Media
March 13, 2019

Whaleoil blogs not news and breach Privacy Act

In an important New Zealand privacy decision, Cameron Slater, founder of the controversial right wing blog site Whaleoil, has been found to have repeatedly breached the Privacy Act by disclosing personal information.

Mr Slater was also ordered to pay significant reparation (in the New Zealand privacy context) of $70,000.Mr Slater received a significant amount of, illegally obtained, personal information about a Mr Matt Blomfield. Mr Slater later widely disseminated Mr Blomfield's personal information in what was described as a sensationalist campaign against Mr Blomfield. The campaign included calling Mr Blomfield, amongst other things, a pathological liar and a psychopath who loved extortion.

The Privacy Act sets out that an "agency" must treat personal information in accordance with New Zealand's information privacy principles. One privacy principle requires non-disclose of personal information unless that disclosure falls within certain express exceptions. Mr Slater's disclosures did not fall within an exception, so he claimed he was not an "agency" because as a blogger, he was a news medium undertaking news activities, and therefore didn't fall within the definition of an agency.

The Human Rights Tribunal carefully considered New Zealand's privacy statutory regime, including the purpose of the news exception, Mr Slater's specific disclosures and the broader context of his actions.

The Tribunal acknowledged there was a strong public interest in protecting the core functions of the press. It also reaffirmed that blogs and bloggers can be considered news media. However, in what will not come as a shock to anyone familiar with Whaleoil, only one blog post was considered to be actual news.

The Tribunal found the majority of Mr Slater's blogs/disclosures were not news. The Tribunal's dismay was palpable, with it stating in its decision "On no sensible construction can this blog be described as ... news, observations on news or current affairs."

The Tribunal made various injunctive orders: requiring Mr Slater to stop any further interference with Mr Blomfield's privacy; and while traversing that it is nigh on impossible to put the genie back in the bottle, made mandatory injunctions requiring Mr Slater to remove and destroy all Mr Blomfield's personal information within his control.

Perhaps the most interesting remedy was the fine, which was large in the New Zealand privacy context. The Tribunal awarded Mr Blomfield $70,000 as compensation for the severe humiliation, loss of dignity and injury to feelings suffered by Mr Blomfield. While acknowledging the severity of the impacts on Mr Blomfield, the Tribunal found that Mr Slater's actions were towards the lower end of the highest banding as set out in the seminal Hammond decision.

Practically, it will be interesting to see if Mr Blomfield actually sees any compensation. Mr Slater has very recently indicated he will seek to bankrupt himself, apparently at least in part because of the number of ongoing proceedings, including several defamation claims, against him.

$70k

The case vividly illustrates the information and power asymmetries which exist in cyberspace. Mr Slater ran the Whale Oil blog site, wrote the blogs, decided what personal information from the hard drive was to be cherry-picked and also encouraged user comments about Mr Blomfield.

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