Elwood Law LtdLevel 8, 23 Waring Taylor StreetPO Box 25 058Wellingtonwww.elwoodlaw.co.nz

Legal considerations for groups using information to support their cause

Presented by Lucy Elwood

Some assumptions I’ve made when preparing for today:

• You all hold sensitive personal information about victims or other people

• You all publish some information about your activities and objectives (e.g. on websites, in fundraising materials, annual reports etc)

• You all use some form of social media (e.g. blogs, facebook, twitter etc)

• You all occasionally work with a family spokesperson or speak on behalf of others

• You have different backgrounds and knowledge about the relevant legal requirements

• You all from time to time get contacted by journalists

There’s freedom of expression, but:• Privacy: Am I using someone else’s personal

information without their authority?• Defamation: Am I defaming someone?• Confidentiality: Am I breaching someone’s

confidence?• Copyright: Am I using someone else’s material

without authority?• Is publication of the information supressed? • Is there a statutory requirement to keep certain

information confidential or to disclose it?

Privacy - overview

• Privacy concerns information about an identifiable individual person

• Relates to personal information not business information

• A person can be identified even if not named • Anonymising information can be difficult

(particularly when the facts are unusual)• Misuse of personal information may be:– Breach of the Privacy Act 1993– Invasion of privacy (a tort)– Breach of professional or other obligation

Privacy ActResources

There’s good information onprivacy.org.nz

It’s good to know the privacy principles:

Privacy Principles

• The information privacy principles are in section 6 of the Privacy Act 1993.

• Principles 1 to 4 cover the collection of personal information. This includes the reasons why personal information may be collected, where it may be collected from, and how it is collected.

• Principle 5 covers the way personal information is stored. It is designed to protect personal information from unauthorised use or disclosure.

• Principle 6 gives individuals the right to access information about themselves.

• Principle 7 gives individuals the right to correct information about themselves.

Privacy Principles cont…

• Principle 8 -11 place restrictions on how people and organisations can use or disclose personal information. These include ensuring information is accurate and up-to-date, and that it isn't improperly disclosed.

• Principle 12 covers how "unique identifiers" - such as IRD numbers, bank client numbers, driver's licence and passport numbers - can be used.

What personal information can you use and disclose?Generally it’s OK to use and disclose, accurate information if you believe, on reasonable grounds one or more of these things:•the info is publicly available •the individual has authorised it•it’s directly related to the purpose for which the info was validly obtained•it’s necessary to maintain the law (e.g. prevent an offence) or lessen a serious threat to life/health•the individual won’t be identified•it’s approved by Privacy Commissioner (e.g. in an information sharing agreement)•or a few other things apply, but they are less likely to be relevant

Invasion of Privacy

Basic rule:

It is an infringement of a person’s privacy to publish private facts about someone who has a reasonable expectation of privacy in them, and where the disclosure is highly offensive to a reasonable person in the shoes of that person.

There are defences of public interest and consent.

Invasion of privacy: key points • The person must be identified. They may not be named,

but recognisable to those who know them (but didn’t know the private fact).

• The facts must be private, i.e. not known to the world at large (even if known to some people). Private facts are usually sensitive.

• A public fact can become private again with time (e.g. a criminal conviction could become a private fact again, e.g. see the Criminal Records (Clean Slate) Act 2004).

• Public figures have lower expectations of privacy.• Unlikely for businesses to have privacy rights.• Rare for things occurring in public to give rise to privacy

rights.

Invasion of privacy: key points cont

• Highly offensive means “truly humiliating and distressful or otherwise harmful to the individual concerned”. A bit embarrassing won’t be enough.

• Public interest means things of legitimate public concern (i.e. not everything the public is interested in e.g. gossip). Generally will cover information about crimes or corruption, serious maladministration of government, deception etc.

• Proportionality in a publication is important.• Consent can be tricky to prove if the person is in

a vulnerable situation.

Guidance for social networking:

• Privacy settings give you more control. Use them. But don’t entirely trust them.

• Could the information harm you or someone if it got into the wrong hands? If so, it’s best not to put it on the site.

• Birthdates, addresses, phone numbers etc could be used by scammers. Be careful with personal details, even if public.

• Don’t risk other people’s privacy inappropriately – check with people before putting up sensitive photos or other senstive information on your social networking site.

Some privacy questions:

• Do I need written privacy consents from my members and people we support?

• Should I require people commenting on our blog to identify themselves when making a comment?

• How do I know when I’m allowed to talk about someone I’m helping?

• What should I think about when working with journalists? Should we talk about what they can publish about other information they overhear? How might their obligations of proportionality impact on their reporting?

Defamation

Legal test:

Defamation is the publication of a statement about a person that lowers him or her in the estimation of right-thinking members of society generally.

There are defences of truth, honest opinion and qualified privilege.

Practical question to help spot defamation:

How would you feel if this was said about you?

Defamation: key points• You can defame someone by what you infer, even if it is

literally true (e.g. describing a person as “hanging out with criminals” when they work as a prison officer)

• The person who reports or publishes is liable• Words like “alleged” and “rumoured” may not remove

liability• A dead person can’t be defamed, but their friends and

family who are still alive can• Unless restricted (e.g. name suppression), you can

publish, in good faith, fair and accurate info about court hearings, public meetings etc

• Damages can be awarded to cover financial loss or compensate for harm to reputation

Defamation: key points cont

• Truth: can be hard to prove (e.g. if you’ve promised confidentiality to a source).

• Honest opinion: must be worded as commentary (not fact) and should set out the actual facts. The opinion must be honestly believed.

• Privilege protects some disclosures e.g.: – Parliamentary privilege protects comments in the

House. – General privilege protects those with a social, moral

or legal duty or interest to tell someone something who has an interest in receiving it (e.g. OK to give the police potentially defamatory material if done in good faith).

Joe Karam’s support for Mr Bain

• Mr Parker and Mr Purkiss accused Mr Karam of being dishonest in helping Mr Bain (who was cleared in 2009 of murdering his family).

• They made comments comparing Mr Karam to a Nazi leader, coined the phrase “Karamalisation” (the alleged misrepresentation of facts), they suggested Mr Karam lacked integrity and was motivated by financial gain (legal aid money etc).

• There were a large number of statements published on their Facebook and on their Counterspin websites.

• Was this defamatory?

Joe Karam cont…• Mr Parker was required to take down the site and

remove all defamatory material from the Counterspin and Facebook website (even though the Facebook page was subsequently made “private”).

• Justice Courtney said they behaved egregiously in choosing to argue the defence of truth.

• They were ordered (together) to pay substantial compensation and punitive damages of $535,000 in total, and were prohibited from publishing any further defamatory material about Mr Karam.

• They will also have to pay some of Mr Karam’s court costs (which could be significant e.g. $500k).

Some points to discuss:

• Do you agree with the judgment and the award of damages?

• What are some other dangers in going too far in using published material to “seek justice”?

• To what extent can the use of phrases such as “we believe”, “we’ve heard rumours” and “it is alleged” be sufficient to prevent a publication being seen as an all-out assault on a person’s character?

Breach of confidence: briefly

• Have you signed a confidentiality agreement and would the use of the information breach that agreement?

• Was the information imparted in a situation of confidence and would a member of the public think it was confidential? If so, has the use been authorised (expressly or implicitly) or does the public interest in using the information for the proposed purpose outweigh the public interest in protecting confidentiality?

• Confidentiality claims can be tricky, but generally they are better understood so I’m not focusing on these today.

Copyright• Does someone else hold copyright in the material you are

publishing and will you be infringing those rights (e.g. copying a substantial part) without permission or defence?

• Copyright protects the expression, not the ideas.• Lots of government publications either have no copyright

(e.g. legislation) or are released under a creative common licence

• Usually it’s OK to include some material if it’s not a substantial part and you deal with it fairly (e.g. the source is referenced)

• Often you can get consent• Plagiarism can get you in trouble e.g. take down notices

Suppression

You need to comply with name suppression:•Judge-ordered suppression can be of names, individual facts, evidence or even a whole case. This type of suppression is usually formally announced by the judge and often preceded by an application being made in court.•Statutory name suppression can cause particular issues as it is usually automatic e.g. to witnesses under 17 years of age in criminal cases, for proceedings before Youth Court, for some complainants in sex cases etc, and the suppression can even prevent those concerned from disclosing the details without permission.

Other statutory restrictions

• There are various statutory requirements to disclose or withhold information e.g.:– Victim’s Rights Act restrictions (places limits on

evidence identifying place victim lives)– Criminal Records (Clean Slate) Act 2004

• Good rules of thumb:– If you have received information through a

particular process (e.g. a Court process), you can check with the person in charge of that process (e.g. the Registrar etc)

– Sniff tests, front page of the paper tests etc can be good guides too

Further information

Some potentially useful websites:

•Medialawjournal.co.nz has a good summary of Privacy, Defamation and other media related issues.•Privacy.org.nz has loads of information on the Privacy Act and guides to protecting and enhancing privacy.•communitylaw.org.nz/community-law-manual/ has a heap of free legal information about the law

And there are loads more too!

The law isn’t everything

Your strategy for publications

The legal requirements are only part of the picture, and loads of other factors will influence you, e.g.: