By Steven | July 3, 2014
News media activities are exempt from the strictures of the Privacy Act, which generally requires that people gather information directly from those concerned, explain what they’ll do with it, keep and securely, and don’t use or disclose it for unauthorised purposes. The Privacy Act also allows those affected to access information about them, and seek to correct it if it’s wrong. The media lobbied hard for exclusion from these rules, arguing that they would make the media’s task unworkable.
Parliament agreed, and journalists breathed a sigh of relief. But what does this mean for authors of non-fiction books? Are they part of the media? Or are they subject to the Privacy Act?
Justice Winkemann, the Chief High Court Judge, has ruled that authors of non-fiction books are not exempt from the Privacy Act (see paras 56-78). That means (among other things) when authors gather material about people, they have to turn it over to them on request, unless some other exception applies. (Note, though, that there are some source-protection provisions).
The ruling came in the context of Kim Dotcom’s case against the government, alleging it illegally spied on him and raided his property. As is standard procedure in civil lawsuits, the government sought access to of all relevant documents in the possession or control of Dotcom. It argued that these should include relevant documents about Dotcom held by his biographer, journalist David Fisher - for example, notes of interviews. You might wonder why that is, given that Fisher was holding those documents. (Incidentally, there would have been nothing to stop the government applying for third party discovery against Fisher). The government argued that Fisher’s documents were within Dotcom’s “control” since he had a legal right of access to them. How? Through the Privacy Act. Dotcom could ask Fisher for access to documents about him. So he effectively controlled them, and should have to turn them over to the government.
Dotcom argued that he didn’t have the right to see the documents, since Fisher fell within the news media exemption. As we know, Winkelmann J ruled against him.
This ruling has attracted a storm of criticism because of the difficulties it creates for authors. I think there’s some truth in that. Though we should bear in mind that there are two mainstream media organisations that are already subject to the access rights in the Privacy Act: Radio NZ and TVNZ. They hate this. And they fight against requests. But they are subject to the access requirements and the sky hasn’t fallen (largely, I suspect, because hardly anyone knows about these access rights).
My criticism is different. I think the judge got this one flat wrong.
She begins by finding that David Fisher, himself, is an agency, and is therefore subject to the Privacy Act. Since the definition includes people, she’s surely right about that. The big question is whether he counts as a news medium, and therefore is exempted. A news medium is:
any agency whose business, or part of whose business, consists of a news activity
So what’s a news activity?
(a) The gathering of news, or the preparation or compiling of articles or programmes of or concerning news, observations on news, or current affairs, for the purposes of dissemination to the public or any section of the public:
(b) The dissemination to the public or any section of the public, of any article or programme of or concerning –
(ii) Observations on news:
(iii) Current affairs.
The judge concludes that David Fisher doesn’t fall within this definition. Here’s why:
First, Mr Fisher’s authorship of the book was not undertaken by a “news medium”. It is true that Mr Fisher is a journalist working for a news medium, the New Zealand Herald, and that in that capacity he has written extensively on Mr Dotcom. But his book on Mr Dotcom is not affiliated with the Herald, and was published by an independent publishing agency. There can be no suggestion that Mr Fisher is himself a news medium as that phase is defined in the Privacy Act.
My second reason is that the writing and publication of a book cannot, at least in this instance, be construed as news activity. The definition of news activity protects two different forms of journalistic endeavour in its two limbs: preparing stories and disseminating stories. The first limb protects gathering, preparing, compiling, and making of observations on news, for the purpose of dissemination. The second limb protects the dissemination of the prepared story, provided it is about news, observations on news or current affairs. The end product of the two activities is specifically provided for in the definition: articles and programmes. Investigative journalism takes its form in long, detailed articles, which are covered by the Act’s definition. Books, however, are not.
I think both of these reasons are wrong. Let’s start with the first reason. The judge says “there can be no suggestion that Mr Fisher is himself a news medium as that phrase is defined in the Privacy Act”. Why not? After all, he’s an agency, as the judge finds. Writing a book for commercial sale is certainly his business, or at least part of his business. There’s an issue about whether that business is a news activity, but that’s the judge’s second reason. That aside, there seems to be no reason for not treating Fisher as a news medium.
In other words, I don’t think the judge has two reasons at all. They both collapse into one. Was what David Fisher was doing a “news activity”?
The judge recognises that the definition contains two limbs: “two different forms of journalistic endeavour: preparing stories and disseminating stories”. Right. And it follows that he only has to be doing one of these to come under the definition. If he satisfies either one of them, he can be a news medium.
The judge says that “the end product is specifically provided for in the definition: articles and programmes. Investigative journalism takes its form in long, detailed articles, which are covered by the Act’s definition. Books, however, are not.”
It’s true that books aren’t mentioned in the definitions. But are they excluded? They certainly seem to be excluded from the second limb of the definition, because it only applies to “any article or programme.”
But - and here’s my point - books are not specifically excluded from the first limb. Let’s look at it again:
The gathering of news, or the preparation or compiling of articles or programmes of or concerning news, observations on news, or current affairs, for the purposes of dissemination to the public…
Notice the “or” (which I’ve conveniently highlighted). This definition isn’t a model of clarity. But it is clear that “gathering of news” need not be connected with the “compiling of articles or programmes” for the definition to be satisfied. The gathering of news for the purposes of dissemination to the public will be enough.
So the really interesting issue is whether researching a book on a topical issue is “the gathering of news”. And the judge does not address that issue at all.
I suppose it might be said that “news” is more high-turnover, transient and perishable than can be encompassed in the activity of producing a book. But as the judge points out, long-form journalism is contemplated in the definition. And the Bill of Rights requires statutes to be read consistently with the right to freedom of expression if possible. I think there’s a compelling argument that the gathering of news can include research for a topical non-fiction book.
Alas, that ship has sailed. My understanding is that there is to be no appeal, so this stands as the law unless and until it is reformed by Parliament or revisited by the courts.
Topics: Privacy Act |
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