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Picking up the Bill

By Steven | August 5, 2008

Did whoever surreptitiously recorded Bill English break the law?

What about the media who published the conversation or its contents?

It’s a crime to tape a conversation between other people if the circumstances indicate that one of the conversers wants it to be private (section 216B of the Crimes Act).

I have no idea how the conversation was recorded, except that it took place at a cocktail party. If the person who recorded it was one of the people English was speaking to, no offence has been committed.

If, on the other hand, the tape was made by an eavesdropper, nearby or at some distance, then we have ourselves an issue. It’s probably fairly clear that English meant the conversation to be confined to those he was talking to.

But that’s not the end of the story. There’s a defence if English:

ought reasonably to expect that the communication may be intercepted by some other person not having the express or implied consent of any party to do so.

He’s talking at a cocktail party. Shouldn’t he expect that he might be overheard? (“Interception” includes simply hearing the conversation). It might depend on how many people there were in the room, and whether English taken care to distance himself from them. But it seems likely that this defence will apply.

(There might be interesting non-criminal issues, such as breach of confidence, though. These would most likely come down to the question of whether the use of the material was in the public interest. I would have thought there’d be a fair case that the disclosure was in the public interest).

What about the media? If they were party to an illegal interception, they would be liable as parties if the person doing the actual recording was liable. If they weren’t involved, but knew that the material had been illegally intercepted, it would be an offence for them to disclose it. Neither seems likely here.

There might also be broadcasting standards issues. (These wouldn’t apply to Scoop, though. It’s not a broadcaster). The Broadcasting Standards Authority has held that broadcasting the content of an overheard conversation was a breach of privacy. The eavesdropper had hidden himself so he could overhear a conversation between John Hart and his wife on the street. The BSA said the broadcast of Hart’s comment was offensive, and there was no public interest in it. Similarly, when the Holmes show broadcast Parekura Horomia’s aside to a friend about his distrust of the media during a filming break.

Once again, there’s a public interest defence, though. And once again, there’s a pretty solid argument for it here.

Topics: Breach of confidence, Journalism and criminal law, Privacy tort | No Comments »


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