Public Address | OnPoint

You win, I lose, eat that | Nov 29, 2006 12:03

When I first started out in student media, I received a sound piece of general legal advice:

Defamation is easy. If you didn't publish anything that was potentially defamatory, you wouldn't publish anything about anyone at all. The consideration for publication isn't "is this defamatory", it's "how likely am I to get sued".

Being an ethnic group (i.e. Not an individual or legal entity), you can't be defamed, so you get zero points.

On the other hand, being, say, married to a QC, that will get you lots of points.

The Listener was kind enough to give me a page to rebut Coddington this week. However, being the grown-ups that they are, they were a bit tetchy about the possibility of Coddington suing. Their Chief Subeditor spent considerable time going through checking all my stats, and in the end their lawyers went through the piece with a pair of pliers and a blowtorch, cutting out lines such as my claim that when Deborah Coddington just dropped in the "disturbing fact" that 4 out of 5 Asian pregnancies end in abortion, she was basically saying "Asians kill babies", as well as the words "dishonest", "malicious" and "irresponsible".

I didn't even try to get "making shit up" past them.

Incidentally, the 4 out of 5 stats was for teenage pregnancies. She just forgot to mention this. She has since admitted this mistake in the Herald on Sunday, but sans apologies. She doesn't think that Asians will find "Asians kill babies" offensive?

I couldn't help but think that, if North & South had spent half the time checking the facts on that cover article as the Listener spent checking my 700 words, they'd have done themselves a huge favour. But then again, maybe not. It's not like I'm married to a QC. Heck, last time I had to pass a hat around to pay for lawyers.

But to date, I have not heard from Coddington, North & South, or their lawyers. I have no choice but to assume that their case is so solid, so self-evidently unassailable, that there is no need for defence or explanation. Therefore, the only honourable course of action is to concede that they are, in fact, right.

I have therefore closed all my P kitchens, thrown all my poached paua back into the sea (they can survive being frozen, right?), and sold my souped-up rice-rocket, my 1984 Honda City. I will be boarding a plane for Hong Kong shortly.

Good-bye.

(Hat tip to Gareth Richards for the title.)

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Send in the lawyers (+NGA) | Nov 23, 2006 12:01

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Last year, when the High Court granted Victoria University's application for an injunction against Salient, we - being the poor freeloading students that we were - went begging to the Commonwealth Press Association for a bit of dosh to help pay for the lawyers.

It was going to be a test case, we pleaded, and that media organisations needed to demonstrate that anyone attempting to use an injunction to gag the media would be ripped numerous new ones. Unfortunately, they blew all their money on TV3's fight to exclude Dunne and Anderton from the leaders' debate. The various media organisations did, however, help us rip Vic many a new ones anyway. "Payment in kind", as it were.

It's happening again. Every media outlet and their dog are jumping on Brash's injunction - and of course they have. Apart from the fact that it gives instant sex-appeal to the story ("What Don Brash doesn't want you to see!" "He'll stop at nothing to cover this up!"), they really take it personally. Media do not like people, especially politicians, seeking legal recourse to gag media - even if it's Nicky Hager, even if it's Salient. It's against their commercial interest, it's against their editorial interests, it's against their sense of justice and freedom, it's against their raison d'être, it's against every goddamn bone in their body.

They absolutely hate it, and they will spare no effort to make it really, really hurt.

But...

That's just the PR. The case is not so black and white. There is a legitimate case to be heard. I'll hand you over to Graeme Edgeler, who was our legal adviser when Salient fought Victoria University's injunction against us last year.

It's "Enjoined"
by Graeme Edgeler

You might think freedom of speech wasn't all that important in this country. Last year's Salient and now The Hollow Men both contained information that the authors claimed to be in the public interest, and both were enjoined from public release.

Despite appearances, getting an injunction prohibiting publication of anything in New Zealand is pretty hard, and getting one – even temporarily – without the other side having a say is even more difficult.

As with all cases where competing rights come into conflict – the rights of authors to impart information, of the public to receive it, and of senior politicians and people everywhere to privacy – courts have to weigh the importance of those rights against each other, and against the infringement of those rights that might result from any action taken. The greater a breach of privacy or breach of confidence the public dissemination of particular information entails, the greater the public interest must be in that information for it's release to be allowed.

Whilst we don't presently know the detail (and probably won't for a couple of days), we've got the gist of it – and the information sounds pretty damning. So Dr Brash wanted to stop you from seeing it? Well, no.

Getting an ex parte injunction (one where the other side isn't notified of the court action in advance) is different from run-of-the-mill contentious court proceeding. Because you're the only one there, not only do you have to make your argument and present the facts helpful to your side, you have to present the facts helpful to the other side too. You have to tell the court if you think the defendant might have a defence (like public interest, for example), and you have to provide the court with all the information you have, so the court can decide for itself the likely strength of any defence.

Don Brash will have filed an affidavit to get his injunction; it will have had to cover everything, and it would explain why he's suing John and Jane Doe (i.e. because he didn't know who had the emails). And if Don Brash did know Nicky Hager had a soon-to-be-published book, then he lied under oath. Committed perjury. Could go to prison for 7 years for doing it.

And Brendan Brown QC, his lawyer (and among NZ's top silks) would probably have signed a false certificate, and face disciplinary action before the law society. Because seeking an ex parte injunction is such an extraordinary step, the High Court Rules require a person's lawyer to take personal responsibility for it – certifying that it complies with all the requirements (like to disclose everything) and should be granted.

So Brash' injunction isn't about Nicky Hager's book. But it might affect it. Here's Scoop's copy of the injunction.

The injunction Dr Brash has obtained is against unknown defendants, described as "persons who gained unauthorised access to [Dr Brash'] computer system and took copies of email messages ("the copied emails") stored in [Dr Brash'] computer system" or "persons who have physical possession of the copied emails or any part of them, whether in hard copy or as a record on a computer, without the consent of [Dr Brash]."

And all the prohibitions and requirements in the injunction (not to publish the emails, or to disseminate the information in them, etc.) only apply to those defendants. If the emails Nicky Hager had were leaked to him by people authorised to have them, he's fine – the injunction doesn't cover him.

It bears repeating – only in the situation where Nicky Hager (or TV3 or whomever) has emails obtained by unauthorised access to Dr Brash' computer (a crime punishable by two years' imprisonment) is he or they enjoined from doing anything.

So the injunction is rather narrower than it first seemed. Don Brash has complained about emails that were "stolen" (it's not the legally correct word, but it's a useful shorthand for criminally-obtained) from his computer, and has sought and obtained an injunction that only covers such emails (and not leaked emails, or even emails stolen in hard copy).

This distinction is important for understanding how Brash' injunction application succeeded. Successfully establishing that the privacy interest in the Leader of the Opposition's emails outweighs New Zealanders' free speech is going to be a tough ask – under the New Zealand Bill of Rights Act free speech can only be limited by the judiciary to an extent that is reasonable and can demonstrably justified in a free and democratic society. And enjoining the publication of all of Dr Brash's emails probably wouldn't cut it. Enjoining the publication of leaked emails might not have met that exacting standard. So we got this instead.

It makes some sense. Free speech isn't limitless, and limiting it in situations that arise because of pretty serious criminal behaviour – like computer hacking – is a much easier case for Dr Brash to make than limiting it where the situation merely arises because of a non-criminal behaviour ('though potentially illegal under civil law) like leaking in breach of an obligation of confidence.

Sufficient legitimate public interest in the information is still all that is needed, however, to get the information out there, no matter how it was obtained. But I'm getting a little ahead of myself – we only need worry about justifying an invasion of privacy if there actually is an invasion of privacy. Is there?

The judgment of President Gault and Justice Blanchard in the Hosking case sets out what must be established by someone alleging an invasion of privacy:

In this jurisdiction it can be said that there are two fundamental requirements for a successful claim for interference with privacy:

1. The existence of facts in respect of which there is a reasonable expectation of privacy; and

2. Publicity given to those private facts that would be considered highly offensive to an objective reasonable person."

The first bit's pretty easy. It does tell us that if Hager is just making stuff up, then he's safe – that would be defamation, not invasion of privacy. But no-one seems to be denying the existence of actual emails, or their importance. And surely it's reasonable to expect that one's password-protected inbox isn't for general public consumption.

The second limb is more problematic. On balance I think it's satisfied. It seems reasonable (subject of course to that public interest exception) that people would object to the wholesale publication of private correspondence, or even the selective publication of it. This isn't innocuous information that's being released – it comprises confidential documents intended for a very limited audience.

So it comes down to public interest. And Hager's book will meet the test. Brash obtained his injunction fearing something more personal, and perhaps more wholesale. The public clearly have an interest in evidence of criminal behaviour and deception claimed to be in the book, and that interest is a legitimate one, not prurient or salacious. Whatever it might be, The Hollow Men isn't a gossip mag outing the details of an alleged affair or detailing Brash' medical history.

Brash would still like his injunction, however. He maintains a distinction between the use of his emails (even if 'stolen', not leaked) as part of a researched political exposé and their use for other purposes. He says he'd like Hager's book to see the light of day, but still doesn't wasn't his entire inbox opened to general public scrutiny.

As a matter of law, it's a fair distinction – the public interest in Hager's book is sufficient to outweigh the breach of privacy involved in the use of information from particular politically-themed e-mails. The legitimate public interest in being able to see Don Brash' entire inbox is much less, and the privacy interest against which that interest must be weighed much greater. For Don Brash this is not a simple matter of applying to the High Court to rescind the injunction – he sees that he is protecting the privacy of all those constituents who've emailed him over his time as leader and doesn't want to let that go. Nicky Hager does not propose to breach that privacy, but without some sort of injunction it is open to others with the emails to do just that.

Nicky Hager wants to be able to publish his book, and could do that with a simple variation of the injunction. But TVNZ and TV3 and various newspapers want more: they want the injunction rescinded, and the right to publish information from any of Don Brash' emails that they have (or might get by whatever means). So even though everyone agrees this book should be out there, we might have a legal battle yet.

So how would that work?

Under the terms of the order anyone affected by it has a right to apply to the Court for new orders, and someone who falls within the definition of defendant, has a right to hearing on 24 hours' notice.

Such a hearing would likely be a rehearing of Brash' initial application. It's not like an appeal where the aggrieved party has the obligation of establishing the decision was wrong – Brash would have to establish anew that he should get the injunction – as though the ex parte injunction had never been granted.

Brash would have to establish that there is "a serious question to be tried" – that his claim for breach of privacy has some prospects of success; this would in turn require him to address whether a defence of public interest might succeed (if it would, then he doesn't have great prospects of success). Importantly, he would also need to establish that the "balance of convenience" favours the granting of an injunction – that he would suffer a loss that couldn't be remedied by monetary damages should he succeed at trial. TVNZ and TV3 probably have the money to pay damages, so that's not an issue, and monetary damages are the standard remedy in privacy cases; Brash's claim that unable to function as an MP or National Leader seems his main argument here. The balance of convenience usually won't favour prohibiting a publication, but where we're talking about the potentially thousands of emails TV3 is seeking to free up, the potential damage to Brash's privacy is pretty far-reaching.

It's a balance, so the loss Brash would suffer in the interim would need to be measured against the loss the various broadcasters would suffer if the injunction were granted and they were to succeed at trial.

This is one important way in which the Brash injunction differs from the Salient one. Brash sought the interim injunction largely to prevent the release of a book – or, as Winston Peters apparently promised, a phonebook (or was it ten phonebooks?) – of his emails while his claim that it breached his privacy awaits determination. The release of the information contained in the emails might be a supremely important matter, but (especially with no election in the offing) it's not an urgent one. Brash has a reasonably strong case that the balance of convenience lies with him. If Brash' privacy is invaded so egregiously that the public shouldn't be permitted to read a particular book (or see a particular news story) then it seems reasonable that we not get to read that book while the matter's being determined in court.

If Salient wasn't published for a week or two there'd be little point in publishing an enjoined issue at all; with the phonebook of emails Winston promised and Brash feared, or the political exposé it seems we'll actually get it, it matters less if we don't get to see it for a few months.

Nicky Hager's book will be published very shortly. No-one argues that The Hollow Men is not of sufficient public interest to outweigh any breach of privacy. If the book is what we're told it is, and the case went to trial, Brash would certainly lose (let's leave questions of defamation for another time). It's a form of political speech that is jealously protected by our laws and our courts, and no-one appears to be attacking that.

Don Brash' entire inbox is a different matter. There must be doubts that such unfettered access to criminally-obtained material (which, remember, is all Brash seeks to enjoin) can be of sufficient public interest to outweigh the serious breach of privacy involved. Brash won't retain a blanket injunction preventing all use of any criminally-obtained emails (if TVNZ has one it claims is in the public interest, it should and will be able to use it), but if Brash truly wants some sort of injunction preventing an open-slather Winston Peters' phonebook-style release of years of email correspondence, he has a good chance of getting one.

The narrow focus of the injunction – emails obtained through unauthorised (criminal) access – doesn't impose an extensive fetter on the right of New Zealanders to impart and receive information freely. A wide-ranging injunction on leaked emails wouldn't have withstood the scrutiny a full inter partes hearing would have imposed, but limited in this way – to the extent that to refuse the injunction in part legitimises criminal action – gives Brash a chance.

If he wants it.

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Good-bye | Nov 23, 2006 13:52

So. Farewell
Then
Don Brash.

The plank
You walked was
Very long.

But in the end
There is only
Sea.

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Erratum | Nov 20, 2006 18:20

In my previous post I said that Deborah Coddington interviewed Lincoln Tan, Justin Zhang and Pansy Wong.

Pansy Wong's office has been in touch to say that she was, in fact, not interviewed by Coddington. The police had recommended that Coddington talk to Wong, and an interview request was made.

Wong: "I made it clear to Ms Coddington that my involvement is largely to do with working with victims of crime and assisting those who want to make a complaint about the justice system – much like other New Zealanders, Asians are also concerned about the number of Police and the need for swift action when investigating crime. While there are offenders within the Asian community there are also many victims of crime, which makes it no different to any other New Zealand community."

There was no subsequent response from Coddington. Wong has requested that I clarify that she was not interviewed, and that she had absolutely no input in the article whatsoever.

That is all.

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Bar brawls aren't my thing | Nov 17, 2006 09:00

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One word that Debra Hill Cone said on National Radio was instructive. She described Deborah Coddington's North & South article as "courageous".

"Courageous."

i.e. N&S knew that asking such a question was going to open them up to accusations of racism, but the public deserved to know, and so they went ahead and did it. This was, therefore, courageous.

The instructive element was that this kind of sentiment is reinforced, if not fueled, by said accusations of racism. The more they are accused of racism, the more courageous they appear for asking that question.

I can appreciate the spirit with which Coddington railed against what she perceives to be uncritically positive reporting on migrants - though, given her own exhaustive list of Asian crime stories, that's a difficult claim to sustain. However, I really want to dispel the idea, implied by the likes of Cone, that Coddington's being lynched because Asians don't like to be criticised or the PC brigade doesn't allow criticism of Asians - and that this sort of shutting-down of criticism is what N&S is standing up against.

I just want to make this clear: It's okay to investigate crime among Asians. It's okay to ask whether there is a lot of crime among Asian migrants. It's even okay to present evidence that says this is the case. That does not equate to racism.

(Though one might want to get more specific than "Asian", as it's pretty rare that you'd have cause to tar Chinese, Koreans, Indonesians and Indians with the same brush.)

However, right to criticise does not mean right to make shit up. The line between critique and baseless accusations is not a fine one, and I'm not about to suggest that an experienced journalist such as Coddington is unable to tell the difference. Mostly because it's really fucking obvious.

Balance: If you're doing an article saying that Asian migrants are criminals, you interview someone who represents Asian migrants. This isn't Journalism 101. This is the sort of stuff that Lois & Clark wouldn't have ballsed up.

Oh, but wait - she did interview other Asian migrants: Justin Zhang from Skykiwi, Lincoln Tan of iBall/Herald columnist, as well as Pansy Wong, I've just learned (thanks Tze Ming).

So let me get this straight.

1) She interviewed three people who actually have connections with and knowledge about the Asian migrant communities, but didn't report on a single one of the interviews (yet, still still quoted Tan's column).
2) She quoted, instead, from one Asian who actively dissociated herself from the Asian migrants who are the subjects of the article.
3) When two well-placed sources - the Minister of Immigration and his National Party counterpart - said they're not aware of such a problem, she dismissed the opinion of these sources and calls them ignorant.
4) She didn't interview the police Asian Community Liaison Officer, the first and by far most obvious port-of-call on the subject.
5) When the stats pointed clearly in the opposite direction from where she wanted the article to go, she fudged the stats.

With every interview subject, you have to weigh up their credibility, their motives and whether what they said was relevant or interesting, etc. Not every interview gets used, and and not everything they say is taken at face value.

But here, Coddington had three senior politicians, two prominent community members, one set of core crime statistics and a partridge in a pear tree disagreeing with the her claims.

This actually raises some interesting questions. There is a public perception that Asian crime is rampant. Some police are concerned about Asian connections in drug crimes. Yet apprehension stats among Asians are far below average, and has gotten lower, and people in the community don't seem fazed. Why?

Is Asian crime actually uncommon, but just gets more attention (and a higher profile) because they're Asian? Is the police unit responsible for Asian crime 'very concerned about Asian crime' because it's their frigging job description?

On the other hand, could it be that law enforcement engagement with the Asian community is lacking, and therefore crime is less visible, only showing itself in the high-end incidents?

But instead of asking these questions, she simply dumped the contradicting interviews, chided the politicians' opinions, and stuffed the stats up a big red herring. Then proceeded to fill up the column inches with gory case details and claim that Asian migrants are mostly criminals. (Not that they're all criminals, mind you. Just most of them.)

In a sense, I think they missed their own point. It could have been a legitimate story.

In a Herald on Sunday column, three days shy of a year ago, this is what Coddington described as "irresponsible" (hat tip: Kumanan):

In August 2002, for instance, [Winston Peters] reckoned immigrants were necrophiliacs, triple murderers, rapists, fraudsters or HIV carriers... in Parliament he quoted approvingly from a letter published in the New Zealand Herald claiming Chinese students were responsible for 'theft, fraud, fighting, assault, intimidation, vehicle crashes, disorder, domestic stabbings and a sideline of extortion and weapon-carrying'."

Ms Coddington, I am accusing you of irresponsible journalism that sought to promote a sensational claim at the expense of any regard for balance or fairness. I am accusing you of intellectual dishonesty in omitting, ignoring and distorting evidence that clearly contradicted your preferred proposition.

I challenge you to respond through whatever means you see fit, but Public Address will be open to you if you choose to respond in kind.

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Fisking for Asians | Nov 14, 2006 22:32

Fisking is its own reward - mostly because it's unlikely that it'll lead to any other sort of reward - but it is quite satisfying to deconstruct a work and rip its still-beating heart out as a trophy.

Oops. Sorry, that's just me being a blood-thirsty Asian.

The cover story of the current issue of North & South, penned by Deborah Coddington, is entitled "Asian Angst: Is it time to send some back?".

Her basic argument is that there is a lot of crime amongst us "Asiatics", which is costing the country and horrifying honest Kiwis, and it's time to "send them back".

First, Coddington seemed to have missed Asian Stereotype 101. The most important stereotype about Asians is that we're very good with numbers, and you should therefore never attempt statistical obfuscation against us - even when it's couched in English words. We can smell the weakness in your stats, Ms Coddington, and it smells like Poisson distribution that's gone off.

Her statistical proof of rising Asian crime is as follows:

[In 2001], although Asians made up 6.6 per cent of the population, they were responsible for just 1.7 per cent of all criminal convictions.

However, according to Statistics New Zealand national apprehension figures from 1996 to 2005, total offences committed by Asiatics (not including Indian) aged 17 to 50 rose 53 percent, from 1791 to 2751. Compare that with offences committed by Pacific Islanders, who make up 6.5 per cent of the population. They certainly committed more offences - 11,292 in the same decade - but their increase was only 2.9 percent."

Okay, so:

1) In 2001, Asian share in crime is much lower than Asians as percentage of total population. (Good?)
2) Between 1996-2005, total Asian crime rose 53% between 1996 and 2005. (Bad?)
3) During the same period, total PI crime rose 2.9% between 1996 and 2005. (Good?)

QED, Asians are far worse than PIs and we should send them home.

Nevermind that she switches from a measure of criminality proportional to population share (i.e. Measurement of ethno-criminality?) to rate of change in number of crimes in two different populations without reference to population size/growth (i.e. Measurement of err... nothing in particular?). Her own figures show:

1) Absolute number of crimes were higher in the PI community. (She explicitly says this, to her credit.)
2) Asians made up a higher percentage of the population than PIs in 2001.

If there are more Asians in the population, but less crime committed by Asians, it stand to reason that criminality proportional to population share (the kind of ethno-criminality that Coddington seems to be trying to prove) is lower among Asians than PIs. Which means bugger-all anyway, but it is the opposite of what she's trying to prove. And the fact that she switches from one measurement to another completely irrelevant one would suggest that it's an act of intellectual dishonesty, rather than statistical incompetence.

So, let's run the numbers. According to Statistics New Zealand's National Apprehension Figures:

In 2001, there were 3182 instances of Asians being apprehended for crimes, which was 1.62% of total apprehensions.

In 2005, there were 3182 instances of Asians being apprehended for crimes, which was a staggering 1.64% of total apprehensions.

Once you get into the third significant figure, you can see the mindboggling increase in Asian crime. You hear that noise? That's that boggling of my mind.

That's not a typo. The number of Asians apprehended for crimes was actually *exactly* the same for 2001 and 2005. Talk about spectacularly inconvenient. I suspect that that's why Coddington moved to 1996 as the base year instead.

[For the purposes of per capita calculations, Indians are included, as the population stats include Indians under Asians, while the police stats have "Asiatic" and "Indian".]

In 1996, there were 3741 instances of Asians (including Indians) being apprehended for crimes, which accounted for 1.9% of all apprehensions. But back then, Asians were 3.8% of the population. By 2005, Asians were represented in 2.6% of apprehensions, but were 9.3% of the population. So, as the proportion of Asians in the country increased threefolds, their representation in crime statistics rose by only a third.

In short, the Asians went from being under-represented in crime stats by a factor of 2 to 1 to being under-represented by a factor of 3.7 to 1. i.e. Very roughly speaking, Asians are about a quarter as likely to be criminals as the average person in New Zealand.

This *decrease* in Asians' ridiculously low crime representation rate is what Coddington describes as a "gathering crime tide".

Coddington implies that Asian business people are widely ripping off customers.

Evidence?

The Commerce Commission issued nine warnings in the past year to "Asian traders", of which six were "related to misleading representations about the country of origin of royal jelly and sheep placenta supplements". One trader was convicted last year.

Nine warnings in a year. One conviction the year before.

Mind: Boggle. Boggle.

(And I'm sure that "disquiet [is growing] in heartland New Zealand" about being misled over the country of origin of their royal jelly and sheep placenta.)

This one isn't Coddington's, but is mindboggling anyway.

Making it even more difficult for police, says [Auckland police] drug squad boss [John] Sowter, is 'that they all look the same to us so you wouldn't know [they're gang members] if you passed them on the street. We've got Asian cleaners and I look at them sometimes and wonder.'"

Yes - if the police can't tell the difference between an Asian gang member and an Asian cleaner, yes, you'd have to wonder why Asian gang crime is a problem for them.

"New Zealand has imported an alien, ruthless and secretive crime culture committed by educated, profit-driven individuals and gangs..."

...then she goes on to conclude the article with the case of Zeshen Zhou, who went nuts and killed his wife. The final sentence of the article "Zhou is a New Zealand resident and will not be deported".

It just seems to be such a non-sequitur response. Man goes psycho and butchers his wife: His residency status should therefore be called into question?

The point is that you can't guarantee that a person who seems to be good is good, or that they will remain good. Yes - there are criminals in this country who are Asians, who use their connections with Asia or with the local Asian community to commit crimes. But the statistics argue extremely strongly against the idea that this is any sort of crime wave, or that the problem is getting worse.

And you can't make citizenship probationary forever on the off-chance that they are bad. Either you accept a person into the country or you don't, and if you do, you've got to treat them like anyone else. And if they commit a crime, treat them like someone who's committed a crime. What's so terribly wrong with that?

And one more thing you can't do: You can't compare a population-related feature of two groups without reference to the population.

Now that's a crime.

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