JUDGE PETER CALLINICOS AGAINST STUFF
Case Number: 3255
Council Meeting: MAY 2022
Decision: Not Upheld with Dissent
Defamation/Damaging To Reputation
1. On 24 March 2022 Stuff published an article headlined Embattled judge loses bid to have conduct enquiry held in private. The judge has name suppression, as noted in paragraph 3 of the article. The unnamed judge in the article is not Judge Callinicos.
2. The article described the process relating to a complaint against a judge, which was first considered by the Judicial Conduct Commissioner (JCC). The JCC found sufficient cause to recommend to the Attorney General that he appoint a Judicial Conduct Panel (JCP) to consider the complaint. The article then went on to explain that the judge who was the subject of this complaint then filed applications with the Panel. The first asserted that the Panel had no jurisdiction on the complaint; and the second sought interim suppression orders (which were granted); and that any hearings be held in private. The JCP was to meet in April to consider the jurisdiction issue; in the meantime, the panel said that there was a presumption in the law that all hearings should be public. It declined to make an exemption in this case and quoted a recent Supreme Court decision saying that open justice was a “principle of constitutional importance”.
3. In the 24 March article, which Judge Callinicos has complained about, Stuff included in the body of the text a hyperlink (which allows a reader to click through to another document). This hyperlink was to an earlier story about Judge Callinicos - a different judge from the unnamed one who was the subject of the story of 24 March. Three hyperlinks were given, one to the story about Judge Callinicos, which reported a Supreme Court Justice describing his behaviour in court as “Bullying, excessive, partisan and demeaning” towards an abuse victim; and the other two to stories about the unnamed judge. It would have been a breach of the suppression order, to have identified the unnamed judge in the article.
4. It is the unnamed judge who has been referred to the JCP, not Judge Callinicos. Judge Callinicos has been the subject of number of stories about his behaviour in court. These reports have also covered the involvement of senior judges (and complaints against their involvement) and the Judicial Conduct Commissioner, relating to criticism of Judge Callinicos’ courtroom behaviour. The hyperlink complained of by Judge Callinicos was to one of the more recent articles about him. The content of the linked article made it clear that Judge Callinicos could not be the judge referred to a Judicial Conduct Panel. It stated that the Judicial Conduct Commissioner had declined to refer the Judge Callinicos matter to the Attorney General (who then has the power to refer the matter to a JCP). Instead, the Judicial Conduct Commissioner referred Judge Callinicos to the Heads of the High Court and District Court, stating it was up to them what they wished to do.
5. The complainant, through his counsel, has made several complaints. The core of the complaint is the use of the hyperlink. The complainant says that the hyperlink would immediately lead readers to conclude that the unnamed judge in the article of 24 March was Judge Callinicos. In addition, the complainant says that the use of the word “embattled” and the phrase “embattled judge” in the headline, which has also been used in relation to Judge Callinicos, would lead the reader to assume that the unnamed judge in the article and Judge Callinicos were one and the same. To support this assertion, the complainant cites enquiries and phone calls he received from concerned friends who, after seeing the article, thought he had been referred to a JCP.
6. The complainant’s counsel also makes several assertions and complaints about the behaviour of Stuff in relation to this story. He says that Stuff clearly knows that the unnamed judge in the article and Judge Callinicos were not the same person, and that this hyperlink to another article about Judge Callinicos was therefore part of a “calculated and malignant” attack on him.
7. On 25 March, the day after publication of the article, correspondence about the complaint was exchanged between counsel for Judge Callinicos, and Stuff. This resulted in the hyperlink complained of being taken down immediately. The complainant’s counsel sees this as evidence that the complaint about the hyperlink was justified.
8. Stuff Projects Director John Hartevelt replied at 6:13pm on 25 March to the letter earlier the same day from the complainant’s counsel. He said Stuff did not know the identity of the unnamed judge in the article. He pointed out that the hyperlinked story made it clear that the unnamed judge could not be Judge Callinicos as it said the latter had not been referred to a JCP. Mr Hartevelt rejected the claims that the word “embattled” invited readers to connect that word with Judge Callinicos. He strongly rejected the complainant’s characterization of the article as “a dedicated attack” on Judge Callinicos and stood by the story.
9. In a subsequent and longer response to the Media Council about the complaint, Stuff made further arguments. On the use of “embattled” in the headline, they do not accept that a reasonable reader would accept the word links directly to Judge Callinicos. They give examples to demonstrate that the word is commonly and widely used by journalists in numerous contexts, such as about sports coaches or politicians under criticism. They say the phrase “embattled judge” has been used in two recent cases that do not involve Judge Callinicos. Both the unnamed judge and Judge Callinicos are correctly described as “embattled judges”. Embattled is an adjective commonly used in news reporting and Stuff does not accept its use would cause a reasonable reader to make the link to Judge Callinicos.
10. In relation to the use of the hyperlink, Stuff responds on the basis that the complaint alleges a breach of Principle 1, Accuracy, fairness and balance may have occurred. This Principle requires that publishers “should not deliberately mislead or misinform readers by commission or omission”. Immediately after Stuff received counsel’s letter of complaint, the link was removed. “We accepted at the time and continue to agree that its inclusion risked some readers drawing the false inference that the judge reported on in the story was Judge Callinicos, should they not actually read the story.” “We removed the link out of an abundance of caution that it may not be immediately clear on a casual reading.” Stuff also believes that the ongoing complaint on this issue is overstated.
11. The complainant’s counsel also casts doubt on whether Stuff was telling the truth about the reporter and editor on this story being unaware of the identity of the unnamed judge referred to the JCP. Stuff points out that the fact that enquiries were made by Stuff about the matter seems to support the opposite; and they say a correct interpretation would be that Stuff journalists do not in fact know the identity of the unnamed judge.
12. The Stuff response states, “None of the editors or the reporter who wrote this story know the identity of the judge with name suppression.” Stuff regards the suggestion that they have not been honest as “a baseless smear on the integrity of senior members of Stuff’s editorial team which we utterly reject”. Stuff also firmly rejects the allegation that this was an attempt by Stuff to conduct “an egregious campaign” against Judge Callinicos.
13. Stuff believes the complaint is “speculative” and unrelated to any Media Council Principle. The article is straightforward news reporting, and the headline reflects the story.
14. The Council sees it as understandable that the complainant was concerned by the presence of the hyperlink, to a story about him, in an article about quite another judge, whose behaviour had been referred to a Judicial Conduct Panel. Such referral is a very serious step, which can possibly lead to a judge being removed from office. Clearly an inference could be drawn, by a casual reader, that Judge Callinicos was the judge who had been referred to a JCP. We note, however, that immediately above the hyperlinks was the statement that the unnamed judge’s identity was suppressed. It is therefore most unlikely that Stuff would include a hyperlink to a story naming that judge.
15. It is equally clear that Stuff quickly responded to the complaint. The hyperlink was immediately withdrawn when the possible inference was pointed out. The use of hyperlinks is standard practice in online news sites. Most articles published by Stuff and other local and international online news sites (including for example the UK Guardian) contain ‘read more’ links. These offer more reports which may be relevant and of interest to a reader who wishes to follow up on particular topics, in this case ‘judicial misconduct’ stories. Not every adverse implication which may be drawn from these can be anticipated. In this case the Council notes that a reader would need to be familiar with the intricacies of judicial conduct proceedings to make a distinction between the two judges’ cases, and no doubt Stuff took this into account, along with the relative rarity of judicial misconduct issues, in promptly taking down the hyperlink. The Council notes the word “embattled”, to describe an embattled judge (or, for example, an embattled coach or an embattled Minister), is in constant use by journalists as shorthand to describe a wide variety of people under media and public pressure. The Council considers the use of the phrase “embattled judge” is insufficient to make a direct link to Judge Callinicos. As Stuff points out, there have been occasional cases in recent times of judicial misconduct issues being considered, and in each case the judges have been referred to as “embattled judges”.
16. The various allegations of inappropriate practice, dishonesty or malicious intent by Stuff journalists are directly and strongly rejected by Stuff. Supporting circumstances suggest that Stuff did not know the identity of the unnamed judge but knew it was not Judge Callinicos; the hyperlinked story covered the fact Judge Callinicos has been referred to Heads of Court rather than to the JCP; and Stuff had made enquiries to try to establish the identity of the unnamed judge. There have recently been a series of stories in Stuff about the unnamed judge, in addition to the stories about Judge Callinicos – two recent media stories about possible judicial misconduct.
17. The Council is not persuaded, on the information it has, to take the significant step of disbelieving repeated direct assurances from Stuff of their honesty, in favour of the complainant’s counsel’s allegations of journalistic misconduct and malice. The Council accepts that it is very common practice to provide ‘read more’ links to similar stories on a topic such as ‘judicial misconduct’. In this case Stuff quickly accepted there could be an unintended and unfortunate connection made to Judge Callinicos and immediately removed the link. The Council notes, however, that it could be argued that Stuff was justified, as a matter of public interest, in allowing readers to quickly link to two possible judicial misconduct issues, both currently the subject of a series of articles in the news media. The Principles require prompt correction, and the Council has in some cases determined that this will be an appropriate response by a publisher to a complaint. In this case, the possibility of misunderstanding was quickly accepted, and the hyperlink was removed immediately after it was requested. The Council considers this prompt amendment to the story was a timely and appropriate response by Stuff.
18. The Council notes the increasing use on news sites of hyperlinks to text and visuals from previous or related stories. These can be helpful and interesting to readers, but unfortunate connections arising from hyperlinks have triggered other recent complaints to the Council. Not every mistaken, adverse assumption or connection which may occur to readers from ‘read more’ hyperlinks can be foreseen by editors. But in the Council’s view, more thought and care is required pre-publication, to avoid obvious mistaken connections.
19. For the reasons outlined above, the Council does not consider the complaints against Stuff are sufficient for an uphold under any of its Principles; nor as a matter of journalistic ethics.
Decision: The complaint is not upheld by a majority of Council members 8:1. Dissent from Ben France-Hudson
Dissent from Ben France-Hudson
I would have upheld this complaint as it relates to the hyperlinked story regarding Judge Callinicos. The obvious inference from this link, supported by its placement between two other stories on the unnamed judge, was that Judge Callinicos was indeed the judge who had been referred to a Judicial Conduct Panel.
It would have required a very close reading of the linked story, and an exercise in logic to conclude that Judge Callinicos was not the judge being referred to a JCP. Indeed, it could equally have been thought that although he had only been referred to the Heads of Bench for earlier behaviour, this time he must have done something worse. Stuff itself accepted there was a risk of such an inference when it acted promptly to remove the hyperlink.
By then it was too late. Very few readers, having drawn the adverse inference, would have revisited the story, noted that the hyperlinks were no longer there and concluded that their earlier inference must have been incorrect.
There is nothing before the Council that suggests Stuff was anything other than careless in its use of the hyperlink. However, it ought to have taken much more care. There is a world of difference between being referred to the Heads of Bench and being the subject of a JCP – a process that can lead to removal by the Governor-General (either following advice of the Attorney-General, or for some judges a vote of Parliament). This is a step so serious it has only rarely been carried out in any Commonwealth jurisdiction. I accept that there is a high degree of public interest in the conduct of the judiciary and that transparency is important, but this must be balanced by accuracy. The inference was obvious, and Stuff should have taken more care to ensure such an inference was not open to its readers.
Media Council members considering the complaint were Rosemary Barraclough, Craig Cooper, Ben France-Hudson, Richard Pamatatau, Hank Schouten, Marie Shroff, Alison Thom, Reina Vaai and Tim Watkin.
Hon Raynor Asher took no part in the consideration of this complaint.