Are blogs media?

December 2nd, 2013 at 12:00 pm by David Farrar

Media lawyer Steven Price blogs at Media Law Journal:

As the NZ Herald reports, the owner/operator/author of NZ’s most widely read blog is being sued for defamation. The plaintiff has formally asked him whether he knows the name of his source. (You might have thought that the answer to this might simply be “yes”. But I guess there’s an obvious follow-up). Slater has refused to answer on the grounds that he is a journalist, writing for a news medium, and therefore does not need to reveal his source. This rule is contained in s68 of the Evidence Act 2006.

Note a couple of things. First, in order to get this source protection, Slater has to show that his blog is a “medium for the dissemination to the public or a section of the public of news and observations on news.”

Second, even if he is a journalist, that doesn’t guarantee that he won’t be ordered to reveal his source(s). The judge can order him to identify his source on the grounds that the public interest in disclosure outweighs the negative impact on the source and the general impact on the flow of information to journalists. This rule applies to all journalists.

So if you are recognised as media, it does not mean you will automatically not have to reveal your sources. It means the threshold for you to be forced to reveal them is higher.

The Judge ruled:

Whale Oil is a blog site. It is not a news medium within the definition of s68… of the Defamation Act. It is not a means for the dissemination to the public or a section of the public of news and observation on news.

Price comments:

The judge gives very little reason for this conclusion. It seems a very questionable one. Whatever you think of WhaleOil, it’s hard to deny that he breaks news stories, and that he writes commentary on news. When you factor in the requirement that the courts are supposed to have regard to rights of freedom of expression under the Bill of Rights Act when interpreting statutes – and there’s a respectable argument that protecting sources facilitates the flow of important information – then there seems a powerful argument that this section ought to be construed widely enough to encompass at least some bloggers.

It is a pity the Judge gives no reasoning at all. As Steven says, the conclusion is questionable – at a minimum.

Yet another problem is that the Commission’s inclination was to allow bloggers to be included in the regime, on the grounds that it made no sense to distinguish between mainstream media and bloggers when both were serving the interests of free speech. It would have treated anyone as media who regularly published news and opinion of current value to a public audience, providing they agreed to be bound by an ethics regime. This last element is problematic for Cameron Slater’s case. But in the end the thrust of the report is the need to recognise the valuable news-role played by at least some bloggers.

So in the end, the judge’s conclusion is simply not convincing.

Basically the Law Commission actually said blogs should be able to qualify as media, so long as they had a code of ethics and were subject to an independent complaints process like other media.

It gets worse though. The judge goes on to consider the High Court rules. He cites a rule that says a defamation defendant doesn’t have to disclose sources before trial when pleading honest opinion or privilege. The judge says this rule doesn’t apply because Cameron Slater didn’t argue a defence of “honest opinion on a matter of public interest.” This reasoning seems particularly weird to me. The defence of honest opinion no longer requires  that the comment be on a matter of public interest. He doesn’t need to plead public interest: it would be superfluous. It seems to me that this rule surely applies to a defendant who pleads honest opinion, which Slater did. So I think the judge is wrong there too.

All sounds ripe grounds for an appeal.

UPDATE: Russell Brown blogs on this issue also:

But this is really to misread the Commission’s overall perspective on blogs and similar internet publications – which is that they can and do play an important role in public debate. It ultimately proposed a new news media regulator, which blog publishers could opt to join and be subject to.

He also declares that Whale Oil fits the definition in the Evidence Act:

Whatever you think of Slater’s personal style, I don’t think you can reasonably argue that Whaleoil does not do this.

Brown looks at the wider ramifications:

On this site we do not and are not likely to attract defamation actions in the way that Cameron Slater does. But I was threatened with such action this year. I was aware at the time that a discovery order was a possibility if it went ahead – and also confident that discovery would not reveal anything harmful to my defence. Sources weren’t really an issue. But had things been different, it would have been extremely undesirable to have had my rights ruled out on the argument offered by Judge Blackie.

He concludes:

Anyway, Slater is appealing the decision and I don’t need to defend his work in this instance to hope he succeeds.

Maybe people can help donate to fund the appeal.

UPDATE2: Greg Presland at The Standard also blogs:

It may be that for the greater good Cameron Slater must succeed in his appeal.  

Rare agreement across the political spectrum.

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Fair go being pressured?

March 4th, 2012 at 12:06 pm by David Farrar

Steven Price blogs:

So the head of TVOne and Two, Jeff Latch, asks for a powwow with Fair Go staff. Labour broadcasting spokesperson Clare Curran asks whether, at that meeting, he asked them to go easy on TVNZ’s advertisers.

Latch said he just stressed the need for balance. Price comments:

It does make sense. So much sense, in fact, that you have to wonder why Jeff Latch had to organise a meeting with Fair Go to tell them that. Did he also mention that they should try to be accurate? Not defame people? Latch should know that Fair Go are probably the TVNZ reporters best versed in broadcasting standards and media law, since they deal with them every week.

Then the key part:

Asked if he was instructing Fair Go not to produce programmes that upset advertisers, he said “it wasn’t an instruction, per se.”

Not per se? This sounds weasily to me. Was it a hint, Mr Latch?

Any suggestion that advertisers on TVNZ should be treated differently to non-advertisers by Fair Go, is abhorent.

Price concludes:

Because actually, Fair Go has a pretty good track record in its broadcasting standards complaints. It has not been listed in the BSA’s “Most complained about” shows for at least the past three years, despite the fact that it often makes serious accusations against people with the resources to sue. Likewise, there haven’t been any reported defamation cases against them in the last few years, as far as I can tell. Was there a big secret settlement recently?

If not, Mr Latch – how should I put this? – you should stay the fuck away from the Fair Go staff. It’s their job to tackle TVNZ’s advertisers when that is merited, and it’s your job to hire good journos then leave them to get on with their job.

A fair conclusion.

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Price on DRIP

April 28th, 2010 at 10:26 am by David Farrar

Steven Price has a useful piece on the UN DRIP, and what impact it could have in NZ law.

Starting to get the idea that this has been overblown a bit? Right. It doesn’t provide “rights of veto” over legislation. It doesn’t put Maori on a path to self-determination or separatism. It will not influence all future law and policy practice.

Here’s what it might do. Lawyers may occasionally use it to suggest that a particular statute or statutory power should be interpreted consistently with it, but only where:

1. the statute is genuinely ambiguous, AND

2. the declaration is highly relevant to the issue, AND

3. the lawyer is able to slide around the problem that the declaration is not based on any government promises , and so does not technically raise the presumption of consistency with international obligations; AND

4. the lawyer also overlooks the government’s cautious statement to the UN about the boundaries of its support for the declaration; AND

5. there is a favourable wind.

I think that describes it fairly nicely between those who say there will be absolutely no effect at all, and those saying it is going to have a massive effect.

It’s likely to form but one strand of an argument made up of many others, or it’s likely to lose. Hardly “an invitation to existing courts to expand an existing breach into a chasm”, as Laws would have it.

If it is there, people will try to argue it from time to time. Winning is another issue.

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Dom Post et al on name suppression

January 13th, 2010 at 10:12 am by David Farrar

The Dom Post editorial today is on blogs and name suppression. Extracts:

As the internet has transformed the world, the blogosphere within has become pervasive. Anyone with a computer can either read the opinions of people who craft blogs – sometimes, merely illiterate streams of consciousness – or pen one themselves.

That some who cannot spell, let alone write, think that the world is gagging to know their business is as presumptuous as tweeters who think everyone is interested in their self-absorbed lives. Be that as it may.

Some blogs demand attention, in this country those by, for example, David Farrar, Russell Brown and Cameron Slater.

I’m not sure if that means we are excluded from the description of merely being illiterate streams of consciousness!

Attention Slater has now got.

Last month, police charged him with breaching name suppression orders when, on his WhaleOil blog, he posted pictorial clues identifying the accused in two high-profile sexual offence cases. This week, he revealed by way of binary code the identity of a former national figure accused of a sexual attack on a 13-year-old girl.

Nelson police, who laid the latest charges, call Slater’s actions irresponsible, because they fear they might lead to public identification of the victim, whom the suppression order was intended to protect.

Slater is on a mission. He has said, outside the courtroom, that he believes everyone should be equal before the law, that celebrities and the wealthy have their identities suppressed more often and more easily than do ordinary Kiwis, and that the law needs changing.

The Dominion Post agrees. But there are better ways to lobby for a more open court system than by putting at risk the future of a teenage girl.

I agree, but point out a newspaper had already effectively done the same thing.

At the same time, Slater has forced police, perhaps the solicitor-general, possibly Justice Minister Simon Power, Courts Minister Georgina te Heu Heu, and Attorney-General Chris Finlayson, and maybe, later, the judiciary, to confront the fact that the Criminal Justice Act, which gives judges the power to suppress certain information relating to cases before them, needs revision.

Which I believe is likely, on the basis of the Law Commission report and the comments at the time from Simon Power.

In the meantime, it is reassuring to see the Crown Law Office has decided that it can no longer apply the law relating to suppression unequally. At times of egregious breach, the solicitor-general has been keen to go after those in the mainstream media who have broken suppression orders or otherwise committed contempt of court.

For the most part, however, inhabitants of the blogosphere have been merely warned about their cavalier disregard of suppressed information or other transgressions, notably during Clayton Weatherston’s trial for murder.

Either everyone who breaches this law is prosecuted, or no-one is. And were the latter to become the reality, those sections of the Criminal Justice Act pertaining to suppression orders need to be repealed.

I find it quite funny that yesterday we had bloggers such as myself saying that the media are getting away with transgressions, while today the media are saying the bloggers are getting away!

An excellent summary of the whole issue has been done by Steven Price. I won’t do extracts because people should read the whole thing.

Law Professor Andrew Geddis has done a second post on the issue.

Also a number of posts from media lecturer Martin Hirst at Ethical Martini.

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R v the Internet

December 3rd, 2009 at 11:32 am by David Farrar

The seminar on the Internet and the Courts has been really good so far. You can follow it on Twitter here. It is also being filmed and will be viewable on the Internet.

Chris Finlayson gave a very amusing and interesting opening address. Referred to how someone once threw a cat at a Judge and the Judge said if you do it again, it will be contempt. It is indexed in law journals as “cat throwing-contempt-one cat allowed-two cats is contempt”.

He also said how relieved he was to find the room full of relatively normal people (ie lawyers) rather than Farrar-like hobbits :-)

Professor Tony Smith had what I considered a good suggestion that the Courts have a staffer who proactively looks for material before a trial starts that may be pose a risk to a fair trial, and asks voluntarily for temporary removal.

Solictor-General David Collins talked about how Internet issues take up a large amount of his time, and the inability of getting Yahoo to remove material. Is seeking an agreement between governments to seek to enforce each other’s court orders to ISPs. There are some risks with this approach, as if publishers are deemed to be subject to the laws of every country they have readers, the lowest common denominator can apply.

Steven Price said that compulsory filtering only happens in repressive countries like China and Australia. Heh. Said genie was out of the bottle but not sure if it is a problem. Thinks there should be less use of contempt.

Robert Lithgow QC said he was probably only person in room who has prosecuted for contempt, defended people for contempt, has been charged with contempt himself and in fact appears shortly in the Supreme Court for Vince Seimer over his contempt issues.

He agreed with Steven Price largely and said the law of contempt is fundamentally buggered and only getting at the nutters now. He also said that there is no constitutional significance to modern commercial media as we don’t need them now, as bloggers are the public! Said the press are watchdogs and mongrels. They bark indiscriminately and only interested in food and biting!

Radio NZ Political Editor (and Chair of EPMU Media Committee) Brent Edwards said Internet got around censorship in even most sinister regime, so will do so in countries like NZ.

Robert Lithgow suggested all court cases should have a static camera so people can view over Internet, and not rely on the media so much. I agree entirely.

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Blog Bits

November 25th, 2008 at 5:07 pm by David Farrar
  1. Busted Blonde has a post on domestic violence and how she spent several years in an abusive relationship. Go read it, and make sure you show it to any friends who need to read it.
  2. Adam Smith blogs on the Giles cartoons. As a child I loved Giles cartoons, and every year could not wait for the annual. Grandma was my favourite character. For those who never saw them, you missed out on classics.
  3. Matthew Hooton makes the case for an Upper House.
  4. Steven Price reviews two decisions by the Advertising Standards Authority.
  5. Matt Nolan wants some better statistics from the Government.
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Kill the worm

October 9th, 2008 at 10:00 am by David Farrar

Steven Price has an excellent piece on why TV3 should not have a worm:

We no longer need to listen to the debates and think about what we’re hearing for ourselves. We have an electronic scorecard. An infallibly scientific one. A fascinating, beguiling one. Instead of thinking to ourselves, “Now, is Helen Clark making any sense?” we think, “How is that going down? Is she winning the game?”

It’s politics as pure sport. We are mere spectators. The worm relieves us of the burden of having to work out for ourselves who’s ahead.


But hang on. The worm is simply the electronically summed gut reactions of a bunch of undecided voters twiddling some knobs in a room somewhere. Why take any notice of them? You won’t be told who they are, but you can make some safe assumptions.


First, the great majority of them will not share your political views.


Second, you would find some of them to be complete tossers.


Third, you have no idea what they are reacting to. You’re watching their reactions to the leaders’ ideas – mostly before the leaders have finished expressing them. Some of them are thinking, “Yeah, I’ve been following National’s Treaty of Waitangi policy and it makes good sense to me.” Some are thinking, “Ooh, I like his tie.” Some are thinking, “Damn, I forgot to remind Trish to pick up the sausages.”

So true.

When the worm was first used in 1996, Pam Corkery reckoned it simply went up when the live studio audience applauded. Wellington businessman Michael Gibson observed that the worm dipped whenever Paul Holmes appeared onscreen, no matter who was talking.

Heh.

There was also lots of coverage about how the worm adored Helen Clark. The commentators examined her “empathetic nodding,” her “softer, modulated voice,” her “pained sincerity,” her “ability to project an authoritative presence.” They didn’t examine her policies much.


And that’s why I hate the worm. It’s yet another thing pushing us toward image analysis and horse-race politics, and away from talking about how we’ve been affected by the government’s decisions in the last three years, what the alternatives might have been, and what policies are best for the future. The worm finds this stuff too boring. It doesn’t like long explanations. Nor does it like taxes (though it does like improvements in health and education). It doesn’t like uncomfortable truths being mentioned.

It turns a debate into a game show. No serious broadcaster would use one.

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Price on Parliament and court cases

September 27th, 2008 at 3:00 pm by David Farrar

Readers may recall a massive scarp between Rodney Hide and the Speaker when she refused to allow him to talk about the Wayne Crapper perjury video, because Winston claimed it was the subject of a court case.

Steven Price takes a look at how the Speaker ruled:

In the end, the Speaker ruled in Peters’ favour, saying Hide was in breach. “Nothing said in the House should prejudice, however slightly, the decision of any court,” the Speaker said. “The House applies more rigorous inhibitory standards on itself than apply to the media in reporting judicial proceedings.” This is because the legislature “should take extreme care not to undermine confidence in the judicial resolution of disputes by intruding on individual cases”.

I don’t know what precisely is in issue in the lawsuit. But I think that ruling is wrong. I’m worried about the phrase “however slightly”.  It’s a ridiculously low threshold, far lower than that applicable to the media. The rules applying to them say they can’t create a “real risk of prejudice” to an upcoming trial. That’s nebulous and chilling enough. This “however slightly” nonsense goes much further.Is it required by a sensible reading of the rules? Nope. In fact it flies in the face of the language that demands “a real and substantial danger of prejudice”.

Is it required by the needs of the administration of justice? Nope. If the courts can tolerate the media commenting on cases as long as they don’t create real risks of prejudice, then they can put up with MPs doing the same.

Is it good policy? Nope. There seems even more reason to cut our elected representatives some slack when conducting the business of the nation than there does for the media.

Is is good law? Nope again. The Speaker has forgotten that the Bill of Rights Act, which was passed by Parliament and says explicitly that it applies to Parliament, requires any restrictions on free speech to be demonstrably justified. You’d think that might be a relevant factor when considering how to interpret Standing Order 111. Apparently not.

I also thought it was a bad ruling. It actually allows any MP to gag any other MP by claiming that what they are referring to is the subject of a lawsuit.

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The Veitch leaks

August 26th, 2008 at 1:18 pm by David Farrar

Quite a bit of discussion regarding the ongoing media stories in the Veitch case. Bill Ralston wants an investigation:

What ever happened to the laws of sub judicae? The weekend’s Sunday Star Times and Herald on Sunday both reported at length on the nature and detail of the charges faced by Tony Veitch.

In theory the sub judicae rule bars any public comment on a matter before the courts that is likely to influence the case. Failure to observe this rule means the publisher and anyone else involved in publicising the material could face contempt of court charges.

The reason for the rule is simple: pre-trial publicity can potentially sway a jury.

The Sunday papers had far more information than was made public in Veitch’s first and only court appearance. They detailed the nature of the alleged assaults and the context in which they supposedly occurred.

Steven Price is less concerned:

Some defence lawyers have been getting their knickers in a knot about reporting on the Veitch case in yesterday’s Sunday Star-Times and Herald on Sunday.

Can’t say I share their concerns. Certainly, now that charges have been laid, publishing material that tends to create a real risk of prejudice to Veitch’s trial will be a contempt of court. But there doesn’t seem to be much in these stories to create such a risk.

They essentially summarise the police allegations. It looks like they came from the police summary of facts. The papers reported them as allegations. They note that Veitch denies them. They don’t get into assessing the evidence. They have reported no more than is almost certain to come out in depositions. Any trial is a good long way away, so any possible effect on jurors is almost sure to dissipate.

Russell Brown also thinks the leaks are getting too much:

That’s three weeks by my count. Three weeks of stories being placed with the Sunday newspapers by persons unknown, but — at the least in the case of the last lot — very likely to be playing for Team Tony Veitch. Because, frankly, there aren’t many other people it could be. …

Perhaps I’m being unfair to all three reporters. Perhaps they all came up with the same information through their own initiative and contacts. Maybe both sides are working them (and it may well be that the first media outreach in this sorry business came from the Dunne-Powell side). But it looks a lot more like they’re now allowing themselves to be used in a methodical public relations campaign by one side: that of the celebrity accused. And they, and their editors, should think about that.

I do wonder if this court case will see higher bills from the lawyers or the PR teams :-)

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Steve Crow wins again

August 19th, 2008 at 2:44 pm by David Farrar

Steve Crow has won in court, but really he was going to be a winner regardless of the court ruling.

The publicity given to Mr Crow’s porn empire by Family First, Auckland City Council and others has been invaluable. He literally could not pay enough for all the free publicity. Rather than try and get the boobs on bikes parade banned, they should demand a share of the profits from his sex expo.

Why does Crow do boobs on bikes? To publicise his sex expo. He loses money on the actual parade – it is free. He doesn;t give a damn about whether or not the parade actually happens – he just wants the publicity about it.

He is secretly parying that Cathy Casey and co do lie down on the road to try and block it. It would be a god send for him. Guarantee a better TV story.

Mr Crow is a very smart man.

Also a very smart man, is public law specialist Dean Knight. Dean blogged last week that there was almost no chance of the Council being able to block the parade under the Bill of Rights. Dean concluded:

I am very confident in saying that, to the extent that the bylaw requires citizens to seek prior approval from a state body for a protest in a public place, it is patently inconsistent with the Bill of Rights and other fundamental common law rights, and is therefore unreasonable and invalid. There was, rightly, a public outcry a few years ago when Wellington City attempted to do this; it backed down. Also, it’s the very thing that many folk are pointing the stick at the Chinese government at the moment with the Olympics in Beijing. The requirement of prior approval is outrageous, particularly in the light of the restriction of protests and so forth.

He goes onto say:

It gets a little more complicated when one deals with other expressive activities. The reality is that we grade the nature of the expression and place differing degrees of importance on different types of speech. Political protest at the top. Speech lacking in intrinsic value at the bottom, arguably things like pornography etc. Commercial-related speech somewhere in the middle. That’s a wee bit controversial but probably accurate. In this case, we might see the full range of expression. Principally, the parade is related to a commercial activity. But it’s also got a pornographic titillation element – something slightly gratuitous. And, given the previous controversy and dealings, it’s also probably capable of being regarded as a protest or similar political assembly.

His colleague Steven Price then details a conversation he had with Dean on the legal issues:

Steven: You know what? I think it might depend on the amount of jiggle.

Dean: I think that’s right.

Steven: If there’s more jiggle, then it looks more sexualised – so arguably more lewd and offensive. Then controlling the parade fits better with the purposes of the Local Government Act, and the offences of offensive behaviour and indecent exposure. You’ve got less wiggle room for an argument based on the significance of the speech. More jiggle – less wiggle.

Dean: No, I disagree. If there’s more jiggling, there’s more of a political component to the protest. It is deliberately provocative. It underscores the parade’s message being more open about sexuality. It emphasises that the protest is defying convention, and the council’s attempts to scotch it. There’s less reason to protect an unjiggly naked protest, because the nakedness is less central to the protesters’ purpose. Jiggling provides better grounds for a defence for boobs on bikes. More jiggle – more wiggle.

Now’s that a legal conversation you don’t get to have very often!

Finally Steven notes:

Such is the stuff of academic discourse. Though it’s fair to say that Dean doesn’t normally evince this degree of interest in women’s breasts.

I burst out laughing when reading that. Those who know Dean probably did likewise. Others should be able to work it out!

As it so happens, I will be in Auckland tomorrow. Despite what some might think, I won’t be there for the Parade – for two reasons. Firstly the plastic fantastics that were on display last year look pretty awful from what I saw in the photos – you can’t beat natural. Secondly I actually think partially covered up is far far more sexy.

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Blog Bits

July 19th, 2008 at 2:00 pm by David Farrar

Stephen Franks blogs on the battle to save Crossways in Mt Victoria. I will be blogging on this myself during the week. It will be a tragedy if Mt Victoria loses what has been a focal point for the community. The City Council is justifying its lack of support by saying residents have lots of cafes nearby unlike suburbs further away from the city centre. A very very weak argument.

Keeping Stock blogs on an alarming suggestion by Auckland lawyer Catriona McLennan on Nine to Noon. She suggests that in rape trials, the burden of proof should be on the accused to prove there was consent. And this is not just a throw-away remark – she actually argues in favour of it against Kathryn Ryan for some time.

Whale Oil has been threatened with defamation by a lawyer acting for Pearl Going, who objects to comments he had made on her. The material has been removed from his blog after the blog hosting company was also threatened, but copies have sprung up on a dedicated blog hosted overseas.

I don’t intend to comment of the substance of the allegedly defamatory material, but would note that pressuring hosting companies to remove material, even after the blog author has asserted it is not defamatory and is willing to defend it in court, is not a particularly sensible tactic as it is so easy for the material to appear elsewhere – as has happened. Also of interest is that the lawyer for Pearl Going is Steven Price, who was very critical of the Listener for threatening the Hot Topic blogger with defamation.

This should not be taken as a suggestion that defamation laws do not or should not apply to the Internet. Of course they do. But more the appropriateness of targetting blog hosts if the blog author is willing to stand by their words and accept legal consequences for them.

The Dim Post has more satire, this one on how Winston is handling the Owen Gelnn scandal:

  • Monday 2:00 PM: Hires two identical twins as press secretaries, one of whom always tells the truth while the other always lies.
  • Wednesday 11:30 AM: Announces to press conference that he will explain everything but in doing so will be forced to reveal the secret surprise ending to Battlestar Galactica. Political media beg him to remain silent.
  • Thursday 6:35 PM: Notifies Speaker Margaret Wilson that he is officially changing his alignment to Neutral Evil.
  • Friday 10:30 AM: Recieves report back from Department of Statistics confirming that proportion of New Zealanders with IQ below 90 is still greater than 5%. Laughs heartily. Tells rest of country to go fuck themselves.

Heh.

Liberty Scott pings Idiot/Savant at No Right Turn for his comments on Gordon Brown approving a state funeral for Margaret Thatcher when she dies. The offending quote:

On the plus side, it will at least give her victims a final chance to throw excrement and rotten fruit at her as she goes past

As I/S goes on about how some on the right are often poisonous, spiteful and bitter, this quote brings to mind stones and glasshouses.

David Cohen looks at a case for Nicky Hager:

A column containing acidic opinions about a powerful political media personality mysteriously fails to show up on the author’s regular spot on her newspaper’s website. Another major news outlet, after allowing criticisms to be made of the same public figure on one of its shows, hurriedly issues a grovelling clarification. Does this sound like a case Nicky Hager ought to be investigating?

It would indeed if it weren’t the slightly inconvenient fact that the media power broker in question also happens to be the same gent.

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Vince Siemer

June 18th, 2008 at 9:13 am by David Farrar

I am glad I am not the only one annoyed by the media treatment of Vince Siemer, which has him and his wife trying to make themselves victims when in fact Seimer is running a campaign of harrasment and is the bully not the victim in my opinion. Not that I am a fan of his victim either – but that doesn’t mean Michael Stiassny doesn’t have rights.

Siemer is comparing himself to a Jew being persecuted by the Nazis:

Siemer, who is defending himself, said in his submissions that by denying him freedom of speech the courts were heading onto a slippery slope towards denial of other rights.

“Today it is freedom of speech, tomorrow it’s much worse,” Siemer said.

He said courts in Nazi Germany had denied Jews their legal rights under due process, and that no courts should use process to deny justice.

Now shouldn’t someone like me be supporting the rights of someone to say what they want on their website? Well no. Let us turn to Steven Price for some useful facts on the case:

I’m afraid I find it difficult to get too worked up about Vince’s plight. He’d like to pitch his troubles as a freedom of expression battle against a corrupt businessman (his nemesis, Michael Stiassny), and corrupt lawyers (including his own), and corrupt judges (pretty much anyone who’s ruled against him, in a couple of dozen court hearings). But what it’s really about is his ongoing and flagrant refusal to comply with court orders.

Just because you do not like a court order is not grounds to rfuse to obey them. You appeal if you do not like them – but he has lost pretty much every case in his two dozen hearings.

Steven notes:

Note that the injunction is an interim one. It’s in place pending the final determination of the defamation case. If Siemer can prove that his allegations are true, he will be able to reinstate the banned content. The courts generally do not grant this sort of injunction in defamation cases. They only did so here because two High Court judges were convinced that there was no basis for Siemer’s allegations:

Justice France: Having assessed the evidence, I conclude this is one of those exceptional cases where the Court can say that there is no reasonable possibility of a defence of truth succeeding in relation to any allegations of criminal or unethical conduct or as to improper personal enrichment.

Steven also usefully points out:

He objects that he was tried “in absentia” – he was overseas at the time of the second trial.  Which might be outrageous, except for the fact that he’d known about the hearing date, hadn’t filed any documents, hadn’t engaged legal counsel, and had simply emailed the court to say he wouldn’t be making it. They said he needed to formally apply for a different date. He didn’t.

I do wish the traditional media would provide context like this. Those who do not read blogs would have a very different impression.

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Blog Bits

June 10th, 2008 at 6:42 pm by David Farrar

Karl du Fresne calls the Media 7 show on the Pacific immigration debate a gang-up on Dom Post Editor Tim Pankhurst.

Steven Price points out to the Ministry of Justice that their site for court decisions of public interest, is missing all the interesting ones. To be fair I think it is up to the Judge to tick the box on whether it should go there, but regardless someone in the Ministry should use their common sense and make sure the EFA judgements and the abortion law one go up asap. The latest EFA is here for those who want it.

JafaPete asks whether people are just voting for change for change’s sake. He agrees with Chris Trotter that the anti-smacking bill may have been a turning point. He also says the EFA may have had an impact on the Government’s unpopularity.

No Right Turn covers the abortion debate and High Court decision. I am not surprised with the High Court ruling – it has been apparent for some decades that we have a de facto abortion on demand regime, despite a legislative framework that reserves it for serious danger to physical or mental health. Now I support abortion (up to a certain date) on demand and even though it would probably be a very heated debate, the proper way to change laws is through public vote or the legislature – not through the back door. The issues were covered on this blog back in March, and in a sign of hope it was a reasonably rational debate with analysis, not just name calling.

Graeme Edgeler covers issues in the Criminal Procedures Bill, and does a summary of each of the dozen or so changed. Excellent.

Colin James is not a blogger (in fact I would call him an anti-blogger!) but his op ed on inflation is worth reading.

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A guide for MPs to avoid questions

May 9th, 2008 at 11:27 am by David Farrar

Steven Price has an extremely informative and hilarious guide on how MPs duck awkward questions. It has to be read in context so I won’t summarise it here, but he describes the various techniques as:

  1. The Headbutt (Winston Peters)
  2. The Flip (Annette King, Nick Smith)
  3. The Dodge (Lianne Dalziel, Bill Birch, Murray McCully, Helen Clark, Jenny Shipley)
  4. The Smother Tackle (Jenny Shipley)
  5. The Block (Jenny Shipley, Steve Maharey)
  6. The Attack (Helen Clark, Tony Ryall, Winston Peters)
  7. The Amazing Shipley One-Size Fits All Multi-purpose response

It is a great piece of work by Steven – I wish I could hear the audio version. And it should really be taught to all new journalists!

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Blog Bits

May 6th, 2008 at 2:47 pm by David Farrar

Steven Price blogs that the headlines regarding the Berrymans bear little resemblance to the reality of what the Judge ruled which was simply to say that the Coroner was wrong to say that the collapse was primarily the Berrymans’ fault but he effectively amended that to partly their fault.

Bryce Edwards blogs on how Matt McCarten deserves his rating by Metro as a “right bastard”.

Cactus Kate blogs that she has managed to restore Deborah Hill Cone.

Fairfacts Media points out the PM is being somewhat economical with the truth when she claims Telecom wrote National’s broadband policy. I guess she believes if you repeat a lie enough times, people may believe it.

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Copyright changes

April 11th, 2008 at 11:48 am by David Farrar

Been meaning to blog on this since the changes to the Copyright Act were passed on Tuesday with all but the Greens and the Maori Party against. It would be a very very close call, but if I was a (non whipped) MP I would probably have voted against as the law is so inconsistent. The major points:

  • One can now legally format shift music (say from a CD you purchase to an Ipod), but music labels can opt out of allowing this in their sale conditions.
  • However you can not format shift other works, such as a movie from a DVD to your laptop or to a Video Ipod.
  • It is legal to record a TV programme to watch it later, but you can only legally keep it for as long as is reasonable to have viewed it at a more convenient time.
  • ISPs have been given an exemeption for their technical operations, such as caching files, which in theory can breach copyright.
  • Content Hosters though have only limited liability for material uploaded by their customers. If they receive a complaint alleging a copyright infringement, the ISP becomes liable unless they delete the material. This means in the case of disputes, the ISP has to act as Judge and Jury or risk being sued, and there is some evidnece from overseas that (for example) the Church of Scientology uses such copyright laws as a way to silence critics.
  • A “notice and notice” regime was rejected in favour of the US style “notice and takedown described above. The NaN regime would have meant that if a content hoster receives a complaint, they must pass it onto their customer. If the customer does not respond or agrees to remove the material, then it is taken down. However if the customer disputes they are infringing copyright, then the ISP is not held liable, but merely provides the customer’s details to the complainant so they can negotiate or sort it out in court directly.
  • The law enshrines special protection for technological protection devices, even though they can sometimes restrict people from legal actions such as making backup copies, or format shifting. TPMs are hugely unpopular and most of the music industry are dropping them.

Has been lots of comments in various areas. First of all Canadian Professor Michael Geist (a expert and advocate for fair use copyright laws) says the law isn’t great but a lot better than what was planned for Canada. He thinks the parts dealing with circumventing TPMs are pretty good.

Steven Price has an excellent post on the notice and takedown regime, its strengths and weaknesses.  I think the Minister, Judith Tizard, has also indicated they will look in future at stronger fair use provisions, which could help.

Russell Brown blogged on the law also.  InternetNZ (I chaired their working group on this issue) calls it a missed opportunity, which it is.

On the bright side, the MPAA is looking a movie download site in NZ, where people can purchase movies. This is a laudable idea, as it is important that people are given legal avenues to access material. We have had the situation in the past where one could not purchase music legally for your Ipod in NZ, and where popular TV shows are not available here for months and months after they show overseas.  The world is a global market, and making works available globally for legal purchase and download will help reduce illegal downloads.

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Media access tightened in Parliament

March 21st, 2008 at 11:36 am by David Farrar

I think the Speaker has over reacted by banning media access to the ground floor of Parliament House where the select committees meet. Following Brian Connell to outside the toilet was probably unwise by TVNZ, but the media should have access to MPs when they are going into and out of the House and Select Committees.

While it is not a co-ordinated programme, the cumulative effect of growing media restrictions is a cause for concern. Steven Price blogged last week on a public forum (I was going to attend but got too busy) by the Chairs of the NZ and Australian Press Councils and a member fo the NZ Law Commission. The comments below come from retired High Court Judge Barry Paterson who chairs the NZ Press Council:

He is worried that statutes and regulations may be chipping away at freedom of expression. Examples: restrictions on reporting about suicide in the Coroners Act; the proposal to restrict access to births, deaths and marriages registers; the restrictions on policitcal speech in the Electoral Finance Act (he was surprised that the Crown Law Office vet deferred to the government’s political judgment, and that this “margin of appreciation” could tip a finely balanced freedom of expression issue in favour of allowing encroachment); the possibility of wide codes, and later regulations, aimed at non-communicable diseases, affecting the advertising, sponsorship and marketing of particular goods under the Public Health Bill; and the proposal to amalgamate regulation of various media platforms.

On numerous fronts, the right to know and the right to free speech get encroached.

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Blog Bits

March 16th, 2008 at 2:53 pm by David Farrar

Newzblog shows that some on the left do not think it is a mortal sin to post photos of attractive people – they have a photo spread of Eliot Spitzer’s hooker.

Aaron Bhatnagar exposes hypocrisy from City Vision on water charges.

Steven Price criticises a judgement where an “insulting language” conviction was upheld against a man who taunted two police officers.

The Hive notices how Dr Cullen tells the Speaker how to rule, and how she always does.

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