43

Why the media should be very, very careful

by Whaleoil on November 17, 2011

A Guest Post from a lawyer, via the tipline:

I was just reading another article where Duncan Garner again offered to show a transcript of the illegally obtained recording – this time to Don Brash.  I thought to myself surely if it is an illegal recording then it must also be illegal to publish it.

Sure enough:

216C Prohibition on disclosure of private communications unlawfully intercepted

(1) Subject to subsection (2), where a private communication has been intercepted in contravention of section 216B, every one is liable to imprisonment for a term not exceeding 2 years who intentionally—

(a) discloses the private communication, or the substance, meaning, or purport of the communication, or any part of it; or
(b) discloses the existence of the private communication,—
if he knows that it has come to his knowledge as a direct or indirect result of a contravention of section 216B.

(2) Subsection (1) does not apply where the disclosure is made—

(a) to a party to the communication or with the express or implied consent of such a party; or
(b) in the course, or for the purpose, of—

(i) an investigation by the Police into an alleged offence against this section or section 216B; or
(ii) giving evidence in any civil or criminal proceedings relating to the unlawful interception of a private communication by means of an interception device or the unlawful disclosure of a private communication unlawfully intercepted by that means; or
(iii) giving evidence in any other civil or criminal proceeding where that evidence is not rendered inadmissible by the Evidence Act 2006 or section 25 of the Misuse of Drugs Amendment Act 1978 or any other enactment or rule of law; or
(iv) determining whether the disclosure is admissible in any civil or criminal proceedings.

So it is fairly clear that s216B of the Crimes Act has been infringed yet all week the media, and TV3 in particular, have been asking leading questions on what has been said – basically disclosing the contents of the private communication. Note that the definition is wide it includes “the substance” - and that’s before we even get to disclosing the existence of the illegal recording.

Now I guess, in relation to the latter, the various media can argue they did not know it was illegally obtained – the HOS was all very innocent about it so it was ok to publish.  That is a defence if it is believed.

But given the matter is now in front of the police a lack of knowledge can not be argued.  Of course it may still be argued that s216B was not infringed (good luck but the standard is a high one of beyond reasonable doubt and stranger things have happened).  If that occurs then there is a complete defence.

However if reality and the law collide and the recording is illegal then Duncan Garner has probably already fallen afoul of the s216C as the disclosure was made intentionally and in the knowledge that it was in breach of s216B.  There is not a lot of law on this section but I would expect knowledge to be knowledge of the circumstances it was obtained, even reckless as to whether or not illegally obtained – otherwise the law would be meaningless.

Secondly he appears to be blatantly attempting to break the law by handing out transcripts.  I can see no defence under the section for handing out transcripts.

Obviously this opinion is on an all care no responsibility basis as I can only spend so much of work time researching media malfeasance – and given it is off the cuff I would prefer not to be named if you want to push this angle.

Tagged: • • • • •

Related posts

  • Symgardiner

    And this is why the media are going feral on this. Some many of them are looking very worried they might be on the end of a prosecution. Maybe we will be getting some really good Op-Ed pieces on the prison system over the next little while!

  • Tjspooner

    National party hack lawyer?

  • Evan Johnson

    Yes indeed a bush lawyer.  I remember Don Brash trying to block “The Hollow Men” too.  The contents of the meeting will be revealed in due course, and this censorship of political public interest will be clear to all.  

    In the meantime, the picnic for Winston Peters goes on and on.  How hilarious is that?

    Must be reminding you of Don Brash the first time around Cameron!!

  • Anonymous

    Has he seen fit to give the PM  & John banks a copy of the transcript seeing as it was their private conversation….

    • Tracey

       It has been offered to both of them. My understanding is that showing it to two of the participants would probably not breach the definition (legal) of publication but certainly to anyone else, including Mr Brash.

      There is some inconsiderable irony to Mr Slater’s outrage at the lack of “morality” or whatever amongst journalists. That article above could replace journalist with party strategist for example, and still seem “right”.

      s for what is “right” that is very subjective as Mr Slater knows from his recent flouting of laws to try and highlight and change a law.

      Peters has come to the aid of the media (oh the irony) by speaking to what he knows of the tapes today.

      Funny how no one was outraged at this kind of bottom feeding when National was the beneficiary.

      I guess John Key lied when he said he would be honest back in 2008, on camera, when criticising Clark over the Glen/Winston affair. How many of you here criticised his tactics then or his sense of right and wrong and principles?

      Second to politicians in the self importance and self righteousness stakes must be political blog writers. Both groups elevate opinion to fact simply because it came from their mouths or keyboards.

      • MrV

        I’m confused, are you suggesting we change the law to allow taping of conversations without the knowledge of the participants?

      • Anonymous

        Has it?

        A transcript or copy of the tape would constitute evidence of the offense greatly facilitating the police’s investigation of the charges laid.

        Was I the PM I’d take it and hand it over to the police.

  • Peter Wilson

    Put up or shut up. The news media holding the tapes argue public opinion warrants their release. Fine, no problem, release them, and back your own position! But don’t expect Key to give permission, which would stop any prosecution. Hopefully NZers see the strawman tactics and the need for ratings as the pathetic excuse for journalism that they are.

    • kayaker

      Not in the media interests to release them otherwise they’d have nothing trivial to talk about.  They’re incapable of rising above it.

      A bunch of muppets, especially TV3. Cancelled my sub to the NZH, gave them the reasons. Feels good.

  • Quintin Hogg

    The tip-line lawyers guest post dosen’t read like the work of bush lawyer.

    It’s too coherent and , from a technical or black letter point of view, correct in the conclusions reached.

    Garner is treading a fine line. It would be very funny to see him appear in court on a charge laid under section 216B.

    A bit of time on remand in the Auckland Central remand centre would do him the world of good.

  • Anonymous

    Seems the media has been deluding themselves because they have been relying on ‘warm fuzzy’ legal opinions without reading the part after the word ‘However’.

    This opinion is at odds with Stephen Price’s (media law academic) opinon. I would back this opinion over Stephen’s one any day.

    Just start for various people to be scurrying for cover and singing like canaries in a pathetic attempt to protect their arses.

  • Pingback: Tea cup tapes – be careful out there! « The Inquiring Mind

  • Jaffa

    Winston has spilled the beans.
     http://www.newstalkzb.co.nz/newsdetail1.asp?storyID=209201

    • Troy

      I look forward to seeing Winston in the dock facing 2 years in jail – fairly hard to be an MP while sitting in a cell :)    but anyhow, he’s the most dodgy guy around and the only reason he is deflecting everything away from himself is he doesn’t want his misdeeds of the past to resurface – what a wanker.

      • http://unsolicitedious.wordpress.com/ Unsolicitedious

        He reckons they said all that in 8 minutes while sipping tea? God that man is a clown – his dying supporters will be loving all this garbage!

    • Thorn

      Is that all?  I was hoping John Key was spelling out his  intention to tear up the Waitangi Treaty, cluster bomb Tuhoi, abolish Maori seats and get the ball rolling 28th November by kicking Pita & Turei up their whinging, supercillious and manifestly dumb black arses.

      • Jester

        Mate. Im loving your post. Lol

      • Anonymous

        Oi,you`re not allowed to say” black arses”.

        • Thorn

          Ok,I’ll try again.  Accepting black is beautiful but acknowlging brown is the colour of shit. Hoped JK would be kicking Pita and Turei up their whinging, supercillious  and manifestly dumb shit-brown arses. 

    • Rightoverlabour

      Can someone found guilty of serious charges be in parliament? Winston is a lawyer; either he does not know the law here or he is making up stories (to avoid prosecution) if it comes to that. I doubt he is crazy enough to flout the law if it could ruin his chances of getting into government. But then he is Winston Peters, unemployed, still paying back debt, believing in flying pigs,  and that people love him….

      • Anonymous

        You know what they say, any trough in a storm…

      • Troy

        As I recall, a convicted MP cannot serve as an MP.  Either way – Winnie is a thief anyhow – pay back the $158000 winnie – yup, most haven’t forgotten about that.  Maybe he thought his teflon coat (Helen and that bitch Heather Simpson’s cut up coat) would get him thru this election.

  • Jackson

    By all accounts I’m very happy about what appears to be the content of the conversation.
    It’s certainly got my backing if it’s true.

  • Callum

    The whole situation will turn on two key questions related to 216B, as without a breach of that section there can be no breach under 216C. “…where a private communication has been intercepted in contravention of section 216B..”.
    First is expectation of privacy, now some will argue media was invited, in a public cafe etc etc but that fact media were removed prior to the conversation and there were a bunch of DPS staff keeping everyone away then it was clearly communicated to anyone it was a private conversation and the two parties had no expectation of being accidentally overheard.
    Second is the intent to record the conversation, 216B say “..every one is liable to imprisonment for a term not exceeding 2 years who
    intentionally intercepts any private communication by means of an
    interception device.” No intent to intercept and no offence which then protects everyone else under 216C. The fact that no one has directly disclosed the recording indicates to me they aren’t confident they will win on intent. Placing a microphone on the table give intent to a point, I’m sure the lawyers will be arguing over whether that carries over to the private conversation or if it was a separate unintentional act to hit the record button on the camera and pick up the sound from the mic.
    Will be interesting to see what develops.

    • Anonymous

      The ‘accidental’ aspect is shaping up to be a load of bullshit. assuming ‘accidental’ does carry weight see third paragraph from end of guest opinion.

      • Callum

        If the accidental recording is proven then there is no 216B breach so publishing is not caught by 216C, it has to be intentional at 216B for there to be any case to answer under 216C. I agree the accidental bit seems to be a hell of a stretch but expect it may protect the cameraman in court, unless there is compelling evidence (such as not having 8 minutes of valid video to match the audio) then it will be hard to get past reasonable doubt.

  • Quintin Hogg

    Isn’t that a breach of section 216B?

  • Gazzaw

    Some interesting positions being taken by journalists now. Mike Hosking turned on Garner this morning, Leighton Smith open-minded but very critical of TV3 & Pravda. Many demean Garth George as a deluded old has-been but you cannot question his integrity and he has had the guts not to toe the party line at Pravda, something that John Armstrong surprisingly has not had the necesary spine to do.

    I have cancelled the Herald too. Fuck them – they claim to be a separate company to the HoS but my subscription money ends up in the same place. Never watch TV3 News or that little weasel, Campbell but theres a couple of good programmes that I like so I won’t cut off my nose to spite my face. Just My-Sky thru the ads which must piss off their advertisers mightily.  

  • Anonymous

    Yes, the media individuals have big problems here. Partly they are wanting to protect their backsides if charges are laid, and partly they do not want to be ‘dog tucker’ assuming John and co get back in. I have never seen John Key in such an ugly mood as over this incident (and who is to blame him) – even Phil Goff is gobsmacked suggesting that John is cracking up. John will not want dealings with journos who have been baiting him this week.

    • kevin

      Key could do a ‘clark’ and ignore them in future.
      All about ratings and headlines.

    • Gazzaw

      Love your last comment. I’ll be the PM’s senior media person is thinking about how many polite ways you can say ‘Get fucked’ when Garner’s or Campbell’s gofers want to set up an urgent interview.

    • MrV

      It goes even deeper than that.
      Mediaworks better hope they can pay their licensing fees next time they fall due.

      Also I wonder if the govt will be weighing up selling TV2/TVNZ so TV3 has proper commerical competition and then allocating funds for a truly ‘public’ broadcaster.

      Now who would be front runner to take a stake in TV2/TVNZ, well you wouldn’t rule out Sky taking such a stake, and with their access to programming TV3 might bleed.

      All extremely hypothetical I admit.

      • Anonymous

        TNVZ is already a ‘proper’ commercial competitor to TV3. TVNZ operates on a commercial basis with no govt funding.

        • MrV

          Then where have they been this week calling TV3 out? Thats right absent. Watch how Ch9 v Ch7 tear each other apart in Australia, thats how media organisations should be.
          Look at recent poor programming decisions that result in zero management accountability.

  • diabolos

    You all may just be proved wrong.  who knows.

    Where there is smoke – there is fire.

    And since when have lawyers been an esteemed congregation of the mighty … or their opinions…

    Unalterable truth since the cavemen …

  • Agent BallSack

    I suggest the conversation is more along the lines of:

    JK “You realise your’e fucked, John”
    JB “Yep”
    JK “Not as fucked as the Labour Party though” laughs
    JB “Yeah” chortles
    JK “Wish someone would put a bullet in Winston and Don”
    JB “I know a couple of crooked cops…..”
    JK “I friggen wish, mate”

  • Dave

    Commenting as a rank google reseacher, not a lawyer, I reckon the only possible defense lies in the definition of a private communication in 216A (1):

    “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.”

    The defense would lie in the use of the word “may”.  In the context, and given the media build up in the days preceding, even the clearing of the room of journalists by security would not exclude the possibility that some attempt to intercept the communication might be made by one or more of the journalists present, and that possibility should be assumed by the participants.

    I’m also interested in Winston’s comment that anybody seeing a strange bag sitting on their table at a cafe should immediately hand it in to management.  “That’s what decent people do.”

  • diabolos

    Here is a pertinent message from John Keys support base on youtube ..

    I think it cuts to the heart of the matter. 

    • Gazzaw

      Straight off the Stranded!

  • Anonymous

    What a sad bunch you lot are, running to the law statutes to try and make a case.
    1.       The Police need to be very careful tinkering with the election process.
    2.       They have to first decide to investigate and later charge people.
    3.       The final decision will be decided by the Courts.
    4.       The penalty if any will be decided by a Judge
    5.       None of the above are interested in you back room bush lawyers.
    Let’s get back to some real issues like credibility and transparency. Why does Monkey really want to shut down this process, if as he first said the conversation was so trivial he couldn’t remember what was said. Banksie then also developed short term memory loss.
    I would be very worried if we had a Prime Minister who couldn’t recall what he had for breakfast that morning. So assuming he is not suffering from Alzheimer’s, what is he trying to hide?
    Come on John stop passing the peanut butter and HTFU.
    216B isn’t that Whales place on the current National Party List, on current polling he might be in with a chance.

    • GPT

      The police are investigating a complaint.  The law statutes tend to be a good place to start when considering whether or not there is a case.

      But putting to one side whether the recording is illegal or otherwise there can be no doubt that it was a private conversation and that it should not have been recorded.  Why, therefore, should it be released?

  • Jester

    Two words to the great unwashed.

    Colmar brunton!