Posts by Lucy Telfar Barnard
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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 is not the Crown; and b) he has (now) a right to request it.
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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 the judge to issue any rule about what Fisher must do?
To Kevin, thanks - I think I have done a good first year law course, but it was quite a few years ago. But I take your point: the judge can decide to ignore the contradiction if they choose - nevertheless, I would have liked to see her at least acknowledge that there was one.
I take her ruling to mean that a news medium is "an [agency-if-a-news-medium-was-an-agency] whose business... consists of news activity." I don't like it, but I can see it's practical.
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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 of broadcast journalism where the emphasis is on detailed analysis and discussion of news stories that have recently occurred or are ongoing at the time of broadcast”. The Kim Dotcom saga is clearly still ongoing, or there wouldn’t be a courtcase about it.
Which means that the critical word is “article”.
But that still doesn't solve the news medium =/= news medium contradiction.
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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 noting the contradiction between the two. What am I missing? I don’t see how a judge can just skip past the Act defining a news medium as “any [thing that, in relation to news activities, is not a news medium] whose business … consists of a news activity”. This contradiction offends me deeply.*
The contradiction cuts all the way through the judgement. Later, in para 74, J Winkelman notes that “Section 38 provides that “it is the duty of every agency to give reasonable assistance” to those who make information requests.” But she’s already stated up in para 66 that Fisher is not an agency. So does that mean he has no duty to give reasonable assistance after all?
Anyway, or also, or something, as previously noted, wherever possible, and certainly if there is any ambiguity, Acts must be read as if they were consistent with the Bill of Rights Act (s6 “Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning”).
There is the issue that this case, as it relates to Fisher, cuts both ways. I would imagine that in most cases where someone was seeking to use the Privacy Act to access material from a book about them, it would be in their interests to have that information released. Whatever Winkelman rules here would presumably have precedent for later interpretations of the Privacy Act.
So, would we want a ruling that people who had books published about them were preventing from accessing the material for that book on the basis that it was journalism?
Yes, I think we would, just as we do for any other journalism. So no issue there after all.
So what about the Bill of Rights Act?
As J Winkelman notes, (para 68) “The free flow of information through the media is vital to the life of a free and democratic society, and is supported by the protection of freedom of expression in the New Zealand Bill of Rights Act 1990.” In para 69 she acknowledges “the importance of these principles”, and only excludes them because the news media exception doesn’t apply. I think that if she had also acknowledged the contradiction in the definition of a news medium, she would, because of BoRA (and the right to protection from unreasonable search and seizure as well as the right to freedom of expression), have had to allow an interpretation of the Privacy Act that included authors of books containing journalism to be defined as news media, and the books themselves as news activities.
*IANAL. I have done all of 3 law papers. I like to think I grasped the principles of statutory interpretation very well, but it's entirely possible there's some subtlety I'm missing here. Anyone?
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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 Act."
I disagree. A news medium is "any agency whose business, or part of whose business, consists of a news activity."
An agency is "any person or body of persons, whether corporate or unincorporate, and whether in the public sector or the private sector .. and ... includes a department, but does not include .... in relation to its news activity, a news medium"So we have an internal contradiction. While a news medium is "any agency...", an agency cannot be a news medium. I don't see how those two things can be true at the same time. I don't have the full judgement. Did the judge highlight this anywhere? It seems like a pretty fundamental problem to me.
Second, I think you can interpret "article" more widely than the judge has done, if you go with the definition of "an item for sale, commodity" type definition rather than a section of a publication.
And it should be interpreted widely, because of the Bill of Rights Act.
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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?
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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", 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 subsequent book, being merely a compilation of those blogs, was still protected? Or would its later publication mean that the same material suddenly stopped being journalism?
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Speaker: The problem of “horror tenants”…, in reply to b.douglas,
If anyone has a good knowledge of the ResTenancies Act
I know the RTA backwards (or like to think I do, anyway), if you have any specific questions. I think you can PM me on here, or my email address is easy to find in a google search.
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Indeed. It's particularly underwhelming since our rental market tends to revolve around summer, and if a landlord's gone in and done a quick clean and paint, it can be hard to tell that the property's got a mould problem.
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No worries, Sofie, I know the type you mean. It'll be a DIY install of a positive pressure ventilation system. I'm crossing my fingers for some funding to research health effects of ventilation systems later this year :-)