Today's Herald leader supports Cam Slater's entitlement to be regarded as a media person. It is welcome, and correct as far as it goes.
The editorial summarises the Law Commission on who should get its proposed regulated media toady's privilege.against being ordered to disclose sources:
"The Law Commission's definition…had four elements: the publication of news, information and opinion of current value; its dissemination to a public audience; publication must be regular; and the publisher must be accountable to a code of ethics and a complaint process."
Without actually saying it simply, the editorial highlights the flaw in the Law Commission's scheme to replace defamation with regulation as the main protection against the abuse of free speech.
The only speech that needs constitutional protection is speech that upsets, that will be labelled 'inappropriate' or 'unacceptable' or 'offensive' by targets who would have the power to suppress it if they could. No one will bother to try to suppress Inoffensive speech.
The powerful and the comfortable (the establishment) will always find ways to frame codes of procedure or ethics in ways that enable them to rule. Think, for example, of how specialist rulers have siezed employment law to second guess and oppress humble employers. In a simple assertion of power because they can, the employment law insiders mulct lay employers for flaws in procedure. Dismissing the impracticality of 'best practice' they force employers to reward dishonest and lazy and incompetent workers for their failings. Employment law system insiders delight in telling bosses and workers that lies and disloyalty and bad faith in offending employees are irrelevant if the boss has not jumped through the right procedural hoops.
Perhaps he was misquoted, but it is odd that.Steven Price, as reported in the Herald seems unconcerned by the grave threat in the Law Commission approach. He noted about it:
"Still, it is concerned that the reporting be dispassionate and reliable. It can be argued that Whale Oil doesn't measure up on that criterion."
Free speech that is obliged to be 'dispassionate' and 'reliable' in the eyes of the establishment is not free speech at all. The free speakers who made the differences in our history, in our civilisation, were passionate. They were often hated by the majority. They often lacked the resources and the temperament to shut up till they had satisfied some ruler's standard of verification and compliance with prevailing norms of inoffensiveness.
On the other hand, I'm dubious about the basis for the privilege against disclosure of sources. The right of free speech is the right of every one of us. Confined to a privileged media class, given full strength only where it meets some establishment measure of 'balance' it would become another means of coercion to consensus.
The court should have ruled that whether Mr Slater was malicious in his publication of the relevant material did not need disclosure of sources, and avoided expanding the so-called news media privilege.
The free speech horse has bolted anyway. The officials of the Orwellian Human Rights Review Tribunal, and the Privacy Commissioner have driven it into the far paddock. When these enemies of basic human rights punish people for telling the unwelcome truth about others, the hard won limitations of defamation have gone, and free speech has been neutered.
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Your defence of offensive speech is a welcome change of heart since you opined that flag-burning should not be protected.
A few comments. I wonder where on earth you get the idea that the Law Commission had a scheme to replace defamation with regulation as the main protection against the abuse of free speech. It didn’t say anything at all about defamation. And the system it proposed was a much more light-touch than the current broadcasting regulation system, and on a par with the existing Press Council, and was generally welcomed by the media.
I’m not sure you really understand the Law Commission’s proposal (have you read it?) It doesn’t allow any role to the government in setting standards or complaints procedures.
You say I seem “unconcerned by the grave threat posed by the Law Commission’s scheme” and your evidence is a statement I made criticising the use a judge made of the Commission’s work – because I thought he’d underplayed the pro-free-speech comments made by the Commission. If you want to engage with my views on either issue, they’re right there on my blog.
The Law Commission isn’t saying that free speech must be responsible and dispassionate. It’s saying that to be given the privileges of source protection and exemption from the Privacy Act and access to closed court hearings etc, there should be some confidence that the journalist will be serving the functions of free speech, and the best way to ensure that is some form of industry-led complaints system. It’s not compulsory. They don’t have to join. Would you rather give those privleges to everyone?
The Law Commission wasn’t proposing stopping anyone else from doing what they like.
Your reasoning about “coercion to a consensus” in relation to source protection seems very dogmatic to me. Is there a jot of evidence to support it? Are you saying that source protection doesn’t support the flow of information from people who might otherwise keep silent? If not, how is this a coercion to consensus, given that most confidential sources are criticising the establishment? Are you saying source protection should be removed altogether? Or given to everyone?
Your suggestion about what the court should have done makes no sense either. Have you read the decision? Do you understand what the issues were? Do you have any sense of the law of defamation? The judge had no power in this decision to rule on issues of malice, which in fact are irrelevant anyway, since qualified privilege is not a defence.
You completely lose the plot in the final paragraph. You surely know that NZ is routinely ranked among the top dozen countries in the world for free press by the two international bodies that take notice of these things? Can you provide more than a single example of the Privacy Commissioner and HRRT suppressing some significant truth?