Life of Andrew

The Whale Oil court case, where blogger Cameron Slater was charged with breaching suppression orders preventing the publication of identifying details of various people, has come to its inevitable conclusion. Judge Harvey convicted Slater on 8 of the 9 charges and fined him nearly $8000. The whole judgement has been posted on Kiwiblog, and it is an interesting read.

Mr. Slater has strong opinions on name suppression, some of which sound reasonable to me. Celebrities have been known to get permanent suppression when perhaps an unknown person would not. There are arguments for and against such occurrences, but I think the courts should err on the side of the public’s right to know what is going on. Certainly the vast majority of celebrity suppression orders should be lifted if the defendant is actually convicted.

On the other hand, Whale Oil has constantly railed against suppression in cases involving sexual abuse. It seems to me that in these cases, suppression quite sensibly protects the complainants as well as the accused. At least one of the cases involved sexual abuse of minors, a non-publication order around the facts of the case allows the police to do their job without unhelpful hysteria.

My legal experience involves watching a couple of episodes of Ally McBeal, but the judgement touches on a number of points that affect blogs and other websites in this country. As somebody with a website, I have been uncertain about how the law applies – this judgement addresses this clearly.

Paragraph 19 specifically states that posts to the Whale Oil site are bound by NZ law even though the servers are physically located overseas. The description of the website “coming to the user” instead of the “user going to the site” seems sensible, but more interesting is the last sentence which states that Slater performed the act of publication in NZ by uploading the posts from this country (cf [76]). This has implications for everyone with a web site in this country.

Part of Mr Slater’s defence rested on the fact that one of the names was not published in a recognised language of this country, but instead was represented by a pictograph that had to be sounded out phonetically. This is pretty weak, and the Judge thought so too, noting in passing that

[139]…The use of phonetically coded information (which is how the pictogram resolves the name) is not unknown to Mr. Slater. I venture to suggest that the words “Whaleoil Beef Hooked” on the “masthead” of his homepage provides an example.

I can’t believe I didn’t notice that myself – it is a sad day when you need a district judge to explain a joke to you.

Paragraph 82 has Judge Harvey musing on whether merely linking to page containing suppressed details might constitute publication. This point does not come up in Police vs. Slater but, reading between the lines, I think the judge probably thinks the hyperlinks can be considered publication in some circumstances. I think in future this question is going to come down to intent. At a philosophical level publication is the act of getting information into the brains of the audience members. Whether this is done through a pictogram, or wordplay, or a suggestion that you might like to click on a link doesn’t matter. If you intended the information to be imparted, you helped publish it even if you didn’t convey the information yourself.

Judge Harvey goes to considerable length to define what a blog is, what they are typically used for (“[46] …opinion (which may be of considerable strength and sometimes of pungent articulation)…” – lol), and how the mechanisms of the blogging software present the articles to the reader. This is mainly because one of his findings hinges on the fact that Mr. Slater posted hints and clues to the identity of a subject of a suppression order over several blog posts. Although no one post could be said to breach the order, regular readers would be in no doubt what the author was getting at. Judge Harvey specifically mentions that the format of a typical blog sets it apart from a daily newspaper, where previous articles on a subject are not immediately visible down the page.

(As an aside, I enjoyed reading the judge’s explanations of various internet terms:

[30] Facebook is a well known social networking website where individuals or organisations may create a “page” and post information (written, audio or visual) to that page and share that information with “friends”.

- fantastic use of sarcastic-quotes around the word “friends” there.)

The penalty of almost $8000 seems a little high to me, but I guess the courts take a dim view of people violating their explicit orders. I doubt it is enough to stop Mr Slater from continuing his blog, which is as it should be. The internet provides great freedom to publish information on any topic to the benefit of all, but there are limits and the courts do have power over web pages as well as people.