Wow, so All the President's Men and many many other similar works, aren't "journalism"?
Well, that's news.
I've had more of a think about this, and I'm going to go out on a limb and say the judge did get it wrong.
First, she says "There can be no suggestion that Mr Fisher is himself a news medium as that phase [sic] is defined in the Privacy Act."
I disagree. A news medium is "any agency whose business, or part of whose business, consists of a news activity."
An agency is "any person or body of persons, whether corporate or unincorporate, and whether in the public sector or the private sector .. and ... includes a department, but does not include .... in relation to its news activity, a news medium"
So we have an internal contradiction. While a news medium is "any agency...", an agency cannot be a news medium. I don't see how those two things can be true at the same time. I don't have the full judgement. Did the judge highlight this anywhere? It seems like a pretty fundamental problem to me.
Second, I think you can interpret "article" more widely than the judge has done, if you go with the definition of "an item for sale, commodity" type definition rather than a section of a publication.
And it should be interpreted widely, because of the Bill of Rights Act.
book, book, book, chickens feeding...
All the President’s Men and many many other similar works, aren’t “journalism”
Granta, biographies, encyclopedias, all fiction....
Journalism > Journal > Jour
writing > book/record > day
diarists forget it...
Not to say that thinly veiled fictions can't affect peoples thinking either, Gulliver's Travels anyone?
best 'they' get that 'satire' fenced off as well, quick smart...
I interrupted the last post for the commute, which also gave me the chance to think about it more. I’m now also looking at the full judgement. I find it quite confounding that Justice Winkelman has, in paras 66 and 67, listed exactly the interpretations I noted earlier, without also noting the contradiction between the two. What am I missing? I don’t see how a judge can just skip past the Act defining a news medium as “any [thing that, in relation to news activities, is not a news medium] whose business … consists of a news activity”. This contradiction offends me deeply.*
The contradiction cuts all the way through the judgement. Later, in para 74, J Winkelman notes that “Section 38 provides that “it is the duty of every agency to give reasonable assistance” to those who make information requests.” But she’s already stated up in para 66 that Fisher is not an agency. So does that mean he has no duty to give reasonable assistance after all?
Anyway, or also, or something, as previously noted, wherever possible, and certainly if there is any ambiguity, Acts must be read as if they were consistent with the Bill of Rights Act (s6 “Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning”).
There is the issue that this case, as it relates to Fisher, cuts both ways. I would imagine that in most cases where someone was seeking to use the Privacy Act to access material from a book about them, it would be in their interests to have that information released. Whatever Winkelman rules here would presumably have precedent for later interpretations of the Privacy Act.
So, would we want a ruling that people who had books published about them were preventing from accessing the material for that book on the basis that it was journalism?
Yes, I think we would, just as we do for any other journalism. So no issue there after all.
So what about the Bill of Rights Act?
As J Winkelman notes, (para 68) “The free flow of information through the media is vital to the life of a free and democratic society, and is supported by the protection of freedom of expression in the New Zealand Bill of Rights Act 1990.” In para 69 she acknowledges “the importance of these principles”, and only excludes them because the news media exception doesn’t apply. I think that if she had also acknowledged the contradiction in the definition of a news medium, she would, because of BoRA (and the right to protection from unreasonable search and seizure as well as the right to freedom of expression), have had to allow an interpretation of the Privacy Act that included authors of books containing journalism to be defined as news media, and the books themselves as news activities.
*IANAL. I have done all of 3 law papers. I like to think I grasped the principles of statutory interpretation very well, but it's entirely possible there's some subtlety I'm missing here. Anyone?
On my scan of the act the critical word was 'news'. As if, by the time something is a book, it must be olds.
Except the definition of news activity doesn’t just include news, but also current affairs, which has a much broader time range. e.g. books published on MH370 are probably a bit old to be called news, but they’re certainly still current affairs; or wikipedia’s definition of current affairs as “a genre of broadcast journalism where the emphasis is on detailed analysis and discussion of news stories that have recently occurred or are ongoing at the time of broadcast”. The Kim Dotcom saga is clearly still ongoing, or there wouldn’t be a courtcase about it.
Which means that the critical word is “article”.
But that still doesn't solve the news medium =/= news medium contradiction.
I know the Privacy Act very well: with all respect to the judge, it's a fairly nonsensical judgment: being obligated to exercise a right under penalty of contempt of court is a terribly clunky way of enforcing discovery.
If the author declines to provide the information, is Dotcom obligated to make a complaint under s67? What if the author only provides it in part, citing ss27-29 of the Privacy Act (s29(1)(a) seems germane)? And even if the Privacy Commissioner thinks the information should be provided to Dotcom, his opinion isn't binding. So even if the Privacy Commissioner decides the complaint has merit, is Dotcom obliged to take it to the Human Rights Review Tribunal, and on to (eventually) the Supreme Court to enforce provision?
I'm feeling pretty happy with my submission to the Law Commission that a) where possible, protections for journalists should be extended to everyone, and b) if they're not available for everyone, they should be available to anyone "acting in the role of a journalist" regardless of whether it's their 1st or 1000th article.
Of course, they ignored it. :)
Good questions Lucy. but I can't agree on your interpretation of law/jurisprudence. Have a look at Hart, H L A, The Concept of Law (1961) or Lisa Strelein’s book, “Compromised Jurisprudence: native title cases since Mabo” Aboriginal Studies Press, 2006, She shows Australian judiciary contradict themselves and turn themselves in knots in their judements. A decent first year law course will cover these issues. The law is what judges say it is. It's a convoluted elaborate pin dance behind a veneer of respect for parliament. Anyone who pretends otherwise is fooling themselves. You can see I belong to the Realist school of jurisprudence.
If the author declines to provide the information, is Dotcom obligated to make a complaint under s67?
Quite. I've had some interesting discussions about this, but won't have time to write it up until tomorrow morning.
So would it be right that the judge has only ruled that Dotcom must ask for the material, but not that Fisher must provide it? Since Fisher had no representation in court, and wasn’t party to the proceedings in any way, surely it would break some rule or other for the judge to issue any rule about what Fisher must do?
To Kevin, thanks - I think I have done a good first year law course, but it was quite a few years ago. But I take your point: the judge can decide to ignore the contradiction if they choose - nevertheless, I would have liked to see her at least acknowledge that there was one.
I take her ruling to mean that a news medium is "an [agency-if-a-news-medium-was-an-agency] whose business... consists of news activity." I don't like it, but I can see it's practical.
If Dotcom asks for it the presumption is that Fisher will provide every bit of information about him that he has, subject to Fisher being able to refuse where an exception under sections 27 to 29 of the Act. The main exception is 29(1)(a), that disclosure would be an unwarranted disclosure of someone else's affairs. But it is up to Fisher what he actually releases, and the only avenue is then for Dotcom himself to make a complaint about how his request was dealt with. And it's then up to the Privacy Commissioner (who is after all an -independent- crown entity) to decide how he deals with the complaint - there are various options, including passing it on to the HRRT, dismissing it, agreeing with one or other of the parties. He's notionally bound to agree with the judge on the interpretation of the law, but there is always wiggle room.
I know the Privacy Act very well: with all respect to the judge, it’s a fairly nonsensical judgment: being obligated to exercise a right under penalty of contempt of court is a terribly clunky way of enforcing discovery.
Especially when the Crown lawyers could have just gone to the front door and sought third-party discovery from Fisher.
But if the Crown lawyers had gone to the front door and sought third-party discovery from Fisher, wouldn't Fisher have a stronger case that it was BoRA-prohibited unreasonable search and seizure (BoRA only applies to the Crown)? Dotcom's access to Fisher's material isn't unreasonable search and seizure, because a) Dotcom is not the Crown; and b) he has (now) a right to request it.
being obligated to exercise a right under penalty of contempt of court is a terribly clunky way of enforcing discovery
Exactly - you could call it an abuse of the Privacy Act. This is the aspect of the case that hasn't received enough attention, and is where I think the main problem lies.
The issue about the media exemption, on the other hand, isn't so straightforward. Part of the argument for the media exemption from the Privacy Act is that the media are regulated in other ways (Press Council and BSA). By contrast, there is no alternative regulator people can go to if their privacy has been breached by something written in a book.
By contrast, there is no alternative regulator people can go to if their privacy has been breached by something written in a book.
Other than the courts, for breach of privacy.
Other than the courts, for breach of privacy.
Which is a very expensive option, not open to the average person.
This ruling could have had implications for books like Rebecca Macfie's excellent account of the Pike River tragedy then? If court proceedings had gone ahead. She has written another solid account about the ongoing battle that family of the victims in the CCTV building tragedy face in terms of getting some answers and accountability (not to mention compensation) but that was for the Listener initially. If she extended that story and turned it into a book, would the ruling affect her if a court case was taken given it started out as a pure piece of journalis but would form the basis of a book. Based on this case it would. As a journo who is now studying law I attended a talk recently by Justice Winkelmann about law and the media and she did mention the issue of judges having to interpret the law within the definitions provided by the Act, rather than extending that interpretation to cover all manner of situations. And she mentioned that media reports don't always reflect the position judges are in. Journos rarely explain the interpretation issues in cases (well why would they? they aren't lawyers after all) The best option here is to lobby parliament for a change in the privacy laws if the courts are struggling with the legislation as it stands.
"But if the Crown lawyers had gone to the front door and sought third-party discovery from Fisher, wouldn't Fisher have a stronger case that it was BoRA-prohibited unreasonable search and seizure (BoRA only applies to the Crown)? Dotcom's access to Fisher's material isn't unreasonable search and seizure, because a) Dotcom is not the Crown; and b) he has (now) a right to request it."
It's dumb on practical grounds, in that it's using a mechanism (p6 access request) that is unsuited to the task it's being asked to accomplish. Discovery is the right mechanism, even if it's hard and might not work.
acting in the role of a journalist
the Slater defense..
To put it another way: Kim's 'right' is to make an access request. It's not to actually have every bit of information about him, that's something that gets decided by the PC/Courts. So once he's made his access request and Fisher has said 'no' on whatever grounds he thinks appropriate, then Dotcom would be justified in saying 'I exercised my right under the Act, here's what Fisher gave me, but I didn't get all the information, sorry Court'.
To take it further would be to obligate Dotcom to pursue it through the courts until he gets every single bit of info that is held about him.
We have a shield provision in Aotearoa New Zealand, in the Evidence Act, that gives journalists the right to withhold information, unless a judge rules that there's a public interest demand for it. It gets complicated there too, though. A journalist is defined as 'a person who in the normal course of that person's work may be given information by an informant with the expectation that the information may be published in a news medium'. I wonder if David Fisher would be a journalist in that definition, as the work he's doing here is writing a book? Nicky Hager would't anyway. Definitely a weird and worrying hole in the protection of journalists. I've no legalistic braincells, but I'd have thought the judge could at least have made noises about the intent of the law here, which surely is to give some privilege to journalists not just to certain publications.
Hager certainly meets the definition you cited - more than most newspaper reporters.
I wonder where material regulated by university ethics committees fits into this. I know that university ethics committees are rigorous about protocols that protect confidential material gathered for research purposes. Sometimes permission to carry out research is given only if interviews are kept very securely, accessible only to the researcher and perhaps (anonymously) to a supervisor and then destroyed after a certain period, once the work is published. And what about oral history projects that use the protocols of NOHANZ, also developed to protect the interviewee? For instance, I've undertaken interviews where we've agreed before the interview that I will destroy the interview once I've quoted any section of it that the interviewee agrees I may use and interviews where we've agreed that I will not quote from them even anonymously and that the interviews will be held under embargo at the National Library for years or decades (etc). And I can't distinguish between the various kinds of interview work I've done, whether for book or web or radio or film. I'm not a journalist, but I'm not into publishing in book form either, with the exception of chapters etc in books other people edit. Where my writing goes depends on the kind of audience I want at the time, and these days it's almost entirely online (which means that I'm about to stop writing chapters etc). Anyway, thanks for the fascinating discussion. Best of luck to all of us who like to listen to and record other people's stories.
So the Evidence Act defines a news medium as "a medium for the dissemination to the public or a section of the public of news and observations on news". But that doesn't help much, as the only reference I could find to protections for journalists or the news media was s68, which allows (some) for the protection of the identity of informants - but not protection of what they said.