Friday, 23 January 2015

OF BALLOONS AND PUBLIC INTEREST

The New Zealand media, are publishing with relish (23 January 2015),  4 photographs taken by commercial freelance photographer Mr. Geoff Walker, of the awful Carterton balloon tragedy from 2012. Mr. Walker objects to this, but the Courts have said that the photographs were produced in open court and as the media have opined, “their publication is in the public interest.” Is it really? What are the issues at play?

Some family members of the deceased say that it is right that these images are published because it will highlight to the public, the risks of ballooning. This argument can easily be dealt with, and will be addressed first. Balloons have been defying gravity for years. For as long as hot air balloons have gone up, they have also come down, in controlled and uncontrolled ways. There are numerous pictures of crashing balloons readily available. Further, the media regularly carry images of crashed and mangled cars, and most of us still elect to drive. Further, we all know that from time to time aircraft crash, yet most of us still elect to fly. There is in short little educative value in the public seeing yet more images of a burning balloon dropping from the skies.

What has not been discussed in the media is that Mr. Walker is a professional photographer. He derives his living by taking photographs, the copies of which he sells. All images he takes are copyright. Mr. Walker was an associate of Mr. Hopping a hot air balloon operator. Mr. Walker would frequently attend at the morning balloon rides and would photograph the people and various stages of the ballon rides. Mr. Walker would then sell CDs of the balloon flights to passengers for a fee if they so wanted.

On the morning of the balloon crash (7 January 2012) Mr. Walker was in attendance and photographed the inflation, and other aspects of the balloon ride. After watching the balloon take off from its point of departure, Mr. Walker was travelling to the projected landing destination.

Mr. Walker took photographs of the crash, the ensuing fire and recorded on film the accident. As the balloon was descending at a faster rate than normal, Mr. Walker began to take photographs from the road side where he pulled his car over.

After Police arrived under the direction of a detective he took photographs for Police. Apparently Mr. Walker never asserted any proprietary right in relation to those images.

Out of a spirit of goodwill to assist Police with their inquiry Mr. Walker provided access to his own images. At all stages Mr. Walker’s clearly asserted his copyright in terms of every image he loaned to Police. Police of their own motion, without consulting Mr. Walker took his images and provided them to the Office of the Coroner.

Without consulting Mr. Walker these photographs became part of the evidence in this inquest. The news media, in particular TVNZ, a commercial enterprise, that in relation to its own news services asserts its copyright over its news content[1] applied to the Coroner to use without Mr. Walker’s consent, or payment of any fee to Mr. Walker, four of the images that Police took without Mr. Walker’s consent and provided to the Coroner.


This case clearly raise profound public interest arguments. Some will argue that this is a profound tragedy and it is immoral for people to make money out of the misfortune of others. There are two arguments to this. First, Mr. Walker has never sought to “cash in” on the photographs. Rather he is merely asserting his intellectual property rights over his images. He in fact turned down lucrative offers from local and international media for access to the images in the aftermath of the tragedy. Second, so what? Police, ambulance officers, undertakers, embalmers, florists and even coroners and some lawyers etc are all paid or derive income from tragedies. There is no moral difference with a photographer doing the same.

At issue in this case, amongst other things,  is that in allowing publication of the images without Mr Walker's consent is to deny Mr. Walker control over his intellectual property and then sees the handing of a selection of his images to a commercial media organisation that asserts its own copyright over those images.

There is also a strong public interest argument at work. Might it not be that had Mr. Walker known that Police would use his images in the way that has transpired, that he would not have been as co-operative in the first instance?

While it might be argued that Mr. Walker gave Police access to his intellectual property, he did so under licence. He did not relinquish ownership in his property when he did that.  In the same way as a person might hire a trailer from a garage, the initial act of taking of the trailer under conditions is lawful. It becomes an entirely different matter when one refuses to return the trailer in compliance with the terms of hireage, or uses the trailer outside the terms initially agreed. 

No matter the words used by the Courts, for a third party to then publish Mr. Walker’s images, without seeking Mr. Walker’s licence for their use sees him lose control over the use and distribution of those images. In essence his proprietorial rights of ownership and control are lost and or ignored, having been supplanted by another party that asserts its rights over those of Mr. Walker.

A coronial inquiry is an inquisitorial inquiry. As the Ministry of Justice website says, “[t]he coronial process is fact finding, not fault finding. This means it is not there to blame or punish anyone, but instead it aims to work with the families of the person who died to try and answer any questions they might have, and to improve public safety.” Ideally participants operate to assist with the public interest goals and ultimately broader social good. In this context, such public mindedness would be undermined if professionals in the shoes of Mr. Walker were to lose control over their intellectual property through assisting Police on a voluntary basis with the investigation of fatal accidents.

While there is a public interest in having relevant details reported, there is also a strong public interest in having intellectual property rights protected,  and in having people feeling that they can co-operate in an unfettered way with volunteering information and assistance to Police in the investigation of deaths, without their legal interests in their intellectual property being eroded or as in this case lost through the fact of this co-operation. To accept without challenge what has happened to Mr. Walker may likely create a chilling effect for professionals. After all  if they seek to assist Police they could see their legitimate commercial expectations over the control of their work eroded in favour of corporate media interests who use “open justice” as a tool to evade having to seek the permission of and pay the owner of the copyright for the use of that owner’s intellectual property.

As a result of what has happened here, a public spirited professional, a photographer has lost control over his intellectual property. This must cause others, should they find themselves in a similar situation, to think twice about their willingness to assist Police. Such a chilling effect is unfortunately a natural outcome as professionals have just seen the erosion of their intellectual property rights in favour of commercial news media. Perhaps such people may not be so public minded in the future. Such an outcome cannot be in the public interest.

   





[1] See for example: http://tvnz.co.nz/news Copyright © 2014, Television New Zealand Limited. Breaking and Daily News, Sport & Weather | TV ONE, TV2 | Ondemand

Tuesday, 2 December 2014

SUBMISSIONS OF MICHAEL BOTT ON THE COUNTERING TERRORIST
FIGHTERS LEGISLATION BILL




1.     I write these submissions in my personal capacity. I wish to appear before the Select Committee to speak to my submissions.

2.     I am deeply concerned at the speed at which the Government is seeking to pass this legislation in to law.

3.     This proposed Bill seeks to grant the SIS power to surveil New Zealanders and people lawfully in New Zealand for periods of up to 48 hours without a warrant.

4.     Additionally the Bill seeks to grant government the power to unilaterally revoke a person’s passport and therefore deny them the freedom to travel.

5.     It is lamentable that the advent of such powers and the resulting affect on the rights and freedoms of New Zealanders is deemed to be of such a low priority that the public have been given just one day to make submissions on this major erosion of their civil rights.

6.     I note that the Attorney General on Morning Report (RNZ) this morning offered the reassurance that these measures were only “stop gaps” as there will be a full review of our security laws next year. Despite this it appears that the measures contained in the Bill will not expire until 2018.

7.     I also note that when asked on Morning Report, as to why the rush with urgency, regarding this Bill, the Attorney General stated that the government did not need “six months of chit chat”. With respect this remark displays a risable contempt for the democratic process and the public right to be heard before the Select Committee.

8. To describe the Select Committee process as mere “chit chat” has the hallmarks of predetermination, and suggests that public consultation is merely “Claytons consultation.”

9.     It is noted that the Explanatory Note to the Bill observes that New Zealand is at best a “low risk” to threats from terrorism. Our neighbours across the ditch and indeed the United Kingdom face considerably higher terrorist risks and have allowed their citizens weeks and in the case of the UK, some six months to make submissions.

10.  It is lamentable that New Zealand in response to a UN request to take steps against foreign fighters should be so quick to stamp upon the very democratic processes we claim we are trying to defend.

11.  As a first position it is noted that one of the chief purposes of the Bill is to prevent the entry or departure of “foreign terrorist fighters”. But how is an as yet unmanifested terrorist intent or purpose to be detected at the moment of border crossing? In more concrete terms: how can it be determined whether a person is travelling to Egypt (for example) as a tourist or is only using Egypt as a transit country to join ISIL in Iraq or Syria?

12.  The Bill has a worrying silence as to the source and testing of the information relied upon as the basis for “reasonable grounds to believe” that the person in question is pursuing a terrorist purpose. This will be developed below. However, the tighter preventive measures thus called for, particularly in the context of border controls, may lead to discrimination based on stereotypes. 

13.  Yet again, we are seeing rushed legislation being pursued in an attempt to look tough in the face of terrorism, that may create another recipe for injustice and resentment by closing down the open society we seek to promote.

14.  The reliability of secret information about individuals can lead to grave injustices, as the very nature of the information being deemed secret only adds to its perceived credibility despite the fact that the information may in fact be inherently unreliable.

15.  For example Ahmed Zaoui a man once dubbed a threat to national security by the Security Intelligence Service due to a reported association with a suspected terrorist group, spent two years in custody when in reality he was a democratically elected Algerian politician who fled Algeria following a military coup.

16.  The Algerian Government convicted Mr. Zaoui in his absence in 2003 of terrorism and sentenced him to death. This was despite him not being in Algeria  since 1992.

17.  In reality Mr. Zaoui was a threat to no one, spent two years in custody because of secret information.

18.  There is a real risk that people with innocent motives may be seeking to travel to or from “countries of concern” who may in fact find that their travel documents are suspended or revoked on specious grounds.

19.  Further the cross-fertilisation of secret information between national and foreign security agencies can lead to errors and labelling of people as militants and threats when in fact that is not the case.

20.  Intelligence agencies while frequently using conventional language have become renowned for attaching meanings to those terms that are far from conventional.

21.  For example it was reported this year that the CIA claimed to have killed “militants’ in a drone strike. While this may be reassuring, it subsequently transpires that that term actually means, all military-age males in a strike zone as combatants.”[1]

22.  As international lawyer Glenn Greenwald observed, “By “militant,” the Obama administration literally means nothing more than: any military-age male whom we kill, even when we know nothing else about them. They have no idea whether the person killed is really a militant: if they’re male and of a certain age they just call them one in order to whitewash their behavior and propagandize the citizenry (unless conclusive evidence somehow later emerges proving their innocence).”

23.  Thus as in the Zaoui case a reliance on foreign intelligence fed to politicians by our own agencies can be inherently unreliable. Language is used which while appealing to ordinary usage, may in fact contain meanings that are anything but. Further the source of the information may be knowingly unreliable or deceptive.[2]

24.  The Explanatory Note contains insufficient detail about the reasons that the current passport regime is inadequate. Why for example is a one-year cancellation period inadequate? Further why should it be that the Minister can specify a period of up to three years, rather than reapplying for an additional twelve month period? This is especially so, when it appears the Minister does not have to apply to Court to extend a cancellation. 

25.  I further oppose the move to allow the SIS to undertake warrantless surveillance for up to 48 hours. As is repeatedly claimed it is vital for New Zealanders to have confidence in the integrity and reliability of our law enforcement, and intelligence agencies.

26.  Further it appears that the person(s) being surveilled without warrant will potentially never know that they have been surveilled, so the reasonableness of the intrusion into their privacy will never be properly checked.

27.  Currently no New Zealander can be spied on by any state agency unless a warrant is approved by an independent judicial officer be they a judge, JP or the Commissioner of Security Warrants.

28.  This is a level of judicial oversight that provides a level of check and balance against the wishes of the state.

29.  The Bill purports to see the erosion of this important check and would see the erosion of this long standing right for New Zealanders to be free from state surveillance unless authorised by judical approval.

30.  Further the Bill grants the Minister the power by fiat to cancel the passports of people overseas. This in effect renders them stateless and as matter of process means they are in fact exiled, or subject to imprisonment in a foreign country, with no practical ability to challenge the decision.

31.  The Bill seeks to grant to the Minister the ability to suspend a passport for 10 days without evidence. By definition this is an arbitrary restriction on a person’s freedom of movement. In essence the rights of every New Zealander to travel beyond our borders may be subject to the views of the Minister.  

32.  As noted above the reliance on secret information, cannot of itself instil confidence by New Zealanders in the process – one need only look at the case of Ahmed Zaoui.

33.  Further secret evidence is offensive to open justice, is offensive to access to justice and the fair trial principle of equality of arms. The ability to use secret evidence in appeals against these actions violates the right to justice and undermines the credibility of the courts.

34.   In essence given the track record of the SIS and the inherently unreliable nature of secret information (e.g. Zaoui etc) the SIS and the Minister should not be trusted with these powers.

35.  With respect currently following the recent Gwyn Report far from entrusting the SIS with greater discretionary powers to intrude into our rights and freedoms, it appears the SIS needs greater checks and boundaries around their powers, not less.




[1] Glenn Greenwald: http://www.salon.com/2012/05/29/militants_media_propaganda/
[2] ibid.

Wednesday, 24 September 2014

Labour: Some Difficult Questions

Years ago I was involved in a car accident. I was sitting in the front seat as a passenger in a car controlled by an erratic person, driving like a ball bearing in a pin ball machine. I saw a car on our left pull out from a parked position. The driver did not. The ensuing seconds felt like minutes as my adrenalin heightened senses observed almost in slow motion the carnage that ensued. I remember grabbing my seat belt and swinging my legs up onto the seat as the engine bay sliced guillotine-like into the front seat, where my legs once were.

Thoughts of watching a car accident in slow motion unfortunately returned to me in the weeks leading up to and culminating in last Saturday's election results. It was apparently Labour's worse result in ninety two years. What to do? Blame the leader? Start a period of introspection and navel gazing? Does Labour need to rebuild and how?

I should declare at the outset that I support the Labour Party and have stood as a candidate in an electorate seat in the past. I gave the Party over a year of my life, and practically gave up paid employment for a year as I campaigned full-time. I also sought a position on the party list. I can say now that while I support Labour, I have no wish to seek nomination as a candidate again. So in writing my thoughts in this particular blog I have nothing personally to gain.

It is pretty evident that there are a number of divisions within the Labour Party. The first one is over the leadership. Simply put it appears that most the Labour caucus do not want David Cunliffe as Leader and have never wanted him. A large number of the Labour membership however do, or at least did. There is a call to replace David Cunliffe with David Shearer or some other individual, of which there seem to be three eager to grasp that chalice.

Mr Shearer was leader before Mr Cunliffe. Now away from the pressure of that role he has performed reasonably well. With respect while leader, to my mind he did not distinguish. We now all know that before his incarnation as an MP, he helped take school books to children in a war zone, but you need more than that as part of your story. Additionally Mr Shearer was extraordinarily inarticulate and garbled when it came to his ability while leader to use spoken English. To my mind he will be forever be remembered for one of his last appearances in the House as leader, when he stood up and in a desperate attempt to make a point, held a dead fish in each hand. His leadership slept with them shortly thereafter.

Today we have presidential style campaigns where there is a focus on the leader of each political party. When you appoint a leader a number of things are important. They must be able to galvanise the Party, be intelligent, but more importantly they must be able to front foot it in debate with the Prime Minister, John Key. I just do not think Mr Shearer could even hold a candle to Mr Cunliffe in that regard.

Also important is the ability of the leader, but also the Party and especially the caucus to be identified with and accepted as credible by the electorate. This is where I think the Labour Party is missing the mark.

Without doubt the Labour Party had an impressive array of policies. They were so impressive that the National Party stole some of them as part of their attempt to brand themselves as National lite and centrist. The National Party has occupied the centre and has adopted a strategy of appealing to "middle New Zealand" with a range of policies built upon an appeal to prejudice (e.g taking the vote off inmates and beneficiary bashing) and tokenism (e.g. a possible tax cut sometime in 2017) while advancing larger systemic moves that favour corporates and the business sector.

The important point being that the National Party has made an art form out of appealing to middle New Zealand, while to all intents and purposes the Labour Party appear to ignore them. In saying this I am not advocating being hard on beneficiaries or even jettisoning Labour's socially progressive policies, rather I am saying that Labour needs to look at the core voting block and understand how they tick.

I think the Labour Party can be justifiably proud of their attempts to bring gender equity to political representation for example. However, in doing that you must also carry the voting public with you. It is no use inventing an iPhone 6 two centuries ago, if the technology and market are not there to support and accept it. You may be advanced and ultimately correct, but as with most things in life politics is the art of the possible and unless you can gain the Treasury benches you will languish. Believing that you are the only ones who are correct will not take you very far in politics.

Well known blogger Morgan Godfrey sat in on Labour's 2011 Wellington list selection meeting and as an outsider observed what he saw as a culture of "poisonous patronage that pervades the Labour Party." Of the actual list, when it was released, he wrote: "Overall, a pretty shitty list in my opinion. The Labour Party needs to stop rewarding service with political patronage. Internal politics is always at play with this sort of thing."

Therein to my mind lies one of the Labour Party's problems. There has been a perception that Labour does not reflect in its composition middle New Zealand. I recall for example the Labour list selection process for the Wellington Region for this year. We had only one male put his hat in the ring. I am advised that potential male candidates were told that they would be wasting their time. As the New Zealand Herald reported on 5 September 2014 in a nationwide poll Labour's support among men has fallen to 18.4 per cent, while 28.9 per cent of women support Labour. Overall support came out at 23.8 per cent, which was not too far removed from the actual result on election night.

While the outcome of the list selection process may reflect the best of intentions, it underscores the fact that it does not and has not carried the electorate. In saying these things I am not underrating the women that put their names forward. They were articulate, intelligent and would each have much to add to any caucus.

The list selection process may accord with Labour's constitution and reflect where New Zealand should be heading. But processes like this play into the hands of the right who spin it as an example of the "man ban" and we are seeing a withering of Labour's party vote. If the electorate are rejecting where Labour wants to go, is it not time that Labour started listening?

Imagine a yacht race where the crew on one boat are battling over who will be captain and who will perform what function. Worse still imagine a race, where the rival teams are out sailing around the course, while this yacht remains at its berth arguing over the composition of the crew. At times with Labour it appears that there are so many vested interest groups not willing to cede ground that it seems they would rather lose the race, taking comfort that they at least have their people on board. In short I think Labour is in a state of vested interest gridlock. This has to change. This will be difficult as it will involve a cultural shift, from years of manoeuvring by niche groups, to the realisation that to effect political change, you have to be in Government and that means appealing to the majority of New Zealanders.

As a lawyer I have acted in numerous jury trials. I have won more trials than I have lost. One of the biggest battles in a trial is over getting the jury to identify with and to believe in the person you represent. Labour has to start taking real steps to get the electorate to identify with and believe in them.

On a practical level the Labour Party has to start doing deals in advance with the Greens. This is common sense and should have been done as long ago as 2011. That the Labour Party refuse to do this is frankly stupid. The National Party do it with Act and United Future, to great effect. At the last election if the Labour leadership had a discussion with the Greens and the Greens agreed to give their electorate votes to Labour, there were possibly four extra seats that could have have gone to Labour. Two examples will suffice. In Ohariu, which is Peter Dunne's seat, on election night he received 12,270 candidate votes, Labour's Virginia Andersen received 11,349 and the Greens 2,266. Another example is Auckland Central. On election night National's Nikki Kaye received 10,040 candidate votes, Labour's Jacinda Adern 9,303 and the Greens just 1,537. Given current figures the Greens will never win those seats.  Labour's intransigence to embrace MMP in this way is costing it seats.

If the Labour Party does not start appealing to middle New Zealand, by choosing people and adopting an approach that the majority of voters can identify with, then they run the risk of abdicating the largest voting block to a right wing party led by a multi-millionaire currency trader who most appear to think represents them more than the Labour Party. Unless these issues are actually addressed, in the near future the Labour Party risks becoming an irrelevance.

Monday, 4 August 2014

The Act Party and Maori

Act leader Jamie Whyte's view on the Maori Seats and comparisons with the pre-revolutionary France is bollocks. Act ignore the notion of contract contained in the Treaty of Waitangi. It is through the signing of the Treaty that the Crown gained its legitimacy to govern in this country. The Treaty is not a document that gives Maori special privileges, rights and millions of dollars to which they are not entitled. Rather the Crown for over a century reduced Maori to being the party to a broken contract. In terms of special favouritism, Act should look at themselves where they have to rely on the patronage of the National Government to get into Parliament, as their own policies are so repugnant that they have little hope of making it on their own.