Privacy Act exemption applied too narrowly.
Tortuous legal proceedings arising from the 2012 police raid on the Dotcom mansion have taken a disturbing turn for the authors of books. The High Court has ruled they do not have an exemption to privacy law that has been granted to reporters for news media. Herald journalist David Fisher, author of a book on Kim Dotcom, tried to invoke that exemption when the police and the Government Communications Security Bureau sought access to all recordings and transcripts he may have made, and all records of his communications with Mr Dotcom and the co-accused, that refer to the raid and its consequences.
Justice Helen Winkelmann has ruled the Privacy Act exemption did not apply because "the writing and publication of a book cannot, at least in this instance, be construed as a news activity". Her reasoning is hard to follow because she notes that the act protects the "gathering, preparing, compiling and making of observations on news" and the dissemination of the prepared story, "provided it is about news, observations on news or current affairs".
It is hard to see how a book devoted to the central figure in one of the most enduring news subjects of the past two years could not fall comfortably within that description.
The act's definition of exempted products, however, is limited to "articles and programmes". Judge Winkelmann observes that investigative journalism often takes the form of long, detailed articles, which are covered by the act. "Books, however, are not."
If she is right, the law is absurd. Books of this sort differ from feature articles only in their length. In fact, they could be published entirely as a series of articles in a newspaper or magazine.
It is patently unfair that the law should treat the same material differently if it is published in a different form. The discrimination could seriously harm the book industry if people feel they cannot speak to authors in confidence. This country could lose an important medium of topical information if the law does not also protect books.
The Dotcom ruling is all the more chilling for being aimed at the subject of the book, not its author. Under the Privacy Act, the material Fisher has recorded remains the property of Mr Dotcom since it is information about him. He would have preferred to have no right to claim the material from Fisher. That would have denied the police and the GCSB the ability to direct him to hand over the material for their defence against his damages claim. The Crown's application was just one of numerous "discovery" issues before the court, most of them brought by Mr Dotcom's lawyers against the state agencies.
Personal information held by news organisations is exempt from the act for a reason best explained by the Law Commission in a 2011 review of the Privacy Act.
Agencies that are subject to the act must collect information on an individual directly from that individual, they must allow the individual access to information held about them and not disclose the information to anyone else. As the commission said, "Not only could media not operate in such a context, they could barely operate at all."
That could equally be said of books. As the law stands, the material a writer might gather about a person of public interest can only be obtained from that person and cannot be disclosed to others, which is the purpose of publication. Parliament, when it accepted an exemption for news media, defines it too narrowly. Books deserve the same freedom. They serve the same public interest.