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 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.
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