Private correspondence vs the public interest

The New York Times revealed texts telling the truth about Ted Cruz’s trip to Mexico this week to widespread acclaim. But Meghan Markle had a big win in court against a paper that published one of her letters unlawfully. Critics claim  that case "puts manacles on the media"  - and it could crop up in privacy cases here.

While Texans froze due to a winter storm and the failure of the state’s power grid, their senator Ted Cruz flew off to Mexico with his family for a break in the sun. 

The high-profile Trump sidekick was inevitably spotted and photographed and, once busted, he flew back the next day with a cover story for reporters. 

He said he was just chaperoning his daughters and never planned to have a good time for a long time across the border before returning to deal with the crisis. 

But that fell apart soon after when the New York Times published leaked chat group messages Heidi Cruz had sent to friends and family days earlier. These made it clear she’d been planning the trip to escape the cold and the hassle at home.  

There was a pretty clear public interest in Texans knowing that. 

In addition to misleading reporters, Ted Cruz had previously attacked rival politicians for abandoning their posts during a crisis - and last week he went on local radio to tell people to “stay sage and stay home and hug your kids” during the freezing storm. 

New York Magazine writer Olivia Nuzzi called the leaker “an American hero” for bringing Cruz’s hypocrisy, dishonesty and selfishness to light, but some media commentators reckoned it was unethical for private messages from a spouse to be used by the media. 

“(This) does Cruz the favour of reframing this story in terms of ethics and etiquette rather than politics and public service,” said Defector’s Laura Wagner.

Leak the group chats: https://t.co/ujy9Iml3u4 pic.twitter.com/5bp4GEK8dA

— Defector (@DefectorMedia) February 19, 2021

“Making public information that reveals elected officials to be callous or lying or, say, callously lying about fleeing to tropical beaches while their constituents are boiling snow for water and dying of carbon monoxide poisoning, is obviously good journalism,” she said. 

But publishing the private writing of another US citizen was condemned as very bad journalism last week in the UK. 

The UK’s Mail on Sunday ran a scoop last year headlined: "Revealed: the letter showing the true tragedy of Meghan's rift with a father she says has 'broken her heart into a million pieces'".

This was based on a long letter the Duchess of Sussex had written - by hand in meticulous script - to her estranged dad. 

She sued the publisher Associated Newspapers - and last week Justice Mark Warby ruled (PDF) publication of the letter was "manifestly excessive and hence unlawful." 

There will be a further hearing in March to decide "the next steps" - likely to be a big money settlement or eventually a bid award of damages, and the legal costs will be huge too. 

Associated Newspapers claimed to be “surprised and disappointed” while Meghan Markle said: "We have all won . . .  and we now know that you cannot take somebody's privacy and exploit it."

When she says “we”  - does she mean us? 

Former New Zealand Herald editor-in-chief Gavin Ellis - under the headline: Think twice when the letter begins with ‘Daddy’ - said this ruling was a wake-up call “as valid for New Zealand journalists as their British counterparts”.

“There may be instances where publication is justified in the public interest, but this judgment sets a high bar – and rightly so.” 

But media freedom advocates aren’t so sure.

One veteran media lawyer in the UK told Lord Justice Warby any letter that is leaked to a journalist cannot be published under the terms of this judgment. 

“You are putting manacles on the media,” Mark Stevens said.

"It’s a good day for the rich and powerful who can afford expensive PR people to curate a false image." 

There have been cases of our media reporting things public figures said out loud which they thought were private. 

For example, John Key and John Banks doing a political deal with the media pressing their noses against the windows of an Epsom cafe in 2011 was revealed in the so-called Teapot Tape recording.Sneaky recordings made at political party conferences’ were leaked to the media in 2008. 

The revelations in the 2014 book Dirty Politics - based on private emails leaked to author Nick Hager and published without consent - were widely reported by media once in the public domain.  

But there are few cases of clearly private and personal letters or conversations being turned into news stories without the consent of the parties involved. 

So is Meghan Markle’s marker for the UK press really relevant for media here? 

In his ruling, UK judge Mark Warby referenced a book he himself co-edited - The Law of Privacy and the Media, published by Oxford University Press. His co-editor was Nicole Moreham, professor of law at Victoria University of Wellington. 

“The most Interesting thing about this case is that it was fought at all because it’s been established for hundreds of years that letters between two people are private. But it’s a useful reminder that also applies to email and even intimate photographs that people have taken,” Prof Moreham told Mediawatch.

“The Privacy Act . . . has a media exemption in it so what we are talking about here is the tort of privacy - which is a civil action which a person can bring if someone feels their reasonable expectation of privacy has been breached.

“England and New Zealand have similar actions in that regard; you have to show a reasonable expectation of privacy and no countervailing free speech interest. New Zealand often looks to England for guidance because we have very few cases and they have a lot.  If we need to figure out what the public interest means, this sort of case is something the courts would look to,“ she said.

“It’s not part of New Zealand’s media culture to do these exposes on celebrities. With the phone hacking scandal in the UK, we’ve seen how far they go - and that is a long way away from what we get in New Zealand - partly because we don’t have that kind of competitive media culture and also we don’t have as many celebrities,” she said. 

“But this is a reminder of what it is you have do to establish in order to publish private correspondence without getting yourself into legal difficulties. It all comes back to the public interest,” she said.