Whale Oil case: lessons for bloggers

My brief post yesterday noted Judge Harvey’s starting proposition that the Police v Slater case was not about the merits of name suppression orders in the 21st century, but was simply about whether the defendant’s conduct breached the law as it stands (albeit in a novel circumstance). And the judge got it right.* But the judgment also provided some useful observations of more general application. Some of these include:

While the case involved posts made by the blog owner himself, what is the position of comments by third parties? Judge Harvey noted:

… most administrators or supervisors of blog sites or those occupying the position of Mr Slater must hold some responsibility for the comments that are posted. Mr Slater in his DVD interview indicated that he exercised such supervisory power over his blog site. He would allow comments or postings of material with which he agreed. This indicates that he is able to delete or remove material or posts from the blog site. This would put Mr Slater in the position of a person of responsibility similar to that of the moderator in the case of Stratton Oakmont Inc v Prodigy Services Co.

The Prodigy case involved defamation, but the principle is the same: a person who knowingly permits defamatory, suppressed or other unlawful content to remain on a website under their control (or otherwise “assumes responsibility” for the material) may be held liable for that material. See my article here and posts here for more information.

On the other hand, the position where the website operator has no knowledge of unlawful material will usually be quite different. Recently, there have been a number of instances where Courts have taken a pragmatic view where website operators have little or no control over what their users do, or where attempting to introduce such controls would be very difficult. E.g. for a situation involving IP infringment see my post here and for a defamation situation see here. A similar situation arose today, with a US judge finding that eBay was not liable for its customers using its service to sell counterfeit jewelery. So lets be clear, the case does not mean that anyone operating a blog may be liable for what someone else posts. But for blogs with active moderation, or if the operator becomes aware of certain material posted on their site (or “ought to have” been aware of it), care should be taken, and editorial discretion exercised. Which is just common sense, and how many blogs operate anyway.

Whale’s lawyer also advanced an argument that, because the Whale Oil site is hosted on a server in San Antonio, Texas, there was no “publication” or relevant act in New Zealand, and therefore no crime under New Zealand law. Nice try, but with a judge as well versed in such matters – Judge Harvey literally wrote the book on internet law in New Zealand and teaches it at Auckland University – no cigar:

The reality of the situation therefore is that Mr Slater’s blog is available free of charge to internet users in New Zealand who may and do access it from time to time and therefore publication takes place in New Zealand… The evidence before me is that the material was able to be read and comprehended in New Zealand (thus constituting a publication) and the material was uploaded on the Whaleoil blog by Mr Slater present in New Zealand at the time. Thus acts necessary for publication – the creation of the material, the posting of the material and the availability of the material to be comprehended by readers in New Zealand – all took place within the jurisdiction.

What about a blog that doesn’t carry unlawful (suppressed, etc) material, but merely links to it? The judge noted the US DeCSS case, but left the question open for another day, saying:

“Following from that is the [hypothetical situation of a] New Zealand based blogger who may embed a link to the off-shore blogsite which contains the suppressed name. One should be cautious in such circumstances that one does not become involved in “publishing” by way of hypertext link… I have no doubt this point or something like it will fall to be decided in this country in some future case”.

Whale’s lawyer had attempted to argue that blogging was intrinsically “different”, and mentioning a suppressed name did not fall within the corners of the Criminal Justice Act definitions. He had also tried to argue that the Criminal Justice Act, passed in 1985, could not apply to blogs (which were not contemplated at that time) and must be limited to traditional news media. The judge rejected these lines of argument, saying:

Conceptually a blog is no different from any other form of mass media communication especially since it involves the internet which anyone who has an internet connection is able to access… It is publication. It is made to a wide audience. It goes beyond a private conversation over the telephone or, a coffee table or at a dinner party. 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… In the age of mass communication and the internet, where everyone may be a publisher, that approach cannot be sustained. The law must continue to speak.

* So I have no doubt the decision here is correct, based on the current law and what has been reported. It has been interesting to read the comments (on Kiwiblog for example) of some, who should know better, but who are most upset that the judge did not take it on himself to legislate from the bench and reform the “broken” suppression regime and help bloggers to “expose crims”.  However as I wrote last year, I do think the law on suppression needs to change to a more open system. That is both desirable and inevitable, and parliament should act sooner rather than later on this.