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Herald's John & Bronagh holiday pics a privacy invasion without news merit?

Privacy Commissioner John Edwards on the Herald's "exclusive." Was it "news activity", providing the newspaper with exception from the Privacy Act?

Tue, 10 Jan 2017

The NZ Herald's exclusive paparazzi pics of John and Bronagh on holiday in Hawaii appear, on the face of things, to be a privacy invasion without any news merit  — "news activity" being a criterion for a newspaper to be exempt from the Privacy Act.

They capture the former PM reaching for a cup of coffee, squinting at a stack of brochures and standing around while his car fills with petrol.

None of it seems in the national interest (or indeed, of any interest; those intent on seeing John Key at leisure photos would be better off hitting his son's Instagram account. The story ends with the line "Key could not be reached for comment" though it's not clear what comment he could make; perhaps: "Yes, I did stand there as my car filled with petrol.")

The Herald bought the photos from AKM-GSI, a celebrity photo agency based in LA.

I asked Privacy Commissioner if the fact the sneaky photos were taken in the US, by a US company, would hinder the Keys' chances of making a complaint to his office, should they choose to go that route.

"The bigger obstacle the Keys would face would be the news media exemption from the Privacy Act. The Herald would claim that it received and published the photos in accordance with its 'news activity'," Mr Edwards replied.

The Act defines news activity as:

(a) the gathering of news, or the preparation or compiling of articles or programmes of or concerning news, observations on news, or current affairs, for the purposes of dissemination to the public or any section of the public:

(b) the dissemination, to the public or any section of the public, of any article or programme of or concerning—

(i) news:

(ii) observations on news:

(iii) current affairs

"In terms of going after the photographers, or the agencies that supplied security cam footage, it would depend on the laws applying in Hawaii, which I am not familiar with, but they would likely come up against the very strong First Amendment protection in the US," the Commissioner said.

"It would be open to the Keys to make a complaint to my office about the Herald, and to advance the position that you suggest, that is, there is no news merit in the story. I would need to approach that with an open mind," he says.

"However, if 'news merit' were the criteria for the exemption, I suspect a great deal more of the NZ media would be opened to my jurisdiction than was intended by the legislators in enacting the exemption."

An alternative option for them would be to use the self-regulatory complaint mechanism provided by the Press Council, the Commissioner added.

Poor comparison to a simpler time
"When the John Key holiday pap snaps made their way into my Twitter feed the first thing that sprang to mind, of course, was the iconic 1970s photograph of Rob Muldoon mowing the lawn at his bach," social media marketing expert Vaughn Davis tells NBR.

"Even though it’s clearly posed he's sweating like a bastard, his puku is hanging over his Stubbies and his lawn (mostly kikuyu, I reckon) is a shambles."

He adds, "I don’t know the back-story, but I’m guessing it cost the paper that took it nothing more than some gas for the staff photographer’s Morris 1800 and maybe a pie at Orewa on the way back to the office. Those Hawaii pics probably cost a bit more than that. I doubt we’ll still be looking at them in 40 years, though."


Last night, after Vaughn Davis tweeted that pic of Muldoon mowing his lawn, Herald columnist professional Millennial Lizzie Marvelly replied:

Feeling old yet?

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Herald's John & Bronagh holiday pics a privacy invasion without news merit?