Conceptually Mr Slater, you’re done like a large oily whale

I have some personal sympathy for WhaleOil, he’s a fellow blogger and despite his sometimes wild and blunt accusations, he is doing what he believes in. I disagree profoundly with his right-wing politics, but I hate to see someone prosecuted for their opinions.

Having said that, I’m not at all surprised that Cameron Slater was today found guilty on eight charges of breaching suppression orders. He knows he did it; we know he did it and now Judge David Harvey in the Auckland District Court has found the police case proven and fined Cameron just under $8000.

He might call it a slap on the wrist with a wet bus ticket, but it’s nonetheless a hefty whack of cash.

While the guilty verdict is not surprising, what might be more curious is the reasoning and the implications in Judge Harvey’s decision.

For now I want to draw your attention to this paragraph:

Conceptually a blog is no different from any other form of mass media communication especially since it involves the internet which anyone who has an internet connection is able to access. It fulfils the concept of publishing and publication. It makes information available to a wider audience. That is why people blog. Although a blog may be no more than a personal diary or may contain expressions of opinion it is no different from a private citizen who gives an account together with his or her opinion of a court case including the name of a person who is subject to an order under s. 140 and posts it into private letterboxes or pastes it up on a billboard for all to see. It is publication. It is made to a wide audience. It goes beyond a private conversation over the telephone or, a coffee table or at a dinner party. It is the mass media element that accompanies the internet that places the blog within the same conceptual framework as any other form of mass media publication. Even if the blog were to be accessible by means of subscription with a login and a password it could well in my view be subject to the same constraints.

The idea that a blog is ‘conceptually’ ‘no different’ from ‘any other form of mass media communication’ is interesting and probably true on some levels. But on other, fundamental levels, it is very much ‘old media’ thinking.

Blogs are definitely not the same conceptually as the mass media – at least that is the view of the digital utopians and spruikers. It is certainly a live debate and it’s not settled yet.

Blogs were established as an alternative and counter to what many saw as the conservatism and ideological straight jacket that envelops the mainstream news system; so one could argue that conceptually they are very different beasts.

Take this alternative conception as one example. It’s from New York professor of media Clay Shirky. He’s a spruiker and I don’t always agree with him, but this is a good statement of the differences in conceptualising of blogs and other user-generated media:

[The] ability to speak publicly and to pool our capabilities is so different from what we’re used to that we have to rethink the basic concept of meda: its not just something we consume, it’s something we use.. As a result, many of our previously stable concepts about media are now coming unglued.

Shirky, C. (2010). Cognitive Surplus: Creativity and generosity in a connected age. New York: The Penguin Press. Clay‘s blogs

I know Cameron Slater sees himself on the front lines of those ungluing these previously stable concepts, but I’m not sure he’s on the right track here.

The key element in today’s decision is that for all intents and purposes blogs and bloggers are subject to the same legal constraints as the MSM – at least when it comes to issues such as what’s in the Crimes Act. Name suppression is covered by s139 and s140 of the Act and in Cameron’s case have been held to be absolutely applicable.

I’m not sure any other decision was really possible in this case. If you want to act like the media and have your say then I suppose to some degree you have to play by the rules. The judgment probably puts a little more pressure on the government to respond to the Law Commission report on regulation of the Internet, but it is not IMHO really out of the park in terms of reasonableness (based on what the law actually  is).

Judge Harvey obviously takes his role very seriously; he’s delivered a 70 page judgment that is going to take some careful analysis over the next few days and weeks.

You can view the judgment Police v Slater on Scribd

It is probably too early to tell, but today’s judgment could perhaps have a chilling effect on whatever passes for freedom of expression in the blogosphere; or it could just add the the vast piles of paper and PDFs in circulation.

There’s a good summary of the judge’s comments in court today on Stuff.co.nz and a later story from the NZ Herald which suggests Slater may appeal on the advice of his lawyer.

This line from Judge Harvey is also significant, in relation to Slater’s claim that the server for his blog is in the USA:

publication of information takes place where the material is downloaded and comprehended

This seems straightforward and it is consistent with the landmark case in this area; the famous Joe Guttnick decision in the Victorian Supreme Court and on appeal to the Australian High Court. In fact, Judge Harvey referred directly to this judgment in his ruling. He went on to write:

The reality of the situation therefore is that Mr Slater’s blog is available free of charge to internet users in New Zealand who may and do access it from time to time and therefore publication takes place in New Zealand.

Fair cop, I’d say…unfortunately for Mr Slater. He may appeal, but that could be costly too.

Slater’s defence seemed to rely on semantics to some degree, but when it comes down to a legal argument based on dictionary definitions (no matter how varied), it’s not much of an argument. In this case a report or an account was held to be any form or narrative and commentary or opinion, not necessarily a direct report of events in court.

Without wishing to engage in a battle of the Dictionaries, the online version of the authoritative Oxford English Dictionary gives the noun account as its 16th meaning. A particular statement or narrative of an event or thing; a relation, report, or description and report.

The erudite Judge Harvey seems to have one the battle of the dictionaries, after all, it is his courtroom: No trumping the judge!

The Judge also made an interesting aside in relation to the Bill of Rights and limitations to the freedom of expression. It should come as no surprise that there are limits to freedom of expression and that not breaching suppression orders is one of them:

My conclusion is that the limitation is indeed justified. It is quite clear both from a reading of the Bill of Rights Act, the authorities that have been cited and indeed the underlying provisions of the International Convention on Civil and Political rights that the rights are not absolute and are subject to restrictions based on other rights which must be taken into account.

Yep, that’s what the legal system’s for. It’s a system and therefore it has checks and balances and always a loophole that allows the system to protect itself from unreasonable challenges based on vague documents and sentiments like a Bill of Rights.

Finally, what about the idea that Whaleoil is a crusader for the rights of victims? This notion is based on the premise that the suppression laws to which he objects are themselves misguided or wrong. According to this logic, Cameron Slater is a crusader using civil disobedience against an unjust law (see comment from Chris Gale below).

But, are the suppression laws actually unjust? Do they really ‘protect’ criminals? Well no, they don’t. Under s139 suppression is related to the protection of victims of sexual crimes, there are other provisions under s140 about hardship and justice.

The idea that the laws protect criminals only exists within the context of punishment as revenge and is a form of vigilantism that is misguided and ultimately dangerous. The ‘stupidity of the horde’ is one way of looking at it. It is populist and dangerous and ultimately a threat to democracy, not a path to righteous peoples’ power.

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2 Responses to Conceptually Mr Slater, you’re done like a large oily whale

  1. Chris Gale says:

    I think Cam is following a tradition of civil disobedience. He is deliberately breaking a law which he sees as unjust.

    The problem is Harvey’s precedent. If you write a theological blog discussing Calvin’s ideas of salvation, you will deeply offend other religions. In Indonesia, you could be charged with blasphemy. Publication is now international. Readership is diffuse.

    Many of us have servers in the US: they are cheap and reliable, The implications of the Australian ruling are chilling to any discussion of politics, religion (or to be ridiculous) enjoyment of wine (haram to some, y’know).

    I think we need to pressure the judiciary and law to move to a climate of openness. Shame is a useful inhibitor of behaviour.

    I think the risk of psychological harm have to be balanced against the real loss of freedom this would have if Cam is now called to account by every tinpot theocracy and dictatorship because he has offended their local laws.

    [Chris, which bit of Harvey's judgment are you talking about as precedent? I have read through it once, but didn't notice anything too alarming there. I'll take another look if you can point me at something.
    EM]

  2. Adam says:

    “Blogs were established as an alternative and counter to what many saw as the conservatism and ideological straight jacket that envelops the mainstream news system; so one could argue that conceptually they are very different beasts.”

    I don’t see this as a fundamental difference between “New” and “Old” Media. As I see it the main difference between the two is cost and accessibility.

    To operate a small blog with modest traffic typically carries only the cost of the blogger’s time, and it is accessible anywhere where there is an open internet connection. This differs markedly from print or traditional broadcast media, which requires specialist equipment, consumables, and a distribution network; whereas the distribution is basically built-in on the internet, and usually free (unless server demand is high enough to require advertising revenue).

    Don’t interpret this is as a rose tinted view of conservative media btw – but “Old Media” will simply embrace the new (it’s already happening), and there will still be a small number of highly-read commentators – some private bloggers will do well and will go commercial (such as icanhazcheesburger). But most blogs will still have to remain content with modest readership.

    [EM: Cheers Adam, good call. I wasn't suggesting that political or ideological motivations are the only reason, but still a strong one. Atton & Hamilton's Alternative Media makes a point that 'alternative' has socio-cultural and political overtones. In fact they explicitly see alternative as 'anti-capitalist'. A big call in my view, but there is some ideological & cultural politics in blogging as well as the cost/access angle.]

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