« Picking up the Bill | Main | When half a quote isn’t better than none »
Picking up the Bill II
By Steven | August 6, 2008
So now John Key is accusing Labour of being behind the “bugging” of conversations at the cocktail party. He suggested on Morning Report this morning that the repeated questions put to Bill English about Kiwibank sounded like someone was trying to set him up.
(Key is also throwing in the suggestion that Labour was behind Nicky Hager’s acquisition of National Party emails. He doesn’t supply any evidence of this. That would be because Hager’s material was leaked from within National.)
Still, my previous post left an open question. What if Labour activists had bailed up English and secretly recorded the conversation? I noted that they wouldn’t then be “intercepting” the conversation, so wouldn’t have broken that law. I suspected that there would be public interest defences to any breach of confidence or privacy action, against them or the media.
But was the behaviour lawful? I rather doubt it. I’d need to know more about the openness of the venue, the restrictiveness of the guest list, how they got in, and what (if anything) they told anyone or lead them to believe, in order to get in. It seems likely that along the way, the infiltrators (if that’s what happened) committed the torts of deceit and trespass. There are no public interest defences to those.
The really interesting question: would the courts have granted an injunction to restrain the media from publishing the material if National got wind of it ahead of time? They would probably restrain material obtained during a trespass if the process of gathering it was “unconscionable”. Was this? Maybe. They would probably restrain material allegedly obtained in breach of confidence, at least in the interim, so that issues could be fully argued – in particular the public interest defence. That “interim” period could stretch on for quite a while…
[PS: Since the Privacy Act doesn’t apply to news media in their news-gathering activities, I tend to overlook it. But since those involved in the first-hand gathering of the recorded material here probably weren’t news media folk, the Privacy Act does apply to them. The relevant principle is IPP 4 – information should not be gathered using means that are unlawful, unfair or unreasonably intrusive. Again, lots will depend on the circumstances. But most people wouldn’t expect to have their cocktail party conversations recorded. On the face of it there seem to be grounds for a complaint to the Privacy Commissioner against whoever did the gathering.]
Topics: Breach of confidence, Privacy tort, Trespass | Comments Off on Picking up the Bill II