KEY POINTS:
Nicky Hager's use of National Party emails was not covered by the Crimes Act, the National Press Club was told yesterday.
Private investigator Trevor Morley, one of a panel of experts discussing Hager's book The Hollow Men, said in his view the emails could not be theft under the Crimes Act.
Queen's Counsel Helen Cull said Mr Morley was right but the matter was of civil rather than criminal law.
"It's really not a criminal matter. It's more a matter of the balancing act that the courts have to entertain, particularly in injunction actions, as to whether there has been a breach of confidence."
Civil law did protect some kinds of information - and courts were strong on protecting personal information and government secrets - but public interest was a strong defence.
"Is it in the public interest that people actually received these emails, letters, information that has got into the hands of a third party. Yes it was unauthorised, that third party shouldn't have it, but is there an overriding question about is it in the public interest that people should know?"
Media lawyer John Tizard said some might argue that the emails were copyright but that could not be used for matters that could be defended by public interest arguments. He said it was "a bit disturbing" that the defence of public interest was not addressed when the original injunction stopping Hager's book was issued.
Mr Tizard said he did not believe anything in the book was confidential so breach of confidence arguments did not stack up.
"Information isn't simply confidential because you say it is confidential. It may have been intended to be secret ... but in itself it was not confidential information. In itself it was never worthy of protection. That's why I think the book does us all a service."
Mr Tizard believed the public interest argument was strong.
Assistant Privacy Commissioner Katrine Evans said privacy of correspondence was protected in international law.
The key to law in New Zealand was the nature of the emails. "What is the context of those emails? Is it personal information or not?"
Hager told the group he had worked through the book with lawyers and names of "ordinary people" were removed.
- NZPA
