The Blomfield v Slater judgment – what does it mean for your average blogger?

So with the finding of the High Court that Cameron Slater is a journalist (see my previous posts here, here and here), and that his Whaleoil blog is a news medium, there’s been some presumption from some on the internet that political bloggers as a class have now been raised to the level of journalists. Lprent at the Standard, for example, says:

I was rather expecting that Justice Asher would make me and other authors here honorary journalists under section 68 of the Evidence Act 2006, and that is what he did.

I’m not entirely certain that lprent is right. There are a few fishhooks spread throughout Asher J’s judgment that seem to indicate that the Courts would consider Cameron Slater to be a bit of a special case among bloggers.

For a start, there’s the definition of a news medium s 68(5) of the Evidence Act: “a medium for the dissemination to the public or a section of the public of news and observations on news”. The key word there – “and” – means that for a political blog to be considered a news medium, that blog must not only disseminate observations on news (which is the general blogging modus operandi), but to also disseminate news. Justice Asher notes at para 54:

Given that the medium must be “for the dissemination to the public of news …” a blog that publishes a single news item would not qualify. The blog must have a purpose of disseminating news. Some regular commitment to the publishing of news must exist before a blog is a news medium.

So what is news? Well, that’s where things get fuzzy. Following reference to the New Zealand Oxford English Dictionary, Asher J states that “[t]he reporting of news involves this element of providing new information to the public about recent events of interest to the public”.

It’s a definition that doesn’t necessarily advance matters. If a radio news bulletin, for example, simply involves the repetition of news broken by others, is the bulletin in fact disseminating news? You’d assume so. So if a blog essentially does the same thing – repeating news stories broken by mainstream news organisations, but providing coverage through the blogger’s voice – is this really any different to a radio news bulletin? Where does the distinction between disseminating news and disseminating comment on news begin and end?

Justice Asher’s judgment, in finding that Whaleoil was a news medium, dwells on Cameron Slater’s investigations and stories that he broke (see paras 58 to 59, and 63 to 64). There’s an implication that a blog must be breaking stories to the public in order to be considered a news medium. Simply reacting to stories already broken, and repeating those stories (with or without additional editorial comment) doesn’t seem to be enough.

At para 62 of the judgment, Asher J states, “In my assessment, Mr Slater’s reports contain genuine new information of interest over a wide range of topics”, while at para 65 it is stated:

It is this element of regularly providing new or recent information of public interest which is in my view determinative. He was not doing this as often as would occur in a newspaper or a television or radio station, but that could not be expected of a single blogger. Such a person would not have the resources to operate on that scale. I do not see it as a pre-requisite that the quantity of stories must be equivalent to that of a substantial corporate news organisation. His motives for reporting are not crucial either. Because Whale Oil at the relevant time with reasonable frequency provided such information, as well as commentary and the opportunity for debate, it was a news medium.

 So are the authors at the Standard, Pundit, The Daily Blog or Public Address journalists? Is Danyl McLauchlan at the Dim-Post a journalist? Or David Farrar at Kiwiblog? Or Pete George at Your NZ? Or yours truly? From the High Court’s judgment, who knows. Most blogs, such as Occasionally Erudite, simply involve commentary on topical news items – the individual blogger’s view on the story or stories of the day – which seems unlikely to reach the threshold of being a news medium or journalism.

But at the Standard, lprent has reported live from the NZ First conference, or attended the Blomfield v Slater High Court hearing and provided a report on what occurred. At Public Address, Russell Brown provides additional background to stories he covers on his Media Take show or provides details of interviews with Patrick Gower, while Graeme Edgeler has exhaustively researched and posted on issues such as the secrecy of the Coroner’s Court.

Are these examples of journalism? One would assume so. Do they occur regularly enough for those particular blogs to be considered news mediums, according to Asher J? Hard to say. The test seems to be on a case by case basis, with regular provision of new information to the public being relative to the individual blogger.

Nonetheless, it seems that most bloggers wouldn’t be considered to be journalists, following Asher J’s reasoning. Repeating stories on a blog and providing comment won’t get you over the threshold. And even if you break stories, it has to happen on a regular basis (whatever “regular” may mean).

Cameron Slater seems to be a special case.

 

 

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4 comments

  1. I was considering this question last night. My usual assertion is that we provide observations on the news. However in addition to the examples you provide, we frequently are the news source from our observations as well.

    For instance during the leadership changes at Labour, or earlier at the Greens the blogs are where people come to read posts and to generate the news themselves in comments.

    When Helen Kelly personally decides to mount a campaign about forestry worker deaths or reports from the ILO about digital graphics workers (and flattens our site with traffic).

    And other instances that I don’t have time to get into (typing at a restaurant).

    MSM seem to have a thing about never reporting on left blogs.

    But Farrar does get a lot of mention and repeats in the MSM when he is just reading and enhancing them or repeating his minders words.

    1. Admirable dedication, lprent, commenting on blogs while out at restaurants!

      I don’t think there’s any question that the Standard would be considered a news medium. The next step though is looking at the individual authors, as Asher J was clear that a non-journalist posting on a news medium would not receive s 68(1) protection. And I’m not sure how many individual authors would make the threshold to be considered journalists, given the requirement of that individual to be regularly providing news & breaking stories (as opposed to repeating stories and providing commentary on those stories).

      Yet it seems an odd juxtaposition that a site like the Standard would likely be considered a news medium, yet most of the contributors to it likely wouldn’t be considered journalists.

      The problem, as I pointed out in my post, is the vagueness in the judgment about what counts as providing news, rather than commentary on news. It’s a well-written judgment, that comes to the right decision (in my opinion) on the issues that had to be decided, but it seems like the Court was still struggling with the ongoing role of “new media”. The judgment is therefore extremely coherent with regards to the single blog and author that it’s required to consider (Whaleoil), but is of only limited use in trying to extrapolate to the rest of the blogosphere.

      Another job for Judge Harvey…

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