Hard News by Russell Brown


The judge is not helping

Whatever you think about Cameron Slater, I don't think you should be rejoicing in Judge Charles Blackie's decision that Slater cannot rely on the protections in the Evidence Act to avoid disclosing correspondence that would reveal the identity of his source for a series of Whaleoil posts that have provoked defamation action from former Hell Pizza franchisee Matthew Blomfield.

Blomfield, acting for himself, argues that access to the email correspondence would allow him to determine malice, which could be important to his case. He continues to claim that the hard drive from which Slater took and posted his emails was stolen in a burglary. Slater says he received it from a source. Judge Blackie's decision in Blomfield's favour gives some of the tone of what Slater wrote - it seems to have been vicious, even spiteful.

Jordan Williams, acting for Slater (who says he has run out of money and is on his own now) seems to have invoked the Law Commission's report The News Media Meets 'New Media': Rights, Responsibilities and Regulation in the Digital Age to press Slater's claim to news media protection. But the judge seems to have said that the Commission said blogs were not news media, quoting the report's Control and moderation online section:

However blog sites are not democratic public forums: as noted earlier they are often highly partisan and blog posts and commentary can be highly offensive and personally abusive. Ultimately, the blog administrator/author sets both the tone and the threshold for abusive speech. A person who has been denigrated or who has been the subject of a false allegation on a blog site is entirely dependent on the blog’s administrator for any redress or corrective measures.

But this is really to misread the Commission's overall perspective on blogs and similar internet publications -- which is that they can and do play an important role in public debate. It ultimately proposed a new news media regulator, which blog publishers could opt to join and be subject to.

The judge further declares:

I can find no reference in the Law Commissions report to support the contention that the defendant's blog site could be regarded as a news medium deserving of the protection afforded by s 68 of the Evidence Act.

But that section defines a news medium as:

 a medium for the dissemination to the public or a section of the public of news and observations on news

Whatever you think of Slater's personal style, I don't think you can reasonably argue that Whaleoil does not do this.

In his useful assessment of the judge's decision, Steven Price writes:

The judge gives very little reason for this conclusion. It seems a very questionable one. Whatever you think of WhaleOil, it’s hard to deny that he breaks news stories, and that he writes commentary on news. When you factor in the requirement that the courts are supposed to have regard to rights of freedom of expression under the Bill of Rights Act when interpreting statutes - and there’s a respectable argument that protecting sources facilitates the flow of important information - then there seems a powerful argument that this section ought to be construed widely enough to encompass at least some bloggers.

At any rate, the protections under the Evidence Act are limited, and Price notes that "even if bloggers are given this right, a judge can still order the blogger (or any other journalist) to disclose a source."

Insofar as it seems to generalise about blogs, the judge's decision is extremely unfortunate. And as I said to Radio New Zealand's reporter, the reality of self-publishing is that the same individual or blog might be news media one day and just an arsehole the next.  There may instances where they're simply acting as vindictive individuals rather than news media, and perhaps that's where the judge should be arguing.

Slater himself says the implications of the decision are greater than those suggested in Bevan Hurley's report for the Herald (that it could open the floodgates for many similar defamation actions against Whaleoil):

Actually it is scarier than that. It actually opens the floodgates for anyone who writes or says anything in any format other than radio, television or many of the outdated newspapers in NZ. It affect Russell Brown, Martyn Bradbury, David Farrar or any other person writing online. People should be very worried about the implications of this ruling. Keith Ng should be worried…he may get summonsed to provide details of his hacker informants for the story he broke on Public Address. Any freelance journalist is now covered by this ruling by Judge Blackie.

That might be going a bit far. (And Keith actually outed his own source, Ira Bailey, with Bailey's consent, when it became clear that his name was likely to pubished in other media.)

But I do find the nature of the judge's decision -- which can very much be read as "blogs are not news media" -- somewhat alarming. 

On this site we do not and are not likely to attract defamation actions in the way that Cameron Slater does. But I was threatened with such action this year. I was aware at the time that a discovery order was a possibility if it went ahead -- and also confident that discovery would not reveal anything harmful to my defence. Sources weren't really an issue. But had things been different, it would have been extremely undesirable to have had my rights ruled out on the argument offered by Judge Blackie.

This is a dispute where both parties have exhausted their own financial resources and wound up representing themselves. Perhaps Judith Collins should have looked more favourably at the Law Commission's regulatory proposals (Slater has said he would have made himself subject to the new regulator, as would I) and not simply shelved them, because this really has become a mess.

Anyway, Slater is appealing the decision and I don't need to defend his work in this instance to hope he succeeds.

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