Hard News by Russell Brown


Privacy and the Public Interest

Cameron Slater is now, remarkably, engaged in two overlapping privacy actions, on opposite sides. In one, he is the subject of an action for breaching the privacy of businessman Matt Blomfield, after taking possession of a hard drive, emails and documents and pillaging them to write a string of vicious personal attacks on the Whaleoil website.

Slater, like Blomfield, has hitherto been representing himself in their dispute, apparently because neither man can afford a lawyer. His defence to this new suit by the Director of Human Rights Proceedings remains that he is a journalist and not subject to the Privacy Act.

This afternoon at the High Court in Auckland, Slater, having suddenly acquired the means to retain a Queen's Counsel, is the plaintiff and will be trying to stop three news organisations, the New Zealand Herald, Fairfax and TV3,  from publishing any further stories based on emails and Facebook messages obtained from the unknown person who is said to have hacked them, on the basis that use of the messages represents a breach of confiedence and a breach of privacy.

He is also seeking to stop that person -- Rawshark aka Whaledump -- from distributing any more of his correspondence.

He has a shot. The material dumped by the hacker in the course of an extraordinary day yesterday, including a string of Facebook exchanges between Slater and his associate Jordan Williams, did veer closer to the private and personal. However we might might feel about the fact that Slater and Williams make vile misogynist jokes in their private conversations, it's harder to argue that revealing those conversations meets a standard of public interest. He is due the protection he would deny to others.

The attempt to enjoin may also have been driven by the revelation that there's more. More, that is, than anything canvassed by Nicky Hager in Dirty Politics. While that book, and all subsequent reporting, has largely been based on a set of messages from 2011, the Herald reported yesterday that it had now "seen" correspondence between Slater and former Justice Minister Judith Collins stretching from 2009 to this year.

The Herald story indicates that the gaming of the OIA system on Slater's behalf was not limited to the Prime Minister's office. In one instance, a letter from David Bain's first lawyer containing damaging allegations against his former client was sent on to Whaleoil on the same day it was received by Collins' office.

Bain's legal team, which was outraged last year by Collins' decision to withold around 250 documents related to her dismissal of the Binnie report recommending compensation for Bain, will doubtless be very interested in evidence of the minister acting in bad faith.

On the other hand, Selwyn Manning, in a Daily Blog  report drawing from conversations with National Party sources, says: 

... what is feared the most by National’s political elite is the pending dump of email correspondence between Jason Ede and Cameron Slater.

That, and revelations potentially contained within the cache of documents, is what National insiders believe may eventually place the Prime Minister John Key under oath.

I don't think most National Party activists will be feeling quite the fear and anxiety confessed by Manning's sources -- at least not about the impending election. The polls don't give them much, if any, reason to do so.

But this thing isn't going to stop on September 20.

There are already two inquiries, one by Inspector-General of Intelligence and Security into the passing of SIS information to Slater, which will be conducted under oath and will have access to documents and phone records; and one exploring Collins' connection to an alleged attempt to undermine the country's financial regulators on behalf of Mark Hotchin. The latter is also the subject of a police complaint by the Labour Party.

Next month, when Slater's earlier privacy case comes back to court, it's likely that Simon Judd, the barrister acting for the Director of Human Rights Proceedings, will seek discovery of correspondence that rebutts his claim that he is a journalist, rather than someone who is paid to defame.

That, in turn, will attract the attention of large companies, including Progressive Enterprises, who may feel themselves to have been the victims of such campaigns. It would be no surprise to see them taking legal action. Katherine Rich, a former National minister, may be shifting uncomfortably in her seat about that. Fonterra's denial of any involvement may yet be tested.

At some point, the Law Society will respond to complaints about the conduct of Williams, Collins and Cathy Odgers. Yesterday's whaledump included messages indicating that the firm Williams worked for, Franks Ogilvie, offered Slater's dubious services to a client.

We're likely do discover more about this way of doing politics. Kelvin Smythe's blog post  about the way "unpleasant things happened, indeed, are still happening to certain principals, seeming to involve Whale Oil, editorial offices of newspapers, the ministry, and the education review office," indicates that the intimidation has occured across various portfolios and policy areas.

Manning's story includes some fascinating leads for any other journalists who want to explore not only the role of Jason Ede, but the way things have been run within the government, the Prime Minister's office and the National Party. Whether or not they've seen Ede's correspondence with Slater -- assuming it exists -- journalists already have the fodder for a thousand OIA requests. If they are enjoined from further reporting of the story today, they will make a crusade of it.

There will also be a public response to any injunction of the material concerned. We may go into the election with a significant number of people finding ways to publish it in protest. The idea of news organisations being forbidden to report on a story everyone knows is there is weird. Key may still have the confidence of half the population, but his brand has been damaged by his sometimes bizarre, obtuse responses to straightforward questions. He has probably said more than one thing that will come back to bite him.

National will probably win a third term this month, but there is a huge taint in all this. There is simply too much here for it all to just melt away -- and it won't, if for no other reason than that we need to find ways for what has already been revealed to not happen again.

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