There is a saying in the law profession that difficult cases make bad law. The basis for this is that the facts of a case may tug at the heart strings and determine that one result is the just one but if you approached the case from a principle based approach then the opposite result may be reached.
Dear old Cameron Slater’s latest predicament is an example of this.
He is being sued for defamation which of itself is hardly surprising. The plaintiff, a chap called Matt Blomfield, has taken umbrage at a series of hatchet posts that Slater ran about Blomfield’s business dealings. During the course of the proceedings Blomfield has issued an interrogatory requiring Slater to give the identity of one of his sources for the story. Slater opposed this claiming that he was entitled to protect the identity as a journalist’s source. Judge Blackie disallowed this claim and has required Slater to reply to the interrogatory. Slater has indicated that he will appeal the decision.
Section 68 of the Evidence Act 2006 codifies qualified protection of journalist’s sources. It states:
68 Protection of journalists’ sources
(1) If a journalist has promised an informant not to disclose the informant’s identity, neither the journalist nor his or her employer is compellable in a civil or criminal proceeding to answer any question or produce any document that would disclose the identity of the informant or enable that identity to be discovered.
(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.
(3) The Judge may make the order subject to any terms and conditions that the Judge thinks appropriate.
(4) This section does not affect the power or authority of the House of Representatives.
(5) In this section,—
informant means a person who gives information to a journalist in the normal course of the journalist’s work in the expectation that the information may be published in a news medium
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
public interest in the disclosure of evidence includes, in a criminal proceeding, the defendant’s right to present an effective defence.
The Judge said Slater’s blog was “not a news medium within the definition 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”.
Blackie cited the Law Commission’s report News Media Meets ‘New Media’ which described blog sites as often “highly partisan” and “highly offensive and personally abusive.” While he is correct about Slater’s site the question is what are the implications for blogs in general? Because Blackie’s comments suggests that his reasoning would apply to all blogs.
Of the Judge’s decision Price states the following:
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.
What are the implications for the Standard? Well the concern is that the decision could be interpreted as stating that no blogs have the ability to attempt to protect the identity of sources. This puts the traditional media at a significant advantage over the blogs, and one for which there is no justification in my humble opinion. And the prospect of being required to provide the identifies of sources for a story would have a chilling effect on the ability of blogs to break stories. There is an associated problem in that the definition of journalist requires the collection of the information to be “normal course of that person’s work” and this would appear to exclude the protection being extended to dedicated amateurs.
It may be that for the greater good Cameron Slater must succeed in his appeal. And like Stephen Price that is a sentence that I never thought I would write.