TATTOOS AND PUBS - SOME PRELIMINARY THOUGHTS

A Christchurch man was refused entry to a bar because of his facial tattoos. He was not wearing gang patches, nor was he intoxicated. Can bars refuse anyone on the basis of tattoos? What about tā moko, the permanent body and face marking by Māori?

Technically, the refusal of entry to a bar amount to a revocation of the implied licence for a member of the public to enter the premise. At that point, the person refused entry, should they remain, commits a trespass. Pubs and bars are private businesses and they at first blush appear to have the right to determine who can enter their premises or not. However, it may not be as simple as that.

The sale of alcohol to the public is an activity that is tightly regulated. You cannot serve alcohol to the public without meeting strict regulatory criteria. You must be licenced to supply and serve alcohol.

Arguably the Human Rights Act 1993 applies:

133  Licences and registration
(1)   Where any person is licensed or registered under any enactment to carry on any occupation or activity or where any premises or vehicle are registered or licensed for any purpose under any enactment, and where the person or other authority authorised to renew, revoke, cancel, or review any such licence or registration is satisfied—

(a) that in the carrying on of the occupation or activity; or

(b) that in the use of the premises or vehicle,—

there has been a breach of any of the provisions of Part 2, the person or authority, in addition to any other powers which that person or authority has, but subject to subsection (2), may refuse to renew or may revoke or cancel any such licence or registration, as the case may require, or may impose any other penalty authorised by the enactment, whether by way of censure, fine, or otherwise.

(2)  Any procedural requirements of the enactment, including any whereby a complaint is a prerequisite to the exercise by the person or authority of its powers under the enactment, shall be observed.

(3)  In any case in which any of the powers conferred by subsection (1) are exercised,—

(a) the person or authority shall in giving its decision state that the decision is being made pursuant to subsection (1); and

(b) any person who would have been entitled to appeal against that decision if it had been made on other grounds shall be entitled to appeal against the decision made pursuant to subsection (1).

(4)  In this section the term enactment means any provision of any Act, regulations, or bylaws.

This being so, a bar or pub clearly conduct a business that requires a licence pursuant to the Sale of Liquor Act 1989. Part 2 of the HRA states:

21A Application of this Part limited if section 3 of New Zealand Bill of Rights Act 1990 applies
(1) The only provisions of this Part that apply to an act or omission of a person or body described in subsection (2) are—

(a) sections 21 to 35 (which relate to discrimination in employment matters), 61 to 64 (which relate to racial disharmony, and social and racial harassment) and 66 (which relates to victimisation); and

(b) sections 65 and 67 to 74, but only to the extent that those sections relate to conduct that is unlawful under any of the provisions referred to in paragraph (a).

(2) The persons and bodies referred to in subsection (1) are the ones referred to in section 3 of the New Zealand Bill       of Rights Act 1990, namely—

(a) the legislative, executive, and judicial branches of the Government of New Zealand; and
 (b) every person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law.

Pubs and bars are private businesses but it can be argued they conduct a public function, and have  duties, imposed on them pursuant to law (the sale and supply of alcohol to the public). This interpretation is consistent with a purposive and rights affirming reading of the Bill of Rights Act, as expressed in the Acts long title:

An Act - (a) to affirm, protect, and promote human rights and fundamental freedoms in New Zealand

This being said the bar or pub a person may well fall foul of the HRA and the New Zealand Bill of Rights Act 1990 if it can be shown that the decision to bar them was discriminatory on grounds of sex, race, disability, religion, freedom of expression or sexual orientation.

So in the case of a Christchurch man excluded from a bar because of his facial tattoos, it is arguable that the bar must conduct its business, that is in serving the public alcohol, in a manner consistent with the Bill of Rights Act 1990.

It is axiomatic that persons subject to BORA are bound by the BORA and must exercise their discretionary powers consistently with the BORA. This is explicitly required by s6 BORA.

Section 5 of the BORA provides that the rights and freedoms contained in the Act may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

In determining whether a limitation on a right is “demonstrably justified”, the Court of Appeal in its Moonen decision set out its own test to determine whether or not a limitation is “demonstrably justified” (Moonen v Film and Literature Board of Review (1999) 5 HRNZ 224, 234 Para [18]):

1) Identify objective which the Legislature was endeavouring to achieve by the provision in question;

2) Assess the importance and significance of that objective;

3) The way in which the objective is statutorily achieved must be in   reasonable proportion to the importance of the objective;

4) The means used must also have a rational relationship with the objective;

5) In achieving the objective there must be as little interference as possible with the right or freedom affected;

6) The limitation involved must be justifiable in light of the objective.

In Moonen the Court stated, “where an enactment can be given a meaning that is consistent with the rights and freedoms contained in the Bill of Rights, that meaning shall be preferred to any other. Thus if there are two tenable meanings, the one which is most in harmony with the Bill of Rights must be adopted” (Moonen v Film and Literature Board of Review (1999) 5 HRNZ 224, 233 Para [16]).

When considering the meaning of the words “promotes or supports” in Section 3 of the Films, Videos, and Publications Classification Act 1993 the Court emphasised that a Bill of Rights consistent approach was required and that those words had to be given such available meaning which impinges as little as possible on freedom of expression. 

The Moonen test underwent a slight refinement in Hansen v The Queen [2007] NZSC 7; [2007] 3 NZLR 1; (2007). The majority of the Court approved the methodology of Richardson J in Noort. McGrath J gave the most thorough outline of the approach to be taken, which was broadly consistent with that of Blanchard, Tipping and Anderson JJ (at [192]). The Court recognised that an obvious first step was to ascertain whether there was a prima facie conflict between an enactment and a Part II right (at [92]).

If an inconsistency does arise, the Court will apply s 5 to determine whether the limitation upon the Part II right is demonstrably justified. 

Further, where someone is barred from a pub they may have a legal ground of challenge where the decision to bar them was discriminatory on grounds of sex, race, disability, religion, freedom of expression or sexual orientation and therefore would fall foul of laws which prohibit discrimination on those grounds in the provision of goods and services.

Obviously there are occasions where these rights can be limited. But such limitations must be demonstrably justified. So it may not be clear-cut. Human rights are engaged. Pubs and bars are private businesses but they have public duties imposed by law. Watch this space

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.

   

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[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