Editorial: Hager case triumph for public information

Dirty Politics author Nicky Hager. Photo / Mark Mitchell

Lawyer Felix Geiringer, acting for Dirty Politics author Nicky Hager, appears to have won a significant victory for the rights of investigative journalists to receive and publish information that might not have been obtained legally. Hager's book was based on private emails somehow obtained from the computer records of Cameron Slater, a journalist who publishes a website. Slater complained to the police that his privacy had been breached and the police mounted an investigation to find the hacker(s).

Hager had declared in his book he had not obtained Slater's emails, only received them, and provided no clues as to who was responsible. The police obtained a warrant to search his home. They photographed a print-out of an email exchange between Hager and another person and used that to conduct further inquiries. They also photographed documents showing log-in information for web accounts and a cloud-storage facility, using it to get into those websites, and took details of a cellphone which they used to get production orders from phone companies.

They also went to Hager's bank and got a record of his personal transactions. They contacted Air New Zealand, Paypal, NZ Customs and Jetstar, obtaining information on Hager from them. All this, police have acknowledged in an agreement with Hager's lawyers, settling his claim by agreeing to pay him undisclosed damages and give him an apology.

According to the document, the High Court has found the search warrant unlawful because police failed to mention in their application that Hager was a journalist who could claim journalistic privilege. Also when they issued production orders to the airlines and other companies, they ought to have told them Hager was a journalist who had claimed a privilege, according to their agreed settlement.

The notion of news media privilege is well established for proceedings of Parliament and the courts but less precise as a principle extending to journalists seeking information from other sources in the public interest. An out-of-court settlement might not be the best way to clarify the law but, if this one sets an effective precedent, it strengthens the privilege journalism must claim in order to protect confidential sources.

It means that if sources are giving out information they ought to have, they are at less risk from the law. Geiringer calls it, "letting people know that if they do [provide the information] to a journalist it is going to be very difficult and very rare for the police to circumvent that and figure out who you are".

Geiringer observers that this protection has become more important when just about all data and communications are online. "Everything's on computers, everyone's access can be logged. So if you are working for an organisation and you realise what they are doing is wrong, it's now increasingly difficult to get that information out."

His settlement bodes well for whistleblowers who could be traced easily, less well for those whose private digital communications are exposed. But so long as the information is in the public interest, it deserves this protection.