Transcript Document

Legal considerations for groups using
information to support their cause
Presented by Lucy Elwood
Elwood Law Ltd
Level 8, 23 Waring Taylor Street
PO Box 25 058
Wellington
www.elwoodlaw.co.nz
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 Act
Resources
There’s good
information on
privacy.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
The legal requirements are only part of the picture,
and loads of other factors will influence you, e.g.:
Your strategy for
publications
Perception,
credibility with
stakeholders,
and other risks
Legal and
practical
constraints
Objectives
of a
publication