Hard News by Russell Brown

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Hard News: The Big Chill

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  • WaterDragon,

    Erk. Not only is this a flawed judgement, it's also a nasty one, those above have spelled it out. Come in number 53, the boat needs urgent review

    Behind you • Since Jul 2011 • 76 posts Report Reply

  • Rich Lock,

    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.

    This for me is the nub of it, as Russell has pointed out. There doesn’t seem to be any basis for differentiating between a ‘long, detailed article’, and ‘a book’, except that one has a cover and is independently published, and the other (presumably) appears in a mainstream news medium.

    But it raises a whole bunch of ‘what ifs’, as mpledger and Lucy have pointed out. What if it’s serialised (partly or wholly) in, say, Metro? (for example/comparison purposes, in copyright law, there can be infringement if ‘a substantial part’ has been copied. Could a significant extract, published by a mainstream news organisation, become a ‘substantial part’ worthy of journalistic protection? How would thhat effect the remaining material?) What if, by virue of it’s own publication, it becomes newsworthy and mainstream news sites publish extracts? What if the ‘book’ is an expanded version of a shorter, already published ‘long, detailed article’?

    ETA: Also, 'spycatcher'. Suppressed in the UK, published in NZ, IIRC. My Aunt bought the teenage me a copy back to the UK from her hols. Rather dull, not enough dragons or robots.

    back in the mother countr… • Since Feb 2007 • 2728 posts Report Reply

  • Russell Brown, in reply to Rich Lock,

    But it raises a whole bunch of ‘what ifs’

    What if a wealthy celebrity gets mad and tries to get hold of a biographer's research via the Privacy Act? That'd be new and interesting.

    Auckland • Since Nov 2006 • 22756 posts Report Reply

  • Craig Ranapia, in reply to Russell Brown,

    What if a wealthy celebrity gets mad and tries to get hold of a biographer’s research via the Privacy Act? That’d be new and interesting.

    Well, I'd love to know whether Joe Atkinson would even consider a commission to write a political biography from Auckland University Press under this standard. His experience with David Lange at his most litigious sure seems to have put him off print media political commentary.

    But marginally let facetiously, why would any publisher (or reputable biographer) expose themselves to even the risk of years of flat out legal harassment and intimidation? Simple answer: A lot won't, and I don't see who wins from that.

    North Shore, Auckland • Since Nov 2006 • 12370 posts Report Reply

  • Sacha, in reply to Craig Ranapia,

    I don't see who wins from that

    people who prefer the shadows

    Ak • Since May 2008 • 19688 posts Report Reply

  • WH,

    I've seen Justice Winkelmann do some good work and would not want to criticise her unfairly. That said, I think there's an error at paragraph 69 of the judgment:

    First, Mr Fisher's authorship of the book was not undertaken by a "news medium". [...] There can be no suggestion that Mr Fisher is himself a news medium as that [phrase] is defined in the [Privacy Act 1993].

    This is not quite right:

    - Section 2 of the Act states that a "news medium" is "an agency" whose business, or part of whose business, consists of a news activity;
    - Section 2 defines "news activity" as the act of preparing, gathering or disseminating news or current affairs; and
    - Justice Winkelmann has acknowledged (at paragraph 66) that an individual can be "an agency" for the purposes of the Act.

    When you put these things together you should reach the conclusion that a freelance journalist or author can be a "news medium" for the purposes of the Privacy Act 1993. It would be interesting to see the point argued on appeal.

    Lastly, I think it's important to note the media's supremely difficult relationship with the concept of personal privacy.

    Since Nov 2006 • 785 posts Report Reply

  • Ian Dalziel, in reply to WH,

    When you put these things together you should reach the conclusion that a freelance journalist or author can be a “news medium”...

    Where do 'publishing' and 'publication' sit in this continuum?
    (both as a verb and noun)

    Christchurch • Since Dec 2006 • 7889 posts Report Reply

  • Lucy Telfar Barnard,

    You’re right, WH. Fisher could meet the definition of a news medium because he is “an agency” [a person] (we’ll skip over my earlier objection to agencies not being news media), “whose business consists of a news activity”, that news activity being “the gathering of news … for the purposes of dissemination to the public or any section of the public”.

    This approach neatly avoids the question of whether a book is or isn’t an article. It’s clearly dissemination, which is all it has to be.

    There could be an alternative problem, in that the Act distinguishes between news and current affairs, which must therefore be different things, and I would call the book current affairs rather than news. However, you could argue that that doesn’t matter because at the time the material for the book was gathered, the individual pieces of information gathered would count as news. As we all know (a baby learning how to crawl from a dog apparently counts as news) the bar for something to count as “news” is pretty low. And it’s the gathering of news that’s required – there’s no date specified for the dissemination.

    Where do ‘publishing’ and ‘publication’ sit in this continuum?
    (both as a verb and noun)

    That’s a good point Ian. “Publication” does appear in the Act, and by inference, it means “a magazine, book, newspaper, or other publication”. This could imply that a book is a separate thing from an article, which makes skipping having to define a book as an article all the more important.

    “Publish” as a noun doesn’t come up in any sections relevant to this case.

    I would see publications and publishing as a sub-set of dissemination.

    Wellington • Since Nov 2006 • 580 posts Report Reply

  • WH,

    Hello Ian and Lucy,

    I would say that a publisher is a "news medium" to the extent that he, she or it engages in "news activities". The definitions used suggest that an organization can be part "news medium" and part ordinary entity, and thereby have only some of its operations subject to the Act.

    While I think we have to be a little bit careful about eliding unhelpful statutory language, I'm not sure that the term "article or programme" was intended to create a distinction between long and short form journalism. I don't see why a book on a matter of current concern should be treated as something other than a long news article for Privacy Act purposes.

    As Lucy points out, the Act's recognition of "the gathering of news" may imply a broader approach.

    Since Nov 2006 • 785 posts Report Reply

  • Ian Dalziel, in reply to Lucy Telfar Barnard,

    Venn in Rome…

    …a sub-set of dissemination

    would ‘dissemination’ presuppose ‘aggregation’
    ie ‘seed’ gathering for dispersal

    Surely any aggregation of words and ideas (article, book, blog) is an ‘agency of news’ albeit briefly in some cases.

    News is merely anything fresh, novel or noteworthy, the last being very subjective…
    Broadcast liberally much falls on rocky ground,
    and may over-run fallow lands, and other fields,
    but can also take root in unexpected places…
    (if it is altered in any way it can
    wreak havoc on a delicate system)

    as always it is about controlling the conduit,
    and the content. (their metier is the meter)
    - much like the relationship between sewage and sewers, perhaps?

    :- )

    Christchurch • Since Dec 2006 • 7889 posts Report Reply

  • harry hausen,

    "- Section 2 of the Act states that a "news medium" is "an agency" whose business, or part of whose business, consists of a news activity;
    - Section 2 defines "news activity" as the act of preparing, gathering or disseminating news or current affairs; and
    - Justice Winkelmann has acknowledged (at paragraph 66) that an individual can be "an agency" for the purposes of the Act.

    When you put these things together you should reach the conclusion that a freelance journalist or author can be a "news medium" for the purposes of the Privacy Act 1993. It would be interesting to see the point argued on appeal."

    This is correct: a GP and a plumber are both agencies, even though they might work as sole practitioners of their profession.

    The key point to note here is that the defence (the Crown) has deliberately suggested a long, complicated, unsound and kinda dumb route and the judge has picked up on it. Now Dotcom has to either expensively appeal on the point of law or take the lengthy route proposed by the judge. Clever lawyering on their part, whether or not it stands up on appeal.

    wellington • Since Jun 2014 • 6 posts Report Reply

  • Russell Brown, in reply to harry hausen,

    The key point to note here is that the defence (the Crown) has deliberately suggested a long, complicated, unsound and kinda dumb route and the judge has picked up on it. Now Dotcom has to either expensively appeal on the point of law or take the lengthy route proposed by the judge. Clever lawyering on their part, whether or not it stands up on appeal.

    Yes. It has the effect of Dotcom’s action against the Crown agencies much more protracted. It’s pretty clear who that benefits.

    Can we say that Justice Winkelmann has been played?

    Auckland • Since Nov 2006 • 22756 posts Report Reply

  • Josie McNaught, in reply to harry hausen,

    Cleverer lawyering would be to set up an offshore Trust (Bahamas? Vanuatu?) to publish the book and sign over ownership of all the material contained there in - (research, interviews etc) to the Trustees who reside there. That way the govt would have to apply direct to them for the material (and with good justification) and the writer can say, hand on heart, "I don't own the research material and therefore have no right to give it to a 3rd party - go ask my Trustees for it. "

    Auckland • Since Oct 2012 • 25 posts Report Reply

  • Moz, in reply to Josie McNaught,

    set up an offshore Trust (Bahamas? Vanuatu?) to publish the book and sign over ownership of all the material contained there in

    Wouldn't it be easier and possibly more secure to sign the material over to the people it came from? That way the PTB are left saying "person X told you, but you gave the records back to person X, so.... get them back and give them to us", and you can just say "you wanna know, ask person X".

    You could actually do this using multipart keys and encrypted material, so that any given encrypted file needs both the book author and the source to decrypt it. Sure, the PTB can play their "keys or jail" card, but I'm really fuzzy on the situations where they can do that but not just compel testimony directly.

    Sydney, West Island • Since Nov 2006 • 1198 posts Report Reply

  • Ian Dalziel,

    It came from the stack!
    I note the University of Canterbury Library has restrictions on some political archival holdings:

    MB 267 Sir Geoffrey Palmer Papers
    The collection contains papers from the Christchurch Central Branch of the New Zealand Labour Party, Geoffrey Palmer's files as MP for Christchurch Central, Geoffrey Palmers Cabinet papers and Prime Minister's papers. Date range 1946-1990.
    Restricted Access: cabinet office approval required, along with written permission from Sir Geoffrey Palmer

    While some have further caveats...

    MB 149 Ruth Richardson Papers
    These papers date from Richardson's time as an MP and Minister of Finance and include Cabinet papers. Date range 1991-1993.
    ...Some papers of a confidential nature in the collection, as indicated by Miss Richardson once the collection has been fully arranged and described, may not be consulted until the year 2019, 25 years from the date of deposit.

    tick... tick... tick...

    Christchurch • Since Dec 2006 • 7889 posts Report Reply

  • FletcherB, in reply to Moz,

    Wouldn’t it be easier and possibly more secure to sign the material over to the people it came from? That way the PTB are left saying “person X told you, but you gave the records back to person X, so…. get them back and give them to us”, and you can just say “you wanna know, ask person X”.

    Ah, no.... the courts want KDC to request private info held by the interviewer* (of him) under the privacy act, so that they can force him to release it under "discovery"....

    * If the interviewer is a journalist, they are not expected to to comply, but this court proceeding has decided they are NOT a journalist in this instance.... (and we are discussing if this is correct or not)

    If the interviewer (journalist or not), has already given the information back to the interviewee (KDC).... then theres no need at all to decide if there is journalistic protection... you just force KDC to release the info that was given back to him.

    West Auckland • Since Nov 2006 • 887 posts Report Reply

  • Steve Barnes,

    The police and GCSB lawyers argued that because Fisher’s research, including interviews with Dotcom, is potentially available to Dotcom under the Privacy Act 1993, it is within Dotcom’s “control” and therefore should be subject to discovery. They seek to have Dotcom forced to request the material from Fisher under the Act so he can then be compelled to turn over relevant material to the defence.

    It is the assumption that the material is potentially available that confuses me. The material, presumably, is the property of Fisher and as such even if it is potentially available Dotcom has no right of law to demand it, he can ask but not insist. He can just refuse.
    Section 44

    Reason for refusal to be given
    Where an information privacy request made by an individual is refused, the agency shall,—
    (a)subject to section 32, give to the individual—
    (i)the reason for its refusal; and
    (ii)if the individual so requests, the grounds in support of that reason, unless the giving of those grounds would itself prejudice the interests protected by section 27 or section 28 or section 29 and (in the case of the interests protected by section 28) there is no countervailing public interest; and
    (b)give to the individual information concerning the individual's right, by way of complaint under section 67 to the Commissioner, to seek an investigation and review of the refusal.

    And section 29.. (reason for refusal)

    (ia)the request is made by a defendant or a defendant's agent and is—
    (i)for information that could be sought by the defendant under the Criminal Disclosure Act 2008;

    The spirit of the law, if I am not mistaken, is that if you can demand the information under the Criminal Disclosure Act then there is no need to request it under the privacy act as the CDA overrides the privacy act but if the litigant, Dotcom, is not in possession of the information then, surely, the CDA request should be to Fisher directly, if not, why not?.

    Peria • Since Dec 2006 • 5521 posts Report Reply

  • harry hausen,

    The Privacy Act creates a right of access and an obligation to respond promptly. The decision is then reviewable by the Privacy Commissioner, and his decision can then be reviewed by the HRRT and (eventually) the courts.

    So yeah, there's nothing preventing Fisher refusing on either an accurate or nonsensical ground to provide the information, and it would then be up to the judge to decide whether Dotcom is obliged to make a complaint about the refused request (and maybe go on to appeal it).

    wellington • Since Jun 2014 • 6 posts Report Reply

  • Sacha, in reply to harry hausen,

    obliged to make a complaint

    can they do that?

    Ak • Since May 2008 • 19688 posts Report Reply

  • nzlemming, in reply to Russell Brown,

    Can we say that Justice Winkelmann has been played?

    I would not go so far as that. I suspect an attempt has been made, but I think her judgement has been written in such a way as to a) highlight a gaping hole in the law and b) leave sufficient room for appeal that will come from the correct party (i.e. Fisher, backed by every journo in the country with 2 brain cells to rub together).

    In the meantime, she hasn't ruled that Fisher must give up anything to anyone apart from Dotcom, and then, only if KDC asks for it under the Privacy Act. Remember, it wasn't KDC who asked the Court to rule on this, it was the Attorney General. If she had ruled against the A-G, the appeal level fall-out would be political and could be toxic, albeit that she heads the relevant Bench, and have a whole bunch of even worse unintended consequences.

    At present, the A-G can do precisely nothing to get the information that he's demanding under discovery. There is no actual compulsion on Dotcom inherent in the judgement to ask for that material, in my admittedly light read of it. What she's said is that there is no impediment under the Privacy Act, as cited by KDC, to him doing so. It's now up to his lawyers to argue whether being able to access someone else's information amounts to "control", as attested by the A-G

    Para [78] contains the crux of the matter, to me:

    I make clear that Schedule 1 information, once obtained by Mr Dotcom,
    is only to be discovered if it falls within the r 8.7 categories.

    There's no doubt that the judgement, if it stands as it is, creates difficulties for journalists, writers, researchers, editors and publishers. I suspect that it will fail on appeal and that the Court of Appeal/Supremes will clarify the interpretation of "news medium" and strengthen the protections for journalists.

    Judges may be many things: venal, petty, vain, perhaps even corrupt in some cases. One thing they are not is stupid.

    Waikanae • Since Nov 2006 • 2930 posts Report Reply

  • Steve Barnes,

    Correct me if I am wrong but if evidence is not produced in discovery can it not be used by the litigant?’ so if Dotcom does not get the information from Fisher and hand it over to the defence will he be able to use the same information in his suit?
    Presumably the material that Fisher has would be knowledge to Dotcom in any case so this digging by the defence on discovery grounds is for what good purpose?.

    Peria • Since Dec 2006 • 5521 posts Report Reply

  • nzlemming, in reply to Steve Barnes,

    if Dotcom does not get the information from Fisher and hand it over to the defence will he be able to use the same information in his suit?

    Any info KDC uses in his suit will have to be shared under discovery with the defendants. If he uses the same information that Fisher has, even if hasn't asked for it, he will have to provide it to the A-G. All the judgement states is that there is no legal impediment to KDC asking Fisher for the information, as he (KDC) had claimed that there was. What is still fuzzy (to me, anyway) is whether that information can be definitively construed to be under his control while it's in the possession of a third party.

    Also, if we're playing the "intellectual property" game (and regular denizens will know how I feel about that ), does the information amassed by Fisher while researching his book somehow become his property, even if it's about someone else?

    This one's got a lot of legs to run on yet, with quite a lot at stake. Get your bulk order for popcorn in now.

    Waikanae • Since Nov 2006 • 2930 posts Report Reply

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