I think the Judge stated that part of Slater not being a journo was having no editor or editorial process; seems fair.
Slater wants to take on the Judicial system on the Monday and is surprised it turns and bites him on the arse by Wednesday, w.o.b.f....
So, how many times does a journalist or media outlet have to (say) end up issuing a partial or full retraction of a story before they don’t count any more?
I'm going to say three times in any one calendar year. I'm not allowed to fuck up that often.
I'm betting Whaleoil fails the definition of news media through this:
...and the publisher must be accountable to a code of ethics and a complaint process.
Lampoo, Harpoon or just harp on...
Journalism is a subset of publication.
But is Gossip and vitriol a subset of journalism?
and just as a reminder: Whaleoil profile from 2009!
(Internet Warrior! Hah! more like worry!)
Back at the office, a Christchurch reader alerts him to a radio appearance by Lianne Dalziel, in which she addresses rumours, started on Slater's blog, that she was mulling a tilt at the city's mayoralty. She had taken exception to The Press printing her denials, which she considered to be circulating a baseless rumour from a source with no credibility.
"I think it's really important that we realise these people are not subject to the same standards as our mainstream media," she says.
Slater is angry. In no time, he has published a recording of the interview.
"We most demonstrably are media," he says. "It just happens to be new media. And it's immediate: she said that this morning and this afternoon she's going to cop a flogging. That's how immediate this is! Not only that, if she does decide to stand for the mayoralty, I'm going to run a Whale Oil campaign against her. All because she pissed me off. She doesn't get it, so she's going to learn."
How well did that anti-Lianne campaign go, Cameron?
How well did that anti-Lianne campaign go, Cameron?
So, how many times does a journalist or media outlet have to (say) end up issuing a partial or full retraction of a story before they don’t count any more? How about a newspaper that ends up sacking a reporter for printing stories that were entirely fabricated – that’s about as abusive, unprofessional and prick-like as a journalist can get in my book.
Would that be retractions against total articles published? Because that's the only fair metric I can conceive of in the circumstances and it's going to be a pretty minuscule percentage for all the main outlets. If it's just a raw total, if I publish two articles and have to make one retraction I'm still going to come out looking much better than an outlet that publishes a thousand articles and publishes two retractions.
As for the fabricating journalist, you mentioned that they lost their job. What else, exactly, would you have the publisher do? Slater is certainly not going to sack himself from his own blog.
I’m going to say three times in any one calendar year. I’m not allowed to fuck up that often.
But three times per year per journalist would still be quite a lot of fuck-ups aggregated across dozens of journalists in a big newsroom. Could be a retraction a week without breaching your threshold.
Would that be retractions against total articles published? Because that’s the only fair metric I can conceive of in the circumstances and it’s going to be a pretty minuscule percentage for all the main outlets.
Sorry, if we’re going to apply the Blackie Standard let’s do it consistently and in my book getting a story a little bit wrong (or just making it up) is like being a little bit pregnant. Look, I'm not carrying any water for Cameron Slater, but I really that much of the "real" media is sitting too comfortably atop that moral high horse.
Could be a retraction a week without breaching your threshold.
Yes, a metric like that is too much of a blunt object. I'd think that membership to a professional body that can revoke your license to be protected by them would work better. You'd still be allowed to blog outside of it, but you just wouldn't be protected by the journalist laws, and would be treated like any other private citizen with respect to defamation. Which seems to be all that's going to happen to Slater.
I would think, though, that most of the people genuinely interested in the blogosphere would read outside of it all the time. Part of the whole attraction of blogs is that they aren't groupthinked and financially hamstrung into utter banality.
Sorry, if we’re going to apply the Blackie Standard let’s do it consistently and in my book getting a story a little bit wrong is like being a little bit pregnant. At least, it would be if it was my reputation attached.
Sure, but perfection is an impossible ask of humans. Media getting it wrong is not a recent development. So having established that no outlet, regardless of the level of professionalism of its staff, will ever be in a position to never publish a retraction, how would you wish to measure the inaccuracy level in a way that fairly reflects that bigger newsrooms have more humans involved so thus have more moving parts to fail? It's not an unreasonable question, Craig.
the press gang...
But three times per year per journalist would still be quite a lot of fuck-ups aggregated across dozens of journalists in a big newsroom
...and very doable, now that newspaper publishers move to embrace systems like a 'right first time' story entry method, in which the reporter writes directly into the newshole! (as they say) - aside from the stupid mistakes reporters can, make and need Subs to pick up, so there may well be an upturn for the legal fraternity if the reporters get things really wrong.
I think journalists who consistently fabricate stories get exiled to the Press Gallery, where they can invent leadership contenders to their hearts content: Shane Jones / David Hay, etc.
Yes, a metric like that is too much of a blunt object. I’d think that membership to a professional body that can revoke your license to be protected by them would work better. You’d still be allowed to blog outside of it, but you just wouldn’t be protected by the journalist laws, and would be treated like any other private citizen with respect to defamation.
This was the promise of the regulator proposed by the Law Commission -- at the very least, it would require compliance with a set of standards. Even if its only power was to require media organisations to publish its findings -- which is what the Press Council can do -- that would be useful.
I don't think it's desirable that membership would actually define rights in law, but it would clearly make it more straightforward to claim news media status.
Which seems to be all that’s going to happen to Slater.
True. His fate would be to simply be treated like any other arsehole.
But it's not his fate in particular that concerns me in this.
So having established that no outlet, regardless of the level of professionalism of its staff, will ever be in a position to never publish a retraction, how would you wish to measure the inaccuracy level in a way that fairly reflects that bigger newsrooms have more humans involved so thus have more moving parts to fail? It’s not an unreasonable question, Craig.
It is a perfectly reasonable question. But surely, when you have the staff and resources of a New Zealand Herald or a New York Times they should be held to a slightly higher standard of oversight and accountability that those eeevil blogs? Or is the new normal not “too big to fail” but “too big to be responsible for anything”?
Oh, and out of the crooked timber of humanity no straight thing can be made but yeah... you think someone at the Herald on Sunday could have saved themselves a lot of angst (and an unusually strongly worded and signed retraction/apology) by asking Sharon Shipton herself if she had separated from her husband.
Another way to think about this isn't to think of the protection as being for the news outlet, but for their source. And I don't think that if you call up Slater and say "here's some slanderous stuff I can't say, but you do it and I'll make it worth your while" (which is definitely a thing that people seriously claim Slater to do, and which would be outrageously scandalous if the NBR or the DomPost did) you should be protected by media shield law.
And I don’t think that if you call up Slater and say “here’s some slanderous stuff I can’t say, but you do it and I’ll make it worth your while” (which is definitely a thing that people seriously claim Slater to do, and which would be outrageously scandalous if the NBR or the DomPost did) you should be protected by media shield law.
And nor do I think a plaintiff should be able to force a journalist to disclose a source just by alleging that happened. I think someone should be thinking a little more deeply that Blackie about whether that's a desirable precedent to set.
Lyn Prentice at The Standard writes about the issue and makes some interesting points, but seems to really miss the point overall:
Now I can sympathize with Russell Brown with his call The judge is not helping, because as he points out he is one of the relatively untainted. We are much the same we have had two defamation threats this year. Both disappeared when I explained how little they knew about defamation law. However I have little sympathy with the cause he is dithering on supporting.
The judge quoted the questions about blogs from the Law Commission report in his decision. He was right. They are pretty chaotic some of the time. But do they need or should they get journalistic protection. Hell no….
He's entitled not to regard his own blog as journalistic, but he doesn't get to pronounce on everyone else's work on the basis of its technical means of delivery. And he clearly hasn't read the Law Commission report. As Steven Price and I have pointed out, the Law Comm's observations about about how blogs can be are hardly the whole of its view. It quite clearly holds that blogs can and do play a role akin to that of traditional news media. That's why it proposed that blogs and their publishers could volunteer to come under the same jurisdiction as other news media.
I'm not sure what I'm supposed to be "relatively untainted" by, but I am sure I'm not "dithering". Slater's an ass, but I'm concerned by the implications of a poorly-thought-though decision by a judge.
Another way to think about this isn’t to think of the protection as being for the news outlet, but for their source. And I don’t think that if you call up Slater and say “here’s some slanderous stuff I can’t say, but you do it and I’ll make it worth your while” (which is definitely a thing that people seriously claim Slater to do, and which would be outrageously scandalous if the NBR or the DomPost did) you should be protected by media shield law.
Slater admitted on Media3 that he has demanded money to run certain lines in his blog. It's not in doubt that this has happened -- and, indeed, I asked the question of him after a source showed me evidence of Slater making such a demand. It would have been interesting to see what a proper defamation lawyer would have made of that, because it's not out of the question that has happened in this case.
Indeed, it would have been interesting to see what happened if either side here had able, specialist representation. I presume Jordan Williams was representing Slater on behalf of Franks Ogilvie, and my communications this year from Franks Ogilvie certainly indicated an unusual approach to this area of law. Elements of those communications were, in my opinion, quite bizarre.
And nor do I think a plaintiff should be able to force a journalist to disclose a source just by alleging that happened.
Given that Slater has admitted the practice, it's not irrelevant. If Slater was simply acting as a paid proxy for Blomfield's former business partner, it would certainly undermine his claims to news media status.
And even if in this case he wasn't acting as a paid proxy, the fact he sometimes does really does put him in a different territory to a journalist.
The court could expect an affadavit (or verbal evidence) that the "journalist" was not receiving financial inducements to make the statements in question.
They could lie, of course. If found out, then it becomes perjury, and they'd wind up in jail for quite a long time. (This happened, in reverse, to Jonathan Aitken and Jeffrey Archer who lied / procured others to lie in evidence in libel cases they had brought).
Scoop has helpfully gathered up all the relevant court documents.
And you can see why the judge quoted those parts of the Law Commission report, reading William's argument. It's a direct response to the selective quotation at 3.6.
WhaleOil’s allegations are very serious. I for one hope Mr Blomfield gets his day in court.
I don’t take Judge Blackie to be saying that blogs aren’t journalism because they are blogs. I read his quote from the Law Commission’s report as a statement that some people don’t adhere to the standards of care, accuracy and fairness that are expected of the news media, and that there is a point at which such failures might become disqualifying.
Blomfield puts it this way:
[WhaleOil] doesn’t check facts. He doesn’t research, investigate, or otherwise seek balance. He has no regard for anyone’s rights except his own. He has no time for anyone whose views don’t accord with his own. […]
Mr Slater is no more a journalist than he is a brain surgeon.
I suppose I'd have to agree that the protection of sources requires special consideration, but I can understand why a first instance judge might be sceptical of claims that WhaleOil is motivated only by the highest ideals of his profession.
the same individual or blog might be news media one day and just an arsehole the next.
From today's Herald editorial:
The Law Commission's definition of news media for the purposes of legal recognition had four elements: the publication of news, information and opinion of current value; its dissemination to a public audience; publication must be regular; and the publisher must be accountable to a code of ethics and a complaint process.
Some blogs meet all those criteria except the last. Only those associated with newspapers and broadcasters are subject to a complaint adjudication process. The Law Commission's report, The News Media Meets "New Media", proposed a single complaints body recognised in law in the hope that blog sites would submit to it for the few privileges the courts and Parliament bestow.
One of those privileges, sought by Slater now, is the right not to divulge the names of informants. It is not an absolute right and should not be. If it were a matter of life or death, or a real threat to public danger, press freedom should give way; indeed, the press could justifiably take the initiative in those extreme circumstances. But when it is not a matter of life or death, free speech is paramount. And real freedom to speak through the news media sometimes requires protection from identification.
The courts ought not restrict that protection to media which subscribe to a code of ethics or a complaint process. There are obvious benefits in credibility for those who subscribe - and the Evidence Act's limited protection is welcome. But being subject to outside oversight is not the defining characteristic of news media. Regular publication of news and views of general interest can be regarded as a medium deserving the rights and protections - and legal obligations - of all media.
The right that Slater seeks is not particularly generous, or final. If a case goes to the High Court, news media may be forced to betray a confidential source to the judge, who will decide whether confidentiality overrides other considerations in the case. Other jurisdictions give media freedom higher protection. A blogger might not have the means to challenge this ruling in a higher court but it should not stand. News comes in many and varied forms and the courts should recognise it when they see it.