Content Regulation / Censorship, Defamation / Reputation, National Security, Political Expression, Press Freedom
Le Ministère Public v. Uwimana Nkusi
In Progress Mixed Outcome
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A blogger can be considered a journalist for purposes of New Zealand’s Evidence Act, which permits journalists not to disclose their sources. However, this protection can be overcome by a weighing of the public interest against the adverse effects on the informants and the right freedom of the press.
Cameron Slater was the administrator for the blog “Whale Oil,” and Matthew Blomfield was a provider of marketing service to the Hells Pizza restaurant chain until he went bankrupt and was prohibited from being the director of a company. Blomfield, and Hells Pizza, also held an affiliation with the charity “KidsCan.” Slater wrote 13 articles on his blog that allegedly contained defamatory statements pertaining to Blomfield and his association with KidsCan. Slater alleged truth as a defense, stating that he had received a hard drive that provided him access to computer files previously owned by Blomfield.
Blomfield brought the case before the Manukau District Court, alleging defamation and seeking the removal of the defamatory material, as well as compensatory and punitive damages. Slater raised the defense of truth and honest opinion. Blomfield then filed discovery requests, asking for all email correspondence between Slater and several contacts and for the identity of the person who provided Slater with the hard drive containing the personal information about Blomfield. Slater refused to comply, claiming this material was privileged under Section 68 of the Evidence Act.
The Manukau District Court held that the Evidence Act did not protect Slater from disclosing because he was not a journalist. The Court further held that Slater’s defense of truth and honest opinion had no basis.
The High Court of New Zealand first examined Section 68 of the Evidence Act, which provides a qualified privilege for journalists not to disclose their sources and is commonly known as the “newspaper rule.” The newspaper rule is generally applicable, absent an exceptional circumstance, and applies not just to newspapers, but also to all journalists. However, the Court indicated that someone who is not a journalist could not invoke the protections of this rule just because the publication is in a news medium. The Court noted four requirements to invoke the protections of Section 68: “(a) there has been a promise not to disclose the informant’s identity given by a journalist to that informant; (b) the medium used by the journalist disseminates the information to the public or a section of the public; (c) what is disseminated is news and observations on news; and (d) the person claiming to be a journalist is a person who, in the normal course of that person’s work, might be given information by informants in the expectation that it will be published in a news medium.”
Next, the Court turned to the question of when the relevant time period is to consider a person a journalist, because someone can start out not as a journalist and then become one after a certain amount of publishing. The Court looked at the time period when the blog posts were written, 2012, as the relevant time period. The Court also had to determine whether Slater had made any promises not to disclose the identity of the people who had provided him with the information. The Court ruled that it was likely that Slater had made such a promise.
The Court then had to determine whether the blog, “Whale Oil,” was a news medium. The Court held that just because a website is a blog does not mean that it cannot be considered a news medium. Indeed, “a blogger who regularly disseminates news to a significant body of the public can be a journalist.” The Court examined Slater’s blog and concluded that his posts contained genuine news information and had a large reader basis and, therefore, the blog could be considered a news medium.
The next question for the Court was whether Slater was receiving information in the normal course of his work. In New Zealand, this does not require that Slater be employed as a journalist, but requires a regular endeavor over a period of time. To determine whether the blog posts were in the normal course of Slater’s work, the Court examined several factors: “(a) whether the receiving and disseminating of news through a news medium was regular; (b) whether it involved significant time on a frequent basis; (c) whether there was revenue derived from the blog site; and (d) whether it involved the application of journalistic skill.” The Court ruled that Slater met all these requirements and devoted enough of his time to the blog to make it the equivalent of a part time job as a journalist.
Then, Court turned to the issue of whether Slater’s sources had already been disclosed and found that some of the sources had been, but that this did not preclude the other sources from the protection of the privilege. In particular, the information pertaining to one informant, Marc Spring, must be disclosed even under this claim of privilege because his identity had already been disclosed. The only exception to this would be if Slater could claim protection under Rule 8.46 of the High Court Rules. This rule provides that if a defendant can prove that the words are of an honest opinion in a matter of public interest, no interrogatories as to the sources of the defendant’s information may be ordered, unless it is in the interest of justice. Here, the Court ruled that the interrogatories were necessary in the interest of justice because it would be unjust to require Blomfield to respond to the defense of honest opinion without being able to know the source of these statements.
Finally, the Court agreed with Blomfield that Section 68 of the Evidence Act should not apply to Slater. Here, the Court balanced the public interest in disclosure against the adverse effects on the protected sources and the right to freedom of the press. The Court found there is a public interest in disclosure; there would be no adverse impact on the informants (i.e., the possibility of a civil action) through disclosure; and there is no wider public interest because this is a private dispute and the sources obtained by Slater may have been obtained illegitimately.
Therefore, Slater must answer the interrogatories and the case will proceed.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In this case, the High Court of New Zealand provides a mixed outcome because, although the Court gives protection to bloggers as journalists for disclosure of sources if they meet certain requirements, it ruled that this protection can be over come if it is in the interest of justice and in the public interest.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
“[I]n a defamation claim against a newspaper an order would not be made by which the plaintiff might obtain discovery of the name of the person who had supplied to the newspaper the information complained of by the plaintiff.”
“Except to the extent specifically enacted in s 68, journalists are competent and compellable witnesses in the same way as any other witness. The protection from compellability is limited and specific. It applies only where a journalist has promised an informant not to disclose his or her identity. The protection is limited to exemption from the obligation to answer questions or produce documents that would disclose the identity of the informant or enable that identity to be discovered.”
“If a journalist has promised an informant not to disclose the informant’s identity, neither the journalist nor his or her employer is compellable in a civil or criminal proceeding to answer any question or produce any document that would disclose the identity of the informant or enable that identity to be discovered.”
“If, in a proceeding for defamation, the defendant pleads that the words or matters complained of are honest opinion on a matter of public interest or were published on a privileged occasion, no interrogatories as to the defendant’s sources of information or grounds of belief may be allowed unless the interrogatories are necessary in the interests of justice.”
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