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Public Interest and Public Ignorance

© Peter Zohrab 2005

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The recent, groundbreaking judgment in Dunne v Canwest TVWorks Ltd (HC Wellington, 11 August 2005, CIV-2005-495-001596, Ronald Young J) was interestingly critiqued by Russell McVeagh public lawyer Doug Bailey (Public Interest and Private Pleasures). The judgment compelled TV3 (Canwest) to include Peter Dunne and Jim Anderton in a pre-election TV leaders' debate.

The thrust of his critique was that we had here an activist judge using the notion of the public interest in order to interfere in what was actually a private matter. He raised the spectre of more and more courtroom interference in our private activities and pleasures. Apart from the issues of judicial activism and the public/private boundary, Bailey also saw this case as involving freedom of expression (s 14 of Bill of Rights Act 1990) and the power of the media.

 

Activism

I do not agree that this decision amounts to judicial activism. Bailey does not really muster up any arguments to prove this. The nearest he comes to this is to imply that this judgment conflicts with Parliament's intentions when it passed the Broadcasting Act 1989. He implies that the Court went beyond the duties required of the media by that Act.

But section 4(1) states:

"Every broadcaster is responsible for maintaining in its programmes and their presentation, standards which are consistent with --

...

(d) The principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest."

Surely it is arguable that the Court was just ensuring that TV3 complied with that section!? The section states what the public interest is -- an interest in fairness and balance -- and it applies to private broadcasters as much as to state-owned ones.

What the Court did do that was novel was to make a mandatory injunction, which is not something that is provided for in the Broadcasting Act. However, the courts have long had that power in relation to the general law, so all that was really novel was that the injunction applied to a programming decision by a private television company. And the reason that was novel is that you do not normally know what is going to be in a television programme beforehand, so you do not have the option of applying for an injunction.

 

Public vs Private

Bailey admits that there are precedents for courts reviewing the decisions of private entities which exercise "a power that is 'in substance public' or has important public consequences." The distinction betwen the public and the private is not hard-and-fast. This must be obvious to the New Zealand public at large, since this country has in recent decades gone through extensive privatisation of government entities -- how could the functions that these entities performed be described as "public" one day, and as "private" the next ?

 

Freedom of Expression vs the Power of the Media

Bailey admits that "Anyone who controls the means of communication is necessarily a power in public affairs," but he claims that the programme that TV3 wanted to exclude the two politicians from was not very significant. He says that is was only one of many opportunities for the party leaders to appear on television in the campaign. He characterises it as a mere game-show, involving a real-time graph (the "worm") that showed audience reactions to what the leaders said as they spoke.

However, just mentioning the famous "worm" undermines his argument, since it is now history that this worm was precisely what allowed Peter Dunne's party to do much better at the last elections than the polls had been predicting prior to his television appearance in that campaign! And the smaller parties, such as Dunne's, got much less television coverage in this campaign than did the Labour and National parties.

Next, Bailey claimed that the Judge misunderstood the nature of the media. He implies that Judge Young believed that the media was a "unitary and impartial guardian of democracy", whereas in fact it serves us up with a "smorgasbord of information and opinion." I think Bailey has misunderstood the Judge's views -- the media do have an important role in a democracy, but no one would claim that they are unitary. However, the term "smorgasbord" is appropriate, because journalists as a group tend to be liberals in the Swedish mould. Every occupational group has its particular political tendencies, but journalists have disproportionate power, because of their control of the sieve which determines what fraction of the vast amount of available information we get to see or hear as "news" and "current affairs".

 

Freedom of Expression for the Media vs Freedom of Expression for Society

I think this issue can best be understood as the freedom of expression of the media versus the freedom of expression of the rest of society. The "freedom of the press" is not valued for its own sake -- it is valued because the media are supposed to be our eyes and ears. There is an obvious public interest in making sure that they do this job with fairness and balance, otherwise the media will be ruling us, in effect, rather than serving us.

Bailey gives the game away by using the term "prerogative" in relation to the media. Earlier, he had referred to the historic role of the courts in attacking the supposed "Divine Right" of kings to rule as they liked. Now, by a slip of the pen, he seems to have transferred the royal "prerogative" to the media. This slip was a Freudian slip, as many groups, such as Men's groups, crushed under the stilleto heel of the Feminist media, will testify.

 

Public Interest and Public Ignorance

The Broadcasting Act is toothless at best, and its regulatory organs are teeming with political appointees who are determined to protect the Media Prerogative. So not only was Young's decision not an activist one -- the Act itself is in serious need of reform. The Internet allows truth to circumvent the media's sieve, and it is now plain for every person to perceive that there is a public interest in the prevention of public ignorance.

 

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