Indefinite Imprisonment For Web Site Content 484
Suriken writes "In an unprecedented move, the New Zealand Solicitor General is seeking an indefinite prison sentence against American businessman Vince Siemer for alleged breach of an interim gag order now more than three years old. Siemer was jailed for six weeks last year for refusing to take down a Web site accusing the chairman of an energy company of suspect business practices. Because he still refuses to take down the site, NZ Solicitor-General David Collins QC wants to lock up Siemer indefinitely, merely for asserting his own free speech. From the article: 'Siemer's [defense] claims the Solicitor General's action is barred by double jeopardy. He also maintains he had long ago proven in Court that the injunction was incorrect in fact and law but that the judge simply ignored the law and evidence. He says the gag order violates his freedom of expression guarantees in these circumstances.' Here's more coverage from an NZ television station."
Unfortunately (Score:5, Informative)
Re:Standard sentence for contempt of court (Score:5, Informative)
is a drastic oversimplification of the issue at hand.
A judge's order bears the force of law unless and until it is later overturned by a higher court.
You can't simply ignore it on the grounds that
The proper procedure is to ask for an interlocutory motion to allow the site to remain up, and if you don't get it, you take the site down.
Respect the authority of the Court- or the Court will show you why the government's authority is backed by force of arms.
Re:Free speech. (Score:5, Informative)
Re:Free speech. (Score:5, Informative)
But in any case, that's not what he's being jailed for. He's in contempt for denying a court order.
Re:Free speech. (Score:5, Informative)
However, NZ is not yet a state of Australia, so I'm not sure why it's come up
Different in the USA (Score:5, Informative)
Re:Standard sentence for contempt of court (Score:5, Informative)
Further, if you had checked the site in question, you would read text like:
which is clearly defamatory, and therefore reasonable grounds for a suit and/or requesting a cease-and-desist order.So... you can get off your high horse now. It doesn't fit here.
Slander and defamation -- definition (Score:4, Informative)
And, at least in the US, slander and defamation are not crimes. Rather, they are civil remedies (a tort [wikipedia.org]) enforceable not by the state through prosecution, but by the aggrieved individual bringing suit.
Re:Free speech. (Score:2, Informative)
(aside: slander/libel have been subsumed into the one tort of defamation. A criminal offence of defamation does exist, but is very, very rarely invoked or pursued)
Let is get this right. (Score:0, Informative)
Re:Unfortunately (Score:3, Informative)
What's interesting is that New Zealand and Australia (and Britain) are part of the few British Commonwealth Realms that do not have a Constitutional right to free speech. Canada, Jamaica and Papau New Guinea are the only other Realms with a population over a million and they've got it in their Constitution, along with the majority of the island Realms.
Re:Simple: Obey the law (Score:2, Informative)
Re:Free speech. (Score:5, Informative)
Nowadays, in all Australian states, truth is an absolute defence.
E.g. Section 25 of the Defamation Act 2005 (NSW) - "It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true."
Australian Broadcasting Corporation v O'Neill
"[t]he defence of justification is made out by proof of truth of the defamatory imputations. Public benefit is no longer an element of the defence."
The other uniform Defamation Acts have the same provision.
Re:Free speech. (Score:0, Informative)
Re:Free speech. (Score:1, Informative)
(1) court gag orders should be a hell of a lot rarer than they are -- there have been an awful lot of them in NZ court cases in recent years; that's a fault with the courts, though, not with the law;
(side note: here in Australia recently there was a tv series called Underbelly, about various gangland murders that were being investigated in court at the time. A temporary gag order was placed on the series in the state were the case was being heard, so that the jury wouldn't be unduly influenced by the TV series. Of course thanks to bittorrent, noone who wanted to see it missed out on it, but at least the jury couldn't accidentally flip the channel and watch it.)
(2) imprisonment seems excessive (without knowing the details of the case -- yet);
and (3) indefinite imprisonment is simply ludicrous and kind of pathetic. What's wrong with simply confiscating the tools used to commit the crime, or whatever other recourse is usual in other countries?
It's another question whether he should have been expected to carry out the gag order or whether the courts should have taken it straight to whoever was hosting it. But the matter has moved beyond that question, and is now about contempt of court.
Re:Free speech. (Score:5, Informative)
We're both pretty competitive in the sporting arena - we play rugby against eachother, along with South Africa on a yearly basis(see Tri-Nations Cup [wikipedia.org]. My rustic memory of history tells me this eventuated from the end of WWI when our troops stopped in South Africa on their way home and started playing rugby there (but I could be wrong).
The same holds true for other sports - such as netball, cricket, etc
There's a few minor disputes over Australia claiming Pavlova [wikipedia.org] (a dessert), Phar Lap [wikipedia.org] (Race Horse) and Split Enz [wikipedia.org] (Band) from us - it's not really a big thing at the end of the day, but I suppose it makes us feel better bringing up this petty stuff when we get caned in the rugby
Economically, Australia has a slightly better exchange rate than we do, with $1 (NZ) being equivalent to around 80c (Aus), give or take a fluctuation. Economics isn't my forte, so I'll stay out of this area, however every few years we get someone saying we should have a shared currency with Aussie. On that note, we didn't join the "War on Terror" (Australia did, however) - although we sent troops for peace keeping and to help rebuild the country
We do allow citizens visa-less entry into eachothers countries, we trade a fair bit with eachother and everything - so we are pretty friendly despite it all - So I guess if you wanted a small analogy, it's similar to the US/Canada thing?
Re:Free speech. (Score:2, Informative)
I'm thinking about photography, which is my main hobby and thus a field I know a bit about.
There have been many cases where a photo was taken in public, for newsworthy reasons (thus needing no model release according to US law) - which were found to be "showing the subjects in a false light" by said subjects, ranging from alleged murderers, smugglers, corrupt officials, gamblers, known criminals, and even innocent citizens having lived newsworthy events. They sued for libel and won, even though the photos were not doctored nor had misleading subtitles or anything.
I think one of the most famous cases is about a given Mr. Burton who was photographed (with model release) for a commercial but later found the picture to be grotesque (simply because of a lousy composition), sued for libel, and won.
P.S.: Looked around for it, found this:
Burton v Crowell Publishing Co, 82 F2d 154 (CA 2, NY, 10 Feb 1936) (libel case by person photographed for "Camel" cigarette ad, which picture he had not seen until published, had been altered by the photographic process so he alleged it became "grotesque, monstrous, and obscene," and exposed him to "ridicule" and "contempt" having "made of the plaintiff a preposterously ridiculous spectacle" by giving out the impression that he was "guilty of indecent exposure and as being a person physically deformed and mentally perverted" and an "utterer of salacious and obscene language")
When they say "Altered by the photographic process" - they mostly mean the contrast was strong and the picture was noisy - I've seen it, and it is not doctored. The controversy was about a strap hanging from a saddle the guy was holding which unfortunately looks like a giant penis hanging from his pants.
TL:DR; True pictures, even when authorized, without any misleading description or alteration, have been judged to be libellious in some cases.
Re:Free speech. (Score:1, Informative)
Re:Free speech. (Score:5, Informative)
He's got his publicity now, the pragmatic approach would be to comply with the court order. He can continue to fight the original order through the legal system, but to ignore it in this manner is only going to end one way.
Re:Why on earth did he go back? (Score:2, Informative)
Re:Standard sentence for contempt of court (Score:2, Informative)
There we go, fixed that for you.
Re:Free speech. (Score:5, Informative)
There are, however, a few political reasons why New Zealand will likely never merge with Australia. Australia has a more right wing political culture than New Zealand does. New Zealand tends to support the UN line on military interventions, while Australia is more pro US. New Zealand has also banned nuclear weapons, and that would have to go if there was a merger (trying to overturn the ban is somewhat of a third rail in NZ politics).
But the main problem would be the status of the Maori people of New Zealand. Maori have certain rights under treaty with the Crown, and no merger could ever occur unless the Australians recognized those rights. Australian Aboriginals have no such treaty rights, and a merger would create a dilemma because Aboriginal Australians would then have a basis to claim equivalent rights and there is no way the Australian public would go for that.
Misunderstanding (Score:2, Informative)
The Court issued an interim injunction to take down the website - this means that the guy in question was sued for defamation, and the Court said "Hey, we don't know whether this is defamatory or not, so in the interests of fairness, you need to take down the site until the issue is resolved. If it's not defamatory, you can stick it back up. If it is, you have to keep it down".
This is common practice in defamation cases, and the guy is a bit of an idiot for not complying.
Admittedly, the fact that the injunction was issued three years ago and the matter doesn't appear to have reached trial yet is a little unfair. The fact remains, however, that he never took the site down at any time (at least that's what TFA indicates). So the length of time is pretty much irrelevant
Not about free speech, of course (Score:3, Informative)
But back to the case - slandering people is not protected by freedom of speech, nor is it the right way to proceed. If you as a citizen have evidence about questionable activities, you have several legal avenues - if you know of a crime it is your duty to inform the police, so they can pursue the criminals. The only reason for slandering another person or company on a web-site is that one's evidence wasn't good enough to convince either the police, the court or any news-media; and in that case, perhaps you are simply wrong?
Re:Free speech. (Score:4, Informative)
Everything is always modifiable by Parliament.
We have no written constitution in the sense the US does. In fact, our constitutional law is written but it is spread all over the place. There is no constitutional court and no need for lawyers (in general) to argue about the wording of the constitution. This works well because those in power have to do the right thing instead of what they think they can get away with.
Parliament is responsible to the Governor-General as the Queen's representative. The G-G has supreme power on paper but is a figurehead for the vast majority of time. Occasionally the G-G has to act and do something like dissolve Parliament. This happened in Australia in the 1970's to Gough Whitlam's government.
Re:Free speech. (Score:4, Informative)
Specifically, you state
Did you mean "It is not actionable if it is both true and in the public interest"?
Re:Free speech. (Score:3, Informative)
Re:Free speech. (Score:4, Informative)
b) It is legal until a superior court says it is not legal.
c) Your supposition is argument by absurdity. If a judge were to state "Go kill this person" in open court, he would be arrested, probably immediately by his own bailiff.
d) Your little story is why one can ask the judge to recuse himself, why one can file an appeal, why judicial oversight committees exist, and why one can apply to a higher court for relief.
Re:Free speech. (Score:3, Informative)
Re:Free speech. (Score:3, Informative)
Re:Different in the USA (Score:2, Informative)
Re:Different in the USA (Score:1, Informative)
Re:Different in the USA (Score:2, Informative)
Re:Different in the USA (Score:3, Informative)
Where do you get the idea that there is disagreement whether harm was done?
The disagreement is over how much harm was done. And the intangible emotional issues are very very difficult to quantify in an adversarial system.
Bulls***. Tell us, how much would you charge to let me lock you in a cupboard for 24 hours? How much would you charge to let me stalk you for x days and beat you y times? You can very easily fix a price for those abuses.
The hard part is fixing a price afterward, when those things were done to you without your consent. The lack of control causes people to wildly overestimate their price.