Slater loses bid to gag media

High Court rules media outlets can report information they have obtained from the hacker RawShark (aka Whaledump). RAW DATA: Judgment in full.

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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