Case Number: 2010

Council Meeting: NOVEMBER 2007

Verdict: Upheld in Part with Dissent

Publication: The Dominion Post

Ruling Categories: Confidentiality
Balance, Lack Of

Maritime New Zealand (“Maritime”) has complained to the Press Council about three articles (including an editorial), which appeared in The Dominion Post on 11, 13 and 14 November 2006. Similar articles also appeared in other Fairfax publications but the complaint is against The Dominion Post alone. It is on the grounds of breach of confidentiality, unfairness and balance.
The Council has not upheld the complaint on confidentiality (which is seen as the main complaint) with one Council member dissenting. The complaint on balance is not upheld. A majority (6 / 4) has upheld the unfairness complaint.
The background to the publications was a Cook Strait crossing of the interisland ferry Aratere on 3 March 2006 when, in very rough seas, the ship heeled over causing injury to passengers and damage to vehicles. As a result of an inquiry into the incident, Maritime issued to interested parties a draft report which contained at the foot of each page:
“DRAFT – Maritime New Zealand Investigation Report
This is a private and confidential preliminary report to interested parties only for the purpose of comment to Maritime New Zealand. Any breach of this confidence may result in legal action being taken by Maritime New Zealand.”
The newspaper was aware that the report was confidential. It took the view that it was in the public interest to publicise the report and did so without seeking any comment from Maritime.
The first article on 11 November referred to the ferry becoming “extremely close to capsizing”. It suggested that the skipper showed poor judgment. It noted that:
“The draft Maritime New Zealand Report into the sailing, leaked to The Dominion Post before its official release next month, makes a string of safety recommendations…”
The second article on 13 November, under the heading “Calls for Action on Ferry Report”, reported the reaction of some of the passengers and the standfirst noted “Passengers in Close Call want New Rules”.
The editorial appeared on 14 November under the heading “Placed in Peril on the Seas”. It included the statement:
“The report is still only a draft but it leaves little doubt it was more by good luck than good management that a Wahine-style disaster was avoided.”
The Complaint
As noted above, there are three distinct elements to the complaint. Maritime retained a barrister to make the complaint who summarised the confidentiality complaint in the following terms:
“It is Maritime New Zealand’s view that by intentionally breaching the obligation of confidentiality by which it was bound the Dominion Post has acted unethically and intentionally so.”
Maritime’s position is that the publication of portions of the draft report seriously undermined Maritime’s investigation processes and this will have an impact on future investigations. It says that confidentiality is an important part of its investigation process and that such confidentiality encourages free and frank discussion and disclosure by witnesses and interested parties which is plainly in the public interest. In Maritime’s view its ability to conduct future investigations on a confidential basis has been seriously compromised, and that the Dominion Post has acted unethically.
The complaint under Principle 1 of the Council’s rules (the unfairness complaint) is that the Dominion Post acted unfairly in publishing parts of the draft report which were still subject to further comment from interested parties, and without advising its readers that as a result the final report may in some respects be in a different form. Likewise Maritime was unable to respond to the published commentary on the draft report because as the report was in draft it was potentially subject to further change.
The final ground for complaint was also under Principle 1, namely that the reports lacked balance because the newspaper had not sought the views of Maritime before publishing the articles. While this complaint may be based on Principle 1, one reason for the complaint is that Maritime believes it was denied an opportunity to prevent by legal means the publication of the articles.
The Dominion Post’s position
The Dominion Post also took legal advice and provided an opinion from its own solicitor. The opinion analysed the legal principles which constituted a breach of confidence. It suggested that the Dominion Post may not have infringed one of the basic elements of breach of confidence, namely that the unauthorised use of the confidential information was to the detriment of Maritime. Further it was suggested that, even if there had been a breach of confidence which prima facie would have allowed Maritime to institute legal proceedings against the Dominion Post, the latter would have been entitled to avail itself of the public interest defence.
The public interest defence is available if the public interest in publication outweighs the countervailing interest in protecting the confidence of the draft report. It was suggested that the benefits (in addition to the universal benefits of a free press), possibly include informing the public about an issue of public safety.
The Council seeks in its Statement of Principles to uphold the standards of ethical journalism. It is not a court of law. It is accepted by the Dominion Post that the draft report had the necessary quality of confidence and that it was communicated in circumstances importing that obligation of confidence on the Dominion Post. It was aware that the report was confidential and had been leaked to it. However, it does not concede that there has been a detriment to Maritime. The Council cannot, and does not, come to a view on the legal issues.
The Council’s position is that a report received as a result of a third party’s breach of obligation of confidentiality should not be published unless there is an overriding public interest. In assessing whether there is such an overriding public interest the Council cannot come to the conclusion by determining fact and applying legal principles. It is required to make its assessment by considering the general factual matrix and applying its collective judgment to the importance to the public, or a section of it, of the matters of the report.
The Council does not uphold this complaint, as it is of the view that there was an overriding public interest in publication. The report was an inquiry into a matter involving public safety. The public was entitled to know the reasons for the near disaster and the steps proposed to alleviate future risks. A considerable number of the public cross Cook Strait and were entitled to be informed of these matters. The public interest was such that the statutory right of freedom of expression in s14 of the New Zealand Bill of Rights Act 1990 was not restricted by confidentiality.
Although the report was a draft, it came several months after the incident and there was a public interest in its contents being made public sooner rather than later. The Council is not persuaded that the publication was likely to have the adverse effects contended by Maritime.

The complaint on unfairness is based on the fact that the Dominion Post did not advise readers that the report was subject to change as a result of comments and submissions to be received. It is said that it unfairly represented that it was a final report and would appear in that form shortly thereafter. The first article referred to “its official release next month”.
A majority (6) of the Council upholds the complaint. The statement that it was to be officially released next month implied that it would be released substantially in the form of the draft. It was not made sufficiently clear to readers that this might not be so.
A minority (4) was not prepared to uphold on this ground. The fact the report was referred to as a “draft report” could only mean that it was not in its final form. A reasonable reader should have known that the report might well be altered. The matters upon which the Dominion Post focused were those which were unlikely to change, namely the danger there had been to the passengers on the particular crossing and the safety recommendations.
The ground of the complaint based on balance is that Maritime should have been advised of the intention to publish. Because of the failure to seek comment, Maritime argues, the readers were misled into thinking that the draft report would become the final report and that the findings and recommendations would remain unchanged. The failure to seek such comments meant that the articles lacked any form of balance and were unfair both to Maritime and the interested parties. There is a suggestion that this ground of complaint is motivated more by the fact that Maritime did not have an opportunity to seek injunctive relief.
The complaint is not upheld on this ground. This was a matter of public interest and there was no need for the Dominion Post to expose itself to a possible injunctive claim to prevent such a matter being discussed in public. Further, the matters upon which the article concentrated, namely the danger to the public and the recommendations to ensure safety, were matters upon which Maritime itself was not likely to be in a position to give balance. These were its own statements and recommendations.
The substantive complaint of breach of confidentiality is not upheld, with one member, Ruth Buddicom dissenting. (See below for the dissent). Nor is the complaint based on a lack of balance upheld.
By a majority of six to four the lesser complaint of unfairness (not making it clear that the report may be changed) is upheld.
Members upholding the unfairness complaint were Barry Paterson, Ruth Buddicom, Kate Coughlan, John Gardner, Keith Lees and Denis McLean.
Members not upholding were Aroha Beck, Penny Harding, Alan Samson and Lynn Scott.
Clive Lind took no part in the consideration of this complaint.

I disagree with the majority decision under the confidentiality ground. Maritime New Zealand had an obligation to notify the Aratere incident to the Transport Accident Investigation Commission (“TAIC”). Having done so, by virtue of Section 14 of the Transport Accident Investigation Commission Act 1990, the TAIC was thereafter in charge of the investigation processes (which are required by law to be co-ordinated). It has the power to regulate its own investigation procedures in accordance with the Commissions of Inquiry Act 1908 which power includes, relevantly, the power to hear evidence or representations in private. The circulation of the draft report to interested parties on a confidential basis for their comment prior to the final report being prepared falls within the ambit of that power. It is significant that Parliament has not legislated for maritime safety hearings to be conducted in public.
I do not agree that there was an overriding public interest which justified the newspaper publishing from the leaked draft report. Both the Maritime New Zealand and the TAIC reports were, quite properly, to be made public once finalised.

The question is only whether the public interest justified the newspaper publishing at an earlier date relying on the leaked draft report (which was still vulnerable to change and possibly quite significant change), rather than waiting to publish from the final report. I am of the view that it is speculative to assume that public interest justified the earlier publication from the leaked draft report. The newspaper had no means of predicting the content of the final report at the time that it published the articles complained about. It surely could not be considered to be in the public interest to know sooner if, for example, the information communicated turned out to be wrong. On the facts of the present case, this would have resulted in incorrect information remaining in the public arena for about nine months.

That similar private investigation processes are adopted by a number of bodies (including others which can be deemed to have a public safety focus) causes me further circumspection about endorsing a failure to observe the confidentiality of the draft report. Section 14 of the Bill of Rights Act 1990 does not give a newspaper the right to publish anything it pleases whatever harm it might cause to others. The right to freedom of expression is subject to “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.

Notwithstanding the right to freedom of expression, three factors cumulatively lead me to a different conclusion than the majority view. These are the existence of the legal right to have the investigation carried out in private, the fact that publication was always going to occur once the final report was completed, and the potential risks to both the public interest and private interests by the publications based only on a draft report when the final report contents were not, and could not, be known. I am of the view that the public interest defence does not suffice to justify the newspaper’s publications and I would, therefore, also uphold on the ethical ground of a breach of confidentiality.