Hard News by Russell Brown


Special Sources

Keith Ng did not, as some people thought, give up his source on the Ministry of Social Develoment's terrible privacy and security breach this. What he did do was pre-emptively name Ira Bailey in this blog post, after the New Zealand Herald's Claire Trevett called him on Monday to confirm with him that his tip about the MSD kiosks had come from Bailey and indicate that she would be saying so in a story the next morning.

In this context, it made sense for Keith, in consultation with Bailey,  to get in ahead what looked to be a deliberate leak and tell the story himself. (As it happened, Bailey proved to be coherent and credible in giving an account of his own actions on Checkpoint.)

So who leaked Bailey's name? Not us, said MSD CEO Brendan Boyle. The Minister of Social Development, Paula Bennett, on the other hand, couldn't conclusively say that the information had not come from her office, and wasn't about to check to be sure. But, well, yes, someone in her office had viewed Bailey's LinkedIn profile twice last week

Someone could clear it up for us, of course: Claire Trevett. But as NBR's Chris Keall drily noted, "Ms Trevett declined to discuss her source."

"So," as Danyl points out, "now we have ‘who leaked the name?’ stories, written by journalists who know full well who leaked it, because they’re the people it was leaked to."

There are good reasons for that to be case, even when it generates this kind of farce. If sources, even sources who aren't necessarily noble actors, could not be assured of confidentiality, some forms of reporting would simply be impossible.

Yet if Chris Keall isn't going to be able force Claire Trevett to spill, a court might have a better chance of forcing her to provide evidence. Journalists were thus greatly cheered when the Evidence Act 2006 offered them some formal protection.

68 Protection of journalists’ sources

(1)If a journalist has promised an informant not to disclose the informant’s identity, neither the journalist nor his or her employer is compellable in a civil or criminal proceeding to answer any question or produce any document that would disclose the identity of the informant or enable that identity to be discovered.

(2)A Judge of the High Court may order that subsection (1) is not to apply if satisfied by a party to a civil or criminal proceeding that, having regard to the issues to be determined in that proceeding, the public interest in the disclosure of evidence of the identity of the informant outweighs—

(a)any likely adverse effect of the disclosure on the informant or any other person; and

(b)the public interest in the communication of facts and opinion to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts.

So the protection is not absolute, but a judge must be specifically convinced that the public interest in revealing an informant's identiy is compelling.

Which seemed well and good until, in 2010, the Serious Fraud Office demanded that the National Business Review surrender notes and files related to a series of stories Matt Nippert had been writing about South Cantebury Finance -- and threatened to use powers under the Serious Fraud Office Act 1990, which allow it to execute search warrants on media offices and to charge journalists who attempt to "obstruct investigations". The penalties stretch to imprisonment for 12 months or fines of $15,000 for individual journalists and $40,000 for publishers.

Much was made at the time of how the SFO's powers exceeded those of the police. Well, Media3 has been made aware that they're not the only ones.

The Commerce Commission has recently threatened to invoke Section 47G of the Fair Trading Act 1989, which has basically sat there since it was inserted via the fair Trading Amendment Act 2003 -- and states that the Commission may "require" a person to produce information or documents, on pain of fines of to $30,000. This seems to be the first time the provisions have been used in this way.

We'll be talking about this on the show this week. If you'd like to join us for tomorrow's recording, come to the Villa Dalmacija ballroom, 10 New North Road, Auckland, at 5.30pm.

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