The Whale certainly created a splash in the last New Zealand election. More accurately, it was investigative journalist Nicky Hager and his book Dirty Politics that created the splash. The Whale – controversial right-wing blogger Cameron Slater and his Whale Oil blog, whose emails were leaked to Mr Hager – copped most of the spray. (I should disclose that I act for Nicky Hager).
But Mr Slater has also been making life busy for the courts. In recent months, he has been at the forefront of two significant High Court cases. In the first, he argued that he was a journalist, and should not be required to turn over his sources in a defamation suit against him. In the second, he sought an injunction against several media defendants and a hacker to prevent the further publication of the leaked emails about him that formed the basis of Dirty Politics.
The decisions were released within a week of each other shortly before the election. Mr Slater had mixed success with them. He was found to be a journalist, but the court ordered him to disclose his sources anyway. He got his injunction against the hacker, but not against the media.
Both cases revealed interesting things about the state of our media law.
First, the source protection case (Slater v Blomfield  NZHC 2221). The Evidence Act 2006 allows journalists to protect the identity of their sources, if they have promised them confidentiality. But it also allows judges to override that promise and compel them to disclose their sources. A judge has to decide whether the public interest in knowing the source’s identity outweighs the harm to the source together with the public interest in the flow of information from confidential sources.
What’s a journalist? Someone who, in the normal course of work, receives information from informants in the expectation that it will be published in a news medium. What’s a news medium? A medium for the dissemination to the public, or a section of the public, of news and observations on news.
This raises big questions. Is a blog a news medium? Is a blogger a journalist? Are they sometimes? If so, when? The District Court judge had held, rather peremptorily, that Mr Slater’s blog was not disseminating news, and that was the end of the story.
In the High Court, Asher J disagreed. In a lengthy and thoughtful judgment, he accepted that Mr Slater qualified as a journalist at the relevant time. Mr Slater spent a lot of his life blogging. He frequently received information from sources, promising confidentiality. He broke news stories. He published opinions on news. In this context, the judge said, purveying “news” means “providing new information to the public about recent events of interest to the public… on a regular basis… for the purpose of disseminating news”. Making a profit isn’t necessary. No particular format is required. The journalist doesn’t need to be subject to an ethics complaints system. A style of journalism that may be dramatic or abusive or hyperbolic doesn’t disqualify a journalist either. A pattern of consistent inaccuracy or deceit may mean that a blogger is not a journalist, but there was no evidence of that before the judge.
Of course, this isn’t a definition of “journalist” for all purposes, just for the Evidence Act. It’s a fiendishly difficult topic, and this strikes me as a pretty good stab at it. It’s similar to the definition the Law Commission has used.
The judge then went on to order Mr Slater to reveal his sources anyway. He explained that the identity of the sources may be crucial to evaluating pleaded defences of truth and honest opinion. What was there in the balance favouring source protection? Almost nothing. The posts were about a private dispute, they contained “extreme and vitriolic statements,” they “bore the hallmarks of a private feud”, and the source material seemed to have been obtained illegally. It was not a whistleblower case.
Ironically, Mr Slater’s “news” site reported only that he had been declared by the High Court to be a journalist. It didn’t see fit to mention the rest of the judgment. All in all, though, Asher J’s decision seems right on target, and gives very helpful guidance in a difficult and fast evolving area of law.
Prevention of Further Publication
The same can’t be said, I think, of Fogarty J’s decision on Mr Slater’s application to prevent further publication of his hacked emails (Slater v APN Zealand (No.1 (No.2)  NZHC 2157).
This case, too, bristled with fascinating issues. Recall that the emails had been illegally obtained by someone calling himself “RawShark”, who had first given them to Mr Hager for his book, and after the book was published, began releasing them online and providing them to journalists. The application alleged breach of confidence and invasion of privacy. Some of the material (omitted from Dirty Politics) was clearly very personal. RawShark had released some of this, then apologised and said he’d vet the releases more carefully in future. There was a strong argument that all of the material was subject to an obligation of confidence, and that this obligation bound third parties, such as the media, who acquired it. But public interest is a defence to both causes of action.
The PM had accused Mr Hager of “making stuff up”. The emails supported the book’s veracity. Did that establish public interest in them? Would that only apply to the ones mentioned in the book? Was there public interest in some of the emails that weren’t in the book? The media had published some others. Emails showing contacts between political figures and Mr Slater were particularly pertinent with an election pending. Did that establish public interest? Would a judge be prepared to evaluate where the public interest lay without seeing all the emails and hearing argument on the context?
The interim injunction thresholds are very high. Courts are reluctant to gag speech. In privacy cases, for example, the Court of Appeal in Hosking v Runting held that there must usually be “compelling evidence of most highly offensive intended publicising of private information and there is little legitimate public concern in the information.” Was that test satisfied?
Who knows? Fogarty J’s 9-paragraph decision – gagging the hacker but not the media – sheds little light on these issues. He doesn’t cite Hosking, or the test for a privacy injunction. He doesn’t cite any breach of confidence cases at all.
The judge is surely right to conclude that there is an arguable case against RawShark (as indeed there is against the media). But is this the right standard? Hosking seems to set the bar for an injunction higher. So do many other free speech injunction cases. What’s more, the judge doesn’t mention the right to free speech in the Bill of Rights Act. Given that the injunction restricts what might include significant political speech, we might have expected an explanation of why it is demonstrably justified under section 5.
Remarkably, the judge doesn’t even explain why he didn’t grant the injunction against the media. If he accepted that the media were publishing information in the public interest, on what grounds was he satisfied that RawShark wasn’t? The judge points out that there is a difference between preventing the further circulation of what’s already in the public domain, and preventing RawShark from putting more hacked emails into the public domain. But that ignores another category: the emails leaked by RawShark to the media and not yet published. The injunction permitted the media to publish anything they liked from this category. But the judge gives no reason to differentiate between those emails and anything RawShark may still have had. He conducts no evaluation of any of the specific information leaked, published or not, and what public interest there may have been in it.
Was the judge worried that RawShark would again release very private information in which there was no public interest, since he’d done so before? The judgment doesn’t say.
As it happened, that afternoon RawShark said he had given all his information to the media and was shutting up shop. Did the judge know about this? Did he believe it? Did it make him more inclined to feel that any significant information was now in the responsible hands of the media and so it would not do any harm to gag RawShark? The judgment doesn’t say.
Perhaps the judge was comforted by the fact that Dirty Politics and the media seemed to have already had an opportunity to air the most significant parts of the hacked emails. But the judgment doesn’t say that either.
The upshot of this decision seems to be this: if the injunction application had been made before Dirty Politics was published, and before any of the emails had been leaked to the media, then an injunction would certainly have been granted against everyone, no matter what the degree of public interest may have been.
Now, I think we have to be very sympathetic to judges who have make difficult decisions on interim injunctions quickly and without the benefit of all the evidence and full argument. RawShark was not represented. What’s more, further argument was scheduled for the following week, and the judge permitted any defendants to apply for the orders to be varied on 24-hours’ notice. But even so, I think this loses sight of the principle that interlocutory applications must be scrutinised particularly carefully when they are likely to finally dispose of the case. In relation to RawShark, that’s exactly what’s happened.
I’m not saying that the ultimate decision Fogarty J reached was wrong. It’s possible that this outcome could be defended. But the judgment itself is so sparse and unsatisfactory that I don’t think it can be.
This post originally appeared on the Media Law Journal blog and is reproduced with permission and thanks