03/02/2020 Slater v Blomfield [2014] NZHC 2221; [2014] 3 NZLR 835 (12 September 2014) I can find no reference in the Law Commission report to support the contention that the defendant’s blog site could be regarded as a news medium deserving of the protection afforded by s 68 of the Evidence Act. Neither do I consider that the sources of the material published on the defendant’s blog site would be protected pursuant to Rule 8.46 of the High Court Rules. The rule applies where the defendant pleads that the words complained of are honest opinion on a matter of public interest or published on a privileged occasion. Whereas the defendant pleads “honest opinion”, it is not claimed that the opinion was expressed on a matter of public interest. This is not surprising, having regard to the allegedly offensive nature of much of the material which the defendant admits that it published. Section 68(1) of the Evidence Act 2006 [17] In s 68(1) of the Evidence Act, Parliament enacted an exemption to the compellability of witnesses. Section 68(1) provides: 68 Protection of journalists’ sources (1) If a journalist has promised an informant not to disclose the informant’s identity, neither the journalist nor his or her employer is compellable in a civil or criminal proceeding to answer any question or produce any document that would disclose the identity of the informant or enable that identity to be discovered. [18] The section has its own definitions in subs (5): (5) In this section,— informant means a person who gives information to a journalist in the normal course of the journalist’s work in the expectation that the information may be published in a news medium journalist means a person who in the normal course of that person’s work may be given information by an informant in the expectation that the information may be published in a news medium news medium means a medium for the dissemination to the public or a section of the public of news and observations on news public interest in the disclosure of evidence includes, in a criminal proceeding, the defendant’s right to present an effective defence. [19] This section was the product of a process of evolution in the common law, statute and High Court Rules whereby protection from the disclosure of confidential sources was extended to persons including journalists. [20] The well-established exception to disclosure for journalists in defamation cases was known as the “newspaper rule”, whereby a newspaper could not be forced to disclose its source of information.5 This was not a form of recognised privilege, but rather a limited protection recognised in particular circumstances.6 It was a protection that applied to the interlocutory phases of discovery and interrogatories and was justified on the basis of the irrelevance of the source of the information,7 and the public interest and benefit to society in having informed discussion and evaluation of affairs.8 [21] The newspaper rule co-existed with s 35 of the Evidence Amendment Act (No 2) 1980, which conferred on the Court a discretion to excuse a witness from answering a question or producing a document. This was on the ground that to do so would be a breach by the witness of a confidence that, having regard to the special relationship existing between him and the person from whom he obtained the information or www.nzlii.org/nz/cases/NZHC/2014/2221.html 5/30