On the Banks/Key taping saga

Bringing in the heavy legal artillery to suppress the contents of the Banks/Key conversation – the Police and/or a court injunction if necessary – may well halt the publication of the contents until after the election, which is probably the intention. Time is of the essence.

If the tape contains statements about National’s likely share of the vote, or Winston Peters chances of making the 5% threshold, or the Don Brash leadership of ACT – and all that is mere speculation – it will become irrelevant after election day, and the strategy being pursued by the PM’s office will have been successful, in a narrow sense, if it conceals the content until then,

The aftertaste though is already damaging National’s best asset – the perceived integrity of its leader. (If Key’s got nothing to hide, he’s got nothing to lose by releasing the tape.) The government shouldn’t be willing to sell down this state asset quite so readily. Partly because the legal status of the tape seems to be the weak link in the plan.

Taken together, the excellent contributions yesterday by lawyers Steven Price here and by Andrew Geddis here on Pundit make it seem highly unlikely that the taping could be proven in court to be illegal, thus protecting any subsequent publication of the contents from a successful legal action.

To paraphrase my understanding of the Price/Geddis positions (and they’re not saying exactly the same thing): to be illegal, the taping of a conversation between non-consenting individuals (a) had to be intentional, and the onus of proof is on the complainant to prove that was the case. In the context of a media scrum the claim that this taping was accidental seems sufficiently plausible to make it appear very hard to prove that it was, in fact, intentional. Given the lack of consent by either Key or Banks (b) the taping, as Price says, also had to be occurring :

in circumstances in which any party ought reasonably to expect that the communication may be intercepted by some other person not having the express or implied consent of any party to do so.

Was this such a venue? Well, can the same venue be an arena for actions where maximum media exposure is being sought one moment, and then be reasonably expected to be totally exempt from media scrutiny the next – given that the participants are willing to invite the media pack to stand only a metre away behind glass, trying to put devices on the glass to pick up what’s being said, and photographing and filming the conversation in question? As Geddis suggests, can you reasonably invite the same conversation to be seen, but not heard?

In other words, ‘legality’ or ‘illegality’ is not an obvious black and white matter in this case. Geddis also raises an interesting point as to whether the clearing out of the media from the café was a legally enforceable demand. The media were asked to leave, but their almost total compliance seems to have been purely voluntary. If one person – either accidentally or on purpose – did not consent, it does seem questionable whether that divergence is a legally actionable matter. Ethically dubious perhaps, legally actionable no.

Moreover, any court could end up agreeing with the media that such a conversation, in such a publically frequented place and in such bizarrely contrived circumstances could be construed as being exactly the sort of context where one “ought reasonably to expect that the communication may be intercepted by some other person not having the express or implied consent of any party to do so”.

In other words, if you want to say politically explosive stuff, get a room. Don’t do it in public, at a café with the nation’s media pressed together one metre away taking pictures. Because in the media stampede that you’ve orchestrated, things could well go wrong. As they did.

In which case (a) don’t whine about it afterwards and (b) don’t call in the Police to threaten the media into silence. That’s a really bad look. Especially for a government that only a couple of months ago was seeking to rush through legislation to drastically extend the power of state agencies to carry out covert surveillance of private conversations on private property.

Right now, it is the media’s call. They would seem to be on arguably solid legal ground if they went ahead and published. That’s even before you get to there being a public interest defence available here, as well. After all, if the print media could effectively get away with breaching court orders in its disclosures about the secretly taped utterances of the Urewera defendants, this occasion seems even more defensible.

The fact that the Herald on Sunday hasn’t (so far) taken the plunge suggests that either the content of the tape isn’t worth the risk or – just as likely – it feels that further damaging its relationship with the government isn’t worth the risk. Clearly, something has to give. Because right now, the status quo isn’t doing either John Key or the media any favours in the court of public opinion.


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