In the days before childhood was sterilised by Health and Safety we amused ourselves by chasing drops of mercury around the floor of our school science laboratory. Today we chase equally elusive definitions of journalism and the public interest.
In part, we do so to reassure ourselves of continuing relevance in the i-age – internet, iPhone, iPad and the next game-changing i-device. We also do it because digital hordes are beating at the gates, demanding to be recognised because journalists have something they want.
The precious thing that journalists possess – and ‘citizen journalists’ and bloggers want – is recognition in law, or the reporter’s privilege. This is why external pressure is being applied in an attempt to redefine journalism to extend it beyond the professional, institutional definition that newspaper editorial staff traditionally have used to describe their vocation.
Australian state legislators have held to that narrow description but, thanks to the Greens, the Australian Federal Parliament opened the gates in 2011 when an amendment to the Evidence Act gave bloggers and ‘citizen journalists’ the same shield that protected reporters from revealing confidential sources.
This is a ‘rebuttable presumption’ that starts from the premise that confidential sources should be protected in the public interest but adds a caveat that a judge has the power to sweep it aside and require disclosure.
The same ‘rebuttable presumption’ exists in the New Zealand Evidence Act, but Section 68 is headed “Protection of journalists’ sources” and ‘journalist’ is defined as “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” (which is defined as a means of disseminating news and observations on news). So it might seem reasonable to believe that there was another presumption: protection of journalists’ sources was confined to journalists.
However, late last year that presumption was tested by a blogger named Cameron Slater, whose Whale Oil blog had gained notoriety over breaches of name suppression orders, but which had also revealed several public scandals, not least the two-year extra-marital affair of Auckland’s mayor, Len Brown.
Slater had claimed the reporter’s privilege against revealing a source while defending a defamation action. However, a judge ruled that his blog was not a news medium and, as a result, he was not entitled to use of the shield law. Slater indicated an intention to appeal.
A Southland Times editorial described Slater as “like one of those relatives that you don’t get to choose” but both Fairfax and APN titles acknowledged that he did, indeed, have a right to claim protection against revealing his source. APN’s New Zealand Herald said news comes in many and varied forms “and the courts should recognise it when they see it”, while The Press in Christchurch noted Whale Oil had more than one million visitors a month and had broken stories “taken up with gusto by other media”.
Is it cut and dried? Was the Australian Parliament right to include bloggers and ‘citizen journalists’ in its shield law and was the New South Wales Attorney-General wrong in telling Canberra last June to turn back the clock and align that law with tighter state legislation?
No, it is not cut and dried. As American journalists Bill Kovach and Tom Rosensteil said in Blur (their 2010 book on the information age): “…blogs are like muffins. They are one shape, but the batter that goes into it might run the gamut from chocolate cake to bran”. Slater may carry enough genuine news within his often outrageous outpourings to cross an ill-defined line into journalistic legitimacy but the vast majority of bloggers do not. Some are neither chocolate cake nor bran but a mix of malevolence, prejudice and discharge from the bowels.
We don’t need to reinvent the wheel to determine which bloggers should be entitled to the shield and which should not. We need only apply the legal principle set out by American jurist Wesley Newcomb Hohfeld a century ago. His analysis of rights stated that it was a correlative concept and should always be matched by a duty. In this case, anyone claiming the right to protection against revealing sources should accept a duty to be accountable for what they publish.
In a formal sense that requires a willingness to adhere to certain standards and to face a form of censure when those standards are breached. In practical terms, it means signing up to a body such as a press council – or, in New Zealand, the Online Media Standards Authority – that has a code of conduct and a process for handling complaints. The New Zealand Law Commission saw this as the right of passage when it considered media regulation last year.
Bloggers cannot expect to be regarded as the same element – however mercurial – as professionals in the mainstream media if their mantra is “no care, no responsibility and bugger the system”.
Dr Gavin Ellis is an Auckland media researcher and former editor-in-chief of the New Zealand Herald.
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