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Hosking lays down the law

By Steven | November 20, 2011

At the end of his interview about cuppagate on RNZ’s MediaWatch programme today, Mike Hosking tells us that

I think I have a pretty good appreciation of privacy law in this country.

If he means, he’s got a pretty good understanding of those laws, I think the rest of the interview demonstrates that he’s wrong.

Here’s how he describes the relevant Crimes Act provisions:

The rule is very clear and the law is very clear. Unless you have an understanding that you’re being recorded then it’s illegal to record you – that’s all part of the Crimes Act… if you go and record somebody without them knowing it, that’s against the law, and if you go and publish it without their consent, that’s against the law as well. And so the fact that there are a lot of people standing outside the window staring at you doesn’t negate your right to privacy to have what you would believe to be a private conversation…

It’s not a very accurate summary of the law. The application of the law isn’t especially clear – Andrew Geddis, Dean Knight and I have been arguing about it all week. It’s not “illegal to record” someone who doesn’t know they’re being recorded. For a start, a party to the conversation can secretly record it and not breach the Crimes Act. More relevantly, that recording must be intentional. That’s very much a live issue here, since Bradley Ambrose adamantly denies it.

In addition, it’s not illegal to publish without consent. It must be proved that the publisher knew that it was illegally intercepted. If it was unintentional, the recording was legal and anyone can disclose it without breaching the Crimes Act. If the publisher genuinely thinks the cameraman didn’t intend to intercept it, it’s hard to see how the publisher can be convicted.

Finally, much of the debate turns on whether Key and Banks ought reasonably to have expected that no-one could overhear them. The answer to that is not straightforward, whatever Hosking thinks. I still tend toward Hosking’s view – that it’s possible that the two could have reasonably expected particular parts of their conversation not to be overheard. But there are several other lawyers who disagree. At best, it’s arguable.

So when Hosking goes on to say that he’s not concerned about the media search warrants because “it’s against the law”, it doesn’t make much sense to me. Especially after he says “let’s assume the cameraman did it accidentally”. If that’s so, then there’s no crime. End of story. What’s more, anyone can publish the tape. But no, Hosking says that the editor should have told Ambrose to erase the tape “because you recorded it illegally”. Nope. Not if we’re relying on your assumption that it was accidental. Nor was it against the law if a court ultimately finds that there was a reasonable doubt about whether the parties to the conversation ought not to reasonably expect that it could be intercepted.

The search warrants are presumably being used to look for evidence of Ambrose’s intent. Some of that evidence may have been confidential statements Ambrose made to radio and television producers. Does that concern Hosking?

Hosking is very concerned about the precedent that’s created. But again, if it’s an accidental recording, it’s not a very dangerous precedent. It’s not going to happen often. And there’s still the tort of privacy, broadcasting standards and Press Council principles in the background. If it wasn’t an accidental recording and the media were to decide to publish because, after diligent inquiry, they thought it was accidental then that’s not such a terrible precedent either. That could easily have happened last Sunday.

Hosking goes on to note that the law hasn’t yet been broken. But on his argument, it had. He’d just told us that the law was clear and the recording was illegal. Perhaps he means that the media haven’t broken the law. But if Winston Peters accurately summarised what was on the tape, then there’s an argument that both he and the media (in publishing Peters’ comments) broke the law by knowingly publishing an illegally intercepted communication. (An argument. I put it no higher than that because, as we’ve seen, it would have to be proved that Winston and the media knew that the tape recording was illegal, and it’s not even clear that it was).

[Update: Hosking also said that he wouldn’t have broadcast the tape unless it showed that some law had been broken. There are several problems with that. First, that’s not a defence. To be fair, I think Hosking appreciated that; he was saying there are just times when you have to publish and be damned. Second, it’s not always going to be very clear whether a conversation is evidence of a breach of the law. What if Key was describing actions that may or may not amount to a breach of our electoral spending laws? Does Hosking get to decide? Finally, I note this distinction justifies the broadcast of an illegally recorded teacup conversation in which a minor politician says she once smoked dope, but not a conversation in which the PM says he is lying to the public about his asset sales policy.]

Hosking also praises Ambrose for going to court because “you’ll get some sort of ruling on whether it’s a public or a private conversation.” In fact, there’s no guarantee that a High Court judge will exercise his or her discretion to grant a declaration, as Dean Knight has explained.

I’m concerned that the police have taken a similar attitude. In a statement to Radio NZ, the police said:

Police considered that as the conversation had been unlawfully recorded it was necessary to advise the media at the earliest opportunity that to disclose a private conversation is potentially an offence under s 216C of the Crimes Act 1961.

This seems to suggest the police have made up their minds. I don’t think they have. The advice they gave to the media only talks of a potential offence, as does the statement I’ve quoted in an earlier paragraph. Still, it’s very sloppy language. The whole point of an investigation is to determine whether the recording was unlawful.

Topics: Journalism and criminal law, Media ethics | 11,121 Comments »