Blogger Cameron Slater has been told by a Manukau District Court judge his "Whaleoil" website is not a news medium. This will surprise everybody aware of the Len Brown affair. Whaleoil broke that story and was almost alone among news media in covering the seamy details. Muckraking to that degree might not be to everyone's taste but if anybody wants to rake it or read it, they have a right to do so. The ruling by District Court Judge Charles Blackie will not stop them but it denies Whaleoil a right asserted by all news media to protect their sources from discovery in court.
The case has nothing to do with the Brown affair. Slater is defending an action for defamation on a different subject. The judge's ruling is important for its general application to news and comment online, and possibly for the future regulation of mainstream media too.
Judge Blackie has decided the website does not come within the definition of a news medium in the Evidence Act 2006: "a medium for the dissemination to the public or a section of the public of news and observations on news".
He appears to regard a blog as a private and personal indulgence. He quotes a passage in the Law Commission's 2011 report on media regulation that said, "blog sites are not democratic forums", they were "often highly partisan" and "can be highly offensive and personally abusive".
But none of those characteristics preclude the material being true and of interest to the public or a section of the public. The Law Commission's definition of news media for the purposes of legal recognition had four elements: the publication of news, information and opinion of current value; its dissemination to a public audience; publication must be regular; and the publisher must be accountable to a code of ethics and a complaint process.
Some blogs meet all those criteria except the last. Only those associated with newspapers and broadcasters are subject to a complaint adjudication process. The Law Commission's report, The News Media Meets "New Media", proposed a single complaints body recognised in law in the hope that blog sites would submit to it for the few privileges the courts and Parliament bestow.
One of those privileges, sought by Slater now, is the right not to divulge the names of informants. It is not an absolute right and should not be. If it were a matter of life or death, or a real threat to public danger, press freedom should give way; indeed, the press could justifiably take the initiative in those extreme circumstances. But when it is not a matter of life or death, free speech is paramount. And real freedom to speak through the news media sometimes requires protection from identification.
The courts ought not restrict that protection to media which subscribe to a code of ethics or a complaint process. There are obvious benefits in credibility for those who subscribe - and the Evidence Act's limited protection is welcome. But being subject to outside oversight is not the defining characteristic of news media. Regular publication of news and views of general interest can be regarded as a medium deserving the rights and protections - and legal obligations - of all media.
The right that Slater seeks is not particularly generous, or final. If a case goes to the High Court, news media may be forced to betray a confidential source to the judge, who will decide whether confidentiality overrides other considerations in the case. Other jurisdictions give media freedom higher protection. A blogger might not have the means to challenge this ruling in a higher court but it should not stand. News comes in many and varied forms and the courts should recognise it when they see it.