Graeme Edgeler seems to be busy with Kim Dotcom, so I think I have to step up to the plate. Not to disagree with anything in Russel's thoughtful column, but this isn't quite right:
They failed in the High Court and Court of Appeal because their claim was trumped by the principle of freedom of expression, in particuar because the right to report on what happens in a public place is crucial to a free press. That right applies whether not we like the person doing the reporting, or their purpose in doing so.
But the Appeal court did, significantly, establish a "tort of privacy" that placed some boundaries on that right. A injured party could sue if they had "a reasonable expectation of privacy" (eg: they were at home) or if publication would be "highly offensive to a reasonable person".
It's really a tort of "invasion of privacy". An injured party must show both a reasonable expectation of privacy and highly offensive publicity. The expectation of privacy must relate to private facts, and "being at home" may not be enough. For instance, if I publish the fact that you're at home watching TV, that's not going to make the grade. Even if I published a surreptitious photo of you watching TV, that's probably not a private fact either (perhaps depending on what was on your TV). Still, the surreptitious photo might fall foul of another tort called "intrusion" - but that's not established by the Hosking v Runting case.
Finally, the Hosking case wasn't really about freedom of expression trumping privacy rights, and it didn't really say that being able to report what happens in a public place is crucial to a free press.The judges didn't have to go that far. Certainly freedom of expression was discussed and underscored. But that part of the case is really more about the complete absence of any public interest in the material photographed.
Also, I think we can give the Sunday Star-Times some credit for its feature that explored the moral issues concerning papping.
Aside from that, which is mostly nit-pickery... too right.
Late on this, but:
Unlike the mainstream media, the blogs are not subject to accuracy or taste - and sometimes even the law.
Actually, newspapers aren't subject to standards of taste in the Press Council's Statement of Principles (though the broadcasting codes contain good taste and decency requirements).
Someone should complain about Armstrong's inaccuracy...
I thought what Key said was perfectly clear. But I'm wondering: who is Sectry Clinton, and more alarmingly, why are we supporting the US rebouncing toward Asia and the Pacific?
While we're being depressed about this, we might remind ourselves of the sheer volume of the news that's made up of bits of press releases: http://churnalism.com
Dr Brash was finally, this morning, asked about Article 2 of the Treaty. He said it was about Maori giving up sovereignty and receiving property rights protection. The follow-ups:
1. The thing Maori gave up was "kawanatanga". Who translates this as sovereignty? Isn't sovereignty a nearer translation to the thing they were promised they could keep - rangatiratanga?
2. The thing that they were promised to keep rangatiratanga over wasn't just property, it includes taonga. How does he translate that?
3. Even if we assume that Article 2 is just about Maori keeping property rights in exchange for sovereignty... why do you criticise the Foreshore and Seabed Act and Resource Management Act provisions which are trying to add a sliver of Maori property right protection into the general law?
Oh, and by the way: do you think in general it is wise for politicians to read reports that they are criticising - even just the summaries maybe - before launching their criticisms? Do you think maybe you should have done that with Wai 262?
Steve: Sure, I accept that. But that's still different, I think, from the information being on the front page of the tabloids. You're right that whatever residual privacy remains after twitter will vary from case to case.
As for victim details, my main point was that if we accept the view that technology makes a mockery of all suppression orders (which many are arguing) then we're accepting that victims can't be protected either. If we accept that efforts can and ought to be made to protect victims (some of whom may themselves be celebrities), then plainly technology hasn't swamped the field, and there doesn't seem any good reason not to grant protection to others whose privacy may be illegally invaded.
Can I seek some commentary on how much the Giggs palaver has to do with the UK’s particular laws and precedents around privacy?
Is there a sense in which it couldn’t happen here?
The UK privacy laws started behind ours and have steamed ahead. 20 years ago UK judges were able to say they had no action for invasion of privacy. Today, because of the effect of the Human Rights Act, and its explicit incorporation of privacy protection into UK law, they plainly do. And it's probably wider than ours: see for example, the different conclusions reached by our Court of Appeal in the Hosking case, and the UK Court of Appeal in Murray, both of which involved fairly innocuous photos of public figures with their babies out in public. More specifically, on current law a plaintiff in NZ has to prove that a particular disclosure would be "highly offensive"; a plaintiff in the UK wouldn't. The threshold for an injunction in NZ also seems to be higher.
Still, the 18-year-old who alleged that Darren Hughes sexually assaulted him managed to get an injunction in NZ against the publication of his name using the privacy tort. My sense is that many of the UK celebrity cases would be decided the same way under NZ law, if we had celebrities... Whether they would decide it was a strategically smart move to seek such an gagging order is a different question.
If they did, they'd be running the twitter risk. As in fact does everyone who seeks name suppression. I'm not aware that any NZ name suppression order been breached through twitter yet. Only a handful have been breached online. I'm sure it's only a matter of time before someone twitters a suppressed name or one subject to an injunction. But we're still a far cry from suppression orders being completely useless. Are we really ready to abandon suppression powers for sexually abused children because twitter may defeat the odd suppression order or injunction? And isn't there a difference between having your identity known to thousands (maybe tens of thousands) of people on twitter, and having it published to millions on the front page of The Sun?
Giovanni, that's such bullshit.
Some personal highlights, for those who missed them:
-- Toby's emails from the good folks of Clark County Ohio, expressing some disagreement with the Guardian's campaign to get liberal Brits to encourage them to vote Bush.
-- Emma's well-made point that, yes, it was terrible that people died in the quake, and fair enough for the media to cover that, and no offence or anything, but the most pressing issue for many people in Christchurch quickly become access to a loo
-- David's suggestion that Craig's attire (the promised bow-tie and braces) had been copyrighted
-- Craig's retort that he'd be stupid to take fashion advice from an engineer
-- Emma's newfound repudiation of the "top down" approach
-- Craig's agreement that a "bottom up" approach was preferable.
Guess you had to be there. I'm glad I was.
If the courts want to suppress names, I think it would work better if they suppressed all identifying information
The standard suppression order does include a ban on any details likely to identify the defendant. This would be the bit that often gets flouted.
As a friend of mine pointed out, the use of the word "disorder" without the "-ly conduct" part conveys a very different meaning.
As I note over on MediaLawJournal, disorderly behaviour charges seem to be used as a troubling catch-all for people who police think are getting stroppy. Convictions for low-level nebulous offences such as disorderly and offensive behaviour have gone up from about 2000 a year in 1990 to more than 10,000 since 2008.