Prior Restraint of Brash’s Emails
The High Court injunction forbidding anyone from releasing the contents of Don Brash’s e-mails raises some very interesting free speech questions.
The interim injunction was gained by Don Brash on Friday. It enjoins unknown respondents (John and Jane Doe) from copying, issuing to the public, broadcasting or making an adaptation of any of Don Brash’s e-mails. There is already a criminal investigation going on into the copying of these e-mails from Brash’s computer.
Nick Russell of Chen Palmer says in this morning’s Dominion Post (Brash blocks ’stolen’ e-mails) that this sort of prior restraint is very unusual.
“This is absolutely a gagging writ on the media.”
It’s worth noting as an aside that this injunction doesn’t cover documents tabled or read out in Parliament or select committee as these arenas are covered by parliamentary privilege.
There are a whole swag of questions here: In what circumstances (if ever) should we allow prior restraint of the press? To what extent can a “public figure” (or anyone) expect privacy? Should the probably illegal manner in which the information was gathered have an impact on whether it can be published? Are copyright restrictions relevant here and how should they apply?
As always, in an open society, the initial presumption must be towards freedom of the press. A prior restraint on publication is a very blunt weapon that should only be used when there is significant risk of a publication causing serious harm, such as in the cases of publishing details of an upcoming military operation or naming the members of a witness protection scheme.
The copyright question is a red herring. Copyright exists to protect the livelihoods of writers and artists. Unless it can be reasonably claimed that these e-mails were the creative source material for a book (or perhaps a soap opera) copyright protections should not apply.
There is little doubt that these e-mails were gathered illegally. If the culprits are caught they should certainly be punished, whether for theft, for computer hacking, or whatever other charges might be relevant. If others were involved in the commission of the crime they too should be punished as appropriate.
Does the illegality of its gathering mean that the court should enjoin the publication of this information? Think back a few months to the leak of the news that the government was planning to vandalise Telecom by handing use of one of its key assets into the hands of its competitors. That information was taken illegally by a government employee and ended up in the hands of Telecom and the news media. There is no question that Telecom should have passed that information on to the share market and that the news media were entitled to publish that ‘leaked’ information.
The only real basis on which an injunction like this should possibly be granted is privacy. Traditionally privacy has been traded off against newsworthiness although this is not a true dichotomy; facts can be any combination of private or public and newsworthy or non-newsworthy. Newspapers and the like should certainly be allowed to publish anything that it newsworthy. Arguably they also be allowed to publish information that is not newsworthy and leave the decision (perhaps to publish information about the young children of celebrities, for example) down to journalistic ethics.
The question of what is “newsworthy” rests again with journalistic ethics and with public opinion. Witness the difference between how the extra-marital affairs of John F. Kennedy were dealt with (or not) compared with those of Bill Clinton. When talking about people running for public office, “newsworthiness” could cover any number of matters usually considered private. To a moral conservative, for example, questions that most people would consider entirely private and non-newsworthy, such as sexual orientation, would be of the greatest interest in determining whether to vote for a candidate.
With out knowing the content of Don Brash’s e-mails it is impossible to comment on their newsworthiness or, indeed, whether the information in them would be better classed as “private” or not. That decision is best left to editors who will decide how best to spend their column-inches. They should not be prevented from publishing “news” before the fact and should only be punished after the fact if they breach libel laws.
While Brash’s distress as the prospect at the publication of all his private correspondence is highly understandable - and criminal charges should apply to anyone responsible for illegally accessing information on his computer - it is a step away from a free society to use the courts to silence the press.
November 18th, 2006 at 5:24 pm
Don’t agree with you, I’m afraid. Brash’s emails are his bloody property, no-one else’s.
Your use of the Telecom example is a red herring.
“Think back a few months to the leak of the news that the government was planning to vandalise Telecom by handing use of one of its key assets into the hands of its competitors. That information was taken illegally by a government employee and ended up in the hands of Telecom and the news media. There is no question that Telecom should have passed that information on to the share market and that the news media were entitled to publish that ‘leaked’ information.”
This was in information about a forthcoming theft (ie., the nationalisation of Telecom’s lines). Passing on information about a forthcoming theft is entirely just. it is the law here that was unjust.
November 20th, 2006 at 10:22 am
I have to agree with Peter on this one. Brash and only Brash owns his private emails. Only he has the right to decide who can publish the material of such an email. Whenever someone sends me an email, even though I was the intended recipient, I always ask the person before passing on the information to others. When you get right down to it property rights are what matters here.
November 20th, 2006 at 2:36 pm
There’s no doubt that the taking of copies of Brash’s e-mails was reprehensible and should be punished. (Helen Clark seemed to know about them in September and said that they would “see the full light of day in due course”. Perhaps her office would be a good place for the Police to start asking questions.)
The question I wanted to explore here is what limits we place on the press when they’re presented with this sort of information. Let’s assume that the press (or anyone planning to publish) were not involved in the initial crime and were just handed the information. On what basis should they be prevented from publishing any of the information they’ve been handed?
Is that basis copyright (as I understand was argued in this court decision)? Copyright is quite limited. It doesn’t prevent the publication of small portions as fair use in, say, a review. Do you propose a stronger form of copyright than that, given that your objections are based on ownership?
Is the information tainted by its illegal origins? Do you distinguish between information gained illegally with the express intention of gathering that information and information gathered incidentally as part of a separate illegal act? Should there be a “whistleblower” exemption and should that exemption cover only information about illegal behaviour or also immoral behaviour (such as some forms of dishonesty) and, if there’s an immorality exemption, who decides what’s immoral?
Should there be a privacy protection that prevents publication of private details without express permission? Should gossip be illegal?
My intention here is not to glibly dismiss Brash’s claim to ownership of his correspondence, it is to explore a situation where the court has banned publication of information that is, to some degree, already in circulation - a situation that should always be questioned.
November 21st, 2006 at 12:17 pm
The point I (and I assume PC) was trying to make is that the media have no right to publish, broadcast, or print the emails, as they are the property of Don Brash alone. Only he has the right to decide how they may be disposed of, copied, passed on, or anything else, unless he gives ownership of them to someone else or gives them permission to do something with them. To do anything with them against his permission is just as much a violation of property rights as passing on or selling stolen goods and just as bad as the act of the theft. It is a matter of property rights, which you of all people should understand Darnton. That is the basis on which it should be prevented.
Copyright is an issue in this, but not the main one I am referring to. I am mainly referring to property rights, which is the source of copyright. reprinting the whole thing in a media article, or reading the whole thing isn’t fair use, but the main issue is that he owns it in the same way he owns his car. That isn’t an issue of copyright. That is an issue of property rights.
Also to use stolen information is to inadvertantly sanction the act of theft. This is always wrong, regardless of the information and the content.
Also to publish or broadcast the information against his will is an evasion of his privacy, which is something the media are good at, which I am sure you know full very well. Privacy invasion is never right. It is always wrong.
This isn’t just about “public” information. It is also about private information, i.e., information obtained from emails from his private email account, not just his parliamentary one.
But ultimately, I return to the issue of property rights. The fact that they are already in circulation does not validate a violation of this right. It is never justified to violate any rights, especially that one, as without property rights there can be no rights.
For not understanding this I am disappointed in you Darnton. You are a supposed supporter of property rights, but this proves that isn’t really true.
November 21st, 2006 at 12:23 pm
This has actually been a rare case of property rights truly winning out in the NZ courts