27 September 2007

The MP's son, Bebo, and homophobic abuse - Part 2

One of my colleagues - Dr Nicole Moreham, an acknowledged expert on privacy law - has made some good points on another email group about this issue. With her permission, I've reproduced her post here:
From: Nicole Moreham Subject: Politicians and privacy I was wondering if I could re-visit the issue of Bill English’s son’s Bebo posting with my privacy hat on. It has been suggested by Key, English and some media commentators that reporting on the matter would be an unwarranted intrusion into a politician’s family life. Legally speaking, there is no question that any privacy action would fail. I agree that it should fail for the following reasons: 1. At the heart of this controversy is a posting on a publicly accessible webpage. No-one has denied that the youth in question elected to publish his views on the site. The language is provocative, abusive and designed to attract attention. He has not been staked out while speeding in his car or smoking dope with his friends. He has chosen to put his opinions into the public domain. 2. It is clear from Hosking that an individual’s reasonable expectation of privacy will be reduced if he or she is a public figure. That privacy reduction also extends to the families of public figures (see paras [123]-[124]). While it might be questionable how far this extends where the families of celebrities are concerned, there is no question that it applies to the immediate family of politicians. Every jurisdiction of which I am aware accepts that some incursion into family life comes with the political territory. (See Dean Knight’s blog LAWS179 for examples of stories on the families of other New Zealand politicians.) 3. The reaction of English and Key to GayNZ’s story has emerged as a separate story to the original Bebo posting. GayNZ maintain in their editorial that they contacted English about the content of his son’s webpage some time before the story was published, that English did not respond in any way and, once the story was published, English declined to censure the remarks but threatened to sue GayNZ. Key described the remarks as typical of the kind of ‘rugged’ exchange one should expect when youths express themselves. There seems to be a public interest in these responses. This is particularly the case if they could be seen to be at odds with National’s public support for the protection of homosexuals and of homosexual youth in particular. 4. On a more polemic note, I am surprised that the matter has dropped out of the media so quickly. Perhaps the matter is not judged to be important or interesting or perhaps journalists believe that it would indeed be an unwarranted intrusion into privacy to pursue it further. If it is the latter, then what has happened to those journalists who defend freedom of expression so vociferously when someone suggests that they refrain from publishing photographs of injured accident victims or cartoons which are offensive to a vulnerable religious minority or details which could lead to identification of a rape victim. Do only the powerful enjoy privacy protection in this country? The deferential silence is deafening.

1 comment:

Dave said...

Dean, Im not sure if you have already considered point 4 of this email, but the answer to why it has dropped out of the media has more to do with news values than interest. The thing only got into the MSM when English responded. What he said was more newsworthy than what Gay NZ wrote. Since English responded he hasnt said anything further. Therefore a non response is not news. Therefore it quickly dropped out.

Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"


This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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