By M. B. Rodriguez Ferrere*
"We took the photograph. Just to prove that that's the kind of behaviour that's going on." This was Winston Peters' apparent talkback radio admission of New Zealand First's involvement in photographs of RNZ investigative reporter Guyon Espiner together with ex-New Zealand First President Lester Gray, as well as of Stuff reporter Matt Shand, appearing on the website 'the BFD'.
It is simply the latest instalment of the ever-thickening plot surrounding the probity of political donations made to the New Zealand First Foundation. Espiner told Lisa Owen on Checkpoint that: "I was shocked to hear the Deputy Prime Minister of New Zealand say 'we took the photograph'".
Espiner went on to say that he is not taking this this matter to the Privacy Commissioner or the police: "I'll leave all of that to others". If he wanted to, however, could Espiner take legal action against the taker of the photograph? Was it a breach of privacy? And what can - should - "others" do about this?
The Deputy Prime Minister later clarified on Twitter that: "A supporter thought it odd seeing ex-president Lester Grey [sic] with Mr Espiner so took a photo. Simple." From a purely legal standpoint, he is correct in that there's nothing to stop someone doing so.
In 2003, Mike Hosking and his wife sued a paparazzo for taking photos of his twin daughters whilst she was walking them on a street in Newmarket. The Court of Appeal held that since the photographs did not breach their reasonable expectation of privacy, and no one would find the publication of those photographs highly offensive or objectionable, there was no legally actionable breach of privacy.
This high standard has more or less remained since the decision, and it is almost certain that the photos would fall short of meeting it.
Moreover, as the Privacy Commissioner notes, if "you are an individual and you're taking the photo or making the recording in a personal capacity, this generally won't be an issue under the Privacy Act ." Finally, the new protections under the Harmful Digital Communications Act 2015 seem not to apply to the BFD website's publishing the photos: the revelations they contain wouldn't "cause harm to an ordinary reasonable person in the position of the [reporters]".
In the same tweet, Mr Peters, unprompted, noted that: "No private investigators have been engaged to follow Mr Espiner or anyone else." But even if they had been put on the case, the legal position wouldn't change since the Code that applies to private investigators allows them to "undertake surveillance of an individual who is in any public place, or any part of a public place".
NZF has no interest in following Mr Espiner or any other journalists. The very reverse applies. No private investigators have been engaged to follow Mr Espiner or anyone else. A supporter thought it odd seeing ex-president Lester Grey with Mr Espiner so took a photo. Simple.— Winston Peters (@winstonpeters) February 13, 2020
The legality of taking and posting the photos is thus fairly clear. As is often the case, however, just because something is legally permitted doesn't mean that it is ethical or desirable.
Even if he has no legal recourse, Espiner's shock is justified. Journalists - like anyone - may not be able to prevent people taking photos of them in a public place, but that doesn't get rid of the 'ick' factor associated with such a practice.
The Cabinet Manual requires any Minister of the Crown - even when acting in a political or personal capacity - "to behave in a way that upholds, and is seen to uphold, the highest ethical standards." Does this action then breach ethical standards?
While the Deputy Prime Minister has made clear that it was neither him, nor his office, but a supporter that took the photo, this is the same person who in 2014 made a Royal Commission of Inquiry into Nicky Hager's Dirty Politics revelations a bottom line for any political support. At the time, Peters said: "nything short of that will be deeply condemned by the public because the truth will have been denied them."
Dirty Politics, of course, had at its heart Cameron Slater's now-defunct Whale Oil blog. As Toby Manhire at The Spinoff notes, the BFD has self-described itself as the "new home" of Whale Oil. Not for the first time, the ironic chickens of Mr Peters' previous positions have come home to roost, and others - in particular his boss, the Prime Minister - may well determine that even being associated with the ethically dubious activities of his supporters falls short of what we can expect from the office of Deputy Prime Minister.
The taking of the photographs was likely more than pretty legal. But that doesn't mean it isn't pretty icky, and the situation in which Peters finds himself isn't pretty sticky, and getting stickier by the day.
*M. B. Rodriguez Ferrere is a senior lecturer in the Faculty of Law at Otago University