Am I a journalist? Steven Price examines

Steven Price is a media blogger and an expert on the law around media.

He was quoted in the HoS article but has expanded his quote somewhat on his blog.

[I]s 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.

Uh oh…I may have to ask Steven Price to give some evidence.

It gets worse though. The judge goes on to consider the High Court rules. He cites a rule that says a defamation defendant doesn’t have to disclose sources before trial when pleading honest opinion or privilege. The judge says this rule doesn’t apply because Cameron Slater didn’t argue a defence of “honest opinion on a matter of public interest.” This reasoning seems particularly weird to me. The defence of honest opinion no longer requires  that the comment be on a matter of public interest. He doesn’t need to plead public interest: it would be superfluous. It seems to me that this rule surely applies to a defendant who pleads honest opinion, which Slater did. So I think the judge is wrong there too.

Wrong again. Oh dear.

What’s more, there’s also a rule called “the Newspaper rule” that the judge doesn’t discuss that allows  media defamation defendants to refuse to disclose sources before trial – Cameron Slater could have tried to invoke that too, but it’s not clear he did.

I didn’t because I represented myself…and I didn’t know about that. In any case that is something to bring up at the appeal to the High Court.

Apparently, Slater is appealing. (Now, there’s a sentence I didn’t ever expect to write). 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.

Good points there by Steven. Let me clear some of those up.

I have applied several times to join the Press Council and the refusal and rejection is very swift. It is a closed shop, even when  was editor of Truth.

In terms of fairness and balance…in this particular case I offered a full right of reply to anything that was written. I have an audio recording of that conversation with the plaintiff. He did write one email which I posted in full. Then he initiated legal action. Today he left a comment which again was treated as a right of reply and published unedited in full. In all posts I replied on emails of the plaintiff’s, in other words his own words and writings.

I also readily correct errors and have made full and public apologies when I have got something wrong. On Friday last week I was contacted by someone who wanted to move on with their life and requested rather reasonably and politely if I would remove some posts about them. I did so. I would love to see the mainstream media point to them ever removing an article upon request from someone.

In terms of privacy, well that is problematic since media are pretty much exempt from those requirements…and the plaintiff has also laid a complaint with the Privacy Commissioner who are also seeking to prosecute me on the same basis. Which in itself is strange behaviour to sue for defamation and at the same time demand privacy…in order to defend myself I need to publish in an open court that which he seeks to remain private.


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As much at home writing editorials as being the subject of them, Cam has won awards, including the Canon Media Award for his work on the Len Brown/Bevan Chuang story. When he’s not creating the news, he tends to be in it, with protagonists using the courts, media and social media to deliver financial as well as death threats.

They say that news is something that someone, somewhere, wants kept quiet. Cam Slater doesn’t do quiet and, as a result, he is a polarising, controversial but highly effective journalist who takes no prisoners.

He is fearless in his pursuit of a story.

Love him or loathe him, you can’t ignore him.

To read Cam’s previous articles click on his name in blue.

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