Why Kiwiblog might get sued and the future of Wild West Blogging

Blog, Facebook face contempt scrutiny
Legal commentators have added impetus to consideration by the solicitor-general's office on whether internet bloggers and social networking sites have breached contempt-of-court laws in the Clayton Weatherston trial.

The explicit nature of blogs and online forums which appear to ignore rules applying to print and other media has raised concerns over whether comments could influence, or prejudge, Weatherston's trial in the High Court at Christchurch.

Clayton Robert Weatherston (33), a former Otago University economics lecturer, is charged with the murder of 22-year-old former student and girlfriend Sophie Elliott in her Dunedin family home on January 9 last year.

Weatherston denies murdering Miss Elliott but admits he is guilty of manslaughter.

University of Otago law professor Mark Henaghan said blogging was a form of communication available to other people and as such, was a form of media and should be subject to the same contempt-of-court rules.

"If it [blogging] is outside the law it would be ridiculous."It would be a good idea if the solicitor-general brought contempt proceedings, as it would be a test case, he said.

"We've pussyfooted around blogging too much - it is part of communication."Any interference with court proceedings was contempt of court.

Whether comments were made in blogs or yelling it out in court, it was still contempt.

"It's a serious matter," Prof Henaghan said.

Solicitor-general's office spokeswoman Jan Fulstow said on Friday the office was considering what action to take over a Facebook group, the title of which presupposes the outcome of the trial, as well as comments on Kiwiblog.

In an email update in response to questions from the Otago Daily Times, Ms Fulstow said: "I can confirm that we are still considering this matter.

"Given where the trial is at, our first priority is to ensure that the trial is completed without any undue interference, so we do not wish to comment further at this time."

Media lawyer Steven Price, of Wellington, said everyone was bound by contempt of court laws and it had nothing to do with shutting down freedom of speech.

"Would you want to be a defendant who's facing not just the accusations of the Crown but basically a cheerleader crowd of commentators . . . who have seen, maybe, just some media reports of the trial, and are basing their comments on that instead of the whole evidence?"Kiwiblog creator David Farrar said he was generally "careful to avoid commenting on trials while under way".

"As I have done in other cases, if I am asked to delete comments that may be prejudicial I will generally do so.

"However, comments appear automatically without my approval, and with over 100,000 comments a year made on the blog, it is impossible to pre-vet comments."

This story was discussed on Radio NZ yesterday on the Panel between myself, Rosemary McLeod, Jim Mora and Jim Tully. I think that the Solicitor-General may well ‘fire a shot’ by prosecuting Kiwiblog for comments as a reminder to everyone that the law still applies on line, Jim Tully pointed out that the there is a history of the S-G making example prosecutions and David is the biggest blog in the country. But I don’t believe the punishment can be realistically great because I doubt that many Jurors read blogs and feel influenced by them. Jurors are asked not to read newspapers, watch TV or listen to anything pertaining to the trial they are on, so just add blogging to that. The real issue is a technical breach of the defamation and contempt of court laws, and how to police it.

Like it or not bloggers are responsible for what is posted on their sites, David only has to switch the moderation comments button on and, end of problem. Ultimately the blogger is responsible for what is posted. Personally I prefer a voluntary code that if someone asks to have a comment removed, you do so.

I suspect what will most likely change Bloggers attitudes to moderating for contempt of court comments or defamation however is something the Solicitor-General has no real control over – advertising. The recession will see many advertisers looking for cheaper options and there ain’t nothing cheaper than blog rates. When advertising agencies twig that blogging is cost effective the arrival of revenue source will coincide with bloggers caring about contempt of court postings.

What I don’t think would help would be a massive wave of prosecutions dating back to the start of each blog auditing every comment made and kicking in doors at dawn, such a response would be the beginning of a massive on-line counter-reaction that would start something akin to a cyber-civil war.

Blogger mass arrests are never a good tourist advert.

The expansion of what one has to say before you’ve defamed them however has been a positive advance we should never allow bloggers to be stripped of. During the 8 years of Bush’s tight grip on corporate news media, people were forced to dress all discussion up as satire to be able to discuss the real issues of the day and which is why the Daily Show is one of the best places to get actual news rather than the corporate version. Something else we can't lose is the mass expansion of on-line protest groups. Sometimes the law is such an ass that on-line civil disobedience is an acceptable step to take.

Battlelines are about to be drawn in the blogging community right when the Government are going to try and push through the new on-line censorship laws again. Interesting timing.