David Fisher – Please “Lose” your notes

Accidents happen. Hard drives fail. Things get lost. Journalists like politicians can have memory lapses.

The Police and GCSB have convinced (or rather their legal counsel has – the Police and GCSB aren’t that bright) a High Court judge that senior New Zealand Herald writer David Fisher’s research for his investigative book The Secret Life of Kim Dotcom: Spies, Lies and the War for the Internet is not subject to the applicable provisions of the Privacy Act which protect journalists and their sources, because a book written by an individual, even though he is a well know journalist, is not an article in a recognised news medium such as a newspaper or magazine and cannot be construed as news activity. The absurdity of this is plain. As media academic Jim Tully put it in the Herald;

….there was a long history of New Zealand – and international – journalists publishing books based on their investigations, many of which were indistinguishable to published articles.

The ruling also raised questions about televised journalism, and if news items screened on current affairs shows could be treated differently to a documentary or series, he said.

It will be unwelcome news to veteran investigative journalist Nicky Hager who has written several expose books, some of which have been serialised in newspapers. If Hager for instance brings out a book on New Zealand content in Wikileaks, will the Police and GCSB have the right to his material and sources because it is in book form and he is freelance, not writing for a “recognised” news outlet?

A book is in most cases a more comprehensive and definitive piece of journalism and “news” than a 1000  word article. Many “articles” are written about topics which are not current. They involve weeks, months or even years of research. Do they meet the definition of “news” or “current affairs”? Is there a time limit to being regarded as news or current affairs?

Is there a word limit that Justice Winkelmann would like to apply to articles beyond which point they become a book?

What legal status is an E-book?

If the New Zealand Herald also became a publishing house, what status would books published under its name have?

Are sources in a TV3 current affair show protected but not in a hour long documentary? What about documentaries by outside production houses or for instance the documentary by Robert Bruce on child poverty.

I hope this is taken to appeal, that in the mean time Fisher can keep his research out of Mr Plod’s sticky fingers, and that he can be protected and defended if necessary by the New Zealand Herald, Kim Dot Com and the New Zealand Press Council. Given the interest the Law Commission showed in protecting the media’s rights in the Privacy Act’s review, it is to be hoped they and the Privacy Commissioner can lobby to have the Act clarified and amended if necessary. Otherwise, as David Fisher himself said,

The impact of the ruling has a potential chilling effect on anyone who wants to deal with a journalist who is writing a book.

Governments everywhere, including New Zealand, are trying to intimidate whistle blowers. This ruling will aid that objective.

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