I think Judge Blackie got it right.

Written By: lprent - Date published: 7:56 am, December 3rd, 2013 - 77 comments
Categories: blogs, internet, law - Tags: matthew blomfield

Cameron Slater simply isn’t a journalists arsewipe. For him to claim the legal privileges, protections and authority that the journalistic profession holds within our political and economic community makes a travesty of the whole concept of a free and responsible press.

Now I’m aware that many of the marching morons that make up the more extreme sociopathic tendencies here and overseas tend to regard “free” as meaning they can do anything that they childishly want and that the responsibility as a outmoded concept. But they’re wrong.

A “free press” is one that is unencumbered by oppression or obligation to their sponsors about what or how to report. A “responsible press” doesn’t use their implied authority against individuals in a vendetta. This is literally the argument going on in Britain at present. It is a common pattern with unconstrained and irresponsible organisations who taint all of their better behaved brethren with the stench of excess.

It has been clear for a number of years that the Whaleoil site “demands” money from interested parties for whom it is writing advertorials for. The PaePae provides a good explanation of the background to the exposure of this in “As playful as he is psychotic“, including the links to Cameron admitting this in November 2012 on Russell Brown’s Media3 show.

Apparently provided Cameron thinks that he believes in the cause, he can’t see anything wrong with writing what he thinks that potential clients want to hear and then demanding money from them to continue to do so. Since the advertorials paid or otherwise aren’t marked as such, there is a certain stench of ambiguity about all of what Cameron writes. Of course you can understand why in mid-2012 when looking at his site advertising income of $251 for July 2012 .

That is a bit of a problem because you really can’t be sure where or why Cameron Slater or (these days) his various minions start writing stuff on his site expressing “their” opinions and “demanding” money for continuing to do it. What you can do is map it and the people involved.

Back in July 2011, Whaleoil had the first of a wee series of posts on the perfidy of Hell Pizza not giving money to a charity. Coincidentally it appears that a few weeks earlier a Hell Pizza director was being raided by the Serious Fraud Office and blaming it on Matthew Blomfield. Since Warren Powell was at the centre of both, it hardly seems a leap that he’d have explained his financial woes to the blogger attacking him?

Jump to May the following year and it appears that a hard drive with Matthew Blomfield’s emails has in a mysterious and convoluted fashion made its way to Cameron Slater. He according to the Wayback Machine (the posts have been removed from the site) and the legal docs launches a series of attack posts on Matthew Blomfield based on Cameron Slaters unique level of knowledge about the events leading to and from Blomfield’s bankruptcy. Purportedly based on the contents of that mysteriously acquired hard drive. This eventually leads to the defamation suit and eventually to a dispute about information of the source of the drive and emails.

Ok, so lets look at some of the documents floating around just on Judge Blackie’s decision in September. I’d point out that as far as I’m aware these documents are in the public domain at present and not subject to any suppression.

Submissions for Interogatories and Discovery (Matthew Blomfield)

Submissions Jordan Williams for Cameron Slater

DECISION OF JUDGE C S BLACKIE 26 SEPTEMBER 2013

Matthew Blomfield’s submission shows that he really does need a lawyer. However his suspicions about how the disk drive came into the possession of Cameron Slater are pretty obvious.

13. The most recent Statement of Defence relies almost solely relies on
information provided by Mr Warren Powell [referred to more than 10 times
in the SOD]. The defendant will need to call Mr Powell to establish Truth, or
the True Facts which support the Honest Opinions pleaded. Mr Powell was
my former “employer” (I was a contractor) for 8 years, and therefore must
be the “former employer” who provided the stolen hard drive to the
Defendant.

Jordan William’s submission essentially relies on almost entirely on the protection of a journalist’s source in section 68(1) of the Evidence Act (see MickeySavages’s post). He also raises the 8.46 of the High Court Rules “Honest Opinion” but without stating where the public interest was served or where privilege applies which made it kind of pointless.

Now if you read the PaePae post and as I remember it, it is quite clear that Whaleoil at around the time of the alleged defamation was definitely not describing himself as a journalist. Peter Aranyi describes him as “journalist-denier”. Now I haven’t been able to track down overnight a definite reference for that in May/June 2012, but I’m sure that one of the media watchers will be able to. So I’m kind of puzzled that the Evidence Act 68(1) was even in consideration as it is all about protecting journalist‘s sources of information.

However if we assume that Cameron was an inadvertent journalist despite his stated intent, then the criteria in 68(5) is…

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

Now in July 2012, we know that the advertising revenue from the Cameron’s site was $251 which is barely enough to keep a server running. May and June in the middle of winter also aren’t exactly the best times for website advertising revenue.

So I’d be asking who he was “working” for. There is a reason that work was inserted into the act and made specific to the news medium. It was to prevent exactly the kind of ambiguity that this case presents to me. Given the history of this sorry saga about this blog, a “source” to “demand” payment to fund a hellish advertorial campaign comes to mind. If my speculation is correct then effectively Cameron wasn’t working for the blog, he was working for someone else and using the blog.

Now I can sympathize with Russell Brown with his call The judge is not helping, because as he points out he is one of the relatively untainted. We are much the same we have had two defamation threats this year. Both disappeared when I explained how little they knew about defamation law. However I have little sympathy with the cause he is dithering on supporting.

The judge quoted the questions about blogs from the Law Commission report in his decision. He was right. They are pretty chaotic some of the time. But do they need or should they get journalistic protection. Hell no….

However outside of my opinion, I suspect that what he should have also looked at is how people can “work” for a blog as a journalist when there is insufficient revenue to support both them and the server. It always leads to a suspicion that the actual revenue is unseen and corrupting to journalism. In this case I suspect that is something that I suspect can only be traced by examining the source of the hard disk. I rather expect that when Whaleoil finally has to cough up his source, it is likely to also cough up his employer.

I’ll leave my last words on the final statements in Russell Brown’s post.

Perhaps Judith Collins should have looked more favourably at the Law Commission’s regulatory proposals (Slater has said he would have made himself subject to the new regulator, as would I) and not simply shelved them, because this really has become a mess.

Anyway, Slater is appealing the decision and I don’t need to defend his work in this instance to hope he succeeds.

But of course I could be a deeply cynical blogger…. But I was deeply sceptical about the proposals as were several of our authors for instance Michael Valley. Mostly I viewed them as being a license for someone to make money off blogs without providing anything more useful than a ignorant view over how blogs run and acting as a ridiculous figleaf that would be as ineffective as most seals of quality.

The existing legal structures are more than sufficient for citizen bloggers. There is exactly one problem with them. They are simply too slow.

And I hope Cameron fails because I suspect that getting a victory for blogging that way will simply destroy it for all for most of those who actually contribute to the blogs – the authors and commenters.

This post will be fully moderated because I really don’t have time to waste on the idiotic assertion crap I had to moderate yesterday. It was half of the reason I dug into details overnight.

Updated: Added a second later link to PaePae where some documentation is displayed where Cameron Slater denies (strongly) being a journalist.

77 comments on “I think Judge Blackie got it right. ”

Comments are now closed

mickysavage 1

3 December 2013 at 8:06 am

Good to see debate amongst authors being live and well 🙂

My post was a more restricted reading of the Evidence Act provisions and a worry that blogs may not be considered to be media by the Courts.

I agree also that Slater would struggle to meet the definition of a Journalist although if he did disclose what he was earning then his chances may paradoxically increase as long as one puts aside considerations of the quality of the “journalism”.

The effect of the ruling on Keith Ng was in my opinion the most concerning aspect of the ruling because it is possible he could not rely on the journalist protection in the Evidence Act if Judge Blackie’s ruling was applied literally.
- Tracey 1.1
  
  3 December 2013 at 8:17 am
  
  Kind of makes a lie of the notion that anyone who disagrees with an author here gets banned. 😉
  
  It does seem to be that being media under the Evidence Act cannot be seperated from the journalist aspect?
  - lprent 1.1.1
    
    3 December 2013 at 8:28 am
    
    We disagree a lot. In this case Mickey was looking at it from a legal viewpoint for other bloggers. I was having a close look at this particular case.
    
    And when I worked through it a journalist was defined as working for a news medium.
- lprent 1.2
  
  3 December 2013 at 8:18 am
  
  Yes, but trying to shoehorn the “journalist” label and law over something that is completely different really isn’t going to work that well.
  
  The truth is that most bloggers are going to do blogging in addition to whatever else they do. They also aren’t going to get paid much for it in teeny NZ (which is why Whale’s audience appears to me to be coming from offshore – the ads on his site from canada were interesting this morning). And we’re not likely to be do this for decades on end which is when you have to have a lot of crusted on informant trust. And we’re all frigging different.
  
  We’re not like journalists.
  
  I suspect that the investigators will need to apply to the courts on the basis of what they were actually doing at the time rather than just the blanket “journalist”. When I looked through the sickening crap that Cameron was concocting back in mid-year last year, I’d ask if Keith Ng would want to be associated even indirectly with that?
Te Reo Putake 2

3 December 2013 at 8:11 am

For mine, Slater is a propagandist and a commentator. He is not a journalist and the one time he tried to live up to the name, he killed a newspaper. The News of the World debacle is also an example of what happens when standards are allowed to slip to the gutter levels Slater is happy wallowing in.

However, the msm are partially responsible for the blurring of the lines; relying on ‘citizen journalists’ to fill pages means the professional bar is set lower than in the past. But, with occasional exceptions, the Fairfax and APN titles still have respect for the ethics and responsibilities of the trade.

Blogging can be journalism, but it isn’t journalism by default.
- Tracey 2.1
  
  3 December 2013 at 8:22 am
  
  and even then he was editor, not a journalist
  - felix 2.1.1
    
    3 December 2013 at 9:01 am
    
    Editor, journalist, reporter, receptionist, horoscope writer, tea boy, toilet cleaner.
    - Te Reo Putake 2.1.1.1
      
      3 December 2013 at 9:38 am
      
      So, basically, a chilled out entertainer?
Tracey 3

3 December 2013 at 8:14 am

Thanks for this

I found this from partner at Glaister Ennor online

” Proving Defamation

A defamatory statement can be in either written or verbal form. To be successful, the plaintiff must prove they have been defamed by proving the following three elements:

a defamatory statement has been made,
the statement was about the plaintiff, and
the statement has been published by the defendant.

Publication is a crucial aspect of these tests. It must be proven that the defamatory statement was published to at least one person other than the plaintiff. If the statement was published to the plaintiff alone then the test for publication will fail. Publication of defamatory statements includes the making of verbal statements.

Defending Defamation

The four defences in a defamation case are:

Honest opinion – the defendant must provide the factual basis on which their opinion is based. This defence will not succeed if the defendant simply got the information wrong,
Truth – a complete defence is provided if the defendant can satisfy the court that the allegedly defamatory statement was true, or not materially different from the truth,
Privilege – privilege provides immunity to certain groups of society for statements or reports they made. “Absolute privilege” will serve as a complete defence; an example is politicians who make defamatory statements in parliament but are protected by parliamentary privilege. “Qualified privilege” however can be defeated if the plaintiff is able to show that the defamatory statement was motivated by malice. Qualified privilege usually attaches to the requirement for fair and accurate reporting by, for example, the media or someone with a social, moral or legal duty or interest to report something,
Consent – a complete defence is available if it can be established that the plaintiff consented to the publication of the defamatory material.

Defamation and the Internet

Given the prevalence of the internet in our daily lives, caution must be taken to ensure that statements made online are not defamatory. The recent English case of Chris Cairns against Lalit Modi was the first of its kind in England where a ‘tweet’ made on the social networking site Twitter was held to be defamatory. The resulting award in damages was equal to approximately £3,750 per word for a 24 word publication. Although this case was decided in England, it provides a valuable lesson in terms of publications on social networking sites. (At the time of writing, it was reported that Mr Modi would be appealing the decision).

For more information contact Paul McKendrick ” http://www.glaister.co.nz/defamation_be_careful_what_you_say
phillip ure 4

3 December 2013 at 8:22 am

i don’t think this issue is about the merits or not of the scrawlings of slater…

..(or who pays him..)

..it is about the courts defining..(and thus controlling) what is..or isn’t..’media’…

..slater just happens to be the current-actor/bit-player in this drama..

..i think that is ‘the point’ of this whole issue..

..and of course slater is a ‘citizen-journalist’..and of course his blog is ‘media’..

..as is the standard..as is whoar…

..this is not a left vs. right issue..

..it is a govt control over media issue..

..phillip ure..
- lprent 4.1
  
  3 December 2013 at 8:58 am
  
  Any legislation is likely to be some time away. In the meantime the courts will be ruling on it.
  
  I’d be pretty unhappy if the first case to go through is one where it wasn’t a blogger working for their blog expressing themself, but rather a blogger working for payment for a spinner expressing someone elses will.
  
  Don’t know about you but I only express my opinions when I post.
  
  When I moderate I on the otherhand I mostly express the policy
- Watching 4.2
  
  3 December 2013 at 9:31 am
  
  phillip ure that is your best post on TS that I have read.
  
  Its all about what happen next. There is accumulative effect of a control here, a bit more tomorrow.
  
  Anyhow Iprent or mickysavage can you confirm my understanding that the issue facing Slater is that courts request him to confirm who is source is not what he wrote – although this will be the next part in the defamation case.
  - lprent 4.2.1
    
    3 December 2013 at 12:41 pm
    
    Yes. That is headed to the high court of an appeal (at least according to Cameron Slater). That usually happens within a reasonably short timeframe – a couple of months usually.
    
    According the notes in the District Judge’s ruling there is little dissent about what Cameron actually wrote. The reason that the source of the hard drive is being sought is to identify a source of malice , which I suspect will ooze out if and when Cameron is forced to divulge it. If that happens then it would not surprise me to find the case expanded.
    
    From one comment in the judges notes it appears that the plaintiff was less than happy with some of the response in discovery. So I’d expect some other court time over that.
    
    It will take some time.
    - grumpy 4.2.1.1
      
      3 December 2013 at 3:48 pm
      
      I understand the plaintif is an undischarged bankrupt? If so, how can he afford a lawyer for a civil action?
      - lprent 4.2.1.1.1
        
        3 December 2013 at 5:28 pm
        
        By representing himself… (Obvious)
        
        Incidentally according to one news report I saw, Cameron Slater is meant to be doing the same.
        
        Now that will be interesting. I was somewhat scathing of Matthew Blomfield’s legal work. Ummm….
- Tracey 4.3
  
  3 December 2013 at 1:15 pm
  
  you understand the judiciary is not the government right?
  - phillip ure 4.3.1
    
    3 December 2013 at 3:59 pm
    
    tracey..are you seriously trying to suggest this issue is only judicial in nature..?
    
    ..that it is not deeply political..?
    
    ..and when i refer to gummint-control..
    
    ..i am looking at both national and labour..
    
    ..phillip ure..
Tracey 5

3 December 2013 at 8:25 am

This is the journalist code of ethics for those journalist in the EPMU

”

41. JOURNALIST CODE OF ETHICS

Respect for truth and the public’s right to information are overriding principles for all journalists. In pursuance of these principles, journalists commit themselves to ethical and professional standards. All members of the Union engaged in gathering, transmitting, disseminating and commenting on news and information shall observe the following Code of Ethics in their professional activities:

(a) They shall report and interpret the news with scrupulous honesty by striving to disclose all essential facts and by not suppressing relevant, available facts or distorting by wrong or improper emphasis.

(b) They shall not place unnecessary emphasis on gender, race, sexual preference, religious belief, marital status or physical or mental disability.

(c) In all circumstances they shall respect all confidences received in the course of their occupation.

(d) They shall not allow personal interests to influence them in their professional duties.

(e) They shall not allow their professional duties to be influenced by any consideration, gift or advantage offered and, where appropriate, shall disclose any such offer.

(f) They shall not allow advertising or commercial considerations to influence them in their professional duties.

(g) They shall use fair and honest means to obtain news, pictures, films, tapes and documents.

(h) They shall identify themselves and their employers before obtaining any interview for publication or broadcast.

(i) They shall respect private grief and personal privacy and shall have the right to resist compulsion to intrude on them.

(j) They shall do their utmost to correct any published or broadcast information found to be harmfully inaccurate.

A breach of this Code shall be a breach of the Union’s Rules and thus may give rise to disciplinary procedures under the Rules. If a member is dismissed from employment or otherwise disadvantaged by an employer, and a breach of this Code is claimed by the employer as justification for the dismissal or disadvantage, then the Union, following proper and adequate inquiry, and if it is satisfied to a reasonable degree that the employer’s actions are justified, may decline to pursue a personal grievance on behalf of the member.
“
- Te Reo Putake 5.1
  
  3 December 2013 at 9:41 am
  
  (a) to (j) kinda rules Slater out, but the rest is fine. Oh, wait, there is no rest.
  - Tracey 5.1.1
    
    3 December 2013 at 1:16 pm
    
    😉
    
    No wonder he hates the EPMU aye?
Tracey 6

3 December 2013 at 8:26 am

Fairfax code

CODE OF ETHICS

Fairfax editors and editorial staff will strive to be:

accurate
fair
independent

In pursuit of these goals, they will:

Present news and comment honestly, bearing in mind the privacy and sensibilities of individuals as well as the public interest.
Correct mistakes by prompt correction and clear explanation and, where necessary, apology.
Ensure journalists and photographers respect the law, identify themselves and their purpose clearly and not misrepresent themselves unless there is a case of compelling public interest and the information cannot be obtained in any other way.
Approach cases involving personal grief or shock with sympathy and discretion.
Ensure that staff act professionally so as not to compromise the integrity or reputation of themselves or their publication.
Value originality in journalism, take every reasonable precaution to avoid plagiarism, respect the copyright and other intellectual property rights of others, and ensure staff are aware of their responsibilities in this regard.
Not allow the personal interests of journalists to influence them in their professional duties.
Not allow the professional duties of journalists to be influenced by any consideration, gift or advantage offered and, where appropriate, disclose any such offer.
Not tamper with photographs to distort and/or misrepresent the image – except for purely cosmetic reasons — without informing the reader what has occurred and why.
Protect confidential sources.
Avoid stereotyping by race, gender, age, religion, ethnicity, sexual orientation, physical appearance, social status or illness, without avoiding legitimate public debate on such issues in the public interest.
Exercise care in reporting suicides and abide by the Fairfax Media Protocols for Suicide Reporting.

Fairfax editors have also agreed to abide by the industry-wide undertaking given to Parliament in May 2004 that police who use lethal force in carrying out their public duty will be named only if there is a compelling matter of public interest.

Editorial staff will avoid prominent activity in partisan public causes that compromise or might be seen to compromise the journalist and/or their organisation. Those responsible for covering news, current issues and opinion shall not be members of a political party or stand in an election for public office. If the activities of a member of a journalist’s immediate family might compromise them or their publication, the journalist must inform the editor.

Editors agree to publish fair and reasonable accounts of any Press Council decisions involving their publications as soon as practicable.
Tracey 7

3 December 2013 at 8:33 am

This makes for an nteresting read too

http://www.google.co.nz/url?sa=t&rct=j&q=&esrc=s&source=web&cd=6&ved=0CE0QFjAF&url=http%3A%2F%2Fmedia.apn.co.nz%2Fwebcontent%2Fdocument%2Fdoc%2Fjudy%2520mcgregor%2520speech.doc&ei=Q96cUofcM5GPkgW5uICgDg&usg=AFQjCNEKkyIun7YtNE62SaFWkIEC2eLgAw&bvm=bv.57155469,d.dGI&cad=rja
Peter 8

3 December 2013 at 8:48 am

Does he have a qualification in journalism?
- tc 8.1
  
  3 December 2013 at 9:30 am
  
  Who in the MSM does have a journalism qualification would be the more interesting question to be answered, we could rank then from degrees through to creative writing classes at school.
  
  How many of those kids with microphones and more established figures can actually craft a yarn without a press release or guide being supplied full of handy content to copy/paste.
- Draco T Bastard 8.2
  
  3 December 2013 at 3:03 pm
  
  Is a qualification in journalism required to be a journalist?
  - tc 8.2.1
    
    3 December 2013 at 5:19 pm
    
    Yes there is, strictly speaking, and also a cadetship as well learning the ropes before being allowed a junior status either in print or electronic.
    
    That’s when it’s done properly and you only get to rise if you can cut it, seen a few churned under that scheme as it sorts out the show ponies from the serious contenders. Even then those who made it leave as it isn’t the glamorous world they imagined.
    
    But that was in the day media outlets reported issues rather than looked to their owners for direction on how to report an issue and still exists in public broadcasters like ABC/SBS in Oz.
    - Rodel 8.2.1.1
      
      3 December 2013 at 11:42 pm
      
      Fabrication 101, 201 and 301 seem to be part of the course.
Disraeli Gladstone 9

3 December 2013 at 9:35 am

The law surrounding the protection of sources and so on should really be about acts of journalism, rather than the actions of journalists.

So, say if Slater wanted to protect Miss Chaung instead of throwing her under the bus, he would have the right to do so because despite the sleaziness and glee he took from it, revealing Brown’s affair was an act of journalism.

The hatchet job that he did on someone like Blomfield, probably, couldn’t be regarded as an act of journalism and therefore he doesn’t get the journalistic protection.

It also means we don’t have to consider him as a journalist…
- Lanthanide 9.1
  
  3 December 2013 at 5:23 pm
  
  +1
Puckish Rogue 10

3 December 2013 at 9:38 am

http://www.nzherald.co.nz/opinion/news/article.cfm?c_id=466&objectid=11165862

– The nzherald would disagree

http://www.kiwipolitico.com/2013/12/trawling-the-depths-and-finding-trouble/

– As would this guy

http://thenextweb.com/socialmedia/2010/09/07/ap-begins-crediting-bloggers-as-news-sources/

– Hard to disagree with this lot

http://www.medialawjournal.co.nz/?p=622

– He seems to disagree as well

I think you’re letting your personal feelings overide what you know to be true
- lprent 10.1
  
  3 December 2013 at 12:32 pm
  
  Nope. Some dickhead running a campaign of a hundred posts against a civilian essentially because they don’t like them would be bad enough. But I think that he probably did it for someone elses vendetta and did it for money.
  
  Tell me that you think that scenario is a good idea?
  - Puckish Rogue 10.1.1
    
    3 December 2013 at 1:21 pm
    
    “But I think that he probably did it for someone elses vendetta and did it for money.”
    
    – I disagree however it would seem that people more experienced in law and journalism agree that what Slater does is journalism
karol 11

3 December 2013 at 9:42 am

So, Lynn’s argument (well researched and supported with evidence) basically rests on the definition of journalist as paid. Followed by needing evidence as to whether a blog is a source of payment to an alleged journalist?

The Evidence act is a cornerstone of Lynn’s argument:

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

This then raises the issue of whether WO’s blog is a paid venture. Lynn says:

A “free press” is one that is unencumbered by oppression or obligation to their sponsors about what or how to report.

However, while this is certainly the definition I would used for the way a democratic, truly “fourth estate” press/media should operate, is this the legal definition being used in the evidence Act? [I’m asking – I don’t know]

Then Lynn says this:

It has been clear for a number of years that the Whaleoil site “demands” money from interested parties for whom it is writing advertorials for.

Lynn then concludes,

However outside of my opinion, I suspect that what he should have also looked at is how people can “work” for a blog as a journalist when there is insufficient revenue to support both them and the server.

So for a blogger to be considered a journalist, their posts/blog needs to provide a regular income?

And in Slater’s case the situation is confused because WO seems to be using smoke and mirrors to both claim he’s a journalist while also sending mixed messages to mask whether the blog is funded from elsewhere. But if he is funded to blog, then (following Lynn’s post) it seems more likely Slater’s funded to produce advertorials/propaganda rather than to disseminate “news”.

Then there’s a whole other line of inquiry, not really covered by Lynn’s post, as to whether or news corporates are paid to publish news or advertorials/propaganda? But, it is relevant in trying to differentiate blogs from news according to the Evidence Act. So, if The Daily Blog achieves, what seems to be Bradbury’s aim, enough popularity and financial support to provide the authors with a regular income, DTB authors could be then considered to be “journalists”?
- lprent 11.1
  
  3 December 2013 at 12:49 pm
  
  Actually I’d rather think that you’re right in your aspirations, at least as far as bloggers are concerned. I’m not even sure how the requirement to be paid part (if you are not at all) would be perceived by a court. But unless someone has some kind of trust fund I suspect that would be a rather hungry existence (and I know I write better when I have eaten that day).
  
  However I am pretty confident how who a “journalist” worked for would be perceived by a court if it could be shown that the bulk of a journalist’s income came from a source malicious to the target.
  
  There is also the question of Cameron’s frequent statements that he wasn’t a journalist in 2011/2. Should the court take him at his word?
  - Tracey 11.1.1
    
    3 December 2013 at 1:26 pm
    
    a person who in the normal course of that person’s work
    
    This is the key part. Does a person’s work be paid ( see HSE Act where pay or reward is used to define work).
    
    I agree with lprent, that it’s about the source of the hard drive being someone with a particular motive against Blomfield. Malice cancels out any privilege defence. Also if the source of the hard drive has got an axe to grind, how do we know the documents on that drive have not been altered. Has the drive been examined for this? Defamation is expensive, hence one party is representing himself.
    
    As for slater stating he is not a journalist in 2011/2012, someone posted yesterday that even yesterday he wasnt arguing he is a journalist but a media outlet or news diseminator.
Tom Gould 12

3 December 2013 at 9:45 am

You say that Slater isn’t a journalist’s arse. Well, I want to stick up for him. He is. He most definitely is. But as the judge suggests, we shouldn’t mistake a journalist’s arse with a journalist. Funny how the likes of John Armstrong and Jane Clifton are now mirror images of Slater in a professional sense, and the Herald and One News are the same as Slater’s blog in a media sense, according to all the apologists for Slater and his venal vomit masquerading as ‘news’. This is not, and never has been about ‘free speech’ and ‘media freedom’. Those notions attach to media publishing under the ‘fair, balanced, accurate and truthful’ ethos. And with a formal accountability mechanism. Which rules Slater out. So he’s really no different to anyone with a laptop and web access. Nothing special. Just way more nasty.
loadedquestions 13

3 December 2013 at 9:55 am

The protection for media is for journalists who are disseminating news, not going on vendettas. Cam Slater is no more a journalist than Comical Ali. If he could get off on discovery requirements by saying he’s protecting his sources then I could defame anybody I like on twitter and claim media protection to refuse to revela sources for my defamatoryt twitter statements.
- Tracey 13.1
  
  3 December 2013 at 1:32 pm
  
  not revealing your source, alone, wont get you off I am afraid. You need to read a bit mroe about defamation. once the plaintiff has put the statements forward, who made them, and show they have a reputation to lose, the onus shifts to the alleged defamer.
  
  Slater is relying on hard copy which exists independantly of the (source) provider of the documents.
ghostwhowalksnz 14

3 December 2013 at 11:24 am

Either way Judge Blackie ( not Justice Blackie in the post headline) has made the right decision – for the moment.

This way the decision can be appealed up the food chain, where the next stop is a High court judge ( this time a “justice”)

This is what I would do in marginal/unclear situations ( not court related), say No, and that way if someone didnt like it, then a person of more experience and maybe better judgement would make a call.
My own two cents worth , is that in this situation, Whaleoil isnt a journalist for the purposes of the Evidence Act.
The Gormless Fool formerly known as Oleolebiscuitbarrell 15

3 December 2013 at 12:14 pm

It’s Judge Blackie.
- lprent 15.1
  
  3 December 2013 at 12:29 pm
  
  Hey I did this at 0430… There will be a few mistakes especially since I couldn’t boil the jug for some coffee.
  - Puckish Rogue 15.1.1
    
    3 December 2013 at 12:32 pm
    
    So whens my comment coming out of moderation, its got links and its not inflammatory
    
    [lprent: Whenever the next moderator gets to it. In my case, the next time I run a long compile or do a long test of code. Could be anywhere from a few minutes to a hour. To date I haven’t had a reason to ban or mutilate for any comments here on this post. Makes a welcome change from having to break in the middle of moving and setting up the office yesterday to get rid of comments the were making assertions of fact that are not in the public domain. ]
Pascal's bookie 16

3 December 2013 at 12:15 pm

I’ve pretty much convinced myself that the problem is that the protection seems to fall on journalists, rather than journalism. That’s a mistake.

Trying to define a journalist, and then protecting their work because it must therefore be journalism, is a mug’s game. It makes more sense to me for protection to be decided with regard to whatever piece of journalism is in dispute.

The court would be deciding not, ‘is this person a journalist?’, but rather, ‘is this work in the public interest?’, (or however we define the sort of journalism that we think needs ‘journalistic protection’).

The fourth estate is an ironic thing. It’s not like the courts, or parliament or anything else. It’s an outsider to proceedings, but equal to them in power. It’s a hacker, if you like. Or it ought to be. Codifying it and formalising it and offering members protections above and beyond what are available to normal citizens is ipso facto an attack on the fourth estate in that it limits ‘journalism’ to state approved actors. I’m uncomfortable about that.

Free societies have tensions between freedoms. Courts resolve those tensions through, usually, civil suits. A free press isn’t free to defame, but that’s civil action. They can do it if they want to pay the cost. that’s a decision for journalists to make, ‘publish and be damned’ sums up the idea here. If a journalist thinks the story is important enough, they’ll publish and let the cards fall. This is what a free press means, and why the fourth estate has power. But that power comes form the same freedom of speech that we all have, and the only thing that amplifies it is their publishing power.

As the costs of publishing decrease, the power of amplified voice has become more availbale. And that’s all journalism is.

There’s good journalism, and really shitty journalism. But restricting the latter is an attack on a free press.

On sourcing, journalists will often need to offer anonymity to get the story out. I think this is overused often, and abused often as well, mostly in political journalism. But it’s the journalists call, and it again comes with tensions. It shouldn’t be a free pass. There should be risks for everyone involved. If the source lies, then that should carry the risk of exposure. If the journalist refuses to disclose the source in court, then there should be a risk of contempt. Calculating those risks should be a decision made prior to publishing for all involved.

The Courts should be deciding whether or not a particular story deserved to be told rather than if the teller of the story is legitimate, I think.
- loadedquestions 16.1
  
  3 December 2013 at 12:34 pm
  
  Or whether a particular story is designed to disseminate news, or push a propaganda line. Might open a can of worms with newspaper opinion columns which wouldn’t receive the protection of media expression though.
  - Tracey 16.1.1
    
    3 December 2013 at 1:43 pm
    
    Prada was seen by the west as propaganda but a newspaper by russians. Not liking something doesn’t make it NOT journalism…
    
    BUT I would be pointing to codes of ethics to assist to determine what journalist “looks like” and “media outlet”.
- lprent 16.2
  
  3 December 2013 at 1:03 pm
  
  Well the limitations to a journalists ability to protect their source is limited by section 68(2) and (3) of the Evidence Act
  
  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.
  
  Both of those is up for judgement.
  - Tracey 16.2.1
    
    3 December 2013 at 1:44 pm
    
    and dont forget the overriding discretion in s69 which the Judge must have considered.
    
    including
    
    When considering whether to give a direction under this section, the Judge must have regard to—
    
    (a) the likely extent of harm that may result from the disclosure of the communication or information; and
    
    (b) the nature of the communication or information and its likely importance in the proceeding; and
    
    (c) the nature of the proceeding; and
    
    (d) the availability or possible availability of other means of obtaining evidence of the communication or information; and
    
    (e) the availability of means of preventing or restricting public disclosure of the evidence if the evidence is given; and
    
    (f) the sensitivity of the evidence, having regard to—
    
    (i) the time that has elapsed since the communication was made or the information was compiled or prepared; and
    
    (ii) the extent to which the information has already been disclosed to other persons; and
    
    (g) society’s interest in protecting the privacy of victims of offences and, in particular, victims of sexual offences.
- Tracey 16.3
  
  3 December 2013 at 1:41 pm
  
  You have confused me. The evidence act 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.”
  
  It then defines journalist, a definition the Judge must work within.
  
  “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”
  
  it defines informant as
  
  “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”
  
  To be an informant, under the Act, Slater’s source must be giving the information to a journalist in the normal course of that journalists work.
  
  It seems circular, but journalist is the most common word, not journalism.
  
  so it IS whether Slater is a person who in the normal course of his work may be given information by an informant in the expectation that the information may be published in a news medium…. if he is NOT it it irrelevant whether his blog is a news medium, surely?
  
  Not dissing you, engaging your thought process on this one.
- Tracey 16.4
  
  3 December 2013 at 2:00 pm
  
  I read price’s blog on this and I disagree with him (respectfully) or more particularly with Graeme Edgler’s comment that it should be about journalism not journalist. While it might well “should be ” so, the evidence act is clear that it is about journalist.
  
  “Finally (and on the real point), my view is that the law should protect journalism, not journalists. ” GE
  - Pascal's bookie 16.4.1
    
    3 December 2013 at 3:19 pm
    
    It’s about both innit?
    
    There’s two hurdles to clear. First you have to show that you are a journalist, then you have to convince the judge that in the particular case the piece of journalism deserves protection.
    
    I don;t think the first hurdle is necessary. What purpose does it serve? All it does is sets up a club of approved media entitled to protection. To join that club all you have to do is have enough money to buy a printing press or some such. It’s an anachronism.
    - Rogue Trooper 16.4.1.1
      
      4 December 2013 at 3:37 pm
      
      This
- Draco T Bastard 16.5
  
  3 December 2013 at 7:12 pm
  
  The court would be deciding not, ‘is this person a journalist?’, but rather, ‘is this work in the public interest?’, (or however we define the sort of journalism that we think needs ‘journalistic protection’).
  
  /agreed
  
  If you start giving only certain people necessary protection that the 4th estate needs under the word “journalist” then you will prevent the citizen journalist from being able to bring facts to light. Which is, as I pointed out to VTO, removing our responsibility to society.
- Rogue Trooper 16.6
  
  4 December 2013 at 3:38 pm
  
  and this too.
lurgee 17

3 December 2013 at 12:48 pm

Cameron Slater, you say? The same cameron Slater who – in 2010 – was busily claiming his name suppression busting blog wasn’t at all like a newspaper or other media outlet, more akin to idle chat on the village green? Now he’s pretending to be a proper journalist? Wish he’d make up his mind (sic).
- Tracey 17.1
  
  3 December 2013 at 1:47 pm
  
  agree. He bent over backwards to argue suppression orders on media outlets didnt include him. he is right though, if that court found his blog was a media outlet, how does a similar court find he is not.
- bad12 17.2
  
  3 December 2013 at 1:54 pm
  
  Lolz, the very point made by Herald Journo Bryce whats-his-face, repeated by me and Lolz again is now the subject of a zillion comments,
  
  Bryce tho, perhaps being naughty framed His comment from the point of view of the Judge in the ‘suppression busting case’ telling Blubber that ”oh yes you are” when delivering the message on the breaking in public the name of someone previously granted name suppression and ‘wail’s’ contention that He was not ‘media’,
  
  Being a spot naughty myself,(not having read the judges comments and simply relying on ‘Bryce’s word), i shouldn’t comment too much,
  
  The joy of this debate is that it is likely to cost ‘wail oil’ quite a sizable cache of cash to have the High Court decide for the lower courts whether ‘blogs’ are media and i get the feeling that the Judiciary are just as likely to tell whoever is asking to go and get the Politicians to sort the question out,(in which case my joy will be magnified at ‘wail’s’ expense in both senses of the word)…
ABS 18

3 December 2013 at 12:58 pm

Lynn, just reiterating my post to edit anything regarding Blomfield from yesterdays post that doesn’t stand on its own as personal opinion. While this issue is before the courts it is probably unwise to link to anything that may be then used against Whale or yourself. Thanks.
- lprent 18.1
  
  3 December 2013 at 1:30 pm
  
  I did a fairly complete job on it until pretty late last night. But if you can spot anything then link me to the comment (the link is in the date time).
bad12 19

3 December 2013 at 1:38 pm

Are all ‘Blogs’ media, nope far from it, in terms of both the law and their use, Blogs are in effect platforms providing a publicly accessible arena in which all our rights to ‘free speech’ can be exercised,

That we are in effect ‘publishing’ i would contend does not make us ‘media’, more closer to the ‘soap-box’ with the message delivered available into posterity is my opinion,

i would be wary of any proposal from the ‘law-makers’ which attempts to define the role of ‘blogs’ one way or another which does not give these mediums of free speech the right to remain as they are, open areas of free speech only constrained by the rules of ‘good behavior’ as expressed by those who manage the site and constrained by the relevant laws surrounding slander,libel and defamation,

Haing said all that i have no problem with any particular ‘blog’ being able to apply for ‘media accedditation’ but then i think the Law Commissions definition would have to apply to those that were,

”The publisher must be accountable to a code of ethics and complaints process”,

That little sentence would disqualify Blubber boy and His ‘Wail oil’ full stop…
Tracey 20

3 December 2013 at 1:51 pm

excerpt from price’s evaluation of Slater’s loss on his suppression breach

” he suppression law only applies to a “report or account of the proceedings”, which means stories by people who were actually in court and were about what happened in court that day

It only applies to factual news stories, not comments

It only applies to the mainstream media

It can only be breached by mentioning the exact name in the court documents (eg “John Aloysius Smith”)

It doesn’t apply to information on websites hosted overseas

It can only be breached by a publication in one of the official languages of New Zealand (English, Maori and sign language)

It couldn’t apply to his carefully designed picture-clues to the suppressed identities because they were merely “interesting pictures”

The judge pointedly notes that Mr Oil’s lawyer was unfamilar with the leading case on internet publication, and was only selectively interested in the NZ Bill of Rights Act.”

http://www.medialawjournal.co.nz/?p=390

interesting to re-read, if only because it hinge don whether slater published the name not whether he was a media outlet, journalist or news disseminator
Brett Dale 21

3 December 2013 at 9:47 pm

Not all Journalists are bloggers.

Some Journalists have blogs along aside their day jobs.

If your a Blogger, and haven’t got a degree in Journalism or don’t work for a media
organization you are not a Journalist.

If your a Blogger and haven’t been published, your not a writer.
TheContrarian 22

3 December 2013 at 11:30 pm

Of course you think Blackie got it right. I’d wager you don’t even care either way Prentice. You’ve had a hard on for Slater for ages now – even going so far as to diagnose his mental illness over the internet.

Slow-clap
- lprent 22.1
  
  4 December 2013 at 7:50 am
  
  …diagnose his mental illness over the internet.
  
  I didn’t have to – he did it himself. He had/has depression. But I suspect you have me confused with someone else.
  
  His wife described the effect on his family from his lack of impulse control.
  
  At various time I’ve seen him described here and elsewhere as being a sociopath, bipolar, psychotic and various other things
  
  I just view him as being a dangerous fool, who never bothers about other people, and who has little or no value to himself or anyone else. But that is more of an observation rather than a diagnosis.
  - TheContrarian 22.1.1
    
    4 December 2013 at 10:19 am
    
    It was the other way round, Prentice. You hilariously suggested the perhaps Cam didn’t have a mental illness, at least not a severe as reported, and you based this on his frequency of blog posting.
    
    It was a day of laughs.
  - TheContrarian 22.1.2
    
    4 December 2013 at 10:20 am
    
    It was the other way round, Prentice. You hilariously suggested the perhaps Cam didn’t have a mental illness, at least not a severe as reported, and you based this on his frequency of blog posting.
    
    It was a day of laughs.
- bad12 22.2
  
  4 December 2013 at 8:23 am
  
  ‘Slow Clap’ Contrarian, sounds like you may be afflicted, so Blubber Boy does have a ‘mental illness’???,
  
  Care to expand your diagnosis…
- Cemetery Jones 22.3
  
  4 December 2013 at 9:35 am
  
  What about the other side to that, Contrarian? As Peter Aranyi points out:
  
  “And for fixation, look no further than Whaleoil:
  Lynn Prentice 313 entries”
  
  http://www.thepaepae.com/as-playful-as-he-is-psychotic/
Rogue Trooper 23

4 December 2013 at 10:43 am

Bryce Edwards Rounds up the blogging dogies
http://www.nzherald.co.nz/business/news/article.cfm?c_id=3&objectid=11166353
- greywarbler 23.1
  
  4 December 2013 at 12:51 pm
  
  RT
  That link leads to very interesting piece on NZ and other small nations housing bubble. Thanks I sent that to family member about to put down a sizable sum which I think is a bit high. However Bryce Edwards wasn’t around that I could see. But Transparency International on how uncorrupt we still are. Yeah.. And Korea is very high in corruption stakes I heard on radio so that’s interesting for those doing business there. Do we run corruption protocol workshops in NZ.?
  
  And Destiny Church – long time rih man Richard Lewis is starting his own church called or in venue called Dream Centre or the like. Sounds like something that would inspire me. We need more of them.
  
  So now back to Bryce? Got him handy?
  - Rogue Trooper 23.1.1
    
    4 December 2013 at 3:52 pm
    
    apologies everybody, here ’tis
    http://www.nzherald.co.nz/politics/news/article.cfm?c_id=280&objectid=11166310
ghostrider888 24

4 December 2013 at 10:47 am

Lynn, TS still appears sub-optimal in performance. 😎
- lprent 24.1
  
  4 December 2013 at 11:51 am
  
  Yes. The problem is with the flood of spam arriving and pushing akismet under pressure. That means that comments wind up in auto-moderation while waiting for a spam check
  
  It has been making life difficult for weeks. I need to do something about it at a time when I have time and this time; when I don’t fall sick with a nasty bug (like happened this weekend).
  - Rogue Trooper 24.1.1
    
    4 December 2013 at 4:49 pm
    
    Hope this finds you well then.
Travellerev 25

4 December 2013 at 11:17 am

Here is my two cents on Whaleoil and the judges order: Bomber, Gower And Lush Perpetuating The Crazy Conspiracy Theorist Meme Or Why I stand With Whaleoil: http://wp.me/p638n-4dm
lprent 26

5 December 2013 at 12:31 am

Always interesting seeing people acting like legal idiots. The laudafinem site (can’t be bothered giving these morons a link – use google and a good strong nose peg if you have to) is probably the most interesting set of legal waffle fools around. The laudafinem author (hereafter named as “stupid”) has said that

That is to simply say that Judge Blackie, being a District Court Judge, and NOT A HIGH COURT JUDGE, did not have the authority or JURISDICTION to make a ruling relating to Mr Slater and his blog Whale Oil handing over documents that were subject the protection found in section 68 of the Evidence Act 2006.

Yeah right. So stupid then quotes section 68(1) and part of the first sentence of 68(2) of the evidence act. I bolded what they quoted.

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—

… Followed by several conditions that I won’t repeat because the whole of the clause is irrelevant. Just read mickey’s post for the rest of the text.

So stupid missed one very obvious and salient point. Judge Blackie ruled that whaleoil.co.nz was not a news medium.

Section 68(5) of the act defines a journalist as

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

Not a news medium, therefore Cameron Slater was not a journalist according to section 68(5). Unless Cameron could convince a judge that the source had been under the expectation that the information was going to a actual news medium (which obviously wasn’t whaleoil.co.nz where it wound up).

Therefore 68(1) doesn’t take effect. Since 68(2) was all about how the protections of a journalists sources in 68(1) could be overridden by a high court judge, the none of stupid’s idiotic argument has any validity. Which is merely the latest reason why stupid’s legal opinions are full of stupid blustering latin that he clearly doesn’t understand and he demonstrates no actual understanding of how the law operates.

Hopefully Cameron isn’t taking stupid’s advice. Even I don’t want him to look that much of a dork in front of a high court judge. It reflects badly on the perception of bloggers general level of intelligence. However it may be too late. Stupid has been publishing emails that he purports were off the hard disk. What other source apart from Cam could they have had? Ummm perhaps both should be asked?

For anyone interested, there is a site purporting to say who the morons on that site are and also here. I have no knowledge if either of these sites are accurate.

Since as well stating they are printing some emails from the hard disk they also slagged of judges and lawyers involved in the case. Interested persons might find that page a good starting point.
Intrinsicvalue 27

5 December 2013 at 1:13 am

The average punter doesn’t give a toss who defines whom as what. The fact is more and more people are giving up the MSM to get their news from Blogs such as WO and The Standard (my choices for both sides of an argument). I cancelled my subscription to the NZH 4 weeks ago in disgust at their standard of journalism (their premeditated attack on the eldercare sector being the latest example), and whether WO or TS get formally classified as media maters not a jot to me.

[lprent: Persistent aren’t you. Your comments in the auto-spam have been improving.

The real question is if you are capable of learning? Have you read the policy yet? Am I going to have to start doubling up again if you transgress them and then keep commenting?

Since you seem to find this site of value. I guess we will find out if you can follow our policies. ]