Court blurs lines between blogger and journalist

Court blurs lines between blogger and journalist

A landmark decision in the New Zealand High Court has given legal weight to what is already becoming a reality in the media landscape: a blogger can be defined as a journalist – a ruling that will renew debate on the issue on both sides of the Tasman.

In an appeal against a defamation case brought by businessman Matthew Blomfield against notorious blogger Cameron Slater, founder of Whale Oil Beef Hooked, the court found that Mr Slater could be legally defined as a journalist and, as such, be given privileges assumed by professional journalists including the shield law, which would allow him to protect his sources.

The decision hinged on the definition of Mr Slater’s blog as “news media”.

Mr Slater stated in his appeal: “The rules…do not say you have to be this massive corporate. My website has broken numerous stories…I deal with informants and sources and people who want to provide confidential information on a daily basis.”

In delivering the court’s finding, Justice Raynor Asher said: “Mr Slater’s reports contain genuine new information of interest over a wide range of topics…While criticisms can be made of Mr Slater’s style and modus operandi, Whale Oil is not of such low quality that it is not reporting news.”

The ruling echoes the definition of news media outlined in recent discussions in Australia and New Zealand.

In Australia, the 2012 Finkelstein report rejected by the Australian government recommended privileges afforded to journalists, including the shield law, be extended to bloggers and even “tweeters” who had reached a prescribed audience level.

A 2013 report by the New Zealand Law Commission recommended the broadening of “news media” to include any publisher, in any medium, that met set criteria. This included a proviso that a significant proportion of published material must be news, information or opinion of current value. It also recommended the publisher be accountable to a code of ethics and a complaints process.

This led to the New Zealand Press Council to conduct its current trial membership for bloggers. Chairman of the council’s executive committee, Rick Neville, says that in order to be classed as journalists and afforded the associated privileges, bloggers must take on the corresponding responsibilities.

“It really depends on whether they can meet the standards of balance, fairness and objectivity required by the press council’s statement of principles,” Mr Neville said.

“That puts quite strong responsibilities on members and some [bloggers] clearly would not meet those standards right now.” (Cameron Slater has not joined any media standards bodies).

“The onus will be on digital media to see whether they are sufficiently mature – it’s up to them to prove that they can actually behave,” Mr Neville said. “Some of them, we know, want legitimacy – but that has to be earned.”

News Corp Australia group editorial director Campbell Reid agrees. He believes bloggers should be part of the journalism community, if certain conditions are met.

The test for bloggers, Mr Reid said, would be to comply with “laws that make up a pile, as big as a phonebook, that oversee people putting information into the public domain: defamation, contempt, and a myriad of other laws that apply to everybody”.

However, excluding bloggers from the privileges enjoyed by mainstream media would be a step towards licencing journalists – an “abhorrent notion”, he said.


News Corp Australia group editorial director Campbell Reid

“The definition of journalist in my mind is someone who has a story,” he said.

“The journalist is renegade outsider, shining a light on what’s going on in society…that’s our job, and the platform you use, whether it’s a TV news bulletin, mainstream newspaper or a blog, if you’ve got a story that stands the test of accuracy and is therefore valuable information, then welcome to the journalism club.”

Mr Reid said people disclosing information in the public interest should be entitled to legal protection, regardless of which desk they sit under. To dismiss bloggers as sub-standard writers who “cut our lunch” would be a grave mistake by corporate news publishers, he said.

“Even though bloggers cause mainstream media embarrassment and discomfort, certainly as the bloggers in New Zealand have, they’ve broken some of the biggest stories in New Zealand of recent times.

It should not be an excuse for mainstream media to rule bloggers out of the game. “It’s an invitation for the mainstream media to do a better job,” he said.

Most active journalists today, Mr Reid pointed out, were bloggers in addition to their careers in other media.

The Slater decision in New Zealand – and wider acceptance of digital journalism in a variety of new contexts – had “huge ramifications”, according to Australian Press Council chairman Julian Disney.

“As we increasingly find journalists being employed by the AFL or the Commonwealth Bank, that [too] raises questions over what extent they’re going to have to comply with traditional standards of journalism,” he said.


Australian Press Council chairman Julian Disney

Professor Disney said simply welcoming bloggers could mean a tougher bid for privileges for all journalists if bloggers flooded the industry.

“There’s a real danger that this could be an illusory victory in that it actually extends the meaning of journalists so much that the privileges and incentives are cut back accordingly,” he said.

“If we keep that broad definition we’re going to be in trouble, because the people who give those privileges” – from courts to government ministers to corporations – “aren’t going to be willing to give them to journalists, full stop.”

He cited shield law cases in Western Australia which, along with NSW, follows a narrower definition of a journalist as somebody “engaged in the profession or occupation of journalism”, where bloggers have been denied the right to protect their sources.

“There is  going to have to be ‘Journalists Plus’ – there’s going to have to be something else about them that qualifies them.”

A solution could be the establishment of a basic training requirement that would put all journalists, including bloggers, on a level playing field of rights and responsiblities, Professor Disney suggested. They could thus be categorised according to their needs – before other institutions devised their own potentially unbalanced or onerous criteria.

“If we don’t do that, the courts, for example, might come up with their own definitions or just decide things on a case by case basis and that might be quite capricious,” he said. “A blogger who is a very serious coverer of the courts might be kept out because they’re a little more feisty than the courts might like, which would be a bad thing.”

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