“Difficult cases make bad law” is an old saying I first heard in Law School. The essence is that a case with difficult facts may cause the decision maker to prefer to side with the party who invokes sympathy, rather than the party who may have law and important principles on their side.
I mentioned this saying when I posted previously that I thought Cameron Slater had an arguable case when he complained about a ruling that his website did not qualify as “news media” because no matter how slanted and twisted his site is it does report news, at least of sorts.
Just to make things exquisitely clear I believe that Slater’s treatment of Matt Blomfield has been appalling and I trust that the laws of New Zealand will be enforced without favour and Slater will face the full consequences of what he has done. But adherence to the rule of law means that you comply with the decisions that don’t go the way you think they should.
This is why Greenpeace’s recent proposals are also causing me problems.
Greenpeace have set this really neat website up called Climate Voter Website which allows individuals to sign up to keep track of parties policies on climate change. I have signed up myself as the issue is important. The site aims to “empower climate concerned citizens to use their vote in the September 2014 election to make a difference for the good of present and future generations.”
So far so good. But the Electoral Commission considers that the website constitutes an “election advertisement” and is therefore subject to a number of legal requirements. In the Commission’s view Greenpeace should apply for third party registration if it is going to spend more than $12,300 and there is a cap of $308,000 that it can spend during the campaign. Proceedings are contemplated by Greenpeace seeking a declaration that the website does not breach legal requirements. The matter is obviously of importance.
Is the site an election advertisement?
Section 3A of the Electoral Act 1993 contains this definition:
3A Meaning of election advertisement
(1) In this Act, election advertisement—
(a) means an advertisement in any medium that may reasonably be regarded as encouraging or persuading voters to do either or both of the following:
(i) to vote, or not to vote, for a type of candidate described or indicated by reference to views or positions that are, or are not, held or taken (whether or not the name of the candidate is stated):
(ii) to vote, or not to vote, for a type of party described or indicated by reference to views or positions that are, or are not, held or taken (whether or not the name of the party is stated) …(2) None of the following are election advertisements:
…
(c) the editorial content of …
(iii) a publication on a news media Internet site …
(e) any publication on the Internet, or other electronic medium, of personal political views by an individual who does not make or receive a payment in respect of the publication of those views.
On the face of it the Greenpeace site is trying to persuade voters to vote for parties that will do something about climate change. How utterly rational and desirable is that? But persuading voters to support the types of parties that are protective of the environment would appear to qualify under section 3A(1)(a)(2) of the Act in that there will be support expressed in the website a particular type of party, the environmentally protective and sustainable sort.
Do the exceptions apply? Is the Greenpeace site a news media internet site?
Well possibly. It is a site that contains information and a description of views although the Electoral Act does not contain a definition of what “news medium” is.
The Evidence Act 2006 does however. In section 68 “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”.
But how bizarre is this? The decision in Cameron Slater’s case which depends on the definition of “news medium” will be of important precedence value to Greenpeace. Slater is relying on his site being “news media” so that he can protect what he claims is a Journalist’s source. Greenpeace is hoping that its site is “news media” so that it does not have to register as a third party. If Slater succeeds then Greenpeace’s claim will be stronger.
Slater has a further problem in that he has to fit within the definition of a “journalist”. I would be interested if he is “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”. If he is currently being paid to do his work then some sort of transparency would be good.
Of course this is not the end of the case for Slater. The Court can still waive privilege if it believes this to be in the public interest.
As for Greenpeace although my political instincts prefer they do not have to register I wonder about the precedent effect. Its site does at face value appear to have a different emphasis to Slater’s. One is high quality and wanting to detail political views of each of the parties. The other is a cess pit of innuendo and attacks and smears. It does not feel right that the creator of one should need to be registered and the other is protected but the differences in the emphasis may demand this result.
And to take the argument to its logical extent what if a front organisation set up a comparable website supporting climate denialist parties or parties that believe in chemtrails or that Elvis is still alive and well and living amongst us? Would we want some transparency about who was behind these sites?
Rather than have different rules for different organisations I prefer that all such websites operate under the same rules. They should have the backers formally displayed, which the Greenpeace site does, and have a cap on their expenditure. With the cap at $308,000 I cannot imagine any progressive organisation being impeded in what they want to achieve.
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