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Is Whale Oil a journalist?

By Steven | December 1, 2013

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 [update: note that this must be a High Court 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 Evidence 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 anybody.

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. (Of course, as Graeme notes in the comments, the blogger can still be sued for defamation. But the source may get away with it, as well as getting away with any breaches of the law that may be involved in the disclosure of the information, such as a breach of employment obligations of confidentiality).

Another way of putting this: if the blogger’s delivery of information to the public is so steeped in ideology, invective and irresponsibility, then there’s surely a case for saying it’s not “news”.

But that argument that no slam dunk. And it creates a difficult line for the courts to draw. Which blogs are delivering “news”, and how can you tell?

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

A final 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. People have lots of reasons for talking to journalists and bloggers. Defamation cases are rare. Some journalists (and presumably bloggers) are prepared to go to jail for contempt rather than comply with a court order to name a source. So sources may well not be familiar with the law, and even if they are, they may be willing to run the risk.

My prediction is that even if WhaleOil loses this case, it will pretty much be business as usual for most bloggers.

Topics: Defamation, General, Media ethics, NZ Bill of Rights Act, Protecting sources | 103 Comments »

103 Responses to “Is Whale Oil a journalist?”

  1. Graeme Edgeler Says:
    December 1st, 2013 at 10:09 pm

    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

    Impunity? Even if you can’t sue the person who made the comment, the ability to sue the person who published it surely stops this being a case of impunity? Is there some defence a blogger can avail themselves of for publishing an anonymously sourced defamation?

  2. Graeme Edgeler Says:
    December 1st, 2013 at 10:20 pm

    Perhaps it also requires … A readiness to correct errors.

    If that’s the test, I’m not sure many broadcasters qualify. Doesn’t just about every BSA discussion about penalty in a sustained accuracy complaint involve the complainant asking for a correction, and the broadcaster strenuously objecting to being asked to provide one: Having to correct this story we got wrong would be a gross violation of freedom of expression, etc.

    Wouldn’t a readiness to correcting errors involve something more like “oh, there’s no reason to order us to correct our error, we’ve corrected it already”?

  3. Graeme Edgeler Says:
    December 1st, 2013 at 10:25 pm

    Finally (and on the real point), my view is that the law should protect journalism, not journalists. If you run a blog where you up until now, every single post has been a recipe or cooking tip, and then someone in a food manufacturing company leaks information to you about a contamination scandal, then, if you behave journalistic-ly in respect of that single post, your actions in respect of it should be covered.

  4. ross Says:
    December 1st, 2013 at 10:37 pm

    “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.”

    I think this is a weak argument. Media stories often lack balance. The recent Roast Busters scandal illustrates that. The accused teenage youths (?) have been referred to as rapists…notwithstanding that no charges have been laid! Lazy journalism is still journalism.

  5. Steven Says:
    December 2nd, 2013 at 9:26 am

    Graeme:
    1. Yes of course. I meant to note that, and will do it now. But you’ll notice that I only said the source could defame with impunity. (That impunity also extends to any unlawfulness in the disclosure by the source, such as the breach of an employment contract).

    2. Just about every BSA decision? No. This argument arises only occasionally. Much more frequently, the media do correct significant and provable errors that are drawn to their attention. (Sometimes they do so off their own bat, sometimes because someone draws it to their attention, sometimes it’s as a result of a complaint, which may be upheld by the broadcaster and not get to the BSA). You’re talking only about the small number of cases that make it to the BSA, and a small subset of even those, and there’s almost always dispute over the inaccuracy or at least its significance in those cases.

    3. This strikes me as an odd argument, coming from you. Are you saying that the Evidence Act should be interpreted this way? If so, that seems to fly in the face of a pretty clear Parliamentary intention that “news medium” is defined by reference to the flow of news stories and observations emanating from a particular organisation.

    If you’re saying that the Evidence Act should be reformed so that individual posts can attract privilege, you’re opening up a can of worms. Remember that the section is premised on an offer of confidentiality. Are bloggers supposed to instantly be able to recognise, right from the genesis of a story, that “Yes, it’s a cooking blog, but I’m switching gears into investigative journalism for this post, so I can legally offer to protect your identity”? What’s more, the courts will presumably have to develop some rules and principles around which posts, case-by-case, are news stories and which are not. That strikes me as much more complicated that just deciding whether a particular medium generally publishes news and observations on news.

    Ross: Ah. So… just because some mainstream media outlets occasionally act unethically, then they are the same as bloggers, even though bloggers generally do not subscribe to codes of ethics, or have a tradition of news ethics, or have any sort of professional training around ethics, or have anyone editing their content, and have no complaints systems?

  6. Graeme Edgeler Says:
    December 2nd, 2013 at 10:13 am

    On 3, I’m not saying it is the law, I’m saying it should be the law (in the sense of amending the law so that ).

    The law currently requires an offer of confidentiality. My initial view is that is should simply require an understanding of confidentiality (in the sense that if the person was to write up the article “Rob Robson of Mike Mikeson’s Muesli has told me about a contamination scandal”, there might be elements of a breach of confidence claim).

    Are bloggers supposed to instantly be able to recognise, right from the genesis of a story, that “Yes, it’s a cooking blog, but I’m switching gears into investigative journalism for this post, so I can legally offer to protect your identity”?

    No, and many won’t, and won’t get the protections. But if they do, then why not?

    I have a blog. I don’t recall ever publishing anything on it that involved a confidential source, but I do think some of it qualifies as journalism (other bits are perhaps part of academia), and I have called people for comment before publishing critical material. If I do “switch gears”, even if what I ordinarily publish is not journalism, what sound policy basis is there for excluding any source from protection?

  7. Steven Says:
    December 2nd, 2013 at 10:47 am

    You do not adhere to any code of ethics or complaints regime. I’m not saying this point of distinction should be determinative, and in fact don’t think it should. But it is a point of distinction, and it’s one the taxed the minds of the Law Commissioners. Also, although we might be comfortable with giving you source protection privileges, there’s still a question of where the line is to be drawn.

  8. Graeme Edgeler Says:
    December 2nd, 2013 at 11:08 am

    You do not adhere to any code of ethics

    ahem

  9. ross Says:
    December 2nd, 2013 at 3:04 pm

    “Ross: Ah. So… just because some mainstream media outlets occasionally act unethically, then they are the same as bloggers, even though bloggers generally do not subscribe to codes of ethics, or have a tradition of news ethics, or have any sort of professional training around ethics, or have anyone editing their content, and have no complaints systems?”

    My point was simply that whilst the mass media might like to pretend that they behave ethically, the reality can be somewhat different.

    Anyway, I think we’re getting off topic a little. Bad journalism – whether in the form of a blog or newspaper – is still journalism. Whether a code of ethics exists for bloggers is irrelevant. The issue is about disseminating news and commentary on it…

  10. ross Says:
    December 2nd, 2013 at 3:06 pm

    BTW, Steven, I would classify your friend Vince Siemer as a journalist. He disseminates and commentates on news. He might not be to everyone’s liking but that is surely irrelevant.

  11. rich.d.rich Says:
    December 2nd, 2013 at 4:49 pm

    Defamation cases are rare

    If the HDC Bill passes unchanged, they may become a lot less rare – a case will be able to be brought on a basis of “harmful” defamation in the District Court with no filing fees.

  12. Steven Says:
    December 4th, 2013 at 9:58 am

    Ross: I’m not sure what makes you think Vince Siemer is my friend. At any rate, I agree that’s its very likely that he comes under the definition of a news medium in the Evidence Act. But are you suggesting that this prospect is likely to make judges more likely to rule in favour of a wide reading of the Evidence Act…?

    Rich: Possibly. But the applicant would first have to go to the complaints agency, then s/he would have to wade past the thicket of factors to be taken into account by the judge – including whether or not the statement was true or in the public interest, and the conduct of the parties, and the circulation of the statement and vulnerability of the victim. Then s/he would have to convince a judge that an order would be a justified limitation on free speech. Then s/he might be granted a right of reply or perhaps a takedown order, but no damages or costs.
    This would not, incidentally, be a “defamation” case. The HDC Bill talks about false allegations, but not defamation, a sensible attempt to prevent any proceedings from getting bogged down by the technicalities of defamation cases.

  13. Steven Says:
    December 4th, 2013 at 10:12 am

    PS to Rich: And it doesn’t seem to me that a judge would have power under an HDC proceeding to require the respondent to give up a source.

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    December 4th, 2013 at 8:35 pm

    […] New Zealand: Is Whale Oil a journalist? […]

  15. ross Says:
    December 6th, 2013 at 10:51 am

    “Ross: I’m not sure what makes you think Vince Siemer is my friend.”

    Sorry, the comment was made in jest. You really need some emoticons!

  16. Steven Says:
    December 6th, 2013 at 12:48 pm

    Sorry, fair enough.

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