"A number of inconsistencies"

I'm not sure quite why, but for some reason Twitter has failed as a medium for discussion of the debacle surrounding a recorded conversation between the Prime Minister and the ACT candidate for Epsom on Friday, known on Twitter as #teapottapes. I don't have much of any value to add to the commentary, but want to say my piece and it seems that this is the only way to do it.

If you've been living under a rock and don't know what's been going on, then here's a quick summary: On Friday afternoon, John Key and John Banks met in a cafe to share a "cup of tea" (whether tea was in fact consumed, I couldn't tell you). For reasons you should already know (or be able to find out for yourself), the timing and location of this meeting was widely publicised and, as expected, a large contingent of media turned out for the occasion. One thing led to another, and the media were sent outside to observe the drinking of tea through the window from the street. A freelance cameraman working for the Herald on Sunday left a microphone on the table (accidentally, according to him) which broadcast the conversation to his camera outside which, for some reason, was recording the whole time.

The Herald on Sunday have apparently decided not to publish the contents of the recording, because "it was supposed to be in private, and Key last night refused to waive privacy considerations" (see here at

There are two different ways of looking at this whole situation: the legal context and the ethical one.

For the law, Steven Price at Media Law Journal has outlined the rather complex legal situation. Not having any particular knowledge of media law (but having looked at the criminal aspect of this a while back), I'll attempt to summarise it as fairly as possible:

There are two torts that could be relevant: breach of confidence and invasion of privacy. Price thinks there's a prima facie breach of confidence, and thinks that the invasion of privacy argument is also tenable (though I disagree - I can't see how publication would be highly offensive, which seems to be the test accepted thus far). Crucially, Price notes that both breach of confidence and invasion of privacy claims can be defended where there is a public interest in publication. Given the hints that have leaked out over the past few days (most particularly from Duncan Garner at TV3 tonight), I think Price's conclusion that the defence would likely apply is even stronger now than it was when he wrote his post.

The other, more important, legal issue is a crime under the Crimes Act s 216B where someone "intentionally intercepts any private communication by means of an interception device". It is impossible here to deal with the intention requirement of the offence. The cameraman claims the recording was accidental (see the Herald on Sunday article above). Various reports suggest that it may not have been (Bill Ralston on Twitter here and here; Russell Brown at PublicAddress; Steven Joyce in a National Party Press Release).

As for the requirement that the communication be a private one, Price cites part of the definition of private communication from s 216A: "does not include such a communication 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." Now, there is considerable evidence that I'm wrong in this conclusion (see a press release from the Police), but I simply can't see how the conversation in question could possibly be considered private. This was a staged photo opportunity. Media were invited. It occurred in a cafe. True, media were asked to move outside while the two partook in the actual (alleged) tea drinking, but there were a number of cameras pointing at them the whole time from about a metre away through a window (see the photo in the TV3 story linked above). At best, I think the conversation could be characterised as what television teaches me is known as "off the record" in the industry. I'm not sure about this, but I don't imagine the "off the record" concept has any legal effect; merely one of journalistic ethics.

So, to summarise all of that, I don't see that there's actually any serious legal issue here. It's worth noting, however, that I'm probably wrong.

The more important issue is the ethical one. I think that, under all their bluster about public interest, the various media who have gotten their hands on a copy of the tape so far know that it would be wrong to publish it. I think they understand that they're dealing with something that's "off the record", and those of them with any professional integrity don't want to cross that line. The problem is, they've already crossed it. In at least two ways.

First, they've talked about it and dropped hints about what it contains (some pretty blatant hints, in the case of the TV3 story already mentioned - see this tweet from Russell Brown if you missed it). In doing so, they've built up a whole lot of hype about something that they claim to believe should remain private. Which simply doesn't make sense: it's either important enough to publish, or worthless enough to shut up about. What's more, all this nudging and winking is turning into a bit of an ego trip for a media who think it's up to them to decide what the public should and shouldn't know. If this is a story at all, then it shouldn't be about how superior a small group of the media are.

Second, all this hype is inevitably going to lead to the contents of the recording being leaked sometime in the very near future. It started at the Herald on Sunday, and has already spread to Newstalk ZB's Barry Soper, and TV3's Duncan Garner (and there seems to be some suggestion that Winston Peters has heard it, but I can't remember where that came from). The scramble on the part of the media to drop just enough hints to make us think they're engaging in such a glorious act of ethical restraint is inevitably going to result in exactly what they claim not to want: the widespread publication of whatever was said.

At the end of the day, whatever was said was none of our business. I'd like to think that, as pitiful as our news media are in this country, they still haven't sunk to the level of secretly recording conversations that have no real significance to anything. And, for the record, I'm absolutely convinced that this conversation has no significance to anything. If the implication from the TV3 report is accurate, then anyone who says otherwise is allowing the ACT party rather more attention that it deserves.


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