Why did the Human Rights privacy decision against Slater take so long?

In short, lack of resources, in particular there only being one Chairperson who could do most of the work. The findings \seem simple and obvious.

One of the notable aspects of the Human Rights Review Tribunal decision against Cameron Slater was how long it took for the decision to be published.

This shows that the hearings began in October 2014, and the decision wasn’t published until about four and a half years. Matthew Blomfield had good reason to claim that justice delayed is justice denied, especially as since the hearings Slater has clocked up a lot of other legal and court costs, and declared himself bankrupt last month. The $70,000 awarded by the tribunal will be difficult to get.

The decision tries to explain the reason for this long delay.

[14] The reasons for the long delay in publishing this decision are explained in Wall v Fairfax New Zealand Ltd (Delay) [2017] NZHRRT 8. It was not until enactment of the Tribunals Powers and Procedures Legislation Act 2018 that s 99AA of the Human Rights Act was on 14 November 2018 inserted to allow the Governor-General to appoint one or more Deputy Chairpersons of the Tribunal. As at the date of publication of this decision no such appointments had been made.

[15] The delay by the Tribunal is regretted and an apology is made to the parties.

It refers to Wall v Fairfax New Zealand Ltd (Delay) [2017] NZHRRT 8 which explains more.

[2] There are two reasons for the delay. First, an unprecedented increase in the Tribunal’s workload and second, the fact that the Human Rights Act 1993 does not allow the appointment of a deputy chair to assist the Chairperson to keep pace with the large inflow of new cases.

[3] The volume of new cases filed with the Tribunal over the past two calendar years has increased substantially…

[4] As a consequence of this influx there were 120 active files as at 28 February 2017, each requiring hands-on management by the Chairperson…

[5] Apart from the sharp numerical increase in the number of files requiring management(and the allocation of a hearing date), the workload of the Tribunal (particularly that of the Chairperson) has been added to by two further factors. First, the growing complexity of the issues litigated…On average, the present norm is for hearings to take between three and five days.

Second, the steep increase in the number of cases in which one or more of the parties is self-represented…Cases involving self-represented litigants are more difficult to manage and therefore more time-consuming.

Slater and his assistant in this case Dermot Nottingham both have records of time wasting, deliberate delays, and dumping huge amounts of irrelevant and inadmissible material into proceedings. An additional problem is that various courts have allowed these practices to continue for years of litigation.

Structure of the Human Rights Act unhelpful

[6] Part 4 of the Human Rights Act is structured in such a way that almost every action on every file must be undertaken by the Chairperson. For example, all case management directions must be given by the Chairperson (see the Human Rights Review Tribunal Regulations 2002, regs 16 to 18) and the Chairperson must preside at all sittings of the Tribunal (s 104(4)). Interim order applications are also determined by the Chair (s 95). All decisions of the Tribunal are written by the Chairperson.

[7] The Chairperson is presently the only member of the Tribunal. The Panel maintained by the Minister of Justice under s 101 is a separate statutory entity which is drawn on by both the Chairperson and by the High Court.  Members of the Panel are only ever members of a “tribunal” when appointed by the Chairperson for the purposes of a particular hearing (s 98).

The anomaly

[8] Section 102(1) of the HRA does not allow the appointment of a Deputy Chair to share the workload…

[9] An urgent amendment to this section is necessary. It is an amendment of the most minor kind. All that is required is for the amended s 102 to provide:

(1) The Governor-General, on the recommendation of the Minister, may appoint a deputy chair or chairs of the Tribunal.

[10] Such amendment will allow the Tribunal, if it is adequately resourced, to hear and determine cases in a timely and efficient manner. Without legislative intervention the severe difficulties presently faced by the Tribunal will compound.

That Minute was delivered on 10 March 2017.

The Slater decision states that on on 14 November 2018  the “Tribunals Powers and Procedures Legislation Act 2018 that s 99AA of the Human Rights Act was inserted to allow the Governor-General to appoint one or more Deputy Chairpersons of the Tribunal.”

While no Deputy Chairpersons have been appointed the recent change would have been too late for speeding up the Slater decision.

The hope must be that cases currently before the Human Rights Review Tribunal, and future cases, will progress much faster.

 

 

Human Rights Tribunal slams Cameron Slater

In what has been reported as a landmark decision he Human Rights Review Tribunal has found that Cameron Slater breached the privacy of Matthew Blomfield by obtaining and publishing Blomfield’s personal information in a series of posts at Whale Oil, cherry picking and embellishing data from a hard drive that the Court found that had been obtained illegally and given to Slater.

The tribunal found that Slater’s posts about Blomfield had caused genuine harm and humiliation through an interference in his privacy:

This blog can only be described as a calculated attack on Mr Blomfield and an extended assassination of his character.”

Even if Mr Slater was not party to any illegality, it seems likely the information was obtained illegally by Mr Slater’s sources.

In October last year Slater lost a five year defamation case brought against him by Blomfield. Damages and costs haven’t been awarded yet, but last month Slater filed for bankruptcy.

Slater’s defence in the Humaan Rights case was that he had been acting as a journalist so had legal protection (similar to his defamation defence), but the decision states that the attacks were sustained over six months and were extreme, well beyond the responsibilities of journalism.

Note the date of the hearings (over four years ago), and the date of the decision (yesterday).

Also note the name of Slater’s assistant. Nottingham and Slater have records of over the top attack blogging, and hopeless legal attacks and defences. They are both now bankrupt, and both suffer from health problems. Slater has been distanced and dumped from Whale Oil, and Nottingham is banned from using the Internet.

[171] On the facts there can be little doubt the humiliation, loss of dignity and injury to feelings described by Mr Blomfield were caused by Mr Slater. In legal terminology we are satisfied Mr Slater’s disclosure of Mr Blomfield’s personal information was a material cause of the harm suffered by Mr Blomfield. See Taylor v Orcon [2015] NZHRRT 15, (2015) 10 HRNZ 458 at [59] to [61].

[174] We do not propose making a training order. The events in question occurred some time ago and much has happened since then, particularly extensive litigation between Mr Slater and Mr Blomfield. We are confident that upon publication of the present decision Mr Slater will appreciate that the news medium exemption from the Privacy Act is but a limited exemption. Whether a blogger is exempt from application of the information privacy principles is a question to be determined blog by blog, item of personal information by item of personal information. Only if the particular item of personal information comes within the definition of news activity is exemption from the Privacy Act triggered in relation to that particular item.

[175.1] A declaration is made under s 85(1)(a) of the Privacy Act 1993 that Mr Slater interfered with the privacy of Mr Blomfield by disclosing personal information about Mr Blomfield contrary to IPP 11.

[175.2] An order is made under s 85(1)(b) of the Privacy Act 1993 restraining Mr Slater from continuing or repeating the interferences with Mr Blomfield’s privacy, or from engaging in, or causing or permitting others to engage in, conduct of the same kind as that constituting the interferences, or conduct of any similar kind.

[175.3] An order is made under s 85(1)(d) of the Privacy Act 1993 that Mr Slater erase, destroy, take down and disable any personal information about Mr Matthew John Blomfield as may be held on http://www.whaleoil.co.nz and on http://www.scribd.com. Mr Slater is to likewise erase, destroy, take down or disable any of Mr Blomfield’s personal information published by Mr Slater and which may be found on any other website or database which is within Mr Slater’s direction or control.

[175.4] Damages of $70,000 are awarded against Mr Slater under ss 85(1)(c) and 88(1)(c) of the Privacy Act 1993 for the humiliation, loss of dignity and injury to feelings experienced by Mr Blomfield.

A media release from Blomfield:

Human Rights Review Tribunal orders Cameron Slater to pay damages

The Human Rights Review Tribunal has today upheld a complaint against Cameron Slater. The Tribunal found that Slater had breached the privacy of Matthew Blomfield by obtaining and publishing Mr Blomfield’s personal information.

The Tribunal ordered Slater to pay $70,000 in damages for the “humiliation, loss of dignity, and injury to feelings experienced by Mr Blomfield”. That is one of the highest awards ever made by the HRRT. It also ordered Slater to destroy Mr Blomfield’s personal information and to cease publishing stories based on that information.

In reaching its decision, the Tribunal rejected an argument from Slater that he was protected by a privacy exemption for news media. The Tribunal accepted that the blog site Whale Oil could be a news medium. However, it found that all but one of the publications complained of could not properly be described as a news activity. Rather, they were “gratuitous allegations” as part of a “sustained campaign” against Mr Blomfield. The Tribunal described the blog as “a calculated attack on Mr Blomfield and an extended assassination of his character”.

While being elated at the result, Mr Blomfield was very disappointed that the decision had taken so long. “I feel like I have lived the maxim, “justice delayed is justice denied”” he said. The hearing of this complaint before the Tribunal occurred more than four years ago. A few weeks ago, Slater had himself declared bankrupt. Since the hearing, the private information has appeared on other blog sites including one run by the lay advocate who assisted Slater before the HRRT. “The Tribunal has sat on this case for so long that it will now be very difficult for me to enforce any of its orders” said Mr
Blomfield.

“Mr Slater’s actions have been an extended nightmare for me and my family. He has boasted online about having my family’s private information including the photos of my kids growing up and our family home movies. This has been especially traumatic for my children and my partner.” said Mr Blomfield. “Every allegation he made about me was a fabrication. As has become clear in the defamation case, there was simply no basis for the allegations, he just made them up.”

I think it’s unlikely to get a statement from Slater or Whale Oil.

The full judgment [2019] NZHRRT 13 is here.

David Fisher at NZ Herald:  Bankrupt blogger Cameron Slater carried out ‘character assassination’ – ordered to pay $70,000 in landmark media ruling

Bankrupt ex-blogger Cameron Slater has been found to have carried out an “extended assassination” on the character of a businessman in a series of blog posts he attempted to defend as journalism.

The Human Rights Tribunal has found his six-month campaign against businessman Matt Blomfield on his Whaleoil blog in 2012 wasn’t news and Slater did not have a journalist’s protection from prosecution under the Privacy Act.

It has ordered Slater pay Blomfield $70,000 in damages and never write about him again.

The ruling from the Tribunal also sets a new rules for how the Privacy Act applies to journalism, saying media are bound to act “responsibly” if it wants to be exempt from the law.

That is an important point for bloggers as well as journalists. I operate as a journalist of sorts here at times, but it’s pretty obvious that doesn’t give me a license to over the top run paid for attacks on people. This decision makes this clear in legal terms.

The basis of the claim was the blogger’s sourcing information from a hard drive he had obtained on which Blomfield had stored personal information over 10 years.

The case was taken up by the office of the Director of Human Rights Proceedings which prosecuted Slater for breaching the Privacy Act.

The tribunal’s finding, like a previous High Court judgment, raised concerns about the legality of Slater obtaining the hard drive containing Blomfield’s information.

The tribunal ordered Slater be declared as having breached Blomfield’s privacy and to be barred by restraining order from ever doing so again. It also ordered Slater destroy any personal information he held or had published about Blomfield.

It also delivered one of the tribunal’s highest awards for hurt and humiliation, ordering Slater pay Blomfield $70,000.

It is possible the award would outlast Slater’s bankruptcy with findings of damages being exempt from creditor settlements in some cases.

I don’t know how that might work.

Blomfield is likely to remain significantly out of pocket with his legal actions against Slater, but he has done many others who have been attacked and famed and had vexatious litigation against them a favour of sorts.

Slater reached great heights with his blogging at Whale Oil, but power and money seem to have driven him way over the top. This is just one of a number of court rulings that have resulted in him being discredited and facing huge legal costs and awards made against him.


An associate of Slater’s, Marc Spring, tried to continue attacks against Blomfield here at YourNZ when a court agreement prevented Whale Oil from being used for that purpose. Spring, Slateose failures: NOTTINGHAM v APN NEWS & MEDIA LTD [2018] NZHC 596 [29 March 2018] (the charges against me were withdrawn before trial).

On Monday I received an anonymous letter which included court judgments involving Blomfield. I was aware of these judgments already and had little interest in them, they are business/legal matters of little or no public interest.

The letter falsely accused me of supporting Blomfield in those matters – they have absolutely nothing to do with me and I have nothing to do with them.

It also made a number of accusations against Blomfield that sound very similar to what Slater has just been slammed for by the Human Rights review Tribunal.

Whoever sent the letter must be nuts if they think I’m going to publish their anonymous unsubstantiated accusations.

Hager takes Westpac to Human Rights Review Tribunal

Recently the Privacy Commissioner upheld Nicky Hager’s complaint against Westpac for breaching his privacy – see Privacy Commissioner upholds Hager complaint against Westpac.

That is only advisory (toothless) so Hager has now filed a case against Westpac with the Human Rights Review Tribunal.


Nicky Hager files proceedings in the Human Rights Review Tribunal

Nicky Hager has filed a case against Westpac with the Human Rights Review Tribunal. This is yet another step in Mr Hager’s response to the unlawful search of his home and private information by Police.

The Privacy Commissioner recently upheld Mr Hager’s complaint against Westpac for breaching his privacy. However, the Privacy Commissioner’s decision is advisory only. To obtain binding orders, Mr Hager needs to take his case to the Human Rights Review Tribunal.

Mr Hager believes the attitude of Westpac has left him with no choice but to continue with his case. “He has asked Westpac to acknowledge that it breached his rights.

Despite the Privacy Commissioner’s ruling, it has not been prepared to do that,” Mr Hager’s lawyer Felix Geiringer said.

Mr Hager will be asking the Human Rights Review Tribunal for binding orders requiring that Westpac not give its customers’ bank transaction data to the Police without a production order.

There may be thousands of people in the same position as Mr Hager, but who do not know it. “He has also asked the Human Rights Review Tribunal for an order requiring Westpac to notify everyone whose privacy may have already been breached,” Mr Geiringer said.

Even if Mr Hager is successful before the Human Rights Review Tribunal, the broader issue may remain. “This issue does not just relate to Westpac. All New Zealand’s banks had the same arrangement with the Police. Many other companies have also been releasing personal information without asking for a production order.”

A claim against the Police for making the requests is still before the High Court.

MacGregor found not to have breached confidentiality agreement

The Human Rights Review Tribunal decision (MacGregor v Craig [2016] NZHRRT 6) has determined that Rachel MacGregor did not breach the confidentiality agreement made with Colin Craig in a Human Rights Commission mediation process.

The decision found that Craig seriously breached the confidentiality agreement a number of times and made a record award of damages against Craig totalling $128,780.

The Tribunal acknowledged that it wasn’t unreasonable for Craig to assume MacGregor was involved in breaching the confidentiality agreement he later conceded that she hadn’t breached it herself, that had been done against her express wishes by Jordan Williams.

[7] A few weeks after the settlement Mr Craig became aware evidence relating to Ms MacGregor’s sexual harassment claim had apparently come to the attention of some of the members of the Conservative Party Board. On 8 June 2015, in a media interview held in a sauna, Mr Craig was asked whether he had had an affair with Ms MacGregor. Other media enquiries in similar terms followed and a poem written by Mr Craig and sent by him to Ms MacGregor appeared on the Whale Oil blog.

[8] Believing Ms MacGregor was, contrary to her obligations under the settlement, leaking confidential documents sent to her by Mr Craig, Mr Craig decided to correct the information which had thus been made public. Rather than cancelling the settlement agreement Mr Craig embarked on a course of action which he knew would result in himself breaching the agreement. That course of action included calling a press conference on 22 June 2015, media interviews on the days which followed (23 and 24 June, 30 June and 10 July 2015) and distributing a letter to almost every member of the Conservative Party. In addition, on 29 July 2015 he held a further press conference to launch a booklet denouncing dirty politics and announcing legal action against Mr Cameron Slater (proprietor of the Whale Oil blog), Mr John Stringer (a member of the Conservative Party Board) and Mr Jordan Williams. The booklet was distributed widely throughout New Zealand.

[9] Mr Craig accepts that on each of these occasions he breached the confidentiality obligation in one way or another but claims justification for doing so on the grounds Ms MacGregor made misrepresentations during the mediation meeting and that Ms MacGregor herself, post 4 May 2015, disclosed confidential documents covered by the settlement. On 31 August 2015 (a month after the present proceedings were filed) Mr Craig purported to cancel the settlement agreement pursuant to s 7(3) of the Contractual Remedies Act 1979.

[47] In these circumstances we conclude the confidentiality stipulated in the “Mediation meeting confidentiality agreement” signed by Ms MacGregor and Mr Craig on 4 May 2015 and reinforced by s 85 of the Act covered all of the matters discussed and agreed to at the mediation meeting, specifically the sexual harassment claim, the financial issues, the settlement and the two components of that settleme

[53] It was against this background that Mr Craig at least initially argued (prior to Mr Jordan Williams giving evidence) that both prior to and during the mediation Ms MacGregor had not been truthful about what she had already disclosed to others about her sexual harassment claim and the persons to whom such disclosure had been made. In addition Mr Craig believed she and Mr Williams had been working in unison in leaking the confidential documents to the Board, media and others.

[54] However, in closing submissions it was conceded by Mr Craig there was no basis on which the Tribunal could find on the evidence given by Ms MacGregor and Mr Jordan Williams that Ms MacGregor had consented to the release of the documents relating to her sexual harassment complaint against Mr Craig. In our view this concession was properly made. Ms MacGregor was an honest witness whose evidence was largely supported by the evidence given by Mr Bevan and none of the witnesses who gave evidence claimed they had received confidential information from her. Indeed she declined to speak to the Board or to the media about the sexual harassment allegations and the circumstances of her resignation. We accept her evidence in its entirety.

[119] It is difficult to see any basis for criticising Ms MacGregor’s conduct. With the exception of the single tweet of 22 June 2015 (of which Mr Craig made nothing) she has at all times adhered to the settlement and confidentiality obligation. It was conceded by Mr Craig in closing there was no evidence to support his initial allegation that she consented to or assisted in the release to third parties of highly confidential documents relating to Mr Craig and her sexual harassment complaint. Even when provoked by the 22 June 2015 media conference, the responsible step taken by her was to issue (through Mr Bevan) a media release to the effect that because she was bound by the confidentiality agreement she would be unable to correct factual inaccuracies in Mr Craig’s statement until Mr Craig confirmed that should she do so he would not take legal action under the agreement.

[122] In mitigation his main points were:

[122.1] He did not cause the leak of confidential information which turned unsubstantiated rumour into what was purported to be documented fact. Mr Craig was the target of the leak and tried to defend himself in an unprecedented situation.

[122.2] The leak put him under enormous pressure as his political career and many friendships unravelled.

[122.3] His belief that the confidential material could not have ended up where it did without Ms MacGregor’s consent or at least tacit approval was understandable.

So while it is understandable that Craig was suspicious of MacGregor being involved in breaching the confidentiality agreement the Tribunal stated “We accept her evidence in its entirety”. 

Craig jumped to an incorrect conclusion, and his actions in response were inappropriate, they seriously breached the confidentiality agreement, and caused significant harm to MacGregor as a result.

MacGregor was a victim of this and was awarded record damages as a result.

 

 

MacGregor v Craig [2016] NZHRRT 6

Most of the media attention on the Human Rights Review Tribunal decision (MacGregor v Craig [2016] NZHRRT 6) is on the findings made against Colin Craig, and the damages awarded  to MacGregor totalling $128,780. This was the highest amount awarded by the NZHRRT. The maximum they can award is $200,000.

See Craig demolished by Tribunal decision.

There were several other significant aspects of the review. These have been detailed in separate posts:

  1. No decision on sexual harassment
  2. MacGregor found not to have breached confidentiality agreement
  3. Williams breached trust and confidentiality agreement

Links to decisions:

Scoop summarises the decision as related to Craig from a press release from Kensington Swan: