Scoop Election 08: edited by Gordon Campbell

Gordon Campbell on asset sales, and the Cameron Slater case

December 3rd, 2013

Much of the criticism of the asset sales programme has focussed – quite justifiably – on how it will increase income inequality in this country, with all its social ills. Less evidently, the partial asset sales also doubles down on an earlier exercise in income inequality carried out by the Key government. As a Greens press release published yesterday on Scoop pointed out, the cost of National’s tax reductions to the top 10% of earners has exceeded the returns from the asset sales programme. The asset sales have not been about avoiding debt or paying for social spending on schools and hospitals. They’ve been about paying for the tax cuts to the wealthy – who were then able to use the excess to buy shares in state assets. As in:

Parliamentary Library and Green Party calculations show that, by the time of the 2014 election, the reduction of the top income tax rate for the top 10% of income earners will have cost over $4.5 billion. The asset sales programme produced only $3.9 billion worth of proceeds to the Crown to date, even before sales costs are deducted.

“National isn’t selling our assets to pay for schools and hospitals; they’re flogging them off to fill a hole left in the budget by the tax cuts that they gave the top 10%,” said Dr Norman.

“John Key’s assets sales are part of a money go round. The well-off got tax cuts from National, they then bought shares in National’s asset sales, and the sale proceeds are going towards covering the cost of those tax cuts.

Clearly, this kind of analysis is hitting home. How else to explain the extraordinary anti-Green, anti democratic, anti- asset sales referendum editorial in last Saturday’s NZ Herald. To get to its skewed conclusion – that the Greens have subverted the citizens initiated referendum (CIR) process – the Herald chose to ignore the crucial role of Grey Power (who sponsored and presented the petition) and the wide array of citizens groups that gathered the signatures. (Given the difficulty of getting the signatures required in the allocated time, every successful CIR effort has involved the mass mobilisation of support groups.) Normally this kind of bias would be business as usual for Herald readers who have learned to read around the peculiar obsessions of its editorial writers. On this occasion though, the biased, selective evaluation of an important political issue happens to have surfaced at the very same time as the ontological status of Cameron Slater and his WhaleOil blog have been under close examination. Is Slater a “journalist” – or at least a journalist as defined by the Evidence Act that is relevant to an ongoing libel case in which Slater is the defendant? In a wider sense – are bloggers to be regarded as journalists, are blogs to be regarded as news outlets, and who is to be entrusted with deciding which is which?

Some brief background is essential here. In a libel hearing into content published by Slater’s WhaleOil site (which happens to be the nation’s most widely-read blog) Judge Charles Blackie has ruled that Slater could not rely on a journalist’s normal rights to protect the identity of sources, as set out in the Evidence Act. How come? Because, the court said, blogging “is not a means for the dissemination to the public or a section of the public, of news and observation on news”. To back up that conclusion, Blackie cited a Law Commission report that described blogs as often “highly partisan” and “highly offensive and personally abusive”. Thanks to the Standard site, Blackie’s full judgement can be read here.

There are good reasons to dislike and despise Slater and his style of journalism – and Judge Blackie seemed thunderstruck that Slater writes and publishes stuff on his computer, all by himself – but the problems only begin to multiply when you start to decree who is or isn’t legitimately within the journalism club. The same Law Commission report had gone on to argue that regardless of any style and balance issues, bloggers do enhance free speech and a free press, and are entitled to media privileges. Slater is relying on the protection of sources’ conditions stated at Section 68 (1) of the Evidence Act. Touchingly, the Evidence Act goes on (at 68:5) to define “a journalist” but does so entirely in passive terms:

A journalist means a person who in the normal course of that person’s work may be given information by an informant in the expectation that the information may be published in a news medium.

Leaving aside the particulars of Slater’s case for a moment…is this really what we would want to call “journalism”? Namely, the printing of stuff that other people give to us? This peculiarly passive image of journalism omits the active, creative news-gathering role – and the conscious selection that every news outlet indulges in as to what items (among all the various bits of information “given by an informant”) that it chooses to print, what prominence it affords them etc. etc. Journalism never has been passive. Largely for “news as entertainment” reasons of commerce, the mainstream media is being remarkably un-passive in how it goes about this business. Increasingly, it is blurring the lines between passive reportage and overt commentary, and most noticeably in its coverage of political news and events. Slater may be no one’s ideal of a journalist – but to assume there is some clear, bright line between him and the rest of the blogging/journalism pack is self-delusory. Readers are adults. They can read around Slater’s agenda just as they can read around the Herald’s “bias.” Or mine. Fairness and balance are aspirational goals, not givens. Some try a bit harder to achieve them, that’s all.

The point I’m getting at is that the Evidence Act definition of a journalist is – and never was – an accurate one. To my mind, journalism has always had two dimensions: the gathering of information, and the evaluation of that information. Both are – or should be recognised to be – subjective procedures. What opened the door for blogging in the first place was the pretence that had developed within the mainstream media that its selection of information and its own evaluation was objective – when in reality, it was merely covert. Blogs not only made that process overt, but they widened the debate. Blogs gave voice to a depth of evaluation and a range of opinion ignored (and suppressed) by the mainstream news outlets. In a process that has been almost entirely healthy, blogs have made editorial stances overt and public. Here’s how I put is a while ago:

In reality, there are far more than Two Major Party sides to every story, and the job of journalism should begin – not end – after the views of National and Labour have been sought. By and large it has been the blogosphere that has taken up the evaluative task that the mainstream media has abandoned, or lacked the gumption to pursue. In my view, those tasks of Evaluative Journalism are as essential and as difficult, as anything done in the name of Objective Journalism, which is often a mechanical procedure. And a parasitical one, as often as not – highly dependent on those on whom it feeds, and careful to avoid incurring the displeasure of its hosts.

And here’s where Slater comes in, or should:

No, it does not mean that “anything goes” when it comes to the task of evaluation. The rules of fairness and accuracy still apply and if anything, are more to the fore. It is usually the “objective” journalism that tucks its half truths, deliberate exclusions and ideological premises carefully out of sight, before it comes to the table. By contrast on the blogosphere…you have to put the evidence on the page and make the process of evaluation as transparent as possible, if you’re going to win the readers’ trust. As David Foster Wallace once said, no writer today can any longer legitimately presume the audience-agreement that is really their rhetorical job to earn.

Basically, if you regard Evaluative Journalism as being as important – and no more subjective than – Objective Journalism – then you can’t draw differences in kind between Slater and the rest of the journalism tribe, only differences of degree. The difference between Good and Bad Journalism will continue to rest, as it always has done – on a subjective foundation, no matter how many journalism prizes an insecure profession dishes out to try and convince itself (and the public) otherwise. Readers of blogs will judge whether you have made the case adequately, and put the evidence (and the links) on the page. It is telling that even in their online editions the mainstream media rarely links to other evidence. The fiction of objective omniscience dies hard.

I’m not advocating a Defamer’s Charter where anything goes. Bloggers can still be sued. My point is that bloggers (and this includes Slater) should have the same right to protect their sources as the mainstream media, given that their role of disseminating and commenting on the news is no different, and given that even their alleged sins (bias, selective interpretation etc) are likewise quite similar. Whistle blowers surely, deserve the same protection on blogs as in the mainstream media. In any case….in the rare instances where libel cases ensue, the identity of sources will not usually be the only means available to bloggers (and to the court) to establish whether due care was taken in formulating and cross-checking the opinions in question.

Slater can be obnoxious, but many obnoxious sins of omission and commission are committed regularly in the name of journalism. His, at least, are overt and his readers should be well aware of his modus operandi by now. To treat him as the bad apple, as someone entirely beyond the pale and undeserving of the law’s protections seems vindictive and somewhat sanctimonious to me. The way to defeat Slater’s kind of journalism is to do the job better – not to rely on a flawed, hopelessly outmoded legal wording to do him in.

Footnote: the most comprehensive and honest attempt to deal with this issue has been Steven Price’s excellent commentary. It concludes:

Even if the worst happens for bloggers and none of them is allowed this privilege [to protect sources] I’m not sure the sky will fall. They will argue that this will create a huge chilling effect and their sources will dry up. The media also make this argument. But there’s very little evidence that it’s true. People have lots of reasons for talking to journalists and bloggers. Defamation cases are rare. Some journalists (and presumably bloggers) are prepared to go to jail for contempt rather than comply with a court order to name a source. So sources may well not be familiar with the law, and even if they are, they may be willing to run the risk. My prediction is that even if WhaleOil loses this case, it will pretty much be business as usual for most bloggers.

Even so, that conclusion is disturbing, and unduly optimistic. If bloggers are going to play the self-interest card, then having Slater succeed on appeal serves the interests of free speech far more than hoping his loss won’t affect anyone else and tossing him overboard.

END

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    1. 6 Responses to “Gordon Campbell on asset sales, and the Cameron Slater case”

    2. By TomYum on Dec 3, 2013 | Reply

      Is there a possible second issue, in that the physical source may be stolen property? Or a case of receiving stolen property, which is then used for gain?

      “Slater told the court a source gave him a hard drive belonging to Blomfield, which he used to write much of the material.”

      (http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11165604)

    3. By Gordon Campbell on Dec 3, 2013 | Reply

      @ TomYum
      Leaving aside the specifics of Slater’s case, the issue of “stolen” material can be debatable – since in whistle blower cases (or even with respect to The Hollow Men evidence) claims of ownership are routinely made, and it can be claimed that relevant material has been “stolen.” Usually the “public interest” and “truth” defences then kick in. (Malice is a slippery concept, and largely subjective.) After all, there is a sense in which all leaks involve “stolen” material, so the distinction often doesn’t get us very far.

    4. By dan on Dec 3, 2013 | Reply

      Given the good belly-laughs that are so often provided by the NZ Herald editorials, I’d really like to know who, exactly, the editor is. I mean, I know I can find out (Shayne Currie; had to google it), but all the other “op” pieces are at least shown with a name and a face, but the “editorials” are just put in as if they’ve dropped out of the sky.
      Or maybe that’s the point, to make them look like The Official Opinion Of Right-Thinking Folks.

    5. By Kevin McCready on Dec 4, 2013 | Reply

      Love your stuff but do you need to change your publication site? You deserve heaps more hits than Slater or the NZHerald (glad I decided to unsubscribe).

    6. By John Drinnan on Dec 7, 2013 | Reply

      Blackie used the phrase “defamation proceedings of this nature” indicating that he has an insight i not the claim that we may not. But you may be right. The Minister of Justice Judith Collins – who rejected the Law Commission notion of limited legal protection as a payoff for self regulation – probably agrees within your analysis that there is no need for intervention

    7. By Joe Blow on Dec 8, 2013 | Reply

      I am quite surprised that Judge Blackie has a warrant for the civil law jurisdiction. His background is mainly in the Navy:

      http://www.navy.mil.nz/naval-reserve/op/commander-charles-blackie-vrd-rnznvr.htm

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