Criminal Bar Association of New Zealand Inc and TV3 Network Services Ltd - 1997-128, 1997-129
- S R Maling (Chair)
- L M Loates
- R McLeod
- Criminal Bar Association of New Zealand Inc
Programme3 National News
BroadcasterTV3 Network Services Ltd
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
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.
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
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
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
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
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
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
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
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
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  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
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
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
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.
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
25 September 1997
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
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
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  3 NZLR 43.
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
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
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.
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  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
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
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.
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
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
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.