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Media gagged on Health Board report

By Steven | February 29, 2008

The Director-General of Health has won¬†an injunction preventing media publication of a draft report into the conflict of interest at the Hawke’s Bay District Health Board. The Herald is reporting that the court order also requires the media to deliver up any copies they may hold. The Dominion Post reports:

But last night the Crown Law Office threatened the newspaper with a court injunction, saying the report was confidential and “circulated on a restricted basis only to the parties directly affected by the content of the draft report”.

“The director-general [of health] asserts a right of confidentiality and privacy in the draft report. Any publication or dissemination will breach the confidence attached to the draft report and its contents.”

Publication would be likely to expose The Dominion Post to defamation or other proceedings, the Crown Law Office said.

The case is against Fairfax, APN, TVNZ and CanWest. There’s no statement of claim, just an ex parte application for an injunction. It seems to be based on breach of confidence and privacy. The interim injunction was granted by Mallon J, who’s no knee-jerk anti-media type. It explicitly also binds Hawke’s Bay Today. The case is set down for further argument at 2pm today.

The Crown Law Office’s nod towards defamation proceedings is interesting, and may have been a mistake. To the extent that the injunction is seeking to prevent defamation (and perhaps even to the extent that it is seeking to protect reputation, which may be a different and wider thing), then it’s particularly hard to obtain an injunction. The courts will grant an injunction only if there’s no possibility of a defence succeeding.

Privacy is also interesting. The government surely doesn’t have privacy rights. Those referred to in the report might have. But does the government have the right to bring an action to protect someone else’s privacy? (It seems that Peter Hausmann is represented; that might resolve that).

There’s no claim for breach of copyright, it seems.

The problematic claim is breach of confidence. It’s not clear what the injunction threshold is (it may not be as high as the threshold for defamation, and probably ought not to be). The big issue will be whether there is public interest in the draft report sufficient to outweigh the confidentiality interest. Judges usually find this hard to determine without a full argument on the evidence. And full arguments usually take months to organise. The release of the Winebox documents were held up like this for two years. This isn’t really satisfactory, and it’s questionable whether it’s in keeping with the NZ Bill of Rights Act.

I’m not sure what power the court is relying on to order up delivery of the documents.

Topics: Breach of confidence, Injunctions, NZ Bill of Rights Act, Privacy tort, Suppression orders | No Comments »

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