The police "seizing" material from the news media isn't that big a deal. [Update: except for the bit that is ...]

Just a very quick post on what I think the Police are up to in serving search warrants on news organisations for material relating to "Teapotgate" (there you go, Steven Price).

Reading this TVNZ story, it appears to me that the desire is not to recover copies of (or transcripts of) the actual recording itself. Rather, they are seeking evidence relating to the circumstances in which that recording took place. So, they'll be seeking from Radio New Zealand the master recording of Mary Wilson's interview with the cameraman Bradley Ambrose (I guess an on-line version is not good enough from an evidential perspective), as well as any notes she may have compiled during any pre-interview conversations. And TVNZ has been asked for its raw footage of the Key/banks meeting, no doubt so the police can see exactly whereabouts the media were when the recording took place.

[Update: In response to a comment below, I'm revising this. Trying to get any pre-interview notes from Mary Wilson (or other Checkpoint interviewer) is problematic, given the need for the media to be able to protect their sources. This isn't a cast-iron reason to never disclose such material, but it does raise issues that aren't involved with just getting recordings/general footage of the event.]

Therefore, I'm guessing the Police still are at the stage of assessing what evidence (if any) there is that an offence has been committed under s.216B of the Crimes Act. To decide this, they need to determine whether the conversation was a "private communication", as well as whether any interception (recording) of the conversation was "intentional". It's only if they decide there is strong enough evidence of an offence under s.216B to warrant charges that they'll start getting interested in who (if anyone) has disclosed the content of the recording, in possible contravention of s.216C.

As I've posted already, and argued in the comments thread here, I really don't think there has been any offence committed here at all. But I guess that when the PM alleges that there has, the police have to take that allegation seriously and investigate it properly.

[Update: According to this, Bradley Ambrose is seeking a declaratory judgment that the Key/Banks conversation was not "private". I assume this means that it was not a "private communication" in terms of the Crimes Act, and thus not unlawful to record it (whether intentionally or not). It's not clear, however, he'll get such a declaration ... especially now that the Police are actively investigating the matter, and deciding it may involve issues of fact that a Court may decide a jury ought to determine.)

Comments (15)

by Deborah Coddington on November 17, 2011
Deborah Coddington

As an aside, I think it hilarious that the press corp are so used to doing the PM's bidding that when he asked them to leave the cafe, they did exactly that. Why didn't they all just sit down and order lattes? After all, they were in Remmers, and we are all known as cafe revolutionaries, eh Tim?

But Andrew, Section 216A (1) private communication (a)

can you clarify this for me? Key and Banks first of alll did take some questions from the media then they asked them to leave so they could talk privately and the media left. So couldn't Key argue that

"private communication means a communication...made under circumstances that may reasonably be taken to indicate that any party to the communication desires it to be cnfined to the parties to the communication."

When I go on the panel on Newstalk ZB, when the mike is off, we all talk freely and say outrageous things about MPs, often defamatory, because we expect it to be private. But what's to stop ZB from taping that and playing it if they got the consent of one of the parties? At the moment, just mutual trust.

 

by Raymond A Francis on November 17, 2011
Raymond A Francis

So on one hand we have the Media refusing to hand over evidence presumable on the grounds that it would not be in the public, good certainly to allow them to contue in business by having secret informants but still calling for the PM to disclose a private discussion

by Ben Curran on November 17, 2011
Ben Curran

A significant part of the medias job to be uncovering the secrets that politicians keep. If the media are unable to protect their sources then they fail miserably and we end up with a government sanctioned media that does nothing but toe the party line.

If Andrew is right though this isn't the point of these search warrants though. It's not the recordings they are after, it's what been said about how the recordings were obtained (if I'm reading the post correctly). Which is different, I think.

by Richard on November 17, 2011
Richard

I think you are right that it is evidence about how the recordings were obtained that is being sought.

In which case, not divulging that information would be "protecting sources" wouldn't it?

by Andrew Geddis on November 17, 2011
Andrew Geddis

Deborah,

If you are joking around in earshot of Newstalk ZB staff, is your conversation really "confined to the parties to the communication"? And as a journalist, can you ever really trust a microphone? So I'd saythe offense wouldn't apply here.

Ethically? Well - it'd be the death of Newstalk's panel if it did record you, no?

wtl,

Yes - I'm going to back down on that one ... that is problematic and I was too blithe about it. Thanks for pulling me up.

by Graeme Edgeler on November 17, 2011
Graeme Edgeler

It's not clear, however, he'll get such a declaration ... especially now that the Police are actively investigating the matter, and deciding it may involve issues of fact that a Court may decide a jury ought to determine.

Two years' max: so while it's jury-triable, it would most likely be judge-alone.

by Graeme Edgeler on November 17, 2011
Graeme Edgeler

Judicial power, including judicial discretion, must be exercised consistently with the Bill of Rights Act. In considering making a declaration a judge is effectively deciding whether this material can be published. A refusal to make a declaration on a discretionary basis if there is nothing improper (in a legal sense) in publishing would seem to me to be likely to have the effect of unreasonably limiting freedom of expression.

by Mark Bennett on November 17, 2011
Mark Bennett

) Re Private communication and Deborah's point, we also need to consider the second element of the definition:

"Private communication- (b) does not include such a communication occurring in circumstances in which any party 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."

They were in a public place. There is a media scrum outside, a number of patrons inside, a camera inside at at least some stage and a strange object on the table.

So it is at least arguable that this situation was one in which they "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".

In fact, they should have known this was the case: cameras were trained on them from close range throughout, and some people can lip-read very accurately. Even athletes and coaches shield their mouths from sight when giving strategic instructions.

Would a court buy it? Depends on the court.

by william blake on November 17, 2011
william blake

Now that we have a partial view of what was recorded via Winston, it seems clear that Key and Banks really were talking off the record, albeit arrogantly.

So they assumed privacy, the media assumed otherwise. If 'off the record is disabused' as a part of freedom of expression, then perhaps keeping sources private can also be abused as a part of 'don't fuck with the powerful'.

Very bad judgment to set the police on the media a little over a week out from a general election.

by mudfish on November 17, 2011
mudfish

Confused. Naivety follows:

1. How does Winston know what was said?

2. Do we (you, commenters) believe him when there's noone denying his quite specific quotes?

3. When does Winston saying things publicly with media present become publishing/broadcasting, (which is what the Herald decided not to do) if the same information has subsequently been broadcast by others - are these others now potentially committing a crime by reporting what he says they said?

4. I'm sure there's more I'm confused about but might need the answers to those ones first.

by Deborah Coddington on November 18, 2011
Deborah Coddington

I'm also actually wondering why the media obediently left the cafe, actually when they didn't have to. And by obeying Key meekly, didn't they give him his privacy? So therefore doesn't that mean the communication falls under the "interpretation" definition of Section 216A of "private communication" of the Crimes Act?

If they'd all stayed, and refused to leave, there'd be no private communication. They could just as easily have forced Key and Banks to go somewhere really private.

As for this freelance cameraman threatening to sue for defamation. Ahem.

by Andrew Geddis on November 18, 2011
Andrew Geddis

mudfish,

If Peters is accurately quoting from the tapes, and the tapes were illegally obtained (in breach of s.216B), and Peters knows that they were obtained in this way, then he is breaching s.216C. The media by reporting him ... well, that'd be a curly one, that would.

Deborah,

The media obediently left because they are used to doing what they are told by the parties' media minders, and they don't want to rock the boat least they jeopardise future access. However, as I've argued before;

(1) If you have an open access event where there are lots of recording devices around you, then you say "Go away now", ought you to reasonable expect that (by accident or design) a recording device will remain behind?

(2) Even if you assume all the microphones have gone, can you really think there's no chance what you say in a public cafe with staff passing in and out of earshot and cameras and microphones floating around will remain fully confidential between the two of you?

As for the cameraman suing for defamation ... we'll see - those actions don't come cheap. But if the recording genuinely was an accident, then labeling him unethical - much less a criminal - is pretty defamatory.

Out of interest ... as a journalist yourself, had you come by the recording in the way the cameraman did (or as Joanne Black did with Geoffrey Palmer back in 1990), what would you have done with it?

by Deborah Coddington on November 18, 2011
Deborah Coddington

Andrew I'm the wrong person to ask.

I trained 40 years ago when journalism ethics were non negotiable.

You were on the record, or off the record, and that was always respected. You never breached it. You asked someone if they minded being recorded and if they didn't want to be recorded, you had to use shorthand or write quickly.

So if I found I'd unintentionally recorded a conversation, and neither party would let me use it, even after repeated attempts and different negotiations and angles, unless a watertight legal opinion told me it was okay to use just the political extracts of crucial national importance (and let's face it there's nothing on this of that nature) I'd quietly put it in a drawer and keep mum.

But then I'd have to weigh up that decision with the chances of getting interviews with those at the top in future. Would future PMs trust me? Doubt it.

All this talk this week about Key "picking a fight with the media" (tossed around by the media, of course) begs the corollary, should people have to suck up to the media to be treated fairly? Of course they shouldn't. The media need to get over themselves before they disappear up their own backsides. Some of them take themselves far too seriously. JHC we're just like the milkmen, sometimes we deliver too many bottles, sometimes not enough, occasionally just right.

And as for defamation, the person suing has to have a reputation to defend for starters. I always think it's bad for anyone in the media to sue for defamation - we put it out, we have to take it.

But hey, I'm a dinosaur.

by Stephen Parkes on November 18, 2011
Stephen Parkes

Deborah,

I trained 40 years ago when journalism ethics were non negotiable.

So protecting your sources would be non-negotiable, then?

Question for lawyers: I assume that as this is a criminal investigation the standard of proof will be "beyond reasonable doubt"?

If so, the police prosecutors will only proceed with a prosecution if they think that there's a reasonable chance of *proving* that Ambrose deliberately recorded the conversation. Right?

by Andrew Geddis on November 19, 2011
Andrew Geddis

Stephen,

Yes. Which, in the absence of something like clear video evidence that disproves his account (i.e. a shot of him placing the radio mike on the table as the journalists are being ushered out of the cafe, or the like), I can't see happening.

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