Teapot tape: Herald's legal advice probably on target

Steven Price is a Wellington barrister and adjunct lecturer at Victoria University, specialising in media law. He blogs at Media Law Journal.

John Key’s cunning plan to send a signal to the troops by sitting down for a cuppa with Act’s John Banks may have come undone by another sneaky device.

It seems that the conversation was recorded and may contain “game-changing” comments, according to the Herald on Sunday.

The paper says a freelance cameraman was stopped from retrieiving his gear shortly before the cup of tea summit, and when he collected it afterwards, he found to his surprise it had been recording the whole eight-minute conversation.

The HOS says its legal advice said pubishing the contents would not be illegal, but the paper decided to ask for consent from the participants.

When Key refused, the paper decided, out of ethics, not to publish the private conversation - though it did provide some general information about what was discussed, enough to whet our appetite and suggest there was public interest in the comments.

Banks, Key and the offending pouch (front, centre). Photo: Matt Nippert.

What is the law here?
If this account is to be accepted, I think the HOS’s legal advice is probably on target. It’s a crime to intentionally intercept a private communication using an interception device.

A private communication is one that is made under circumstances that may reasonably taken to indicate that any party to it desires it remain private, but:

does not include such a communication occurring in circumstances in which any party ought reasonably to expect that the communication may be intercepted by some other person not having the express or implied consent of any party to do so.

Although a battalion of journalists were about a metre away behind a window, let’s assume that Key and Banks couldn’t reasonably expect it to be overheard, and that the circumstances indicate that both desired their conversation to remain private.

The only issue, then, is whether the interception was intentional. On the paper’s account, it was inadvertent. In fact, it says, the cameraman tried to retrieve his recorder before the conversation but was stopped by Key’s security folk, and didn’t know that the recording was even happening.

Room for doubt about cameraman's story?
Now, I don’t know anything more than has been reported. But I wonder whether there is room for doubt about whether the cameraman genuinely didn’t know that the conversation was being recorded.

If it could be established that he did know, then he has committed an offence. The paper would then also commit an offence if it published the contents of the communication without the consent of one of the parties (interestingly it only needs the consent of one).

On the other hand, if he didn’t know, then he’s in the clear and the paper can publish at whim and not breach the criminal law.

Civil liability
But might there be civil liability for doing so? There are two possibilities here: breach of confidence and invasion of privacy. Breach of confidence can be established if information is imparted (Key to Banks and vice versa) in circumstances importing an obligation of confidence. That’s probably the case here. That confidence then binds third parties into whose hands the confidential material falls if they know it’s confidential.

That’s also the case here. The publication of the conversation is prima facie a breach of confidence.

Invasion of privacy can be established where private facts are disclosed in a highly offensive way and in breach of a reasonable expectation of privacy.

That’s a bit more questionable here. But if a confession of murder can be a private fact (in the Rogers case) then probably the contents of the conversation here are private facts too, even though they don’t really relate to intimate and sensitive matters. There probably is a reasonable expectation of privacy. It’s at least arguable that publishing would be highly offensive.

Public interest defence
But that’s not the end of the story. In both torts, there’s a defence of public interest.

If the material disclosed reveals a matter of legitimate public concern, then no tort has been committed. That would certainly be the case if Key or Banks said anything inconsistent with what the public was being told, and probably also if it revealed any significant matter that the public wasn’t being told. It’s possible that some of the conversation is in the public interest and some of it isn’t.

Privacy Act does not apply to news-gathering
A couple of final matters. The Privacy Act does regulate the collection of information, but doesn’t apply to the news media in its news-gathering activities.

Given that the collection of this information was said to be inadvertent, there might be an argument that the Privacy Act applies, and that, for example, the collection of the information was unfair, unlawful or unreasonably intrusive. The Act isn’t enforceable in the courts and a complaint would have to be made to the Privacy Commissioner.

There’s also the possibility of a complaint to the Press Council. I doubt that this could apply to the actions of the cameraman. But it certainly could apply to the actions of the paper in deciding what to publish and what to hold back. The key issues here are the requirements of fairness and privacy. The privacy principle states:

Everyone is normally entitled to privacy of person, space and personal information, and these rights should be respected by publications. Nevertheless the right of privacy should not interfere with publication of significant matters of public record or public interest.

It’s arguable that these provisons have already been breached. Is there really public interest in revealing that the men discussed “Act’s future and its leadership, New Zealand First’s electoral chances and the percentage of the vote the National Party would secure”? Is it fair to hint at further explosive material and put pressure on the politicians to give consent?

Still, I’m inclined to think that the Press Council will find that the paper has so far managed its ethical duties responsibly.

In any event, it will be fascinating to see how this pans out.

In cases like this, the people in the conversations can easily be accused, perhaps unfairly, of having “something to hide”.

The usual PR response is to get it out into the public domain and deal with it quickly, rather than let it build up a head of steam.

And then attack the messenger.