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Indefinite Imprisonment For Web Site Content
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."
Freedom of speech is not a positively enforced inalienable right in New Zealand. If he thinks his right to freedom of expression has been breached, it's possbily correct, but there are other laws which supercede it. He'll be glad to know however, that the maximum period of imprisonment without parole in New Zealand is ten years. No matter what, he can still attempt parole in 2018...
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.
"It is possible to commit no errors and still lose. That is not a weakness. That is life." -Peak Performance
In Australia it is. It has to be not only true, but in the public's interest to know it.
Not in all jurisdictions.
But in any case, that's not what he's being jailed for. He's in contempt for denying a court order.
"A week in the lab saves an hour in the library"
Australia does not have constitutionally guaranteed freedom of speech though. We have implied freedom of speech (High Court ruling) but that would probably fail against libel/slander laws passed by Parliament.
:)
However, NZ is not yet a state of Australia, so I'm not sure why it's come up
Between the falling angel and the rising ape
In the USA, the burden is on the person supposedly being slandered to prove that they were actually slandered. Usually, this means that one has to show some sort of an actual economic loss caused by the speech AND, that the speech has to be untrue. Even with all of that, its still pretty hard to actually prevail in court and there's been some pretty famous cases where the media has won. That doesn't mean that we should drop our diligence against those who would claim liability as an excuse to censor, but it does mean that despite the admittedly awful example of domestic security legislation set by the USA, there are still some areas where we are doing ok.
This is my sig.
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.
The subject who is truly loyal to the Chief Magistrate will neither advise nor submit to arbitrary measures (Junius)
Slander and defamation, by definition, require a false statement of fact causing harm to the aggrieved party. Slander is for verbal statements, whereas libel refers to written statements. See slander - wikipedia.
And, at least in the US, slander and defamation are not crimes. Rather, they are civil remedies (a tort) enforceable not by the state through prosecution, but by the aggrieved individual bringing suit.
I don't know where you got your law degree from, but I suggest you return it along with the cereal box in which it came.
(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)
His is being jailed for contempt of court not exercising free speech. He was asked to comply with a temporary order during legal proceedings. He refuses and still does so.
I followed that particular case closely, and the mother was imprisoned because she would not tell the court where her son was. She was clearly complicit in his going missing, and - flying the face of the Family Court judgement - she arranged for her son to be removed so his father could have no contact.
It's good luck to be superstitious
I am talking about Australian law. To be fair, the defence used to require a discernible "public benefit" in some states only. Even then, this was only a statutory modification - at common law, truth was always an absolute defence.
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.
Until proven true, yes. Which is why he was ordered to take it down. Once proven true he is at liberty to put it back up.
(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;
Possibly fair enough, I'm not sure what the state of affairs is in NZ. Note however that the article seems to say that it was a temporary gag order while the case was being reviewed. In other words, if after all the appeals it was found to be reasonable free speech then the site would be un-gagged, as it were. I believe such orders are fairly common, and with good reason IMHO.(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);
If someone completely ignoring the court system (repeatedly - he had been jailed for it once before!), and in fact holding the law of the land in complete and utter contempt, does not justify a punishment merely as harsh as prison, then what does, short of premeditated murder and the like?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?
That's what the courts were trying to do! The tool (website) used to commit the alleged crime (libel) was ordered confiscated (taken down), for the duration of the trial. He refused to do as ordered, and is being jailed for it. And it seems that everyone needs to remember that indefinite does not mean forever - it just means until he learns his lesson and does what the court orders him to.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.
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. 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 (a dessert), Phar Lap (Race Horse) and Split Enz (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?
Even if you're making a general statement which is targeted at the US legal system, you're wrong.
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.
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.
You may think me a tired, old, cynic. I'd have to disagree about the tired bit.
intents and purposes, not intensive purposes... sorry pet peave
If the FRENCH hadn't of been "good citizens", you'd probably still be singing God save the Queen.
There we go, fixed that for you.
We're a different people. Please don't think that New Zealanders hate Australians. We don't. In fact, we like them better than any other nationality. It's a friendly rivalry, which manifests itself mostly in sports and in jokes hurled in both directions. Culturally, New Zealanders and Australians are more like each other than they are like anyone else. Any grievances are solely due to sports (Google underarm bowling incident, for example).
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.
"by that I mean people who don't sit on slashdot all day wondering why everyone else isn't building robots" DECS
I think some people are misunderstanding TFA a little.
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
It seems profoundly dishonest, the way this article tries wring out an issue about "free speech" of this case. We all know that free speech isn't an unlimited right anywhere in the world, and that this is the way it should be. Any freedom will always be limited by the laws that protect all the other rights of people in society; it is a manifestation of serious immaturity and lack of insight to rail against the rule of law, when it is actually the rule of law that gives you the right to freedom that you have.
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?
New Zealand does have a Bill of Rights and it is entrenched law (from memory) but still modifiable by Parliament. (First they repeal the clause that contains the entrenchment and then do what they need to.)
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.
Specifically, you state "it is not actionable unless it is both true and in the public interest" That decodes to "If the offending statement is true and in the public interest, one can not file a case. One can not file a case if the statement is untrue and/or not in the public interest."
Did you mean "It is not actionable if it is both true and in the public interest"?
There is no "-1 offended" or "-1 you don't agree with me" mod options for a reason.
The site may be, but the person controlling the site is not. The court ordered the person controlling the site to take it down and he refused. Now he is being charged with contempt of court.
There is no "-1 offended" or "-1 you don't agree with me" mod options for a reason.
a) He wasn't asked, he was told.
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.
There is no "-1 offended" or "-1 you don't agree with me" mod options for a reason.
The court has the right to tell him to do that.
There is no "-1 offended" or "-1 you don't agree with me" mod options for a reason.
The court has the right to tell him to do that and he is required to follow the court's order.
There is no "-1 offended" or "-1 you don't agree with me" mod options for a reason.