Blomfield v Slater

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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Blomfield v Slater : the judgment

So Cameron Slater is now officially a journalist, for the purposes of the Evidence Act 2006. Here’s a copy of the High Court’s judgment, thanks to Peter Aranyi at The Paepae (whose post ‘High Court serves a mixed bag for PR attack blogger Cameron Slater‘ is worth reading).

With the unfolding of the Dirty Politics saga after the High Court appeal hearing had occurred, commentators had wondered whether the Judge would reopen the hearing. Mr Blomfield attempted to produce additional evidence that had flowed from the Dirty Politics book, but was quickly rebuffed. In the judgment, Asher J merely notes that leave was declined to introduce further evidence “on the basis that it is hearsay or privileged”.

This gives rise to elements of (possibly) unintentional humour, such as where the Judge states at para 66, “While he [Slater] will often refer to other materials, there was no evidence presented to suggest that he was only regurgitating the writings of others”. Given the evidence presented in Dirty Politics, that Slater was regularly receiving posts written by Carrick Graham and others, and posting them word for word under his own byline, one wonders whether Asher J winced as he wrote that.

Nonetheless, the Court confirms that Slater is a journalist and that the Whaleoil blog is a news medium, as defined in s 68(5) of the Evidence Act. Essentially, Whaleoil was considered big enough, and Slater considered a regular enough breaker of stories and provider of news content, to meet the requisite definitions.

There are some interesting observations in the judgment about whether bloggers could generally be considered to be journalists, and blogs generally considered to be news mediums. For example:

[54] I have no doubt that many bloggers are not journalists because they are not obtaining and disseminating news to the public or a section of the public on a regular basis. Some may not deal with news in the sense of providing new or recent information, and some may not deal sufficiently with the public or a section of the public. Nevertheless, I conclude that a blogger who regularly disseminates news to a significant body of the public can be a journalist. 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.

and:

[61] I accept that a news medium that was shown to be using news as a basis for comment only might not be a news medium. I also accept that a news medium that published articles of such a low standard that they could not objectively be regarded as “news” might not qualify. Although the definitions in s 68(1) do not include a quality requirement, quality would be relevant to the extent that a writer who was shown consistently to invent stories or be inaccurate on a regular basis might not qualify. An article that is false is not news. I deal with what is a “journalist’s work” in the next section.

That means that very few blogs might actually be considered to be news mediums, and that very few bloggers might be considered to be journalists, but I’ll examine that issue in a separate post.

Suffice it to say that Cameron Slater achieved a victory in part one of the judgment – as a journalist, he (quoting from para 92) “is in general entitled not to disclose the identity or identities of his informant(s)”.

But that of course was merely the beginning. Justice Asher then had to address the issue of whether, pursuant to s 68(2) of the Evidence Act, the public interest in the disclosure of the source’s identity outweighed firstly, any likely adverse effect of the disclosure on the source or any other person, and secondly, “the public interest in the communication of facts and opinion to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts”.

Section 68(2) poses a tough threshold. The ability to maintain confidentiality of sources can be fundamentally important to the ability of journalists to do their job effectively. Without the ability to promise to a source that their identity will not be revealed, journalists would effectively be neutered in their ability to hold the powerful to account.

Justice Asher adopted the five step process originally set out in Police v Campbell [2010] 1 NZLR 483 by Randerson J:

(a)  The issues to be determined in the proceeding;

(b)  The public interest in the disclosure of the identity of the source in the light of the issues to be determined, if any;

(c)  The likely adverse effects of disclosure on the informant or any other person, if any;

(d)  The public interest in the protection of communication of facts and opinion to the public by the news media and the ability of the news media to assess sources of facts, if any; and

(e)  Whether factor (b), if it exists, outweighs factors (c) and (d).

In the course of working through the five step process, Asher J is often scathing of Slater (as scathing as a Judge can be when they’re only ruling on an interlocutory application, with the substantive application still to be heard). Justice Asher notes at para 114:

As a general proposition, when a journalist such as Mr Slater has presented to the public extreme and vitriolic statements about a person such as Mr Blomfield alleging, as he has, serious crimes by him, there is a public interest in the fair airing of those statements and the circumstances of their making when the issues are traversed in defamation proceedings. The vitriolic remarks indicate that Mr Blomfield is a danger to society. The remarks being deliberately put in the public domain by Mr Slater show there is a public interest in all the circumstances relevant to Mr Blomfield’s challenge.

Likewise, at para 118, Asher J states:

The pleaded expressions of opinion of Mr Slater are extreme. He accuses Mr Blomfield amongst other things of the exploitation of trust involving children, and of being involved in wrongly changing the amounts shown as donations. It is said that he ripped off a charity, that he is a psychopath and that he loves extortion, that he is a pathological liar, that he launders money, and that he is part of a network of crooks. Some of the exchanges between the alleged informants and Mr Slater show a gleeful attitude towards his shaming Mr Blomfield. In one blog post Mr Slater referred to the portable hard-drive as “just over 1 Tb of juicy dirt”. In the context of such extremely perjorative assertions, whether the pleaded honest opinion was genuine is likely to be very much an issue.

Essentially, the Court found that Slater’s Whaleoil campaign against Blomfield was in the nature of a personal vendetta and/or a personal or commercial attack. Or at least, that it’s likely enough that it was, that Blomfield needs disclosure of the source to be able to properly prosecute his case. With the only adverse effects of disclosure to the source being the possible joinder as a party to defamation proceedings, the Court deemed that there was no public interest in Slater’s protection of the source.

In the end, it’s rather a Pyrrhic victory for Slater. Despite being found to have been a journalist, he still has to disclose his source, and the Court’s unflattering description of his and his source’s prima facie motives would suggest that a rather large rabbit will need to pulled from a hat for Slater to avoid a significant loss in the substantive defamation proceedings. Certainly, the revelations (or, for some, confirmations) in Dirty Politics that Slater performs corporate and personal character assassinations for money will hardly have helped his case.

Cameron Slater – journalist? Yes.

Back in May, I wrote a post entitled ‘Cameron Slater – journalist?‘. Well, now, apparently, the question mark is no longer required. Justice Asher, in the High Court, has over-turned the District Court’s decision that Slater was not a journalist.

The decision doesn’t surprise me. In my original post I argued that for all the Whaleoil blog’s faults (and there are many, publicised at length in and since the release of Nicky Hager’s Dirty Politics), Whaleoil was a news medium and Slater was a journalist under the very broad definition provided in s 68(5) of the Evidence Act.

The full decision has yet to be made publicly available. At the time of posting, Cameron Slater has merely released a picture of the first sentence of para 145 of the judgment, which states:

“Therefore, Mr Slater was a journalist and Whale Oil a news medium, and he could invoke the protection in s 68(1).”

What Cameron Slater doesn’t say is that he is still required by the Court to disclose his source, as there is no public interest in the source’s identity being protected. As AAP reports:

Although Whale Oil was considered journalism Slater still has to disclose his sources because the case wasn’t in the public interest, the sources weren’t whistleblowers, and the case had the mark of a “private feud”, Justice Asher said.

“Any public interest in protecting sources must be further diminished when there is evidence that a personal vendetta appears to be driving the disclosures,” he said.

I’ll post more fully once the judgment is made public.

Cameron Slater – journalist?

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?