20 Dec 2015

Search ruling claimed as a win for journalists

From Mediawatch, 9:11 am on 20 December 2015

A judge's ruling that a police search of Nicky Hager's home was unlawful has been claimed as a victory for journalists. It was a test case for the principle of journalistic privilege - but even the journalist who was raided told Mediawatch he wasn't sure precisely what that meant at the time.

Nicky Hager walking into Wellington High Court 15/07/15

Photo: RNZ / Alexander Robertson

Police investigating the alleged hacking of emails and computer data belonging to Whale Oil blogger Cameron Slater seized Nicky Hager's computers and other electronic gear during the search in September 2014, when Nicky Hager himself was out of town. 

At the time, Cameron Slater was reported as saying he was happy to see police vigourously following up his complaint, but Nicky Hager had previously said he had already returned information to the source - known as "Rawshark" - and he had nothing more that could identify him or her. 

Just before going to court for a judicial review of the search, Nicky Hager told Mediawatch in July it was a test case for the application of the principle of “journalistic privilege" 

"When the police raided my house last year, I had not actually heard of journalistic privilege and exactly what it meant.This court process I think is going to be really important in determining how safe investigative journalists feel in this country for years to come," Nicky Hager said.  

The law specifically recognises rights conferred on a journalist to protect certain sources: 

If a journalist has promised an informant not to disclose the informant’s identity, neither the journalist nor his or her employer is compellable in a civil or criminal proceeding to answer any question or produce any document that would disclose the identity of the informant or enable that identity to be discovered.

 -  Evidence Act 2006, s. 68

One of the claims Nicky Hager’s lawyers made was that police were obliged to fully inform the judge of issues for and against granting the search warrant. Nicky Hager was described in the application for the warrant as a "political author", not emphasising that Nicky Hager was a journalist, even though the Crown accepted that he is one.

Nicky Hager then argued journalistic privilege under the law ought to protect the confidentiality of information in his possession. Under the law a procedure is set out for information to be seized, and then sealed pending consideration of the right to scrutinise it.

Julian Miles QC, acting for Nicky Hager, also said the judge was not told that a claim for privilege was likely in respect of all the documents. It was claimed that dozens of confidential sources for his work were named in seized documents - and an undertaking that the information would not be looked at or acted on was broken at least five times.

In his own affidavit, Nicky Hager wrote:  

I understand that the Police have a job to do but their approach to me and my rights feels cavalier as well as disproportionately intrusive. My impression is that the Police had made no effort to understand or respect the role played by someone like me. 

Police briefing notes in court files later released under the OIA showed Police had anticipated Nicky Hager would claim journalistic privilege and "all items subject of that claim will need to be sealed, secured and signed at the scene". 

But In a "final comment" in his ruling released on Thursday, Justice Clifford said pointedly the police had not made it easy for Nicky Hager to claim privilege. 

When they discovered Mr Hager was not at his home, I would have anticipated that the police would have initiated contact with Mr Hager, told him that the Search, if successful, of necessity would disclose evidence protected by section 68 (of the Evidence Act 2006) and have positively given him the opportunity to claim privilege.

Journalists respond 

Matt Nippert - another journalist who has dealt with "Rawshark" - said police had "ignored Hager's important legal rights as a journalist to protect his sources" and "intentionally overlooked his journalistic credentials" to get the search warrant. 

"In effect Police had begun from the assumption that because Hager published his articles in book form and not a newspaper, and by himself as an independent and not for a major news organisation, he did not measure up," Matt Nippert wrote in the New Zealand Herald.

Last year the High Court ruled that a book by Herald journalist David Fisher was "not news activity" and material which could identify sources could be accessed by Police for a case against Kim Dotcom. Journalists writing books or working online as individuals can claim privilege with greater confidence as a result of this ruling, if their work is clearly in the public interest.

However, not every journalist was moved by what Nicky Hager himself called "very good news for New Zealand journalism." 

To which the Herald's Matt Nippert responded: