Whaleoil

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.

 

 

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.

Enemies without and enemies within

Yesterday, when the news of Judith Collins’ resignation broke, I asked where the Cameron Slater email had come from. It hadn’t been released by Whaledump, and it hadn’t featured in Dirty Politics. Instead, it had been sent to the Prime Minister’s office.

John Key clarified yesterday that the email was not sent anonymously. Instead, the email came from a person who was known to the PM’s office, but the identity of that person was not going to be released.

Well, we don’t know just whose hands the incriminating email passed through on its way through the Beehive to John Key and his staff, but according to the Sunday Star-Times this morning, the source of the email was Cathy Odgers aka Cactus Kate, Cameron Slater’s partner in crime:

Knowing Fairfax was investigating the hacked emails, it is believed Odgers (known by the blog name Cactus Kate) went through her own emails and found some that could be seen as implicating Collins. This correspondence then found its way to a Beehive staffer on Friday.

“I take it you found the smoking gun,” Odgers said in an email to Fairfax shortly before Collins resigned. She declined to comment further yesterday.

In fact, Fairfax did not have that particular incriminating email, and the hacker known as Rawshark said yesterday he did not have it either. “That email wasn’t leaked by me, I had nothing to do with it,” said Rawshark, who was also the source for Nicky Hager’s book Dirty Politics.

Exactly who Odgers provided the email to, and why, isn’t clear. If she had assumed that the SST already had the email, it was presumably an attempt to tip the Government off regarding the coming storm. Slater must now be wondering whether his friend Odgers had anticipated that Collins’ scalp was an inevitability the moment the email was provided by her to the National Party.

And the timing isn’t clear either. There seem to be conflicting accounts of what date it was received by National Party staffers, and what the chain of custody was before it arrived at the Ninth Floor.

Regardless of the exact dates, times and chains of custody, Slater and Collins must be spitting tacks. All that talk of “giving back double”, and then to discover that the person they need to give back double to is Cathy Odgers…

Cameron Slater – lies, or the art of puffery?

Cameron Slater’s email to Carrick Graham, Mark possibly-Hochin and one mystery identity may have sunk Judith Collins’ political career, but Slater is standing steadfastly by her. Reading a pre-prepared statement yesterday, and taking a few media questions, he denied that Collins had done what the email said she’d done.

So was he lying in the email? Apparently not. According to Slater, he was exaggerating the truth:

“Embellished is a good word. It’s better than a lie, isn’t it?”

It’s worth looking at precisely what Slater wrote about Judith Collins’ involvement in the conspiracy to undermine then-SFO director Adam Feeley:

“I also spoke at length with the Minister responsible today (Judith Collins). She is gunning for Feeley. Any information that we can provide her on his background is appreciated. I have outlined for her a coming blog post about the massive staff turnover and she has added that to the review of the State Services Commissioner. She is using his review of these events to go on a trawl looking for anything else. It is my opinion that Feeley’s position is untenable.”

There are a few definite statements of fact there:

  • Slater spoke to Collins, and the conversation was at least partly about Feeley.
  • Slater discussed with Collins his Whaleoil campaign against Feeley.
  • Collins stated that she intended to pass on Slater’s blog material to the State Services Commissioner.

Now the rest of the paragraph could be explained away by simple puffery. For example, Collins says a few intemperate things about Feeley in a topic of conversation initiated by Slater, which Slater describes as Collins “gunning for Feeley”. He assumes she’d be interested in more material on Feeley being passed to her. She pats him on the head and tells him he’s doing good work with his blog.

Nonetheless, even if everything that isn’t a statement of fact is merely Slater demonstrating his elevated sense of self-importance to his business partners, Carrick Graham et al, the statements of fact in themselves raise serious issues with Collins’ conduct.

Collins was Minister of Justice. As part of her role, she was the Minister in charge of the SFO. And in that role, she had a conversation with a blogger who informed her that he was about to undertake a campaign to torpedo the head of the SFO. Rather than telling the blogger that such a course of action is entirely inappropriate, she instead gives him a green light to go for it. After all, when you tell someone that you’ll pass their material on to the State Services Commissioner, and you don’t tell them to then pull their head in, that’s a green light.

So if Slater wasn’t lying in his email, that’s the best case for Collins, and that, to my mind, is resignation material on its own. And if the true situation is less than best case? Well, Collins won’t ever be returning as a Minister.

Serious questions for Jared Savage & the NZ Herald

So, further to the Cameron Slater email that felled Judith Collins, there’s a particular line in the email that’s rather troubling:

I am maintaining daily communications with Jared Savage at the Herald and he is passing information directly to me that the Herald can’t run and so are feeding me to run on the blog.

Perhaps Jared Savage might like to explain what precisely he as a journalist was doing feeding information to Cameron Slater that Savage couldn’t publish himself. If the NZ Herald can’t use certain information in a story, it’s presumably because they’re worried about the legal consequences. So why would a reputable journalist then pass that information on to a blogger to use?

Let’s look at the Len Brown sex scandal story. It wasn’t something any mainstream media outlet was going to touch. Until it was all over the Whaleoil site, which meant that it was now news. Was/Is there a similar modus operandi here from those working at the Herald? We can’t run the story, but if we give it to Slater we can report on what he’s “reported”?

Or was it simply a Herald smear campaign against the then-SFO director? “We can’t report it, but we want to take him down.” Because if that’s the case, that’s not journalism; that’s a vendetta. Worse, it’s a vendetta performed in secret by the very people we are supposed to trust as impartial reporters of fact.

Judith Collins resigns

Oravida and the mysterious Chinese border control official, the Simon Pleasants leak, Bronwyn Pullar’s Privacy Commission complaint, plotting to roll John Key after the election – the allegations just kept coming.

Now there’s the allegation that she conspired with Cameron Slater and others to discredit former Serious Fraud Office director Adam Feeley. This while she was Minister of Justice – the Minister in charge of the SFO.

She’s resigned as a Minister, and John Key has accepted that resignation. As with the Oravida saga, she believes that she’s the victim here (the vast left wing smear campaign continues…), and she’s resigning to focus on clearing her name. She’ll be staying on as MP for Papakura though, although John Key, in his press conference at the Beehive, made it clear that she could not expect a Ministerial role if National is re-elected (not at least until her name is cleared).

A 2011 email from Slater to Carrick Graham and others was sent anonymously to John Key’s office last night.

The Cameron Slater email that has resulted in Judith Collins' resignation

The Cameron Slater email that has resulted in Judith Collins’ resignation

The email includes the following paragraphs (some grammar/spelling fixed):

I am maintaining daily communications with Jared Savage at the Herald and he is passing information directly to me that the Herald can’t run and so are feeding me to run on the blog. In the meantime I also have additional information flowing in via my tipline. That information will be drip fed into the media or via my blog.

and

I also spoke at length with the Minister responsible today (Judith Collins). She is gunning for Feeley. Any information that we can provide her on his background is appreciated. I have outlined for her a coming blog post about the massive staff turnover and she has added that to the review of the State Services Commissioner. She is using his review of these events to go on a trawl looking for anything else. It is my opinion that Feeley’s position is untenable.

Given the allegations in Dirty Politics that Judith Collins was responsible for so many of the leaks that poured through the Whaleoil “tipline”, it’s hard to escape the possibility that Collins was both sending and receiving information regarding Feeley. Even if nothing flowed from her to Slater on the subject, the fact that she was at least briefed by Slater on a smear campaign against the head of the SFO is more than grounds for her resignation. That would be unacceptable from any Government Minister, let alone the Minister in charge of the SFO.

Of interest is where the email came from. It wasn’t released by Whaledump, and one would assume that if Nicky Hager had had it in his possession, it would have featured prominently in Dirty Politics. Was Slater hacked twice, or has someone in Slater’s inner circle turned against him?

Regardless of the provinence of the email, Judith Collins’ career is now officially in tatters. Since the Oravida story broke, the likelihood of her ever becoming leader of the National Party and Prime Minister was ever-decreasing. Now, the odds have to be as close to zero as they come.

John Key lied? Still no smoking gun.

In recent days, John Key has been extensively questioned on what he or his office knew about Cameron Slater’s OIA request to the SIS. He’s steadfastly maintained that although his office was likely informed about the release of the documents to Slater, he himself wasn’t told.

New documents have today been released which muddy the water. In particular, NewstalkZB’s Felix Marwick has released correspondence from SIS Director Warren Tucker, in which Tucker refers to advising “the Prime Minister”, rather the Prime Minister’s office.

Letter from Dr Warren Tucker to Felix Marwick.

Letter from Dr Warren Tucker to Felix Marwick.

The letter states:

“I notified the Prime Minister (in accordance with my usual practice to keep the Minister informed on a “no surprises” basis) that I was going to release unredacted documents in response to the request from Mr Slater. I advised the Prime Minister that I had received legal advice that there were no grounds for withholding the information given the public disclosures already made about the existence and some of the content of the briefing. I informed the Prime Minister that I had informed Mr Goff of my decision to release the information.”

Further, another letter to Mr Marwick dated 31 October 2011, from Chief Ombudsman Dame Beverley Wakem, refers to a conversation Dame Wakem had with Tucker, in which Tucker told her “that he is prepared to release a statement regarding his discussion with the Prime Minister”.

Which sounds like it should be game, set and match. The Director of the SIS says he briefed the Prime MInister, and the Prime Minister says he didn’t. Who do you believe?

Except that it’s not game, set and match. Dr Tucker this morning then released a statement backing John Key’s version of events, essentially admitting that when he wrote “Prime Minister” he in fact meant “Prime Minister’s office”. Whether such a turn of phrase – “PM” as shorthand for “PM’s office” – is normal practice for Dr Tucker, I have no idea. Nonetheless, Tucker is in Mr Key’s camp regarding who was briefed.

Over at The Standard, Anthony R0bins posts “Key lied – The smoking gun“, based on John Key having said on Q+A on 24 July 2011:

“Phil Goff was briefed, yeah, that’s right. I personally didn’t brief him, but my understanding from the director of SIS, Warren Tucker, is that he was briefed and he was shown the same note and report that I saw.”

To me, that’s a long way from being a smoking gun. Key seems to be referring to the fact that both he and Goff were briefed by Tucker about the Israeli spy story, not to any later briefing by Tucker regarding Goff.

Four major sets of questions remain to be cleared up, in relation to this whole issue:

  • Firstly, who tipped off Cameron Slater that he should make his OIA request?
  • Secondly, was Slater’s request expedited by someone in the SIS, and if so, by whom?
  • Tthirdly, why was Slater’s request promptly answered, while other media outlets’ OIA requests denied or delayed? and
  • Lastly, who in the Prime Minister’s office did Dr Tucker brief, and why did they not pass the information on to John Key?

The Inspector-General of Intelligence and Security, Cheryl Gwyn, is now investigating the SIS’s handling of Slater’s OIA request, but there’s unlikely to be an outcome prior to the election.

As to the role of John Key’s office, one thing has been cleared up. Key has confirmed today that the staff member who was briefed by Dr Tucker was not Jason Ede. Of course, that doesn’t clear up the issue of why Key wasn’t informed by the staff member that a politically sensitive OIA request was going to be actioned.

And of course there’s the question of who tipped off Slater? Although most suspicion is falling on the Prime Minister’s office, given Slater’s relationship with Ede, the tip to Slater could well have come from the SIS itself. Phil Goff had been impugning the honesty of the SIS’s director; it’s not inconceivable that someone down the chain of command took it upon themselves to exact vengeance via Slater and his Whaleoil blog.

Student leader ‘revolted’ by politics – that’s what dirty politics does.

Sam Johnson is a fellow about whom it’s rather difficult to find any bad press – founder of Christchurch’s Student Volunteer Army; 2012 Young New Zealander of the Year; ranked number 22 on the Readers Digest top 100 trusted people list; endorsed by John Key when he successfully stood for the Ricccarton-Wigram Community Board in 2010; approached by Lianne Dalziel to be her running mate in the last Christchurch mayoralty race; founding Trustee of the Ministry of Awesome…

And he features on Stuff this morning in an article that begins:

Student Volunteer Army kingpin Sam Johnson says the underhand tricks exposed by Nicky Hager’s book Dirty Politics have left him revolted by politics.

Johnson is quoted as saying:

The whole thing is revolting. There’s obviously dirty tricks and games played on every side but I just think we’re coming up to an election and we are promoting all these campaigns to get young people to vote… the whole thing needs to get itself cleaned up.

That’s on all sides. This is not restricted to Whale Oil or Simon Lusk. It’s everywhere. It’s quite disheartening. I think we need values-driven politics.

Even before this book, I’ve been put off all sorts of politics. The council debacle was enough to put me off. I’ve seen friends go in and spat out the other side.

You can see why someone like Johnson would receive a brief taste of politics, even only at local body level, and recoil in disgust. And that’s a great pity. Politics, whether it’s local body or at a national level, is supposed to be about public service (“Ask not what your country can do for you, but what you can do for your country”, if we’re going to really descend into the cliches…). Surely people like Sam Johnson are exactly the type of people we eventually want to attract into politics?

Yet who in their right mind would want to be a politician in this day and age, knowing that everything you say and do, and everything you’ve said and done, will be picked over with a fine-tooothed comb and used to try and destroy you?

Sam Johnson featured briefly in Dirty Politics. Simon Lusk saw him as a client, and was unimpressed by a Green Party MP making favourable comments about the Student Army. Lusk asked Slater:

“Cam, can you bash this c… [the Green MP]. I’ll write it… Sam is a client. He will pay off long term.”

Johnson describes Lusk as just one of his ten to 20 mentors during his Community Board campaign. I’m sure Johnson threw up in his mouth a little to discover that Lusk thought him a long-term cash machine, existing purely to further Lusk and Slater’s ambitions.

Lusk has written:

There are a few basic propositions with negative campaigning that are worth knowing about. It lowers turn out, and drives away the independents. Voting then becomes more partisan.

Add to that, it also drives away people like Sam Johnson.

 

Was a crime committed when Slater accessed Labour’s computer system?

Following on from my earlier post regarding Nicky Hager’s new book, Dirty Politics, there’s the issue of Cameron Slater and Jason Ede accessing the Labour Party computer system. The Greens have filed a police complaint, but was a crime committed? 

In the NZ Herald, John Armstrong states that:

The allegation that one of John Key’s minions hacked into the Labour Party’s database is – to put it bluntly – the modern-day equivalent of the 1972 burglary of the Democratic Party’s national committee headquarters in the Watergate complex in Washington. 

Well, it’s not really hacking. I remember Cameron Slater blogging about what he’d done, back in 2011. No security was bypassed. No hacking required. Essentially, Labour left their system open to the world.

Over at The Standard, Rocky (in her blog post entitled “But the door was open…“) seems convinced that Slater and Ede would fall foul of s 249 of the Crimes Act – accessing a computer system for dishonest purpose – which reads:

(1) Every one is liable to imprisonment for a term not exceeding 7 years who, directly or indirectly, accesses any computer system and thereby, dishonestly or by deception, and without claim of right,—

(a) obtains any property, privilege, service, pecuniary advantage, benefit, or valuable consideration; or

(b) causes loss to any other person.

(2) Every one is liable to imprisonment for a term not exceeding 5 years who, directly or indirectly, accesses any computer system with intent, dishonestly or by deception, and without claim of right,—

(a) to obtain any property, privilege, service, pecuniary advantage, benefit, or valuable consideration; or

(b) to cause loss to any other person.

I’m unconvinced. There’s no “loss” to Labour, and I just don’t see that a court would find that snooping through Labour’s databases can be seen to fall under the ambit of obtaining or having the intent to obtain “any property, privilege, service, pecuniary advantage, benefit, or valuable consideration”. The language is that of obtaining financial advantage, which just doesn’t appear to apply in this situation.

Unfortunately, there’s almost no case law in this area, so it’s difficult to say just what a court’s interpretation might be in this sort of scenario. Could Slater be said to have obtained a “benefit” through accessing the Labour website? It’s conceivable. Labour’s embarrassment and the flow on increase in hits to the Whaleoil website might be considered a “benefit”. However, I don’t believe it’s as open and shut as Rocky posits.

There’s a better argument in favour of a prosecution under s 252 of the Crimes Act – accessing a computer system without authorisation – which reads:

(1) Every one is liable to imprisonment for a term not exceeding 2 years who intentionally accesses, directly or indirectly, any computer system without authorisation, knowing that he or she is not authorised to access that computer system, or being reckless as to whether or not he or she is authorised to access that computer system.

(2) To avoid doubt, subsection (1) does not apply if a person who is authorised to access a computer system accesses that computer system for a purpose other than the one for which that person was given access.

On the face of it, you’d have to assume that Slater and, allegedly, Ede would be toast – they’ve intentionally accessed membership and donations databases without authorisation, knowing they’re not authorised. However, lawyer Graeme Edgeler comments on Dr Nicole Moreham’s blog post at Public Address, providing an interesting counter-argument:

The question then is: does Cameron Slater have authority to access the server that hosts the Labour Party website? Well, it’s a publicly available website, that they put up there so that people can go to their website and download stuff from that server into their cache to read on their browsers. If Cameron doesn’t have authority (because, for example, it’s not express authority), I don’t see how any of us can lawfully look at it.

If Cameron, and you and I have authorisation to access the server that hosts labour.org.nz for the purpose of viewing the Labour Party’s website, then is there any basis on which section 252(2) doesn’t come into play if once we access the server, we do things that it was not intended we should do?

Obviously, if once there, those unauthorised things we are doing on that computer system (which we are authorised to access for other purposes), we do things for other reasons, eg to cause damage to the site, or to do something dishonest etc. other computer crimes may arise (such as section 249, or section 250). These offences can be committed on computer systems you have been authorised to access, because they don’t include something equivalent to section 252(2), but there has been no suggestion to date that Cameron Slater or Jason Ede (or anyone else) accessed the Labour server in a way which might give rise to an offence under s 249 or s 250.

There may still be privacy issues, but I’m tending to the view that what has been alleged is not a breach of section 252, because of subsection 2. I think we all have authorisation to access the computer system which operates as the server hosting the Labour Party website.

Nonetheless, regardless of whether we’ve all got authorisation to access the Labour Party website, Slater’s posts of the time, and Ede’s Facebook/email correspondence with Slater, make it plain that they knew they were accessing something that the Labour Party did not want accessed by the general public.

To me, that clearly brings s 252(2) into play – you’ve got authorisation to surf the Labour Party website, but when you stumble on (or are tipped off about) a publicly accessible backdoor route into membership and donation databases, it should be obvious that you’ve gone beyond the purpose of access, thus negating the right of access you previously had. 

Frankly, I don’t think Graeme Edgeler’s proposed defence would fly.

Which means we now await the outcome of the Police complaint, and see who they agree with…