We’ve been grappling with a difficult question recently, and one that’s featured in New Zealand’s courts too. What is and isn’t news media and when should the Privacy Act apply?
This is a difficult question because its answer can have a real impact on privacy. If we decide that a person is exempt from the Privacy Act, people have no recourse to our office. While there are self regulatory industry bodies like the Online Media Standards Authority, the Press Council and the Broadcast Standards Authority, there are gaps in the regulation of online media content.
A major rationale for exempting various bodies from the Privacy Act is the availability of more appropriate forms of regulation. The Law Commission noted the problem and recommended that new forms of media regulation could be developed to address this uncertainty in the law (particularly to address issues posed by digital communications).
Traditional news media is easy to recognise - newspapers, television broadcasters, magazines - we know it when we see it, right? What about journalists who publish news in other ways - in blogs or books? Let’s take books in this discussion because this has been our recent focus.
To be considered news media in the Privacy Act, a person or agency must have news activities as their core business. News activities are defined as the gathering and disseminating of news, observations on news, and current affairs. The grey area comes with the method a journalist uses to disseminate this news. The Privacy Act requires that news is disseminated in an “article or programme”. This seems rather limited. Does it really reflect the way the news media works today?
Where a journalist is seeking to disseminate news that they believe is in the public interest, and they can establish that this is a major part of what they do, then we think a broad interpretation of the exemption is warranted. There is some support for this in the Bill of Rights Act. Section 14 of the Act enshrines the right to freedom of expression. Section 6 of the Act states that, where an enactment (such as the Privacy Act) can be given a meaning that is consistent with the freedoms contained in the Bill of Rights Act, that meaning shall be preferred to any other meaning. We must bear this in mind.
Taking that as our starting point, we’re fairly comfortable that, in the case of a book, an “article” should be broadly interpreted in a way that is consistent with an established journalist’s right to freedom of expression, provided that what they’re writing in the book is news.
After all, it seems untenable to conclude that if a journalist published each chapter of a book as a separate article in, say, a magazine or newspaper, it would be news but if those articles were compiled in a book, it would not.
Rather than look to the length of a piece of journalistic writing, we need to look to the general business of the journalist, the content of what is written and the general means that journalist uses to disseminate their work. Such an interpretation recognises that news media today use more varied means to disseminate news than they did in 1993, when the Privacy Act was passed.
We haven’t come to this view lightly. Recent High Court cases have approached the issue in completely different ways: the Chief Justice in the Kim Dotcom litigation suggested that book publication could not fall within the exemption while the High Court in Slater vs Blomfield has recently found that blogging could be a journalistic activity that attracted some elements of legal protection. This strongly suggests there is room for disagreement.
We’ll tread carefully in this area but we see a need to ensure that the Privacy Act is not interpreted in a way that unjustifiably restricts the freedom of New Zealand’s media to disseminate news, express opinion and act in the public’s interest.