Prime Minister urged to drop police action over media taping

Prime Minister John Key should forget further action over the ‘secret’ media recording of his Epsom meeting with ACT candidate John Banks because nothing illegal has been done, a privacy expert says.

Gehan Gunasekara, a senior lecturer with The University of Auckland Business School’s Department of Commercial Law, says no breach of confidentiality or privacy took place at the café in Epsom where Mr Key’s conversation with former Auckland mayor John Banks last Friday was taped.

A Sunday newspaper has revealed one of its freelance cameramen accidentally taped the conversation with a recorder on the table where the two men were seated. The tape was handed to the newspaper, which has since released basic content of the conversation.

“There was absolutely nothing illegal about this recording and, as far as I’m concerned, there has been no breach of confidentiality,” Mr Gunasekara says.

“There are two reasons for this – first, there is a lot of American and some New Zealand case law that states there is no expectation of privacy in a public place such as a restaurant where it is reasonable to expect to be overheard.

“Secondly, given the importance of the public knowing about any secret deals or other discussions between politicians in the lead-up to the election, there is an overriding public interest in disclosing the content of the conversation.”

Mr Gunasekara says the difference between Friday’s occurrence and the ongoing News of the World controversy is that the second case involved journalists or people working for them hacking into people’s voicemail accounts. This is criminal in both the United Kingdom and New Zealand, and if a recording device had been been planted into the Prime Minister’s house or car, it would be illegal.

“However, a café is a different matter, especially as anyone seeing them conversing who could lip-read would be able to easily decipher the conversation,” Mr Gunasekara says.

“People don’t expect strangers to access their voicemail. However, they do expect strangers to overhear conversations in cafes and restaurants.”

Mr Gunasekara says the Crimes Act excludes from the definition of ‘private communication’ circumstances where the parties ‘ought reasonably to expect that the communication may be intercepted’. However, the Act also stipulates that the taping should not be intentional.