A week or so ago, I had a debate at the Paepae blog with Peter Aranyi (esteemed host of said blog) and Lynn Prentice about whether Cameron Slater should be considered a journalist. The context of the debate was of course Judge Blackie’s decision on interlocutory applications in the ongoing defamation case of Blomfield v Slater (a copy of Judge Blackie’s decision is here). Judge Blackie ruled that Slater’s Whaleoil blog was not a news medium, and Slater could not therefore rely on the journalistic protection of sources provided by s 68 of the Evidence Act 2006. Slater has appealed that decision to the High Court.
Over at the Paepae, I argued that Slater should be considered a journalist; Peter and Lynn argued otherwise. Given that Slater over the weekend won the Best Blog award at the Canon Media Awards, I thought I might revisit my argument.
First, some context. Cameron Slater, at his Whaleoil blog, engaged in a drawn out character assassination (covering around 40 separate blog posts) of a certain Matthew Blomfield. Judge Blackie summarises the case as follows:
The plaintiff, Matthew Blomfield, has brought proceedings against Cameron John Slater, the defendant, in defamation. It is alleged that the defendant has made various publications on a website called Whaleoil, which are defamatory in nature. The plaintiff claims (inter alia) that the defendant contends that he has conspired to steal charitable funds and that he is accused of making pornography, drug dealing, fraud, theft, being a “cock smoker”, a psychopath, a criminal and a thief.
Slater’s information appears to have largely come from a single source, who has delivered to Slater a hard drive containing a large of amount of Blomfield’s personal emails and other information, which Blomfield says was stolen from him. As part of the discovery process, Blomfield (by applications for discovery and interrogatory questions) has tried (unsuccessfully) to discover Slater’s source.
At the interlocutory hearing, Slater’s then-lawyer, Jordan Williams (he of Taxpayers Union infamy), argued that Slater could claim the immunity given to journalists to protect sources of information.
The immunity is provided by s 68(1) of the Evidence Act, which states:
If a journalist has promised an informant not to disclose the informant’s identity, neither the journalist nor his or her employer is compellable in a civil or criminal proceeding to answer any question or produce any document that would disclose the identity of the informant or enable that identity to be discovered.
Section 68(5) provides the definition of “journalist” and “news medium”:
journalist means a person who in the normal course of that person’s work may be given information by an informant in the expectation that the information may be published in a news medium
news medium means a medium for the dissemination to the public or a section of the public of news and observations on news
Slater argued that his Whaleoil blog was a news medium, an argument that the Judge rejected. However, to my mind, Whaleoil falls clearly into the definition of a news medium:
- The blog disseminates news. One may not like his style of delivery or his motivation behind the delivery, but Slater definitely broke news with his revealing of the Len Brown affair and Kim Dotcom’s collection of Nazi memorabilia.
- The blog disseminates observations on news. It may be partisan commentary, but it’s impossible to argue that Whaleoil doesn’t provide observations on news.
- The dissemination is to a section of the public – Slater’s adoring so-called Whale Army.
Peter Aranyi’s contrary viewpoint is that Whaleoil is a PR attack blog, given Slater’s own admission that he has demanded money to run certain PR lines (see also Peter’s post “As playful as he is psychotic”). To me, that’s an ethical quandary that goes to journalistic integrity, not the question of whether something is a news medium. After all, last year APN received payments from Tourism Australia to have the NZ Herald run a campaign of pro-Australian tourism fluff pieces, and prior to that Fairfax received funding to do the same – it’s paid PR, but that doesn’t mean the Herald is disqualified as a news medium.
Judge Blackie, in ruling that Whaleoil was not a news medium, relied almost entirely on a Law Commission report that was somewhat critical of blogs and bloggers. However, as Steven Price, the media law expert, has pointed out at his Media Law Journal blog, the Judge was in fact citing an interim Law Commission issues paper, rather the final report. In fact, the final report was somewhat complimentary to bloggers:
There is ample evidence of the profound and growing influence new media are having both on mainstream media’s culture and content. As we discussed in chapter 2 of our Issues Paper, there are well over 200 current affairs bloggers in New Zealand, some of which have become a rich alternative source of information and commentary. Although primarily a forum for the expression of robust opinion, a number of high profile blog sites are used to break news. Blogger are also increasingly taking on a watch dog role over mainstream media, critiquing their performance and alerting the public to their alleged failures.
Over at the Paepae, Lynn essentially argued on policy grounds that Slater should not be considered a journalist:
I’m afraid that the whole idea of a “news medium” being able to fed information or to make up whatever crap they want, being able to grant impunity to sources *and* to gain qualified privilege against retribution in the courts is somewhat disturbing. That becomes an open license for sleazebags like Cameron to “demand” money in exchange for destroying anyones reputation.
Is that what you really want to be built into our legal structures? Is that really something that is in the public interest? It certainly isn’t the type of relatively unrestrained power that I’d want in my hands.
I’d tolerate it being in the hands of someone who is careful, meticulous, and willing to prove those attributes to a judge. That was the quite noticeable difference in the Bevan Chaung story a year later. For all that I dislike him, Cook is a pretty good journalist craftsman.
But the idea that anyone can start up a free or near free corner of the net and write whatever trash that they care to invent to attack someone else and cover their arse by calling themselves a “news medium” and a “journalist” like Cameron did, is appalling. It also sets a really bad precedent for the many technologies coming down the pipeline for the next few decades.
I think at some point that a claimed “news medium” and a “journalist” has to prove that they are responsible and deserve the limited protections that the law provides those people.
Nonetheless, s 68 of the Evidence Act does not provide a definition of journalist or news medium that in any way encompasses ethical considerations or behaving responsibly. The higher Courts might in the future read that into the definition of journalist and news medium, but it’s certainly not the law now. Besides, where does ethical and responsible journalism begin and end?
Further, the journalistic protection of sources is not an absolute protection. Section 68(2) of the Evidence Act allows a Judge to order disclosure if the public interest in disclosure is sufficiently strong. As Lynn argues at the Paepae:
Now I’d say that if PR attack blogs like Whaleoil can defame anyone they feel like when maliciously provided with material and probably paid far, then that is something that is in the public interest to know.
Anyway, here’s a few more questions to throw out to Judge Blackie. Can a freelance journalist who breaks stories by way of a blog ever be considered a journalist under the Evidence Act? When Duncan Garner blogs at the 3News site, does it cease to be journalism?