Last week's decision by Justice Helen Winkelmann denying Privacy Act protection to journalist David Fisher, whose research material is being sought by lawyers for the police and GCSB defending a damages claim from Kim Dotcom, may be correct in the letter of the law. It should also be deeply disturbing for anyone who cares about journalism.
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.
There is a protection from such demands available under the Privacy Act for "news activity" conducted by a "news medium", but the judge, while acknowledging the principles that prompted the inclusion of this exception, declared in her decision that:
... it is clear that the news media exception does not apply. I say this for two reasons. First, Mr Fisher’s authorship of the book was not undertaken by a "news medium". It is true that Mr Fisher is a journalist working for a news medium, the New Zealand Herald, and that in that capacity he has written extensively on Mr Dotcom. But his book on Mr Dotcom is not affiliated with the Herald, and was published by an independent publishing agency. There can be no suggestion that Mr Fisher is himself a news medium as that phase [sic] is defined in the Privacy Act.
Further ...
My second reason is that the writing and publication of a book cannot, at least in this instance, be construed as news activity. The definition of news activity protects two different forms of journalistic endeavour in its two limbs: preparing stories and disseminating stories. The first limb protects gathering, preparing, compiling, and making of observations on news, for the purpose of dissemination. The second limb protects the dissemination of the prepared story, provided it is about news, observations on news or current affairs. 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.
What it comes down to, oddly, is the definition of an article. In the judge's words, a "long, detailed article" is protected news activity -- right up to the point that someone slaps a cover on it and calls it a book. In terms of its purpose and the practice of researching and writing it, a book like Fisher's is undoubtedly a work of journalism. In the law, it isn't.
Dr Jarrod Gilbert, the author of Patched: the History of Gangs in New Zealand, has been forthright on the implications for writers doing work like his:
This is a massive issue that strikes at the heart of research, and should concern all of us. Regardless of what you think of Dotcom, and you can see him as the world’s worst villain, you must be able to see that research in sensitive topics will become extremely compromised by this move.
If the transcripts and notes of my book on gangs (and my new work on murder), many of which were highly compromising to some people, were requested from me I would either have to defy the order and go to prison or hand over the information and take the consequences of that.
Hands up everyone who wants to do research now. And if you do, you’ll only be able to do it on uncontroversial topics. Everybody with sensitive information will be too scared to talk. Certainly you will not be able to investigate anything that may involve whistle blowers.
There's an obvious candidate here: Nicky Hager. Hager's books, which have told us a great many things the powerful would not wish us to know, rely strongly on his interactions with whistleblowers. If Hager, Fisher, Gilbert and others like them cannot promise their sources confidentiality, their stories will go untold.
Not everyone is troubled by the implications of this decision. Writing preposterously in the NBR, David Farrar declares:
I think there is a difference between journalism and writing a book. A journalist is generally working for a news source, and they don’t get paid based on the sales of the news medium. But an author publishes a book for profit, and that is the primary motivation of books – profit, not journalism. Nothing wrong with that, I say.
Never mind that the kind of works in question are rarely undertaken in the expectation of profit (even in the trade's current straitened circumstances, you're vastly more like to pay the bills from a salary than from sales) and even more rarely deliver one, this is just an awful argument. It's facile, fallacious and entirely irrelevant to the law.
Farrar declares that a different decision from the judge "would have given some authors a special status that other authors do not have." Yes: the ones practising journalism.
He concludes:
I would never assume that telling things to someone writing a book has the same journalistic protection as talking to someone writing for a newspaper etc.
Well, some of us have principles. And I think anyone who cares about a free press and an accountable state should be making a hell of a noise about this. It would not be easy to encourage a government to to amend a law when its interests dictate otherwise, but the Press Council, whose submissions procured the exemption in the first place, needs to act here. Even though he wrote the book on his own time, Fisher's employer, the New Zealand Herald, must also take an interest. It's not acceptable that Paul Little, the book's independent publisher, should be left to battle the agencies of state on is own. And the rest of us need to shout very loudly that if the law allows this to happen, then the law is an ass.