Public expectations and media standards
December 14, 2011
The Law Commission suggests that its proposed independent media regulator consult with the public to establish what their expectations are of journalistic standards, so that these can be reflected in the structures and ethics codes it draws up (see paras 5.93 and 6.95).
Is this really the right question? I rather doubt it. If you’re asking what standards the public expect of the media, new and old, I wouldn’t be surprised if you got some fairly cynical responses.
But I suppose it’s implicit in this that we’re asking them what standards they think the media should be held to. Even then, is this a sensible question? When the BSA conducted a survey about what people’s expectations of privacy and the media were, they discovered that people disagreed wildly about it.
I really wonder whether many people have really thought about it. Do we want journalistic standards to be determined by what a bunch of random people happen to pull out of their heads when someone phones them? Why should we think their answers will be grounded in the realities of news-gathering or forged by the experience of being the subject of news stories? Aren’t we really more interested in what standards people desire after they’re schooled up on the issues?
If that’s the case, why are we going to the public at all? Do we go to the public when we’re setting ethical standards for lawyers or accountants? Consumer standards? I don’t think we do. We consult experts, talk to people engaged in the issues, look at best practice elsewhere, look for evidence and convincing reasoning about what works and best reflects the values we identify as important. In fact, that’s the way the Law Commission goes about its business. At some point it invites public submissions, and generally only gets responses from stakeholders. It doesn’t tend to conduct public surveys about what the law should be.
I’m not saying we shouldn’t seek public feedback. But we shouldn’t expect it to provide any clear answers, and in many cases it probably won’t even provide thoughtful ones. We’ve got a very good idea about what constitutes ethical journalism from the similarity of hundreds of codes of ethics around the world and the experience of veteran journalists. Maybe we need to think harder about exactly which questions we want public feedback on and what information we provide people with first…
Topics: Media ethics | 50 Comments »
Law Commission’s new media paper
December 12, 2011
The Law Commission has issued an issues paper on reform of news media and new media regulation. This isn’t a final report; they’re looking for feedback on their proposals.
I think it’s a thougthful and well-researched paper. It’s very much alive to the problems of online regulation and the importance of free speech and the media. It contains some big ideas, some of which are getting lost in reporting by journalists who don’t seem to have read it.
It’s in two parts. The first is about regulation of – for want of a better phrase – mainstream media. That is, the media whose business it is to regularly deliver news and views. That includes TV and radio, newspapers and magazines. But should it also include Scoop and Voxy? Aren’t they part of the mainstream now? Why should a Scoop reporter not get the privileges (such as exemption from the Privacy Act, journalist source protection and access to courts) that other media outlets get? Correspondingly, why should they be exempt from some sort of complaints process concerning things like accuracy, fairness and privacy?
This part of the paper (it’s the first six chapters) also asks whether our patchwork of media regulation makes any sense. Given that broadcasters are posting text online and newspapers are posting video, why should the standards applying to each be different? Why should one be governed by the (self-regulated) Press Council and the other by the (statutory) Broadcasting Standards Authority? Why should broadcasters’ websites not be regulated at all?
The second part of the paper looks at online harms such as cyber-bullying and harrassment, privacy invasions, defamation, impersonation and inciting suicide. It does not focus particularly on the media. It asks whether the remedies available for such harms – the criminal law, civil law such as defamation, and complaints organisations such as the Privacy Commissioner – are adequate.
Part One
At the heart of Part One is the vexed question of “who is a journalist?” Do you have to work for the NZ Herald or TVNZ? Or might you be a blogger like David Farrar who is regularly providing news, analysis and sometimes original research in ways that make his activities similar? This matters: regular journalists get particular privileges: an exemption from the Privacy Act’s data management requirements; legal rights to protect their sources; access to court proceedings when the public are excluded; the right to attend particular press conferences. The law is a bit of a mess here, but the idea is that the media is (a) performing an important public function and (b) reliably trustworthy in how it uses information. The Law Commission suggests that these attributes are not restricted to old-style media.
The Commission says that if some new media news outlets are performing traditional media functions – informing people on the issues of the day – they should get these privileges too. But with those privileges comes responsibility. They should be subject to a code of ethics and a complaints process.
We already have a couple of those: the Press Council and the BSA. Will they do? The Law Commission doesn’t think so. They are really pre-internet-age beasts, it says. The BSA’s codes are (partly) prescribed by statute and the appointments are political. It doesn’t have jurisdiction of broadcasters’ websites. The Press Council’s “statement of principles” are a bit waffly and the organisation can be seen as stacked toward the media industry, which funds it and provides five out of eleven Press Council members. Neither organisation has code provisions that specifically reflect the online environment, though both contain general requirements (eg fairness) that are capable of applying online.
As newspapers’ and broadcasters’ content looks increasingly similar, these separate regimes are looking increasingly untenable, says the Law Commission. It is surely right. What should we have instead? The Commission recommends a single regulator. It’s hallmark will be independence: the Commission recommends a very robust appointment process to ensure the regulator is insulated from politicians and from the media industry. Like the BSA, it would have a statutory basis, but unlike the BSA, this statutory basis will not be very prescriptive. For example, it won’t set out what is required to be in the codes. These will be prepared by the members of the regulator, in consultation with the public and the industry. The regulator will also develop its own complaints processes, and will decide on the range of penalties that can be imposed. (It seems that this may require buy-in from the industry).
There is a bit of tension here. On the one hand, the Commission is suggesting a lot of independence for this regulator to make decisions about how it will operate. On the other hand, the Commission’s paper contains quite a bit of detail about how it expects the regulator will operate – creating high standards for the media (“setting the bar high”); dealing with ethical principles such as accuracy, privacy and fairness; drawing up a code of ethics that is more detailed than the Press Council one and contains variations according to the particular form of media; and naming the journalists who are subjected to complaints.
How are we to read this? I think the idea is that the regulator essentially gets licence to do what it likes. But it will be operating against the recommendations in the Law Commission’s final report (to be delivered after feedback on this one), so if it ignores those recommendations or otherwise acts contrary to the public interest, it may be replaced by a stricter statutory regime.
That’s the way I look at the recommendation – not as a statutory super-regulator, but as a slightly refined self-regulatory initiative, in which the industry players are given a first chance to see whether they can do this themselves.
Complaints would still go in the first instance to the publisher or broadcaster, and would only be referred to the regulator in the event they can’t be resolved.
The Commission doesn’t discuss fast-track resolution, or interim take-down powers, or a possible Ombudsman/mediator to faciliate resolution before complaints are elevated, but all are on the table for the regulator.
Who would join? The Commission assumes that all the current mainstream media organisations would want to: joining provides a brand advantage, it gains them journalistic privileges, it protects them against the possibility of heavier regulation. Maybe joining should be entirely voluntary, it suggests.
I’m not so sure that all the media would want to opt in. They will have to part-fund it; it will carry obligations and the potential for rulings and penalties they disagree with, and the basket of privileges they get in return may not be enticing enough. They can still get almost all court access as members of the public. Not many will turn them away from press conferences. Would the law seriously take away TV3’s source protection rights and subject them to the Privacy Act if they didn’t join?
The Commission’s Plan B is to make membership compulsory for large, mostly traditional media, and optional for others. So the NZ Herald and TVNZ would be required to be members; Farrar could opt in. (I’m inclined to think there should probably be some sort of limit on those who could decide to opt in – after all, this means that they will be granted privileges as journalists, and merely signing up to a code and complaint process doesn’t automatically render someone responsible, I’d have thought).
That’s it in a nutshell. Worthy of serious consideration and debate, I think.
Part Two
This seems to have attracted more attention. In this part of the paper (the final two chapters), the Law Commission assesses the harms that are done by bloggers, tweeters and social media posters. It says it’s a bit hard to tell how much harm is being done, but finds plenty of evidence that there’s a significant amount. What’s to be done? Three things.
First (this recommendation is getting lost in the debate), the courts should be empowered to require ISPs and website hosts to take down material if it has been established that they are unlawful and harmful and that other measures have not worked. The Commission expects that this would be rarely used.
Second, they suggest tweaking the criminal law to ensure that it applies properly online. Mostly, this is just a matter of clarification – the Harrassment Act and Human Rights Act, for example, probably already apply on an online context. But some involve creating new offences: malicious impersonation, and perhaps publication of intimate photographs online where the photos were taken with consent but the publication of them wasn’t.
Third, and most interesting, a new mechanism for speedy, law-cost and effective remedy for online harms – against anyone, including the media, but also including bloggers, etc. The remedies would include compensation, take-down order, right of reply, and apology. The Commission raises two options here. First, a new Tribunal to hear such claims. It could make orders, but only when it could be shown that the law had been broken. Effectively, it turns the relevant criminal law into statutory torts (along with the civil law such as privacy and defamation – and copyright?) and makes them subject to a more accessible, informal and cheap complaints process.
I’m afraid I can see all sorts of problems with this. How do you quickly and cheaply establish whether or not someone has been defamed? It’s an incredibly complex area of law, and I don’t see how a Tribunal could establish it quickly and cheaply if someone wanted to raise some defences. And how would the Tribunal’s powers dovetail with the rules laid down by the courts for injunctions? For example, the courts are very reluctant to order an injunction removing particular material that’s allegedly defamatory if the defendant points to an arguable defence.
More importantly, what happens to the underlying crimes? If I’m charged with criminal harrassment, or under investigation for it, then if I’m defending myself before the Tribunal, I might be undermining my own criminal defence. What of the protections that are usually provided to someone facing a criminal charge? What if the Tribunal’s ruling has the potential to prejudice my later criminal trial? Is the standard of proof to be lower?
Again, the Commmission has a Plan B – a communications commissioner. This person would have some powers to require information, and an investigatory role, but would not be able to order take-down, compensation, etc. He or she would need to rely on the mana of the office to try to negotiate solutions.
The Law Commission is dealing with a very real problem here. Seriously harmful material can be posted at the drop of a hat, and even if the criminal provisions were extended and clarified as the Commission suggests, the remedies may be cumbersome and expensive. But I have to wonder whether either of these options will do the trick. The first seems fraught with problems and the second, while potentially useful, seems toothless.
On the other hand, I’m not sure that I have any better ideas…
Topics: Defamation, Future of journalism, Harassment Act, Internet issues, Journalism and criminal law, NZ Bill of Rights Act | 853 Comments »
Should the Treasury asset-sales advice have been released?
November 29, 2011
The Chief Ombudsman Beverley Wakem says no. OIA expert John Edwards isn’t so sure. He provides a thorough and thoughtful analysis of her decision here.
Under the OIA, you’re entitled to see almost any information held by the government just by asking for it. To withhold information, the government must point to one of the specific exceptions in the Act (which are about personal privacy, commercial prejudice, damage to the policy-making process and the like) and explain (a) how the release of the information would cause harm to that interest and (b) why the public interest in the disclosure of the information doesn’t outweigh that harm.
As John explains, the government here has pointed to the very nebulous exceptions that protect policy advice. It is easy for the government to make assertions about the evils that will befall us if advice is released prematurely. My impression is that the Ombudsmen are sometimes too ready to accept those assertions. John gives us reasons to doubt the validity of the reasons the government gave here – the reasons that were accepted by the Ombudsmen’s office.
But there is one part of the Ombudsmen’s decision that gives me some comfort:
Whilst there is an exceptionally strong public interest in disclosure of information that may help voters to decide how to exercise their vote, I am not persuaded that the specific information concerned in this case would provide such assistance.
The Chief Ombudsmen was certainly alive to the democratic importance of relevant political information. But she says here, essentially, that there’s not much in this Treasury advice that’s of relevance to the election. If she’s right, then all the criticism her decision has attracted may be unfair (though you could be forgiven for wondering why the government is so keen to withhold it). In a different election cycle, this might have been the storm in a teacup.
As John points out, we will get to see the Treasury advice one day, though of course it’s too late for the election. Then we’ll be able to make up our own minds about its significance and properly evaluate the Chief Ombudsman’s decision…
Topics: Official Information Act | 49 Comments »
How to door-step someone
November 29, 2011
John Campbell has demonstrated, with immaculate ethics, how to go about door-stepping someone. Door-stepping is turning up to someone’s place with cameras rolling to get that person to answer questions. As the BSA has often said, it’s usually unfair to do this.
But the Campbell Live crew weren’t unfair. They were doing a story on Tower Insurance. They’d talked to a punter whose property was in Christchurch’s red-zone. His insurance policy was a replacement one. Tower was going to pay for repairs but not replace his home somewhere else. Campbell Live called Tower three times, and filled out a media inquiry form. Tower didn’t respond.
So Campbell went to Tower’s office to try to get a response. Here’s how you deal with the poor receptionist in a situation like that:
Campbell: I am so sorry just to walk up to you like this, but we have tried tremendously hard to get somebody to talk to us about the situation in Christchurch with replacement polices in the red zone. Now, we know absolutely that that is not your job and your department. But we have been trying to get somebody to talk to us, no one returns calls. Is there anyone here that can deal with the media on that subject?
The receptionist was shown competently dealing with the situation. I’m not sure the same can be said of Tower’s head honcho. Campbell was first told that he was in a meeting, and replied, with the sort of effusive courtesy that only Campbell can muster:
Sorry, this is a terribly difficult situation for you… Would you mind passing on to them that we are utterly happy to wait for them, they look like comfortable seats, we are very happy to wait until they are available.
The CEO then decided he wouldn’t be available at all. Campbell left an invitation to appear on the programme that night.
The BSA has said door-stepping should be a last resort. It should only be used when other attempts to contact the person have failed. In this case, the BSA added another requirement that seems spot on: that the door-step be a genuine attempt to elicit information (and not, for example, just an excuse to get some sexy footage of someone refusing to answer questions).
The BSA concluded, quite rightly, that Campbell’s behaviour wasn’t unfair here.
Still, Tower made another complaint of unfairness relating to a different point. I’m more sympathetic to this one. About an hour and a half before the programme, they emailed a statement to Campbell Live. It said that “there appeared to be some misunderstandings circulating about the nature of the cover available under home insurance policies” and added:
- Tower’s home insurance policies covered customers against accidental physical damage to their houses. The policies did not cover damage to land (which was insured under the Earthquake Commission Act 1993) or damage to public infrastructure. Where a customer’s house suffered damage as a result of a natural disaster, Tower’s home insurance policies provided “top-up” cover for physical damage to the house over and above cover available from the Earthquake Commission. This was not unique to Tower.
- Tower acknowledged that residents in the red zones were considering abandoning their properties because the government had decided that it was not feasible to reinstate land and infrastructure in those areas. It accepted that some residents living in the red zone, particularly those whose houses had not been severely damaged, had no practical alternative to selling their property to the government even though the price the government was proposing to pay may be less than the property’s market value prior to the earthquake. Tower sympathised with residents in this position, however, it could not make up the shortfall by giving customers more than their full entitlement under their policy.
Campbell Live summarised that email this way:
We received an email from Tower saying that they are working hard to ensure that claims are resolved fairly and efficiently and that the concerns currently being expressed are based on a misunderstanding of the nature of the cover available under home insurance policies.
Then he added:
Frankly, that statement raises at least as many questions as it answers. What does replacement mean?
Yes, that letter was sent late in the day. To be fair to Tower, though, they were first contacted about the story that morning. And there’s surely no doubt that Campbell Live could have made time for a longer summary. Campbell Live complained that it would have taken more than 3 minutes to read the statement out in full. But they certainly had some time available: after all, they were offering to do an interview with the Chief Executive and would certainly have made time for that. Besides, Tower was only looking for a fair summary. What happened, I think, was that Campbell Live didn’t like the format of the response, and they short-changed it.
Was it really fair on Tower not to explain that its policy is a top-up for the Earthquake Commission land-damage cover? The BSA thought so:
In our view, while this provided only a very concise representation of Tower’s position, it was sufficient in the context of the programme, which sought to simplify a complicated legal matter for the average viewer.
I disagree. In the context of a show that criticised Tower strongly, dramatised that criticism with a door-stepping, suggested Tower was breaching its own “core value” of empathy to customers, and slagged Tower for failing to front up and explain its policy, it was unfair for Campbell Live not to do a better job of conveying the explanation Tower did give.
So I think it the programme was unfair. But given that Tower then continued to refuse to come on the show and explain its position, I don’t think any penalty was called for, beyond upholding that aspect of the complaint.
Topics: Broadcasting Standards Authority | 45 Comments »
John Key backs MMP
November 25, 2011
I think you should vote to retain MMP on Saturday. But don’t listen to me. Listen to John Key. “Every vote counts,” he said this morning. He’s right, and it’s one of the best features of MMP.
It’s not true (or not nearly as true) for any of the other voting systems. It’s not really true of SM, the system Key says he prefers.
Key has also been constantly telling us that he has delivered, and will deliver “strong, stable government”. Of course, that’s under MMP.
But the refrain from the anti-MMP crowd is that MMP is a recipe for instability.
Of course, MMP has also delivered a much more diverse Parliament. It has forced them to discuss and compromise over issues. Debates are informed by a good range of competing political viewpoints. Politics is more interesting. Parliament is no longer the lapdog of the executive.
And it’s fairer. Looking back on those elections where parties governed without majority support (or even an arrangement backed by parties with majority support) or got 20% of the vote and only two MPs…. it seems ridiculous that anyone would want to turn back the clock. I’m going to be ticking STV with my second referendum vote. It’s complicated, but generally fair.
I love having two votes – one for the party I like and one for the person I want to be able to turn to if I have a problem that a politician might be able to help with.
Of course, there are now no wasted votes in the safe electorates. As Key says, “Every vote counts”. He’ll go far, that fellow.
Topics: General | 2 Comments »
No declaration after tea
November 23, 2011
Winkelmann J has declined to grant a declaration that the famous Epsom cuppa was not a private conversation.
Does that mean it was a private conversation? No, it just means that she’s declined to rule on the issue right now.
She gives several reasons. First, there are still facts in dispute, and she wan’t sure she had adequate evidence to determine them. She says this despite watching footage from the four (!) TV3 cameras at the event, and receiving a lengthy description of events from Ambrose and another from the PM’s chief of staff. There don’t seem to be many facts actually in dispute, and Winkelmann J barely mentions any. She does say that TV3 and Ambrose seem to be at odds about what the media were told before the event, but this seems fairly inconsequential. She also notes that she hasn’t heard from many of the witnesses to the cuppa, who may well have something to add to the video evidence. She says the police haven’t finished gathering evidence. She didn’t want to “conduct a mini-trial” to sort out factual issues… this is a far cry, she says, from a ruling on the interpretation of a statute when the facts are clear.
Second, she doesn’t want to gazump the police investigation. Ambrose’s lawyer seems to have submitted that (a) this case has nothing to do with the police investigation and (b) that if the declaration was granted, it would save the police time (presumably because they could end the investigation, one element of the crime having been definitively disproved). Winkelmann decided it would be inappropriate for a civil court to influence – and perhaps end – a criminal police investigation and consequent prosecution decisions. (Surely everyone in the courtroom must have realised that a declaration from her would have effectively ended the investigation).
Ambrose and the media strongly urged her to consider the public interest in the taped material, with the election looming. Ambrose and the media need clarity about what can be published. That’s a reason for exercising her power to issue a declaration, they argued. But the judge disagreed. Any declaration would have to be so hedged about with qualifiers (“on the basis of the evidence that was before me” etc) that it would still leave confusion about what could be published. (I’m really not so sure about that. A judicial indication – even a hedged one – would be a licence to the media to publish, because the police could hardly prove, after that, that the media knew the material was illegally intercepted.)
None of this is really a surprise. I don’t think the judge can be criticised for the ruling, even if another judge may have taken a bolder approach.
What I was really interested in was any hint from the judge that there’s at least serious doubt about whether the conversation was private. If she’d dropped that hint, the media could probably have published. Again: if a judge says it’s a hard call, or indicates a leaning toward considering the conversation public, then it’s hard to see a prosecution against the media for publishing it.
I suppose you can try to draw out some indication in this judgment that the issue is seriously contested. That there’s doubt. But it’s hard. The judge scrupulously avoids making any finding. She explicitly says she hasn’t formed a view about whether the conversation is private. If that indicates some doubt – it also indicates the possibility of criminality.
So I can’t see anything that helps the media here. In fact, the opposite may be the case, because in traversing the evidence for each side, the judge describes factors that point toward the private nature of the conversation:
— The Chief of Staff says, after the public bit, “Thanks guys, why don’t we just leave them to have a chat?”
— Key says “Have a chat, yeah, thank you. Get yourselves a cup of tea, enjoy the moment”.
— Mr Ambrose accepts that he heard the instruction to leave.
— The Chief of Staff saw a mic on the table and said “Ah, we’re not leaving microphones here, thank you”.
— Diplomatic protection squad members seem positioned to create a sort of cordon.
It’s looking less and less likely that the actual content of the tea tape will see the light of day before the election.
Topics: General | 51 Comments »
Focusing on the issues
November 21, 2011
I know I’m straying from media law stuff again. Let’s call it general media ethics. But I’m staggered that we can have an election campaign without discussing the ideas in two recent and significant New Zealand books: Nicky Hager’s “Other People’s Wars”, which accuses successive governments of being much more deeply involved in the conflicts in Iraq and Afghanistan than we were told, and Roger Brooking’s “Flying Blind”, which exposes our current approach to penal policy as hopelessly ineffective and cogently explains that if we don’t take serious steps to address the drug, alcohol and literacy problems of our offenders, crime will just keep cycling along.
Topics: Media ethics | 1 Comment »
The worm returns
November 21, 2011
I see TV3 plan to use the worm again on tonight’s debate. Sigh. Here’s a column I wrote opposing the worm back in 2005. I think it still holds true.
Topics: General | 1 Comment »
Memo to John Key
November 21, 2011
Stop talking about Winston Peters. At all. The 5% of New Zealand who might vote for him are not amenable to rational persuasion. They vote for him if they are reminded about him because he is in the news.
Topics: General | 1 Comment »
Hosking lays down the law
November 20, 2011
At the end of his interview about cuppagate on RNZ’s MediaWatch programme today, Mike Hosking tells us that
I think I have a pretty good appreciation of privacy law in this country.
If he means, he’s got a pretty good understanding of those laws, I think the rest of the interview demonstrates that he’s wrong.
Here’s how he describes the relevant Crimes Act provisions:
The rule is very clear and the law is very clear. Unless you have an understanding that you’re being recorded then it’s illegal to record you – that’s all part of the Crimes Act… if you go and record somebody without them knowing it, that’s against the law, and if you go and publish it without their consent, that’s against the law as well. And so the fact that there are a lot of people standing outside the window staring at you doesn’t negate your right to privacy to have what you would believe to be a private conversation…
It’s not a very accurate summary of the law. The application of the law isn’t especially clear – Andrew Geddis, Dean Knight and I have been arguing about it all week. It’s not “illegal to record” someone who doesn’t know they’re being recorded. For a start, a party to the conversation can secretly record it and not breach the Crimes Act. More relevantly, that recording must be intentional. That’s very much a live issue here, since Bradley Ambrose adamantly denies it.
In addition, it’s not illegal to publish without consent. It must be proved that the publisher knew that it was illegally intercepted. If it was unintentional, the recording was legal and anyone can disclose it without breaching the Crimes Act. If the publisher genuinely thinks the cameraman didn’t intend to intercept it, it’s hard to see how the publisher can be convicted.
Finally, much of the debate turns on whether Key and Banks ought reasonably to have expected that no-one could overhear them. The answer to that is not straightforward, whatever Hosking thinks. I still tend toward Hosking’s view – that it’s possible that the two could have reasonably expected particular parts of their conversation not to be overheard. But there are several other lawyers who disagree. At best, it’s arguable.
So when Hosking goes on to say that he’s not concerned about the media search warrants because “it’s against the law”, it doesn’t make much sense to me. Especially after he says “let’s assume the cameraman did it accidentally”. If that’s so, then there’s no crime. End of story. What’s more, anyone can publish the tape. But no, Hosking says that the editor should have told Ambrose to erase the tape “because you recorded it illegally”. Nope. Not if we’re relying on your assumption that it was accidental. Nor was it against the law if a court ultimately finds that there was a reasonable doubt about whether the parties to the conversation ought not to reasonably expect that it could be intercepted.
The search warrants are presumably being used to look for evidence of Ambrose’s intent. Some of that evidence may have been confidential statements Ambrose made to radio and television producers. Does that concern Hosking?
Hosking is very concerned about the precedent that’s created. But again, if it’s an accidental recording, it’s not a very dangerous precedent. It’s not going to happen often. And there’s still the tort of privacy, broadcasting standards and Press Council principles in the background. If it wasn’t an accidental recording and the media were to decide to publish because, after diligent inquiry, they thought it was accidental then that’s not such a terrible precedent either. That could easily have happened last Sunday.
Hosking goes on to note that the law hasn’t yet been broken. But on his argument, it had. He’d just told us that the law was clear and the recording was illegal. Perhaps he means that the media haven’t broken the law. But if Winston Peters accurately summarised what was on the tape, then there’s an argument that both he and the media (in publishing Peters’ comments) broke the law by knowingly publishing an illegally intercepted communication. (An argument. I put it no higher than that because, as we’ve seen, it would have to be proved that Winston and the media knew that the tape recording was illegal, and it’s not even clear that it was).
[Update: Hosking also said that he wouldn’t have broadcast the tape unless it showed that some law had been broken. There are several problems with that. First, that’s not a defence. To be fair, I think Hosking appreciated that; he was saying there are just times when you have to publish and be damned. Second, it’s not always going to be very clear whether a conversation is evidence of a breach of the law. What if Key was describing actions that may or may not amount to a breach of our electoral spending laws? Does Hosking get to decide? Finally, I note this distinction justifies the broadcast of an illegally recorded teacup conversation in which a minor politician says she once smoked dope, but not a conversation in which the PM says he is lying to the public about his asset sales policy.]
Hosking also praises Ambrose for going to court because “you’ll get some sort of ruling on whether it’s a public or a private conversation.” In fact, there’s no guarantee that a High Court judge will exercise his or her discretion to grant a declaration, as Dean Knight has explained.
I’m concerned that the police have taken a similar attitude. In a statement to Radio NZ, the police said:
Police considered that as the conversation had been unlawfully recorded it was necessary to advise the media at the earliest opportunity that to disclose a private conversation is potentially an offence under s 216C of the Crimes Act 1961.
This seems to suggest the police have made up their minds. I don’t think they have. The advice they gave to the media only talks of a potential offence, as does the statement I’ve quoted in an earlier paragraph. Still, it’s very sloppy language. The whole point of an investigation is to determine whether the recording was unlawful.
Topics: Journalism and criminal law, Media ethics | 26,305 Comments »
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