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Criminal Bar Association of New Zealand Inc and TV3 Network Services Ltd - 1997-128, 1997-129

Members

  • S R Maling (Chair)
  • L M Loates
  • R McLeod

Complainant

  • Criminal Bar Association of New Zealand Inc

Dated

25th September 1997

Number

1997-128–129

Programme

3 National News

Channel/Station

TV3

Broadcaster

TV3 Network Services Ltd


An appeal against this decision was dismissed in the High Court:
AP 334/97 PDF
233.95 KB
 


Summary

Christopher Reid, solicitor for Tukuroirangi Morgan MP, telephoned a TV3 reporter

to discuss an arrangement whereby Mr Morgan, in return for at least $20,000, would

give TV3 an exclusive interview on the Serious Fraud Office inquiry into Aotearoa

Television. Part way through the discussion, the solicitor said, and the reporter

agreed, the conversation was confidential. The conversation, including those

comments, was broadcast during an item on 3 National News.

The Criminal Bar Association of New Zealand Inc complained to the Broadcasting

Standards Authority, under s.8(1)(c) of the Broadcasting Act 1989, that both the

taping of the conversation and its broadcast was a breach of Mr Reid's privacy.

The Association also complained to TV3 Network Services Ltd that it was clear Mr

Reid was unaware that he was being taped, and that he considered the conversation to

be confidential.

Acknowledging that it had a responsibility to preserve sources of confidential

information, TV3 said whether or not the request in this instance justified regarding

the information as confidential, there was an overriding public interest to publish it.

For the reasons below, the Authority declines to uphold the privacy complaint. It

upholds the complaint that Mr Reid was dealt with unfairly, and imposes an order for

costs of $500.


Decision

The members of the Authority have viewed the item complained about and have read

the correspondence (summarised in the Appendix). In this instance the Authority

determines the complaint without a formal hearing.

Christopher Reid, a solicitor acting for Tukuroirangi Morgan MP, rang a TV3 reporter

to discuss an arrangement whereby Mr Morgan, in return for a fee, would give an

exclusive interview in relation to the forthcoming report from the Serious Fraud Office

about his involvement with Aotearoa Television. This matter had been established

when Mr Reid said, "And you and I, I trust, are talking confidentially". "Yeah", was

the reporter's reply, and he returned to the offer of the exclusive interview with the

comment: "We're talking cash?" The conversation then dealt with the level of

payment required, and Mr Reid was asked about what the reporter referred to as the

"moral issue" of an MP selling an interview.

The conversation, including the above comment about confidentiality, was played as

part of an item on 3 National News. In his introduction, the reporter advised viewers

that Mr Reid had not been aware that the conversation had been recorded. The item

concluded with a discussion with two senior Members of Parliament who were both

highly critical of Mr Reid's actions on Mr Morgan's behalf in view of the fact that Mr

Morgan was an MP.

The Criminal Bar Association complained both to the Authority and to TV3. Privacy

was the issue raised in the complaint to the Authority. Concern was expressed, first,

as to whether the media was entitled to publish anything when an undertaking of

confidentiality had been given, and secondly, because the media had recorded the

conversation without advising the other person that it was doing so. The

Association's president noted that as a lawyer he was given, and accepted, assurances

by the media that a conversation was "off the record".

In its complaint to the broadcaster, the Association repeated the point about the "off

the record conversation" and complained, first, that Mr Reid had been unaware that he

was being taped, and secondly, that there was an agreement that the discussion was

confidential.

Section 4(1)(c) of the Broadcasting Act 1989 requires broadcasters to maintain

standards consistent with the privacy of the individual. In its report to the Authority

on the privacy complaint, TV3 pointed out that it was not unlawful to tape a

telephone conversation and, it added, secretly recorded tapes were admissible evidence

in the courts.

TV3 was of the opinion that the Association's complaint was principally concerned

with the issue of confidentiality. It wrote:

TV3 is not unmindful of its responsibility to preserve sources of confidential

information. But the Reid communication was not in that category. It was a

request to keep confidential an approach by Mr Morgan to do a commercial

deal. If such information is capable of being categorised as confidential it is,

notwithstanding Mr Campbell's agreement, easily justifiable where the

publication is shown to be in the overriding public interest. This is the defence

of iniquity.


The Association rejected TV3's approach, noting that the reporter expressly agreed

with Mr Reid that the conversation was confidential. Further, the fee was sought in

relation to a proposed interview about an incident which was unrelated to Mr

Morgan's parliamentary conduct. TV3, it argued, had breached the confidentiality

agreement.

When it considered the complaint initially, the Authority decided that the

Association's complaint to TV3 was not confined to the issue of confidentiality as

this is not a matter addressed in the Television Code of Broadcasting Practice. Having

considered the circumstances, it concluded at this stage that the complaint in fact

raised the issue of fairness. Accordingly, TV3's response to this complaint was

sought.

In their reply, TV3's solicitors maintained that although the Association had referred

to privacy, the only ground of the complaint, if any, was as a breach of

confidentiality. While not accepting that the complaint raised the issue of fairness, it

said nonetheless that the specific grounds were irrelevant in view of the facts. It

continued:

There is a fundamental principle involved before one even considers how the

information came to be recorded, namely, whether the information conveyed was

such that it was inimical [sic] to the public interest. It was inimical for a

Member of Parliament to demand payment for the very obligation which forms

the heart of democratic government  accountability to those whom he

purportedly represents.


The letter then dealt with iniquity and, stating that the taping of the conversation was

incidental, maintained that TV3 was justified in breaking the confidence in view of the

iniquity principle. It concluded:

Finally, what should not be overlooked is the importance of TV3's disclosure in

the New Zealand's current political environment. Three strands of 'expression'

which, recently drawn together, provided the basis for the most significant

modern statement on the role of the media in the current political climate. The

three strands are: section 14 New Zealand Bill of Rights Act, the Electoral Act

1993 and the defence of qualified privilege  all brought together in the judgment

of Elias J in Lange v Atkinson anors (unreported Auckland High Court 24

February 1997 CP 484/95).


This judgment reinforces the importance of political accountability through the

media of political conduct, something Mr Reid endeavoured to 'sell'. At page 32

Her Honour states:

In a system of representative democracy, the transcendent public interest

in the development and encouragement of political discussion extends to

every member of the community ... Comments upon official conduct and

suitability for office of those exercising the powers of government is

essential to the proper operation of a representative democracy. Political

discussion in a democracy inevitably on occasion will entail the making of

statements which are likely to injure the reputation of others. Qualified

privilege in my view attaches to statements made to the general public

about matters of government. It is necessary for the public to be informed

about these matters for a representative democracy to function".


In that context it is unsurprising that Mr Reid's conduct on behalf of Mr

Morgan drew so much criticism. It was entirely contrary to the public policy

and the public's democratic interests. Either way it can be labelled: disgraceful

(Lion's case), outrageous (Woodward's case) or iniquitous (European Pacific's

case).


In its final comment, the Association maintained that the iniquity principle did not

apply because, first, it was legal to request a payment for a media interview, and

secondly, the matter to be discussed did not relate to Mr Morgan's actions before he

was elected to Parliament.

The Authority intends first to address the privacy complaint. Privacy was referred to

specifically in the Association's letter of complaint to the Authority. The point

which was said to amount to a breach of privacy was the alleged breach of confidence

which occurred when the reporter played the tape during the broadcast. The

Authority agrees with TV3's solicitors when they point out that the complaint does

not in fact refer to privacy. The solicitors summarised the issue when they wrote:

One can hardly complain about privacy if you are contacting the media to

disclose information.


To the Authority, this corresponds with privacy principle vii) which provides:

vii) An individual who consents to the invasion of his or her privacy, cannot

later succeed in a claim for a breach of privacy.


As the Authority does not accept that privacy of an individual is put in issue by the

broadcast, it declines to uphold the privacy complaint.


TV3's action in recording the conversation without advising Mr Reid is the next

matter to be dealt with by the Authority. Neither the complainant nor TV3 referred

to a specific standard when dealing with this issue. The Authority acknowledges that

the Television Code, unlike the Radio Code, does not deal with the matter directly.

Nevertheless, rather than dismissing this aspect totally, the Authority includes the

Association's concern about this issue when reaching its ruling as to what it considers

was the central issue raised by the complaint.

TV3 expressed the strong opinion that the Association was fundamentally concerned

with "confidentiality". Because of this interpretation, it referred to European Pacific

Banking Corp v TVNZ [1994] 3 NZLR 43. The Association in response maintained

that this case was "easily distinguishable", and TV3, in its reply dealt with the case

law regarding confidentiality in some detail. However, the Authority notes, the

standards contained in the Television Code of Broadcasting Practice do not deal with

confidentiality.

The Authority is in no doubt that the concerns raised by the Association relate to

fairness. TV3, the Association argues, was unfair to record the conversation with Mr

Reid without advising him, and was again unfair to play the tape in view of the

assurance as to confidentiality. Accordingly, the Authority has assessed the

complaint under standard G4 of the Code which requires broadcasters:

G4   To deal justly and fairly with any person taking part or referred to in any

programme.


The Authority now considers the specific facts relating to this complaint. Mr Reid, a

solicitor acting for Mr Morgan MP, approached TV3 to see if it was possible to

arrange a deal for an exclusive interview. The opening words of the conversation

between Mr Reid and TV3's reporter were not played during the item, but there is no

dispute that the issue of confidentiality was not raised by either party before the

exchange included on the broadcast.

As Mr Reid initiated the exchange, the Authority is firmly of the opinion that the

conversation, until the comment about confidentiality, was within the public domain

and for the reporter to use as he saw fit. Before confidentiality was mentioned, the

Authority notes, Mr Reid had advised TV3 that Mr Morgan wanted to arrange a deal

whereby he would, in exchange for a fee, grant TV3 an exclusive interview.

Because of the importance of the exchange in its decision, the Authority records again

the words contained in the broadcast. Mr Reid said, "And you and I, I trust, are

talking confidentially", and TV3's reporter replied "Yeah". In view of the assurance

about confidentiality, Mr Reid was able to be more direct in his bargaining. The

reporter, referring to the "moral issue" and the public interest, also asked "whether an

MP should be selling his story", to which Mr Reid replied "I haven't got a response

to that", and, after a pause, "How can I respond to it?" The broadcast also included

this exchange.

The Authority reiterates that it is not dealing with a complaint which is involved with

the legal concept of breach of confidence. In the context of this case it is unnecessary

for the Authority to determine whether in a legal sense there has been a breach of

confidence, or whether the facts justified the breach in the public interest. Nor is it

concerned with Mr Reid's apparent failure to request confidentiality at the outset of

the conversation. Rather, it is concerned with the concept of fairness as covered in the

broadcasting standards, and on this issue, the Authority concludes that playing part of

a tape of the conversation as a news item, recorded after an assurance of

confidentiality had been given, was unfair.

It was unfair because Mr Reid had good grounds to assume, after receiving the

reporter's assurance, that the conversation was confidential. On that assumption, he

was enabled to be less guarded than he might otherwise have been, and thus a degree of

entrapment was involved in the subsequent conversation. The Authority considers

that this is unfair and accordingly upholds the complaint as a breach of standard G4.

 

For the reasons above, the Authority upholds the complaint that the broadcast

by TV3 Network Services Ltd on 3 National News of a taped conversation

between Mr Reid and a TV3 reporter, after the reporter had given an assurance

of confidentiality, was a breach of the requirement to deal justly and fairly with

any person referred to in any programme, contained in standard G4 of the

Television Code of Broadcasting Practice.


It declines to uphold any other complaint.


Having upheld a complaint, the Authority may impose an order under s.13(1), or an

order for costs under s.16(4), of the Broadcasting Act 1989.

It notes that before the issue of confidentiality was raised, TV3 already had sufficient

material to generate a news item. However, because the broadcast included the

exchange after the assurance had been given, the Authority repeats its finding that it

considers that the fairness standard was breached. The Authority expects, as the

standards require, that contributors will be dealt with fairly. TV3's approach to the

issue of fairness on this occasion displays a cavalier element for which the Authority

considers the payment of costs is appropriate.

Order

Pursuant to s.16(4) of the Broadcasting Act 1989, as amended in 1996, the

Authority orders TV3 Networks services Ltd to pay costs to the Crown in the

sum of $500.00


Signed for and on behalf of the Authority

 

Sam Maling
Chairperson
25 September 1997

Appendix


Criminal Bar Association's Complaint to the Broadcasting Standards Authority
 10 June 1997

Gary Gotlieb, President of the Criminal Bar Association of New Zealand Inc,

complained directly to the Broadcasting Standards Authority about an item broadcast

on TV3's 3 National News. The item played a tape recording of a telephone

conversation between a Mr Reid, a solicitor, and a TV3 reporter [John Campbell], and

Mr Gotlieb expressed concern that although an assurance about confidentiality had

been given, the conversation was recorded and broadcast.

Mr Gotlieb said that the practice in the past had been to accept an assurance that a

discussion was off-the-record until it was agreed to go on-the-record. He commented:

If this general practice is in fact purely at the whim of the reporter then any

privacy that an individual may have is in jeopardy.


Criminal Bar Association's Complaint to TV3 Network Services Ltd  10 June
1997

In a separate complaint to TV3 Network Services Ltd, Mr Gotlieb stated that it was

clear from the broadcast that Mr Reid was unaware that he was being taped, and had

stated that the discussion was confidential. That assurance, he wrote, was breached.

TV3's Response to the Authority  24 June 1997

TV3 began:

It is neither uncommon nor unlawful for any person to tape a conversation with

another. There are no special rules applicable to the media which are not also

applicable to others. Indeed it will be well known to Mr Gotlieb that a secretly

recorded conversation is admissible evidence in a court.


On the basis that the issue of confidence was the substance of the complaint, TV3

acknowledged that it had a responsibility to preserve sources of confidential

information. It is also acknowledged that Mr Reid had requested that TV3 keep

confidential the approach to do a commercial deal. TV3 continued:

If such information is capable of being categorised as confidential it is,

notwithstanding [the reporter's] agreement, easily justifiable where the

publication is shown to be in the overriding public interest. This is the defence

of inequity: European Pacific Banking Corp v TVNZ [1994] 3 NZLR 43.


TV3 argued:

The inequity was the request by a member of parliament for a fee ($20,000 plus)

for the right to interview that member about matters for which he is already

accountable to the public by virtue of being a member. It was and is a matter of

significant public interest that a member of parliament should endeavour to

obtain a fee for doing that which he is obliged to do by virtue of being a member

of parliament.


It referred in support to the comments made by the politicians who had been

interviewed during the item after the tape had been played.

The Association's Final Comment  24 July 1997

Advising that the Association's executive agreed unanimously that TV3's actions were

wrong, Mr Gotlieb emphasised the following points. The conversation was taped

apparently without Mr Reid's knowledge or consent; the reporter agreed that the

conversation would be treated as confidential; Mr Morgan was entitled to request a fee

as the matter did not relate to his parliamentary conduct; that a party which breaches a

confidential conversation is legally culpable; and the European Pacific case was easily

distinguishable.

Mr Gotlieb contended:

The Criminal Bar Association consider that Mr Campbell has breached a

personal undertaking given by himself in regard to confidentiality and he and

TV3 have shown a lack of integrity which should be disciplined.

A concern I have from the Criminal Bar is that I frequently "talk off the record

to the media", if I can no longer rely on the media to respect such confidential

arrangements then the process of information gathering is at risk.


Further Correspondence

After its initial consideration of the complaint, on 1 August 1997 the Authority wrote

to TV3 about the Association's letter to TV3 dated 10 June. The Authority pointed

out to TV3 that it referred neither to privacy nor a specific standard. It expressed the

opinion that the letter raised the issue of fairness and suggested that the broadcast

amounted to a breach of standard G4 of the Television Code of Broadcasting Practice.

The letter was copied to the Criminal Bar Association as the complainant.

In its letter to the Authority (dated 19 August 1997), the Association did not refer to

the Authority's letter to TV3. It enclosed an extract from a text book on

confidentiality and wrote:

It is both clear from the extract that when a conversation is agreed to be

confidential, that is that both parties agree that the contents of the conversation

must be treated as confidential, then it is illegal at common law for either of

those parties to publish the contents of that conversation.


It was acknowledged that there were exceptions to the rule but, the Association

insisted, none applied in the present case. Stressing the importance of undertakings of

confidentiality in journalism, the Association concluded:

It is submitted that in the present case what Mr Campbell and TV3 did was a

blatant and flagrant breach of not only the common law of New Zealand in

regard to confidential conversations but also was done with an improper motive,

namely, to increase the ratings and the notoriety of the TV3 news item.

It seems quite clear that TV3 and Mr Campbell acted with complete disregard,

not only to the undertakings that Mr Campbell had given in regard to

confidentiality but in broadcasting this information in complete disregard to the

reputation of Mr Reid.

It is submitted that the actions of Mr Campbell and TV3 were not only unfair

but grossly improper and it is respectfully submitted that the information

provided in the extract from the textbook enclosed herewith may be of some

assistance to your enquiry.


TV3, through its solicitors responded to the Authority's letter of 1 August and the

Association's letters of 24 July and 19 August.

Given the contents of the Association's letters of complaint, TV3 maintained that the

letters raised, in a confused way, the different concepts of privacy and confidentiality.

As privacy was irrelevant when the complainant contacted the media to disclose

information, TV3 said that confidentiality was the only ground of the complaint. It

did not accept that fairness was an issue, but noted that it was not a matter of concern

in view of its submissions on confidentiality.

TV3's solicitors then dealt in detail with the iniquity principle as approved in

European Pacific v TVNZ [1994] 3NZLR 43. Some of the issues were dealt with in

the following paragraphs of the letter:

12. Mr Gotlieb appears to suggest that because it is a solicitor speaking to

TV3 it is somehow different than if it were a member of the public.

Whether it is a solicitor acting for a client or a member of the public who

wishes to cloak a conversation in "confidence" makes no difference. There

is no merit in the suggestion that because it was Mr Reid, a solicitor calling

TV3, the conversation somehow is different or more significant. It is not.

The issue remains: can the breaking of the confidence be excused.

13. Whether or not there is anything inherently unfair in taping a conversation

without Mr Reid's knowledge is beside the point. Journalists are not like

lawyers. Journalists have no obligation either in law or morally (and nor

should they have) to convey a person with whom they are speaking that

their conversation is being recorded. If that were a prerequisite no one

would make disclosures to journalists except about the most inane matters.

14. The whole philosophy of good news reporting is based upon accuracy -

truth. Taping a conversation is one tool of ensuring accuracy. It would be

wrong for the Authority to turn years of reporting technique on its ear

because of a tape telephone conversation which the caller (who happens to

be as solicitor touting a deal) did not know about. Nothing is unfair about

accuracy. It is a fundamental principle of good reporting. Unfairness

arises from inaccuracy, not accuracy.


On the basis that the breaking of the confidence was justifiable, given the precedents,

TV3 declined to uphold the complaint that the broadcast involved a breach of

confidence. Mr Morgan's behaviour, it concluded, was disgraceful, outrageous, and

iniquitous, and extremely contrary to public policy and the public's democratic

interests.

The Complainant's Final Comment  5 September 1997

In response to TV3's claim that it was entitled to breach confidentiality because the

conversation was iniquitous, the Association's Mr Gotlieb pointed out that Mr Reid's

telephone call involved a legal activity  ie a politician requesting a sum of money in

consideration for granting an interview to the news media. Moreover, he wrote, it was

not illegal for any person to receive financial consideration for granting a television

interview.

Mr Gotlieb referred to a recent example where it was "common knowledge" that a

rugby player, who had been accused of rape, was paid for an interview. Competition

between television broadcasters in not securing sensational interviews, he added, might

involve sour grapes. That, however, did not reflect the issue of whether the practice

was iniquitous, and, he maintained:

11. The general rule is therefore that any person including an MP is free to

solicit money from the news media in exchange for granting an interview in

regard to a sensational matter.


He continued:

12. It is also agreed law that generally speaking when parties both agree that a

matter will be confidential that in fact it must be treated as confidential and

that it is illegal at common law for there to be a departure from that

principle.

13. That is has always been accepted by Mr Reid that there are certain

exceptions to this rule. The basis for these exceptions really are common

sense. If a person is about or has just committed murder it is clear that the

recipient of this information is under a firm duty to report this matter to

the police immediately and it would not matter if reporting that to the

police were in breach of confidentiality. That is common sense.


In this case, Mr Gotlieb recorded, Mr Morgan had not committed a crime, nor was he

disclosing any information that came to him as an MP.

Expressing the opinion that the matter which Mr Morgan was discussing was a

"political football", Mr Gotlieb argued that the interview did not reveal iniquitous

behaviour, but was used by TV3 to improve its ratings. He concluded:

22. The fact that Mr Campbell and his station have continued to use this

material by broadcasting excerpts from it on subsequent occasions and

indeed using it in their advertising clearly indicates that Mr Campbell and

his television company have profited from this matter in that they have

obtained sensationalism and possibly an improvement in their ratings

which was the foundation for their breach of confidentiality action in the

first place.


Further Correspondence

In a response to the complainant's letter dated 19 September 1997, TV3 took issue

with the complainant's statement that, almost daily, MPs in the United Kingdom

were paid for interviews. Having made inquiries with ITN, TV3 said that it had been

advised that MPs, as a general rule, were not paid for news interviews.