Media Law Journal

Time 2020-12-29 23:08:26

Web Name: Media Law Journal

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

ID:150328

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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 it s that Hager published confidential material leaked from the government (see especially: Other People s Wars and The Hollow Men) and I didn t 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 didn t 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. I ve 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 he s wrong. I think the Nats have probably engaged in  unlawful behaviour from the get-go. That s regardless of whether the budget material they released was hacked. The Nats have broken the law relating to Breach of Confidence.That s not a crime. It s a civil claim, like defamation or negligence. But it is the law.Breach of confidence elementsIf 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, that s a breach of confidence. That obligation of confidence will usually bind anyone else who comes into possession of the information.The public interest defenceThere is a public interest defence. That s 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 can t 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, I m not saying anyone s going to get sued. There doesn t 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 aren t protected by the journalists source-protection provision in the Evidence Act).I m 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 didn t release any market sensitive information. I don t 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 couldn t 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 inrelation to the acquisition of information or in the way it has been employed who are bound by the confidence. They didn t hack it themselves, they ll say. They didn t steal it. It didn t do any real harm. They didn t reveal any sensitive part of it. They believed its use was lawful. Maybe they even took legal advice.I don t 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. That s just a slam dunk here. They can t say that they didn t 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, they ve 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 people s information. So, to sue for Breach of Confidence, the government must show that there s a public interest in keeping the information secret. That might be hard here. The flip side of the observation that there s 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 wasn t 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 I m 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 can t argue that National have not done anything even remotely approaching illegality. UPDATE: I should add that if National got it through some area of Treasury s (or some other government) website that was technically publicly accessible, then that would at least raise arguments that it wasn t 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 won t 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 that s 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 it s 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. It s 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. I m 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 didn t 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? I m sorry to see Guyon depart the presenter s chair on RNZ s Morning Report. I think he s 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.He s also right that it s his job to interrupt sometimes, even if some listeners don t 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 it s 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, that s 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. Cameron Slater, aka Whale Oil, has never been a journalist in any sensible sense of the word. That s despite the shameful Canon media award he received for wallowing in the sordid details of a mayoral affair. And it s 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 didn t require any assessment of the quality or  independence of Slater s posts, and then he ordered Slater to reveal his sources anyway, since his campaign against Matt Blomfield wasn t 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 don t make harmful mistakes, or at least act responsibly when they do.So I have to say that I m pleased that Slater has got his come-uppance in the courts, even if it has taken a long time. In the last few months, we ve seen the High Court strike out his defences in Blomfield s 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 we ve 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 Blomfield s 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 haven t been talked about much. I m 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 it s a good thing that he s been hauled over the coals for it.For all that, the decision is remarkable for several reasons.It s extremely lateThe most obvious one is how long it has taken. The decision has taken four years to arrive. I m not sure I ve 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. I m not entirely sure where the fault lies. There was a procedural hitch but it doesn t 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 CourtSlater tried to rely on the High Court s ruling that he was a journalist. The HRRT pointed out that one civil judgment isn t 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. That s true. And you might think that we would want to give a wide meaning to news medium when it s 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 HRRT s conclusion but isn t 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 protectedThe 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 didn t 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 that s 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 exemptionWoah! 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, it s 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 UK s 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 wasn t required to assess the quality or ethics of the posts when evaluating whether Slater was a journalist.Third, there s 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, I m 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, that s also what the High Court has done recently in Slater s 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 . That s 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 doesn t 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 doesn t 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 Court s 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 doesn t include the right to knowingly spread lies. But most cases aren t about that. They are about publications that the publisher thought were true, but turned out to be wrong.Sixth, it s 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 we re 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 isn t really news unless there s 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. It s 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 Doesn t 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 RNZ s Media Watch. Journalists might find lawyers like me starting to argue that they might generally have an exemption under the Privacy Act, but it doesn t apply in this particular instance because they haven t 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. There s no public interest defence either. Damages are awardable by the HRRT.I think I might have buried the lead.It didn t even apply this new responsibility testMost bizarrely, perhaps, the HRRT having developed this flash new requirement of responsibility doesn t 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 Blomfield s own computer system, bear out the allegations? Blomfield says they don t. The High Court said they provided no cogent support for any of Slater s allegations. They plainly lack balance, since Blomfield s views were not sought and included in the posts. But the HRRT doesn t even look at this question. It s 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 defamationThe HRRT finds that the posts, by publishing Blomfield s 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.Don t get me wrong. Slater has done horrible things to Blomfield. But in terms of harm to Blomfield s privacy, there s not much there. But the HRRT does not conduct this exercise. It looks at how Slater used the private material, even though it wasn t 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 Slater s 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 isn t really the revelation of something private.It s 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 it s likely to make much practical difference, since Slater is now bankrupt).SoA landmark case. But an odd one. I ll be very interested to see how it shakes down. You probably know that the censor has banned the Christchurch mosque shooter s manifesto. That is, he has classified it as objectionable under our censorship laws. So it s an offence to possess it, even on your computer screen. Journalists, academics, or anyone else who thinks they have a proper interest, can apply for an exemption. The censor helpfully attaches an application form.Barrister Graeme Edgeler criticised the decision. He thinks it was too broad. It should have been a restricted publication, available to some. The ban should have excluded, at least, journalists subject to the ethics codes and complaints systems of the Media Council and the Broadcasting Standards Authority. They shouldn t have to fill out an application.I think they re both wrong. I think the law, as its written, requires the manifesto to be banned outright and doesn t provide any discretion to exclude anyone. That is, the manifesto is deemed to be objectionable and cannot be given a restricted classification. This is what happened with the livestream video of the shooting.That sounds like I m agreeing with the Chief Censor. I m not. Under the Films, Videos and Publications Classification Act, there are two ways for a publication to be objectionable. The first is about publications that are so bad they are deemed objectionable: things that tend to advocate or encourage things like bestiality or the sexual exploitation of children. Or to advocate or encourage:acts of torture or the infliction of extreme violence or extreme cruelty.That s the category the livestream video of the shooting came under. No argument there. But what about the manifesto? I haven t read it, but here s what the censor says about it in the classification decision: it clearly promotes and supports crime, including murder, mass-murder and terrorism in the name of extremist ideology The deliberate killing of children is mentioned several times throughout the document. The writer represents this choice as not only reasonable in the circumstances, but part of the reader s duty There are instructional elements to the publication that give potential attackers some guidance on how to select targets and choose the means to perpetrate mass murder.[it contains] unambiguous calls for terrorist violence So here s the thing. Isn t that promoting extreme violence? I mean, isn t trying to get others to kill multiple people extreme violence? By definition?The censor s reasoning is that the manifesto does not specify and direct the nature and degree of the violence to be employed. Is he really suggesting that the manifesto wouldn t be promoting extreme violence unless it told us to, I don t know, slash immigrants to pieces with a machete?He also says that the manifesto is evidently intended to inspire like-minded people to follow the writer s example . But (he goes on) we can only understand that example, and its impact on the impact and persuasiveness of the manifesto, if we know what he did. His actual slaughter isn t depicted in the manifesto; the reader has to know that information. That means the censor has to head down the second pathway to objectionable-ness, which involves a more contextual consideration of the publication.I m not sure that s right. If some extremely violent event is well known, and is clearly associated with the publication, I m not sure it needs to be described in detail before you can decide that the publication itself is encouraging extreme violence. If I tried to provide a detailed rationalisation for the Holocaust, and then tried to advocate another one, would the censor say my manifesto didn t promote extreme violence because I didn t go into sufficient detail about how the holocaust worked?But I don t think it matters. The shooter s manifesto tries to persuade us to kill immigrants, and does so sincerely and at length, and with reference to explosives. That s promoting extreme violence. That s a ban. (The censor has no power to ban only parts of a publication like a manifesto, so if one bit is bad, the publication is out. In the 1990s, the censor banned an entire edition of New Truth and TV Extra because it contained ads for golden showers. What? You ve got some old issues of New Truth mouldering in your garage? You might be committing an offence).Note I m not arguing about whether or not this law is good. I m just arguing about whether it has been correctly applied.If I m right, then the censor should not have gone past the first pathway, and has no power to restrict the publication so that at least journalists can read it. (If I m wrong, then I think I agree with Graeme that the wholesale ban was too wide).So what about that second pathway to a ban? This is involves a complicated assessment of a set of statutory factors, aimed at answering a key question: is the availability of the publication likely to be injurious to the public good? Those factors are things like whether the publication deals with torture or sexual violence, exploits the nudity of children, or promotes crime. The censor quite rightly notes that it promotes crime in a way that is seriously injurious to the public good, and finds that s really enough for a ban, even considering the range of other contextual factors.But one part of his reasoning here seems odd to me. One factor he dismisses is whether the manifesto represents a class of people, such as racial or ethnic groups, as inherently inferior to other members of the public by reason of any characteristic of members of that class. The censor concludes that this factor doesn t apply despite the clear racist basis for the document . Why? the document contains grudging admiration of the non-white races. Stated racial characteristics such as higher fertility, greater social cohesion and greater religious devotion are used to support the central notion that non-white races from a clear and present threat to white Europeans.Um. Maybe so. But the very next page, the censor says the manifesto depicts its targets as dehumanised and threatening , deserving of death. Dehumanised? Okay to kill? Because of their ethic background? How is that not treating them as inherently inferior?So, as a matter of law, I don t argue with the result of the classification. But it strikes me as a strange way to get there. The government inquiry set up to look at the allegations in Nicky Hager and Jon Stephenson s book Hit Run is holding a public hearing this week. This particular hearing won t go into the allegations themselves: it s about the process for running the inquiry. How will it deal with confidential or classified information? (For example, will Hager and Stephenson be given access to NZ Defence Force material that NZDF says shows it behaved properly, but it wants to keep secret?) Will the inquiry s hearings (or some of them) be open to the public and the media? Will it follow more of an inquisitorial model, or an adversarial one?These sorts of issues will be discussed at the hearings on Tuesday (10am) and Wednesday (9am) at the Wellington High Court. The public can attend, subject to space limitations and security restrictions. Dr Nicole Moreham is giving a public lecture on privacy on November 28. She is the shit. Details below.Can we have some privacy?The last decade has seen an explosion in social media, intrusive technologies and media competition all of which are putting pressure on privacy like never before. In this talk, Victoria University’s Associate Professor Nicole Moreham will discuss how our society and lawmakers decide what is private and how to protect those things that are. Is there a fundamental benchmark for privacy or is it all inherently subjective? Should we be able to control whether images of us end up on the Internet or in the newspaper, and if so, when? What should we do if we disagree about these ideas?Drawing on her recent research on legal and theoretical conceptions of privacy, Dr Moreham will answer these questions in a conversation with Provost Professor Wendy Larner, reflecting as well on her own career and how she became interested in this area of the law.When: 6pm, Tuesday 28 NovemberWhere: Lecture Theatre 2 (RHLT2), Rutherford House, Pipitea Campus, Bunny StreetRSVP: phone 04-463 7458 by Friday 24 November. When I first saw the National Party s blatantly misleading  Let s Tax This ad, I thought: the Advertising Standards Authority would have to uphold a complaint about this one. And if the ad is broadcast on TV or radio, the Broadcasting Standards Authority will have to as well.Not that I think that complaints against political ads should usually be readily upheld. I don t. I panned the ASA for upholding a complaint against a Labour ad in 2008 where the error was a nit-picky one. The basic point of the ad was right, I said. Political speech needs to be given room for exaggeration, colourful language, even minor mistakes. I also gave the ASA a serve for upholding an complaint against an ACT ad that was also basically correct. And I ve provided advice to the BSA that it needs a compelling justification before upholding complaints against serious political programmes or political ads.But it seemed to me that this ad crossed the line. Well, not so much crossed as flew over it on a monster truck.When I heard that a bunch of law students from were putting in a complaint, headed by Josh Trlin, I agreed to lend a hand. In the end, though, I thought Josh made the points really well and I didn t have much to add. It looked compelling. The main point: the ad asserted Labour would impose taxes that were no part of Labour s platform, including some it had repeatedly publicly ruled out.A majority of the ASA disagreed. And, in a similar complaint, so did the BSA.(I should note that the ASA and BSA were looking at slightly different things. The ASA had to decide whether the ad created an overall impression, which directly or by implication, omission, ambiguity or exaggerated claim was misleading or deceptive, or likely to mislead or deceive the consumer. Since it was an advocacy ad, they also had to decide whether it expressed opinion which was clearly distinguishable from factual information. The BSA had to decide whether the factual information was clearly distinguishable from opinion or advocacy, but did not need to rule on whether it was otherwise misleading).I think they were both seriously wrong, to the point where they ve abdicated their statutory and contractual responsibilities. That s a harsh call, so let me explain it.First, let s look at why they did not uphold the complaints. Similar themes run through both decisions. They said the starting point was freedom of expression. That s particularly important for political speech at election time. Viewers could understand that this was a political ad. Viewer would realise it was merely presenting an opinion, not factual information. The National Party had provided some justification for each of its assertions. And viewers could view the ad against the other substantial coverage in the media and elsewhere about tax issues.The first bit of that is fine. No disagreement that political speech is important and you need very good reason to uphold a complaint against a political ad at election time.But that s where we part company. Let me list their errors.Viewers impressionsBoth the BSA and ASA are big on looking at the way ads will be understood by ordinary viewers. The ASA calls this the consumer take out and the BSA says it s the impression left on ordinary viewers. You will have seen that the ad starts off with a casually dressed couple entering a leafy suburban house with a for sale sign in the yard. Arrows then appear asserting that the house will be subject to capital gains tax and the ground under it, a land tax. National argued that there is no suggestion that the home shown in the advertisement was the family home. I think it would probably be more correct to say that this particular clip was specifically chosen because National could not find another one that more clearly evoked a family home. The consumer take out here is obvious. The ASA ignored it.The ad also shows a glass of water. A label suggests a water tax will apply to it. National explains that it showed bottled water . I do not doubt that this is true. There is only one problem: there is no bottle there, and without the bottle, it looks to ordinary viewers like tap water. If National wanted viewers to think bottled water , do you know what they could have done? Go on, wrack your brain. The point: without the bottle, this is asserting a tax on municipal water. Labour is not proposing that, and National knows it. The ASA and BSA should have called them on this: they are creating misimpressions for viewers. It is not subtle.I could go on. For example, pretty much everyone who s considered National s claim that Labour will hike income tax had concluded it s misleading. Not the ASA though. But let s move on to an even bigger problem.OpinionBoth the BSA and the ASA somehow conclude that this ad made it clear it presented [National s] opinion and what they considered to be a point of difference in policy (ASA) or that it was clear to viewers that the advertisement did not contain factual information, but rather National s own analysis of Labour s comments, policies and tax announcements (BSA).I think to call this an opinion butchers the language. In its own decision, the ASA says the ad has to be clearly distinguishable from fact .  The BSA points out that parties have to take care not to mislead viewers by presenting political assertions as statements of fact. But this ad plainly makes a series of assertions of fact. No other conclusion is open. The ad uses Labour-red arrows called Capital Gains Tax, Land Tax, Regional Fuel Tax, Income Tax, Water Tax and Fart Tax, pointing them at a house and land and a wallet and a gas pump and water and a cow. The voice-over says There s only one way to stop Labour s taxes . This is not, by any stretch of the imagination, an expression of opinion. It is not, as National tries to argue, raising questions . (It could have done that by using question marks in its arrows, which certainly would have made it less misleading).  Nor is it, as National s lawyers heroically try to suggest, a manifestation of our argument that their plans lack sufficient detail for New Zealanders to understand what they re proposing and why or our position that the representation in the advertisement is that Labour has a range of tax policies it will consider implementing that will affect New Zealanders. That s all very well, but it s not what the ad says.I really have no idea what the ASA and BSA believe amounts to an opinion . They don t tell us. I ve done quite a lot of thinking about the distinction between facts and opinions, partly because it comes up a lot in defamation law. The best definition of an opinion I ve come up with is that it s something that is conveyed in a way that the reader knows it s open to be disagreed with. We think you shouldn t trust Labour not to enact a mass of new taxes . That s an opinion. Even: Don t trust Labour on taxes . I ll buy: Will Labour pass new taxes? But not: Labour is going to put a tax on the family home and the land under it or Labour will pass a capital gains tax or Labour will tax drinking water or Labour will increase income taxes . Those are assertions of fact. And those assertions are conveyed by this ad.I have never seen a definition of opinion that would cover this ad.Even though there is a plain political context to this ad, that does not change the nature of what it says. Or what ordinary people will take it to mean. And they will take it to be expressing facts about Labour s policy. Because that s  what it does.The harmThe BSA quite properly notes that it needs to weigh the significance of the speech against the level of actual or potential harm that might be caused by the broadcast. Then it doesn t do this.  The closest it comes is to point out that there s a lot of other coverage about taxes. The ASA notes this too. The reasoning here is that informed viewers will understand that taxes are being debated, that Labour has denied they will impose CGT or a land tax on the family home, that National s claim about income taxes is really about Labour reversing tax cuts that have not yet taken effect, that fart tax isn t really a tax at all, but a reference to the Emissions Trading Scheme, even though the Greens are in fact proposing a carbon tax, which is different, and are you starting to see the problem here?There really is no reason to assume that viewers, or even most of them, will be sufficiently up to speed with the nuances of the tax debate to (a) have an insight that what is being expressed here is an opinion, not assertions of fact and (b) understand that when the ad claims that Labour will impose CGT on what looks like the family home and tax drinking water, it really means they might impose CGT on something that s not the family home and tax bottled water.The real harm here  is that a substantial number of viewers will be deceived into thinking that these really are Labour s policies. And that might affect their vote. That harm is deepened by the fact that tax is an issue that affects everybody seriously. And is central to the differences between the parties. And is hard to understand. All of that should lead to the conclusion that there is a better-than-usual justification for holding advertisers to account for the accuracy of their claims. I think the ASA and BSA, both of whom barely mention this, have seriously under-estimated the potential harm here. It is not putting it too strongly to wonder whether the misleading claims in this ad have contributed to the apparent significant late swing against Labour.Timid decision?I think these decisions are timorous ones. I suspect those making them were worried about being seen as interfering with the election. Of course, the danger is that National will now crow that they ve been proved right by two formal complaints bodies.It s also disappointing to see how little the ASA and BSA bothered to address the arguments made to them. For instance, the ASA only looked at the argument around whether Labour planned to introduce a Fart Tax . That s a marginal call. Other parts of the complaint are much stronger. The justification provided by the National Party simply didn t bear out the allegations in the ad.The minority of the ASA (stand up and bow, whoever you are) got it right, saying:the advertisement implied Labour would introduce the taxes presented and it conflated taxes that had been announced by the Labour Party with those that had not. The advertisements were likely to mislead consumers in breach of Rule 2 of the Code of Ethics and had not been prepared with a due sense of social responsibility to consumers required by Basic Principle 4 of the Code of Ethics.So what does this all mean? The clear message it sends is that political ads will always be treated as opinion, and that as long as a party has a fleck of a sliver of a shard of justification for its claims, these bodies will not call them out even if their ads are very seriously misleading and misinforming people about issues that are pivotal to the election.That means it s up to the media to do that job. In my last post, I discussed the Law Commission s report on contempt of court. I generally supported the recommendations. Here s one I think they got wrong.The Commission proposes replacing what is now called “scandalising the judiciary” with a new, more limited, statutory offence. I think it should be scrapped altogether, as has been done in England, Canada and the United States, and as has been recommended by the Australian Law Reform Commission.The existing law is amorphous and multi-pronged, if such a thing can be. Wade through the Nick Smith contempt case if you dare. The law aims to protect the justice system against unfounded attacks that damage its functioning, usually by impairing public confidence through attacks on the integrity of judges. It has always seemed to me to rest on a series of extremely dubious assumptions:There are attacks on judges out there that actually do cause some widespread loss of confidence in the judiciary.Those attacks are entirely untrue and unjustified.The public believe them anyway.This demoralises the public so much that we don’t trust the court to hear our cases properly, so we don’t take cases to court, or it disinclines us to obey court orders.Those making such attacks, and others disposed to do so, will be deterred by a law against scandalising.Confidence in the judiciary will be restored by a finding by judges that the attacks on judges are unfounded.This restorative effect will be stronger than the harm caused to public confidence in the justice system by (a) drawing attention to the attacks and (b) judges punishing people for criticising them.The scandalising law will actually be enforced, consistently and even-handedly.Authors, lawyers and courts can readily and objectively distinguish between legitimate criticism of the judiciary and illegitimate, criminal attacks on their integrity.The law will not have the effect of deterring more legitimate criticism than illegitimate attacks.Any scandalous attacks cannot be adequately met with a defamation lawsuit, which judges do sometimes bring, an action under the Harassment Act or the Harmful Digital Communications Act, or a response by the Law Society, the Attorney General or the head of one of the judicial benches.Judges can be trusted to resolve these issues sensibly, when they tend to engage in reasoning such as this (from Solicitor-General v Smith):The rights guaranteed by the Bill of Rights depend upon the rule of law, the upholding of which is the function of Courts. Courts can only effectively discharge that function if they command the authority and respect of the public. A limit upon conduct which undermines that authority and respect is thus not only commensurate with the rights and freedoms contained in the Bill of Rights, but is ultimately necessary to ensure that they are upheld.In other words, anything that punishes someone for hurting the reputation of the judiciary cannot be inconsistent with the right to free speech in the Bill of Rights, because we need judges to protect our rights. The reasoning really is that circular and self-serving.Wait. Did I just scandalise the judiciary?The Law Commission does address some of these points, but doesn t reach what seems to me to be the obvious conclusion: let s just ditch it.Instead, they want to codify it, trimmed back a bit. The proposal would make it an offence to publish:an allegation or accusation against a judge or court, and there is a real risk that the publication could undermine public confidence in the independence, integrity or impartiality of the judiciary or a court.The court could then order material to be taken down or withdrawn (and a correction or apology published) if it finds an arguable case that an offence has been committed.Shall I count the ways this is a bad idea?No public interest defenceThere s no public interest defence, as the Commission proposes for sub judice contempt. Courts often say that their powers are not to be exercised to prevent legitimate criticism, and that they are  not there to protect  judges reputations but the integrity of the system. So why not spell that out? Isn t the absence of a parallel public interest defence inviting the inference that it s been deliberately omitted?Nor is there a defence of qualified privilege, in marked contrast to the courts willingness to immunise political criticisms from legal repercussions, even when they are wrong and cause harm, because of the importance of free-flowing discussion about representative and responsible government. Mightn t the same be said about the importance of commentary about our courts?The role of truthAfter some hand-wringing, the Commission accepts that there must be a truth defence. In the body of the Commission s report, it describes the offence as publishing untrue allegations. But that s not reflected in its draft law. The draft law makes it a defence to show that the allegations were true, which isn t quite the same thing.That truth defence is taken almost straight out of the Defamation Act. Yet there s no consideration of how truth works in defamation cases. The first and often the most significant battle in defamation cases is over meaning. The Commission s discussion effectively assumes that this will not be an issue. The meaning will be obvious. This flies in the face of experience. What if it s ambiguous? Who has  to prove meaning? The prosecution? By what standard? The defamation standard? In a criminal offence?  Can the defendant raise a contested meaning and bring evidence to prove that?No honest opinion defenceThe Law Commission says the offence covers statements of opinion, which are not capable of proof . But it rules out an honest opinion defence. This seems astonishing.Its reasoning is equally astonishing:This defence has never been a part of the law of contempt, and it is not consistent with the overall purpose of this part of the law of contempt, which is to protect the independence,integrity and impartiality of the judiciary as an institution. Further, the likely effect of a defence of honest opinion would be to confine the proposed offence to a very small selection ofexceptional cases.So almost all cases covered by this offence would be otherwise covered by an honest opinion defence, and we can t have that. Let me spell that out. This means that according to the Commission most cases covered by this offence are expressions of genuine opinion, clearly conveyed to the audience as opinions, based on sufficient true facts that are set out or well known. Those are the requirements of an honest opinion defence. They d stop a judge suing for defamation. But not a Solicitor-General prosecuting for criminal contempt.It s worse than that. If you take the care to express your view clearly as an opinion based on accurate facts, you are in a worse position than if you just expressed it as a factual allegation. Because the Commission says you can t have a truth defence for an expression of opinion and you can t have an opinion defence at all. Might as well rark up the rhetoric. Instead of I think the judge might be corrupt , say The judge is corrupt . At least you ll have a shot at a defence.I admit, this is a bit unreal. It s extremely unlikely that the Solicitor-General would choose to prosecute a carefully reasoned criticism. I d hope that if the attack was clearly expressed as an opinion then it wouldn t get prosecuted at all, even if it was irrational or extreme. But that s no excuse for not making sure that the ambit of our criminal law is sensibly constrained.Real riskHow do you prove, beyond reasonable doubt, that someone s publication has created a real risk that the public s confidence in the independence, integrity or impartiality of the judiciary could be undermined? The test in publication contempt cases (real risk of prejudice to a fair trial) is bad enough. But at least we have some fairly well-defined notions of what a fair trial requires. This test is far more amorphous. It s hard to imagine what evidence could be brought to bear. A poll? What will happen is that a particular judge will think that public confidence might be undermined, and that will be enough. I am  inclined to think that this offence actually creates a very low threshold, partly because it is proved by showing mere possibilities that are incapable of being factually proved or disproved ( risk , could ), partly because judges have a tendency to over-estimate the dangers of this sort of threat, and partly because the wording of the section (and the demonstrably justified provision in the Bill of Rights Act) allows free reign for judges perceptions.Injunction thresholdYou read that right. The judges can issue a gag based on an arguable case that this offence has been committed. First thing to note: you can t get an injunction in a defamation case based on an arguable case. That s because of the importance of free speech and the dangers of judges acting as censors. Not here.We now have a situation where a judge can order your criticism taken down (by your web host if you won t do it) on a showing that there is an arguable case that your criticism creates a real risk that public confidence in the judiciary could be undermined. Let s call that at least a 20% chance that there s a 30% chance that there s a 25% chance that public confidence in the judiciary will be undermined.Compare this with the injunction threshold in privacy cases: compelling evidence of most highly offensive intended publicising of private information and there is little legitimate public concern in the information .Recall that falsity is not an element of the offence. And since take-down orders can be made before any charges are filed, and in the absence of the defendant, it may well not be clear whether the defendant wants to advance a truth defence, and on what basis. Do the courts even have to consider the potential truth of the allegation before making such an order?But perhaps the interests to be protected here the integrity of the justice system are more important than some ordinary plaintiff s reputation. Perhaps. I don t buy it. Here are some of the descriptions of particular named judges on Vince Siemer s Kiwisfirst site, based on what purports to be an objective survey of lawyers:impervious to the law and often undeterred by factsobsessed with self-image, which this judge understands can only be maintained by kowtowing to powerful special interestsan intellectual and moral lightweightfew lawyers were convinced this judge has anything but a facade of integritya bent judge whose recklessness has increased with his time on the benchgenerally regarded as highly partisan to self-serving interests, with suspect use of discretionary powers to get around the lawI suspect that most of these judgments arise from the acerbic anonymous comments of a handful of disgruntled lawyers, but they are not portrayed that way. If Vince Siemer s website, which stabs at the heart of judicial integrity, can exist for years without doing any noticeable harm to the justice system, it s hard to see what can. At least, it s hard to see a need for this sort of urgent injunctive power.Note too that the Commission would allow the courts to order a defendant to apologise, a power that has always struck me as silly. Defendants who don t actually feel sorry are put in the position where they are breaching a court order if they don t lie.Yes, these powers must be exercised consistently with the Bill of Rights Act, which protects freedom of speech. But judges are not always very good at applying it. And it too provides a lot of room for expansive views about what sorts of limits on speech can be justified.Do we need it?There s little demonstrated need for this offence. The last scandalising prosecution was in 2004, against Nick Smith, in a case that would have been decided the same way even without a scandalising law. The Law Commission can point to few examples of threats to confidence in judicial integrity, and those it does point to include pickets and complaints to the Judicial Conduct Commissioner, which would not fall under this law.There is no attempt real attempt to see whether the sky has fallen in the countries that have abolished the law. The Commission does point to some news stories in Britain about a Supreme Court decision about Brexit:three newspapers published photos of the three judges involved, with headings such as “enemies of the people” and “the judges versus the people” and, within the articles, making allegations that the judiciary was biased: “infested with Europhiles”, as well as making attacks on each of the judges on a personal level.A few things. Do our papers ever go this far? If they did, is it obvious that we d want to criminally prosecute them? Might the Press Council be a better remedy?The Law Commission s justifications for keeping the offence of scandalisingHere s the Commission s reasoning, and a few comments from me.(a) It is in the public interest we maintain confidence in the independence, integrity and impartiality of the justice system. False allegations, which are published without justification and which carry a real risk of undermining public confidence in the judiciary as an institution, should not go unanswered. Maintaining public confidence in the judiciary as an institution is essential for upholding the rule of law in New Zealand.In fact, the best response to most false criticisms, such as those on Mr Seimer s website, may well be to leave them unanswered. It is, at least, what we re doing now. And there s been no noticeable undermining of public confidence in the justice system. It hardly follows that this offence is the best way to go about answering such allegations.(b) As we have noted, since the Smith case in 2004 there have in fact been several serious false allegations made against judges which have gone unanswered.This seems to contradict the premise in (a) that the rule of law will be seriously jeopardised if such allegations are left unanswered. I take it as relatively clear that the rule of law is doing pretty nicely in NZ at the moment, given that we re 8th out of 113 countries in the World Justice Project s Rule of Law index.(c) The general remedies (defamation, trespass, harassment, and harmful digital communications) do not address the public interest in maintaining confidence in the judiciary as an institution. Instead, they focus on the interests of the individual judge. They also require the judge to initiate proceedings, which almost inevitably involves further personal publicity, time and cost for the judge.I think in many cases, those general remedies would work just fine. Some judges sue for defamation, for instance. Those remedies would be good enough for all of the (few) examples raised by the Law Commission in its illustrations of unanswered contempt. But they re not really being tried, sometimes for good reason. Besides, there are other avenues to reduce challenges to public confidence, including rebuttal statements by heads of bench or the Attorney-General, whose job it is to defend the judiciary. (Hello? Chris Finlayson? Have you ever done any of this?)Also: if those remedies have failed, why assume that this one will work better?Also: we already have the power to deal with this sort of contempt. It s called contempt by scandalising the judiciary. We re not using it. Why assume we ll use the new statutory offence? A press conference ignoredA press conference on the Todd Barclay affair rather gazumped the launch of the Law Commission’s report on contempt of court in June. No-one from the media turned up. That’s a shame, because the Commission is recommending some significant changes.Some notable recommendationsIn 2014, I commented on the Commission’s discussion paper, where the Commission mooted most of the reforms it now formally recommends. They include:Statutory take-down powers for courts to order temporary removal of online material that creates risks for the fairness of court proceedingsCodification of the law of scandalising the judiciary and publication contempt (the “sub judice rule”), including a new public interest defenceA new statutory procedure for managing contempt in the courtroomNew rules for dealing with jurors, including a system of warnings and explanations, and new offences stopping jurors Googling for information or disclosing information about their deliberations (or others soliciting such disclosure).A new statutory regime for dealing with breaches of court ordersThe law of contempt is a grab-bag of powers, some of them ill-defined, that the courts can use to ensure that litigants’ cases aren’t compromised by activities inside or outside the courtroom – the publication of suppressed or prejudicial material, the intimidation of witnesses or jurors, violation of court orders, disruption in the courtroom, unfounded attacks on the integrity of judges.As the Commission notes, the law of contempt isn’t easy to find, or to understand. It’s outdated. It’s seldom enforced. The Commission is surely right that it’s ripe for reform.In general, the Commission’s recommendations make sense to me. In particular:it’s better to have crimes on the statute books rather than in the common law;the current powers exercised by judges in cases of courtroom disruption – where the judge is effectively witness, prosecution and judge – are too draconian;we need to respond to the fact that jurors increasingly are going to conduct searches about their cases, even when they are told not to;it would be terrific to effectively abolish the distinction between civil and criminal contempts, or at least stop that unworkable distinction from mattering;it’s a great idea to clean up the nebulous and unjustified law of scandalising the judiciary;it s sensible to clarify the courts powers to issue take-down notices for prejudicial material.Again, in general, the research seems thorough and the discussion thoughtful.The sub judice reformThat’s not to say I agree with it all. As I’ve discussed, it doesn’t make much sense to me to claim that statutory implementation of the sub judice rule suddenly makes it “clear”. It really doesn’t. It’s still about as well-defined as a cloud of mosquitoes. Yes, it’s good to know that publishing previous convictions or related charges with a trial looming is a contempt, but that was already pretty clear. True, it would be nice to be sure that the contempt rules don’t apply until someone is arrested. And it will be helpful to give the court power to rule early on about some of the other things that can’t be published.But the new statutory test contains all the vagueness of the current common law one, revolving around “a real risk that the publication could prejudice the arrested person’s right to a fair trial”. In fact, it may create more uncertainty, because the courts would have to figure out whether this was intended to represent a change.Still, the Commission has set out a list of statutory factors for determining what counts as a real risk, including a set of things – such as publications that dwell on defendant’s bad character, poor credibility or gang associations – that may be treated as creating a real risk, and that may be about as much as we can hope for. I note, though, that this list of factors seems to be drawn from the common law, and seems untouched by the burgeoning social science evidence on what sorts of things in fact tend to prejudice jurors. That social science research – especially by world authorities Neil Vidmar and (in NZ) Warren Young is not even mentioned in this report, which I find baffling.A public interest defenceMost interesting is a proposed new public interest defence. I don’t recall this being mooted in the discussion paper. It applies where “the publication was in good faith made as a contribution to or part of a discussion of public affairs or matters of general public interest”. I’m a fan of public interest defences, but the courts have generally drawn a very strong line here. As Thomas J put it in R v Burns:[O]nce … it has been determined that there is a significant risk that the accused will not receive a fair trial, the issue ceases to be one of balancing. The principles of freedom of expression and open justice must then be departed from, not balanced against.  There is no room in a civilised society to conclude that, ‘on the balance’, an accused should be compelled to face a fair trial.Is the Law Commission saying that a good faith discussion in the public interest will not be in contempt even if it creates a real risk of prejudice to someone’s trial? It seems to be.What will the government do?In what reads to me like a pretty lukewarm response, the government is only promising to carefully consider the recommendations and respond in due course. Here s Justice Minister Amy Adams:We need to consider how these recommendations would work in practice so that any changes we make are effective and fair.Silly old Law Commission for not bothering to think about how its recommendations would work in practice and whether they are effective or fair! On my reading,  considerations of practicality, effectiveness and fairness are threaded into the Commission s discussion throughout. Has the Minister read it? Or is she signalling some disagreement? Who knows! But I m not holding my breath for a new contempt bill in the near future.I’ll blog on the reform of scandalising the judiciary shortly.

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