Does a ‘news medium’ consist of spreading defamation, lies and rumours?

Written By: - Date published: 2:55 pm, June 22nd, 2014 - 45 comments
Categories: blogs, law - Tags: , , , ,

The Whaleoil blog is in court on Monday to determine if it is a news media under the Evidence Act. There is a full day session in the High Court in Auckland looking at the appeal by Cameron Slater against Judge Blackie’s decision in the District Court that the Whaleoil blog is not a news medium.

At issue is a question of Cameron Slater being able to protect the source that gave him stolen material to copy. This material appears to have been provided solely to allow Cameron Slater write a long series of posts around 2012 at Whaleoil about the owner of that material, Matthew Blomfield.

Those posts were in my opinion clearly defamatory about the individual Matthew Blomfield. Indeed even some of court documents from Cameron’s lawyers appear to in at least part acknowledge that. Matthew Blomfield rightly sued for defamation.

In his discovery motion to support his case, he wanted to know the source that provided his documents and hard disk to the blogsite and Cameron Slater. I suspect that he saw the defamation emanating not only from Cameron Slater’s keyboard, but also from the malevolence of the source of the material that Cameron Slater was using to concoct his personal attacks.

Cameron Slater denied to reveal his source and was subsequently subject to a judgement in the District Court that he had to supply the source because the Whaleoil blog was not a news medium. Cameron applied for and was given leave to appeal that decision in the high court.

Now I am of the view that it is usually dubious to treat blog sites including our own as news mediums and therefore worthy of the protection of journalistic sources provided under the Evidence Act. The reason is simple.

Blog sites, especially in New Zealand, don’t have the time or resources to check sources of information, provide some balance about news, have legal advice, or the editorial controls that prevent the attacks on people that having a widely read pulpit of a blog site. We seldom have the time or the money to do it. Moreover most blog sites also provide widely accessible comment sections that publish comments by individuals providing feedback that are loosely moderated at best.

I’m always acutely aware of these limitations when administering our blog site. I have to be. There is no way that I want to wind up in court as Cameron has done through something being published on our site.

But the law is pretty clear that irresponsibly defaming any person or any entity in our current law by claiming that a opinion, deeply held or not, is fact is not part of what makes up a civil society. As a personal matter, I really don’t want to do that at a personal level because to make that widespread and protected by law would be horrendous for our society.

However this restraint isn’t that constraining. The Lange vs Atkinson decision back in the 1990s showed the balance point between debates that are in the public interest and those that are not. Having opinions on and speculating about politicians and other people in the public sphere It means that myself and the tens of thousands of others who write on this site can express their opinions about politics,

Sure it is quite feasible to run what is effectively a news medium in a blog style format. The online sections of most acknowledged news mediums here do. However they are characterised by the same levels of control that their broadcast and print relatives do as well. Articles and posts are checked by editorial staff. Dubious sourcing is run by lawyers for risk assessment. In news articles and even opinion pieces, attempts are made to provide fairness and balance. In the event of legal action these are all put in front of the court to show that they were done.

To me, this responsible approach to disseminating the stories and opinions of the day is what characterised a news medium.

Back in 2012, the Whaleoil blog appears have done none of these things. Instead of being responsible about what he was writing, Cameron Slater in his freedom from those journalistic restraints and responsibilities. He stated his opinions as facts and seldom moderated the comments that did the same.

You can understand why. At the time he was under-employed and living off an assortment of insurance payments, sickness benefits, and the odd jobs. Moreover he was, as he has acknowledged, also “demanding” payment from companies and individuals when he wrote posts that were unfavourable to their opponents and favourable to them. In short he was selling his services as an public relations attack blogger. His comments on his blog and other online media like twitter and facebook were that he wasn’t a journalist, he was a “partisan blogger”.

I believe him. His claims to being a journalist only came after he was sued for defamation and asked to disclose his source for the material that made up the core of the defamation. They look more like an attempt to keep his funders identity private before they got joined into the suit than any kind of journalist protecting their sources in the public interest.

It will be interesting to see arguments that Blomfield and Slater present to the court tomorrow.

 

Here are a few backgrounders. They have links to many other posts.

45 comments on “Does a ‘news medium’ consist of spreading defamation, lies and rumours? ”

  • Comments are now closed

  1. Tom Jackson 1
    22 June 2014 at 3:33 pm

    I agree with most of this. But..

    Blog sites, especially in New Zealand, don’t have the time or resources to check sources of information, provide some balance about news, have legal advice, or the editorial controls that prevent the attacks on people that having a widely read pulpit of a blog site.

    I’m not sure this prevents them from being journalism in any meaningful sense. Blogs are, among other things, ideally suited to single issues or local issues (like the Christchurch rebuild). I don’t see any problem with them reporting on issues combined with linking to and echoing other sources. Newspapers source many stories from elsewhere.

    If you are a one person show with a phone and a notepad it’s perfectly possible to follow the norms of journalism IMHO. If you could show you were doing that, you ought to be considered a journalist.

    Slater isn’t a journalist because he doesn’t adhere to the common principles of journalistic ethics. He has an economical relationship with the truth, does not minimise harm, does not act independently and displays little in the way of accountability. The Len Brown story was a case of Slater violating all four of these basic principles at once. He is not a reporter, since all normal principles of journalism are for him subservient to the goal of promoting his favoured faction of the National Party.

    • lprent 1.1
      22 June 2014 at 4:03 pm

      Yes that doesn’t stop you from making a story. We do that all of the time.

      But the question is if such a one man band should have special laws to protect themselves and their sources. It is easy enough to start up a blog – essentially free at startup on wordpress.com. Write some story with “sources” and then claim journalistic protections?

      Hardly.

      As far as I am concerned you have to act like a news medium should and as a journalist should to be considered for getting those protections. It isn’t issued carte blanche. It is also something that the courts should decide.

      If it is considered to be carte blanche, then those protections and privileges for news mediums and journalists need to be removed. They provide too much power to defame and get away with it as Cameron Slater is trying to do.

      Incidentally, on this subject. I’d put the “investigations” team from NZ Herald in the same category at present.

      • Tom Jackson 1.1.1
        22 June 2014 at 4:23 pm

        But the question is if such a one man band should have special laws to protect themselves and their sources. It is easy enough to start up a blog – essentially free at startup on wordpress.com. Write some story with “sources” and then claim journalistic protections?

        Well, I wouldn’t want to exclude such people from journalistic protection. Newly employed journalists or newly published freelancers get protected because they piggyback on the reputation of their employer, but that won’t work for bloggers starting out. I also don’t see a problem in an established journalist resigning to start his or her own self-published site (Glenn Greenwald has sort of done this), and it would be very problematic to deny such a person the status of a journalist.

        The best answer for me is that if a blogger has for a reasonable length of time demonstrably functioned according to the norms of journalism, they should be treated as a journalist. As you say, a court should decide, but the bar should not be set too high.

        Slater obviously fails this one.

        Ditto the Herald at the moment.

        • One Anonymous Bloke 1.1.1.1
          22 June 2014 at 4:27 pm

          Can of worms, opened you have.

          Does the High Court need the extra work of keeping tabs on whose ethics have sunk to Slater/Armstrong depths?

        • lprent 1.1.1.2
          22 June 2014 at 4:43 pm

          In this area the law is a bit of an ass at present with this “news medium” thing.

          For instance if you are a journalist writing a book as David Fisher did about DotCom, then you are not working for a news medium (regardless of how news worthy the book is). The crown can compel you to exercise your rights under a the Privacy Laws to gain material for the crown as part of a discovery motion. WTF?

          http://publicaddress.net/hardnews/the-big-chill/

          The way that the law is worded the first part is accurate. A book publisher isn’t a news medium despite the fact that they often act like one, which begs the question about why it was worded that way? The Press Council seems to have been the cause?

          The second part that the state can compel you to exercise your rights under the Privacy Act to gain information for them points to a complete balls up by the legislature.

          • Tom Jackson 1.1.1.2.1
            22 June 2014 at 6:36 pm

            Yep, it needs a rethink and a rewrite.

          • veutoviper 1.1.1.2.2
            23 June 2014 at 9:23 am

            Not wanting to divert the discussion from the main Slater/Blomfield case being heard today by Judge Asher, but for anyone interested, here is Judge Winkelmann’s judgement on the David Fisher/Dotcom book situation via the NBR files.

            http://www.nbr.co.nz/sites/default/files/CIV2013-404-2168%2016-06-2014.pdf

            The judgement covers a range of other matters with the Fisher book decision and reasons covered in paras 56 to 77. This very recent (June 17?) judgement is obviously contraversial, and being discussed widely at present. But it will be interesting to see whether Judge Asher refers to or takes J Winkelmann’s judgement into account when dealing with the Slater case.

            • lprent 1.1.1.2.2.1
              23 June 2014 at 9:26 am

              That is fine. I have wanted to look at the Fisher case. But lack of time is always and issue…

              Feel free to discuss that case as well. It looks at a different aspect of the same legal problem.

  2. mickysavage 2
    22 June 2014 at 3:39 pm

    Best of luck to Matt Blomfield!

  3. JonoN 3
    22 June 2014 at 3:42 pm

    Wish I could be there. Unfortunately, I’ve got to appear at Wairoa District Court, a good six-odd hours drive from the Auckland High Court… Guess I’ll just have to read about it here or in the papers (I’d say I could read about it at Whaleoil, but I’m not entirely certain I can trust Mr Slater to present an accurate version of events…)

    • lprent 3.1
      22 June 2014 at 4:16 pm

      Yeah, I’ve just been reorganising things a bit so I can be there for a chunk of it.

      I rather think that it it could be quite interesting.

      • Tom Jackson 3.1.1
        22 June 2014 at 4:24 pm

        Aren’t there rules against gloaters?

        • lprent 3.1.1.1
          22 June 2014 at 4:44 pm

          Nope. Just people doing things like tweeting

        • JonoN 3.1.1.2
          22 June 2014 at 5:54 pm

          Personally, I’d love to be there as it’s a rather interesting legal issue that lprent and I have rather diverging opinions on. ‘twould be fascinating to be there to hear the arguments and the questions that the High Court may fling at the parties! It will be interesting to hear your take on how it went, lprent…

  4. Naturesong 4
    22 June 2014 at 5:29 pm

    Ha!

    When I first saw the heading;

    “Does a ‘news medium’ consist of spreading defamation, lies and rumours?”

    I thought it was going to be a blog about the Heralds recent behaviour. lol

  5. kenny 5
    22 June 2014 at 5:36 pm

    Isn’t this what the NZ Herald and Armstrong are doing right now?

    If WailOil is found not to be a journalistic site then the same ruling should apply to the NZ Herald.

  6. Jackal 6
    22 June 2014 at 5:47 pm

    There is no way that I want to wind up in court as Cameron has done through something being published on our site.

    Doubtful that will happen LPRENT. After reading the Standard for a number of years I think I can safely say that you’re not the type of person who would be dealing with stolen property in order to mount a smear campaign that has clearly defamed somebody.

    I expect Slaters defense to collapse miserably just like it did when he ignored an official suppression order and revealed the identities of sexual abuse victims. In fact the judge’s ruling in this case is likely to humiliate the deluded Slater, and rightly so. The sooner that old sewer is closed down the better.

    • miked999 6.1
      23 June 2014 at 3:08 pm

      “I expect Slaters defense to collapse miserably just like it did when he ignored an official suppression order and revealed the identities of sexual abuse victims.”

      That’s incorrect. Slater was convicted of breaching name suppression by revealing the names of the abusers – not the victims. There’s a difference.

      • felix 6.1.1
        23 June 2014 at 7:53 pm

        Not so, mike.

        At least one of the alleged* offenders was accused of abusing the child of his partner. Identifying the accused inherently identifies the partner and the child.

        That’s often the very reason for suppression, to protect victims. It’s not fucking rocket surgery mike, although Slater never seemed to get his fat head around it.

        *and let’s remember none of them had been found guilty of anything at the time Slater abused their rights

        • miked999 6.1.1.1
          24 June 2014 at 8:20 am

          I can’t agree Felix; the statement was made that Slater “revealed the identities of abuse victims” when he did no such thing. To assume that naming somebody will automatically identify their partner and the partner’s child – when all 3 are likely to have different surnames (and the child will definitely have a different surname to the alleged perpetrator) is drawing a very long bow indeed.

          • Colonial Viper 6.1.1.1.1
            24 June 2014 at 8:29 am

            when all 3 are likely to have different surnames (and the child will definitely have a different surname to the alleged perpetrator) is drawing a very long bow indeed.

            That’s right, it’s probably only the teachers, school friends, parents of school friends, family friends, relatives, work mates, neighbours, etc. who will figure it out. Hardly anyone at all that might impact on the victims daily lives.

            What were you, born insensitive and inhumane? Or is Slater the one person in life you’ve somehow learnt to have empathy for?

            • miked999 6.1.1.1.1.1
              24 June 2014 at 8:33 am

              You think they don’t already know? Do you think they take all the people that were at the courthouse that day and heard and saw the accused appear, answering to his own name, and lock them up in a tower so they can’t breathe a word of it to anyone?

              What were you, born stupid?

              • Colonial Viper …
                24 June 2014 at 8:57 am

                Excuse me miked999 but aren’t you interested in the rights of the victims? Or is there a special reason that you want them humiliated again, because you seem fine with it. Yes, their close friends and family MAY know, but how is that your call to make? Please explain.

                Also why is it Slater that you have special empathy for, and not these victims of crime.

                • miked999 …
                  24 June 2014 at 9:03 am

                  Aren’t there more than enough things that Slater actually does that annoy you, without having to make shit up? If you start saying he did things that he didn’t do, isn’t that spreading defamation, lies and rumours?

                  Because I thought that was the whole point of this discussion – it’s even in the title.

                  Discuss.

                  • Colonial Viper …
                    24 June 2014 at 9:08 am

                    We’re discussing the likely secondary impacts of Slater’s actions on the victims. He doesn’t live and operate in a vacuum – he lives and operates in a broader society.

                    Why you want to defend his rights so voraciously yet let these victims and everyone who knows them be reminded or informed of what happened, is a mystery.

                    • miked999 …
                      24 June 2014 at 9:13 am

                      Pretty poor attempt to deflect the argument and steer it in a completely different direction – not biting, you’ll have to do much better.

                      If making shit up makes you feel better, hey go hard my friend. Then defend it to the death, and whatever happens don’t let the facts interfere with your narrative.

                      Over and out.

                    • Colonial Viper …
                      24 June 2014 at 9:17 am

                      Slater appreciates your defence of his rights, too bad you’re not nearly as concerned about the rights of victims to remain unidentified in the “news media”.

    • lprent 6.2
      23 June 2014 at 8:23 pm

      I expect Slaters defense to collapse miserably just like it did when he ignored an official suppression order and revealed the identities of sexual abuse victims. In fact the judge’s ruling in this case is likely to humiliate the deluded Slater, and rightly so. The sooner that old sewer is closed down the better.

      I’m not going to try to guess Justice Asher’s decisions are going to be. This is a whole new area for the Evidence Act s68 with blogs being viewed as “news mediums”. I’ll wait for the decision which I presume was reserved (I had to head away before the replies to get my weekly back torture).

      But my impressions about performance/weight were…

      Cameron Slater did ok as a performer. With just enough obvious inflation of himself that I suspect will ultimately detract from his case. He really cannot seem to stop his chronic boasting. It doesn’t take much of that to be torn by later submissions for his evidence and legal points to get discounted.

      Matthew Karam (?) on behalf of Blomfield seemed a bit awkward with the material, but was making some pretty key legal points.

      However I suspect that Miles as the amicus was by far the most interesting to the Justice Asher in terms of weight.

      The “news medium” part really wasn’t at issue by either party because of the “observations of news” part of s68. Which is a pain because that to me really was the interesting bit. Conversely that also means that breaking news is also going to be irrelevant in future as a test. ie – my commentary on news stories will carry the same weight. So will … phil … .

      Whatever way this goes, I suspect we will wind up with a hell of an interesting legal decision out of it simply because this is the first case under the 2006 Act for blogs. One that will travel around the commonwealth because of the way that part of our act has been picked up by other jurisdictions.

  7. chris73 7
    22 June 2014 at 5:55 pm

    🙂

  8. Ron 8
    22 June 2014 at 8:42 pm

    Surely if a respected journalist is denied journalistic privilege when publishing a book then how the hell can a blog claim journalistic privilege

  9. Benoni 9
    22 June 2014 at 9:04 pm

    I get 90% of my political news from the Whale. I love that Whale oil gives me an interesting preview of the news that is going to come out in the main stream media. The only reason I know of “the Standard” and the daily blog is by reading of them on whale oil. Such an interesting election…an evil self -styled political visionary working at buying immunity from extradition for billion dollar copyright theft, plummeting polls for the left who are bereft any popular appeal, leftist media forlornly trying to convince their tiny readership they are going to win in the election, an unprecedentedly popular likely 3rd term Prime minister. Better viewing than an All Blacks – England rugby test series .

    • McFlock 9.1
      22 June 2014 at 9:27 pm

      the small words really help you out, too. And the pretty pictures mean you don’t have to manage the difficult task of turning to page three.

    • freedom 9.2
      22 June 2014 at 10:01 pm

      Your parents must be so proud Benoni. Do they share the same paddock?

      and millsy, yes, the above could also be called judgemental 😉

    • weka 9.3
      23 June 2014 at 9:43 pm

      “I get 90% of my political news from the Whale.”

      That’s the saddest thing I’ve read all week, and that’s saying something.

  10. dimebag russell 10
    22 June 2014 at 9:41 pm

    gotta watch out for the courts in New Zealand. They all want their little place in history for making law and being the next lord cook or learned hand.

  11. marty 11
    23 June 2014 at 8:30 am

    I’d love nothing more that seeing that creep Slater take one in the face, but we can’t throw out the baby with the bath water here.

    I am puzzled at The Standards’ stance when it comes to Blomfield. In spite of the fact that he may be a useful stick to beat Slater with, he himself is far from an upstanding citizen.

    The Standard providing him with a non critical platform and public support to score one against Slater is going to backfire.

    A dispassionate look says Slater produces news. A dispassionate look says Blomfield’s affairs are of public interest. A dispassionate look say that by publishing Blomfield’s own correspondence any claims of defamation are ridiculous. They are the man’s own written word.

    Not everything that John Campbell does is news. Some of it is plain advocacy. Not all that the Herald does is news. Some of it is plain advocacy. Just because of cute cat videos and the other trash that Oil Slick puts out doesn’t negate the fact that sometimes he does news.

    That Whaleoil is media and Slate a journalist, at times, is really not an issue.

    What concerns me more is that the author and some of the other people here are so blinded by their hatred for Slater that they can’t see that Blomfield is not someone they would normally cuddle up to. He’s clearly committed perjury.

    And I recall Blomfield trying to bring a headhunter slur against slater, using this blog as a vehicle. It wasn’t published anywhere else. Surprise surprise, the head hunters paid him a visit a little while ago to interview him with the wrong end of a gun.

    Do you really think upstanding business people get “overdue letters” from gangs?

    Do you truly think this has been the right horse to back, in spite of the enemy of my enemy being my best friend rule?

    This will come to tears.

    • lprent 11.1
      23 June 2014 at 9:07 am

      I am puzzled at The Standards’ stance when it comes to Blomfield. In spite of the fact that he may be a useful stick to beat Slater with, he himself is far from an upstanding citizen.

      I have stance. If you look back you’ll find that Mickey had a different stance, and others have their own stances.

      The Standard is a program and doesn’t have a opinion. We don’t exert editorial controls about views, just behaviour. We simply provide space for some people to author posts and for others to comment on them. To the extent that we provide editorial control it is about not getting sued or pulled in front of a court, and these days being a 3rd party promoter under the Electoral Act and the Broadcasting Act.

      The key depends on what is a news medium. Your view appears to be that it is someone who produces news. But what is “news”.

      The problem is that anyone can produce news by simply making crap up out of the ether or spinning a few facts into a delusional fantasy. Whaleoil has done that for 7 years. The actual amount of hard news that Whaleoil has produced is minimal. Most of the time the “news” that Whaleoil generates is in fact developed by other “news mediums” into news. That makes Whaleoil a source rather than a “news medium”.

      I view a “news medium” as being a body that responsibly checks the information before they publish, and makes some attempt to provide balance.

      Whaleoil as a blog usually doesn’t appear to try to do that any more than we could. Certainly back in 2012, there was nothing that could be regarded as responsibly produced news. His attempts to cover himself with the protections provided for journalists working for “news medium”s appear to have more to do with trying to prevent the disclosure of the murky details about how he received stolen materials than anything else. That probably has more to do with avoiding criminal charges than anything noble.

      Incidentally, if Whaleoil is regarded as being a news medium, then I’ll start campaigning for the protections for journalists to be removed. Clearly if they are given to editorially unrestrained irresponsible fools like Cameron Slater who defame people based on unknown and protected sources, then they are too dangerous to give to “journalists” like him. They need no more protection than Matthew Blomfield as a citizen does.

      • miked999 11.1.1
        24 June 2014 at 8:28 am

        If Slater’s blog has produced some news, then by definition isn’t it a news medium? The Herald and other newspapers, universally regarded as news media and afforded the protection of journalists with regard to revealing their sources, do NOT publish news and news only.

        Apart from all the other stuff – advertising, gossip, puzzles, competitions and various other distractions – the Herald and other newspapers publish opinion by the bucketload. Much of it is without balance, and I was told by a long-time political commentator that if both major parties are convinced their biased towards the other, then he’s done his job properly. That’s hardly news, in either respect.

  12. Ad 12
    23 June 2014 at 10:47 am

    Lyn I think it’s worth doing a follow up post on the comparison between Whaleoil and NZHerald.

    The blowback from the NZHerald Labour funding story is growing. If the NZHerald can continue to sink so low, and Whaleoil go a fair way into breaking stories, then they are in strong intersection already. Whaleoil is on its way to defeating the NZHerald in its societal impact.

    The Court will have to go straight into the privacy limits question, and uniqueness questions. With the NZHerald about to go totally paywall, blogs will be primary news sources for the public irrespective of their accuracy and ethics. So this era is coming to a close at least in the Auckland region.

    We are looking at the last vestiges of information accuracy being cleared away and replaced by merely free floating clumps of memes aggregating and reaggregating at will.

    The Standard will feel the weight of this most strongly as one of the only popular progressive information sources. This case is a big test for us all.

    • Colonial Viper 12.1
      23 June 2014 at 10:22 pm

      The blowback from the NZHerald Labour funding story is growing. If the NZHerald can continue to sink so low, and Whaleoil go a fair way into breaking stories, then they are in strong intersection already. Whaleoil is on its way to defeating the NZHerald in its societal impact.

      Yep. The only thing missing from Liu’s signed statement is an assertion that he’s slept with Len Brown in Sky City.

      Wait – could that be why the Herald refuses to release the document!!!?

  13. Sable 13
    23 June 2014 at 11:43 am

    Been a while since I visited this site. Good to see its still up and running. Much as I personally reject everything Slater ‘s blog stands for I do believe his blog has a right to be treated as a news medium.

    Why? Because to do otherwise hands too much power to already oligopolistic mainstream media outlets. In effect its saying if you don’t have money and resources you don’t have a right to challenge the mainstream media and to do so with the same protections they enjoy. This offers them considerable advantage and may silence valid dissenting voices.

    Given too the often contentious presentation of facts and opinions posted in the MSM (indeed you yourselves challenge the MSM often) the argument about due diligence is not all that convincing. Just look at the low rating people give professional journalists, alongside politicians and real estate agents.

    You do and should shoulder the risk of defamation in maintaining an blog as any media outlet does but that should be a risk that is accepted if you take on this role irrespective of the size of your media outlet be it a one man band or something more.

    As I said I have no time for Whale Oil and I’m not an apologist but I feel it is appropriate for this decision to be appealed in court.

    • dimebag russell 13.1
      23 June 2014 at 8:32 pm

      everything you say might be true but the MSM do not tell blatant lies, support rotten eggs, and persecute people who have done nothing but disagree with that big ugly slug.
      That does not give wailboil the right to escape judgement for his slimy rag.

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