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The role of the news media as the "eyes and ears" of the public, and the corresponding right of such news media to be exempted from the Privacy Act 1993 (Privacy Act), is entrenched and well accepted. However, the extent to which the news media exemption applies to non-traditional forms of "news" published by "civilian journalists", such as online commentary and blogs, is a hotly debated subject.
A recent decision by the Human Rights Review Tribunal (Tribunal) raises interesting questions about the role of blogs as a "news" source, and sheds further light on what constitutes a "news activity" for the purposes of the Privacy Act. Notably, the Tribunal's decision indicates that whether a publication will be regarded as a "news activity" for the purposes of qualifying for the news media exemption will turn on whether that publication was "conducted responsibly". This raises questions for all media regarding potential editorialising with the benefit of hindsight.
Privacy Act exemption for news media
Currently, the Privacy Act does not apply to any "news medium" in relation to its "news activities".
A "news medium" is any entity whose business, or part of whose business, consists of a news activity.2
A "news activity" is defined as:
1. the gathering of news, or the preparation or compiling of articles or programmes of or concerning news, observations on news, or current affairs, for the purposes of dissemination to the public or any section of the public;
2. the dissemination, to the public or any section of the public, of any article or programme of or concerning:
b. observations on news; or
c. current affairs.
The Privacy Act does not attempt to define what constitutes 'news', and seemingly opens the news media exemption to a variety of publishers on a variety of platforms.
Between 1 May 2012 and 7 October 2012, Whale Oil blogger Cameron Slater published documents on his blog and other websites which contained personal information about a business consultant based in Auckland. That individual complained that the publications breached the Privacy Act, and in particular Information Privacy Principle 11 (regarding limits on disclosure of personal information).
The key issues considered by the Tribunal were whether:
- Mr Slater's blog (Whale Oil) was a "news medium"; and
- Mr Slater's publications were a "news activity";
and therefore exempt from the restrictions in the Privacy Act.
The Tribunal ultimately found that Whale Oil was (at the time of publication) a "news medium", but that his publication of the other person's personal information was not a "news activity".
Central to the findings were the Tribunal's comments that:
Personal information must itself qualify as news, observations on news or current affairs as:
The primary purpose of the Privacy Act is to protect the privacy of individuals, which in some circumstances yields to the greater public interest.
Just because a news medium may establish in one respect that it engages in "news activity" does not confer upon it a licence to publish the personal information of any person.
The exemption under the Privacy Act and the right to freedom of expression under the Bill of Rights Act 1990 do not confer a licence at large to publish personal information.
The news medium exemption is implicitly matched by a countervailing responsibility to "act ethically and to act in a manner that is consistent with the public interest in fair and accurate reporting of news, observations on news or current affairs."
The news activity definition includes a requirement to act "responsibly".3
The qualitative standard of responsibility is akin to the newly founded responsible communication defence in defamation law, as set out in Durie v Gardiner  NZCA 278 (for more information on this defence, please see our previous publication).
In assessing whether Mr Slater's conduct amounted to "responsible publication", the Tribunal took into account that:
the subject matter was not recent;
the subject matter was not worthy of discussion or of reporting by a news medium; and
several blogs comprised gratuitous allegations about the individual's conduct.
The Tribunal made takedown orders in respect of the relevant offending materials, and ordered that Mr Slater refrain from continuing or repeating such interferences with the person's privacy. The Tribunal also made a damages award of $70,000.
This decision suggests that for the news media exemption to apply, including to mainstream media, any personal information published must itself be news, observations on news or current affairs, that the publication must be "conducted responsibly", and whether a publication constitutes news, observations on news or current affairs will be a publication by publication analysis rather than being entity driven. These findings impose an additional 'responsibility' obligation on news media.
However, the decision also suggests that in assessing whether the news media exemption applies, the Tribunal may undertake an editorial exercise in considering whether the relevant subject matter is "worthy of discussion". This is an area that Courts have traditionally been reluctant to trespass into, and risks a chilling effect on the media.
The future of the news media exemption
It remains to be seen what impact this decision will have on the current news media exemption, particularly in light of the proposed modernisation of the Privacy Act.
Notably, the Select Committee has recently recommended exempting a "news entity" from the provisions of the Privacy Act, as opposed to a "news medium". This proposed amendment would mean that only organisations that are subject to independent standards of conduct can be considered a "news entity" for the purposes of the Act (for example, entities that are subject to the Broadcasting Standards Authority or the New Zealand Media Council). These standards impose responsibility obligations on the news media, and so arguably import expressly the responsibility requirement the Tribunal was concerned to ensure would apply.
It will, however, remain to be seen whether the additional responsibility on a case by case editorial basis is maintained when the new Act is brought into force. It seems that if it is, a limitation designed to restrict the activities of errant bloggers may have broader consequences.
If you would like to discuss any of the matters raised in this article, please contact the authors or your usual Bell Gully advisor.