In Steven Price’s recent article Opening the door to bloggers first published in Australia’s Gazette of Law and Journalism and now reproduced at the INFORRM (The International Forum for Responsible Media) blog, he lays out this point of view:
New Zealand’s 600 or so bloggers are invariably careless, partisan, malicious or deranged, and are generally incapable of seeing any difference between their views on any particular issue and someone else’s idea of “the facts”.
‘Invariably’? Gee, Steven, that’s a bit disparaging, isn’t it? Speaking as a journalist, who blogs, that’s not how I see New Zealand’s bloggers, even though I am critical of some of them. (But ‘deranged’?)
Price’s article is worth a read. In part he presents a nice summary of the arguments for-and-against or the likelihood of bloggers in any numbers being attracted to the NZ Press Council’s offer of membership — however that evolves.
For my own part, I doubt there will be many bloggers who will want to pay hundreds of dollars to join [the Press Council].
What’s in it for them? Some may welcome the sense of legitimacy it bestows. They are journalists too, see? No longer the poor relations. Readers and sources may be more inclined to trust them if they know that standards are being enforced.
It may also help bloggers in arguing for source protection, exemption from the Privacy Act, and access to courtrooms and the parliamentary press gallery, for example.
A bigger attraction may be the waiver that many Press Council complainants are required to sign.
Complaining is free, but complainants have to promise not to sue in court. This waiver is of very questionable legality – there’s a serious question about whether forcing complainants to forgo their rights of access to court is void for public policy reasons – but it has never been challenged.
You can see why this waiver system might be bait for bloggers. What’s more, the Press Council cannot award damages or costs.
Big bloggers such as Whale Oil, Public Address and Kiwiblog have indicated willingness to consider signing up.
A prediction: if Whale Oil joins, he will withdraw in rage after the first complaint against him is upheld and make it his mission in life to ridicule and smear everyone associated with the Press Council, their children, neighbours, gardeners and pet labrador Boomer.
How will it work for the others? The obvious first question is: what standards will apply?
Surely bloggers won’t be expected to display the sort of balance that is supposed to be a staple of mainstream journalism. Will the same conflict of interest rules apply?
Others have noted that the Statement of Principles includes a requirement to disclose any financial inducements and avoid obligations to news sources.
Does that describe the political blogosphere? Comment and fact must be distinguished. …
Those issues Price raises — conflict of interest, disclosure of financial inducements — if they were a membership requirement, they would neatly exclude the wolf-in-sheep’s-clothing PR attack blogs which so duplicitously undertake ‘campaigns’ for their ‘clients’ … with no disclosure.
For instance I know Cameron Slater tried to defend his running such undeclared ‘PR lines’ on his Whaleoil blog on the basis that the attack lines fit in with his personal political beliefs. (Listen to the audio here. Maybe Steven Price’s ‘deranged’ label is fairer than I first thought?) Slater denied being paid … although admitting he ‘demanded’ money. Hmm.
Hidden influence disqualifies
At this stage, I remain of my original view that operators like PR attack blogger Cameron Slater and his propagandist/dark arts PR mates have no business being members of the NZ Press Council.
What Slater cynically pumps out on the Whaleoil website isn’t journalism, in my view, as I have explained,* and his recent pretence that it is I see as desperate and implausible.
The NZ Press Council risks naively making a rod for its own back, just as Steven Price suggests. There’s not enough value in the proposition — for either ‘party’.
Time will tell.
– P
* See: Part of the news media? or a “PR blog” dedicated to “destroying” reputations? and
More discussion on the Press Council’s move to ‘embrace’ new media)
Nice take.
Personally I can’t see any reason for The Standard to join the Press Council.
We’re definitely left partisan, are seldom careless with facts (opinions not being facts), seldom malicious (the exception being Cameron Slater in my case), and hopefully not too deranged (I’m a computer programmer – you have to be somewhat deranged to be a good one).
But in the end what does it give us? We’ve been running for six and half years with a multitude of authors and commenters.
After all we obey the legal system more by coincidence than deliberate policy. We’d be happy to break the law if the cause was worth it. But we obey it because its rules happen to fall in with good blogging practice – they’re generally sensible. In many ways we know a damn sight more about the legal limits than most. After all politics is often about wanting to shift those limits.
We don’t get sued or charged or even investigated by the police. We seldom ever even get threatened to be sued. And those who do threaten legal action I usually never hear back from after I ask some questions about whatever they are complaining while I point out the legal basis of why we said what we did. Essentially all of the threats to date have been mostly bluffing often by lawyers. Damn silly as well. They’d usually get a better response if they simply asked us to look at something more closely.
This is despite having one of the more active comment sections around with a largely unconstrained ability to comment using pseudonyms. Commenters usually like to be able to continue commenting on our site. They’re more worried about moderators reaction to them putting our site at legal risk than they are about the actual legal risk. After all we react somewhat faster and in a far more draconian manner (as far as a commenter is concerned) than the glacial processes of the legal system.
In my view, the NZ Press Council risks naively making a rod for its own back, just as Steven Price suggests. There’s not enough value in the proposition — for either ‘party’.
Exactly.
Why would we want to access parliament or the courts? We’re a site that publishes opinion. We really don’t do much news. We’ll get the publicly available information anyway. Most of the time we get the non-public information as well via OIAs and leaks if it is political. It is great background information. We just don’t tend to publish that; just our interpretation of what is publically known.
Protection against getting sued? Any half-way decent blogger doesn’t need that. It is only the obsessive and deranged idiots like Cameron Slater who do. And as you say, if he does get into the Press Council, then I suspect that he won’t be able to stand the judgement of an external body on his activities. In particular when they ask about the sources of the “facts” that he has been spinning.
Besides if someone actually wants to sue us, I suspect that I’d really really want to have access to the discovery process provided by the courts to examine why the suit is being made (we have little to hide ourselves). I suspect that the press council will be a whole lot less accommodating about digging into the sources and motivations of the complainant than the courts are.
Basically the whole thing appears to be a figleaf of dubious value…
Thanks for your comments.
Yes, some broad brush criticisms seem more plausible than others. Steven Price’s hyperbole about the NZ blogosphere (if he’s serious, not tongue in cheek) doesn’t really impress me. Partisan doesn’t necessarily mean unfair & dishonest. But as I said here: It’s only ‘propaganda’ if you’re talking about the other side, right, Carrick?
I agree with you that it’s perfectly possible for bloggers to take a sensible approach to avoiding defamation and other law breaches. It’s not rocket science. Even blogs which, like The Standard, maintain vigorous and frequently pseudonymous comment streams can stay in the clear by applying consistent policies (i.e. no allegations of criminal conduct, no threats of violence, naked abuse, privacy breaches etc) and offering a genuine right of reply.
Your workload as moderator(s) is, no doubt, proportional to the volume of ‘traffic’ and the level of excitement/venom of your commenters.
As for the NZ Press Council, yeah, Steven Price’s summary of pros and cons for bloggers gels. I agree with his suggestion that ‘source protection’ and exemptions from aspects of the Privacy Act are the ‘benefit’ the pugnacious Cameron Slater would be seeking — given that these are live issues in the current defamation action against him.
(Cameron’s hot envy and an embittered yearning for credibility — even a fig leaf — are another factor, as I see it.)
Those aside, if Slater’s oily … um … operation is seen as ‘a news medium’, he simply becomes a media defendant in a defamation case. The Privacy Act issues diminish, however. News media organizations, like others, win, lose or settle defamation actions. They’re just as at-risk from evidence which suggests they acted with malice, bad-faith, or ill-will. (I’ve discussed the ‘Get Birch’ TVNZ case here before. The threshold’s not that high.)
Cameron Slater has a lot to lose — especially if, as I suspect (or as seems at least possible) he carried out the ‘hit-job’ on Blomfield as a shabby enterprise on behalf of others, or for exchange or reward. A journalist, as Price points out, would be bound to declare any such inducements.
You’re right about the discovery process. For those who have dirty linen, it’s a process to be feared.
Thanks for dropping by.
– P
Your workload as moderator(s) is, no doubt, proportional to the volume of ‘traffic’ and the level of excitement/venom of your commenters.
The workload varies mostly on new people who haven’t been onsite before arriving to comment. It often takes some time for people to realise that we don’t really care what they say. We’re only really concerned about how they act. If they are good at providing an illumination on the discussion, then they’ll usually get ignored.
If they use one of usual trolling techniques (which they often feel that they have just discovered) that I’ve seen repeatedly in the last three decades on the net. Then I’ll demonstrate one of the many counter techniques that moderators and sysops have developed over the years. And I try to make it memorable.
After all, the net is here to educate and inform those who particularly need it. 🙂
Hi Peter,
I’d certainly agree that there’s little likelihood of any more than a handful of blogs applying to join the NZ Press Council. However, I would imagine that the issues Mr Price raises – conflict of interest & disclosure of financial inducements – really wouldn’t be applicable to the vast majority of bloggers, who are too small to demand payment/inducements, and who would simply be pushing their political (or other) attack lines because that’s the side they belong to.
I must confess to not having any idea why the Press Council would want to include bloggers in their organisation. As others have pointed out, bloggers aren’t likely to be able to afford anything other than a derisory membership fee, but they’re likely to be expensive members for the Press Council once the complaints start flowing.
The head of the Press Council was on National Radio’s Media Watch programme a few weeks back acknowledging that the Council really didn’t want a multitude of low-value, high-cost members, and may have to consider offering less services to bloggers who join.
It seems the Press Council really hasn’t thought the whole thing through particularly well…
Second issue:
I’d have to disagree with you on the ‘Cameron slater as journalist’ question. Yes, he’s not what you’d immediately think of when you consider the ordinary definition of a journalist, but the legislative definition Slater is relying on has an extremely broad definition into which (in my opinion) Slater fits.
Basically, a blogger can on occasion undertake journalistic activities (while, conversely, not everything that a journalist writes is necessarily journalism…).
I’m expecting the High Court to overturn the District Court’s ruling that Slater isn’t a journalist, although the subsequent ‘public interest’ question will get interesting in any question about whether Slater has to disclose the identity of his source.
Thanks for your comments.
As I said in the original post re …“PR blog” dedicated to “destroying” reputations?
I mean, that’s why we have judges, right? To look at all the material offered in evidence.
There’s been some quite brutal commentary and criticism of Judge Blackie’s decision, with suggestions he didn’t/doesn’t have the jurisdiction to make the is-he-isn’t-he-media call.
If you recall, I thought Jordan Williams made quite a good case for Slater, but (I’m hallucinating here) *IF* the judge detected an indication that the oily blogger was actually doing a hit-job on Blomfield for financial or other inducement … *IF* the judge thought it appeared that the oily blogger was carrying out a vendetta for a former business associate using material provided to the blogger and the blogger’s ‘reporting’ was actually a co-ordinated, paid-for attack … well, I can see why the judge might be less-inclined to offer ‘source’ protection.
I stand by my position that what Cameron Slater actually does isn’t journalism. The answer to the question that may emerge from this trial — and surrounding discussion — is how much of a PR organ his website is.
– P
In the Blomfield case, the question(s) on appeal are all related to the question of natural justice, specifically in the discovery motion about how purportedly stolen goods came into Cameron’s possession. It was about the only thing that Jordan Williams argued on – and for good reason.
It is what Cameron’s defense hinges on because he is using the “truth”, “fair comment/public interest” and “qualified privilege” defenses based on stolen materials that he has *very* selectively quoted from. In fact the only defense that he didn’t use was “consent” – very hard to do with what are claimed to be stolen materials which would require a title to them to be proved.
The problem is for Cameron is that the basis of Blomfield’s case is that he is claiming that the source of those materials provided them maliciously and specifically for the purposes of defamation. That is the specific claim that removes “qualified privilege” that real journalists rely upon.
The problem with Jordan’s submission to the court is that he couldn’t disprove that wasn’t the case. If he’d actually had a defense then his best bet would have been to offer to show the judge the chain of how those materials got into Cameron’s hands to prove that it wasn’t malicious. But the absence of any such offer was somewhat glaring.
Once Blomfield finds out *for certain* who provided those materials, then he will almost certainly join them to the defamation case and start discovery on them for such things as considerations made to Cameron Slater to prove malicious intent by Cameron and to destroy the fair comment/public interest defense.
Since in my opinion, Slater didn’t really rely on facts in the posts except as a incidental slanted and highly selective extracts, the “truth” is unlikely to be a defense.
What in the hell was Cameron thinking when he started this campaign (one amongst many). You’d think that he’d never read any of the law around defamation.
I think it’s a real pity that we risk a reasonably important media law issue being ruled on, possibly setting a precedent, in the context of such a murky case.
It seems evident that Cameron Slater made his ‘platform’ or ‘services’ — his website & its readership — available to Blomfield’s enemies/former business associates who connived with him, supplying Slater with a tranche of documents including correspondence which would normally be confidential in the course of business (and some clearly legally privileged communications, with solicitors etc).
Their purpose is so supplying Slater seems to me likely to have been to pursue a vendetta or ‘destroy’ his reputation from the shadows.
Naturally discovery orders in a defamation action would apply and draw these characters (Slater’s sources … clients … or paymasters?) out into the light. Hence the grasp for a journalist’s protection of ‘source’ … in my view, that’s a misnomer … better described as ‘client protection’
I don’t know how a court would regard such conduct, but it seems to me Slater’s attempts to characterise this operation as ‘news media’ or ‘reporting’ are not credible. It might more properly described as a hit-job — perhaps in the same vein as the defamatory campaign against Joe Karam, (do you think?)
Such ‘services’, far from being based on a ‘news media’ philosophy & practice, strike me as PR services – i.e. paid representations disseminated with the intention of re-publication to create a ‘reputation’ effect.
Of course, Cameron denies his website is a “PR blog”. But denial is his modus operandi. See?:
https://twitter.com/Whaleoil/status/448591509978230784
My opinion is that Cameron Slater’s blog is a lot of things – it’s a partisan political mouthpiece for the National party (or at least, those Nats who on-side with him); it’s an ephemeral collection of ‘YouTube videos of the day’; it’s a provocative hate speech machine in the vein of conservative American and Australian shock jocks; it’s a platform for vicious personal attacks and character assassinations; and occasionally, just occasionally, it’s journalism (in that news is broken there, a la the Len Brown affair).
For that reason, I believe that Judge Blackie was wrong to rule that Slater isn’t a journalist, pursuant to the very broad statutory definition he relies on.
That of course is a different question from whether his ongoing attack on Blomfield actually equates to journalism. As you and lprent rightly note, Blomfield argues that the hard drive was stolen and supplied to Slater for the purposes of defamation and character assassination…
Definitely agree with you, Peter, that it’s an unfortunate case for a possibly important precedent to be set in.
Sounds very much like the Sunday Papers and Campbell Live and others of their ilk to me.
Motes of dust and Beams in eyes sort of springs to mind to me.
Interesting point of note about Sir Whathisname Packer …”owning” Prime Ministers …When you exercise the power of public communication how impartial are you in actual fact.
The Standard is unashamedly declared as an “organ” of the Labour Party … this chap who is the target of the current thread … is unashamedly an “organ” of the National Party and all matters conservative and right wing … one declares it on their masthead and the other just makes it plain in their postings etc etc and their associations.
Notable was the war columnist Charles Bean … who eventually carried his partisan behaviour to open attempts to get Aussie Military leadership changed on a whim in WW1 by extensive character assassination masked as lobbying and writing.
This chap Slater should be declared to be a journalist … he fairly represents the “profession”. The question is … are his actions therefore legal. On a basis of commonsense (and that is a matter entirely outside the law) and morality … his actions were and are detestable in the extreme. But he is still acting as a journalist. Where is the Writ in Stone a la Moses that states and enshrines in law or otherwise what a journalist is … other than a person who writes or communicates affairs of the day and interprets them for public consumption.
A Doctor is a doctor – a lawyer is a lawyer … a Journalist is an extremely broad thing dependant on what the individual does and the types of activities they are associated with. Its a changing world we live in .. we embrace new technology – we have to accept that things change.
You are wrong. He didn’t rule that Slater wasn’t a journalist. That is just Slaters usual bullshit.
He ruled that Slater and his lawyer hadn’t demonstrated that Slater and Whaleoil were free of malice and therefore could argue the defense of qualified privilege in the allegedly defamatory publications about Matthew Blomfield. Other writings by Slater and other uses of the Whaleoil blog for news don’t matter much. What matters is what he did in the publications he did that are cited in this case.
This is defamation law (not whatever fantasy that Slater and many journos would like it to be) and Judge Blackie was completely correct to make the judgement about discovery that he did within that context.
In defamation law, Blomfield just had to show that the statements made caused him damage and that they were published. That wasn’t exactly hard.
The onus of proof in a defamation case past that point is ALL on the defendant to defend their statements. There are a number of defenses including the qualified privilege defense that journos use in that they have a “duty” to make such statements. This is the one that Slater was relying on to allow him not to reveal his sources.
However for all defendants this has the restriction that they must demonstrate that that such statements were made in good faith and were not motivated by malice or ill-will.
Blomfield in his suit is alleging malice and ill-will not only by Slater, but also by whoever furnished him the allegedly stolen goods that formed the basis of the case. That malice is there is pretty damn evident and I still haven’t found any of even his own supporters who would deny that they didn’t think that one or both of those bore considerable malice and ill-will to Matthew Blomfield.
It was hardly surprising that Judge Blackie thought the same. I’d be very surprised if the high court thinks differently.
Now the only part of the discovery that appears to be at issue is the source of the allegedly stolen materials. Which is also at the heart of the question of malice and ill-will.
Most journalists could easily do show that they worked pretty hard to avoid ill-will or malice because they and their publications are reasonably careful to be at least visibly balanced and their writing stuck largely to the known verified facts which they published.
Because Slater was unable to show that he had published those posts with no particular malice or ill-will towards Blomfield, he couldn’t claim qualified privilege.
If he has no qualified privilege then the sources are well within the bounds of discovery.
It is pretty straight forward legally. I guess that is why there has not been a rush of pro-bono support towards Cameron.
Ivan:
The Standard is unashamedly declared as an “organ” of the Labour Party…
Where exactly? It is news to me and I run the place.
Read the about. What we are interested in is providing a forum for people in the “labour movement”, which includes most of the political left. That is quite a different thing from the political party.
But you also missed the point that we do not claim to be journalists. We try to make it quite clear even to the most stupid that we are not and don’t want to be. So does Cameron Slater when it doesn’t suit his immediate purposes to wrap the legal figleaf of being a “journalist” over his smears and defamation.
Unlike Cameron Slater, we don’t take money from anyone apart from our advertising and the trickle of donations from our readers to run our site. We also all have income from other sources (mostly jobs) that allow us to live and spend some of our leisure time writing a blog.
But I guess you already knew that you were lying.
Hi lprent,
At paras 15 to 18 of his judgment, Judge Blackie rules that the Whaleoil blog cannot be considered a “news medium” as defined by s 68(5) of the Evidence Act 2006. To me, that’s a ruling that Slater isn’t a journalist, as he doesn’t operate a news medium.
The Judge also rules that Slater can’t rely on HCR 8.46, as he hasn’t claimed there’s a public interest to his expressions of so-called honest opinion.
My opinion is that the Whaleoil blog *should* be considered an occasional new medium, and Slater an occasional journalist. I’m happy to accept that we have different opinions on that question.
You state though that Slater was attempting to use “the qualified privilege defense that journos use in that they have a “duty” to make such statements. This is the one that Slater was relying on to allow him not to reveal his sources.”
However, Slater is relying on the affirmative defences of truth and honest opinion (see para 9 of the judgment). As far as I’m aware, a journalist can still argue that they should not have to divulge their source (pursuant to s 68 of the Evidence Act), even if they aren’t pleading the defence of qualified privilege. Section 68 doesn’t just apply to a defence of qualified privilege in defamation proceedings.
Of course, the journalist and new medium question is purely related to discovery at this point, and the remainder of your analysis I completely agree with. Yes, Slater has to defend his defamatory statements, and frankly I think he’ll struggle to do that, regardless of whether he has to reveal his source or not.
I’d note though that you state, “It was hardly surprising that Judge Blackie thought the same” with regard to the issue of malice. However, the Judge hasn’t made any rulings on malice. His ruling is purely to do with the outstanding interrogatories and whether Slater can rely on s 68 of the Evidence Act or HCR 8.46.
JonoN: I think that you are correct that was part of the judgement. That was what I argued in my post on his judgement because that was the one picked up by Russell Brown.
But that wasn’t arguing he wasn’t a journalist – that was the spin put on it by various people.
The judgement said that the Whaleoil site wasn’t acting as a news medium. I can’t remember the wording of the evidence act, ah here we go…
68(5)
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
Now you have to remember that was also being done in the light of the case in FRONT of the judge which were about the posts on Blomfield.
Were they news or observations on the news? I rather think that no-one who has ever read them would consider that they were. And it wasn’t an isolated bit of bad judgement. After all there are something like about 40 or 50 of them over quite some time.
They were a malicious attack published by the Whaleoil blog on an individual. It was in no way different than the unsubstantiated attacks on Karam. It is hardly surprising the the judge didn’t consider that the Whaleoil blog was a news medium – because it didn’t act like one.
However the judgement about the disputed section of the discovery was quite a lot more extensive than that. I don’t have the judgement in front of me (tablet). But as I remember it there were several points going on about the questions of the applicability of even if there was a possibility of the defense of qualified privilege as well.
Lprent: But Judge Blackie’s reasoning that the Whaleoil blog is not a news medium is based entirely on a) the fact that all relevant case law pertained to the ‘mainstream media’ and b) an extract from the Law Commission report ‘News Media Meets “New Media”‘ which was less than supportive of including blogs as news medium.
(Stephen Price, in his Media Law Journal blog, notes that the ‘report’ quoted by the Judge was in fact the issues paper, rather than the final report. The final report, at para 3.39, was actually quite complimentary about the ability of some blogs to break news and act as a watch dog over the mainstream media).
The Judge decided that Slater’s blog could not be a news medium, full stop. This wasn’t a nuanced decision where His Honour looked at the particular blog posts and whether they were newsworthy or otherwise. His Hounour’s only comment on the contents of the posts comes at para 17, after he notes that Slater has not claimed that his honest opinion was expressed on a matter of public interest: “This is not surprising, having regard to the allegedly offensive nature of much of the material which the defendant admits that it published.”
I would argue that at the very core of the Blomfield case there is information that could be considered newsworthy (eg. the allegations that Blomfield defrauded Kids Can). That’s assuming there’s any truth whatsoever to that allegation – Slater’s pleading the defence of truth, so the onus will be on him to prove that in Court, otherwise he’s toast.
That, to my mind, would allow Slater to claim source protection (if, like me, you agree that the Whaleoil blog is occasionally a news medium. I accept that we have differing opinions there, and that’s fine.).
From there, it doesn’t matter whether Slater’s bile-filled attacks became simply defamatory rhetoric. The contents of Slater’s posts on Blomfield goes to the basic legal tests relating to defamation, which Blomfield should be home and hosed on, whether Slater has to disclose his source or not.
With regards to qualified privilege and whether it applied or not, it’s mentioned briefly at para 17 of the judgment, in Judge Blackie’s discussion on HCR 8.46: “The rule applies where the defendant pleads that the words complained of are honest opinion on a matter of public interest or published on a privileged occasion”. The Judge isn’t saying that Slater is trying to claim qualified privilege; just that it wouldn’t be relevant in this case even if Slater were claiming it.
JonoN: I’m mildly hung over this morning.
Apart from anything else, it’d also depend if that was one of the posts that was in the defamation case (I don’t know myself).
And on a separate point, I seem to remember the Kids Can people had said it was not true. The police investigated after a complaint was made from Whaleoil and said that it wasn’t true. Which leads to the question about if Whaleoil and Cameron had ever thought it was true and if so why, and therefore directly back to questions about maliciousness, the sources and their source. To me it appeared to be more about trying to manufacture a story than actually having one.
Ah no – because as soon as he draws the mantle of being a news medium over himself, he also gains quite a lot of support for the defense of qualified privilege because he can then argue that he had a “duty” to report what he did about Blomfield regardless how wrong and defamatory it was.
It wasn’t in Judge Blackie’s ruling because it didn’t need to be. He’d already said that there was none as soon as he said that he didn’t think Whaleoil was a news medium – none of the other criteria for “duty” would fit. However it was in Jordan Williams submission about the discovery.
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.
My preferred way of doing that is that you have to expensively convince a hard-nosed judge or judges that you are. There is an appeal process beyond. But merely having to “prove” it to your peers (ie other “journalists” or “bloggers”) is not sufficient because they don’t have particularly good self-regulatory bodies and are highly subject to the “everyone else is doing it” syndrome. Just read the transcripts on the News of the World trial.
It appears that this is what parliament concluded as well. Because that is exactly what 68(2) and 68(3) of the evidence act provide for at the high court level.
I suspect that Judge Blackie refused the “news medium” aspect simply to get that decision booted to the appropriate court.
Lprent: I still can’t see anywhere in either of Jordan Williams’ written submissions or Judge Blackie’s judgment that Slater has attempted to argue the defence of qualified privilege. Williams refers to the privilege of journalistic protection of sources in his written submissions, but he doesn’t link that to qualified privilege.
I’m a little dubious that Slater could suddenly argue qualified privilege successfully, simply because his blog has been ruled to be a news medium, but I don’t profess to being an expert in defamation law, so I’m happy to defer to you on that.
Regarding the Kids Can allegation, I believe it was the first of Slater’s attack posts. Wouldn’t have a clue about Kids Can’s reply or the police investigation (I wasn’t following the story), but if Kids Can and the police have already said there’s no factual basis for the allegation then Slater’s going to have a hard time arguing truth…
As to the policy issues you discuss, and whether I’d want Slater essentially having all of the privileges of a journalist, but with little or none of the responsibilities – short answer, no. My argument though is based on how I’m reading the broad interpretation of s 68 and its definition of news mediums and journalists. I accept that you (and Peter) read it rather more narrowly than I, and I can see how the Court may very well adopt your line of reasoning over mine. That’s why we pay the Judges the big bucks!
Show me a journalist or media person who doesnt report within the constraints and strait jacket of their own political beliefs or “paradigms” and i will declare the DODO as no longer extinct.
Also … show me similar animals … who dont have sources … informers, insiders, leakers, whistleblowers who unleash torrents of information regarding unsuspecting individuals. Regardless of substantiated truth or otherwise.
I suspect you as a “profession” if it can be termed as such .. have been tarred and feathered many moons ago … long before this “blogger” you have referred to … ever decided to use the hallowed halls of “journalism” as his new abode.
Hi Ivan,
While I understand your disenchantment with certain members of the news media, there’s a big difference between a journalist cultivating ‘sources’ and someone publishing a protracted campaign of attack on an individual (even a failed businessman) on behalf of an undeclared person or persons … perhaps his disgruntled former business associates?
The tactics and machinations of Cameron Slater’s shadowy source/clients include delivering to him a tranche of confidential personal & business documents. correspondence and information, and [allegedly] co-ordinating the repeated attacks with the PR blogger.
Paradigms? Of course. They and their attendant limitations of vision (strait jacket?) are, it seems to me, nearly unavoidable.
As mentioned here http://www.thepaepae.com/every-source-leaks-for-a-reason-patrick/21630/
there are times when journalists ineptly end up pushing someone else’s agenda. That’s a hazard. We get used.
But it seems to me that’s quite different from activities carried out on behalf of, or in consultation with someone else — being their ‘agent’ — as is alleged, and seems at least possible, in this case.
Thanks for your comments.
– P
Oh not saying i agree with this person being called anything that even approaches a member of a “profession”. A lot of bonafide Journos have and do indulge in lengthy dismemberings of people, organisations and situations – and while one cant prove payment .. it has to be said that job offers and “Kind” in the future does possibly play a part.
The target of your vitriole – or reasoned utterances (depending on your viewpoint) doesnt appear much different to many others in the journalistic profession. Six Figure incomes dont make for impartiality – the web of connections is too complex with many levels of activity, to allow for that.
@JonoN you say:
” … it’s a platform for vicious personal attacks and character assassinations; and occasionally, just occasionally, it’s journalism (in that news is broken there, a la the Len Brown affair).”
Thanks for sharing your thoughts. I don’t want to sound fraught about this, I think we agree more than we disagree.
I see the example you (and others) offer of ‘news’ ‘breaking’ at Slater’s PR blog differently…
It emerged from Luigi Wewege’s correspondence & interview comments (before he rapidly left the county) that the ‘Len Brown affair’ story was a case of a political operator, Mr Wewege, engaging/employing/using Cameron Slater’s PR platform to carry out the ‘vicious’ character attacks that are its stock-in-trade.
Cameron Slater didn’t ‘break’ the Len Brown story. It was fed to him by Wewege — an agenda-driven political operator who worked for right wing mayoral candidate John Palino’s campaign. Also, the Palino campaign was ostensibly managed by Slater’s father, John Slater, former National Party president and boss of the Citizens & Ratepayers faux-National political group which contests local body elections.
I’ll be the first to admit there was ‘news value’ in the revelations. Of course there was. And to be clear: although Len Brown’s actions were wrong and disgraced him, I personally don’t condemn him. I’m also human, and a sinner.
Sadly for the anti-Len Brown brigade, the stench of the rotten, seamy political machinations — including:
• Luigi Wewege’s apparent sexual relationship with Ms Chuang & the (documented) emotional pressure he put on her to expose Brown, & naked photos of her changing hands,
• the prurient ‘affidavit’ prepared for her signature with masturbatory relish by Stephen Cook for publication on Slater junior’s website,
• Mr Palino’s hour-and-a-half late night Mission Bay carpark meeting with Ms Chuang the night before publication and his account of issues surrounding her,
• Slater senior’s Sergeant Shultz=esque declaration: I knew nothing about it, Luigi Wewege didn’t tell me, Cameron didn’t tell me, I’m just the campaign manager,
• Slater junior’s own hypocrisy as someone recently outed as an adulterer himself, his ill-discipline and his shifting narratives as Ms Chuang woke up to how she’d been used by Luigi Wewege, Slater junior & Stephen Cook.
… all these became almost as ‘newsworthy’.
Indeed, the inept sleaze of the plot to blackmail/bring down/destroy Len Brown became the story.
Mr Palino’s post-election vacation in Melbourne didn’t settle things down. Remember this?: http://www.thepaepae.com/close-your-eyes-and-listen-to-what-john-palino-said/33144/
Despite Slater junior’s attempt to characterise NZ politics as a ‘dirty, disgusting, despicable game’ carried out by dirty people from top to bottom …
(Listen to the clip here: http://www.thepaepae.com/orchestrating-smear-campaigns-against-your-rivals-is-seen-as-dodgy-in-business-so-what-about-politics/33045/ )
… this type of sleaze had not before been so publicly observed in NZ local body politics.
The botched Wewege/Slater hatchet-job on Brown has probably fatally wounded John Palino’s future political aspirations. Despite achieving a respectable second place in the election, this slobbering little back room operation was effectively carried out in his name … whether Mr Palino was aware of it or not. The perception is damning.
So, as an exercise, instead of seeing the Slater website as a ‘news medium’ business that ‘breaks stories’, take a look at it through my filter, ‘Whaleoil is a PR attack blog’ and what do we observe?:
Well if you look, you’ll see a PR website at the service of people who want to demean, ‘destroy’, demonise, or put pressure on other people, running ‘PR lines’ and ‘demanding money’ for so doing.
Cameron’s puerile and shabby (IMO) defence, paraphrased as: ‘It’s not unethical to run undeclared PR lines if I happen to agree with them’ (cited here: http://www.thepaepae.com/as-playful-as-he-is-psychotic/26510/ in the context of the Ports of Auckland company) flutters to the floor when one observes him doing actually it.
For example, recently attempting to promulgate negative PR such as “Is the IRD IT system upgrade going to blow up in minister’s faces?”
Oh really?
In that example it seems transparent to me (but I could be wrong) that he’s driving someone else’s agenda, running a negative campaign on someone else’s behalf, in someone else’s interests — his ‘PR attack services’ possibly/likely brokered by someone actually working in the PR industry. Someone like Simon Lusk? or Carrick Graham, perhaps? Dunno, but from what I know, it seems plausible to me.
PR, not journalism.
– P
I guess our point of difference arises due to the broad definition I ascribe to s 68 of the Evidence Act. It defines a ‘news medium’ as “a medium for the dissemination to the public or a section of the public of news and observations on news”. To me, the Whaleoil blog does disseminate to a section of the public news and observations on news. Section 68 doesn’t prescribe what motivation(s) can or cannot be behind that dissemination.
Sure, Slater’s motivations may often be dubious (eg. his demands for payment to run attack lines) and his behaviour reprehensible, but that doesn’t mean that he doesn’t on occasion disseminate news. The Len Brown affair may have been gutter reporting (and the behaviour of Wewege, Cook and Slater was disgusting), but it was still news that was broken on the Whaleoil blog.
Yes, I can see that a quick change in perception filters results in a “PR website”, but surely the fact that so many people can view Slater’s blog as having provided news means something?
I’d also point to the NZ Herald’s lengthy series (last year, I believe?) of puff pieces about Australia as a travel destination. From memory, the Herald was paid by the Aussies to provide the positive coverage, but the payment was not openly disclosed. There was a great deal of disquiet from media commentators when news of the payments slipped out.
Even our largest newspaper takes money to spin a PR line. That doesn’t stop the Herald from being a news medium…
Section 68 doesn’t prescribe what motivation(s) can or cannot be behind that dissemination.
It does require that it is a news medium. That isn’t well defined either – which leaves it up to a judge in a court to determine. Incidentally that is also what little case law I know about this indicates as well.
Of course there is a second problem for the Whaleoil blog and Cameron.
68(2)
A Judge of the High Court may order that subsection (1) is not to apply if satisfied by a party to a civil or criminal proceeding that, having regard to the issues to be determined in that proceeding, the public interest in the disclosure of evidence of the identity of the informant outweighs—
(a)any likely adverse effect of the disclosure on the informant or any other person; and
(b)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.
68(3)The Judge may make the order subject to any terms and conditions that the Judge thinks appropriate.
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.
Umm I’ll have to offer to make a submission to the court to that effect. In fact I suspect I could start a bit of a movement.
You make a good point, lprent. The protection of journalistic sources isn’t absolute, and a Court could easily find that Slater’s blog is a news medium, but that the public interest demands he hand over his source. Especially given that Slater’s conduct (40 vitriolic attack posts – wtf?) certainly points to the possibility of payment for PR / character assassination.
I’d imagine “a bit of a movement” wouldn’t be difficult to start!
@Lprent, you say:
“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.”
Agreed. Even if the ‘news medium’ fig leaf is placed into Cameron Slater et al‘s trembling hands, it’s still a matter of public interest if the PR attack blog he and his mates operate is, effectively, a hired gun — and for whom they deliver their services, in the context of a defamation case.
As I said in an earlier comment, Slater junior’s website then becomes a ‘media defendant’ … and open to a level of scrutiny.
I’m not a lawyer’s elbow, as I have said, but it seems to me there’s no free lunch.
Judging by the belligerence of Cameron Slater’s responses to Blomfield’s objections to the hit-job campaign published on the whale oil website, I theorise that Cameron did not expect the issue to reach the courts, nor for his actions to be scrutinised in any meaningful way.
Perhaps he thought he was dealing with a beaten-down man with little to lose. (Perhaps that’s how his ‘sources’ portrayed him?) I base these thoughts on this, from the whale oil website 18 June 2012:
Well, things haven’t gone quite as Cameron Slater predicted, have they? He and his oily enterprise are at risk, it seems to me. So are his ‘sources’.
– P
JonoN, imagine you’re a lawyer 😉 What would you say to a client who received a statement of claim and associated legal papers suing them for defamation based on what they published on their website … then belligerently responded by publishing an index of the forty(!) blog posts they’d published in their attack campaign and links to them … and abused the plaintiff as a ‘cocksmoker’…
Well, I’ve dutifully done my imagining! 🙂
And yep, that’s exactly what will hang Slater when Blomfield’s defamation suit gets to a substantive hearing. I’d say it’s a bit difficult to defend the “cocksmoker” barb as being either truth or honest opinion!
As an aside, if Slater *was* paid for his attack on Blomfield, I’d hope he was paid well – it looks like it’s already cost him a significant amount in legal fees, and the damages against him if Blomfield triumphs may be extensive…
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