December 2, 2013 12:00pm by David Farrar

Are blogs media?

Media lawyer Steven Price blogs at Media Law Journal:

As the NZ Herald reports, the owner/operator/author of NZ’s most widely read blog is being sued for defamation. The plaintiff has formally asked him whether he knows the name of his source. (You might have thought that the answer to this might simply be “yes”. But I guess there’s an obvious follow-up). Slater has refused to answer on the grounds that he is a journalist, writing for a news medium, and therefore does not need to reveal his source. This rule is contained in s68 of the Evidence Act 2006.

Note a couple of things. First, in order to get this source protection, Slater has to show that his blog is a “medium for the dissemination to the public or a section of the public of news and observations on news.”

Second, even if he is a journalist, that doesn’t guarantee that he won’t be ordered to reveal his source(s). The judge can order him to identify his source on the grounds that the public interest in disclosure outweighs the negative impact on the source and the general impact on the flow of information to journalists. This rule applies to all journalists.

So if you are recognised as media, it does not mean you will automatically not have to reveal your sources. It means the threshold for you to be forced to reveal them is higher.

The Judge ruled:

Whale Oil is a blog site. It is not a news medium within the definition of s68… of the Defamation Act. It is not a means for the dissemination to the public or a section of the public of news and observation on news.

Price comments:

The judge gives very little reason for this conclusion. It seems a very questionable one. Whatever you think of WhaleOil, it’s hard to deny that he breaks news stories, and that he writes commentary on news. When you factor in the requirement that the courts are supposed to have regard to rights of freedom of expression under the Bill of Rights Act when interpreting statutes – and there’s a respectable argument that protecting sources facilitates the flow of important information – then there seems a powerful argument that this section ought to be construed widely enough to encompass at least some bloggers.

It is a pity the Judge gives no reasoning at all. As Steven says, the conclusion is questionable – at a minimum.

Yet another problem is that the Commission’s inclination was to allow bloggers to be included in the regime, on the grounds that it made no sense to distinguish between mainstream media and bloggers when both were serving the interests of free speech. It would have treated anyone as media who regularly published news and opinion of current value to a public audience, providing they agreed to be bound by an ethics regime. This last element is problematic for Cameron Slater’s case. But in the end the thrust of the report is the need to recognise the valuable news-role played by at least some bloggers.

So in the end, the judge’s conclusion is simply not convincing.

Basically the Law Commission actually said blogs should be able to qualify as media, so long as they had a code of ethics and were subject to an independent complaints process like other media.

It gets worse though. The judge goes on to consider the High Court rules. He cites a rule that says a defamation defendant doesn’t have to disclose sources before trial when pleading honest opinion or privilege. The judge says this rule doesn’t apply because Cameron Slater didn’t argue a defence of “honest opinion on a matter of public interest.” This reasoning seems particularly weird to me. The defence of honest opinion no longer requires that the comment be on a matter of public interest. He doesn’t need to plead public interest: it would be superfluous. It seems to me that this rule surely applies to a defendant who pleads honest opinion, which Slater did. So I think the judge is wrong there too.

All sounds ripe grounds for an appeal.

UPDATE: Russell Brown blogs on this issue also:

But this is really to misread the Commission’s overall perspective on blogs and similar internet publications – which is that they can and do play an important role in public debate. It ultimately proposed a new news media regulator, which blog publishers could opt to join and be subject to.

He also declares that Whale Oil fits the definition in the Evidence Act:

Whatever you think of Slater’s personal style, I don’t think you can reasonably argue that Whaleoil does not do this.

Brown looks at the wider ramifications:

On this site we do not and are not likely to attract defamation actions in the way that Cameron Slater does. But I was threatened with such action this year. I was aware at the time that a discovery order was a possibility if it went ahead – and also confident that discovery would not reveal anything harmful to my defence. Sources weren’t really an issue. But had things been different, it would have been extremely undesirable to have had my rights ruled out on the argument offered by Judge Blackie.

He concludes: