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Slater loses bid to gag media

UPDATED / 5:30pmCameron Slater has lost a bid to stop three media outlets reporting information they have obtained from the hacker RawShark (aka Whaledump).

A High Court judge has, however, granted an order stopping a fourth, unnamed defendant – the hacker – from publishing more "WhaleDumps" on Twitter or other publications (earlier today, Rawshark claimed to have retired and destroyed all of his or her Dirty Politics files). (see the judgment attached)

The court made clear if RawShark flouts the order and publishes more correspondence, it can still be published by the media outlets.

The order (see it in full below) also does not apply to Nicky Hager's book Dirty Politics or information currently held by the media outlets.

But the case is not over yet. Justice John Fogarty said he would value a fuller argument around whether the High Court at Auckland should intervene next week.

Media lawyer Julian Miles QC focused on the media’s right to reveal information in the public interest during an election period during his defence submissions against Mr Slater this evening.

The blogger known as Whale Oil is seeking an injunction against APN, Fairfax and MediaWorks’ TV3 top stop them publishing new information from the hacker known as RawShark. Mr Miles gave argument for all three defendants.

He said it would be a “travesty” if responsible media, such as his clients, couldn’t use the information while “wilder areas” such as bloggers would undoubtedly publish it.

He said the resignation of Justice Minister Judith Collins and inquiries into the hacked emails shows the information coming from the data is likely to be of public interest.

Justice Fogarty said it was clear the information was not in the mere curiosity of the public but his concern was that if the court does not respond, it will encourage hackers.

TV3 director of news and current affairs Mark Jennings is in disbelief that Mr Slater asked for privacy when he does not treat news subjects with such respect, the High Court  heard.

Mr Jennings’ evidence included examples of how Mr Slater used emails, such as for reporting on Bevan Chuang’s affair with Auckland mayor Len Brown, as  the level of detail his company will not go near.

The TV3 executive's evidence was his organisation will not publish any personal details relating to Mr Slater and his family obtained in the emails.

Whaledump information has been released  to NZ Herald senior reporter David Fisher, and others at Fairfax and TV3, the High Court heard.

NZ Herald titles editor-in-chief Tim Murphy made similar arguments in a separate affidavit canvassed by Mr Miles.

During his submissions Mr Slater’s lawyer, John Billington QC, had pointed out that, unusually, Mr Jenning's evidence not only concerns the public interest but also the "elephant in the room" that not being able to publish would be commercially damaging. This was not addressed by Mr Miles.

Mr Miles told the court an injunction would be a “significant and unprecedented gag”, which cannot occur, especially during an election period.

The lawyer further argued “the genie is out of the bottle” now and that Mr Slater should have sought orders earlier.

He raised the case between Doctor Morgan Fahey and TV3 (then CanWest MediaWorks), where the doctor and then Christchurch City councillor was videotaped surreptitiously to reveal he had been molesting patients, as support for his case. In that case the Court of Appeal overturned an injunction preventing TV3 to air the show.

Mr Miles also raised the case of ZB host Mike Hosking against tabloid photographer Simon Runting (in which he acted) -the leading privacy case in this country - saying Mr Slater’s situation did not meet the highly offensive test, while the information was of high public interest.

Justice Fogarty pointed out Slater’s lawyer might say the case before the court is different from the Hosking and Fahey cases because those involved photographing and taking video, while this involved criminal hacking.

Mr Miles responded that there is nothing new in this case, and that the journalists who have the information themselves did not steal it.

“The last thing the court wants to do is encourage criminality, but it simply one strand.

“The next factor, which on the whole needs to be regarded, is what was taken, and how important is it to the public interest,” the lawyer said.

Mr Billington in reply said the door would not be shut forever but until a hearing was had taken place.

He accepted while the way information is transmitted through the internet means a court order may be flouted, it should still make an order.

In any event, Mr Slater's demands were narrow and related to three media outlets only. 

EARLIER / 3 pm: While controversial blogger Cameron Slater had no problems representing himself in his last court outing, he was a no-show at the Auckland High Court this afternoon in his case against three major media outlets.

Mr Slater, better known as Whale Oil, wants a court order preventing APN, Fairfax and MediaWorks' TV3 from publishing information obtained by the hacker Rawshark. The blogger wants an injunction for a week until a full hearing can be held. 

In a standing-room only courtroom Justice John Fogarty heard that Mr Slater's personal information had been obtained in a breach of privacy. The information includes private Facebook and Gmail messages, which the parties accepted were confidential.  

John Billington QC, representing Mr Slater, told the court statutory moves against hacking should weigh toward a finding that privacy had been breached. 

He says it would be blindingly obvious to the media company defendants they have obtained information received as the result of crime. 

Mr Billington raised the successful 2006 case of then National leader Don Brash v John Doe in which an injunction was obtained and the EQC blogger case as support for his argument.  

Justice Fogarty appeared unconvinced by Mr Billington's breach of confidence arguments, saying that tort only really applies when there has been some trust and confidence to break.  

Finely balanced
Justice Fogarty said he accepted there was a public interest in the information but that courts must also be concerned about deterring hackers.

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RAW DATA: Judgment 1 (PDF)50.63 KB
RAW DATA: Judgment 2 (PDF)69.04 KB

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Comments and questions

I am more intrigued than ever to find out what else he is trying to prevent from getting published

The same reason people read gossip mags, they want an insight in to other peoples personal lives. But woe-betide anyone who might start looking through their own. You've got the left screaming about SIS having excessive powers, while screaming that all must be revealed about National/Slater/ Two-faced in the extreme

It's the bikini principle.

It reveals a lot but what it covers is of a lot more interest.

So sad for Whaleoil...NOT.

The fact that he, a privacy criminal himself, should try to hide behind a veil of privacy shows just how uncouth this boor actually is.

So by extension you agree that Nicky Hager is a criminal?

Possibly, but the difference is at least Hager had the decency not to display private communications *purely* for character assassination. There's basically nothing in the book which isn't in the public interest.

Mr Bloomfileds e-mails were not stolen or hacked, which is why the police complaint was not successful.

It's a shame your ideological blinkers don't appear to let you see the bigger issues here.
The left will ultimately regret this battle because they have actually given Whaleoil a ton of oxygen.
I certainly don't agree with everything Slater says or the way he says it but compared to scum bags commenting and moderating left wing blogs he is a breath of fresh air. There. I said it!

Yeah, better to let him just crash through the truth, and democratic representation, and fair process, willy nilly. Why get in the way of that? I mean, it's not as if he's pushing is own personal agenda or anything.

I'm not sure what you mean by "the left" (spectral politics is sooo last century, and the very hallmark of ideologically dominated politics), but as long as the violators of truth and progress are called to account, I'm happy.

Corruption is rampant in New Zealand. I have always suspected that there was a net work of persons working together to conceal the corruption, this case has proved that I am not wrong.

We need a full transparent public inquiry into this matter and other matters of corruption which are being actively concealed e.g. the law enforcement authority which did not exist... they simply didn't check but they spent years covering it up

Do you really know what corruption is Grace? There is certainly plenty of unethical behaviour and shady dealings going on, but the leaked emails have no proof of any corruption. Corruption is where someone is offering something of monetary value to get a process subverted! It involves the abuse of power for private gain.

Whaleoil being paid money to run with a particular story is not corruption. Although arguably he should make clear the story is an advertorial like newspapers do when they run an advertising piece that looks like a news story.

Philip Field getting free/cheap tiling work done in return for a promise to give someone preferential immigration treatment however is corruption.

You are taking a very narrow definition of corrupt. Certainly the actions outlined in Dirty Politics are ethically corrupt and demonstrate considerable abuse of power.

why is this different from possession or re-sale of stolen goods?
the emails were stolen. the newspapers have received it and now they are using for monetary advantage.

Exactly lb ,so the judge has effectively legitimised that stolen emails are kosher. It seems the Judge has set a precedent to legitimise the use of personal emails. It's a mad mad world.

The difference is that copies of emails are not stolen goods. If I supply a piece of paper and copy something onto it, then whatever else that may be called it is not theft

Wait, so Whaleoil published Len Brown's txts but went all shy when his email was spilled?

Difference is they were supplied by one party to the conversation.

Clever legal out, but it's the same invasion of privacy

No it's not. An email is the property of the legitimate receiver, and they can do what they like with it.

There is an old saying "those who live by the sword will die by the sword" Some call this Karma!

Is this the same Cameron Slater who's defending a defamation action for publishing Matt Blomfield's email?

And how is it that Slater defended himself at the Blomfield hearing, but could suddenly afford a QC on Friday?

When Mr Slater published the name of a convicted sex offender,which the judge had suppressed,he was charged and fined.After reading,the judge saying that stolen personal emails were in the public interest,surely so was the naming of the convicted child sex offender,who could be coming to live ,in a place near you,are me.

Remember the aphorism: What sauce is for the goose is sauce for the duck.

Lets hope in the future someone hacks a Judges private emails and gives them to the press. I bet they would jump up and down and stop the media publishing them if there was something dodgy in them.

Can the right to privacy be used to conceal criminal offending?

What happened to 'nothing to hide - nothing to fear '?

Penny Bright

That's right, those who received the information from the hacker are legally obliged to release the identity of the hacker. The hack was illegal after all, but I haven't seen anything illegal in Slater's emails though, only conspiracy theories from Hagar which don't really count.

Can the fight for public accountability be used to hide the fact you are sponging off other ratepayers by not paying your rates but using all the services?

He who lives by the sword, dies by the sword. No sympathy here.

And what a bunch of business partners. All hot air and no substance. A cesspit. Stuff that makes you vomit.