John Roughan: No protection in court for journalism in books

National Party leader John Key and Act Party member John Banks conspicuously discuss election strategy over a cup of tea. Photo / Dean Purcell

Privacy Act allows lawyers to demand recordings or transcripts of conversations with the Prime Minister.

For a year now I have been fending off lawyers who want copies of notes, recordings or transcripts of interviews I did with John Key for the book I wrote on him. They want to know anything he may have said to me on the subject of "teagate".

Key has made no secret of his belief that the recording of his staged conversation with John Banks in the 2011 election campaign was deliberate. Nor is it a secret that Bradley Ambrose, the freelance cameraman working for the Herald on Sunday that day, is suing the Prime Minister for the suggestion he would do such a thing.

Lawyers for Ambrose think I might have recorded something that will help his case. I've no idea why. The discussion of teagate in the book is of how Key let it get to him for too long afterwards, and his belief the experience helped him deal more calmly with Dirty Politics at the next election.

Not much of what he told me on any subject went unpublished but I've refused the lawyers' request on a point of principle. Obviously, a great deal of journalism could not be done if people who talked to us were at risk of prosecution or civil action for unpublished remarks or information provided in confidence. For that reason the right of access to personal information under the Privacy Act does not apply to information gathered by news media. But the exemption doesn't extend to books.

Those who wrote the Act in 1993 exempted "the gathering of news and observations on news" in "articles and broadcasts". No mention of books. Probably it was an oversight. The drafters must have read some of the many books written by journalists over the years, expecially on notable crimes, unsolved cases or challenged verdicts.

Writers of those sort of books, always newsworthy, have far more need of the Privacy Act's exemption than I do.

Why the Privacy Act, you may wonder. Your right to see information held about you is supposed to be for your benefit. Perversely though, the Act can be used by others to force you to obtain your personal information so that it might be used against you in court. You have to hand it over under rules of "discovery".

That's why, technically, the request to me has come from Key, though he probably isn't aware of it. At least, I hope not. He has enough on his plate. But the bigger issue of confidentiality for writers of books is just beginning.

Last year a Herald colleague, David Fisher, resisted the same use of the Privacy Act by the police and the GCSB who forced Kim Dotcom to ask for Fisher's records of interviews and communications for his book on the man who was prominent in the news at that time. It was the Dotcom case that brought the definitive ruling from High Court judge Helen Winkelman that the Privacy Act exemption for news gathering does not include books. Despite the ruling, the Crown did not force the issue. Fisher heard no more about it and the Crown's application for Dotcom's extradition has now been heard.

I have not been so lucky. When I refused to comply, explaining to the lawyers that I was not willing to assist a legal action that would erode the rights journalists need in order that people can speak freely to them for books, lawyers for Ambrose invoked the Winkelman ruling and Key's lawyers were obliged to refer my refusal to the Privacy Commissioner.

In September the commissioner's office told me to hand over the material, either to the lawyers or to the commissioner's investigations team who would decide whether it could be withheld. I wrote back, making an argument that I felt sure would have to succeed because it was precisely an argument that had already succeeded for none other than Nicky Hager.

Last year Cameron Slater took a complaint to the Privacy Commissioner to see if the Winkelman ruling would allow him to see the personal information stolen from his computer and used by Hager in Dirty Politics. Hager's lawyer, Steven Price, composed a cogent legal argument that Hager was a "news medium" and his book came under the definition of "news activity".

I stole his arguments but they didn't work for me. The commissioner's office has decided it is bound by Winkelman and obliged to consider my refusal an interference with privacy under section 66 of the Act.

I don't like defying the law. I would defy it to the bitter end for an informant who needed my protection but that is obviously not the case here. I'm going to comply under protest. I just hope that next time the Privacy Act is amended the Winkelman decision is consigned to the dustbin.