Saturday, December 17, 2011
Some of the markomPR team recently attended a PRINZ seminar 'Public Relations and the Law - implications for PR practitioners' presented by Rosemary Tobin (Associate Professor The University of Auckland Faculty of Law) and Clive Elliott (Barrister - Intellectual Property Lawyer).
There is an overlap between Privacy and Defamation laws. Both are concerned with people’s rights to both conceal and publicise information within our society, but differ due to one being concerned with what is true and one not. Both are often at loggerheads with every individual’s right to freedom of speech.
So how do we separate what is within your rights and what is not? And how are these traditional media laws to adapt and adopt with what is being broadcast via new media channels?Firstly, we will give a quick overview of the Privacy and Defamation laws in New Zealand.
New Zealand’s Privacy Act 1993 sets out principles in relation to the “collection, use, disclosure, security and access to personal information”, with complaints considered by the Privacy Commissioner.
The Hosking v Runting case is a very good example of a tort concerning invasion of personal privacy in New Zealand.
Publication (in a defamatory context) is defined as something spoken or communicated to a third party (not the plaintiff).
A publication cannot be an attempt to convey information. The information or message must be successfully received by the third party for it to be considered published.
We all have the right to freedom of speech, but it can be difficult to protect yourself. Book disclaimers are a necessary measure, but in reality, can do very little to prevent accusations of defamation and will only reduce damages were a successful case brought against you.
Defaming words do not even have to refer to a plaintiff by name, if the reference can be definitively proved to be the plaintiff.
A grey area that we often see, and it pays to choose your words carefully, is when a writer places both the bane (defamatory publication) and the antidote (statement which sufficiently nullifies the previous defamatory publication) within the same article. Whilst this is a great technique to use in your writing to emphasise a point, it needs to be done delicately to avoid miscommunication.
So what are the exceptions? There are 3 main defences most commonly used in defamation cases:
Absolute Privilege: A legal immunity granted to Politian’s, protecting them from legal accusations relating to what is said during Parliamentary proceedings. Can also apply to judicial proceedings and other legal matters, and very select special cases.
Qualified Privilege: You had a duty to report what you thought to be true, especially if it was deemed to be a matter of public concern. This usually applies within governmental institutions and the workplace.
Honest Opinion: The publication must be worded in a way that implies that it was their opinion, mainly a reason why. They must provide a rationale.
Truth: Is a fourth defence option. It is the most concrete, yet one of the hardest to prove.
So now that we know where we stand legally, where should we stand with best practice, PR-wise? There is a big difference between the concrete law and what would be considered best PR practice.
For instance, John Key’s handling of the ‘tea tapes’. Whilst John Key was on the right side of the law and his privacy rights had been breached, was the media storm that ensued and the negative PR worth it in the long run? Rather than sticking to his guns over the “moral stance”, would Key have been better off coming clean about what he said in the tapes and nipping it in the bud there and then?
New Media vs. The Law
A recent defamation case in the Canadian Supreme Court was divided over a new media issue. Can a hyperlink be considered a publication? Whilst there were differing opinions on the panel, it was eventually decided that the matter of linking to allegedly defamatory web pages in itself could never be considered a ‘publication’.
"I would conclude that a hyperlink, by itself, should never be seen as 'publication' of the content to which it refers," says Supreme Court Justice Rosalie Silberman Abella. [source: ars technica]
However, in the circumstance of referencing hyperlinked content within your own article, this can be considered publication.
They define this exception to the rule as "only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be 'published' by the hyperlinker." [source: ars technica]
An issue a little closer to home has been the recent review of new media regulation. Satirical Twitter accounts, such as a less-than-flattering Don Brash spoof account, have come under scrutiny for impersonating public figures.
“Impersonation of public figures on social media sites, such as Twitter and Facebook, was among the issues considered by the commission in a review of new media regulation launched by then-Justice Minister Simon Power late last year.” [source: New Zealand Herald]
But it seems most have stayed just within the boundaries of the law. Satirical Social Media is here to stay (for now).
This is yet another aspect of the law that has become more and more diverse with the rise of new media.
Intellectual Property (IP) involves the protection of ideas, especially those that are intangible. In New Zealand written texts, music, films, software, artistic works are automatically copyright protected from creation.
Trademarks are basically the copyright equivalent of brands and logos (or even colours, shapes, sounds, smells!).
Soft IP refers to trademarks, the look and feel of a brand and it’s branding. Hard IP refers to patents, design, copyright, trade secrets and layout design.
By registering both copyrights and trademarks you are ensuring stronger protection for your IP.
Some of the ‘hot topics’ revolving around IP right now are:
Social Networking: Breaches of copyright are rife on Social Networking sites like YouTube and Tumbr. How can something as subjective and unregulated as Social Media protect an individual’s IP?
Fair Use: It is so easy to copy and reproduce texts, images, music and video in the digital age, what can be done to ensure a fair use policy? When a song is bought online for a single user, what prevents that user from passing it on to many?
Domain Names: With so many variations of ip addresses and domain name possibilities, how do you protect your brand from potential impersonations?
Privacy Intrusions: The sheer availability and ease of access to vast amounts of sensitive or personal information means privacy intrusions are more and more likely. How many celebrities have had photos and contacts leaked through the hacking of Twitter accounts, smartphones and Facebook profiles? Personal information is stolen from hacked Social Media accounts more and more often.
Software Patents: Software developers are continually in a race to produce the next best app. There are similarities between software all over the place.
Traditional Rights: Concerns the rights on an indigenous culture – their customs, traditions and artworks. Maori IP rights have become a major issue in New Zealand.
By Bridget Bisset
Posted by Sarah P Sparks at 1:17 PM