Cameron Slater, a well-known blogger, published a number of posts about business consultant Matthew Blomfield on the Whale Oil site. The posts were released between May–October 2012. There were additional publications containing personal information about Mr Blomfield on other blog sites.

The posts accused Mr Blomfield of dishonesty, theft, bribery, deceit, perjury and asserted, amongst other things, that Mr Blomfield was a psychopath, loved extortion and was a pathological liar.

The source of the information for the posts came from a hard drive that Mr Blomfield had used over a ten-year period to back up his business emails and documents. How the hard drive came into Mr Slater’s possession was not confirmed, although Mr Slater denied taking it unlawfully.

What was disclosed

Mr Blomfield claimed that at least 46 documents of his, containing personal information, were published by Mr Slater in 2012. These included business emails, correspondence with his lawyers; bank statements; photographs of Mr Blomfield, and a police adult diversion scheme form for Mr Blomfield.

The Director of Human Rights Proceedings (“the Director”) alleged that Mr Slater’s actions in disclosing personal information about Mr Blomfield had breached privacy principle 11 and had caused significant emotional harm.

Mr Slater’s defence was that in publishing this material in the blog posts, he was acting as a news medium, and was therefore exempt from the Privacy Act altogether. The news media exemption in the Privacy Act (section 2(1)(b)) provides that the news activities of any news medium are excluded from the Act’s coverage.

What counts as “news activity”

The Tribunal looked at a number of Whale Oil blog posts about Mr Blomfield and considered whether those posts could be considered to be a news activity. The Tribunal noted in its decision that the media exemption was not all-encompassing or open-ended [para 62.5].

Further, the Tribunal said it was “… not the purpose of the news medium exemption to shield a news medium from the Privacy Act where the agency fails to meet the standards of responsible news activity, including impartiality, accuracy and balance” [para 62.8].

In considering what constituted “news” the Tribunal noted “…the personal information must itself qualify as news, observations on news or current affairs before the news medium exemption applies” [para 78]. This test takes into account the fact that the Privacy Act’s primary purpose is to protect information about individuals.

There was a countervailing responsibility upon news media to act ethically and in a manner that was consistent with the public interest in fair and accurate reportage of news or current affairs [para 80].

Of the 40 or so documents published by Mr Slater, there were 12 posts in which Mr Blomfield’s personal information was accompanied by observations on news or current affairs. The Tribunal considered the application of the news media exemption in relation to only those 12 posts [para 95].

The Tribunal found that, with one exception, none of the blogs comprised news activity as defined in the Privacy Act [para 135].

Harm

Mr Blomfield submitted on the significant harm he had suffered as a result of the publication of the blog posts, including feelings of paranoia; difficulty sleeping; anxiety; concerns about personal and family safety; and a loss of confidence [para 141].

The Tribunal found that, on the balance of probabilities, Mr Blomfield had experienced significant humiliation, loss of dignity and injury to his feelings, and that Mr Slater’s actions were a material cause of the harm [para 142-3].

Remedies

The Tribunal awarded Mr Blomfield $70,000 for severe humiliation, severe loss of dignity and severe injury to feelings [para 173].

The Tribunal also made an order restraining Mr Slater from continuing or repeating the interferences with Mr Blomfield’s privacy, and an order that Mr Slater ‘erase, destroy, take down and disable’ any personal information about Mr Blomfield on the Whale Oil website or other websites within Mr Slater’s control [para 162].

A declaration was issued by the Tribunal that Mr Slater had interfered with Mr Blomfield’s privacy.

Image credit: Office of Human Rights Proceedings

Human Rights Review Tribunal, media