NZ High Court Decides Shield Law Protection Can Extend to Bloggers

In Slater v Blomfield [2014] NZHC 2221 (12 September 2014) Justice Asher of the New Zealand High Court is reported to have decided that bloggers can be legally defined as a journalist and that their blogs can be described as journalism, regardless of whether their writing is carried out for a mainstream media outlet or indeed for a lesser know media source.

The decision is being reported as particularly important because it affects who the courts can grant certain protections to. The issue in the Slater case, being whether he could call himself a journalist and whether his website could be considered news media and so be entitled to claim the protection of shield law in a defamation matter.

Facts in the Slater Case

The Slater case arose from an earlier District Court defamation action where the blogger was sued by Bloomfield, a businessman and company director.

The claim against Slater was that he had defamed Bloomfield by way of items posted to Slater's often controversial blog. The posted items involving allegations including theft, fraud, bribery, drug dealing and pornography. In the District Court the judge had found that Slater was not a journalist and his blog was not news media. Because of this finding Slater could not claim the privilege of not revealing their sources to which "journalists" are entitled.

The main legislative provision arising for consideration in the Slater case was section 68 of the Evidence Act 2006 (NZ) which deals with confidentiality and the protection of journalist's sources. Section 68(5) provides the following two definitions:

The question of who falls within the words "a person who in the normal course of that person’s work" and "a medium for the dissemination to the public or a section of the public of news" were at the centre of the Slater case.

Appeal to the New Zealand High Court

In the appeal it was argued that there was no need to be a "massive corporate" to come within the meaning of "news medium". Slater also claiming that his blogging activities had broken several stories and that he dealt with informants providing "confidential information on a daily basis".

As The Conversation reports Justice Asher agreed, stating that:

Justice Asher considered that Slater was reporting genuine news information of interest covering a range of subjects and that while open to criticisms for its style and method his blog was not of "such low quality" that it was not reporting news.

However, while the NZ High Court was willing to accord Slater the right to be treated as a journalist, it in fact decided to use its discretion not to allow Slater to rely on the privilege/protection the section 68 provides as it would be able to do in the case of any journalist. As The Conversation reports:

Relevance to Australia

The key relevance to Australia as reported by The Conversation is that many of the Shield laws applying in Australia are still new (see MEAA Calls for National Shield Laws), and have yet to test their own definitions of who is covered or excluded. For example, New South Wales and Western Australia's narrower definitions define a journalists as someone “engaged in the profession or occupation of journalism”.

Relevant to Australia is also the question of : Why has the matter increased in importance? The answer being, as various inquiries have found, that the Internet and the various new ways it provides to report and provide news have created the necessity of deliberating on the question ‘who are the news media?' at the social and certainly, the legal level.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.

• Are bloggers ‘journalists’? New Zealand’s High Court says yes (The Conversation - 15 September 2014)
• The Blomfield v Slater Judgment – What Does it Mean for Your Average Blogger? (Erudite Blog - 13 September 2014)
• Slater v Blomfield [2014] NZHC 2221 (12 September 2014) (Scrib)
• Evidence Act 2006 (NZ) Section 68 (NZ Legislation website)