Hard News by Russell Brown


Truth to Power, etc

You may have seen Cactus Kate's self-proclaimed "humdinger of a story" claiming that APN has issued new "guidelines from Sydney" to its editors, which are "all to do with NO budget allocated for legal action or defence so the editors have basically been told not to run stories that could cause legal action or are risky in other ways."

It's poorly written and cluttered with so much chest-beating that it's difficult to tell how much genuine cause for concern there might be in its contents. Much of what she quotes – including training-wheels advice on not breaching suppression orders – seems unexceptional, and prudent.

But if there is a new policy requiring a more cautious approach to reporting purely to save money on legal advice and representation, then that's news. One of the virtues of corporate media ownership ought to be that it provides the resources to resist legal bullying.

New Zealand Herald editor Tim Murphy says there is nothing of the kind, in both this public statement on the Herald website, and this somewhat snarkier email sent yesterday to APN staff and contributors:

You may have seen or been told about a blog post today by Cactus Kate claiming that APN has instructed editors/papers to a) spend nothing on editorial legal advice and b) go soft when dealing with controversial stories.

I'm as puzzled about it as you are. It is not true on either score.

There is no directive to editors. Nothing has been communicated to me or the other APN editors here on that topic. Our NZH editorial legal budget for 2010 is not cut and not restricted.

Some points in the blog posting are a heavily truncated mish-mash of unremarkable legal discussion points in a 66-page media law training paper put together by our lawyers, Bell Gully and provided to 80 or so participants from throughout APN.

They are not publisher instructions or editor directives; they are not new (the same general thoughts have been included in the training document for years) and in the context of training staff, and shorn of the blogger's particular interpretation, the basic points are entirely matter-of-fact for anyone seeking to get things right and avoid legal pitfalls the media have encountered before.

So, no change. No orders from on-high. No end to investigations or to keeping newsmakers honest or to speaking truth to power. Just a mis-representation of a standard training paper from experienced defamation lawyers.

The blogosphere rides again.

Tim Murphy


The phrase "Our NZH editorial legal budget for 2010 is not cut and not restricted," in particular, seems unequivocal.

Kate (aka former Fairfax columnist Cathy Odgers) has responded to Murphy, declaring that the document she has is not the Bell Gully document:

I have received various copies of the email circulated to APN staff and contributors in different forms, one specifically headed "Suggested guidelines to limit defamation proceedings”. I did not receive any emails from the direct recipients of the emails and have been forwarded the emails well down the chain of cc. Some of Mr Murphy's colleagues are copied on those emails who for obvious reasons I will not name. In one is a direct reference at the beginning of the email forwarded to the document attached "Pre-publication vetting.doc" originating from Sydney HQ. Call it what you want but when a Head Office circulates emails down a chain I call that instructions or directives. It did not come directly from Bell Gully in other words.

She does allow that "That [Murphy] calls it a 'mis-mash' says to me that a lawyer possibly has not written the document and it has been compiled for distribution by HR or junior staff at APN."

It certainly seems possible that longstanding training advice (and, frankly, that is how most of the material quoted reads) could have been compiled or condensed in this way. But it would be odd if Murphy was genuinely unaware of it.

If anyone wants to send me the document in question, I'd be happy to look at it, but for now I can't really tell what's going on there. I do feel bound to say that Odgers has had more luck than most of us get in inducing Murphy to publicly front for his paper. It seems that the trick to getting a response from Murphy is to use the most inflammatory language.


I talked on Nine to Noon this morning about the part of the Law Commission report, Suppressing Names and Evidence, that relates to the internet. And, specifically, this formal recommendation:

Where an internet service provider or content host becomes aware that they are carrying or hosting information that they know is in breach of a suppression order, it should be an offence for them to fail to remove the information or to fail to block access to it as soon as reasonably practicable.

It's curiously vague and potentially alarming. IANAL, but "becomes aware" seems a rather loose requirement for action (elsewhere in the relevant section a more formal notice-and-takedown process is suggested).

And what exactly does the Commission mean by "block access"? Given that material in breach of a suppression order is quite likely to be hosted outside New Zealand, is the Commission saying that ISPs should actively filter the internet to prevent New Zealanders reading material that breaches suppression?

One of the most prominent cases of its kind is that of Peter Lewis, the so-called "dope-smuggling billionaire" whose local name suppression was eventually overturned after action by the Herald and others. But almost all the material that named Lewis legitimately appeared in foreign newspapers, which were not subject to the order. Are we really to ask ISPs to block newspapers?

Almost certainly not, said Canterbury University's Ursula Cheer, who also appeared on the programme. I hope she's right. But if she is, I think the Commission really needs to raise the standard of its language, given that Internet NZ has read the report in much the same way I have, and is duly alarmed.

As a general point, I think targeting ISPs is the wrong way to go. Requiring ISPs to take a crucial interest in content on their networks is unappealing here for much the same reason as it is in cases of copyright claims. We just want them to deliver the bits; they have nether the competence or the motivation to deal with such claims properly.

It's publishers who are responsible for their content, and it's hardly a mystery who they are. Most breaches (including that of the name suppression for the "prominent entertainer", about which the Herald continues to have hissy fits) take place in public discussion forums – and one forum in particular.

Before it goes for ISPs, the law would be better served in requiring Trade Me to exercise proper moderation of its forums, which has been a source of breaches for years. Cost can hardly be an issue – and it is, for goodness sake, owned by a media company.

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