Journalist or Author?

June 20th, 2014 at 12:00 pm by David Farrar

The Herald reports:

A High Court judge has ruled that a book written by a New Zealand Heraldjournalist about internet tycoon is not “news activity” and does not get special legal protections.

The book’s author and media commentators fear the ruling could have a “chilling effect” on New Zealand journalism if reporters were unable to protect their sources.

Click here to read the ruling by Justice Helen Winkelmann.

Justice Helen Winkelmann handed down her ruling on Monday, stating that material gathered by Herald senior journalist to write The Secret Life of Kim Dotcom: Spies, Lies and the War for the Internet can be accessed by New Zealand Police and the GCSB in their case against Dotcom.

I can’t say I’m surprised by this ruling. Otherwise it would have given some authors a special status that other authors do not have.

Dotcom’s lawyers argued that the book was based on material gathered in the newsmaking process and was therefore an exception under the .

However, Justice Winkelmann found books were not within the definition of news activity by a news medium acknowledged under the Privacy Act.

“…the writing and publication of a book cannot, at least in this instance, be construed as news activity,” the ruling said.

News activity was preparing and publishing articles.

“Investigative journalism takes its form in long, detailed articles, which are covered by the Act’s definition. Books, however, are not.”

I think there is a difference between journalism and writing a book. A journalist is generally working for a news source, and they don’t get paid based on the sales of the news medium. But an author publishes a book for profit, and that is the primary motivation of books – profit, not journalism. Nothing wrong with that, I say.

Fisher said the ruling could compromise journalism in New Zealand if sources believed their interviews could be obtained through the courts.

“I think the ruling has the potential to undermine the public’s confidence in a free press,” he 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.

I would never assume that telling things to someone writing a book has the same journalistic protection as talking to someone writing for a newspaper etc.

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24 Responses to “Journalist or Author?”

  1. metcalph (1,367 comments) says:

    So Cameron Slater is a journalist based on his blog but David Fisher isn’t a journalist when writing his book?

    Regardless of the merits, that’s going to be a heck of a burn.

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  2. anonymouse (705 comments) says:

    I bet that Nicky Hager is $hitting bricks about now……..

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  3. Redbaiter (10,412 comments) says:

    Journalists have a public trust rating so low it sits between call center operators and real estate salespeople. They should not therefore be able to fool the public into giving them any preferred legal status.

    Whether they write books or articles in newspapers they should enjoy the same legal restraints as every other citizen.

    As for this BS about “free press” journalists have been abusing this concept themselves for the last few decades as they have embraced the concept of “advocacy journalism” and turned reporting in the west into a pretty good likeness of the Pravda style propaganda that characterised the old Soviet Union.

    I say get after them on any criminal matters. I’d start by asking Andrea Vance where she got her copy of the Kitteridge report from, and if she wouldn’t say, then at the very least she should have her NZ residency and work permit revoked and be sent back to Ireland.

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  4. Adolf Fiinkensein (2,703 comments) says:

    And the poor bastards thought they were sooooo clever.

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  5. flipper (4,330 comments) says:

    Anony…..

    Yep …square…with spikes.

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  6. davidp (3,585 comments) says:

    This assumes that there are two classes of people: Journalists who enjoy some special rights to free speech. And the rest of us.

    I’d prefer that we all enjoyed the right to publish, report, and offer our opinions freely. In the internet age that pretty much has to be the default position… We’re no longer in a world where some people write articles and other people read them passively. Everyone is a content producer these days.

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  7. Nick R (522 comments) says:

    Publishers of newspapers and broadcasters are just as motivated by profit as authors, as are freelance journalists, so I don’t see that as a point of distinction.

    I think there is a pretty good chance of the Court of Appeal overturning this decision if Dotcom appeals. The High Court judge didn’t really look at the substance of the book before concluding that it could not count as an article or a news medium. I think that’s a form over substance argument, and that it is probably wrong.

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  8. G152 (420 comments) says:

    Never ever tell a journalist anything.
    Even a ‘yes’ or a ‘no’ can elicit articles.
    Tell them nothing, take them nowhere.
    If asked your name Mickey Mouse is a good alias

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  9. polemic (460 comments) says:

    Annonymouse,

    Why would Nicky Hager be upset??

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  10. thor42 (971 comments) says:

    “… material gathered by Herald senior journalist David Fisher to write The Secret Life of Kim Dotcom: Spies, Lies and the War for the Internet can be accessed by New Zealand Police and the GCSB in their case against Dotcom.”

    Good stuff. The sooner that the fat German is sitting in a US prison cell, the better.

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  11. Albert_Ross (337 comments) says:

    Can’t accept the profit motive as the grounds for distinction between journalism and writing books. It stretches credulity to suggest that individual journalists are utterly indifferent – and it makes no difference to their career and pay prospects – as to how many people read their articles.

    Anyway, why should journalism have special status under the Privacy Act? If anything I should have thought that journalists ought to be under /more/ constraints, not less. If an individual’s privacy is not protected from journalists, then it’s not protected at all.

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  12. Yoza (1,926 comments) says:

    The way the New Zealand judiciary is going after Dotcom makes them look dirty. Deliberately twisting the meaning of the privacy act to accommodate the whim of US law enforcement agencies is just the latest in a long series of decisions that appear predetermined by others then handed on to the presiding judge.

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  13. Tarquin North (400 comments) says:

    I can’t see the problem. Fisher is a crap journalist and an even worse author. John Campbell is probably the only person who takes what he writes seriously, and let’s face it Kim Dotcoms book was just another vanity project most likely dictated to Fisher. I wonder if it out sold his awful CD?

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  14. redqueen (596 comments) says:

    The only people I can imagine who are having a ‘chilling effect’ are the people who don’t like the light of day.

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  15. metcalph (1,367 comments) says:

    The way the New Zealand judiciary is going after Dotcom makes them look dirty. Deliberately twisting the meaning of the privacy act to accommodate the whim of US law enforcement agencies is just the latest in a long series of decisions that appear predetermined by others then handed on to the presiding judge.

    Unfortunately for your theory, Winkelmann was the author of the two decisions that were (initial) victories for Doctom – the search warrant and the request for additional evidence.

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  16. shoreboy57 (141 comments) says:

    Since when was David Fisher even worth of “journalist”?

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  17. Viking2 (11,672 comments) says:

    So. on this ruling Don Brash can go after Hager.
    Good.

    Not a good ruling at all. Maybe the way the Law appears to read but it creates two classes of citizens. Next we will be having Legal and Medical Privilege attacked.

    Chilling when you get you mind around the precedent.

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  18. RRM (10,099 comments) says:

    The Governance/Legal industry must love this stuff…

    Limitless shades of grey enabling you to argue till you are blue in the face that what you did was fine, even though somebody else who did something virtually identical was “clearly’ in the wrong and HE should resign.

    A rich new vein of material for the lawyers to mine.

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  19. Fentex (1,136 comments) says:

    I think there is a difference between journalism and writing a book. A journalist is generally working for a news source, and they don’t get paid based on the sales of the news medium

    I don’t think this is correct. Journalists at web companies and newspapers, radio stations etc all work to profit from their efforts. That someone may profit from a book, written for whatever reason they choose does not change anything substantive.

    It is not a useful distinction about the value and benefits to society of their work on which a distinction may be made about their legal responsibilities. Journalism is an act, not a medium, and the medium in which it occurs is unimportant.

    If a person blogs an important news story the medium of their blog should not exclude them from being considered to be practising journalism simply because they do not work for a once newspapers website for example.

    Journalism is, as George Orwell described it “”Printing what someone else does not want printed: everything else is public relations.” and if we choose to have laws protecting that act so that we all may benefit from revelation of the hidden brought into light then we should protect every act that contributes to our being informed.

    I suspect concentration on the medium suits authority because it allows them to coral and circumscribe the investigations of journalists by tightening the definition or relying on the dominant players in a preferred medium to adhere to rules understood to benefit their dominance and authorities patronage.

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  20. Yoza (1,926 comments) says:

    Well said, Fentex.

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  21. smttc (767 comments) says:

    Fentex, the question was not whether writing a book is journalism. It was whether it was a news activity. In the context of the Privacy Act, it would seem not and yesterday media law expert Ursula Cheer agreed with the Judge that in the context of the Privacy Act not all things journalists do fall under the heading of news activity.

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  22. Fentex (1,136 comments) says:

    From the Privacy Act 1993, in which I hope we agree “News Activity” is a synonymn for “Journalism”…

    [Interpretation] news activity means—
    (a)the gathering of news, or the preparation or compiling of articles or programmes of or concerning news, observations on news, or current affairs, for the purposes of dissemination to the public or any section of the public:
    (b)the dissemination, to the public or any section of the public, of any article or programme of or concerning—
    (i)news:
    (ii)observations on news:
    (iii)current affairs

    I think “(a) the gathering of news … for the purposes of dissemination to the public or any section of the public:” clearly includes a book – if it’s contents includes news.

    The definition that matters is of news – not the medium in which it is disseminated because pretty much every media is included in the interpretation (even though it takes particular care to mention articles and programmes). So, is a book revealing of things not known to it’s readers disseminating news?

    I think the answer to that is clearly yes, and the judge has made an incorrect decision if smttc is correct that the decision in question is whether or not the law includes books as a news activity.

    Quite beside the broader question of whether or not we, as a society, want journalism in general protected.

    Further to which DPF’s thought that being in it for profit when writing a books makes a difference seems unwarranted given…

    news medium means any agency whose business, or part of whose business, consists of a news activity;

    If you’re writing in the business of profiting from your book disseminating news you’re explicitly covered.

    And least someone think books are absent from the laws consideration…

    publicly available publication means a magazine, book, newspaper, or other publication that is or will be generally available to members of the public; and includes a public register

    So if the matter was about the definition of whether a publication was a news activity a decision that singles books out as not seems unsupported to me.

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  23. smttc (767 comments) says:

    Ah there you go Fentex. Making assumptions the law does not make.

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  24. Fentex (1,136 comments) says:

    Making assumptions the law does not make.

    What is the assumption to which you refer?

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