Wednesday, 8 October 2014

Is Hager a journalist?

One claim I'm seeing repeated in various guises is that Nicky Hager may not have been acting as a journalist when he published Dirty Politics and thus can not claim protection under section 68 of the Evidence Act.

An example of this was left in the comments section on yesterday's post:
I think this revolves around whether he is a journalist as defined in that section. Recent judgement was that a book author was not a journalist.
The case referred to by my anonymous correspondent is based on the case of David fisher, the NZ Herald journalist who wrote a biography of Kim Dotcom.

David Farrar - an honest commentator if ever there was one [/sarc] - commented on the case, siding (unsurprisingly) with the police in their dispute with Kim Dotcom.  He refers favourably to the judgement handed down by Justice Helen Winkelman.

Farrar's main point, incidentally, was that the judgement was correct because, "Otherwise it would have given some authors a special status that other authors do not have." Then, a few lines later, he contradicts himself, saying, "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," which is, surely, giving some authors (newspaper writers) "special status" that others don't have.

I don't mind people disagreeing with me, I don't even mind if they are wrong (the two are nearly, but not entirely synonymous). I do mind when they are idiots who contradict themselves within a couple of breaths.

Getting back to Hagar, and whether he is acting as a journalist hen he published a book revealing hitherto concealed, important information to the public.  I think you can detect a whiff of bias in the way I framed that.  I think exposing the activities of the political class is the essence of journalism.  I think it is absurd to suggest that Hagar would enjoy legal protection if he had published his revelations in a newspaper, but these protections disappear because he sandwiched them together between thin cardboard covers.

With regards Fisher, his case was being considered under the Privacy Act.  Under that act, a 'news medium' is defined as "any agency whose business, or part of whose business, consists of a news activity" and Justice Winkelman found Mr Fisher did not count as a news medium in his own right:
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 is defined in the Privacy Act. (Paragraph 69)
Her second reason for her decision was:
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.  (Paragraph 70)
That would appear to be fairly clear, yeah?  Books are not considered to be 'journalistic endeavour' or 'news activity'.  Which looks bad for Hager.  You can't be a journalist if you write books, right?!

But, Justice Winkelman's ruling was under the Privacy Act.  That is not the act that I, or my anonymous correspondent, was referring to.  We were talking about the Evidence Act, a very different piece of legislation.

(It is worth noting that the ruling was the result of some very complex legal buggering which I don't

According to the Evidence Act, Section 68, a journalist "a person who in the normal course of that person’s work may be given information by an informant in the expectation that the information may be published in a news medium" and "news medium means a medium for the dissemination to the public or a section of the public of news and observations on news."

('News' is not defined. I recall, from my media student days, a handy definition - "News is something that someone, somewhere, does not want people to know." If you don't want to go with that definition, then I think we can safely 'news' define as "Stuff not known before that is of public interest.")

That's a massively broader definition than the one used in the Privacy Act.  I would say it easily encompasses Hager's activities.  He's a person; the normal course of his work involves receiving information from informants; when informants give Nicky Hager information, it is on the understanding that he is going to publish it in a book or article; and a book like Dirty Politics is a medium for disseminating news and observations on news.

I think Hager is safe under those definitions as Rawshark gave him information to disseminate through the medium of a book. And it was definitely in the public interest and definitely something the powers-that-be would have preferred to keep quiet.

I do not know if the legal means exist to exploit other acts to get at Hager's information.  But as it stands, my anonymous friend is making a comparison between apples and wildebeest and saying they are the same.  A ruling based on the provisions of the Privacy Act doesn't mean that a similar ruling would be made using the provisons of the Evidence Act.  They are very different pieces of legislation, serving different purposes and using different definitions.
n.b. Please don't take this as expert legal opinion and go to court based on it.  I might be totally wrong.


Anonymous said...

I'm the anonymous correspondent from yesterday - great work in clarifying that.

I am still interested that they obtained a warrant. Is the warrant available? Clearly at least one judge considers that Hager is *not* a Journalist as defined.

To clarify: I'm not coming down with an answer at this stage, but am interested in how the law is interpreted, rather than my gut feel. Gut feels are not compatible with law generally.

lprent said...

Anonymous is a legal idiot and clearly full of American TV rather than NZ reality. A fool who thinks that an accusation is proof of wrong-doing.

The police aren't required to judge, they are required to investigate and if they find sufficient evidence of something that they think that can make a charge over, to charge.

They can seek a search warrant at any time. However they would not unless they have good evidence that evidence of a crime exists at the location. The question is, why did they think that someone as competent as rawshark was would allow evidence to be left at Hagers? I suspect that they asked for a warrant for pure intimidation reasons.

Search warrants aren't usually done by judges either. They are done by court registrars. They merely look at the form of the warrant application to see tat it conforms generally to court rules and the Acts. If you ever read the applications, they are completely full of shit. In the case of activists, full of shit gleaned off the net.

Sometime in the next few days, the validity of the search warrant will be put in from of a judge. Then we will see if this was a valid warrant, or one that Hager should sue the officer who wrote or ordered the search warrant application for in a civil case. He should do it against those officer(s) on a personal basis

Of course there is a question about why the police haven't requested warrants against other journalists who have received information from rawshark. I guess because they have corporate lawyers behind them.

Based on what the police have revealed so far, I think that judges are unlikely to allow the proceeds from the search warrant to be examined.

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