Abstract
This post is about the way in which contentious and and contraian views have been dealt with by the authorities. It argues that the terms “misinformation” and “disinformation” are convenient umbrella words to describe the expression of opinions that are other than “mainstream” and that are claimed to be harmful, false and injurious. In this respect the attitude and approach to contentious and contrarian views today echoes the attitude of the “Establishment” to similar contrarian views expressed in the late seventeenth and eighteenth centuries. In those days censorship of contrarian material was carried out primarily through the use of Licensing Acts which gave effective control of printed content to Government officials. After the Licensing Acts lapsed, and in the face of Jacobite conspiracies (both real and imagined) contrarian views were dealt with by charging the authors and printers with seditious libel. The penalties, as will be seen, could be very serious. It is my contention that “misinformation” and “disinformation” are the new seditious libel and the interest of the Government, government agencies, the Chief Censor and indeed the mainstream news media suggests that these views should be more than merely discouraged. The implications for freedom of expression are considerable.
In closing this abstract I wish to clearly state that I do not necessarily endorse the content of contrarian or contentious viewpoints but I do support the right of those who hold them to express them.
A Slice of History
After the Restoration of the Monarchy in England the later Stuarts were confronted with a problem. What was to be done about the business of printing. The reign of the Elizabeth I as well as Charles I saw concerted efforts by Star Chamber to regulate not only the content of what was printed but, in the reign of Charles I, how the business of printing was carried on. This did not stop the printing of material critical of the regime and contesting and contentious material in matters of politics and faith.
Attempts to regulate printing continued during Cromwell’s Commonwealth but it wasn’t until 1662 through until 1694 that a new programme for regulation of the press was put into effect. Star Chamber had gone and was not revived. On 10 June 1662 Parliament enacted the “Act for preventing the frequent Abuses in printing seditious, treasonable and unlicensed books and Pamphlets and for regulating of Printing and printing Presses.
The printing trade was strictly regulated and limited to the Master Printers of the Stationers Company of London and the printers of the two universities of Oxford and Cambridge. Those who manufactured type were limited as were the number of Master Printers at any one time.
Anything that was printed had to be licensed by official licensers who had their own specialities – law, history and the affairs of state, divinity, philosophy, science and art. The process of obtaining a license was detailed. Nevertheless, contentious material managed to get through the net despite the best efforts of Sir Roger Le’Estrange, the Surveyor of the Press and the King’s chief enforcer of print licensing. In spite of L’Estrange’s efforts probably no more than half the pamphlet literature which appear carried the official imprimatur. There continued to flow from the presses a stream of publications which in that day and age were considered seditious or offensive and frequently contained lively and vituperative political criticism.
In the seventeenth century both the government and the populace were inexperienced in either digesting the printed page or judging its effects. The reading public was not sufficiently aware of the fact that not all printed material is not necessarily authoritative and the government had not become accustomed to wide public discussion of its acts not had it discovered that unjust criticism often carries its own antidote[1].
The context is important in understanding the seventeenth century state of mind. A monarch had been executed – a serious matter at that time. Several political coteries had been supplanted during the Interregnum. The Oates and Ryehouse plots confirmed the suspicions by the people of Catholic and other conspiracies during the reign of Charles II. The Monmouth Rebellion challenged the established rules of succession. James II was ultimately deposed and forced to flee. After the Glorious Revolution of 1688 the fear of a Jacobite retaliation – the treatment of the regicides in 1660 turned even Charles II’s stomach and it was thought that a restored Jacobite monarchy would do the same – continued to disturb English statesmen down to and even after the establishment of the Hanoverian dynasty. Thus it seemed necessary to control and suppress contentious material.
L’Estrange supervised the suppression of contentious religious material in 1666 and was given elaborate instructions to apprehend the parties responsible for The Whore’s Petition in 1669. L’Estrange was an enthusiastic enforcer of the Statute as Surveyor of the Press especially between 1662 and 1666, and his influence and activity continued when he was appointed Licensor of the Press until 1679
In 1671 orders went out to round up all the unauthorized printers in London and from time to time it was necessary for the authorities to remind the Stationers Company of their obligations. Indeed, L’Estrange’s approach was that printing should be limited to a few trustworthy and reliable printers who were controlled not by the Stationers Company but by an officer of the Crown (L’Estrange himself). L’Estrange was adamant that the Stationers could not be trusted, that their interests were not those of the authorities and in the past they had failed to enforce the regulations
Enforcement was also in the hands of the Secretary of the King’s Council and the various messengers that he appointed. The Secretary was responsible for issuing permissions for searches and seizures which, during the eighteenth century, were successfully disputed most notably in the case of Entick v Carrington [1765] EWHC KB J98; 19 St Tr 1030.
The Regulation of Printing Act had to be renewed every so often although its renewal was opposed or resisted by the Stationers Company. Finally in 1698 the Act was not renewed. The new century saw a number of unsuccessful steps to revive the Act but the main purpose of the Act, the suppression of objectionable printing, had unsatisfactory results. No test had been devised to set out to determine which books could be classed as offensive. In addition, towards its demise the Act demonstrated that the officially appointed censors could not be trusted.
But that was not the end of the censorship or suppression of contentious material. The State had other means by which it could deal with the dissemination of unpopular or critical views. Contrarian opinion could be classified as seditious and not only the author but the printer could be pursued.
In the summer of 1705 a woman wearing what was described as a “vizard mask” delivered a package to David Edwards, a London printer, along with a coded means by which she could be contacted. The package contained an anonymous, illegal and highly contentious pamphlet entitled The Memorial of the Church of England. The argument in it proposed to topple the Government. But Edwards knew well that sedition sold well in the coffeehouses of the City and he set about printing and distributing the pamphlet.
Edwards had carried on his trade on the fringes of what could be considered the printing of contentious material. In the early 1690’s he had printed a Catholic Manual of Prayers and Christian Devotions which contained in it a prayer for exiled Jacobites – supporters of the deposed King James II. In 1695 Edwards’ premises were raided and a run of Catholic prayer books were seized. He managed to escape prosecution but it was after he printed a virulent piece of Jacobite propaganda called The Anti-Curse that he was charged with seditious libel, was fined and sentenced to stand in the pillory on three occasions.
Depending on the mood of the crowd this could be a serious punishment. On occasion it could be accompanied by having one’s ears nailed to the pillory or being pelted with everything from rotten vegetables to rocks by the crowd. When Daniel Defoe was pilloried for seditious libel in 1705 he wrote a poem declaring his innocence which moved the crowd in his favour.
We do not know what happened to Edwards. He kept his ears and remained silent and compliant but by 1699 he was publishing controversial pamphlets with considerable vigour. Even after the death of James II he continued to print pamphlets in support of the Jacobite cause and was known for these activities.
The Memorial which Edwards printed contained material that made suggestions about how one fixed a broken society. It argued that all faction, wickedness and conflict could be traced back to a split in religious loyalties. Society was divided because of the wildly contrary religious sects proclaiming their messages and “truths”. Toleration would make the problem worse. What was needed was the outlawing of what was “occasional conformity” which was a way that non-conformists could occasionally take communion and thus become eligible for public office, and the casting out of dissenters from society. Among the “pretended” members of the Church were Lord Godolphin, Queen Anne’s treasurer, the Duke of Marlborough and Robert Harley, one of the Queen’s Ministers.
The document was an explosive one and Edwards went to considerable lengths to distance himself from association with the document while still printing it. The title page of the work contains no name and provides no information and the ornamentation that he normally used did not appear.
When the publication hit the streets and coffeehouses Harley himself launched an investigation determined to track down not only the printer but also the author of the work. After publication Edwards was nowhere to be found. His wife was imprisoned and all copies of the pamphlet that could be found were burnt. The mysterious lady “in the vizard mask” who delivered the manuscript was never located and to this day the identity of the author is a mystery.
Harley’s political fortunes rose and fell but in 1711 he was enobled as the Earl of Oxford and Earl Mortimer and was Lord Treasurer until his downfall in 1714. Harley was a patron of the arts and left behind a collection of manuscripts containing Renaissance and Anglo-Saxon literature known as the Harleian Collection which is in the British Library.
Harley’s pursuit of the printer and author of the Memorial was driven by the desire to stamp out what was an incendiary and seditious publication and although the tools of print licensing and associated controls were no longer available, nevertheless the desire on the part of the authorities to suppress contentious content remained.
Even after the end of the Stuarts and the installation of the Hanoverians on the throne, the need to control the message by the authorities continued with increasing fervour. James II may have died but he had heirs and there had been, and continued to be, moves by the supporters of the Jacobites to install a Stuart heir on the throne. There was an attempt by James II’s son, the Old Pretender, to regain the throne in 1715 following the death of Queen Anne, and the Young Pretender, Bonnie Prince Charlie, attempted a Jacobite uprising in 1745 which met its end on Drummossie (Culloden) Moor.
In November 1719 John Mathews aged 18, a printer of Jacobite pamphlets, having been found guilty of treason, was dragged on a hurdle to Tyburn, hanged but cut down while still alive, disembowelled and quartered. He was the last printer to be executed in England but he was not the last victim of the censorship of contentious material. It has been suggested that Harley would not have approved of Mathew’s execution. Better that dissdent printers be persuaded to turn on their allies and discover further information for the State. Mathews, however, took his secrets to the gallows.
The persecution of those who propagated contentious views continued. In 1763 John Wilkes published a satirical pamphlet called “The North Briton.” His attacks on the Government in that publication, particularly in the 45th edition, led to his arrest under a general warrant. In January 1764 Wilkes was expelled from the House of Commons but the concern aroused by the general warrants affair led to them being no longer used for the arrest of persons.
Wilke’s publication also featured in the case of Entick v Carrington [1765] 19 St Tr 1030 which established the basis for the requirement of a search warrant to make lawful the entry of law enforcement officers upon private property.
On 11th November 1762 Carrington and three other named individuals entered a property in Grub Street, a well known area where printing took place, belonging to the Entick and spent four hours there searching all of the rooms, breaking open boxes and going through all of the claimant’s possessions.
They removed one hundred charts and one hundred pamphlets from the property. They were searching for copies of “The Monitor or The British Freeholder” which was similar to Wilkes’ The North Briton along with other seditious material believed to have been written by Entick. Entick sued Carrington and his associates in trespass
Carrington and his associates were acting under the orders of Lord Halifax who was Secretary of State. Halifax’s orders were described as a warrant but the Court, speaking through Lord Camden held that Halifax had no right under statute or the common law to issue any warrant in such wide terms.
Lord Camden said
The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole. The cases where this right of property is set aside by private law, are various. Distresses, executions, forfeitures, taxes etc are all of this description; wherein every man by common consent gives up that right, for the sake of justice and the general good. By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing; which is proved by every declaration in trespass, where the defendant is called upon to answer for bruising the grass and even treading upon the soil. If he admits the fact, he is bound to show by way of justification, that some positive law has empowered or excused him. The justification is submitted to the judges, who are to look into the books; and if such a justification can be maintained by the text of the statute law, or by the principles of common law. If no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment.
This attempt by the authorities to stifle Entick publishing contrarian views was unsuccessful.
What History Tells Us
What does this foray into the history of the censorship and various attacks on printers tells us.
First, there have always been contrarian views, and the printing press, like Internet platforms of today, enabled the dissemination of those views.
Secondly, the authorities recognized that not only should those who produced the content be brought to book, but those who enabled the wider distribution – the printers and booksellers – should be deterred and punished, in a similar vein to the cries that go up today about the regulation of Internet platforms
Thirdly, the contrarian views that were expressed were usually minority opinions and were frequently aimed at the establishment. They were also associated with suggestions of “conspiracies”.
In the seventeenth and early eighteenth centuries the authorities went after the printers – the equivalent although not precisely so of today’s platforms in that printers necessarily were aware of what it was that emerged from their presses even although they may not have supported it.
As I have noted, a particular context was the Jacobite threat and the fear of the re-establishment of a Catholic monarch in a state that was largely Protestant with associated fears of retributive persecution. It was a dangerous business to be a Catholic in England in the sixteenth and seventeenth centuries and although there were claims of toleration, the Titus Oates allegations about a Catholic conspiracy and the Gordon anti-papist riots in 1780 showed that toleration was, if anything, skin deep.
Today’s contrarians do not focus upon religious differences but their views run against the flow of the thinking of the majority. The suppression, condemnation or censorship of those views may not be met with the physical sanctions visited upon Mathews for treason, or upon Defoe or Edwards for seditious libel, although some might say that social media may provide a digital analogue for the pillory.
In addition there are other strategies available today to deal with contrarian views. One is to label them with the umbrella word of “misinformation”. Others use official and unofficial channels to demonise contrarians and their opinions.
Contentious Material and its Control Today
The main censorship vehicle in New Zealand is the Films, Videos and Publications Classification Act 1993 (FVPC).
This set up a Classification Office to review and classify material submitted to it, and a Board of Review to which an appeal could be made.
Prior to its enactment there were three separate regimes with their own criteria: a Chief Censor of Films under the Films Act, a Video Recordings Tribunal under the Video Recordings Act and the Indecent Publication Tribunal under the Indecent Publications Act.
The primary focus of the FPVC Act is upon objectionable publications. Its purpose is to restrict or ban publications which might cause harm to the New Zealand public. A number of agencies are involved in the censorship regime. The Act itself is administered by the Ministry of Justice however the Department of Internal Affairs via its Censorship Compliance Unit is responsible for enforcing its provisions.[2] Both the Police and Customs Office have important roles to play in the Act’s enforcement.[3]
The classification system is central to the operation of the Act. For any material to be objectionable, it must first be classified as such.
The classification process is administered by the Office of Film and Literature Classification, the Classification Office, which is an independent Crown Entity[4] headed by a Chief Censor and a Deputy Chief Censor.
The Classification Office is not responsible for all media. Broadcasting, for example is covered by other legislation.[5] However, if a broadcaster wishes to show a film that has been cut or banned by the Classification Office the broadcaster must obtain a waiver from the Chief Censor to do so.[6]
Special provisions were recently enacted to deal with the classification of streaming and on-demand media from providers such as Netflix, Neon and Disney.
The Annual Report from the Classifications Office for 2019/20 observes that there was a rise of violent and potentially extremist material submitted to the Office, which is handled by a specialist Countering Violent Extremism team.
Following the Christchurch terrorist attacks, it was noted that there was a shift in the ideological subject matter of potentially extremist material submitted – with a greater volume of material relating to white supremacy, the far-right, and online hate speech, compared to material related to Islamic fundamentalism.[7]
The Classification Office Annual Report for 2020-2021[8] observes a continuation of this trend. It states:
“there has also been a noticeable increase in publications that deal with violence and violent extremism. The Classification Office also expects to see an increase in such material submitted by the Department of Internal Affairs as their Countering Violent Extremism team becomes fully operational.”
In addition the Classification Office released a report entitled The Edge of the Infodemic: Challenging Misinformation in Aotearoa. It considered that given what it described as a wave of “misinformation” which the Report unhelpfully does not define the Office needed to better understand how New Zealanders felt about misinformation and what they think should be done. By doing so it is hoped to start a conversation about what better, more inclusive solutions might look like.
The Office hastens to point out that addressing misinformation doesn’t mean telling people what to think, or stifling debate with more censorship – but it claims New Zealanders want to know they can trust the news and information they’re getting, and government can work together with communities to combat misinformation. It suggests that there must be better ways for government, community, and online platforms to come together to prevent harm.
It suggested steps that can be taken to stop the spread of misinformation such as looking at the source of an article before sharing it, questioning the perspectives represented in it and feeling comfortable about discussing the content with another trusted person.
But having said that the issue of misinformation is not about telling people what to think or stifling debate. Research can support cross-government collaboration on potential policy and regulatory responses, including a broad media regulatory review, aid education initiatives, and develop information and resources for the public.
Lately the Chief Censor, Mr. David Shanks, has been calling for a widening of his brief. At an Otago University conference about ‘Social Media and Democracy’ in March 2021, Mr. Shanks told the conference the way we regulate media is not fit for the future.
“We can be better than this. I think there’s some very obvious moves that we can do here to make the current regulatory system and framework more coherent for a digital environment,”[9]
As part of an overall review of regulatory structures surrounding harmful information dissemination, the Government released a discussion paper on hate speech and at the same time the Chief Censor released the report referred to above – “The Edge of the Infodemic”[10] which in essence is a survey about how citizens are concerned about misinformation. The internet and social media are identified as key sources – while experts and government are trusted more than news media.
The Chief Censor says it shows the need for urgent action. It is quite clear that some of the concerns that have been raised about the development of “misinformation” coming as they have alongside moves by the government to address “hate speech” would suggest a shift in attitude towards the robust discussions that characterise a liberal democracy. Indeed there seems to be a general move towards the position that misinformation is in fact harmful content that should be the subject of some form of regulatory response.
Given that the meaning of objectionable is clearly set out in section 3 of the Films Videos and Publications Classification Act 1993 it seems that the Chief Censor is of the view that his powers should be extended beyond that meaning.
In an article by Kristin Hall of 1News dated 3 April 2022 entitled “Misinformation: How social media turned protest into a problem” Mr Shanks was asked to comment on the increase in “misinformation” since his Infodemic report. He commented that
“We’re seeing an increase in the number of bad actors who have learned how to use digital platforms to spread their distrust of public institutions and the media, that means they create followers who really only believe what they say.”
He claimed that the Government needed to push for tighter regulations of platforms that promote misinformation and then went on to cite the Christchurch terror attack.
Mr Shanks quite rightly deemed the live streamed video of that attack as objectionable. It clearly fell within the definition contained in section 3 of the Films Videos and Publications Classification Act 1993 in that it obviously promoted or encouraged criminal acts or acts of terrorism.
However, to equate that video with “misinformation” – a term that Mr Shanks has not defined and which clearly depends on its own circumstances – is in my view an overreach and it is to be hoped that Mr Shanks does not succeed in having objectionable content include the umbrella term “misinformation”.
In an article by Toby Manhire entitled “Inaction on NZ ‘Nuremberg’ site sparks calls for overhaul of system ‘not fit for purpose’” the author calls out the Domain Name Commissioner for failing to cancel the domain name Nuremberg NZ. The website lists, ranks and depicts New Zealand politicians, academics, scientists and journalists and promises “judgement day is here”. Manhire’s complaint is that the site has been left untroubled by New Zealand regulatory and enforcement agencies, a lack of action that, experts say, exposes shortcomings in the apparatus for responding to dangerous online activity.
In the article Manhire observes that the Chief Censor had not received any complaints about the site. Mr Shanks is quoted as saying
“We have been speaking with other agencies, who have been receiving complaints, and we are aware of the very serious concerns about it. The bar for an objectionable (banned) publication is necessarily very high, and our 1993 legislation is not well suited to responding to the kind of harms presented by websites of this kind. We are committed to working with other regulatory authorities to determine what we can do with the tools available.”
It is difficult to discern what it is about the site that Manhire considers to be dangerous or why the Chief Censor should consider the website to be harmful, It is a ridiculous and stupid form of publication at worst that gives a voice to those who wish to express a contrary opinion about certain named individuals. The site seems to be more aligned with elements of the “sovereign citizen” philosophy (I wouldn’t call it a movement) with which I am familiar having had to deal with such individuals in my Court.
Calls to limit the spread of misinformation are not restricted to the Chief Censor.
Stephen Judd of FACT Aotearoa – the Fight Against Conspiracy Theories – considers misinformation to be harmful and claims that some of those involved in misinformation are promoting “completely different media and information universes”. Mr Judd would like to see misinformation propagators’ accounts shut down and in Kirstin Hall’s article is quoted as saying
“”If people who are spreading misinformation are prevented from using mainstream platforms like Facebook, they may go elsewhere but the good thing about that is that they may be harder to find, which means they have to work harder to get a platform for their ideas. So even there that can have a real effect.”
The implications of such a statement for the freedom of expression are chilling. One wonders what Mr. Judd’s response would be if a similar suggestion were to be made about his platform.
Concerns about “misinformation” start at a Government level. At the end of the Parliament grounds occupation the Prime Minister commented “One day it will be our job to try to understand how a group of people could succumb to such wild and dangerous mis- and disinformation.”
When asked whether or not misinformation was a national security issue she did not respond to the question but went on to say “Government agencies are working together to look at how we can better combat the spread of mis- and disinformation and it’s very clear that it’s a whole-of-society approach that’s needed.”[11]
One hopes that in her deliberations the Prime Minister does not lose sight of the provisions of section 14 of the New Zealand Bill of Rights Act protecting the freedom of expression. Or perhaps her long tenure on the “podium of truth” means that she believes her own publicity. It is well known that politicians rarely answer “yes/no” questions with a yes or no and that “spin” is chapter one of the political playbook.
It is therefore encouraging that the head of the SIS Rebecca Kitteridge recognizes the importance of freedom of expression. She says the NZSIS is interested in disinformation when it engages violent extremism or is carried out by a foreign state. “Freedom of speech is a human right,” she says, so the security services step carefully.[12]
Rebecca Kitteridge said “indicators of violence” included someone with an unusual interest in a crowded place or symbolic location or who was seeking explosive material, firearms or knives without good reason[13]. One wonders if this will mean that an PhD student researching material for a thesis on the tools and methods of terrorism will come under the SIS microscope.
However, other Government agencies seem to have an interest in misinformation including the Government’s Combined Threat Assessment Group (CTAG)[14].
Although threats to life, limb and property are properly the concern of Government and law enforcement, and it is necessary that investigations of such threats are carried out it must be a matter of concern that often hyperbolistic chatter is being lumped under the heading of misinformation and that those who engage in such activity may be under suspicion.
Elements of mainstream media have joined in the calls to deal with what is perceived as a rising tide of misinformation. Both Stuff and the New Zealand Herald emphasise that they are trusted sources of information, thus setting themselves above alternative contrarian or contentious opinions which fall into the classification of misinformation.
New Zealand Herald Senior Reporter David Fisher appeared on the Herald Front Page podcast commenting on the dangerous online world of the man charged with threatening to kill the PM. After making some desultory comments about the accused, Fisher wisely steered the discussion away from a matter which was sub judice but went on to discuss at some length the extent of the mis/disinformation realm that was available on the platform Telegram.
Fisher gave an interesting and informative background to those who frequented some of the Telegram messaging streams and there is no doubt that there are some rather strongly expressed contentious and contrarian views expressed on the platform. However, as has been the case in the discourse about “misinformation” there is no attempt to either define the term or clearly state why it is that certain content amounts to misinformation.
Much of the material that is referred to by researchers in the field[15] who seem to be regular “go to” people for the mainstream media is lumped in under the generic term of misinformation but once again little effort is made to define the term or identify the content.
Fisher’s research is extensive and is documented in a couple of recent articles in the NZ Herald “Domestic Terrorism: NZ security agencies’ public guide as violent online talk increases” NZ Herald 9 April 2022 and “Violent talk and fake news: how extremism went mainstream” NZ Herald 9 April 2022. I am indebted to him for some of the material that I have used for this piece.
In his “Violent Talk” piece Fisher identifies some of those who are engaged in what he characterizes as “misinformation.” He refers to Voices of Freedom organisers Claire Deeks, Libby Johnson and Alia Bland and the venerable blogger Cameron Slater once known as Whale Oil with whom I once had dealings. He also refer to the somewhat hysterical Kelvyn Alps of the Counterspin website. In researching this piece I spent a couple of hours (time lost which I shall never recover) watching Mr Alps.
Anyone with a modicum of intelligence would recognize that Alps comes from a long line of angry anarchists (the stereotypes generated in many 19th century cartoons come to mind although they had more hair atop than Mr Alps and their beards were more unkempt than Mr Alps neat goatee) who have nothing good to say about any form of authority (other than his own) and who spends his time propogating his rants.
To suggest that he might have any credibility in motivating the overthrow of the establishment is laughable. The fact that he seems to attract an audience (of which, statistically, I regret to say I am now one) is meaningless. He may have disciples and there may be a few poor souls who hang on his every word but I doubt they are going to blow up government buildings or take up a gun.[16]
I wonder if perhaps Mr Fisher overstates the case or has substituted the earlier fear that everyone had of COVID-19 for some other target – in this case those who propagate the undefined “misinformation”. This fear that is a subtext of recent news media interest in this phenomenon should not be allowed to grow into some form of New Zealand equivalent of the activities of Senator Joseph McCarthy and his communist witch hunt of 1950 – 54 which formed the inspiration for Henry Miller’s play The Crucible.
The personalisation of attacks upon those who express contentious or contrarian views is further evidenced by an article appearing in Stuff for 10 April 2022 by Kirsty Johnson about Sue Grey, a well known contrarian from Nelson who is also a lawyer. Johnson starts her article benignly enough in what may be characterized as a “profile piece” but then mounts an attack on her subject, observing that a complaint about professional misconduct to the New Zealand Law Society has been escalated to Lawyers and Conveyancers Disciplinary Tribunal.
There can be no doubt from the article that Ms Grey espouses some contentious and debateable causes which one is free to do in a liberal democracy but many of her views are systematically demolished. I don’t have much time for Kirsty Johnson’s journalism but in this case she at least has avoided the umbrella term of “misinformation” and clearly rebuts with evidence where it is that she says Ms Grey falls into error. That at least is refreshing in the current mainstream media campaign against “misinformation”.
In making these observations I am not unmindful of the importance of the freedom of the press and a journalist’s freedom of expression. However, I cannot avoid the thought that there may be an agenda involving carving out the informational space so that there is but one authoritative source – the mainstream media – for information and that there is no room for contrarian or contentious views. There are, of course, economic imperatives which drive this. In addition there is the matter of the unfortunate optics involving the availability of some $55 million from the Public Interest Journalism Fund managed by NZ On Air but emanating from Government cofferss for news media purposes, presumably to ensure the publication of truth.[17]
Misinformation – the new “seditious libel”
So what has changed since the seventeenth century in the way is which we deal with contrarians and their contentious views? It seems to me that the term “misinformation” is a modern equivalent of the charge of seditious libel that was employed by the later Stuarts to silence dissent or contrary or contentious viewpoints and one wonders whether or not we have made very much progress as a society. Are the Chief Censor, FACT Aotearoa, the Disinformation Project and elements of mainstream media the twenty-first century equivalents of Sir Roger L’Estrange? Is the fear of “violent extremism” the parallel to the fear of the Catholic Jacobites of the eighteenth century?
Misinformation seems to be used as a veto word which like other emotive terms such as racism or sexism are ways of avoiding any confrontation with the argument in much the same vein as the way in which the Prime Minister deflects an uncomfortable question by disagreeing with the premise of it.
I wonder too whether or not the concerns about misinformation are driven to a certain degree by an air of panic that in fact there are contrary and contentious opinions at large in the community and that they are being voiced and in some cases gaining traction.
The added difficulty is that there seems to be an assumption that citizens are unable to make up their own minds about the validity of certain content and that essentially the whole of society is gullible and needs to be protected from itself. This is no more than a form of, at best, patronizing paternalism driven by a high level of arrogance fostered by a strong belief that the few know what is best for the many.
What seems to be developing is a form of association between a contrary or contentious opinion which rapidly becomes associated with groups who are anti-vaccination. This in turn automatically translates to a suggestion that those who express contrary or contentious opinions are conspiracy theorists who have fallen into a rabbit hole. From there is it but a short leap of faith to the suggestion that those voicing contentious or contrary opinions are dangerous and may even be terrorists.
Some of the more extreme expressions of contentious or contrarian opinions may come close to committing an offence against existing laws and if that can be proven beyond a reasonable doubt then well and good. But to lump all those who express a contrary or contentious view together with the extremists is a gross generalisation and dead wrong.
What is of concern is that the current campaign – for that is what it is – against misinformation is directed against those who express a contrary view. It is almost as if a form of “group-think” is being encouraged and those who do not conform are eroding the peace order and good government of New Zealand. What such thinking ignores is the importance of freedom of expression in a democracy. Freedom of expression allows a cacophony of views – indeed it encourages it. Section 14 of the New Zealand Bill of Rights Act 1990 states that the freedom of expression is not only to impart information but to receive it. It says nothing about the quality of that information. To try and restrict of suppress contentious or contrarian views eliminates a vital element of our democracy.
Of course our government doesn’t want to be challenged. Of course they don’t like to be told they are wrong. Of course it is concerning if the facts are interpreted to arrive at a conclusion that differs from that of the mainstream. But that is the system that we have got and that we enjoy. Everyone has the same ability regardless of rank, office, position in society or background to freely express a point of view and the Internet – that democratiser of information – allows their voices to be heard. And for it to be suggested that the Government is the only arbiter of truth and that contesting premises may be dismissed is to start to travel an Orwellian path.
To conclude, the current drive against “misinformation” – today’s seditious libel – seems to me to be another attack of the freedom of expression and upon the ability to express views that may be contrary to those of the majority. A justification for this is often cited as the need for “social cohesion” – another term for blind conformity – but in reality it is really yet another manifestation of well-meaning but misguided, paternalistic and patronising “liberals” who know better than everyone else what is good for them.
[1] This form of patronizing paternalism persists today in the assumption that people cannot apply critical processes to the assessment of material emanating from Internet based platforms.
[2] For more detail see https://www.dia.govt.nz/Censorship-Our-Role
[3] See Films, Videos, and Publications Classification Act 1993, s 103 making every constable an Inspector of Publications and s 118A (3) (powers given to Customs officer).
[4] Films, Videos, and Publications Classification Act 1993, s 76.
[5] Broadcasting Act 1989.
[6] Broadcasting Act 1989, s 4(2).
[7] Classification Office Annual Report 2019 – 2020 p. 10 https://www.classificationoffice.govt.nz/assets/PDFs/2020-Classification-Office-Annual-Report.pdf (Last Accessed 30 August 2021)
[8] https://www.classificationoffice.govt.nz/documents/127/Annual_Report_-_Classification_Office_2021.pdf (Last Accessed 5 April 2022)
[9] Battle Against Online Harm beefs up censor’s power” Media watch 21 March 2021 https://www.rnz.co.nz/national/programmes/mediawatch/audio/2018788055/battle-against-online-harm-beefs-up-censor-s-power
[10] https://www.classificationoffice.govt.nz/assets/PDFs/Classification-Office-Edge-of-the-Infodemic-Report.pdf (Last accessed 30 August 2021.
[11] David Fisher “Violent talk and fake news: how extremism went mainstream” NZ Herald 9 April 2022 Big Read: Violent talk and fake news – how extremism went mainstream – NZ Herald (Last accessed 10 April 2022)
[12] Quoted in David Fisher “Violent talk and fake news: how extremism went mainstream” NZ Herald 9 April 2022 Big Read: Violent talk and fake news – how extremism went mainstream – NZ Herald (Last accessed 10 April 2022).
[13] David Fisher “Domestic Terrorism: NZ security agencies’ public guide as violent online talk increases” NZ Herald 9 April 2022 Domestic terrorism: NZ security agencies’ public guide as violent online talk increases – NZ Herald (Last accessed 10 April 2022)
[14] It may be of interest that an earlier piece of mine about misinformation which appeared on my blog was accessed by no less a body than the Department of Prime Minister and Cabinet. I have not scanned my home for monitoring devices and have not seen people in overcoats and wearing slouch hats following me around the Westfield Mall in Newmarket or swimming in the lane next to me at the pool so I can only assume it was coincidence.
[15] Such as Stephen Judd’s FACT Aotearoa and Sanjana Hattotuwa of the Disinformation Project
[16] As an example of the over-reaction of the authorities to a message posted on the Internet threatening to blow up buildings if a law relating to copyright was enacted see Police v Joseph [2013] DCR 482.
[17] In this regard the line by Pilate in “Jesus Christ – Superstar” “we all have truths – are mine the same as yours” comes to mind.
The IT Countrey Justice 