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Picking up the Bill II

By Steven | August 6, 2008

So now John Key is accusing Labour of being behind the “bugging” of conversations at the cocktail party. He suggested on Morning Report this morning that the repeated questions put to Bill English about Kiwibank sounded like someone was trying to set him up.

(Key is also throwing in the suggestion that Labour was behind Nicky Hager’s acquisition of National Party emails. He doesn’t supply any evidence of this. That would be because Hager’s material was leaked from within National.)

Still, my previous post left an open question. What if Labour activists had bailed up English and secretly recorded the conversation? I noted that they wouldn’t then be “intercepting” the conversation, so wouldn’t have broken that law. I suspected that there would be public interest defences to any breach of confidence or privacy action, against them or the media.

But was the behaviour lawful? I rather doubt it. I’d need to know more about the openness of the venue, the restrictiveness of the guest list, how they got in, and what (if anything) they told anyone or lead them to believe, in order to get in. It seems likely that along the way, the infiltrators (if that’s what happened) committed the torts of deceit and trespass. There are no public interest defences to those.

The really interesting question: would the courts have granted an injunction to restrain the media from publishing the material if National got wind of it ahead of time? They would probably restrain material obtained during a trespass if the process of gathering it was “unconscionable”. Was this? Maybe. They would probably restrain material allegedly obtained in breach of confidence, at least in the interim, so that issues could be fully argued – in particular the public interest defence. That “interim” period could stretch on for quite a while…

[PS: Since the Privacy Act doesn’t apply to news media in their news-gathering activities, I tend to overlook it. But since those involved in the first-hand gathering of the recorded material here probably weren’t news media folk, the Privacy Act does apply to them. The relevant principle is IPP 4 – information should not be gathered using means that are unlawful, unfair or unreasonably intrusive. Again, lots will depend on the circumstances. But most people wouldn’t expect to have their cocktail party conversations recorded. On the face of it there seem to be grounds for a complaint to the Privacy Commissioner against whoever did the gathering.]

Topics: Breach of confidence, Privacy tort, Trespass | 52 Comments »

52 Responses to “Picking up the Bill II”

  1. ross Says:
    August 6th, 2008 at 2:02 pm

    > That would be because Hager’s material was leaked from within National.

    You mean allegedly leaked, right? Or do you have first hand knowledge that it was leaked?

  2. Steven Says:
    August 6th, 2008 at 2:36 pm

    Well, I’m going on the fact that Hager says the material was provided to him by someone authorised to access it, but not authorised to release it to him; the fact that this is what National describes as a leak when it’s them who receives it; the fact that after a lengthy investigation the police found no evidence of a crime; and the fact that the experts brought in to examine National’s computers found no trace of any hacking.

  3. ross Says:
    August 6th, 2008 at 4:27 pm

    Steven,

    Yes, it was a “lengthy” investigation. But, I would note the following:

    When Don Brash was briefed by police about the progress of their investigation in July 2007 – about 10 months after he had complained to police – they advised him that at stage they had not questioned Hager. Police apparently advised Brash that the reason they had not questioned Hager was because of Apec. I’m a little unsure why Apec should have posed a problem given that it was being held in Sydney! And from all accounts, Hager was not terribly helpful when he was questioned.

    The cop leading the investigation was Harry Quinn. “How the thefts occurred still largely remains a mystery,” he said. “We have eliminated the suggestion that an external ‘computer hacker’ had breached the computer security within Parliament but there remains many other potential ways in which the crimes could have occurred.” Notice that he doesn’t refer to any leaks but uses the term “thefts” and “crimes”. I do realise that police are wont to using such terms even when alleged crimes have not been proven. But to say that the emails were leaked seems somewhat dubious.

  4. Graeme Edgeler Says:
    August 7th, 2008 at 1:40 am

    Well, I’m going on the fact that … after a lengthy investigation the police found no evidence of a crime; and the fact that the experts brought in to examine National’s computers found no trace of any hacking.

    No hacking – absolutely. But the police release is worth a re-read – it’s the type of document you want to quote each reference to theft from, but then you realise you’d be quoting the whole thing – http://www.scoop.co.nz/stories/PO0804/S00244.htm – I’ll satisfy myself with one. There was this:

    During the initial stages of the enquiry, police were very concerned that Parliamentary Services computer systems had been breached by some external attack. But the investigation has concluded that no unauthorised or unlawful breach took place.

    but there was also this:

    The investigation established that e-mails created between October 2003 and November 2005 had been stolen from the ownership of Dr Brash but found no evidence of any thefts since November 2005.

    Quite how you get from the police statement that “The investigation established that e-mails created between October 2003 and November 2005 had been stolen…” to “after a lengthy investigation the police found no evidence of a crime”, I’m not sure.

  5. Steven Says:
    August 7th, 2008 at 10:41 am

    Graeme: The above discussion is about whether a person to whom information is leaked is guilty of a crime. While the police do talk loosely about theft, they’re clearly referring to the fact that the emails were taken (another word they use interchangeably with stolen) by someone who didn’t have the authority to provide them to Nicky. But Nicky has said that all along. At no point do the police suggest there’s any evidence of a crime committed by Nicky. If you want to criticise Nicky, then I think you need to give equal time to some criticism of almost every journalist and many politicians of all stripes who routinely benefit from the leaks of others who may be committing crimes in supplying them the information.

    Ross: Just exactly how helpful do you expect a journalist to be when asked about confidential sources?

  6. Graeme Edgeler Says:
    August 7th, 2008 at 11:58 am

    But Nicky has said that all along. At no point do the police suggest there’s any evidence of a crime committed by Nicky.

    Absolutely. I don’t think I’ve ever suggested Nicky committed a crime. If I was criticising anyone it wasn’t Nicky, but you 🙂

    Bascially, I think there’s a difference between saying “after a lengthy investigation the police found no evidence of a crime” and “after a lengthy investigation the police found no evidence of a crime committed by Nicky”.

    The way I’d read the former, it was inaccurate, but I think I can see now that your were pretty much implying the three extra words.

  7. ross Says:
    August 7th, 2008 at 6:31 pm

    Steven/Graeme,

    But if the emails were stolen and were passed on to Nicky by the thief, is it not a crime to knowingly receive (and benefit from) stolen property? Without the emails, Nicky’s book would’ve looked pretty sick.

    And, yes, I agree that Nicky is unlikely to be terribly helpful about revealing his sources. But you could also say that if he knows who the thief is, he would be acting ethically if he dobbed in the culprit?

  8. Russell Brown Says:
    August 11th, 2008 at 8:30 am

    Absolutely. I don’t think I’ve ever suggested Nicky committed a crime.

    Interesting, John Key did that several times last week. He accused Hager of “breaking in” to National’s Parliamentary email — a criminal offence — and then of doing so under Helen Clark’s instruction. That was outrageous.

    Interestingly, the other running political story, that around Winston Peters, seems almost entirely driven by “stolen” documents, although I can’t recall hearing anyone, even Peters, say so.

  9. Russell Brown Says:
    August 11th, 2008 at 8:31 am

    Absolutely. I don’t think I’ve ever suggested Nicky committed a crime.

    Interestingly, John Key did that several times last week. He accused Hager of “breaking in” to National’s Parliamentary email — a criminal offence — and then of doing so under Helen Clark’s instruction. That was outrageous.

    Interestingly, the other running political story, that around Winston Peters, seems almost entirely driven by “stolen” documents, although I can’t recall hearing anyone, even Peters, say so.

  10. julian macdonald Says:
    August 15th, 2008 at 9:52 pm

    On another point, if the journalist who initially wrote the article based his story on documents he received while working for another media organisation, are the documents doubly stolen?

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