John Key and John Banks will be wishing they had taken C.S. Lewis' advice that "tea should be taken in solitude", as "cuppagate" heads to court.
Cameraman Bradley Ambrose is seeking a declaratory judgment on whether the conversation between the pair was a "private communication" in terms of the Crimes Act 1961. If the conversation did not constitute a "private communication", then its recording (deliberate or otherwise) or subsequent disclosure will not be an offence. Any labelling of Mr Ambrose's conduct as illegal or unethical tabloid journalism could provide the foundation for a defamation claim - something Mr Ambrose's lawyer has said he is considering.
Question 1: Was it a private conversation?
Private communication must be "made under circumstances that may reasonably be taken to indicate that any party to the communication desires it to be confined to the parties to the conversation". Telling the media to clear out of the cafe would likely satisfy this aspect.
But the Crimes Act is clear that a communication will not be private if it occurs in "circumstances in which any party ought reasonably to expect that the communication may be intercepted ...".
Can either Mr Key or Mr Banks have thought that the media contingent would settle for watching them smile and chat though the window pane without seeking to overhear what they were saying? In the lead-up to the election, what journalist would not want to know what was said? The conversation also took place in a public cafe, was filmed and the communication was arguably intercepted at this point, even without the audio. Cue the lip-readers.
In defence of Mr Key and Mr Banks, they were on the other side of sound-proof glass. If the conversation did contain the type of comments that Winston Peters has attributed to them, then that also supports their belief of privacy. They subjectively thought that it was a private conversation.
But the test is objective - what a person ought reasonably to have expected.
Mr Ambrose's major difficulty is the courts' reluctance to make declaratory judgments in the face of contested facts and an ongoing police investigation. As the Crimes Act makes clear, what is reasonable depends on the circumstances.
Question 2: Was interception intentional?
Even if the conversation was a private communication, Mr Ambrose would only be criminally liable if he intercepted it intentionally.
Subsequent disclosure of the intercepted communication, or its existence, would only be unlawful if the party disclosing it had knowledge that it was illegally obtained. In light of the controversy about the legal requirements, knowledge of illegality by Ambrose or the other media he gave the tape to may be difficult to establish.
Question 3: Privacy Act
Outside of the criminal context, and regardless of the outcome of the declaration application, Mr Key and Mr Banks have other potential avenues of recourse.
The Privacy Act 1993 governs the collection, use and disclosure of personal information - which is broad enough to cover details of what a person has said. But the Privacy Act does not apply to any news medium in relation to its news activities. This includes gathering news, preparing it and disseminating it to the public.
The problem for Mr Ambrose is arguing on the one hand that his recording of the conversation was unintentional, but on the other hand, that he nevertheless falls outside the act because the recording was a consequence of his news gathering.
If it is true that Winston Peters has seen a transcript of the recording, and we do not know that, how did that happen and does any subsequent disclosure of its contents fall foul of the Privacy Act?
Mr Peters is not covered by the definition of news medium and any disclosure of personal information could be of interest to the Privacy Commissioner. Any alleged disclosure of the transcript to him might not relate to a news activity and could be problematic to defend.
Question 4: Breach of Confidence and Tort of invasion of privacy
In addition, publication of the conversation would almost certainly constitute a breach of confidence. A third party receiving information they know to be given under an obligation of confidence has long been held to be bound by that obligation.
Appealing to the tort of invasion of privacy is going to be difficult for Mr Key and Mr Banks given the public interest in disclosure.
For the reasons given above, it is questionable whether a reasonable expectation of privacy exists in this scenario or whether its publication would be considered highly offensive.
In any event, both breach of confidence and invasion of privacy are subject to a defence of legitimate public concern. The greater the intrusion, the greater the level of public concern must be.
In this case, the political context in which the conversation was held is likely to be especially relevant.
Mai Chen is a partner in Chen Palmer and adjunct professor, University of Auckland Business School. Thanks for assistance to Nicholai Anderson, privacy expert at Chen Palmer.