By Steven | November 15, 2011
I see Andrew Geddis has weighed in on Teapotgate (has anyone else called it that yet? Am I first?)
He (and others) see another possible defence in the argument that the occasion was so inherently public and the wodge of journalists so close by that Key and Banks “ought reasonably to [have expected] that the communication may be intercepted by some other person not having the express or implied consent of any party to do so.”
Sure, it’s an argument. But I don’t know that it carries much water. Here’s the best evidence: nobody did overhear them, did they? Everyone had been ushered away and Key and Banks spoke quietly enough that no-one they didn’t want to hear could hear. There do not seem to have been other third parties close by, such as diners on adjacent tables. The fact that the event was, generally, spectacularly public does not mean that they could not reasonably expect those particular comments wouldn’t be overheard.
I don’t think I agree with Andrew’s argument that it wasn’t private because the PM’s minders had no right to usher people out. That may be true, depending on whether there was some arrangement with the cafe owners. If so, it may mean Banks and Key couldn’t reasonably expect that some journalists wouldn’t wander back in and try to ask questions or take a seat at a neighbouring table, at which point the politicians could no longer reasonably expect not to be overheard. But short of that, I’m inclined to think this element is made out.
Andrew points to Mary Wilson’s interview with the cameraman. As Andrew says, his account may make it difficult to prove that the recording was intentional. But the interview oddly avoids some central issues: does he remember switching the mic on? At what point? Did he know it was on during the private part of the conversation? Had he simply forgotten? Could he tell from his camera that it was recording? Was there a flashing light or something? The HOS reported that he was “stopped by Key’s security staff from recovering the recording device” before the conversation. That seems a bit at odds with his account that he was hurrying to stake out a prime position outside having missed the good shot inside.
Also intriguing is Graeme Edgeler’s suggestion that the cameraman can’t be said to have intentionally intercepted a private communication because when he placed the mic down - which was the act of interception of the communication - it was a public conversation. He made no other positive act after that, and on one account even tried to retrieve the mic and was stopped. For him to be convicted, it will need to be shown that the action of interception could be a continuous one. Still, I’m not sure how receptive a judge would be to this argument.
So there may be enough doubt about the criminality of the recording to make the media leery of publishing without consent. Which so far isn’t forthcoming. John Key says that the conversation was entirely “bland” but that he wouldn’t give in to pressure to allow publication of the fruits of a criminal act. Today it might be him, he says, but tomorrow it might be you.
He has a point, but it’s not a very good one. This is about a conversation held as part of a piece of political theatre that several political commentators have said may be significant for the public to know about, and Key has said is anodyne. This is not really about what might happen to the ordinary punter in different circumstances.
A final point. Some have suggested that the HOS, having made its original decision on ethical grounds, can’t really change its mind now. There’s something in that. But it is now possible for the HOS or other paper to say that the circumstances have changed. Key has described the conversation as bland. If it’s not, the public now have an interest in knowing that, if only to evaluate Key’s truthiness. In addition, it might be said that speculation about the contents of the conversation mean that (a) it’s already in the public domain or (b) it needs to be put in the public domain to correct misimpressions. A veritable feast of public interest arguments!
Public interest could save them from a civil lawsuit in breach of confidence or privacy, or from a Press Council complaint. But it’s not a defence to a criminal charge.
Topics: General |
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