Chapter 8
Freedom of expression

Introduction

8.1New Zealand law has long placed great importance on freedom of expression and its associated subset, the freedom of the press. These are fundamental core values of our legal system. As such, section 14 of the New Zealand Bill of Rights Act 1990 (NZBORA) states that:

Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

8.2It will be noted that freedom of the press is not expressly mentioned in section 14 but the Court of Appeal has acknowledged that an important aspect of the right to freedom of expression is freedom of speech.88 From any viewpoint, factual reporting or commentary on suicide is well within the scope of the freedom of speech and freedom of expression.
8.3However, the freedom of the press is not absolute, and is subject to a variety of common law and legislative qualifications and exceptions. These feature in litigation, and are central to the development of legislation in New Zealand. This is because NZBORA acknowledges limitations that are considered reasonable and demonstrably justified in a free and democratic society.89
8.4In Auckland Area Health Board v Television New Zealand Limited, the Court of Appeal accepted that it is well established that publication of defamatory material can be enjoined. But as Cooke P noted, consistent with the principle we have already stated, this should be exercised only for clear and compelling reasons.90
8.5In the context of suicide reporting, and what is sometimes conveniently referred to as “prior restraint”, there has been at least one controversial decision. In Board of Trustees of Tuakau College v Television NZ Limited, Williams J allowed an interlocutory injunction preventing Television New Zealand from broadcasting anything concerning the suicides of two students, pending conclusion of a coroner’s inquest and a review by the Commissioner for Children.91 The authors of the treatise The New Zealand Bill of Rights, have some difficulty with the decision of the judge because the reasons advanced to support the decision “can only be described as highly speculative”.92 These were firstly that there was a danger that some of the students of the college “may be suffering from distorted thinking” concerning the suicides, and that a broadcast of the Holmes current affairs programme could possibly impel them to take action. Secondly, the judge was concerned with the effect the broadcast might have on the minds of young people outside Tuakau College. Clearly the judge was deeply concerned about the possibility of movement from contemplation to action in relation to suicide.93

8.6This was a very strong prior restraint, because the television programme had not yet been made. It is the strongest judicial prior restraint we are aware of in New Zealand.

8.7With legislation it is always necessary to ask of any prospective legislation: is it consistent with NZBORA? Indeed, NZBORA is of such significance that the Attorney-General of New Zealand has a statutory responsibility to advise Parliament that proposed legislation does not comport with NZBORA in some or all respects.94

The right is not absolute

8.8The right to freedom of speech stands until, as Andrew Geddis has expressed it, “such time as another more valuable or important social good requires that it be restricted”.95 Consideration of any such restriction cannot be determined on any intrinsic formula. Apart from the difficulties of evolving and reaching agreement on any such formula, the line is not static. As Stephen Sedley has said, “the location of the line between free speech and censorship has shifted massively over time and can be expected to go on doing so as political and moral cultures go on changing”.96 To that we would add, “and the potential harms to which a given society may be subject may change in the course of time”. But as Sedley has put it: “There comes a point … at which a society is entitled to calculate that a malignant cause will have a malign effect”.97
8.9Under section 5 of NZBORA, the right to freedom of expression is subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. An analysis of whether a breach of a right is a reasonable limit requires a two-fold inquiry:98

Those questions must be applied separately to the two statutory restrictions we are recommending: reporting the method of suicide, and the fact that a death is a suicide.

Significance

8.10The first inquiry into significance is fairly easily settled. In relation to the prohibition against reporting the method of suicide, limiting further suicides caused by a contagion effect is clearly a significant and important public health objective. In relation to the prohibition against reporting the fact that a death is a suicide, we have argued in Chapter 2 that the harm to the integrity of the coronial system of a breach is significant.

8.11It should be emphasised here that the restriction we are recommending is a very narrow one. It is limited to the descriptions of the method of the suicide, or the site of the suicide where that is suggestive of the method, or to the fact that the death is a suicide. It does not extend to:

8.12We are not suggesting that public discussions of these matters are without risk, and we strongly recommend that guidelines for reporting suicide are followed by anyone discussing suicide in any way.

Rationality

8.13The crux of the question of whether the proposed restriction is a reasonable limitation under NZBORA lies in the second inquiry. The issue of rationality asks whether the proposed restriction will in fact achieve the policy goal. In relation to the restriction on reporting the method of suicide, we consider the scientific evidence described in Chapter 2 is clear that reporting the method of suicide will increase the risk of subsequent suicidal behaviour by vulnerable people. Therefore, it follows that restricting the reporting of the method of suicide will decrease that risk. In relation to the restriction on reporting the fact that the death is a suicide, the harm is caused by usurping the coronial function. By prohibiting early reports that a death is in fact a suicide, the legislation is removing that means of undermining the coronial function.

Proportionality

8.14The issue of proportionality asks whether the proposed restriction will infringe on the right to freedom of expression as little as possible. We consider that is the case with the proposed restrictions because:

8.15In relation to reporting the method of death, we investigated whether the goal of low-risk reporting of suicide deaths could be achieved solely through a non-legislative process: that is, through voluntary guidelines and education initiatives. There is some evidence that the introduction of voluntary guidelines and education initiatives in other jurisdictions has produced substantial improvements in the quality of reporting within those jurisdictions.99 However, while those studies demonstrated that the levels of risky reporting on suicide reduced, that does not necessarily mean that risky reporting has ceased altogether.

8.16As we describe in Chapter 6, we have concluded that voluntary guidelines and education initiatives alone are unlikely to achieve the policy goal for two reasons. First, they are unlikely to reach beyond mainstream media. We have found considerable discussion of suicide in new media, much of it less constrained than mainstream media. It is important that the message that reporting the method of a suicide runs a risk of producing a contagion effect reaches beyond mainstream media to any person reporting publicly on suicide whatever the medium.

8.17Second, we are of the view that an initiative to produce a new set of standards for reporting suicide by mainstream media is the most appropriate method of ensuring suicide is reported with minimal risk generally. However, the fact that to date the existing guidelines have not been well-utilised by mainstream media in New Zealand raises some uncertainty about the success of future efforts. Therefore, it is important that the aspect of suicide reporting with the greatest risk of a copycat effect (reporting the method of the suicide) is restricted by legislation.

8.18For the prohibition on reporting the fact that a death is a suicide, we consider that this restriction is also the least possible to achieve the policy goal of protecting the integrity of the coronial system. We originally considered whether the statutory prohibition should extend to reports that the death was self-inflicted, as that is also something considered by a coroner. However, we concluded that determining whether a death was self-inflicted could generally be more easily established on available facts. In contrast, a determination of suicide requires an investigation into the intention of the deceased person, which may often be much more difficult to determine.

88See for example Auckland Area Health Board v Television New Zealand Limited [1992] 3 NZLR 406; Television New Zealand Limited v Attorney-General [1995] 2 NZLR 641 (CA).
89New Zealand Bill of Rights Act 1990, s 5.
90Auckland Area Health Board v Television New Zealand Limited, above n 88, at 407.
91Board of Trustees of Tuakau College v Television New Zealand Limited (1996) 2 HRNZ 87 (HC).
92P Rishworth and others The New Zealand Bill of Rights (Oxford University Press, Melbourne, 2003) at 335.
93​In fairness, the Judge anticipated the very matters discussed in Chapter 2 of this Report.
94New Zealand Bill of Rights Act 1990, s 7.
95Andrew Geddis “The State of Freedom of Expression in New Zealand: An admittedly eclectic overview” (2008) Otago LR 657 at 681.
96Stephen Sedley “The Three Wise Monkeys Visit the Marketplace of Ideas: Censorship in a Free Society” (paper presented to the Annual Human Rights Lecture of the Law Society, Dublin, July 2009).
97Sedley, above n 96.
98Legislation Advisory Committee Legislation Advisory Committee Guidelines (Ministry of Justice, 2001) at [4.1.1].
99See for example, Jane E Pirkis and others The Media Monitoring Project: Changes in media reporting of suicide and mental health and illness in Australia (Department of Health and Ageing (Australia), 2008).