Is Whale Oil a journalist?

Judge Charles Blackie has ruled that Whale Oil blogger Cam Slater is not entitled to rely on journalists' rights to protect the identity of sources, as set out in the Evidence Act, and must disclose the identity of a confidential source.

The ruling was made as part of a defamation case taken against Mr Slater by businessman Matthew Blomfield.

At a hearing in the Manukau District Court last week, Slater said he intended to appeal against the decision, and was given 28 days to file proceedings with the High Court, the Herald reports.

Mr Slater told NBR late yesterday, "Yes I plan to appeal. The implications of the Blackie decision are severe on anyone publishing online. As the world moves more and more online we are going to see these challenges and I suppose in some respects it must be up to me to lead those challenges just like I did on name suppression."

While Whale Oil is much-hated by some on the other side of the political fence, he argues Judge Blackie's ruling should be considered equally troubling to left wing bloggers like Russell Brown and Keith Ng (who broke the story about security holes at the Ministry of Social Development).

Mr Slater says defending Mr Blomfield's action has exhausted his financial resources.

At this point he doesn't know how he will pay for his planned appearance. "Some blog readers are wanting to donate, but I think some pro bono advice from a senior lawyer wouldn't go amiss," he says.

Below, barrister and media law specialist Steven Price looks at issues behind the ruling as they apply to Whale Oil, and the wider blogging community.

Read Mr Slater answers the Herald's article here.

It's worth noting this imbroglio could possibly have been avoided if the government had adopted the Law Commission's proposal for a single media regulator, which also covered social media. Bloggers would not have been obliged to bide by the new media regulator's decisions - but if they agreed, they would also have been extended the protections offered to traditional media. In the final event, Justice Minister Judith Collins sidelined the proposal.

Lastly, while the Evidence Act protects journalists, the Search & Surveillance Act, passed in March last year, reasserted the Serious Fraud Office's right to seize journalists' documentation related to a story - as the Crown agency did in the case of NBR's South Canterbury Finance coverage as it demanded recordings of interviews and other documentation from. In NBR's view the legislation is undemocratic, and anti-whistleblower.

- Chris Keall

Is Whale Oil a journalist?

More specifically, 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.”

Second, even if he is a journalist, that doesn’t guarantee that he won’t be ordered to reveal his source(s). The judge can order him to identify his source on the grounds that the public interest in disclosure outweighs the negative impact on the source and the general impact on the flow of information to journalists. This rule applies to all journalists.

Anyway, Slater claims this prima facie right to protect his source. But the 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.

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.

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.

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.

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.

Where does this leave us? I’m not entirely sure. Is the judge saying that no bloggers can invoke the Evidence Act to protect sources? That’s certainly one way of reading the decision, since he doesn’t go into any real detail about the Whale Oil blog.

But another way of reading it is that it’s only bloggers like Slater who aren’t really providing news who don’t get the source protection privilege. Other bloggers may be.

In any event, bloggers who blog for mainstream news outlets seem to be covered by the source protection rule, since the outlet they’re writing for is purveying news and observations on news.

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.

Anyway, it could be argued that Cameron Slater doesn’t satisfy this requirement, so that whatever he produces on WhaleOil, it can’t be said to be “news”. This may be attractive to a judge on appeal, given that otherwise, essentially anyone can set themselves up as a news blogger and automatically gain the power to allow sources to defame people with impunity, and to deny plaintiffs the right to assess the degree of care and responsibility taken by the blogger in preparing the story. The identity of a source may be relevant to at least a couple of defamation defences.

But that argument is no slam dunk.

Remember though that even if bloggers are given this right, a judge can still order the blogger (or any other journalist) to disclose a source.

Another thing worth bearing in mind. Even if the worst happens for bloggers and none of them is allowed this privilege, I’m not sure the sky will fall. They will argue that this will create a huge chilling effect and their sources will dry up. The media also make this argument. But there’s very little evidence that it’s true. My prediction is that even if WhaleOil loses this case, it will pretty much be business as usual for most bloggers.

Steven Price is barrister specialising in media law, practising in Wellington and blogs at Media Law Journal.