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Is Whale Oil a journalist (2)?

By Steven | August 22, 2014

Some time ago, I wrote about Cameron Slater’s claim to be a journalist, which he is invoking for the purposes of protecting his confidential sources. The District Court ordered him to turn over his sources in a defamation case brought against him by Matt Blomfield. The court said Slater didn’t qualify for source protection under the Evidence Act. I argued that the judge’s reasoning was very poor, and that there were good arguments that he should be treated a journalist. Nevertheless, I noted that the court still had a discretion to order  him to turn over his source.

Slater appealed to the High Court. Leading media lawyer Julian Miles QC was appointed as amicus to assist the court. The thrust of Miles’ submissions was that (1) Slater is probably a journalist, but (2) in the exercise of its discretion, the court should probably still order him to turn over his source, because his coverage of the Blomfield issue wasn’t in the public interest and the disclosure order would be unlikely to chill any signficiant stories.

Does Dirty Politics change that? Well, it does contain evidence that might be relevant to the court’s decision, I think.

Ironically, one part of that evidence suggests that it’s more likely that Slater should be considered a journalist. A journalist is defined as:

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 (s68(5) of the Evidence Act).

One issue identified by Miles is whether Slater’s blogging counts as “work” given that Slater has described it as a “hobby”. Blomfield argued that it was restricted to people who made their living from it.

But Dirty Politics shows that Slater was being paid for at least some of his blogging. It seems he was deriving a significant income from it. That makes it easier to class him as a journalist under the Evidence Act definition.

It also may have a bearing on another issue identified by Miles. “News medium” is defined as:

a medium for the dissemination to the public or a section of the public of news and observations on news (s68(5) of the Evidence Act).

To demonstrate his pedigree as a purveyor of news, Slater lists nine stories (or series of stories) he published from the relevant period. This was to relevant to two issues. One was whether he was receiving information from sources in the “normal course” of his work. The stories do seem to demonstrate that – that is, that he was frequently publishing stories, so that it could be said they were part of the “normal course of his work”.

The second issue is whether he was publishing in a news medium – that is, whether he was disseminating news or observations on news. Miles looked at the stories and said “although it seems Whale Oil publishes much that it not news, the articles … it is submitted, qualify as news or observations on news.”

Four of the nine stories Slater has put forward to demonstrate his journalistic chops are mentioned in Dirty Politics. I think the information in the book sheds some new light on those stories that might be of interest to the judge. One is about the Rodney selection battle, and the exposure of the allegedly racist past of the electorate chair. Hager’s book shows that this series of posts was orchestrated by Simon Lusk, who was being paid by one of the candidates for selection. The stories were run to enhance his selection chances. There is evidence suggesting that Slater was being paid for them.

Another is about the Ports of Auckland stories. Slater’s attacks on the union involved information that seemed to have come from the POA. He denied working with them, but boasted of his long chats with the POA chair. The POA has denied collaborating with Slater, and paying him, but Dirty Politics quotes one of its PR agents saying Slater was a “great hired gun”.

Another Slater story is his Labour Party website one. Dirty Politics contains evidence that this story was prepared in collaboration with Jason Ede from the PM’s office.

The fourth is the SIS/Phil Goff story. This involved a surprisingly quick declassification and release of official information to Slater in preference to a mainstream media outlet that was asking for similar information. Slater seems to have had knowledge that it was being expedited. So there’s evidence of collaboration with the PM’s office or the SIS over that one too.

Does that mean that none of this was news? You could still argue that it was, if you regard news as putting out information that people didn’t know before. But I think it raises another issue that isn’t discussed in Miles’ submissions. Doesn’t there have to be a degree of independence for a report to be described as news? An essential fidelity to facts rather than source? A motivation to accurately report information? The Advertising Standards Authority, for example, says that editorial content should include “a value check or independent critical assessment of the information”. Otherwise it’s advertorial.

There must surely be more to the news than simply putting out information that wasn’t there before. Otherwise, this concept of “news” could include, for example, press releases, or Party websites, or even pure advertisements.

In that context, the revelations in Dirty Politics that Slater was willing to post screeds under his byline that he hadn’t written, and that he knew was written by PR agents with their own agendas, and that he may have been being paid to post, are surely relevant to the question of whether what he was publishing was news or commentary on news.

They may well also be relevant to the second question: whether, even if he is a journalist, the court should exercise its discretion to order him to reveal his source. In the exercise of that discretion, the court must weigh the importance of the source’s identity for the defamation case against the likely adverse effect of ordering disclosure on (a) the source and (b) “the ability of the news media to access sources of facts”, thereby serving “the public interest in the communication of facts and opinion to the public.”

I’m inclined to think the information about Slater’s methods detailed in Dirty Politics is relevant to the issue of whether the public interest in the flow of information will really be harmed by ordering Slater to reveal his source to Blomfield. If people like Slater and his sources are chilled from delivering information in his particular fashion, for my part I doubt the public interest will be much harmed.

This case has already been argued, and we are awaiting the High Court’s decision. But I wonder whether anyone will think it appropriate to apply to put the new information before the judge?

PS I see that Slater is facing another case in which his status as a journalist is in issue. The Director of Human Rights Proceedings is bringing an action (note to Herald: it’s not really a “prosecution”) against Slater for using private information in his Blomfield stories, in breach of the Privacy Act. Slater is arguing that Whale Oil is a news medium, and therefore exempt from the Privacy Act. The definition (which I set out here) is slightly different, but similar in many respects. Some of these same issues might well arise.

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