Whale(b)oil Slater hooked?

I have no beef with Whaleoil, but I am interested in his ongoing court case.

Blogger Cameron Slater (aka Whaleoil) has got himself into a bit of legal trouble and inadvertently made himself bottomfeeder food for the “repeaters” of the “Lame Stream” media that he so detests.

Even so, one gets the impression that Whaleoil is actually enjoying his 15 minutes of notoriety.

My impres­sion of the court sys­tem for peo­ple on first appear­ance is that it was about as organ­ised as a free for all piss up at a South Auck­land pub on Fri­day night.

Then I went down stairs and was met by about 30 repeaters and cam­era guys and photographers.

Here is the results of all that.

NZ Her­ald

New­stalkZB

TV3

TVNZ

Stuff (Video at stuff)

Eat that Far­rar, Every news chan­nel is cov­ered includ­ing NZPA which I don’t have access to. I don’t think this is going the way it was sup­posed to.

His brief appearance on a handful of charges in Auckland today (Tuesday 5 Jan) was ironically in courtroom adjacent to that in which yet another entertainer (loosely-defined) was remanded on child sex charges.

Although I can’t help won­der­ing if it is pure coin­ci­dence that I appeared the very same day as the “Come­dian” also appeared. Part of me thinks that was a stitch up.  [Court @ gotcha…]

So far Mr Slater has repeatedly said he will defend the charges that he breached a number of suppression orders and published information that might tend to identify a person with name suppression. The charges refer to two cases: one that was recently before the courts involving an “entertainer” who successfully argued for name suppression on the grounds that his earning capacity might be affected adversely if he was named. The second case is current and involves a former New Zealand Olympian who is facing serious charges of assault and sexual assault.

In both cases Whaleoil identified the men who have name suppression using a series of pictorial images to stand in for their names. In the case of the entertainer (who copped a guilty plea and got off with a warning) even PM John Key claims to know the name; so there seems little point in continuing the charade that the name’s suppressed. However, it is permanently suppressed, which is lucky for the guy, but not so lucky for his victim.

In the second case, as I understand it, the pictogram was a little harder to decipher. However, on the face of it, an offence may have occurred. If you look at the relevant sections of the law, it seems fairly clear cut.

As I read it, in cases involving a victim of sexual assault, publication of details that might identify the person – even the name of the accused – can be suppressed. In the entertainer case this was not the reason, but in the ongoing case of the Olympian it appears to be the reason for suppression.

Slater’s defence – at least in the absence of advice from a lawyer – is basically on two grounds. First he didn’t do it – that is the pictograms did not amount to a breach because he didn’t actually print the words; second, his blog is hosted offshore and therefore not subject to New Zealand laws.

The real argument, of course, is that Cameron’s actions is posting the cryptic clues and his intention (at this stage) to plead ‘not guilty’ is a protest against the very notion (or at least the over-use) of suppression orders in the New Zealand legal system.

Speaking outside court, Mr Slater says the postings were a protest against New Zealand’s suppression laws.

“If you look at the United States, they don’t have suppression. In the United Kingdom, name suppression’s very rare. Transparency of the court system is paramount.

“What we’ve got here is kind of like creeping death – you get name suppression in this case, and then name suppression in that case – and then it’s always lowering the bar so that almost anybody who has got a profile or a reputation to protect can get name suppression.” [RNZ]

Yeah, Slater may have a point here, but if it was me I don’t think I’d want to be the martyr who is used as a legal battering ram.

The other consideration of course is the Law Commission’s report Suppressing Names and Evidence – released in November last year – arguing for an overhaul of the suppression laws.

Suppressing Names and Evidence – NZLC R 109

Published 16 Nov 2009

The Commission’s latest report, reviewing the law relating to the suppression of information in criminal cases, has been tabled in Parliament. The report recommends that sections 138 – 141 of the Criminal Justice Act 1985 be repealed, and replaced with a new statutory framework. In particular the Commission recommends that there should be a clearer statutory test for name suppression, with grounds specified in the legislation.
Whole document (PDF, 1,485 KB) | view as html

And, it seems, Mr Slater may have some unlikely supporters in his corner in the guise of the deadbeat repeater press and the Lame Stream media he so despises. In an editorial published a couple of days after the Law Commission report was released, the New Zealand Herald called for some changes to make suppression harder for celebrities (so-called).

The Law Commission recognises that a major problem with the current application of name suppression is inconsistency. Too often, lower courts fail to apply the Court of Appeal’s standards, which presume openness and public entitlement.

Indeed, some judges seem to think position and privilege are grounds for suppression. Such thinking has led to the undermining of the Court of Appeal’s guidelines. If these were applied consistently, suppression would become a rarity and the public would surely be more willing to accept the device.

[Let’s preserve and protect open justice, NZH editorial 19 Nov 2009]

However, Whaleoil is unlikely to get any help from media law academic Steven Price who wrote in support of suppression orders on his Law Journal blog last November.

It’s hard to escape two impressions:

1. The media don’t really understand how the laws of name suppression and contempt work; and

2. They routinely beat up name suppression stories to paint the suppressions as unjustified.

If they were simply reporting the issue, you’d think that they may have mentioned that the Law Commission found that suppression orders are imposed in about 1 percent of criminal cases. And that not all of them involve suppression of names (sometimes, it’s just evidence that’s suppressed). And that it includes suppressions imposed automatically to protect sex victims and child witnesses. And that it includes interim orders that lapse by trial time. (In fact, that’s probably the vast bulk of them – ie they’re not permanent suppression orders. Only about 700 a year are permanent). The Commission conveniently put that information in Chapter 1 of its report. [Fact Suppression…MLJ]

Still, 700 permanent name suppressions in a year does seem like quite a lot and how does this stack up against the notion of justice being seen to be done? I haven’t read the whole of the Law Commission report yet, but I’m ploughing through it and will make some comments in a couple of days. On the face of it, suppressing the name of the entertainer because his future earnings might be affected does seem like a case of celebrity favouritism.

A quick thought though, does name suppression work for celebrities and high profile defendants and should we be worried about this? I have been talking about the (theoretical) bus driver from Mangere who commits an offence with his penis coming into contact with the face of a 16 year-old girl while he’s drunk. What would happen to him?

It’s unlikely he would get name suppression and it’s almost certain he would go to jail. There’s more to the inequality of the law than name suppression.

However, one final observation about the Whaleoil case. I don’t know how it’s likely to go in court, I guess a lot will depend on how Mr Slater goes in finding a competent lawyer who is willing to defend him as he wasn’t impressed with the duty solicitors on offer at the Auckland district court today.

In the meantime, being the social media upstart that he is, Slater has started a wiki (self-editing) page for his supporters to help frame a defence. However, when I went to look for it today, it was gone.

Error 404 – Page Not Found

Sorry! but the page you requested has either been deleted or does not exist. [http://whaleoil.gotcha.co.nz/a-whale-of-a-case-wiki/]

I did find this tasty little exchange though on the comments thread for this Gotcha post.

A cut from Whale Oil's Gotcha blog

In case you can’t quite make it out, under “Get fucked anonymous coward”, Whaleoil has written “Watch the law get changed and watch me do it.”

Further down, he’s added: “Actually I doubt that the Police fully understand the Social media shit-storm that is about to be unleashed on them. If they wanted to set and example but keep it relatively quiet then they picked the wrong person.”

Wow, he does want to be a martyr! Perhaps harpooned on his own petard.

It will be an interesting test of the techno-legal time gap that exists between current law and blogosphere technology. I’m not sure though if it will lead to a “social media shit storm”. It has however enlivened a rather dull start to the new year.