Kiwiblog

Craig Sisterton at NZ Lawyer writes:

Now, a recent Canadian judgment has ignited discussion about how the law of defamation applies, or not, to such blogging debates, and whether ‘anything goes’ in the blogosphere. Baglow v Smith, 2011 ONSC 5131 was a summary judgment decision of the Ontario Superior Court of Justice, dismissing an action in defamation involving political bloggers on the Internet.

The plaintiff, a left-wing blogger known by the moniker Dr Dawg (a retired bureaucrat and former executive with the Public Service Alliance of Canada), claimed that the defendants defamed him by making statements that exceeded the boundaries of their normally acrimonious political debate on the Internet. He complained that the defendants, a right-wing blogger and the owners and operators of the right-wing FreeDominion message board, defamed him by branding him “one of the Taliban’s most vocal supporters” on the message board. The words referred back to an ongoing discussion, on the plaintiff’s own blog and other websites, where the parties had vigorously debated the validity of the detention for seven years in Guantanamo Bay and subsequent military trial of Omar Khadr, a Canadian citizen who was captured by American forces as a 15 year old during the ‘War on Terror’.

The Court noted that the parties had aggressively berated each other, and often employed colourful derogatory language about the other and their beliefs. Although the plaintiff had the opportunity to respond to the ‘Taliban supporter’ comment, he chose not to do so, other than by way of a different online persona, Ms Mew, commenting that the defendants had crossed the line and that it would serve them right if Dr Dawg sued. The defendants brought a summary judgment motion to dismiss the action on the basis that the statements were not defamatory or, alternatively, that the defence of fair comment applied.

Judge Annis held that the comment was not defamatory, and said his conclusion was bolstered by the location of the debate, “namely that the alleged defamatory words were made in the context of an ongoing blogging thread over the Internet” (at [58]).

“Internet blogging is a form of public conversation,” said the Judge at [59]. “By the back and forth character it provides an opportunity for each party to respond to disparaging comments before the same audience in an immediate or a relatively contemporaneous time frame.” Blogging is distinguishable from other forms of publication of defamatory statements, and is more akin to live debate, he added at [60]-[61]. Such a context should be “considered as a contextual factor” when determining whether a statement is defamatory

I blogged on this case previously. It may turn out to be a significant one in future.

Judge Annis noted, at [85], that there was “nothing in the blogging threads which would suggest that there was any personal or inherent express malice on the part of the defendants directed at the plaintiff, as opposed to the mutual contempt of the parties for each other’s opinions and actions as evidenced by their postings”.

So, does this decision mean that it might be ‘game on’ for bloggers and commenters when it comes to slagging off those with a differing political opinion?

I don’t think it is game on, but generally you don’t want people running to the courts over a flame war. Hell I could have sued a number of blogs for defamation over comments they have made about me – especially those seeking to attack my business. But at the end of the day most of those making the defamatory comments have so little credibility it is hard to imagine it being worthwhile.

In a practical sense, says Price, we should bear in mind that bloggers defame each other (and other people) all the time and very rarely sue over it. So the judgment’s practical effect “may not be terribly great”, even if it was adopted here in New Zealand. However, the case is “a marker laid down” showing that the Courts are prepared to consider whether there is something distinct about speech on the Internet, at least in the context of political threads. “It revolves around the idea that the best remedy for bad speech is more speech rather than legal liability,” says Price. “It can be seen as reflecting the importance of political speech. It incentivises rights of reply. It recognises that defamation suits seem a disproportionate response to online bun fights. I suspect that these ideas will continue to affect the development of the law, though I suspect that the solution in this case (‘it’s not defamatory’) is not the best way to address them. Better would be a form of qualified privilege for people participating in such debates in good faith.”

There’s some comments from me, as well as those from Steven Price.

Adam Bennett in the NZ Herald reports:

Labour would actively “intervene” to kick-start the Christchurch recovery, including entering the land development and insurance markets if it felt that was necessary, leader Phil Goff says.

Mr Goff this morning launched his party’s quake recovery policy package.

“The next Labour Government will intervene to give Cantabrians affordable choices to help rebuild their homes, businesses and lives after the devastating earthquakes”, he said at the launch in quake stricken Kaiapoi just north of Christchurch.

“These are extraordinary times for Canterbury and the Government must respond accordingly. Business as usual won’t cut it.”

Mr Goff said the government needed to take a more active role in the rebuild.

Goodness, you would think the Government had done nothing, rather than actually commit billions of dollars from taxpayers towards rebuilding Christchurch.

Ring-fence a maximum of $100 million from the Canterbury Earthquake Fund to ensure home improvements to houses in the Red Zone are reimbursed up to a maximum of $50,000

As someone said on Twitter, this is a repeat of their 1957 policy of “Do you want 100 pounds or not”? I’m surprised Labour haven’t made the same offer to everyone in New Zealand who has sold a house for less than they think it is worth.

The Department of Labour has published a report they commissioned on the impact of the decision by Parliament in 2008 to replace the youth minimum wage (set at 80% of adult minimum wage) for 16 and 17 year olds with a new entrants minimum wage that lasts for 200 hours only (5 weeks full-time).

They found:

This research found that this minimum wage increase accounted for approximately 20–40 percent of the fall in the proportion of 16 and 17 year olds in employment by 2010. Overall, this implies that the introduction of the NE minimum led to a loss of 4,500- 9,000 jobs for 16 and 17 year olds (employment of 16 and 17 year olds fell from 61,400 to 39,500 between 2007 and 2010).

I want readers to quote that figure to both Labour and National MPs and candidates if they ever talk about wanting more young people in jobs. Tell them you don’t want platitudes but will they reverse a decision that put up to 9.000 young people out of jobs.

The change did not just affect 16 and 17 year olds though. It also led to some people working fewer hours and earning less money than before the change.

The research also found that, relative to 20 and 21 year-olds, average hours worked by 16 and 17, and 18 and 19 year olds fell after 2008, as did their earnings and total incomes.

This study is based on the 100,000+ pieces of data collected in the Household Labour Force Survey over the last few years, so it is not just a “view point”, but a rigorous study based on extensive research.

I hope National has the guts to do the right thing, even if not the popular thing, and announce they will at a minimum reintroduce a youth minimum wage. They could even grandfather current rates in, so leave the current youth rate at $13/hr until it hits the floor of 80% of the adult rate which would take several years to occur, being $16.25 an hour.

Or they could be really ballsy and just announce that the minimum wage in future only applies to those aged 18 and older rather than 16 and older.

Elizabeth Binning in the Herald reports:

Schools are being accused of going too far in what they teach children about sex.

Children as young as 12 are being taught about oral sex and told it’s acceptable to play with a girl’s private parts as long as “she’s okay with it”.

In other cases, 14-year-old girls are being taught how to put condoms on plastic penises, and one female teacher imitated the noises she made during orgasm to her class of 15-year-olds.

Well hopefully it was just an imitation.

One concerned father, who did not want to be identified, phoned Newstalk ZB to say he had taken his 12-year-old son out of a sex education class at his all-boy school after he came home upset about what had happened during one of the lessons.

It included a question-and-answer session that focused on, “I have learned that my girlfriend has a thing called a clitoris. I really want to play with it. Is that okay?” The answer was: “Yes, if you ask her and she’s okay with it.”

Goodness. The most we did as 12 year olds was play spin the bottle.

I wonder if the teachers giving the sex advice, also tell 12 year old girls that their boyfriends have penises and that if they want to play with them, it’s okay so long as you ask them first?

Mind you, I learnt the hard was some time ago never to under-estimate how much kids know. When I was a youth group leader (in my 20s) two ten year olds were talking openly about how one of them was going to get his girlfriend to give him a blowjob that weekend. I told them off of course for the inappropriate conversation but made the mistake of saying he shouldn’t use a term he doesn’t fully understand just to shock people. Before I could finish, the 10 year old had rushed out a very good technical description of oral sex and all the female leaders laughing at me as blushing I explained that yes I knew what it was also. Since then I have never assumed that kids don’t know what they are talking about when it comes to matters sexual.

On the main topic, I would hope that any sex education would discourage kids from touching each other’s clitorises and penises until they are 16, even if they do ask for permission. Sure many won’t wait, but it would be useful to point out to them that they may be breaking the law if they do not wait until 16.

An interesting press release from Joseph Bergin:

A member of the youth panel set up by Auckland Council is speaking out about wasteful spending and the concerning direction the panel is heading in.

This comes as a report is due out from the Auckland Council today which recommends local boards adopt a “youth board model” that could cost the Auckland ratepayer upwards of $330,000, this on top of a further $90,000 revealed to have been wasted by the current panel earlier this week.

I am a fan of youth involvement in politics, and I think it is a good idea that the Auckland Council has a youth panel.

However recommending that each local board also has a youth panel at a cost of $330,000 is tokenism gone wrong. The issues for young people will not differ that greatly from board area to board area.

The panel came under fire this week on social media following the release of an Official Information request by the New Zealand Young Nationals revealing that almost $90,000.00 was being spent by the current Foundation Youth Advisory Panel, on taxi rides, phone top ups, petrol reimbursements, flights and food for panel members.

I think the youth board would be best advised to provide some useful outputs for its funding, rather than just trying to clone itself 20 times over.

An interesting article in Business Insider on whether Palin may leave the Republicans and run as an Independent:

Palin has stated that she will (finally!) announce whether or not she’s going to jump into the Republican primary race by the end of this month.

Expectations were high that she might just announce her intentions a week ago, at an appearance at a Tea Party event in Iowa. Once again, Palin declined to do so.

Palin’s got three options, in essence. Number one, throw her hat in the ring and vie for the Republican presidential nomination against the field.

Number two, announce it’s been a big tease all along, and she won’t be running — and, likely, that she’s going to hold off endorsing any candidate “for now,” in a naked effort to keep her teasing of the media going strong for months to come.

But there is a third option she might opt for, which seems (upon examination) to have a lot of potential upsides for Palin, and relatively few downsides: running as a third-party candidate.

Running as an Independent would seem — to most political commentators and Washington establishmentarians — as a huge mistake for Palin. This is yet another upside, seen from the point of view of Palin herself. She can’t standthe pundits and the insiders, remember. She isn’t afraid of bluntly letting them know this, either. Confounding these two inside-the-Beltway groups would be a source of continuing delight for Palin. She would revel in the opportunity to play the cat among the pigeons, once again. Defyin’ the lamestream media, and defyin’ the Washington bigwigs would be lotsa fun, oh, you betcha!

Matthew Backhouse in the Herald reported:

Families of suicide victims have urged Prime Minister John Key to consider a review of the “abusive” coronial inquest system.

The meeting comes after a spate of youth suicides have rocked communities in Masterton and the small Bay of Plenty logging town of Kawerau in recent months.

Suicide prevention group Casper, and victims’ families and supporters from Kawerau, yesterday presented Mr Key with its latest strategy on tackling suicide. It calls for shifting suicide prevention efforts from mental health clinics to families and communities.

Casper spokeswoman Maria Bradshaw said the group asked Mr Key to conduct a review of the coroner’s court, which is tasked with identifying lessons to be learned from individual suicides and making recommendations to prevent further deaths. …

The group called on Mr Key to consider a Royal Commission of Inquiry into suicide, which he said he would consider.

Mr Key has already indicated his commitment to tackling the issue, having instructed his department to launch a review of the youth suicide rate, which is the highest per-capita in the developed world for girls and the third highest for boys.

I recall the first time a teenage friend of mine killed themselves. I still think of her quite often, and think about what could have been done to prevent her suicide.

But there is no one view on how best to change things, even amongst families of those who killed themselves. A different view to that of Ms Bradshaw and Casper can be found at the Vendetta on Suicide blog, specifically this post:

Steve Hopkins at Stuff reports:

The leader of the Conservative Party, Colin Craig, has confirmed he will stand as the Rodney electorate candidate.

The announcement today ends speculation he would stand against John Banks in Auckland’s Epsom.

Craig says he was attracted to the challenge of taking on Banks, his former mayoral campaign rival, but he’s ”followed his heart by standing for the people” of Rodney.

”I’ve lived in Rodney and my business involvement here has spanned more than 20 years. Many of my family live here and I’m passionate about getting things moving for everyone in the region,” he says.

Craig’s father Ross Craig was a Rodney district councillor until the Auckland super city council was formed last year.

This is a much more sensible decision, than standing in Epsom would have been. Standing in Epsom would only have benefited Labour.

Craig appears to be seeking the same sort of voters as NZ First – socially conservative, and economically centrist. If NZ First does not make it back in, then in 2014 Craig has the possibility of picking up many of his voters. In 2011, it will be harder.

The Conservative Party claims polling in the area shows Craig is ahead of his nearest rival.

Meanwhile, further polling by the party claims to show Banks is struggling to win over Epsom voters.

Of those who had decided who they were likely to vote for as an electoral candidate in Epsom, 35.3 per cent say they would vote for the National candidate, 31.4 per cent would tick Banks, and 27.4 per cent say they would give their vote Craig if he was on the ballot paper.

So the Conservative Party claims it is ahead in Rodney? I’d love to see the name of the polling company they use for these polls, and what he exact questions were.

UPDATE: Act on Campus point out Craig was polling against the retiring MP, not the actual National candidate. He must literally have money to waste.

Personally I’m even more doubtful of a poll that says Craig would beat Lockwood if he was standing again.

Kate Chapman at Stuff reported:

It is a brave woman who takes on a government alone.

But with her professional reputation in tatters and a successful communications career hanging by a thread, Erin Leigh felt she had few options left.

It also takes a rich woman to challenge the establishment and, despite a recent Supreme Court ruling in her favour, Ms Leigh has had to abandon her defamation suit against the Environment Ministry and former deputy secretary Lindsay Gow. …

Ms Leigh has been caught up in the Christchurch earthquakes and felt financially unable to carry on the legal battle.

While happy with the result, she regretted not being able to carry on her own fight.

We should all remember the Leigh case in future, in case Labour tries to position itself as a champion of whistle-blowers.

Ms Leigh says his claims of her incompetence were completely untrue. She also laughs at accusations of being a National lackey.

“I’d always been a Labour Party voter. The first MP that I voted for was actually Trevor Mallard.

“It was beyond my imagination at that point that they would actually make up a whole lot of stuff that wasn’t true.”

That was the culture of the times. If you spoke out, you were dealt to.

I was interviewed as the first guest pundit yesterday for the Slightly Correct Political Show hosted by Jeremy Elwood and Pat Brittenden. You can listen to the podcast at their Facebook page, plus I think it will be on Pat’s ZB show.

Anthony Hubbard in the SST writes:

Many people think women have taken their full place in our national politics. In fact, the number of women MPs has plateaued at a bit over 33%. Every second Kiwi is female, but only every third MP. This is the persistent pattern, despite the blip that brought four women to the top for a short while last decade. It won’t do.

MMP has helped. In 1993, the last election under the old first-past-the-post system, one in five MPs were women. The figure shot up to 29% at the first MMP election, but in the four since then it has sort of stuck. Is this as good as it gets?

Hubbard looks at the National party list and includes some comments from me.

Some say the problem runs deeper: that women are more reluctant to stand for office. National Party presidents have grizzled for decades that the party wants more women candidates but that women won’t put themselves forward.

There are plenty of possible reasons. One is that women candidates still get a lot of flak that men candidates don’t. People want to know how women MPs will care for their children, but not male MPs. Women MPs have their looks, dress sense and sexuality discussed more commonly than men.

I think this is sadly, true. It is very tough for female candidates.

It’s possible that women are less likely to want to be MPs, and not just because of the sexism they face. Perhaps the whole lunatic life of the politician is less likely to appeal to them. Perhaps fewer women have that particular kind of ambition. If this is true, why? There are a library of PhDs waiting here to be written, and a lot more hard thinking needs to be done by the parties.

Research I would like to see done, would look at the barriers in stages:

1. How many men and women indicate their interest in being candidates to a party
2. How many go on to contest a selection
3. How many win a selection
4. How many then get elected to Parliament

My gut reaction is that once women get to be candidates, they get elected in the same proportion as men. The challenges are now around the selection stage.

Michael Field in the SST reports:

National party president Peter Goodfellow denies there is a conflict of interest between his investment in the fishing industry and the ministerial inquiry into allegations of slavery at sea.

The University of Auckland Business School and the Sunday Star-Times have both uncovered stories of around 2000 Asian men working in slave-like conditions on foreign charter vessels (FCV)s.

The revelations have prompted the inquiry into the pay and conditions on board these boats.

It can now be revealed that Goodfellow has a substantial interest in the fishing company Sanford, which last year held 23.54% of the allowable catch under the Quota Management System. The company uses four Korean FCVs and five of its own boats.

In its latest report Sanford said it would “work with officials to counter the ill-informed and politically motivated demonising” of FCVs.

Goodfellow and his brother William are on the Sanford board, each receiving an annual fee of $47,500, and 37% of Sanford stock is held by Amalgamated Dairies Ltd, a Goodfellow family-controlled company.

Goodfellow, in his own name, owns Sanford stock worth, on Friday values, $623,000.

The latest issue of Professional Skipper magazine said the ministerial inquiry should not amount to a “quick sweep under the table” and the magazine called for Goodfellow to “now step aside [as National Party president] and distance himself because of a potential conflict of interest”.

What nonsense. We have so many idiots who do not know what is and is not a conflict of interest. If Peter had been lobbying Ministers not to undertake an inquiry then you might have a conflict. If Peter had been appointed the the inquiry board, then there might be a conflict.

But being a director of a firm, which might be impacted by a ministerial inquiry is not a conflict.

One former party president was a lawyer. Does that mean the Government couldn’t make any changes in the justice sector?

Was walking around Christchurch this morning and passed a sidewalk cafe. Just as I walked past I heard one woman saying to another “so was it 15 to 9″ and I said “15 to 6″ as I passed them, knowing that there was only one possible game they could have been discussing.

Today

• Wales v Samoa – 3.30 pm. Hoping Samoa do an upset.
• England v Georgia 6.00 pm. All behind Georgia.
• France vs Canada 8.30 pm. Can Canada do it again?

No games tomorrow but there is one on Tuesday.

David Fisher at the HoS reports:

Grey Power is studying a proposal to take the pension away from retired people who earn more than $80,000 a year.

Studying is probably a euphemism for ritually burning.

The proposal, leaked to the Herald on Sunday, was written by Grey Power’s Coromandel representative, Mac Welch, and distributed by the organisation’s president, Roy Reid.

Welch described national superannuation as “unaffordable” and said the Government was “under pressure”.

He wrote of hearing Grey Power members referred to as “old greedies” and it was time to consider means testing.

He said he wanted to start discussion around a $40,000 income trigger for reducing pension payments and completely cutting the payment at $80,000.

Earnings of $80,000 a year work out at $1180 a week. Welch’s proposal would mean someone on that money would no longer be able to collect the $340 a week pension payment as well.

I believe all welfare benefits, including super, should be both income and asset tested.

Has the Herald on Sunday sacked all their staff and now just sit there reading social media? Probably too harsh a call, but look at just today’s stories:

• The Raybon Kan story – based on a tweet by him
• The Labour wife story – based on her blog
• A “glass of wine” story – based on a tweet by Cameron Brewer
• A “English rugby” story – based on a tweet by Rachel Smalley

I’m all for reporting on news-worthy stuff found in social media, but there is a balance.

I initially got excited when I saw the headline that a “Labour wife” was predicting National would win some marginal seats against Labour. I wondered which “high ranked” candidate’s wife it was – maybe Mrs Cunliffe or Mrs Jones.

But alas the story turned out to be very much a non-story, as the wife was Julie Fairey who is married to Michael Wood. Michael is ranked No 32 on the list.

Julie is a long-time political activist in her own right. She was highly active in the Alliance and is also a political blogger. To categorise her views as a “Labour wife” is somewhat demeaning to her.

Would the HoS report what Matt McCarten says as “partner of Cathy Casey”?

Julie Fairey, who is married to Michael Wood – number 32 on Labour’s list – wrote on the Hand Mirror feminist blog that National would probably retain Auckland Central, Maungakiekie and Hamilton West. Labour lost all three seats in 2008 and was keen to get them back in November’s general election.

If it was Michael himself saying this, then I could understand the media interest. Incidentally Julie blogged her views some weeks ago. Obviously someone has just suddenly made the connection.

Fairey, a former Alliance Party candidate, did not think her predictions were damaging to Labour’s brand because she was not part of its “message machine”, despite being married to Wood.

Exactly.

The HoS reports:

Kiwi comedian Raybon Kan was under fire last night for linking the Holocaust to All Black sponsor adidas and Auckland’s Rugby World Cup travel woes.

Kan said online: “Maybe adidas should run Auckland public transport. Nice German company. They should know how to load thousands on to trains.”

Heh. It’s bad taste, but most jokes are – just to varying degrees.

Kan said he had not had any complaints. “You’re looking for offence that hasn’t happened. I invite those people to email me,” he said.

So the media have gone off trying to find someone offended.

New Zealand Jewish Council chairman Stephen Goodman said Kan belonged to a generation that had not dealt with the harsh realities of the Holocaust.

“But ignorance is not an excuse to trivialise what happened,” he said.

The Holocaust is the greatest evil of recent generations (and no this is not an invitation to debate that here – use general debate if you must). But I don’t think humour necessarily trivialises it. The target of Raybon’s humour is not Jews, the Holocaust or even Germans, but Adidas.

The Herald on Sunday will forward emails to Raybon Kan. Send your thoughts to: news@hos.co.nz

I’d encourage those who don’t think Raybon did anything wrong to also send their thoughts through.

Ireland has beaten Australia 15-6. That’s a massive upset victory.

We now have a second reason to love the Irish – on top of their wonderful accents!

Ireland were probably playing to a more fanatical home crowd than they normally get in Ireland itself! Would have been an amazing game to be at the ground for.

Yesterday

• NZ v Japan 83 – 7. A very reassuring game.

Today

• Argentina 43 v Romania 8
• South Africa v Fiji – no now. Bloody difficult to know who to cheer for. I’ve decided to support the Boks.
• Australia v Ireland – 8.30 pm

Tomorrow

• Wales v Samoa – 3.30 pm. Hoping Samoa do an upset.
• England v Georgia 6.00 pm. All behind Georgia.
• France vs Canada 8.30 pm. Can Canada do it again?

The Telegraph reports:

Brownyn Torrie reports at Stuff:

A decision on Transmission Gully will be made within months, nearly a century after an inland route was first suggested – but tolls are still likely to help fund it.

Environment Minister Nick Smith referred the roading proposal to an independent board of inquiry yesterday under new rules to fast-track projects of national significance.

Dr Smith said the swift process would avoid lengthy delays such as the 17 years it took Wellington’s inner-city bypass to gain approval.

There is still more reform to be done of the RMA, but thank goodness a major project can now be consented in a matter of months rather than years.

The board of inquiry, to be overseen by the Environmental Protection Authority, will decide within nine months whether the project can go ahead as planned.

Construction could start as early as 2015.

Great. Up until this Government, I thought I would never see it in my life-time.

Transport Minister Steven Joyce said Transmission Gully would cost just under $1 billion and a toll to contribute to the cost was still likely.

I will happily pay a toll to use the road. All for user-pays.