The message has been laid down strong and clear for bloggers - “Blogs are no different than other forms of mainstream media” and will be subject to the same laws. These were the words of Judge Harvey in a recent District Court case where blogger Cameron Slater was charged with breaching name suppression orders through posting blogs on his popular “Whaleoil” blog site. Judge Harvey declined to delve into the merits of name suppression orders in the 21st century and instead focused on clarifying the more novel issues in the case surrounding blogging and the law. The decision is a welcome addition to the growing number of cases that are attempting to tackle the applicability of existing laws to the internet age and has proved to be a warning for bloggers that they are not immune to the law.
Cameron Slater was alleged to have breached ten name suppression orders through posting a number of articles on the Whaleoil site in which he named and/or contained enough particulars leading to the identity of certain persons who were the subject of a non-publication order. Mr Slater’s cunning attempts to get around the name suppression rule included conveying the information in the form of a pictogram, which, when interpreted phonetically revealed the suppressed name. This was not tolerated by Judge Harvey who found that the accompanying aids for decoding such messages nonetheless constituted a breach of sections 139 and 140 of the Criminal Justice Act 1985. Mr Slater was convicted on nine of the ten charges and fined $8,000 for his actions.
Most of Mr Slater’s arguments in defending the charges revolved around the interpretation of the publication prohibition in section 140, arguing that the definitions within the Criminal Justice Act could not apply to blogs and must be limited to traditional news media. However, Judge Harvey was very mindful that the case should be construed as one in which existing law should be applied “in the light of changing technologies” and found no problem doing this in respect of the provisions of the Criminal Justice Act. Arguments put forward that blogging was somehow in a different realm of communication to that of the traditional news media were rejected outright by Judge Harvey. He strongly affirmed that “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 ”.
Judge Harvey dealt with the coded information issue in a similar tone. Mr Slater had posted hints and clues to the identities of the subjects of certain non-publication orders over several blog posts. Each individual publication was not breaching any non publication order by itself, but put together, regular readers would be able to figure out who Mr Slater was pointing to. Judge Harvey went into significant detail about what a blog is and how the blogging forum conveys information to its readers. He commented that blogs are more a continuum of comments and therefore posts cannot be treated as stand alone since “a particular posting or item may start on one day but may continue and develop over a period of time”. In this sense, he differentiated it from a daily newspaper where previous articles on a subject are not immediately visible down the page. By comparison, blogs made it clear to readers that the names related to other articles posted on the site.
Mr Slater further attempted to argue that since the Whaleoil site was hosted on a server in San Antonio, Texas, that there was no “publication” or relevant act in New Zealand and no crime under New Zealand law. In response, Judge Harvey cited what is now becoming a now versed rule in cases involving the internet, that “publication of information takes place where the material is downloaded and comprehended”. This meant that the Court did indeed have jurisdiction and this was cemented by evidence that Mr Slater actually posted material to the Whaleoil site from New Zealand thus performing an act necessary for the commission of an offence pursuant to section 7 of the Crimes Act 1961. This reasoning appears to be perfectly sound since the creation of the material and the posting of the material occurred in New Zealand and Mr Slater’s blog was available free of charge to internet users in New Zealand who did frequently access it. Just like bloggers can be liable for posting a defamatory comment on a blog, bloggers can also be liable for publishing a name that has been suppressed - both constitute a breach of the law.
The Judge also issued a strong warning for the owners of blog sites in that they can be held responsible for comments made on their blog by third parties. Although Mr Slater posted the articles on the site himself personally, the Judge was very clear that people who occupy the position of administrator, supervisor or moderator of blog sites “must hold some responsibility for the comments that are posted”. Again, the same principles apply in respect of defamation law where anybody who knowingly permits defamatory language to remain on a website under their control may be held liable for that material. In this sense, knowledge is the key differentiator since they can no longer rely upon the defence of innocent dissemination. This is important for blog operators who typically exercise some form of editorial discretion.
On the other hand, the Judge declined to probe further into two related questions which he left to deliberate over another day. The first being whether communicating suppressed details to an overseas blogger would be an offence under the Criminal Justice Act. The second, perhaps more important being the issue of whether liability can arise where a blog merely contains a link to the unlawful site. The issue surrounding liability for linking on the internet has been rendered to the back bench for a large number of internet cases in the defamation and copyright context. However, Judge Harvey did point towards the possibility that a blogger could be liable for posting a link to a website that breached non-publication orders. Again, this is not surprising given that there have been numerous cases overseas in the defamation and copyright context where people have been found liable for linking when accompanied with the appropriate knowledge and intent.
The case has also helped promote the wider debate about changing the law on name suppression so that it provides for a more open system. The Government has recently announced a number of changes to New Zealand’s name suppression laws, including the introduction of a new offence to address internet related activity. This new provision attempts to place liability on New Zealand-based internet service providers or content hosts who do not remove locally hosted suppressed information which they know is in breach of a non-publication order, and who fail to block access or remove it as soon as reasonably practicable. This adds to the growing list of suggestions on how to effectively regulate content on the internet in general. The similarly drafted section 92A of the Copyright Act was met with considerable opposition and debate generating questions about the level of knowledge required and what constitutes an internet service provider for the purposes of the Act. Simply removing the material that constitutes a breach of the non-publication order may appear to be easy enough, but it raises questions about information that is still readily available in caches, syndicated posts and social networking sites such as Facebook and Twitter even after the relevant material has been taken down. Given that the section 92 provision still appears be working its way through Parliament, we may expect similar delays with the new provisions concerning name suppression.
Judge Harvey does not allude to any new or “unfounded” principles in his decision. He simply states a number of principles that have developed in respect of the internet and applies these to our existing name suppression laws. If anything, the case shows how bloggers cannot claim to fall outside the parameters of the law and merely adds to the list of factors that they should be aware of when posting blogs or operating blog sites. The main lesson learnt from the case is that the freedom the internet provides is not unlimited and, like most other opportunities, it comes hand in hand with responsibilities. Some bloggers may find this hard to accept. However, we commend the view that the law “must be seen to be speaking and embrace and encompass new technologies and give recognition to them”. This case took one step (albeit a small one) closer in this direction.