spinofflive
Image design: Tina Tiller
Image design: Tina Tiller

MediaJanuary 26, 2022

The worrying implications of the Tova O’Brien decision

Image design: Tina Tiller
Image design: Tina Tiller

In purely legal terms, the former Newshub reporter’s case is of limited interest. But in practical terms, the decision could have a wide reach.

On Monday, the Employment Relations Authority held that ex-Newshub political editor Tova O’Brien must wait out a seven-week “non-competition” period before starting her new gig as a morning radio presenter. Beyond the decision’s meaning for the media world – something The Spinoff’s Duncan Greive considers here, and Newsroom’s Nikki Mandow here – it has focused attention on the murky topic of restraint of trade clauses in employment contracts.

Such clauses come in various flavours. O’Brien’s contract, for example, contained three different ones: a non-compete clause; a non-solicitation clause; and a non-dealing clause. These clauses seek to impose a (temporary) legal restriction on an employee’s freedom after their employment ends, often preventing them from starting a new job for a period of time, or limiting what they can do when they’re working for someone else.

The starting point with such provisions is simple; they presumptively are unlawful, and so unenforceable, on public policy grounds. That’s because of the basic imbalance of power that exists between an employer and an employee, one of whom controls the means of production and the other of whom must sell their labour to survive (as Karl Marx has taught us). Not only does this empower an employer to impose terms on the relationship that are greatly to their benefit, but it also makes the impact of a restraint of trade provision quite disproportionate. If the price of leaving your job is to have to wait weeks or months before getting paid to do a new one, you’re far, far less likely to do so (unless you have won Lotto or similar).

There are then flow-on societal effects from imposing such restraints. They interfere with the free transfer of skills and talent to the place where these are most valued (as Adam Smith has taught us). And stripping employees of the power of exit means they are disempowered in the employment relationship generally. Will your boss value you as much if you realistically can’t walk out the door on them? And will you really complain about conditions, or challenge workplace culture, or join a union if doing so might not only get you sacked, but you then have to wait for weeks or months before you can start getting paid by someone else?

Here’s how one judge summarises the underlying policy approach, in a case we’ll come back to:

“It is of paramount importance that the courts should maintain intact the principle that employment contracts must be free from servile elements. The progress of civilisation since the abolition of slavery has been by uncertain and stumbling steps. The international community has found it necessary repeatedly to condemn and prohibit colourable attempts at dominion and control imitating or resembling slavery. Despite the general rule favouring freedom of contract, the court must remain vigilant to safeguard the weak from becoming the possessions of the strong. Pygmalion may have made Galatea and Professor Higgins may have made Eliza Doolittle what she was but neither man owned his fair lady.”

However, this doesn’t mean that it is unlawful to put a restraint of trade clause into an employment contract (more on this later). Rather, the courts have said that these clauses will only be enforced in certain circumstances where it is fair and reasonable to do so. This approach recognises that there are situations where it very well might be legitimate for an employer to seek to temporarily limit who their employee works for next, or what they may do for a new employer. A senior executive of a company who has access to all its future commercial plans. A technician working on some new industrial process. If these sorts of employees can jump over to a direct rival and immediately start using all the information they hold in their new job, then that could do real harm to a business.

Tova O'Brien in parliament
Tova O’Brien reporting for Newshub (Image: Newshub)

To catch such situations, the courts have carved out an exception to their general non-enforcement stance where an employer can prove certain things. They must show that they have some special proprietary interest that deserves protection, over and above simply having an employee going to work for a rival. They must show that the particular restraint in question is a fair and reasonable one, having regard to an employee’s right to earn a living. And finally, they must show that their interest in having the restraint of trade provision enforced outweighs any wider interests of the public.

Did Tova O’Brien’s case then really fit into this narrow exception, such that the particular restraint of trade clauses in her contract should be enforced? Well, that’s questionable. For one thing, the various special proprietary interests that Discovery (Three’s owner and Tova O’Brien’s former employer) claimed to want to protect don’t seem particularly relevant to her new role as an on-microphone presenter of a breakfast radio show. Instead, it seems more that they didn’t like having a talent they had made a household name headlining a show on another media company’s platform. And the courts have rejected previous attempts at preventing exactly this: “I decline to accept that an employer can acquire any proprietary interest in that talent, continuing after the end of the employment, merely because it has made that talent known or better known.”

But perhaps more notably, the authority engages in no real discussion regarding the “interests of the public” criteria. For, even if Discovery do have special proprietary interests to protect, the price of their doing so is keeping Tova O’Brien off the nation’s airwaves for seven weeks. While there’s a lot of social media haters out there (hard eyeroll at them), that’s a genuine loss to the public discourse. And it places fetters on not only O’Brien’s right to freedom of expression under the New Zealand Bill of Rights Act 1990, but also on the rights of those who may want to hear from her. None of which receives any attention in the authority’s decision, despite that legislation being binding on it.

As such, there’s a reasonable argument that the authority got this particular decision wrong. In purely legal terms, that is of limited interest. The authority is an investigative body set up to: “resolve employment relationship problems by establishing the facts and making a determination according to the substantial merits of the case, without regard to technicalities”. Restraint of trade cases turn primarily on their own unique factual situations. While the outcome is binding on O’Brien, and undoubtedly is hard for her on both emotional and financial grounds, it doesn’t technically bind any future decisions by other members of the authority. And if O’Brien (or her new employers at Mediaworks) is minded to pay lawyers more money, the outcome may be appealed to the Employment Court for a fuller examination.

Beyond this strictly legal aspect, however, the case may resonate more widely. All sorts of employment contracts have some form of restraint of trade provision inserted into them. Many of these actually may be completely unenforceable; they’re mere paper tigers, as opposed to genuinely legally binding obligations that will bite if you quit for another job. But how can you be sure which is which? If you’ve seen a news story about someone like Tova O’Brien having to sit out seven weeks without pay, are you really going to risk finding out if the clause in your contract is just words or something that you will be made to follow? And in that case, does the mere fact that such clauses can be inserted into your employment contract represent something of a fait accompli? Meaning that perhaps our parliament, along with our courts, must remain vigilant to safeguard the weak from becoming the possessions of the strong.


Follow Duncan Greive’s NZ media podcast The Fold on Apple Podcasts, Spotify or your favourite podcast provider.

Keep going!
Image: Archi Banal
Image: Archi Banal

InternetJanuary 25, 2022

No, five kids didn’t collapse at a vaccination site. So who said they did?

Image: Archi Banal
Image: Archi Banal

Viral rumours about collapsed children at a Covid vaccination site spread quickly online, but where did they start? For IRL, Dylan Reeve finds that all roads lead back to one source. 

As part of my role at IRL, and as a hobby even beforehand, I’ve spent a long time watching conspiracy theory groups and diving down strange online rabbit holes. Occasionally I spend a little time trying to get to the bottom of a claim. 

Last Monday, as Covid vaccinations for the 5-11 year-old age group started, rumours began swirling within anti-vax and Covid denial groups that five children had collapsed at the North Shore drive-in vaccination site. Instead of calling ambulances, the vaccination centre staff told parents to drive their children to the hospital – or so the rumour went.

Health officials have unequivocally denied the claims. So how did this rumour even begin?

I’ve spent a while on Facebook, Telegram and other platforms frequented by conspiracy theorists and antivaxxers – I monitor more than 50 of these online channels – trying to get to the bottom of this claim. It was widely reported in those places as evidence of a conspiracy of silence between the government and the media, and in most cases, posts about the rumour were accompanied by one of two videos of former newsreader and journalist Liz Gunn confronting a 1News crew as they were departing the site; demanding they investigate the claim. 

And, as far as I can see, that’s all there is to it: all roads lead back to Liz. 

Former newsreader and journalist Liz Gunn confronting a 1News crew as they were departing a North Shore vaccination site.

But, as with any claim within these groups, the story echoes out and back again, so while the very first stories included the video of Gunn chasing the news crew, there were soon versions of the story being shared from overseas groups. “Auckland pharmacy 5 children have collapsed,” said one post from an Australian group that was then widely forwarded around New Zealand groups. 

Newshub journalist William Hewett, having seen Gunn’s video, reached out to her for more information or evidence. No useful details were forthcoming, only a long rant from which Newshub ran extended excerpts. (Liz Gunn didn’t respond to emailed questions about the sources of her claims for this story, and attempts to arrange a telephone interview on the subject were unsuccessful before publication.)

Another reply to Hewett was published on the website of FreeNZ, a group that opposes Covid-19 restrictions and is associated with Liz Gunn. It’s from this reply, attributed to FreeNZ staffer Onyx, that we get the closest thing yet to an actual source for the claims. 

And that source is, still, Liz Gunn.

According to the response on the site: “What Liz Gunn went to the vaccination tent to do was to find out what was going on, from an independent media POV. Whilst there she had heard that there was the issue with some of the children in the cars.”

Gunn’s description was a little different when speaking on Counterspin, an online TV show. In that interview, she said “this buzz came up the line” from the protesters outside the vaccination event “saying that up to five had collapsed.” Gunn described this as happening immediately before her confrontation with the 1News crew, while she was at the far end of the road away from the event location.

In the written response on FreeNZ’s site, and also in a video Gunn posted on her Facebook later, she rejected the claim she was “spreading” the allegation, instead saying that she was just asking the news crew to investigate it. Regardless of Gunn’s intentions, though, the claim has since spread online, and I’m convinced the video of Gunn “just asking questions” is the key source: of more than 65 instances of the claim I encountered in these groups, all appear to refer back to Gunn’s video with none pre-dating it, and no independent evidence or sources for the claim are provided. 

Stadium CEO Brian Blake has denied Liz Gunn’s claims.

In the days since the North Shore drive-in event, there don’t appear to have been any developments that substantiate Gunn’s claims, either. None of the parents of the alleged five children have come forward to say they were sent off to hospital by centre staff; nor, to my knowledge, have any other people emerged claiming to have heard or witnessed anything like this at the event. On the other hand, people close to the event have denied Gunn’s version of events, with stadium CEO Brian Blake describing it as “a load of crap” in one Facebook comment.

And yet, days later, the claim is still echoing widely around conspiracy theory groups online, in New Zealand and internationally, like a circle of kids playing the whispers game

Independently, I was able to locate the parent of one child, vaccinated at the North Shore site about an hour before Gunn’s encounter, who had a mild vasovagal syncope reaction immediately after vaccination – according to Cedars Sinai, a nonprofit academic healthcare organisation in the US, this is a fairly common reaction to stress, including blood draws or even the sight of a needle, and presents as light-headedness or fainting. It is not a reaction to the vaccine itself, just the stress of the situation.

The parent described to me, in a direct message conversation, the immediate support from on-site vaccination staff and said that their child recovered quickly with no other effects. They were not directed to hospital and no further care was required. It is possible that protesters outside the centre witnessed this from afar and amplified the story without context, including speculation about the seriousness and the number of children involved.

Asked for clarification, the Auckland DHB’s Northern Region Coordination Centre clinical director Dr Anthony Jordan said: “We do not have any reports of adverse reactions, including anyone fainting, at the drive-through centre at Eventfinda Stadium on Monday 17 January. If someone is feeling unwell after receiving their vaccination, or from any other medical issue, there are staff on hand to respond.”

Jordan also pointed out that many sites have on-site first aid staff that can recognise and treat any conditions that may arise. “If anyone needs more urgent medical attention, staff will call an ambulance,” he confirmed.

In another video, posted on Friday afternoon to the FreeNZ Facebook page and other social media channels, Liz Gunn interviewed an anonymous Christchurch couple who described witnessing a child vomiting outside an unnamed Christchurch East vaccination centre on Thursday before then seeing a second child suffering a violent seizure inside the venue.

The Canterbury DHB said that nothing of the sort had been reported. “We’ve spoken to vaccination teams and no-one has heard of anything like this happening,” a CDHB spokesperson told me by phone. Further to that, Dr Helen Skinner, the CDHB’s senior responsible officer for the Covid-19 response, told me by email that “Canterbury DHB has not received any reports of adverse events related to administering the paediatric vaccine”.

In that instance, it’s possible that these claims were in reference to an image that had been circulating widely on Telegram which appears to show a child collapsed on the street outside a Rangiora vaccination centre. The CDHB spokesperson confirmed to me that the event in question took place before a vaccine was given: “The incident you refer to is completely unrelated to the Covid-19 vaccine. To protect the privacy of the individual, we will not be providing further comment.”

As for Gunn’s claim that, in the initial video encounter, she just wanted the 1News crew to investigate the story, at no point in the recording does she offer them any details about a source they might speak to or witness they should contact; meaning there was very little of substance for journalists to actually investigate. I’ve been burrowed down this rabbit hole for the better part of a week now, and the one event I was able to identify bore little resemblance to the claims made by Gunn, and was absolutely not evidence of the vaccine-related harm that was widely suggested.

Are there any other strange internet mysteries or dubious claims you’d like IRL to get to the bottom of? Get in touch with us at irl@thespinoff.co.nz. 

But wait there's more!