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Of sneaky devices

By Steven | November 13, 2011

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 8 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.

What’s 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. 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.

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.

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.

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.

Topics: Breach of confidence, General, Media ethics, Press Council, Privacy Act, Privacy tort | 15 Comments »

15 Responses to “Of sneaky devices”

  1. Dylan Reeve Says:
    November 13th, 2011 at 9:24 pm

    If it came down to it I think it would be incredibly difficult for the Herald to argue that it was accidental as they state.

    Given that the cameraman apparently knew before the conversation took place that the equipment was on the table (as per his claimed attempt to collect it at the start) then it’s incredibly difficult to claim he then went on to record for nearly 9 minutes (while outside presumably) without being aware the audio was being transmitted to his camera.

    Had he not realised until after the conversation that his gear had been left on the table then his claim would be much more plausible.

  2. ross Says:
    November 14th, 2011 at 2:02 pm

    Steven,

    The editor of the HoS, Bryce Johns, says that he has “disdain” for the Prime Minister in not releasing the tape. He also says there’s material on the tape which would cause the PM embarrassment, though he acknowledges that it’s not of Watergate proportions.

    http://www.stuff.co.nz/national/politics/5960522/Tea-tape-embarrassing-for-PM

  3. keithng Says:
    November 14th, 2011 at 6:01 pm

    Pretty dubious about how long the “inadvertent” line of argument will last.

    Matt Nippert from the NBR got a photo of the mic:

    http://www.nbr.co.nz/article/key-lay-police-complaint-against-herald-sunday-rh-104302

    I think the cameraman will have a hard time explaining why he would leave a live mic inside its pouch when he placed it, and that it was anything but an attempt at concealment.

  4. metanarratives Says:
    November 14th, 2011 at 6:26 pm

    Is there a role for the OIA here?

    Put an OIA request asking what information was conveyed at the meeting between the Prime Minister and John Banks on such and such a date.

    Did the PM meet in his capacity as the PM though?
    OIA captures unwritten information.

  5. Graeme Edgeler Says:
    November 14th, 2011 at 8:00 pm

    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. 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.

    I’m not sure that’s true. It’s about intention, not knowledge. Consider the following scenario:

    a camera operator places a recording device on a table for what he thinks is going to be a public meeting, with pictures and statements from the Prime Minister. The recording device is recording. To his surprise, he and other media are escorted away: it’s not going to be a public meeting, but a private one. He knows the recording device is recording, and knows it is about to record a private conversation, but he has never had the intention of doing so.

    In short, is the mens rea of the offence capable of being met by omission? And if he tried to retrieve his bag, and was rebuffed, can he even be held criminally responsible for an omission even if that’s legally possible in some instances?

  6. Steven Says:
    November 14th, 2011 at 9:57 pm

    Metanarratives: I very much doubt that this meeting was in the capacity as PM rather than as leader of National. Besides, as you probably know, it’s very hard to get non-written information at the best of times.

    Graeme: I can see your point. It might be like those Crimes lecture problems where someone unwittingly drives onto a police officer’s foot, and then when the police officer objects and tells him to move, he doesn’t. At the time when he committed the act, he didn’t have the mens rea.

    Still, I think it’s a stretch. For one thing, it doesn’t seem that the cameraman actually made any effort to tell the staff that there was a live mic to be retrieved. And he later claimed (or at least the HOS did) that he didn’t know it was on.

    So his argument would be:
    “I knew it was on at the beginning, but thought it would be a public event, then when I knew it was to be private, I left it there, didn’t tell anyone, and afterward lied about it… so it can’t be said I intentionally intercepted the private communication.” The argument is still there, but I wouldn’t want to have to run it.

  7. cameragod Says:
    November 15th, 2011 at 7:27 am

    I just have a problem with the sequence of events. There is a group press conference then the media are asked to leave. So the cameraman gets his mic puts it into a travel bag, switched on, and then leaves “forgetting” the mic in its bag. Then he records non stop for 8min on his camera outside so there is a continuous sound of the meeting. Which he can hear in his headphones and see the coversation in the viewfinder meters. All aparantly by accident?
    It’s not very belivible.

  8. Gordon Campbell » Blog Archive » Gordon Campbell on the Banks/Key taping saga Says:
    November 15th, 2011 at 9:40 am

    […] together, the excellent contributions yesterday by lawyers Steven Price here and by Andrew Geddis here on Pundit make it seem highly unlikely that the taping could be proven in […]

  9. Stevef Says:
    November 15th, 2011 at 9:47 am

    Steven,

    Evidently this matter is now in the hands of the police but I’ll post my two bob’s worth anyway.
    As Graeme alluded above intent could possibly be argued from the moment the cameraman was excluded from the room and became aware that there was going to be a so called private component to the John boy’s coffee break. His microphone was on the table, he knew it was left behind and he knew it was switched on. He thinks
    ” By jove here’s an opportunity I didn’t anticipate. Let’s just keep mum and see what happens.” Bingo, intent.

    Or he could argue,
    ” Well I was ejected in a hurry, I was surrounded by confusion and left my mike behind on the table. We normally activate these by remote control and I thought it was switched off. Boy did I get a surprise when I went to switch on my camera again and found a twenty minute recording I didn’t have any idea was there.”
    So, yes, I see why you wouldn’t want to run the argument unless of course you were an electronics boffin in your spare time.

    Steve

  10. Dylan Reeve Says:
    November 15th, 2011 at 9:59 am

    Looking at Section 216A of the Crimes Act – can the conversation even be consider Private Communication for the purposes of the following sections?

    Specifically it states that private communication does not include situations where any party should reasonably expect their communication may be overheard. It’s say that you’d reasonably assume that members of the public and staff in a cafe might be able to overhear you.

  11. Gordon Campbell » Blog Archive » On the Banks/Key taping saga Says:
    November 16th, 2011 at 3:12 pm

    […] together, the excellent contributions yesterday by lawyers Steven Price here and by Andrew Geddis here on Pundit make it seem highly unlikely that the taping could be proven […]

  12. Gordon Campbell » Blog Archive » Gordon Campbell on politicians and privacy Says:
    November 18th, 2011 at 9:27 am

    […] thanks to the efforts of legal commentators such as Andrew Geddis on Pundit and Steven Price on his Media Law Journal blog it seems likely that there are sufficient extenuating circumstances to conclude that the taping […]

  13. Community.Scoop » Gordon Campbell on politicians and privacy Says:
    February 2nd, 2012 at 6:19 pm

    […] thanks to the efforts of legal commentators such as Andrew Geddis on Pundit and Steven Price on his Media Law Journal blog it seems likely that there are sufficient extenuating circumstances to conclude that the taping […]

  14. Community Scoop » Gordon Campbell on the Banks/Key taping saga Says:
    February 18th, 2012 at 1:03 am

    […] together, the excellent contributions yesterday by lawyers Steven Price here and by Andrew Geddis here on Pundit make it seem highly unlikely that the taping could be proven in […]

  15. Community Scoop » Gordon Campbell on politicians and privacy Says:
    February 18th, 2012 at 1:09 am

    […] thanks to the efforts of legal commentators such as Andrew Geddis on Pundit and Steven Price on his Media Law Journal blog it seems likely that there are sufficient extenuating circumstances to conclude that the taping […]

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