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Of sneaky devices 2

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 | 26 Comments »

26 Responses to “Of sneaky devices 2”

  1. Andrew Geddis Says:
    November 15th, 2011 at 2:52 pm

    “Teapotgate”! Surely “Remote Audio Transmitting Device Contained in a Bag Beside Politicians gate”.

    Couple of points. First …

    “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.”

    True. But look at this image (and video) of the meeting – http://www.stuff.co.nz/national/politics/campaign-trail/5960522/Key-to-complain-over-secret-tea-tape. You can see TV microphones pushed right up against the window beside the two individuals in an attempt to catch their words. You can see their lips moving in conversation. Now, if one of these mics wielded in plain sight outside the cafe HAD caught the words through the glass (whether with or without digital amplification), or if a news organisation hired a lipreader to decipher what the two are saying (as here: http://seattletimes.nwsource.com/html/entertainment/2014910205_apeubritainroyalweddinglipreader.html), would an offence have been committed? And if Key/Banks knowingly ran the risk that their comments may have become public through these means, then why does it matter if they became public through another one they didn’t notice (i.e. the transmitter placed beside them)? After all, to take a conversation outside of a “private communication”, you don’t have to know HOW you are being listened to … just that you MAY be being listened to.

    Second, with respect to: “Andrew’s argument that it wasn’t private because the PM’s minders had no right to usher people out.” My claim is to do with the nature of the event and expectations of privacy around it (which is what the relevant section is there to protect). Key seems to think that it went from being an open access media event where audio recording could take place to a limited access one (and a “private communication”), just because his media folks said so. But can a politician convert an unrestricted access event held in a public place into a private one that no-one is allowed to hear simply by fiat? Is it a reasonable assumption on his part that the media will obey his wishes? Ought he not to be aware that (through accident or deliberate ploy) recording will continue even after he thinks it has been stopped.

    Or – lets imagine another situation. Key is being interviewed on TV by Guyon Espiner. He answers the questions. Then Guyon says, “Thank you very much”. Key asks “Are we done – taping is finished?” Guyon says “Yes” … but the camerman keeps the audio feed live (unbeknownst to Guyon and Key). Key then tells Guyon “You realise the day after the election, we begin exterminating the Mormons.”

    Is the camerman guilty of a breach of s.216B, and will TVNZ be guilty under s.216C when they broadcast this? If not, then how is it different to what happened in Newmarket?

  2. Steven Says:
    November 15th, 2011 at 4:15 pm

    First point: Maybe. It might depend on what they said and when. Did they only say anything “game-changing” when there weren’t obvious microphones pressed up against the window? (Was it double-glazed? Had they been told the mics wouldn’t go through the glass?) But in the end, it seems they actually thought they couldn’t be recorded by those microphones, and it seems they were right about that. That goes some way to showing that the belief was reasonable.

    I’m not convinced that the possibility of a lip-reader changes anything. The issue boils down to whether they ought reasonably to expect not to be overheard (which on my reading includes lipreading). And absent any evidence that it’s for the media to hire lipreaders, it’s still reasonable to expect not to be overheard.

    I’d add that the possible-presence-of-a-lipreader argument would rather surprisingly constrain the scope of the protection the section offers. Is a conversation no longer private whenever lips are visible? I suppose you might reply that the circumstances here (a much ballyhooed political summit) mean that the possibility of a lipreader or sensitive listening technology isn’t so outlandish.

    I might also add that I’m pretty sure lipreaders aren’t quite as good as they’re usually given credit for. My understanding is that they can usually only pick up a fraction of what’s said. But that’s well beyond the point, and in fact this misperception probably undermines my argument.

    Second point. Your argument was more sophisticated than my inadequate summary of it. Sorry. The issue is whether it’s reasonable to believe your conversation won’t be overheard when you’ve asked people to leave you alone, they’ve apparently complied, security people are protecting your zone of privacy, and the only attention you think you need to worry about are people behind the window and a few other diners. I think the answer is yes, nothwithstanding the ineradicable perfidy of the media.

    But all right, I can see the argument that Key and Banks ought reasonably to expect that a posse of journalists bristling with technology would find some way to overhear them.

    Your Guyon example: it’s hard to see how the circumstances you’ve set out (a politician telling a journalist something of that magnitude) reasonably indicate a desire that the communication to be confidential. But aside from that, the PM in that case does know there’s a microphone there and that it was recently live, and that he’s in a studio full of recording equipment, and that there have been instances where politicians have been recorded in those circumstances when they thought the microphone was off.

    But actually – a deliberate recording by an engineer of an off-the-record conversation when the interviewee has been promised that the mic is off (more likely an exchange between Key and an adviser during an ad break) – I think that is the stuff of s 216.

  3. Andrew Geddis Says:
    November 15th, 2011 at 8:00 pm

    Yes – my Guyon example overlooked the requirement that there be an expectation of confidence. So, moving on …

    Apparently “Close Up” had a lipreader try and decipher what was said at the meeting. Doesn’t this mean TVNZ’s filming of it was a breach of s.216B? And if not, why not?

  4. Andrew Geddis Says:
    November 15th, 2011 at 8:26 pm

    And this seems pretty dispositive to me: http://www.3news.co.nz/Was-the-teacup-tape-conversation-private/tabid/367/articleID/232845/Default.aspx

  5. Steven Says:
    November 15th, 2011 at 8:45 pm

    Yep, dispositive. That’s why all those 40 journalists around overheard everything they said. Maybe that’s the scandal here! Big story breaks out right under the entire New Zealand media’s nose and nobody notices!

    I’m guessing Key and Banks didn’t make any embarrassing comments during that particular period when the camera was poking over their shoulders.

    But I have to admit, it’s looking harder to argue for a reasonable expectation that it wouldn’t be overheard.

  6. FelixGeiringer Says:
    November 15th, 2011 at 11:56 pm

    My apologies for any typos. I am writing on my phone.

    I’m with Andrew here. The question is about a reasonable expectation of privacy. This was a public place with a horde of media they had invited standing right next to them filming everything and trying to record the conversation.

    I had had the same thoughts on lip readers. If it was being filmed from a distance that would be different, but they knew the media were standing right next to them.

    Steven, you say was it double glazed. You should ask had they tested the window for sound insulation. I’m surprised that it was only recorded by one person and will be surprised if the conversation was that interesting. Surely neither of them would be that daft? I can’t imagine discussing anything personal in that circumstance. Can you? And doesn’t that answer the question about reasonable expectation of privacy?

    I’m also with Graeme. Simultaneity is always a hard case to run, but it is the law and for good reason. If thought crimes were illegal we would all be locked up, for life.

    BTW, the guy who drove onto the policeman’s foot got done, but it is a terrible decision. In the same vein the guy here may be accused of doing a continuing act. However, other than putting the mic down during a public media stunt what act (as opposed to omission) can he be accused of?

    Lastly, I haven’t read a discussion yet about a publisher’s mens rea. The publisher needs know it was obtained covertly.

    Is it enough for someone to have claimed it was done deliberately covertly to put them on notice? That does not seem to be a BORA consistent interpretation. That would mean anyone could gag a publisher with the force of the criminal law just by making such a claim.

    If a potential publisher had a statement from the guy who made the tape denying that it was deliberately covert can they be said to know that it was deliberately covert? Especially compared to the evidence for the other side. If the contents of this tape are bland, then what is all the fuss about? If not, then you have to question the credibility of the people who are claiming that it is bland while attacking the actions of the taper.

  7. Graeme Edgeler Says:
    November 16th, 2011 at 1:24 pm

    I see Andrew Geddis has weighed in on Teapotgate (has anyone else called it that yet? Am I first?)

    Put me down as favouring the Teapot Moan Scandal.

  8. FelixGeiringer Says:
    November 16th, 2011 at 4:04 pm

    Admitting my ignorance, I had Graeme explain this reference. For equally ignorant others it is a play on this: http://en.wikipedia.org/wiki/Teapot_Dome_scandal.

  9. Teagate! | The City Road Lawyer Says:
    November 21st, 2011 at 1:00 pm

    […] Price has made a number of posts on the topic, including Of sneaky devices, Of sneaky devices 2 and, in a break from tradition, Sneaky devices 3.  His most recent effort is Hosking lays down the […]

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