Lawyer

Steven Price

A small recording device has been making big headlines lately. The so-called tea tape saga has outraged many, and raised serious questions about media ethics.

But covert voice recordings aren't as rare as you might imagine. Any time a TV reporter suddenly turns up at your home or office, your comments are probably being recorded. Even phone conversations are sometimes taped and broadcast without approval.

Are these tactics legal or fair?

Steven Price is a Wellington barrister specialising in media law. He’s also the author of Media Minefield – an essential guide for anyone with an interest in media law and broadcasting standards.

I asked Steven for feedback on several common scenarios involving ambush situations or clandestine recordings.

G: A television reporter arrives at your doorstep to quiz you about a routine customer complaint. You are not aware the reporter is recording your comments through a lapel microphone. The comments are later broadcast. Is this legal?

S: This is rather complicated. It raises issues of trespass, privacy and broadcasting standards.

G: Let’s look first at broadcasting standards. What are the BSA (Broadcasting Standards Authority) guidelines on covert recordings outside your home or office?

These require broadcasters and their journalists to treat you fairly and not to invade your privacy, among other things. You can only complain if the programme is broadcast, though you can use the codes in putting pressure on the broadcaster to ensure the programme is fair.

Hidden microphones and cameras are almost always unfair. There would have to be a strong justification for using them (such as prima facie evidence of wrongdoing and no other way to get the information for the story) and an equally strong justification for using any material obtained as a result (that is, the recording reveals something of significant public interest, and doesn't just make the story look sexy).

Hidden cameras and microphones are also likely to be highly offensive intrusions on people's privacy, and again the broadcaster would need to point to a strong public interest justification before using secretly recorded material.

G: What about the issue of trespass? Are you trespassing if you arrive on someone’s doorstep with the cameras rolling?

S: There's normally an implied licence for someone (like an encyclopedia salesperson) to come up to your front door and ask to conduct lawful business. But there's a case that says that this implied licence doesn't apply to a journalist who knows, or should have known, that or her approach was unwelcome. That seems very likely to be the situation where a journalist approaches with a concealed microphone. So the implied licence doesn't apply and it's probably a trespass from the outset.

This would be bolstered if the journalist has already made contact - by phone, for example - and been rebuffed. (There are some recent cases that may change this rule, but they apply to the police and it's not clear whether they would extend to journalists). That would mean you could sue in trespass and get damages if you won, and an injunction preventing the person coming back.

What you really care about though, is preventing publication of the recorded material. Can you? Only maybe. In some cases the courts have said they have power to issue such an injunction, but only in circumstances where the trespass was truly unconscionable and damages are not an adequate remedy. I should note that it's rare for people to bring an action like this.

Door-stepping people at home or on the street and putting allegations to them (particularly those who aren't used to dealing with the media) is also usually regarded as unfair. The Broadcasting Standards Authority usually says it can only be used as a last resort, after all other means of trying to get a response have failed. That's a bit odd, I think. If the reporter has emailed and phoned you and you've refused an interview, that would tend to make door-stepping even more unfair, since it must be clear that you will not talk to them and they're only really doing it to get pictures of you looking bad.

G: Your third and final point was privacy. Could door-stepping fall into this category?

S: The Privacy Act doesn't apply to the news media when they're gathering news. But there's a civil action for invasion of privacy. This involves the public disclosure of private facts. As long as the journalist identifies himself, then it's hard to see how anything you tell him can be a private fact, unless it's told to him off-the-record and he breaches that (in which case there's also a potential action for breach of confidence).

There is also a possible second strand to the privacy tort, though the development of this strand has been left open by the courts (it has already been established by the Broadcasting Standards Authority). It involves offensive intrusion into a person's interest in seclusion. It's possible that a journalist taking a hidden camera or microphone onto your property to grill you about your wrongdoing and covertly record it may breach this strand. The courts have power to grant injunctions or damages if the claim was upheld.

The broadcaster might argue public interest: it is probably a defence if the broadcast is about a matter of legitimate public concern. It's hard to tell on the facts in this scenario whether that defence would succeed.

If you warn the journalist to leave, and he doesn't do so, then you warn him again and he again fails to go, he's probably guilty of criminal trespass too. If he lies to you about the absence of a recording device or pretends not to be a reporter, there may be an issue of deceit or fraud.

G: Let’s look at a second, slightly different situation. What if a TV camera operator walks into your office reception with a camera secretly recording at knee level? The camera operator (or an accompanying journalist) then asks questions about a routine customer complaint. You believe you are off-camera. But your face and defensive comments are later broadcast without any warning. Can this tactic be challenged?

The answers here are pretty much identical to the first situation.

G: Here’s a third and final scenario: a business owner records a friendly interview with a TV journalist. At the end of the conversation, the camera operator continues recording while packing the gear. The business owner - assuming he is now off camera - makes inappropriate remarks to the reporter about a customer. He has no idea he is still being recorded until he sees the embarrassing comments broadcast on air. Does this break any law, or breach any standard?

S: This may involve a breach of broadcasting standards, which are created under law, but I'm not sure you'd then say the conduct was "illegal". And much will depend on the circumstances. Was the interviewee told that the recording equipment was off? Was it obviously on? Was the business owner used to dealing with the broadcast media?

If the journalist or cameraman knows that the equipment is still on and that the interviewee is labouring under a misunderstanding, then it's probably a breach of the fairness standard not to immediately point that out to the interviewee, and then to use the footage later. It's even possible (but a big stretch) that this would involve an illegal interception of a private communication, which is a crime.

* * * * *

If you want more information about media law, or print and broadcast standards, Steven’s book Media Minefield is available from his web site. For a more detailed account of the issues involved in the secret tea tape controversy, visit Steven’s blog.

Contact: steven.price@vuw.ac.nz
Web site: www.medialawjournal.co.nz

Join Greg on LinkedIn

Join Greg on Twitter

Newsmakers

Lawyer

Steven Price

Newsmakers

Free Tips and Information