Public Address | Cafe | Hard News: The Big Chill

nzlemming

Thu, 26 Jun 2014 00:54:38 +1200

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…

Steve Barnes

Thu, 26 Jun 2014 00:34:31 +1200

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…

nzlemming

Wed, 25 Jun 2014 23:50:41 +1200

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…

Sacha

Wed, 25 Jun 2014 15:47:38 +1200

obliged to make a complaint

can they do that?

harry hausen

Wed, 25 Jun 2014 14:05:15 +1200

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…

Steve Barnes

Wed, 25 Jun 2014 10:35:17 +1200

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…

FletcherB

Tue, 24 Jun 2014 23:48:07 +1200

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…

Ian Dalziel

Tue, 24 Jun 2014 15:20:15 +1200

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…

Moz

Tue, 24 Jun 2014 14:35:38 +1200

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…

Josie McNaught

Tue, 24 Jun 2014 13:48:22 +1200

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…

Russell Brown

Tue, 24 Jun 2014 12:12:10 +1200

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…

harry hausen

Tue, 24 Jun 2014 11:49:22 +1200

"- 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…

Ian Dalziel

Tue, 24 Jun 2014 10:08:38 +1200

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…

WH

Tue, 24 Jun 2014 09:59:03 +1200

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…

Lucy Telfar Barnard

Tue, 24 Jun 2014 08:41:48 +1200

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…

Ian Dalziel

Tue, 24 Jun 2014 08:34:11 +1200

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)

WH

Tue, 24 Jun 2014 07:01:21 +1200

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…

Sacha

Mon, 23 Jun 2014 21:19:11 +1200

I don't see who wins from that

people who prefer the shadows

Craig Ranapia

Mon, 23 Jun 2014 21:12:08 +1200

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.…

Russell Brown

Mon, 23 Jun 2014 20:38:42 +1200

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.

Rich Lock

Mon, 23 Jun 2014 20:24:17 +1200

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.…

WaterDragon

Mon, 23 Jun 2014 17:38:43 +1200

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

Lucy Telfar Barnard

Mon, 23 Jun 2014 14:22:50 +1200

So the Evidence Act defines a news medium as "a medium for the dissemination to the public or a section of the public of news and observations on news". But that doesn't help much, as the only reference I could find to protections for journalists or the news media was…

Marian Evans

Mon, 23 Jun 2014 13:20:31 +1200

I wonder where material regulated by university ethics committees fits into this. I know that university ethics committees are rigorous about protocols that protect confidential material gathered for research purposes. Sometimes permission to carry out research is given only if interviews are kept very securely, accessible only to the researcher…

Sacha

Mon, 23 Jun 2014 13:09:41 +1200

Hager certainly meets the definition you cited – more than most newspaper reporters.

Donald Matheson

Mon, 23 Jun 2014 12:58:13 +1200

We have a shield provision in Aotearoa New Zealand, in the Evidence Act, that gives journalists the right to withhold information, unless a judge rules that there's a public interest demand for it. It gets complicated there too, though. A journalist is defined as 'a person who in the normal…

harry hausen

Mon, 23 Jun 2014 12:57:46 +1200

To put it another way: Kim's 'right' is to make an access request. It's not to actually have every bit of information about him, that's something that gets decided by the PC/Courts. So once he's made his access request and Fisher has said 'no' on whatever grounds he thinks appropriate,…

Sacha

Mon, 23 Jun 2014 12:48:51 +1200

acting in the role of a journalist

the Slater defense..

harry hausen

Mon, 23 Jun 2014 12:46:48 +1200

"But if the Crown lawyers had gone to the front door and sought third-party discovery from Fisher, wouldn't Fisher have a stronger case that it was BoRA-prohibited unreasonable search and seizure (BoRA only applies to the Crown)? Dotcom's access to Fisher's material isn't unreasonable search and seizure, because a) Dotcom…

Josie McNaught

Mon, 23 Jun 2014 12:46:43 +1200

This ruling could have had implications for books like Rebecca Macfie's excellent account of the Pike River tragedy then? If court proceedings had gone ahead. She has written another solid account about the ongoing battle that family of the victims in the CCTV building tragedy face in terms of getting…

Ewan Morris

Mon, 23 Jun 2014 12:45:42 +1200

Other than the courts, for breach of privacy.

Which is a very expensive option, not open to the average person.

Idiot Savant

Mon, 23 Jun 2014 12:43:47 +1200

By contrast, there is no alternative regulator people can go to if their privacy has been breached by something written in a book.

Other than the courts, for breach of privacy.

Ewan Morris

Mon, 23 Jun 2014 12:34:22 +1200

being obligated to exercise a right under penalty of contempt of court is a terribly clunky way of enforcing discovery

Exactly – you could call it an abuse of the Privacy Act. This is the aspect of the case that hasn't received enough attention, and is where I think the…

Lucy Telfar Barnard

Mon, 23 Jun 2014 12:29:50 +1200

But if the Crown lawyers had gone to the front door and sought third-party discovery from Fisher, wouldn't Fisher have a stronger case that it was BoRA-prohibited unreasonable search and seizure (BoRA only applies to the Crown)? Dotcom's access to Fisher's material isn't unreasonable search and seizure, because a) Dotcom…

Russell Brown

Mon, 23 Jun 2014 12:24:57 +1200

I know the Privacy Act very well: with all respect to the judge, it’s a fairly nonsensical judgment: being obligated to exercise a right under penalty of contempt of court is a terribly clunky way of enforcing discovery.

Especially when the Crown lawyers could have just gone to the front…

harry hausen

Mon, 23 Jun 2014 12:23:51 +1200

If Dotcom asks for it the presumption is that Fisher will provide every bit of information about him that he has, subject to Fisher being able to refuse where an exception under sections 27 to 29 of the Act. The main exception is 29(1)(a), that disclosure would be an unwarranted…

Lucy Telfar Barnard

Mon, 23 Jun 2014 12:16:08 +1200

So would it be right that the judge has only ruled that Dotcom must ask for the material, but not that Fisher must provide it? Since Fisher had no representation in court, and wasn’t party to the proceedings in any way, surely it would break some rule or other for…

Russell Brown

Mon, 23 Jun 2014 12:15:49 +1200

If the author declines to provide the information, is Dotcom obligated to make a complaint under s67?

Quite. I've had some interesting discussions about this, but won't have time to write it up until tomorrow morning.

Kevin McCready

Mon, 23 Jun 2014 12:15:44 +1200

Good questions Lucy. but I can't agree on your interpretation of law/jurisprudence. Have a look at Hart, H L A, The Concept of Law (1961) or Lisa Strelein’s book, “Compromised Jurisprudence: native title cases since Mabo” Aboriginal Studies Press, 2006, She shows Australian judiciary contradict themselves and turn themselves in…

Thomas Beagle

Mon, 23 Jun 2014 12:14:05 +1200

I'm feeling pretty happy with my submission to the Law Commission that a) where possible, protections for journalists should be extended to everyone, and b) if they're not available for everyone, they should be available to anyone "acting in the role of a journalist" regardless of whether it's their 1st…

harry hausen

Mon, 23 Jun 2014 12:06:07 +1200

I know the Privacy Act very well: with all respect to the judge, it's a fairly nonsensical judgment: being obligated to exercise a right under penalty of contempt of court is a terribly clunky way of enforcing discovery.

If the author declines to provide the information, is Dotcom obligated to…

Lucy Telfar Barnard

Mon, 23 Jun 2014 11:04:02 +1200

Except the definition of news activity doesn’t just include news, but also current affairs, which has a much broader time range. e.g. books published on MH370 are probably a bit old to be called news, but they’re certainly still current affairs; or wikipedia’s definition of current affairs as “a genre…

Lyndon Hood

Mon, 23 Jun 2014 10:55:10 +1200

On my scan of the act the critical word was 'news'. As if, by the time something is a book, it must be olds.

Lucy Telfar Barnard

Mon, 23 Jun 2014 09:31:54 +1200

I interrupted the last post for the commute, which also gave me the chance to think about it more. I’m now also looking at the full judgement. I find it quite confounding that Justice Winkelman has, in paras 66 and 67, listed exactly the interpretations I noted earlier, without also…

Ian Dalziel

Mon, 23 Jun 2014 07:45:27 +1200

book, book, book, chickens feeding...
All the President’s Men and many many other similar works, aren’t “journalism”
Granta, biographies, encyclopedias, all fiction....

Journalism > Journal > Jour
writing > book/record > day

diarists forget it...

Not to say that thinly veiled fictions can't affect peoples thinking either, [[http://en.wikipedia.org/wiki/Gulliver's_Travels| Gulliver's Travels…

Lucy Telfar Barnard

Mon, 23 Jun 2014 07:30:51 +1200

I've had more of a think about this, and I'm going to go out on a limb and say the judge did get it wrong.

First, she says "There can be no suggestion that Mr Fisher is himself a news medium as that phase [sic] is defined in the Privacy…

TracyMac

Mon, 23 Jun 2014 01:00:12 +1200

Wow, so All the President's Men and many many other similar works, aren't "journalism"?

Well, that's news.

Lilith __

Mon, 23 Jun 2014 00:59:41 +1200

I boggle that journalism could be defined by format rather than by content.

mpledger

Sun, 22 Jun 2014 22:18:40 +1200

So what happens if an excerpt of the book appears in the newspaper? Once it's in the newspaper does it become "news" and therefore does the book become protected? Or just the excerpt (and the notes pertaining to the excerpt) become protected.

What happens to the author if he refuses…

Craig Ranapia

Sun, 22 Jun 2014 21:22:39 +1200

There's also the small matter that if you write a book with institutional support or public money, I don't think it's entirely unreasonable they'd want some evidence you didn't just interview your laptop between trips to the liquor store.

Matthew Poole

Sun, 22 Jun 2014 20:49:52 +1200

Destroying notes is a silly suggestion, for a raft of reasons.

Can you please explain why for the benefit of dummies like me?

For one thing, if someone tries to sue you for something said in the book, those notes may be the only way to support a defence of…

Geoff Lealand

Sun, 22 Jun 2014 19:13:57 +1200

Certainly not for the money. It hadn't helped Alan Duff pay off his debts.

I had a bizarre experience a year or two ago when I contributed a chapter to an edited collection published by the German outfit Springer. After jumping up and down, they sent me a copy but…

Moz

Sun, 22 Jun 2014 18:58:49 +1200

Remove the stick to a jurisdiction safely outside of 5 Eyes and destroy all copies of the material in NZ.

I can imagine the courts being very unhappy about that. Saying "unfortunately to retrieve those records I need to convince the person holding them that I am not going to…

Chris Waugh

Sun, 22 Jun 2014 18:50:51 +1200

But then remembered it later, when you needed the material for your next book?

Nah. Remove the stick to a jurisdiction safely outside of 5 Eyes and destroy all copies of the material in NZ. Saves having to persuade a judge that you have these oh-so-convenient brain fades just when…

Lucy Telfar Barnard

Sun, 22 Jun 2014 18:20:43 +1200

What if you scanned all your notes and other research material onto a single USB stick, password protected the whole stick, and then forgot the password?

But then remembered it later, when you needed the material for your next book?

Matthew Poole

Sun, 22 Jun 2014 17:54:14 +1200

the best way to make these things go away, is do what the GCSB did, and 'age it off your computer'. This is techno speak for deleting it.

Easier said than done. For one thing, the moment Fisher got served with papers for this claim he became legally obliged to…

Moz

Sun, 22 Jun 2014 16:57:11 +1200

Destroying notes is a silly suggestion, for a raft of reasons.

Can you please explain why for the benefit of dummies like me?

Sacha

Sun, 22 Jun 2014 16:55:41 +1200

In related news, Cameroon Slater tests his blog's status as a "news medium" in the High Court tomorrow.

Juha Saarinen

Sun, 22 Jun 2014 16:55:06 +1200

Destroying notes is a silly suggestion, for a raft of reasons.

Juha Saarinen

Sun, 22 Jun 2014 16:54:09 +1200

Bizarre stuff. Does it mean that literary or narrative journalism which is often published in books isn't protected as "news activity" in New Zealand because this can only be done in articles as per Justice Winkelman's reading of the law?

And yeah, Farrar. Lizard brain response there that was possibly…

Idiot Savant

Sun, 22 Jun 2014 16:30:11 +1200

Nicky Hager is the best exponent of book form investigative journalism. Isn't he currently working on Wikileaks material pertaining to New Zealand? What are the implications for him from this ruling?

That he should destroy his notes after publication if they may become the subject of such a query.

Stephen Keys

Sun, 22 Jun 2014 15:53:00 +1200

I made much the same points on Friday
http://unframednz.wordpress.com/2014/06/19/david-fisher-please-lose-your-notes/

Nicky Hager is the best exponent of book form investigative journalism. Isn't he currently working on Wikileaks material pertaining to New Zealand? What are the implications for him from this ruling?

Russell Brown

Sun, 22 Jun 2014 14:31:56 +1200

So… what if, instead of (or as well as, but before) publishing his book as a “book”, David Fisher had presented the material as a series of blog chapters with subscriber access. Would that mean it was presented in a news medium, and therefore protected? Would that mean that the…

Russell Brown

Sun, 22 Jun 2014 14:31:03 +1200

But if a journalist wrote a book about the case and talked to people who had more evidence the person convicted could access all the sources, and continue his campaign of intimidation, under protection of the law .
Is this what this judgement means? if so that seems really unjust.…

Hilary Stace

Sun, 22 Jun 2014 13:27:12 +1200

I have a friend who faces ongoing harassment as the man she testified against and who was subsequently convicted of serious sexual offences, won permanent name suppression (because he came from a powerful family, as far as I can tell). But if a journalist wrote a book about the case…

Steve Barnes

Sun, 22 Jun 2014 13:11:23 +1200

an author publishes a book for profit, and that is the primary motivation of books – profit, not journalism. Nothing wrong with that, I say.
Typical of the right wing mind, money is everything and all else is namby pamby sentimentalism and we have no truck with that when we…

Moz

Sun, 22 Jun 2014 12:59:45 +1200

Or would its later publication mean that the same material suddenly stopped being journalism?

I expect the judge would argue that the material in the blog is still protected, but the material in the book is not and can therefore be queried. The law commonly makes such distinctions without a…

Lucy Telfar Barnard

Sun, 22 Jun 2014 12:46:36 +1200

I do find this finding extremely disturbing, though the fault is clearly with the Act; I don't blame the judge for the interpretation – there wasn't really an alternative way to interpret it.

So... what if, instead of (or as well as, but before) publishing his book as a "book",…

Edward Murphy

Sun, 22 Jun 2014 12:45:56 +1200

Having read Hager's Other People's Wars and been deeply impressed by it, I couldn't agree more. Russell, please take time off popular music topics to scream blue murder about this. You can make a difference!

David MacGregor

Sun, 22 Jun 2014 12:29:26 +1200

Why burn books about subjects you don't like when you can repress the likelihood that they will be written in the first place?

HORansome

Sun, 22 Jun 2014 12:02:49 +1200

I should like to point out that if anyone thinks you write books for profit, then they haven't a) tried to negotiate a book contract, b) looked just how little money the majority of authors might make from writing a book and c) written a book, which is a costly…

Steve Curtis

Sun, 22 Jun 2014 12:01:20 +1200

Isnt there a book out next week by Herald journalist/author John Roughan on John Key ( published by Penguin)

Perhaps this too could be a good source of background material if you had some sort of lawsuit against John Key.

Anyway, the best way to make these things go away,…

Public Address

Sun, 22 Jun 2014 12:01:20 +1200

Discussion from blog post.