As Oscar Wilde once said, the only thing worse than being talked about is not being talked about.
Blogger Cameron Slater likes being talked about. No question. So, for him, yesterday was a victory—tempered only by a slap on the wrist with a wet bus ticket—which is how he characterised his punishment at his Whale Oil blog.
But it was not a victory for free speech.
It was not a victory for free speech because, unlike the rest of the western world, New Zealanders are still considered too immature to be allowed to know the names of sex offenders, frauds, and other assorted criminals before our courts—and Justice Harvey has now confirmed that even hinting in public about the names of those people can see you bailed up in court and given a large fine and a stern talking to.
In New Zealand, very often, justice may not be seen to be done, nor to whom it is done. And that remains the case. The courts themselves have seen to that.
But it was not a victory for free speech because Cameron dropped the ball.
Breaking a bad law on principle and taking your lumps for it is a time-honoured form of civil disobedience. Just ask the suffragettes. Or Rosa Parkes. But you’ve got to carry the ball to the line, making your case in court on principle.
Cameron didn’t do that. He wriggled. His lawyers wriggled. They talked about his depression. About how suppression orders don’t apply to blogs. About how he didn’t choose this as a crusade, instead someone chose to crusade against him.
So the ball got dropped. Instead of the ringing arguments we should have heard about the right of New Zealanders to see what justice is being done in their name, we heard instead (at least, we heard in the media) arguments that binary code is not speech, that Cameron Slater is not the real proprietor of his blog, and about the meaning of the world “publish.”
That was disappointing.
Just as it was to read Justice Harvey bewailing the lack of official “oversight” of the blogosphere in his 70-page judgement.
Unlike newspapers which are subject [sic] the oversight of the Press Council or advertisers who are subject to the Advertising Standards Authority or radio and television which is subject to the Broadcasting Standards Authority, there are no similar regulatory organisations in place in the “blogosphere.”
Harvey says this like it’s a bad thing. I trust Simon “FIGJAM” Power and his colleagues and supporters don’t see it that way too.
I would hate the likes of Jeffrey Palmer, for example—who has never seen a committee, board or tribunal he hasn’t wanted to join—to sit in judgement upon a blogger who has decided that Palmer has a face that needed punching. But that’s where Harvey’s comments are either intentionally or inadvertently headed.
So this was not a victory for free speech.
We bloggers have been told off. We may not consider ourselves above the law. We may, subject now to the constrictions laid down by Harvey J, continue to post what we like and what we think. For the moment. But a trial balloon has been quietly floated. And to shoot that down we will need more than just harpoons.
UPDATE: See what I mean:
“The judgment [says media lecturer Martin Hirst] probably puts a little more pressure on the government to respond to the Law Commission report on regulation of the Internet…”