Hi Graeme (like James, speaking for myself etc etc).
In relation the criminal side of things, I agree it's strange that s22 (criminal harm offence) doesn't have an express reference to NZBORA when it'll often be a more important consideration there than in the civil jurisdiction under s19.
I think you get there in these media situations though with the combination of section 22(2)(g) where the court has to take into account the context in which the digital communication appeared plus the overriding section 6(2):
In performing functions or exercising powers under this Act, the Approved Agency and courts must—
(b) act consistently with the rights and freedoms contained in the New Zealand Bill of Rights Act 1990. [Emphasis added].
They could (should) probably have left out any further reference to NZBORA in either s 19 or s22 since s6(2) covers all situations. I expect the inconsistency was a consequence of adding the NZBORA override at the last minute.
OK, I'll bite Andrew ;-)
If the Hosking v Runting/Andrews line is accepted, there are some circumstances where something that happens in public should be accorded privacy protection. One could argue that this did not occur in public anyway since the action took place in private premises. But, even if we accept for the moment that this was in public, we have to draw a line somewhere. Your argument that they were reckless seems to me to draw that line too low. What you are effectively saying (and I note that Kathryn Dalziell seems to agree with you over on the OPC's site) is that unless someone takes pro-active steps to shield themselves from public scrutiny, they do not deserve protection. So, if the same action took place in a private residence and was filmed through an open window, that would be OK because they should have "opted in" to privacy by drawing the curtains? Or, in a car?
Really, what your suggestion does is shift the burden of privacy protection onto the individual. We all have to "opt in" to privacy if we are to get protection. I don't think that's right.
And to your point about conflating the two limbs of the test. While I agree there are two limbs, it is clear that the second "offensiveness" limb will colour the first "expectation of privacy" one. This was the case in Andrews and makes sense. A grossly offensive publication will naturally be subject to a lower threshold in terms of reasonable expectation of privacy. Or, to put it another way, it is reasonable to expect privacy for very private facts.
I may have missed it, but in all the discussion around "metadata" I've not seen any mention of the fact that, presumably, an important piece of data being collected will be the IP address. Even the Wired founder guy's recanting of his "nothing to see here" initial reaction, on the basis that internet surveillance is different from wiretap, doesn't mention IP addresses.
The Paul Revere piece (brilliant thanks David) reminded me of the analysis which many have done on what can be found out about someone from just an IP address, This potential is why privacy authorities have started to focus on IP addresses as personally identifiable information (which are therefore protected under privacy statutes).
This blithe refutation of there being anything to worry about, because it is "just metadata" seems to me to be an attempt to avoid scaring the horses, who might otherwise be persauded to make a submission on the extraordinary expansion of GCSB powers being proposed in the GCSB and TICS Bills (submissions due Thursday 13 June although if you ask nicely you'll get an extension until Monday 17 June on the GCSB Bill at least).
Interested to see the increased use of QR codes in NZH. I'd thought that these were generally a fad/on their way out but I actually find them quite useful for this sort of thing (and on billboards etc).
Further to @nzlemming's and my agreement (an unusual occurence) that there is a lot of water to flow under the bridge in this matter, a quick glance at another aspect of the Extradition Act reveals a further avenue. With the warrants having been granted, section 21 requires USA to notify Justice Minister Judith Collins, who must then consider whether to have the proceedings discontinued and the warrants quashed.
No doubt an eminently judicially reviewable decision.
It appeared that you needed a guide to steer you away from the cliff ;-)
Re questions about evidence standards, this may not be relevant to the bail application itself but I note that the Extradition Act provides the US with a fast track. US is an “exempted country” under the Extradition (Exempted Country: United States of America) Order 1999. That means that it does not need to comply with the prima facie case standard in section 24(2)(d)(i) of the Extradition Act and can instead present a “record of its case” (summary of evidence and copies of documents and photographs) under section 25.
So, there’s an interlocutory argument waiting to go all the way to the Supreme Court for a start.
We do have High Court and District Court Rules in NZ allowing pre-trial discovery (based on the original UK Norwich Pharmacal orders) and they can be used to discover the name of an alleged infringer (defamation, copyright infringement, illegal bullying etc) from an ISP/host. But,since Twitter does not have a business presence here, those Rules won't help much.
Can't imagine many people (incl the Electoral Commission) having the wherewithal or inclination to bring an action against Twitter in California to find the ID multiple of pseudonymous tweeters.
Slightly OT, but this is another area where the US propoals for the Trans Pacific Partnership Agreement are of concern. If accepted, those proposals would enable a copyright owner to require an ISP to give up a customer ID based on an allegation alone, without having to go to court at all. Since allegations of copyright infringement are already used for ulterior motives (e.g. to restrict competitors or to gag criticism), it is not hard to imagine such a process being used to gain customer IDs whenever someone has a gripe - legitimate or not.
The reason why NZ producers of bubbles do not describe it as champagne has nothing to do with GIs in a Trade Mark Act sense. It is because the Champagne area producers succeeded in a passing off/Fair Trading Act case against Wineworths back in the early 90s. That is why MED (which is in charge of the IP section of the TPPA) says that NZ law already deals with the issue. So, they conclude we already comply with TRIPs and need not introduce specific GI provisions into our trade mark law. MED actually has a useful summary of the current law on GIs at http://www.med.govt.nz/templates/Page____1203.aspx (which has a citation for the Wineworths case for anyone interested).
Agree - which is why those who have concerns need to find examples that resonate with the general public. Parallel import limits clearly fall into that category, as does 3 strikes internet termination.