By Steven | January 26, 2012
Someone’s put the teapot tape online. That’s the conversation between the PM and ACT candidate John Banks that cameraman Bradley Ambrose said he inadvertently recorded, during the most covered cuppa in NZ history.
The media, and even many bloggers, seem hesitant about linking to it. I’m not.
Here’s why. Put aside the question of whether it was in fact an offence for Ambrose to have recorded the investigation. The police are investigating that, and the High Court has refused to rule on it. The question is whether the media (and new media) can publish the contents. Now, it is an offence to intentionally disclose an illegally intercepted private communication - but only if you know that it has been illegally intercepted. If anyone wants to prosecute me, they’ll have to prove those two things beyond reasonable doubt.
And here’s the thing: I don’t know that it was an illegally intercepted private conversation.
What I know is that several experts (like Dean Knight and Andrew Geddis) have argued that it can’t possibly have been. The police would have to prove, beyond reasonable doubt, that Ambrose intentionally recorded the conversation. The police would also have to prove, beyond reasonable doubt, that the conversation was private - that is, that Banks and Key ought not to have reasonably expected it to be overheard.
It seems to me that there’s plenty of doubt about whether an offence has occurred. Ambrose says that he recorded it inadvertently. And there were 25 journalists around with powerful microphones very close by. I think that at best the case against Ambrose is arguable and on my best assessment of the law, I think it will fail.
I also think that a Bill of Rights-consistent reading of the law would allow publication by media in these circumstances, and the police’s prosecution guidelines would suggest that it’s futile to take action against anyone. I don’t think the legal risk is high for anyone in publishing or linking to the contents of the tape.
[I also note that if it’s an offence to publish or link to the contents now, it was also an offence for Winston Peters to disclose - and the media to report - the contents (and in fact, even the existence) of the recording last year. There’s been no suggestion that I’ve heard of any criminal investigation into that. What’s more, as far as the law’s concerned, there’s no difference between linking to the material and describing any of its contents. Some media seem to be pussy-footing around, telling us a bit about what the tapes say but declaring that it’s illegal to publish them directly. But they can’t have it both ways. Both are disclosing the contents - if one’s an offence, both are.]
Given that the tape is not particularly damning for the PM or Banks, and has now been widely listened to online, I wonder whether they shouldn’t just bite the bullet and consent now…
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