Thursday, June 19, 2014

A nonsensical decision

When is journalism not journalism? When it takes a lazy judge longer than five minutes to read it, apparently:

A High Court judge has ruled that a book written by a New Zealand Herald journalist about internet tycoon Kim Dotcom is not "news activity" and does not get special legal protections.

The book's author and media commentators fear the ruling could have a "chilling effect" on New Zealand journalism if reporters were unable to protect their sources.

Justice Helen Winkelmann handed down her ruling on Monday, stating that material gathered by Herald senior journalist David Fisher to write
The Secret Life of Kim Dotcom: Spies, Lies and the War for the Internet can be accessed by New Zealand Police and the GCSB in their case against Dotcom.

Well, technically she ruled that Dotcom had to issue a Privacy Act request to Fisher for his interviews, and pass relevant material from the results along to the crown. But the net result is the same: to void the journalistic privilege that would have been found to exist if they made the application directly. That privilege exists for a reason: to ensure that people can safely talk to journalists, and that journalists can do their job of informing the public. This ruling directly threatens that - and with it the free flow of ideas and debate in our democratic society. And all because a judge thinks that if your journalism is too long and published standalone rather than in a newspaper, it ceases to count.

Its a nonsensical decision. To pick a not-so-random example, Nicky Hager's The Hollow Men and Other People's Wars are clearly works of journalism. But not according to Justice Winkelmann. And she's just given the government and the National Party licence to try and uncover his sources (though they'd have to sue people individually, allege that they are sources, then make them issue Privacy Act requests).

As for what happens next, hopefully the decision will be appealed. If not, then Fisher can always simply deny that he is an agency, or that if he is, assert that he is engaged in news activity, and invite Dotcom to complain to the Privacy Commissioner. If that tactic fails, he could take appropriate precautions required under s45(b)(i) to ensure that any information released is seen only by Dotcom, and not passed on to other parties.