Wendell Holmes that every idea is an incitement. But I think that the PM, in an attempt to convince people the bar was really high, went a bit far here. The proposed offence covers inciting or normalising hatred, and the draft and the discussion paper treat these as different things. I wouldnt call the PM completely and utterly wrong though.

Could political opinion be hate speech?

What about the scope of the proposed law who is protected by it? Does it include political opinion?  OBrien said it does and the PM got it wrong. ( a journalist writing an opinion piece titled, Jacinda Ardern is a dictator, could see the journalist liable. Hmmm.)

Responsibly, OBriens column sets out some of the facts so that readers can see that the PM is not as wrong as OBrien claims she is. As she says, The proposal seeks to protect more groups. Notably, these are likely to include religious people and gay people a gap identified by the Royal Commission on the Christchurch shooting. The reform paper points to the list of categories of discrimination in the Human Rights Act. It says that some of all of them may be used in the hate speech law. This list includes discrimination on the basis of political opinion.

The PM seemed then to categorically rule this out. Thats not consistent with the discussion paper, which seeks feedback on which groups should be in or out. If that decision has already been made, then as OBrien points out, its odd to include it in a consultation document. But neither is it completely wrong. The proposal doesnt say that political opinion will definitely be a ground of hate speech. In any event, even if it is, its pretty hard to imagine a situation where political speech is found to be hate speech, given what has to be proved to mount a prosecution (the five things above). Its extremely hard to imagine a scenario where genuine political commentary is found to be hate speech. Its impossible to imagine a scenario where a political journalist could be prosecuted for comparing Jacinda to a dictator.

Could criticism of boomers be hate speech?

Does it protect baby boomers from criticism by millennials (or as Duncan Garner put it in a question to the PM, Lets go and attack baby boomers because theyve gone really well in life. I mean, that would be inciting violence wouldnt it?)

The answer of course is no.

Garner has just played the clip of Kris Faafoi being asked whether millennials could be prosecuted for criticising boomers. He responded: it depends what you say and if your intent is to incite hatred against them, then potentially.

This is a textbook-perfect response. Age is another category that is in the Human Rights Act. So its possible that it might be included in the law, depending on our feedback and the governments decisions after that.

So Faafoi could have added: Hate speech on the basis of age is one possible category thats in the discussion paper, and were interested in peoples feedback on that. Its not at the core of what were trying to do, which is to stop people from vilifying religious minorities. It would have to be a pretty stunning attack to be found to incite hatred, and to pass the other thresholds in the law. Its a bit hard to see how an attack like that would normalise hatred since there doesnt seem to be any particular age-hatred around to normalise. Our experience with 5o years of the racial hate speech law in the Human Rights Act, which is pretty similar to what we are proposing, is that prosecutions are very rare because the bar is so high.

Final comment

Here is the thing about hate speech: its really hard. The harms that can be caused by hate speech are terrible, and they are not necessarily easy for people who arent targeted to understand. (If you dont believe me, read a book called Words that Wound and then well talk.)

But its almost impossible to define. Any attempt is likely to cover too much speech or too little, or have the appearance of covering too much but the effect of covering too little. How can you juggle all the things its supposed to deliver: alleviating the harms of hate speech, protecting important speech that might cause offence, using the law as a signal, using it as a whip, maintaining flexibility, creating clarity, being workable, gaining legitimacy, not creating counter-productive backlash? How do you clearly define the type of speech, the effect it must have, the mental element, and what exceptions there might be for humour or satire, news reporting, drama or for other speech in which there might be overwhelming public interest?

The solution to date, in the criminal law anyway, has been an offence that is effectively limited to racial hate speech, that is a bit confusing, that sets a high bar in order to protect free speech, and that has led to I think one successful prosecution in more than 40 years (of a pamphleteer who vilified Jews).

The government says its new law is clearer. That is sort of true. It now revolves around hatred, rather than a grab-bag of other concepts hostility, ill-will, contempt, ridicule. Thats cleaner, at least. Is it really clearer? I dont know. Its not very clear to me. What is hatred exactly? What is normalisation? How do you show someone intended to incite or normalise hatred?

Another imponderable: how will this dovetail with the Bill of Rights?

The government is in a bit of a bind. It wants the new law to be more effective, but also wants to insist that the very high bar is much the same as before. I dont think we can have it both ways. If the bar is the same as before, the law is very unlikely to be more effective.

I suspect that the real criticism of the law is that its being oversold. Its not likely to be used much at all. Thats even though the proposal would expand hate speech to cover more groups, and yes   lower the bar somewhat, because the proposed law now covers normalising hate as well as producing it.

[UPDATE. Ive thought about this a bit more. Is the bar really lowered? After all, hatred, whatever it means, seems harder to prove than hostility, ill-will, contempt or ridicule. What judicial interpretation there has been of the phrases in the current law sets a high bar, and much of the language of the old law has been retained. The PM says its only for extreme speech and that the old approach is expected to continue. But on balance, I think Ill stick to my guns. Hatred is amorphous. More to the point, an intent to normalise hatred is new, and strikes me as a lower bar than stirring it up. The proposed offence would cover both. Whats more, there would no longer be any requirement to prove that the any resulting hatred is likely. The current law requires proof that creating hostility, ill-will, contempt, or ridicule is both intended and likely.]

Yet its likely to generate more heat than any number of more important government policies and genuinely effective government policies, some of which also deal with the Royal Commissions recommendations and are listed on page 25 of the discussion paper.

Ill be interested to see whether the media will be so consumed by its fears of excessive uses of the proposed law that it never asks questions from the other direction about whether the law will in fact be too ineffective.

TOP FIVE RECENT MEDIA BEAT-UPS ABOUT LAWS THAT WILL DESTROY FREE SPEECH

Hate speech.The Privacy Act.The privacy tort.The Harmful Digital Communications Act.The Dunne v CanWest decision that made TV3 include Peter Dunne in the election debate.

TOP FIVE MOST IMPACTFUL RECENT DEVELOPMENTS IN FREE SPEECH LAW

The right to freedom of expression in the NZ Bill of Rights Act 1990.The new public interest defence in defamation.The new threshold for serious harm in defamationThe tightening of name suppression laws.The repeal of criminal libel, blasphemy and sedition laws.

(Okay, this is a bit of an exaggeration. Im trying to show that while the main media concerns focus on things that might restrict speech I could add deplatforming and name suppression whereas actually the arc of media law is long but bends towards more free speech. The reality is that most developments in media law, positive or negative, dont have very much effect at all. To be fair, that includes the repeal of criminal libel, sedition and blasphemy).

PS. I have updated this post after a slightly more careful reading of page 33 of the discussion paper.

Topics: Hate speech | 46 Comments

When free speech creates disorder or hate

June 28, 2021

De-platforming. Its the free-speech zealots issue-du-jour. Im looking at you, Damien Grant.

It seems so exactly what cancel culture is. Dont like the speech? Ban it.

Except its not really a ban, is it? There is nothing to stop those poor begagged individuals from putting out press releases and YouTube videos, railing on social media, and speaking out on television and radio about how their speech has been shut down so outrageously.

Other pressure groups can only dream of such opportunity to put across their views, such a terrific platform. What if the Free Speech Union itself were deplatformed? Can you imagine how gleeful they would be?

So I find it difficult to get too worked up about it. Thats not to say its not a serious issue, especially when its a public agency doing the de-platforming. Its just that, as a speech restriction, its so partial (theres nothing to stop them seeking out another venue, for example, and it does not affect all their other avenues of speech), and so often counter-productive (how many of us would even know Stefan Moleneux and Lauren Southerns names if it wasnt for their Auckland deplatforming?) and so rare, that, for me anyway, it doesnt rank right up there in the list of top threats to free speech.

But Damien Grant sees the Molyneux/Southern case as a backdown by the courts, and a troubling precedent one that reflects our milquetoast right to freedom of expression in the Bill of Rights Act. The US, with their much more powerful First Amendment, wouldnt have a bar of it.

Damien describes himself as a free speech absolutist and wouldnt stop anyone from holding a public meeting in a library. This is good news for those wanting to introduce a wider audience to the delights of child pornography or give instructions on how to make bombs with household ingredients or publicly release all of Damiens private and business correspondence. But for the free speech moderates among us, the issues are trickier. (Incidentally, free speech doesnt get quite the free ride in the US that most people assume. It is common, for example, for protesters in public places to be herded and ringfenced in the name of public order).

Fair enough, I think, for Damien to wonder if the Auckland Council authorities were truly concerned with public safety, as opposed to the likely content of Molyneux and Southerns speeches. But on the evidence before the Court of Appeal, that was the reason; there was some support for it; and it wasnt an unreasonable basis for the decision, even though, as the judges pointed out, others may have reached a different decision. Thats judicial code for: you should probably line up a better justification next time.

Damien is in a flap about the decision for several reasons, some of which make sense. He says anyone holding a meeting will now have to consult the rabble of discontented on Facebook and Twitter. Lets grant poetic licence for that piece of nonsense. More to the point, he argues that the decision gives opponents of any particular speech a hecklers veto. By threatening disruptive counter-protest, protesters can create a lawful pretext for officials to cancel the meeting. This is a genuine problem, at least in theory. But I note that its the job of the police to prevent disorder and if, at a particular event, this was imminent, that would involve intervening to stop those threatening the violence. Why are we assuming, at the point of giving permission for the meeting, that violence will break out and the police couldnt handle it?

Im saying that the hecklers veto is overstated. Thats because it can usually be managed, and because it really doesnt happen very often. And in this, Im really agreeing with Damien. Its not a usually very good reason for cancelling a meeting like that one.

Then Damien points to the recent Speak Up For Women cases.  SUFW booked a room for a public meeting in the Palmerston North library. The library later cancelled it, replacing it with a debate on similar issues, to be scheduled sometime in the future. Damien says this is because they regarded SUFWs message as a safety and wellbeing issue, and felt they had a licence to shut down meetings of groups that might have threatened social and cultural wellbeing, which could be anything they disagreed with.

If hes correct about that, then they got a rude awakening. The court said this was plainly not a lawful reason to cancel the booking. It readily found that no violence was threatened and if a debate about the issues would not raise any safety concerns then surely a meeting by one side couldnt either. There was no reason to think there would be a disturbance, and free speech isnt predicated on having an opposing voice present. I think Damien and I would both applaud that.

Id just point out, as Damien didnt, that this decision applied the Court of Appeal decision in the Molyneux/Southern case. That is, it followed the instructions in that case for how to deal with de-platforming issues. The Court of Appeal had set a fairly high bar, and the High Court ruled here that the Palmerston North City Council didnt clear it. The rule is that you need a pretty rigorous justification, based on good evidence, to overcome the presumptive right to free speech at a public venue, especially where the speech is political.

That seems like a reasonable rule. It will usually require evidence of likely violence. But the really interesting case will come when someone is promoting truly hateful speech (and I do not put SUFW in that category; neither did the judge) and seeking a public platform for it, but where there is no realistic violence issue. Speech that perhaps has a political edge, but is full of racial or religious smears, harmful misinformation, and/or insidious but not explicit calls for action against a historically disadvantaged group.

Is it lawful and justified to put some restriction that speech by denying it a public platform? I think thats a hard issue.

Topics: Free speech theory, NZ Bill of Rights Act | No Comments

A quick response to Matthew Hooton

May 30, 2019

I see Matthew Hooton has noted that I have acted for Nicky Hager and accused me of hypocrisy for suggesting that National broke the law with its budget leaks.

He seems to think his logic is obvious. I guess its that Hager published confidential material leaked from the government (see especially: Other Peoples Wars and The Hollow Men) and I didnt accuse them of breach of confidence.

That can only be explained by the fact that I am a lefty, Labour-apologist lickspittle.

I thought my argument was clear from my blog post yesterday, but let me spell it out anyway:

Hager made unauthorised use of leaked confidential government material, and he had a defence of public interest.

National made unauthorised use of leaked confidential government material, and they didnt have a defence of public interest because that same material was going to be made public two days later.

I explained why I thought there was no public interest, and even tried to spell out some arguments for National that I might be wrong.

Call that hypocrisy if you like, I suppose.

Topics: Breach of confidence | 34 Comments

Budget leak: Nats behaviour entirely appropriate?

May 29, 2019

Ive just been listening to Simon Bridges press conference at Parliament about the budget leak. His main point was to deny that the leaked budget material was a result of a hack. But he made the broader claim that the Nats behaviour throughout was entirely appropriate. He said there had been nothing illegal or anything approaching that from the National Party. He denied that their conduct was at any point unlawful.

I think hes wrong. I think the Nats have probably engaged in  unlawful behaviour from the get-go. Thats regardless of whether the budget material they released was hacked. The Nats have broken the law relating to Breach of Confidence.

Thats not a crime. Its a civil claim, like defamation or negligence. But it is the law.

Breach of confidence elements

If information is confidential in nature that is, not in the public domain and was created and shared in circumstances in which those possessing it knew is was supposed to be confidential, and was then disclosed without permission, thats a breach of confidence. That obligation of confidence will usually bind anyone else who comes into possession of the information.

The public interest defence

There is a public interest defence. Thats what usually protects the media when they receive leaks. Otherwise, as you might have noticed, almost all leaks to the media (especially from employees with clear obligations of confidentiality) fall foul of this law. But usually, there will be some substantial justification the media can use. They will be able to point to some significant way the public is being served by the release of the information that would otherwise be protected by the obligation of confidence.

Is there public interest here? I cant see it. The information was to be publicly released in two days. The National Party could freely criticise it then. How are the public really made better off by learning of these criticisms two days in advance? Is there really any benefit to a matter of legitimate public concern that overrides the obvious and perhaps even constitutional confidentiality that attaches to budget papers?

Nor can National argue that it needed to release the information to hold the government to account for its bungling in allowing the leak. It could have made that case without actually releasing the data.

Now, Im not saying anyones going to get sued. There doesnt seem to be much point (though if the government did sue, there would be an interesting battle over the confidentiality of the Nats source  politicians arent protected by the journalists source-protection provision in the Evidence Act).

Im just irritated at the sanctimoniousness of Simon Bridges denial that the Nats had done anything approaching illegality.

Possible National arguments?

What could National argue? The best I can come up with is: We felt it was in the public interest to prick the balloon of spin that the government was floating about the budget being a wellbeing budget, and itself revealing bits of it in advance, by providing the public with information that revealed these claims to be misleading. In this we were fulfilling our constitutional duty to hold the government to account. And we didnt release any market sensitive information.

I dont think that works. They could make those arguments in two days time and the public would be no worse off. I also note that it turns on the accuracy of the criticism. If the numbers are wrong, or taken out of context, or do not really reveal any misleading government behaviour, that would undermine any attempt to say that the releases were in the public interest. Finally, the fact that the National Party was drip-feeding the leaks tells against any claim that the public needed to have the information urgently and couldnt wait two days for the budget.

A couple of other arguments for National occur to me. One is that, as recipients of the information, they were not bound by the confidence. It is only those who have acted unconscionably in
relation to the acquisition of information or in the way it has been employed who are bound by the confidence. They didnt hack it themselves, theyll say. They didnt steal it. It didnt do any real harm. They didnt reveal any sensitive part of it. They believed its use was lawful. Maybe they even took legal advice.

I dont think that works either. The Court of Appeal has made it clear that the main factor in assessing whether someone has behaved unconscionably in using information is whether they knew (or should have known) that it was confidential. Thats just a slam dunk here. They cant say that they didnt know how secret the budget material was supposed to be. They have done harm to the budget process, at the very least. If their use of the material was selective and inaccurate, theyve also done unfair harm to the government. If they took legal advice, then I think it would have been negligent not to advise of the law of Breach of Confidence and the (legal if not practical) risks involved. I note that Simon Bridges is himself a lawyer.

Finally, there are some cases that say that the government is a bit different in Breach of Confidence cases. The information it possesses is really the peoples information. So, to sue for Breach of Confidence, the government must show that theres a public interest in keeping the information secret. That might be hard here. The flip side of the observation that theres not much public interest served in hearing about the budget in advance is that, at least in relation to what the National Party did actually disclose, there wasnt much harm done to the government. Besides, the government itself had been selectively releasing some of it. Still, it would be a brave lawyer who argued that there was not a compelling general public interest in keeping budget information secret prior to budget day. Obviously some of it could be extremely market sensitive (and Im not saying the National Party released any of that). But the early release of some of the rest may have implications that are not immediately obvious. And the release of drafts may be dangerous. Since there may be changes as the budget evolves, a court is likely to see an important public interest in the integrity of the budget process as a whole.

I am inclined to think there was a Breach of Confidence here. You could argue the toss. But you cant argue that National have not done anything even remotely approaching illegality.

UPDATE: I should add that if National got it through some area of Treasurys (or some other government) website that was technically publicly accessible, then that would at least raise arguments that it wasnt confidential in the first place, because it was in the public domain. That might depend on how easy it was to find and extract. But I suspect a court would be reluctant to say that it was not still confidential, especially if few knew about it.

Crime?

National have denied that the information came from a hack. They wont tell us how they got it, but it must follow that they know how it came into their possession. It seems the most likely path is through an official. (UPDATE: unless it was taken from a government website as above).

If thats the case, then that person was probably committing an offence:

Every official is liable to imprisonment for a term not exceeding 7 years who, whether within New Zealand or elsewhere, corruptly uses or discloses any information, acquired by him or her in his or her official capacity, to obtain, directly or indirectly, an advantage or a pecuniary gain for himself or herself or any other person.

I think its hard to argue that an official who is releasing secret budget information to the opposition for the purposes of embarrassing the government is acting anything other than corruptly, and is surely doing it to obtain an advantage for the National Party MPs. Its also hard to see how that official could be regarded, even colloquially, as a whistle-blower. (Legally, they would not fall under the protections in our whistleblower protection law).

Any person who encouraged such an official to release such information would potentially be criminally liable as a party to the offence. Im not saying the National Party did that. I am saying there are some questions to be asked. And one of them might be: even if you didnt encourage your source to provide you with that information, what it ethical for you to profit from what seems to have been obviously criminal conduct?

Again, how did the public really gain from it?

Topics: Breach of confidence | 48 Comments

Farewell Guyon

May 7, 2019

Im sorry to see Guyon depart the presenters chair on RNZs Morning Report. I think hes one of the best interviewers RNZ has ever had. He is well-informed, thoughtful and persistent. He consistently asks good questions and presses for answers. He is fearlessly independent. And I salute his use of te reo Maaori, which always gives me a little squirt of pride. He was part of a great team with Susie Ferguson.

Hes also right that its his job to interrupt sometimes, even if some listeners dont appreciate it. These days, politicians and spokespeople are coached by savvy media trainers in how to run out the clock on awkward interviews rather than answer difficult questions.

One of the lesser-known theories supporting free speech is that is promotes the Checking Function. This suggests that people in power are worried about being publicly exposed through hard questions and diligent journalism, and its that fear that keeps them honest. When I was studying in the US, I used to tell people that one of the terrific things about NZ was that, when something went wrong, the relevant government minister was basically obliged to front up on Morning Report the next day and answer questions about it. Sadly, thats not so true today. But we should not underestimate the importance of the daily Checking Function that is Morning Report, and correspondingly, the importance of the quality and ethics of the interviewers.

No pressure, Corin Dann.

Topics: General | No Comments

Whale Oil definitely Beef Hooked

May 2, 2019

Cameron Slater, aka Whale Oil, has never been a journalist in any sensible sense of the word. Thats despite the shameful Canon media award he received for wallowing in the sordid details of a mayoral affair. And its despite the High Court ruling that for the purposes of the Evidence Act, he could be treated as a journalist for source protection reasons (the judge found that the Evidence Act didnt require any assessment of the quality or  independence of Slaters posts, and then he ordered Slater to reveal his sources anyway, since his campaign against Matt Blomfield wasnt really in the public interest and appeared to be driven by people with a personal vendetta against Blomfield).

I think the reality has always been that Slater lacks the key attribute of a journalist a commitment to seeking the truth to serve the wider public interest. That attribute not only defines a real journalist, but tends to help ensure that ethical journalists dont make harmful mistakes, or at least act responsibly when they do.

So I have to say that Im pleased that Slater has got his come-uppance in the courts, even if it has taken a long time. In the last few months, weve seen the High Court strike out his defences in Blomfields defamation case against him, holding that he had repeatedly failed to point to specific facts that supported his allegations against Blomfield, and that there seemed to be no cogent evidence for any of them. (Slater appealed, then subsequently abandoned it).

And weve also seen the Human Rights Review Tribunal rule that Slater is not a journalist for the purposes of the Privacy Act. So when he gleefully published Blomfields private documents that the High Court said were probably unlawfully acquired, he breached the Privacy Act. He was not entitled to the exemption for news media. He had to pay Blomfield $70,000 damages.

I want to make a few comments about that decision. It strikes me as very significant in lots of ways that havent been talked about much. Im going to criticise the decision a bit. But I want to make clear that I am not criticising the result. What Slater did to Blomfield was horrible; it was an outrageous breach of his privacy; and its a good thing that hes been hauled over the coals for it.

For all that, the decision is remarkable for several reasons.

Its extremely late

The most obvious one is how long it has taken. The decision has taken four years to arrive. Im not sure Ive ever seen a decision so late. On what planet is that acceptable? Justice delayed is justice denied, especially when a ruling involves an aspect of public vindication, as this one does. Im not entirely sure where the fault lies. There was a procedural hitch but it doesnt come close to justifying the delay. The problems of the resourcing and backlog of the Human Rights Review Tribunal have been discussed elsewhere. But something has gone very badly wrong here.

It reaches a different decision to the High Court

Slater tried to rely on the High Courts ruling that he was a journalist. The HRRT pointed out that one civil judgment isnt evidence in another proceeding. It also said that the definition of news medium in the Evidence Act is different to that in the Privacy Act. Thats true. And you might think that we would want to give a wide meaning to news medium when its in a provision whose purpose is protecting confidential sources in order to promote journalism in the public interest, and be more sympathetic to a narrower reading of news medium in a provision whose purpose is to give a get-out-of-jail free card to those infringing others privacy. (This supports the HRRTs conclusion but isnt a point that the HRRT makes).

Anyway, the HRRT finds that it can take into account the High Court decision, but that the Evidence Act provisions provide little assistance to the interpretation of the relevant Privacy Act provisions. That strikes me as taking things a bit too far. The definitions are not identical, but they are similar in many ways. The core issue for both is identifying what features are at the heart of the news business, such that the law should give benefits to those who fit the definition. And in fact, the HRRT does reach a similar conclusion to the High Court about what news is the provision of new information about recent events of interest to the public. This is not limited to traditional mainstream media.

Maybe only commercial news media are protected

The Privacy Act definition refers to agencies whose business consists of a news activity. Does that mean there needs to be a commercial element? Maybe, says the HRRT. It didnt need to decide the question because it found that Slater was making some money from his blog. But the HRRT leaves open the possibility that a blog or website that is non-commercial (one thats publicly funded hello Radio NZ!, or funded through donations, or a labour of love) may not get the Privacy Act exemption even if it is plainly producing news. It seems the Director of Human Rights Proceedings supported this view. That seems like a conclusion that is not compelled by the language of the media exemption, and would not survive a Bill of Rights analysis.

News activities must be responsible to qualify for the exemption

Woah! This is a big deal. The HRRT have grafted on a new element to the definition of news media. You can only qualify for the exemption if you are acting responsibly.

What does this mean? The basic elements of responsible journalism include accuracy, fairness, balance, error correction and right of reply.

The HRRT says this is implicit in the Privacy Act. The exemption was not granted to facilitate the making of extreme and vitriolic accusations or to disseminate false news. It says this is consistent with the new responsible communications defence in the analogous field of defamation law. It cites Justice Asher from the High Court Blomfield case, twice. It cites the Harmful Digital Communications Act, saying its conclusion is broadly consistent with the framework there.

Let  me count the ways this is a bit weird.

First, its really not implicit in the Privacy Act. This is the first time anyone has suggested this element might be in there. The reports that the HRRT draws on (by the Law Commission and the UKs Cairncross review) to establish the significance of responsibility post-date the Privacy Act by decades.

Second, despite the fact that the HRRT cites Justice Asher in support of its conclusion, this is not what he decided. He said he wasnt required to assess the quality or ethics of the posts when evaluating whether Slater was a journalist.

Third, theres no particular reason that the common law of defamation (and in particular a case that was not concerned with defining a news medium but was concerned with encouraging free speech) should shape the interpretation of a statutory provision in an Act aimed at protecting privacy.

Fourth, Im not sure the HRRT has grappled with just how nebulous this responsible journalism requirement might be. In particular, it has found that non-traditional media may be entitled to this exemption in some situations, but seems to have subjected them to traditional news ethics. Admittedly, thats also what the High Court has done recently in Slaters defamation battle with Colin Craig. The HRRT simply says that the concept of responsible journalism is not new and is well understood in the media field. Thats sort of true. But it is not well understood in the non-media field. There may well be an argument that a openly partisan but independent blog, that breaks news and is diligent about accuracy and corrections, but doesnt seek and include balanced viewpoints, is nevertheless a news medium. The Court of Appeal in Durie seemed to accept that the rules might be different for different publishers. The HRRT doesnt seem to leave that door open. The HRRT asserts that its interpretation is consistent with the Bill of Rights Act, and it might be, but the HRRT never does the analysis that you might think was required by the Supreme Courts decision in Hansen, given that the interpretation reached by the HRRT actual narrows free speech protection.

Fifth: no right to disseminate false news? What happened to the idea that the breathing space required by a free society requires protecting the right to be wrong? We might accept that it doesnt include the right to knowingly spread lies. But most cases arent about that. They are about publications that the publisher thought were true, but turned out to be wrong.

Sixth, its a bit  of a stretch to say this development is consistent with the Harmful Digital Communications Act. Or that that Act has much to say about the definition of news in the Privacy Act.

Seventh (and this is a bit picky), if were looking for contextual clues as to whether the news medium exception should be read broadly or narrowed down to responsible journalism, we might be tempted to look closer to home than the common law of defamation or the Harmful Digital Communications Act. Section 14 of the Privacy Act itself requires the Privacy Commissioner to have due regard for the general desirability of a free flow of information. Might that not suggest a wider approach?

For all of that, I have a sneaking fondness for this change, as a matter of policy. It accords with my notion that news isnt really news unless theres an ethic of adherence to truth and public service. It will help manage the difficult questions of who counts as media in the modern age. It  makes publishers earn their protection. Its based on principle. It incentivises ethical behaviour, much of which is common sense. And it is broadly consistent, as the HRRT points out, with current thinking among judges, jurists and reform agencies.

But still

Doesnt this mean that even mainstream media may lose this protection for news activities that fail this responsible journalism hurdle? Sure looks like it. And fail it they sometimes do: just look at the decisions of the Media Council and the Broadcasting Standards Authority, or listen to a few episodes of RNZs Media Watch. Journalists might find lawyers like me starting to argue that they might generally have an exemption under the Privacy Act, but it doesnt apply in this particular instance because they havent acted responsibly. That would expose them to a complaint before the Privacy Commissioner that they have revealed personal information without consent (and without falling into one of the other fairly other narrow exceptions in the Act) thereby causing humiliation, loss of dignity, or injury to the feelings of the complainant. Theres no public interest defence either. Damages are awardable by the HRRT.

I think I might have buried the lead.

It didnt even apply this new responsibility test

Most bizarrely, perhaps, the HRRT having developed this flash new requirement of responsibility doesnt even apply it almost the very first time it is called upon to do so.

The first Whale Oil posts Blomfield complains about accuse him of ripping off a kids charity. The HRRT cites some of the posts and concludes we accept that an allegation concerning the scamming of a charity would potentially engage the public interest We are satisfied Mr Slater has established the news medium exemption in relation to this blog.

Wait a minute. What happened to responsibility? Were these allegations responsible? This can be readily checked. Whale Oil posted his source material. Did the underlying documents, taken from Blomfields own computer system, bear out the allegations? Blomfield says they dont. The High Court said they provided no cogent support for any of Slaters allegations. They plainly lack balance, since Blomfields views were not sought and included in the posts. But the HRRT doesnt even look at this question. Its extraordinary.

The HRRT finds the other posts do not qualify for the exemption, mostly because they do not relate to recent events, are not worthy of discussion, have not attracted significant public interest, were not driven by altruistic motives, or  in relation to the new responsibility test were unbalanced, gratuitous, or unsubstantiated.

It seems to award damages for defamation

The HRRT finds that the posts, by publishing Blomfields personal and private documents, interfered with his privacy. It then considers damages. You might expect that the HRRT would look at the published documents to see how private they were. Do they show him visiting a brothel? Watching porn? Making very sensitive or intimate comments? In fact they do not. They are not generally very sensitive at all. The worst is some bank records. The rest is mostly boring commercial correspondence that has been wildly misinterpreted by Slater.

Dont get me wrong. Slater has done horrible things to Blomfield. But in terms of harm to Blomfields privacy, theres not much there. But the HRRT does not conduct this exercise. It looks at how Slater used the private material, even though it wasnt very private. He used it to misportray the documents and suggest terrible wrongdoing. And that, for the HRRT, justifies one of its biggest awards of damages ever: $70,000. This was because Slater must have known the documents were illegally obtained (fair enough; this seems relevant to the infringement of privacy).

It was also because the Slaters allegations were extreme, and part of a concerted campaign, and held Blomfield up to ridicule. This seems like damages for defamation. It seems rather far removed from what the Privacy Act was designed to protect against disclosures of true but private information.

The HRRT finds that the privacy breach was a material cause of the harm suffered by Mr Blomfield. That seems true as far as it goes, but it does set a very low threshold for the award of damages where the real harm isnt really the revelation of something private.

Its up to the High Court in the defamation case to set damages for defamation in an upcoming hearing. Will the judge have to factor in the compensation already awarded for much the same thing by the HRRT? (Not that its likely to make much practical difference, since Slater is now bankrupt).

So

A landmark case. But an odd one. Ill be very interested to see how it shakes down.

Topics: Defamation, Privacy Act | 33 Comments

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