Blogging...........!
Tuesday, December 3, 2013 at 10:56AM
Bill Barclay

Many readers may have followed the argument this week surrounding the Cameron Slater (Whaleoil) defamation case where Cam has been obliged through an extraordinary decision by District Judge Blakie to reveal his sources because "he is not a jounalist", and his website "not a news medium". Various other comments in his rather short judgment reveal his apparent ignorance of the manner in which blogs (certainly this one!) operate.

This hogwash was followed by a number of comments from the whole bloggosphere many of whom are moonlighting lawyers and even 'real' journalists, almost all condemming the decison as totally inapropriate in this age of social media. It will be appealed to the High Court, and most commentators appear to think that Judge Blaikie's decision will be thrown out, as it should be.

The most experienced, and respected media lawyer in the country is probably Stephen Price. Few would argue against the proposition on his own blog:

"Is Cameron Slater entitled to the same privilege to protect sources that other journalists have?

As the NZ Herald reports, the owner/operator/author of NZ’s most widely read blog is being sued for defamation. The plaintiff has formally asked him whether he knows the name of his source. (You might have thought that the answer to this might simply be “yes”. But I guess there’s an obvious follow-up). Slater has refused to answer on the grounds that he is a journalist, writing for a news medium, and therefore does not need to reveal his source. This rule is contained in s68 of the Evidence Act 2006.

Note a couple of things. First, in order to get this source protection, Slater has to show that his blog is a “medium for the dissemination to the public or a section of the public of news and observations on news.”

The law is aa clear as that…and simple, it is a wonder the judge made the ruling that he did.

[T]he judge ruled that he doesn’t even get that. This is because:

Whale Oil is a blog site. It is not a news medium within the definition of s68… of the Defamation Act. It is not a means for the dissemination to the public or a section of the public of news and observation on news.

The judge gives very little reason for this conclusion. It seems a very questionable one. Whatever you think of WhaleOil, it’s hard to deny that he breaks news stories, and that he writes commentary on news. When you factor in the requirement that the courts are supposed to have regard to rights of freedom of expression under the Bill of Rights Act when interpreting statutes – and there’s a respectable argument that protecting sources facilitates the flow of important information – then there seems a powerful argument that this section ought to be construed widely enough to encompass at least some bloggers. 

Blog is simply a made up word…I could just as easily call my site a news and commentary site..which accurate…using the title blog is subjective. In any case the law is simple and unusually clear.

The judge cites a Law Commission report in support of his conclusion that what bloggers do isn’t news. The Commission pointed out that bloggers were often highly partisan, could be offensive and abusive, and weren’t accountable to anyway.

There are several problems with this. One is that the judge was in fact quoting from a Law Commission issues paper, not its final report.

Another is that the Law Commission in its final report had some complimentary things to say about bloggers: (2013 final report on News Media meeting New Media (p61, para 3.39):

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.

Another is that the Law Commission was discussing whether bloggers should be included in a new regulatory regime for the media, not how the Evidence Act should be interpreted. Its recommendations have been rejected by the government.

Why the judge only referred to a rejected Law Commission report and not any law or precedents is certainly very strange.

Yet another problem is that the Commission’s inclination was to allow bloggers to be included in the regime, on the grounds that it made no sense to distinguish between mainstream media and bloggers when both were serving the interests of free speech. It would have treated anyone as media who regularly published news and opinion of current value to a public audience, providing they agreed to be bound by an ethics regime. This last element is problematic for Cameron Slater’s case. But in the end the thrust of the report is the need to recognise the valuable news-role played by at least some bloggers.

 So in the end, the judge’s conclusion is simply not convincing.

Apparently, Slater is appealing. I have said that I don’t think the judge’s reasons are convincing. But that doesn’t necessarily mean that the High Court judge will overturn the decision. There is a still an argument to be made that to provide “news” requires some degree of adherence to traditional journalistic ethics. At heart, this requires some commitment to an ethic of verification. Perhaps it also requires some element of fairness and balance. A readiness to correct errors. A respect for privacy. A sense of responsibility. More formally, a line might be drawn around media that are subject to complaints regimes such as the Broadcasting Standards regime and the Press Council regime. But that would exclude all the bloggers".

 

 

 

Article originally appeared on BillBarcBlog (http://billbarclay.co.nz/).
See website for complete article licensing information.