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

September 14, 2010

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.


Whale-watching: Always take the weather (with you)

January 12, 2010

I really don’t know why Cameron Slater (aka Whaleoil) wants to take on the NZ legal system, but my advice to the balls out blogger comes in two parts:

  1. Shut-up
  2. Get a good lawyer

?The first part is easy. Cameron, no matter how much you believe in your anti-name suppression crusade, you are making things worse for yourself by tricks like this:

Police will investigate a blogger for revealing the identity of a former politician accused of an indecent assault on a 13-year-old girl.

Cameron Slater yesterday outed the former MP from the top of the South Island by naming him in a binary code on his blog.

[NZ Herald, 12.01.10]

In a post yesterday Whaleoil said the binary code doesn’t breach name suppression orders:

  1. Firstly I did not defy name sup­pres­sion laws. I cat­e­gor­i­cally deny I did any such thing. I sim­ply posted some Binary Code with a Base64 Title. None of which iden­ti­fies by name, address or occu­pa­tion “in any account or report relat­ing to any proceedings”
  2. The “binary code which, when con­verted”, does NOT reveals the iden­tity of a defendant.

The link in 2. is to a TV3 piece that claims the code does reveal details likely to identify someone subject to name suppression

When converted, the computer coding in today’s post reveals the name of a national figure charged with the indecent assault of a girl aged between 12 and 16.

3news.co.nz had the code analysed by one of our programmers, who confirmed it indeed does reveal the name of the accused and his former role.

Court documents show it is alleged the man touched the girl’s breasts and genitals on December 30, 2009.

[Blogger investigated

Mocks suppression laws]

I don’t know if the code does or doesn’t translate, but both Fairfax and TV3 are reporting that they cracked it.

There’s more coded text on Whaleoil’s blog and I sadly think that this cat&mouse game is a sign that something is wrong.

It seems clear to me that Mr Slater needs some solid and effective legal advice. Maybe he’s getting it and he knows what he’s doing. Or it’s Don Quixote territory.

I’m also not sure Cameron is all that clear about his own motives. He seems naively surprised that his actions have attracted police and media attention.

Slater said he had received many supportive messages from victims of sexual abuse, saying they wished they were able to name their abusers.

And he said he did not name the former politician to attract publicity.

“People say that I’m publicity-seeking but I’m not,” Slater said.

“I didn’t seek for the police to charge me and I didn’t seek for you guys to publish about it.”

[NZ Herald, 12.01.10]

I don’t know what he expected then.  Of course there’s interest. After Cameron’s 1st legal outing last week, any further development was always going to get attention.

The root cause of this binary charade is that Cameron Slater doesn’t like the legal niceties that allow some defendants and convicted criminals to have their identity suppressed by the courts. He has repeatedly said so on his blog. This recent example pretty much sums up Whaleoil’s position:

All the hush-hush that comes with name sup­pres­sion in cases like this [sexual assault of a minor] is sup­posed to be for the ben­e­fit of the vic­tim. the thing is no-one ever asks a vic­tim what they think about it usu­ally because they are too young at the time. This allows the kiddy-fiddlers to get way with it for so long.

Right now one of the cases that I am alleged to have named both the vic­tim and the accused (”The Olympian”) and the case of the “Come­dian”, both of these fel­lows have been ordered to stay away from the com­plainant and in one case ordered to stay away from young chil­dren. The ex-MP with name sup­pres­sion is in the same boat. The thing is this. If we can’t be allowed to know who it is that should stay away from var­i­ous sit­u­a­tions or peo­ple then how can they be reported for breach­ing the court instruc­tion because we aren’t allowed to know who they are in the first place. There­fore we run a real risk of there being more vic­tims, espe­cially as they are all out on bail. If they were known then they would effec­tively be under house arrest as they sure as hell wouldn’t show their faces anywhere.

[Gotcha 12/01/10]

There might seem some logic here, but it is fatally flawed. In these cases, there is an accused and these person’s have a right to the presumption of innocence until the legal system says otherwise. I think the cops have got it right on this one.

“Clearly it attacks the very heart of our criminal justice system in a number of ways; that a person is entitled to presumption of innocence until the opposite is proven, the right to a fair trial, and in this case the breach of that order has the potential to identify the victim – the very reason the order was imposed.”

Mr Winter said he would be liaising with police in Auckland over the previous breaches as well as speaking to a crown solicitor and the judge who issued the suppression order.

“He’s certainly testing the boundaries of the law which doesn’t adequately cover the use or abuse of the internet, so there’s grey areas in both domestic and international law,” he said.

[Nelson Bays police area commander Detective Inspector John Winter @ Stuff.co.nz]

When media outlets get involved in trying cases before the courts they overstep the mark. We call it “trial by media”.

It is not up to Cameron Slater, the Weekend Truth, or anyone else ; either private individual, or media outlet, to prejudge the issues in these cases.

I wrote last week on the emotional pull of vigilantism in sex cases, we clearly see that here.

Bloggers and tabloid media want to be judge, jury and executioner.

I have more to say on this but I’m painfully pecking with one hand due to a large cast on my left arm. More later.


Revenge, name suppression and celebrity justice

January 7, 2010

The Whaleoil saga [background here and here] has led me to consider why the issue of name suppression for so-called celebrities (or more generally people with an already existing public profile/reputation) gets people so worked up.

There was a shared feeling of outrage when a semi-famous Kiwi “entertainer” was allowed permanent name suppression after pleading guilty to the sexual assault of a young woman and there were some demented folk exhibiting very vigilante-like tendencies when Whaleoil outed*** a former Kiwi Olympian previously convicted of a serious crime who was before the courts on further serious charges.

Now Whaleoil himself is before the courts charged with several counts of breaching suppression orders and identifying people subject to a name suppression order. But why is he taking on this crusade?

I came across some answers in a journal article from Crime, Media, Culture, which is published by Sage. The piece, “Naming, shaming and criminal justice: Mass-mediated humiliation as entertainment and punishment”, was written by Steven Kohm from the University of Winnipeg. I can’t link to the article from here as that would breach copyright and the fair access policy of AUT library. However, you can get links from Google Scholar and elsewhere.

The key arguments are as follows:

Shame is a dubious method of applying “justice” to criminals and since the advent of reality TV and forensic porn as entertainment, humiliation as a tool of social control has been amplified through the mass media – and more recently via social media – as a method of both punishment and as a form of voyeuristic and participatory entertainment.

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