Louisa Wall: “The Media have a responsibility to do no harm”

Prime Minister Jacinda Ardern announced yesterday that she is is chairing a meeting in Paris next month in a attempt to find a way to prevent terrorists from being able to social media to promote and publicise terrorism.

Labour MP Louisa Wall on Facebook yesterday widened her focus to ‘The Media’:

Kia Ora. The Media and those that transmit their political content and other political content generated for these public mediums, are defined as The Fourth Estate or fourth power that refers to the press and news media both in explicit capacity of advocacy and implicit ability to frame political issues. It is time that it was formally recognized as part of a political system, as it wields significant indirect social influence.

This would impose a Duty of Care on The Media – a formalisation of the social contract, the implicit responsibilities requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others.

The Media have a responsibility to do no harm. Kia Kaha PM Jacinda Ardern for the meeting on May 15 – two months after the Christchurch terror attacks which claimed the lives of 50 people – which aims to see world leaders and tech company bosses agree to the “Christchurch call” – a pledge to eliminate terrorist and violent extremist content online.

Linked to NZ Herald: Prime Minister Jacinda Ardern to lead global attempt to shutdown social media terrorism

This prompted a reaction from some journalists.

Andrea Vance (@avancenz):

Uh, what? Bringing media under control of Parliament … is this govt policy ?

(Facebook post image included)

Liked by SamSachdeva, Hamish McNeilly, Hamish Rutherford, Stacey Kirk, Laura McQuillan, Richard Boock, Paul Harper, Kim Baker Wilson, Tracey Watkins, John Campbell (all media/journalists) plus Chris Bishop (MP).

Two lawyers add their views:

Graeme Edgeler (@GraemeEdgeler):

It sounds bad, but I kind of feel most of these things are already present, certainly for online and broadcast media anyway. Duty of care is not a ridiculous paraphrase of the duties on media in some defamation defences, and under the HDCA.

Stephen Franks (@franks_lawyer):

Without the defences of truth and honest opinion it is completely sinister and as far from the law that protected both freedom and honest public discourse as we could get.

Graeme Edgeler:

I was thinking, for example, of the defamation defence of responsible communication on a matter public interest as provided in Durie v Gardiner [2018] NZCA 278.

Stephen Frank:

I understand that and am very conscious of NZ judges massive indifference to the vital role of liability for lies, as a condition/corollary of free speech, but your comment is still misleading rationalisation of sinister nonsense from Ardern and her fumbling Minister of Justice.

That is widening somewhat from what Wall posted.

Despite the concerns shown by journalists I don’t think Louisa Wall has much sway in Labour let alone in Government. She is ranked 23 (Clare Curran is 22), despite being an MP for 11 years, a term and a bit from 2008 as a list MP, and since 2011 as MP for Manurewa (2017 majority 8,374).

Franks v Ghahraman, free speech v hate speech

Lawyers Golriz Ghahraman and Stephen Franks debated free speech versus hate speech on Newshub Nation yesterday.

Ghahraman wants laws to address hate speech (there are dangers with this if it is poorly defined or speech is restricted too much. She as asked “how do you determine that, when these things are actually often in the eye of the beholder”?

So the definition of hate speech is a little bit like definitions of other limitations of free speech that already apply in our law to protect individuals. Defamation exists for example, and it’s about harm. So you can’t lie about a person to damage their reputation, make them unsafe, make them unemployable for example, those are very real harms that can come from speech and we have legislated against that for individuals.

Those laws haven’t protected Ghahraman from hate tweets, or hateful comments on Facebook, Whale Oil and Kiwiblog.

What we’re saying is the same type of thing should apply to groups. In France they actually define hate speech as very similar to defamation as they do in other parts of Europe.

So it’s about whether a third party would be moved, and this is the standard in New Zealand in terms of our jurisprudence, whether a third party would find this speech to be such that they would become hostile toward that group.

It’s not about how the group feels.

Inciting hostility in a third party.

Franks:

It’s an objective view of how they would feel. It’s putting yourself into their shoes.

The essence of what’s missing is that truth is no defence.

In defamation truth is an absolute defence, and that’s because of the view that we all ought to be able to challenge and be offensive, and call out beliefs and views that are bad.

There’s absolutely no doubt that for many Catholics, exposing priest pederasty has been offensive, under all the tests of hate speech, it’s hate speech, because it makes them feel bad and it ought to make them feel  bad.

He believes that all speech should be allowed, including hate speech which should be combated by ridiculing it (I think there are flaws to this).

The power of bad religion has only been defeated by satire, by ridicule, by exposure.

A major problem though is when all members of a religion are ridiculed due to the bad application of that religion by a small minority.

Full ban of ‘manifesto’ went too far according to some lawyers, not others

Some lawyers have said that the chief censors total ban of the Christchurch terrorist’s so-called manifesto went too far, but it isn’t a universal view.

Classification Office: Christchurch attack publication ‘The Great Replacement’ classified objectionable

A publication reportedly written by the terrorist behind the fatal attacks in Christchurch, has been officially classified as objectionable.

“Others have referred to this publication as a ‘manifesto’, but I consider it a crude booklet that promotes murder and terrorism. It is objectionable under New Zealand law,” says Chief Censor David Shanks.

The document, examined under the Films, Videos & Publications Classification Act 1993 (FVPCA), is deemed objectionable for a number of reasons.

“It promotes, encourages and justifies acts of murder and terrorist violence against identified groups of people, ” says Mr Shanks.

“It identifies specific places for potential attack in New Zealand, and refers to the means by which other types of attack may be carried out. It contains justifications for acts of tremendous cruelty, such as the deliberate killing of children.”

“We have dealt with terrorist promotional material before which was deliberately designed to inspire, encourage and instruct other like-minded individuals to carry out further attacks. For example we have found a number of ISIS publications to be objectionable in previous decisions. This publication falls in the same category.”

An objectionable classification for this publication is considered to be a justifiable limit on freedom of expression under the Bill of Rights Act in this case.

“There is an important distinction to be made between ‘hate speech’, which may be rejected by many right-thinking people but which is legal to express, and this type of publication, which is deliberately constructed to inspire further murder and terrorism,” says Mr Shanks.

“It crosses the line.”

It is recognised that the publication has been widely reported on over the past week, with many media outlets publishing commentary on it, and sometimes providing links to it or downloadable copies. Many New Zealanders may have read it, possibly seeking answers for why this dreadful atrocity took place.

Most people reading the publication will not be harmed by it. “Most New Zealanders who have read this will simply find it repellent. But most New Zealanders are not the target audience. It is aimed at a small group who may be receptive to its hateful, racist and violent ideology, and who may be inspired to follow the example set by its apparent author.”

It is an offence to possess or distribute an objectionable publication. People who have downloaded this document, or printed it, should destroy any copies.

Those engaged in further reporting on the Christchurch attack may be tempted to consider the use of quotes from the publication that have already been used in other media reports.

“That use of excerpts in media reports may not in itself amount to a breach of the FVPCA, but ethical considerations will certainly apply,” said Shanks.

“Real care needs to be taken around reporting on this publication, given that widespread media reporting on this material was clearly what the author was banking on, in order to spread their message.”

“We also appreciate that there will be a range of people, including reporters, researchers and academics, who will be in possession of the publication for a range of legitimate purposes, including education, analysis and in-depth reporting. Those individuals can apply for exemptions, so they can legitimately access and hold a copy.”

Information on this process can be found here.

“New Zealanders can all play a part in denying those who exhort hatred, killing and terror. If you have a copy of this publication, delete or destroy it. If you see it, report it. Do not support the murderous objectives of its author by republishing or distributing it.”

Personally I think that it should not be shared, distributed, published or linked to from here and have asked that that not be done here – although selected quotes to make specific points seems reasonable.

RNZ: Legal experts say censorship on gunman’s manifesto went too far

…the Free Speech Coalition said the manifesto could be important for society to understand a dark part of our history.

“Most New Zealanders will have no interest in reading the rants of an evil person,” coalition spokesman and constitutional lawyer Stephen Franks said.

“But there is a major debate going on right now on the causes of extremism.

“Kiwis should not be wrapped in cotton wool with their news and information censored. New Zealanders need to be able to understand the nature of evil and how it expresses itself.”

Journalists, researchers and academics could apply for an exemption to the ban, but that was not practical when working on tight deadlines, Mr Edgeler said.

“Given the censor says that there are groups of people that should have access, imposing a full ban seems the wrong way to go.

“It needs to be perhaps quite restricted – you have to be at least 18, you have to work for a news organisation which is subject to the New Zealand Broadcasting Standards Authority or the New Zealand Media Council – and [it should be that] if you do that, yes, you can have a copy.”

But a lawyer with a different view:

But human rights lawyer Michael Bott said the ban was the right move, and requiring journalists and academics to make formal applications meant any dubious fringe publications or spurious research claims could be ruled out.

“The right to free speech can be constrained when it amounts to hate speech and there is a real risk that someone such as the Christchurch terrorist could basically become a martyr in the eyes of fringe groups who could then use the manifesto as a propaganda tool.

“The potential for harm is just so huge.”

Many publications that could pose a “risk of social harm” had been censored in New Zealand before this, Mr Bott said.

He said, historically, a number of left wing publications were banned in New Zealand, but more recent bans included Danish publication The Little Red School-Book that instructed schoolchildren on sex and drug use, and books with instructions for building guns.

The manifesto was dangerous because it promotes “views that are toxic to democratic society and a culture of tolerance”.

In this case they are reasonable reasons why it should not be distributed or published.

But that could be a slippery slope. Accusations of toxic views and claims of intolerance are common in politics.

I have no interest in reading the manifesto, and see no good reason why most people would want to read it, but it should be able to be examined by researchers and journalists.

 

Ill-informed du Fresne attack on Drug Foundation’s Bell over cannabis referendum

Karl du Fresne (Stuff) has taken a swipe at Ross bell of the NZ Drug Foundation, claiming “Ross Bell is not worried about decriminalisation of cannabis but by the thought of the drugs trade being contaminated by the profit motive”: If corporates are best-placed to deliver a safe cannabis market, is that so wrong?

Oh, dear. Ross Bell of the New Zealand Drug Foundation, after years of agitating for relaxation of the drug laws, is fretting that liberalisation might open the way to corporate domination of the cannabis trade.

Hmmm. Perhaps he should heed the old saying about being careful what you wish for.

Bell has long advocated a permissive approach to so-called recreational drugs.

His argument is that drug use should be treated as a health issue rather than criminalised. So you’d expect him to be thrilled that the Government has promised a binding referendum on decriminalisation of cannabis.

You can take it as read that the activists’ ultimate goal is decriminalisation of the drug altogether, and perhaps other drugs too. That’s how advocates of “progressive” social change advance their agenda: incrementally.

That’s a big step from the cannabis referendum, and a major ‘assumption’ based on nothing.

It’s a strategy that relies on a gradual softening-up process. No single step along the way, taken in isolation, is radical enough to alarm the public. Change is often justified on grounds of common sense or compassion, as the legalisation of medicinal cannabis for terminally ill people can be.

But each victory serves as a platform for the next. Once change has bedded in and the public has accepted it as the new normal, the activists advance to the next stage. The full agenda is never laid out, because that might frighten the horses.

That sounds like nothing more than general scare mongering based on nothing.

Now, back to Bell’s misgivings about where the cannabis referendum might lead.

It’s not decriminalisation that worries him. Why would it, when for years he’s been using his taxpayer-subsidised job to lobby for exactly that outcome?

No, what upsets him is the thought of the drugs trade being contaminated by the profit motive. A liberal drugs regime is all very well, just as long as the trade doesn’t fall into the hands of wicked corporate capitalists.

A stupid way to put things. there are legitimate and I think fairly widely held concerns over the commercialisation of cannabis. Alcohol is a good example of how an intoxicating substance can be legally pushed for profit.

Bell’s vision, obviously, is of something much purer and more noble, although it’s not entirely clear what model he has in mind. A People’s Collective, perhaps.

Another baseless assertion.

The parallels with alcohol are obvious. Both can cause great harm to a minority of users, although activists like to play down the adverse consequences of drugs other than alcohol. We don’t hear much, for example, about the devastating effects cannabis can have on the young or the mentally unstable.

I’ve seen and heard quite a lot about that. It’s a primary reason for suggestions that there be an R18 on cannabis – similar to alcohol age restrictions, where even 18 has been controversial.

But if we’re going to have an honest national debate about cannabis, the important thing, surely, is that it should focus on social wellbeing rather than being distorted by covert ideological agendas.

No evidence of ‘covert ideological agendas’, just an assertion targeting someone who has been quite responsible in promoting drug law reform.

Stephen Franks responds:

Russell Brown, one of the best informed advocates of drug law reform in the media joins in.

Going by this (and other ill informed people with their own agendas like Bob McCoskrie (Families First), I think we can expect a fairly knarly debate on the cannabis referendum.

We should welcome robust arguments against too much liberalisation of drug laws, but I hope we get a lot better attempts than this by du Fresne.

Q+A – free speech or hate speech?

Stephen Franks: New Zealanders don’t have to welcome, we didn’t have any desire to welcome, we just wanted people to be allowed to make up their own decision as to who heard, not have politicians make it for them. I think that countries where politicians decide who you can hear and who you can’t, who you can question and challenge…Phil Goff said repeatedly that he had the power to do it, and a whole lot of people jumped in behind him.

We’ve had holocaust deniers, we’ve had scientologists, we’ve had a lot of very very unpleasant people speaking, and we should be able to see them and decide yes that’s unpleasant.

Stacey Morrison: It’s not unpleasant speech, it’s hate speech. Do you not admit it’s hate speech?

Stephen Franks: there’s no difference. Hate speech is just a way for people to try and say ‘I don’t believe in free speech, but i can’t say that, so I’ll call something hate speech – and that’s not free. That’s all it is.

Anjum Rahman: That is absolute nonsense. there’s a lot of research that’s been done on hate speech, and what it does, hate speech, it silences it’s victims, it causes them to withdraw because of fear, it causes them to move from their jobs, leave neighbourhoods…

Corrin Dann: Let’s be clear about the bit that you’re arguing is hate speech, we’re talking about they argue on the IQ thing, on the racial superiority.

Anjum Rahman: It’s not just that. They argue that, for example, their comments around aboriginal culture and that white people have done more in two hundred and fifty six years than aborigines did in forty thousand years and therefore it was a good thing you took the land away.

Stacey Morrison: We need to look at that in the context of this country, and in terms of our bi-cultural framework for our country, and therefore if they’re talking about multiculturalism as a danger and trying to make people feel threatened so that they fight back, that’s when you incite hate.

So telling people that they are threatened is where it becomes dangerous, whereas it’s not true in terms of whether they face danger.

Stephen Franks: I am threatened, I am threatened when Amjun and the Islamic Federation says we don’t want someone coming here who doesn’t like Islam.

Anjum Rahman: I didn’t mention Islam, I’m talking about people, no I did not, I’m talking about the fact that what these people do…what I am saying to you, these acts of hate speech have an impact on people’s daily lives, and what I’m saying to you is whenwould you draw the line? When there are people with tiki torches on the street, and driving cars into people, and killing them, would you stop the line when we start wearing yellow stars, would you stop it when they’re on cattle trains…

Bryce Edwards: We can clearly see that we’ve got this looming culture war, and it’s happening on this panel…it’s actually happening throughout the globe at the moment…it’s an escalation of new debates, and we’re seeing over the last five years that there’s been this rise of radicalism, and we’re seeing it with these Canadian duo, it’s a reactionary version of it.

We’re seeing it on the left, we’re seeing it amongst gender politics, ethnicity politics, it’s happening everywhere.

Corrin Dann: Is New Zealand hostile to that free speech?

Bryce Edwards: I think everywhere’s having to deal with these radical views, especially when they’re pushing the boundaries, to find a way of dealing with it. At the moment the way of dealing with it is to try and ban it, and there will be consequences if we go down that route. I mean it is a logical way to do it, but it means that I think other groups, marginalised groups, suppressed groups will end uip being banned as well.

Stacey Morrison: You don’t need a stage to have a platform, and what they’ve done is performed an excellent PR opportunity. We’ve been talking about people that I didn’t know about a month ago, and therefore in terms of their free speech, that is welcomed on other platforms, you don’t need to be at a particularly privately owned venue like the Powerstation.

Stephen Franks: The question though about rights of assembly and association is that you actually do, because you’re getting a filtered message through almost all media. People actually want to go and say, can I look at, what sort of body language do I see, they want to hear other people’s questions in the meeting. I didn’t want to go and hear them because our researchers said some of it’s quite offensive, it’s set out to be agent provocateur,

Corrin Dann: They don’t have filters on a Youtube channel, you can go and watch half an hour lectures if you really really want…

Stephen Franks: It’s structured the way he wants it. The thing about meetings is that they’re not structured. They’ll get questions and challenges…

Anjum Rahman: Did you see the rules of those…

Stephen Franks: …at a meeting you actually get a chance to make up your mind directly, you see body language, but more importantly you see the other people at the meeting, and you make up your mind how are they feeling…

Corrin Dann: And you think the people going to that meeting were there to be open minded about what was going to be said?

Stephen Franks: As I said, we’re there for the right to do it. I don’t actually care about that meeting. It doesn’t worry me that it was stopped except that it’s a trend that changes our society dramatically. I didn’t like Phil Goff saying…

Anjum Rahman: I just want to go back to what Bryce was saying. This is not new. It happened in the 1930s and 1940s in Germany, it’d happening in Myanmar with that Royhingyas, it happened in Rawanda, it’s happened all around the world and it’s happening all the time. And what the research on hate speech shows is that acts of racist violence are preceded by vilification in speech.

That we create the atmosphere that makes violence acceptable, because victims of that speech are so vilified that people then act it out. And that’s what I’m saying, if you were living in the 1930s at what point would you have said ‘right we have to stop this’. We can’t have this language that’s going to end up at this place.

Bryce Edwards: There are all these offensive things that are being said, and I think you’re right, it’s increasing, but it’s a question of how do you deal with it. Do you suppress it? And does that work? I think we’ve seen over the last couple of weeks it doesn’t work. It’s had the counter effect, that we’ve had more…

Anjum Rahman: I disagree with you, I think it’s really worked. If there had been no protests…I’ve been to a speech like this that was real vilification, I’ve sat through it, there was ov er a hundred people in the room, there was no question and answer session, there were strict rules to their meeting, and there would not have been a debate…

Stacey Morrison: In terms of free speech, whose freedom of speech do we always protect, and in terms of say for instance Taika Waititi as a Maori man saying that New Zealand is racist, no one responded in terms of  that was his freedom of speech to express his opinion, it was more about how dare he say that.

So in these experiences it is important that we look at what we think about this, where we stand, and what we support and at what point we define this as hate speech.

 

 

Paul Henry: The rights and wrongs of name suppression

Last night on TV3 Paul Henry spoke to lawyer and ex-Act MP Stephen Franks on name suppression in relation to a prominent New Zealander exposed (except for his name) by Rodney Hide in a series of Herald on Sunday columns.

Name suppression controversy for prominent New Zealander

A prominent New Zealander who pleaded guilty in 2011 to committing an indecent act has been given permanent name suppression.

His name cannot be released but due to a chain of events started by a column in a weekend newspaper, this Kiwi man is being compared to Rolf Harris.

So should he have got suppression in the first place? And is suppression all meaningless in the age of the internet?

Lawyer and former ACT MP Stephen Franks joins Paul from Wellington to discuss whether this man should have been given name suppression when it was not given to protect the victim.

“It’s pretty weird that the judge has decided that it would cause extreme hardship for them to face the normal shame that offenders are supposed to face,” says Mr Franks. “The law has had various wording for extreme hardship, but it turns on whether there is a suicide rick or a loss of livelihood.”

Paul Henry’s introduction:

There is a prominent New Zealander out there who pleaded guilty in 2011 to committing an indecent act.  You won’t find his name in the mainstream media. He’s been given permanent name suppression.

We can’t tell you his name, obviously, but many people know it thanks to a chain of events started by a column in a weekend newspaper which compared this Kiwi man to Rolf Harris.

Tonight a simple Google search will identify him for you.

So, should he have got suppression in the first place, and is it all meaningless in the age of the Internet?

Video at: Name suppression controversy for prominent New Zealander

Free speech versus political dishonesty

Stephen Franks comments on a well known defamation case in Donations for freedom of speech:

I do not know whether Trevor Mallard and Andrew Little (both of whom I respect) made false statements about Judith Collins. If they were false I do not know whether they were calculated, reckless or just careless. That will be for a court to determine. But I do know they are scoffing at defamation law.

More importantly he looks at free speech versus “casual liars”.

Defamation law is the safeguard against false coin in the competitive marketplace of ideas. A Gresham’s law may apply in public debate, where unpunishable recklessness, and scandalous accusation would crowd out sober truth.

An assumption that usually you can trust what someone is telling you, and particularly your leaders or would-be leaders, is a vital element of social capital. New Zealand is currently a high trust country according the the World Values Survey.

High profile defamation cases remind casual liars they could pay a price help to preserve our trust in the honesty of others until proved otherwise. So proceedings that keep open the threat of a cost for reckless allegations are in the public interest.

There does need to be a way of addressing deliberate and repeat lying for political gain. Defamation law is far from ideal but it’s one of a limited number of options currently available.

More effective would be more public and media insistence on political honesty.

And more party and blog insistence on honesty would help too.