Defamation as a fundraiser

March 8th, 2014 at 2:19 pm by David Farrar

After the Greens used the Craig v Norman defamation case as a fundraiser (I suspect in reality Norman’s costs will be paid for out of their parliamentary budget), Colin Craig has done the same – but with more success.

The Herald reported:

A mock fundraising campaign launched by Conservatives leader Colin Craig to cover his defamation case against Greens co-leader Russel Norman has collected $50,000 in less than a day.

Mr Craig began asking party members for donations today to mimic a campaign by Dr Norman, who was seeking up to $75,000 to cover his legal defence.

He said that it started as a joke among members, but it had “taken on a life of its own”.

The account had already collected around $50,000 including a one-off donation of more than $25,000.

Mr Craig said: “It’s not a case of needing the money. These were people who wanted to participate.”

The party sought donations in the form of pledges which would be collected once the money was required. But many people had paid the money up-front.

Mr Craig said that if the defamation claim went ahead and he won costs, he would ask donors if they wanted their money back. If they did not, he would use the money to fund the party’s election campaign.

This could become a new modern fundraiser for political parties – sue each other for defamation and both sides an then fundraise from it!

The winners? Well, the lawyers of course!

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Greens trying to fundraise on back of defamation case

March 5th, 2014 at 10:00 am by David Farrar

The Greens have announced:

The Green Party has launched an appeal to cover the costs of defamation action being taken against the party by Conservative Party leader Colin Craig.

Or is it!

The fine print:

You should know that any funds not used in the court case will go towards the Green Party’s work to create a smarter, cleaner, more compassionate New Zealand for all of us.

So actually it is a plea for campaign funds. You see it is highly likely that the Greens will use the taxpayer funded leader’s budget to cover Norman’s legal costs. They have every right to do that, but don’t be surprised if they use that fund to cover most of the costs, and then pocket all the donations for their election campaign.

On Facebook, a Green party member, Alan Bell, comments:

Totally misguided and somewhat deceitful. Nothing to do with free speech. Russel could well have spoken about Green policy without referring to Craig. Does the Green party so underestimate our intelligence as to infer we are unable to evaluate Craig for ourselves? Do the Greens plan to repeal the Defamation Act? Will the Greens introduce policy that means access to the courts is available to all rather than only the wealthy? Russel made his bed and should lie in it – his political stunt backfired. As a paid up member of the Green party I expect my representatives to stand up for the rights of all NZers including women and homosexuals and respect my ability to gauge for myself the policies of other parties. Craig has a right to defend himself against defamation – I despise the man and hope his case falls over. But I also think positing this as a defence of free speech and LGBT and womens’ rights is a load of bollocks and a stain on the integrity of the party. MPs are are on far more than “middle income” (as Cunliffe should know) so you lot can pay for it.

Another person, Graham Hooper comments:

Rusell could have made a speech defending the rights of Women and Gay people without mentioning Colin Craig. Why give the Guy any News coverage? You MPs get a Good pay. if You feel that you should waste money on Paying Lawyers then your Choice but there is an election coming up why not just say sorry and put the money towards an election

So sounds like some unrest with members and supporters.

Hat Tip: Pete Goerge

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Craig proceeds with defamation suit against Norman

March 4th, 2014 at 10:39 am by David Farrar

The Herald reports:

Conservatives’ leader Colin Craig hopes to fast-track a defamation claim against Greens co-leader Russel Norman so a court hearing can be held before this year’s election.

Mr Craig had given Dr Norman a deadline to apologise over comments he made in a speech at the Big Gay Out, but Dr Norman refused to do so.

The Conservatives’ leader today said his defamation claim against Dr Norman would be split into two stages in the hope of fast-tracking a court hearing.

“After extensive discussion and advice from my legal team, I’ve decided to proceed immediately against [Dr] Norman regarding his claims about the place of women.”

I think this is unwise. In defamation cases both sides tend to lose out. Craig looks thin-skinned by resorting to defamation. Norman i associated with personal attacks that go against the Green principles. It’s a lose lose.

Conservatives’ leader Colin Craig hopes to fast-track a defamation claim against Greens co-leader Russel Norman so a court hearing can be held before this year’s election.

Mr Craig had given Dr Norman a deadline to apologise over comments he made in a speech at the Big Gay Out, but Dr Norman refused to do so.

The Conservatives’ leader today said his defamation claim against Dr Norman would be split into two stages in the hope of fast-tracking a court hearing.

“After extensive discussion and advice from my legal team, I’ve decided to proceed immediately against [Dr] Norman regarding his claims about the place of women.”

By narrowing the claim, the job is harder for Norman. He has to defend it on the basis that Craig has expressed views along the lines of women should be in the kitchen.

As I understand it, Craig is not suing for damages, just a declaration that Norman defamed him (and costs). If Craig wins he will have seriously damaged Norman and the Greens (how do you have a co-leader who has been found to be a liar by a court) but he will also have damaged himself by looking litigious. If he loses, then it is all bad for him.

Mind you Winston has sued several people for defamation, and he still makes 5%!

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Craig v Norman

February 18th, 2014 at 11:00 am by David Farrar

Stuff reports:

Green Party co-leader Russel Norman has refused to retract his characterisation of Colin Craig’s views on women and homosexuals despite the threat of legal action against him.

Craig, Conservative Party of New Zealand leader, has taken the first steps in defamation action after Norman claimed at Auckland’s Big Gay Out that Craig thought a woman’s place was in the kitchen and a gay man’s was in the closet.

Norman made an almost identical comment in Parliament during his opening speech for the year, but attributed it to the “conservative Right”, rather than Craig.

Craig has instructed his lawyers to take legal action and told Fairfax Media that the Green MP should apologise and retract his comments as “these are not things I think”.

“It is a defamatory thing and I would consider that somebody who thinks those sorts of things would have a lower standing in the eyes of the public … he’s crossed the line,” Craig said.

Norman’s characterisation of his views were offensive and “just wrong”.

“We … see them as defamatory, sexist, derogatory and offensive, so that pretty much sums up my view of them.” 

Norman today refused to resile from his comments, however, saying he found Craig’s comments “offensive”.

This doesn’t reflect well on either man. Russel Norman is the co-leader of the Green Party that claims a core value is “Engage respectfully, without personal attacks“. Norman tramples over that Green value all the time.

However Craig looks thin skinned for again threatening defamation. It may appeal to his support base which don’t like the Greens, but will make the media more hostile towards him as they don’t like politicians who threaten defamation. Also the comments Norman made, while false (as far as I know), are not worse than a lot of political rhetoric.

However there is one aspect to this, which the media have not picked up on. If you look at the letter Craig sent Norman, he is not threatening to sue Norman for damages. He refers to getting a declaration that what Norman said was false and defamatory.  That means it is not about trying to financially penalise your opponent – just having a court say that your opponent lied. It would be interesting to see how a court would rule, if it does proceed. Could Norman remain Green Party co-leader if the court ruled he had defamed Craig?

John Armstrong writes that Craig needs to “harden up and quickly”. It is good advice, but he also overlooks that Craig is apparently not seeking damages, just a declaration that the statements were defamatory.

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Blogger wins first amendment case

January 20th, 2014 at 8:21 am by David Farrar

Stuff reports:

A US federal appeals court ruled has that bloggers and the public have the same First Amendment protections as journalists when sued for defamation: If the issue is of public concern, plaintiffs have to prove negligence to win damages.

The 9th US Circuit Court of Appeals ordered a new trial in a defamation lawsuit brought by an Oregon bankruptcy trustee against a Montana blogger who wrote online that the court-appointed trustee criminally mishandled a bankruptcy case.

The appeals court ruled that the trustee was not a public figure, which could have invoked an even higher standard of showing the writer acted with malice, but the issue was of public concern, so the negligence standard applied.

Gregg Leslie of the Reporters Committee for the Freedom of the Press said the ruling affirms what many have long argued: Standards set by a 1974 US Supreme Court ruling, Gertz v Robert Welch Inc, apply to everyone, not just journalists.

“It’s not a special right to the news media,” he said. “So it’s a good thing for bloggers and citizen journalists and others.”

I expect we will see this case cited in the appeal over whether Cameron Slater has to disclose sources in the defamation case brought by Matthew Blomfield against him.

The appeals court upheld rulings by the District Court that other posts by Cox were constitutionally protected opinion.

Though Cox acted as her own attorney, UCLA law professor Eugene Volokh, who had written an article on the issue, learned of her case and offered to represent her in an appeal. Volokh said such cases usually end up settled without trial, and it was rare for one to reach the federal appeals court level.

 

“It makes clear that bloggers have the same First Amendment rights as professional journalists,” he said. “There had been similar precedents before concerning advocacy groups, other writers and book authors. This follows a fairly well established chain of precedents. I believe it is the first federal appeals court level ruling that applies to bloggers.”

A welcome precedent.

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Editorials on whether blogs are media

December 3rd, 2013 at 3:00 pm by David Farrar

The Press editorial:

A recent decision by a District Court judge that the well-known, some would say notorious, Whale Oil blog is not a news medium highlights the difficulty. …

In a paper on new media published last year, the Law Commission observed that bloggers are often highly partisan, can be offensive and abusive and are not accountable to anybody.

The commission later modified that view to note that some of New Zealand’s 200 or more current-affairs bloggers have become a rich alternative source of information and commentary.

The Whale Oil blog run by Cameron Slater certainly fits the commission’s first description. His commentary on a wide array of topics is heavily tendentious and often gratuitously rude.

His campaigns can also be wrong-headed, the most notable being a wildly irresponsible campaign a couple of years ago against name suppression that resulted in his incurring convictions and stiff fines.

But he also attracts more than 1 million visitors a month, more than the next five New Zealand bloggers put together and he has broken stories that have been taken up with gusto by other media.

These facts, Slater argued in the District Court recently, were sufficient to make him a journalist and his blog a news medium as defined in the Evidence Act.

He made the plea in order to be able to claim a protection provided by the act so he would not have to reveal his sources in a defamation action that has been brought against him. The judge rejected the submission.

While Slater’s blog is miles short of what most people would think of as a responsible medium that should be entitled to the protection of the law, the decision is almost certainly wrong.

Very good of The Press to argue that blogs can qualify for media protection. An unthinkable view from them a few years ago.

The Herald editorial agrees:

Blogger Cameron Slater has been told by a Manukau District Court judge his “Whaleoil” website is not a news medium. This will surprise everybody aware of the Len Brown affair. Whaleoil broke that story and was almost alone among news media in covering the seamy details. Muckraking to that degree might not be to everyone’s taste but if anybody wants to rake it or read it, they have a right to do so. The ruling by District Court Judge Charles Blackie will not stop them but it denies Whaleoil a right asserted by all news media to protect their sources from discovery in court.

The case has nothing to do with the Brown affair. Slater is defending an action for defamation on a different subject. The judge’s ruling is important for its general application to news and comment online, and possibly for the future regulation of mainstream media too.

The ruling does have wide ramifications.

The right that Slater seeks is not particularly generous, or final. If a case goes to the High Court, news media may be forced to betray a confidential source to the judge, who will decide whether confidentiality overrides other considerations in the case. Other jurisdictions give media freedom higher protection. A blogger might not have the means to challenge this ruling in a higher court but it should not stand. News comes in many and varied forms and the courts should recognise it when they see it.

Again, very welcome to see the Herald take this view.

Maybe the Newspaper Publishers Association Media Freedom Committee could consider assisting with the appeal?

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Are blogs media?

December 2nd, 2013 at 12:00 pm by David Farrar

Media lawyer Steven Price blogs at Media Law Journal:

As the NZ Herald reports, the owner/operator/author of NZ’s most widely read blog is being sued for defamation. The plaintiff has formally asked him whether he knows the name of his source. (You might have thought that the answer to this might simply be “yes”. But I guess there’s an obvious follow-up). Slater has refused to answer on the grounds that he is a journalist, writing for a news medium, and therefore does not need to reveal his source. This rule is contained in s68 of the Evidence Act 2006.

Note a couple of things. First, in order to get this source protection, Slater has to show that his blog is a “medium for the dissemination to the public or a section of the public of news and observations on news.”

Second, even if he is a journalist, that doesn’t guarantee that he won’t be ordered to reveal his source(s). The judge can order him to identify his source on the grounds that the public interest in disclosure outweighs the negative impact on the source and the general impact on the flow of information to journalists. This rule applies to all journalists.

So if you are recognised as media, it does not mean you will automatically not have to reveal your sources. It means the threshold for you to be forced to reveal them is higher.

The Judge ruled:

Whale Oil is a blog site. It is not a news medium within the definition of s68… of the Defamation Act. It is not a means for the dissemination to the public or a section of the public of news and observation on news.

Price comments:

The judge gives very little reason for this conclusion. It seems a very questionable one. Whatever you think of WhaleOil, it’s hard to deny that he breaks news stories, and that he writes commentary on news. When you factor in the requirement that the courts are supposed to have regard to rights of freedom of expression under the Bill of Rights Act when interpreting statutes – and there’s a respectable argument that protecting sources facilitates the flow of important information – then there seems a powerful argument that this section ought to be construed widely enough to encompass at least some bloggers.

It is a pity the Judge gives no reasoning at all. As Steven says, the conclusion is questionable – at a minimum.

Yet another problem is that the Commission’s inclination was to allow bloggers to be included in the regime, on the grounds that it made no sense to distinguish between mainstream media and bloggers when both were serving the interests of free speech. It would have treated anyone as media who regularly published news and opinion of current value to a public audience, providing they agreed to be bound by an ethics regime. This last element is problematic for Cameron Slater’s case. But in the end the thrust of the report is the need to recognise the valuable news-role played by at least some bloggers.

So in the end, the judge’s conclusion is simply not convincing.

Basically the Law Commission actually said blogs should be able to qualify as media, so long as they had a code of ethics and were subject to an independent complaints process like other media.

It gets worse though. The judge goes on to consider the High Court rules. He cites a rule that says a defamation defendant doesn’t have to disclose sources before trial when pleading honest opinion or privilege. The judge says this rule doesn’t apply because Cameron Slater didn’t argue a defence of “honest opinion on a matter of public interest.” This reasoning seems particularly weird to me. The defence of honest opinion no longer requires  that the comment be on a matter of public interest. He doesn’t need to plead public interest: it would be superfluous. It seems to me that this rule surely applies to a defendant who pleads honest opinion, which Slater did. So I think the judge is wrong there too.

All sounds ripe grounds for an appeal.

UPDATE: Russell Brown blogs on this issue also:

But this is really to misread the Commission’s overall perspective on blogs and similar internet publications – which is that they can and do play an important role in public debate. It ultimately proposed a new news media regulator, which blog publishers could opt to join and be subject to.

He also declares that Whale Oil fits the definition in the Evidence Act:

Whatever you think of Slater’s personal style, I don’t think you can reasonably argue that Whaleoil does not do this.

Brown looks at the wider ramifications:

On this site we do not and are not likely to attract defamation actions in the way that Cameron Slater does. But I was threatened with such action this year. I was aware at the time that a discovery order was a possibility if it went ahead – and also confident that discovery would not reveal anything harmful to my defence. Sources weren’t really an issue. But had things been different, it would have been extremely undesirable to have had my rights ruled out on the argument offered by Judge Blackie.

He concludes:

Anyway, Slater is appealing the decision and I don’t need to defend his work in this instance to hope he succeeds.

Maybe people can help donate to fund the appeal.

UPDATE2: Greg Presland at The Standard also blogs:

It may be that for the greater good Cameron Slater must succeed in his appeal.  

Rare agreement across the political spectrum.

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A cowardly smear

May 29th, 2013 at 3:23 pm by David Farrar

Stuff reports:

Prime Minister John Key is standing by United Future leader Peter Dunne and says he accepts the revenue minister’s word that he did not leak a report into the Government Communications Security Bureau.

NZ First leader Winston Peters today used parliamentary privilege to accuse Dunne of leaking the report by cabinet secretary Rebecca Kitteridge to Fairfax Media.

The report revealed that more than 80 New Zealand citizens may have been illegally spied on by the bureau.

An investigation was under way by former top public servant David Henry to try and find the source of the leak.

Speaking of Dunne today, Key said: “He’s given an absolute categoric assurance he didn’t do this; I accept him at his word.

“I’ve worked with him for a long period of time and the entire time I’ve worked with him I’ve found him to be extremely trustworthy.”

Peter Dunne would be the near the bottom of any list as a potential leaker.

But let’s be clear. Winston Peters is not just asking if Dunne is the leaker, but has asserted it:

After having attempts to question Dunne repeatedly thwarted, with committee chairman Todd McClay ruling that the questions were beyond the scope of the hearing, Peters directly accused Dunne of leaking the report.

“My assertion is you did leak the report,” Peters said.

This is a cowardly and defamatory smear. It is especially cowardly because Peters has a long record of suing people for defamation (and threatening numerous more that he will do so) yet he cowers under parliamentary privilege to defame Dunne.

The media should ask two questions of Peters, and keep asking them:

  • Do you have a shred of proof for your assertion?
  • Will you repeat your allegation outside of Parliament?

Peters has a long long history of just making shit up. Recall the fleet of limos he claimed WINZ had? A fiction, with no proof. But this is worse. He is defaming an individual, not an organisation.

He does it because he knows the media will report it, and his strategy is to stay in the headlines. He doesn’t care if 90% of NZ hates him, because all he is targeting is the 10% who may vote for him.

Recall that Peters lied several dozen times in 2008 with his claim he had no knowledge of Owen’s Glenn’s donation to his lawyer to cover his legal fees. there was overwhelming proof that he in fact brokered the donation, yet he lied to the media, the public and the Privileges Committee time and time again about it.

So why do the media give his assertions the time of day? Wouldn’t it be great, if they just said that we won’t report what you claim, unless you provide proof to back it up? You have lost the privilege to be trusted, because you lied day and night to us for four months.

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Dom Post on Colin Craig

April 27th, 2013 at 1:00 pm by David Farrar

The Dom Post editorial:

If Conservative Party leader Colin Craig wants to pursue a career in politics, he needs to harden up. His threat this week to sue a satirical website that ran a spoof story which attributed fictional quotes to him suggests he is not yet ready to cope with the rough and tumble of Parliament’s debating chamber.

Politics is the contest of ideas, and those who practise it have to be prepared for the reality that not only will their policies be challenged and derided by their opponents, from time to time, they will be mocked.

There is nothing wrong with that, as long as it is not done in a nasty way, and the purpose is to make a political point rather than an outright personal attack. Satire has been around almost as long as politics itself, and, done well, is an entertaining and humorous medium for social and political commentary.

Absolutely. The satirical piece was extremely mild, and only a moron could have thought the purported quote was genuine.

The last thing we need is MPs and wannabee MPs firing off defamation threats at anyone who takes the mickey out of them.

The Herald has a profile on Ben Uffindell, creator of The Civilian. Thanks to the publicity from Colin Craig, he now plans to turn the site into a business. Excellent.

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Mallard and Little fold

November 14th, 2012 at 5:14 pm by David Farrar

Adam Bennett at NZ Herald reports;

ACC Minister Judith Collins’ defamation action against Labour MPs Trevor Mallard and Andrew Little has been settled following a hearing in the High Court at Auckland today. …

In a statement today following their meeting, the three parliamentarians said they agreed “the leak of the email Ms Boag sent to the minister and forwarded on her instructions as the responsible minister to the chairman and chief executive of ACC raised an issue of serious public concern, and that Messrs Mallard and Little were entitled to question who was responsible for that leak”.

“The parties continue to differ over whether the comments made by Messrs Mallard and Little respectively on Radio NZ implied the minister falsely assured the House that neither she nor her office was responsible for the leak.

“Messrs Mallard and Little have confirmed to Ms Collins that was not their intention and wish to make that clear publicly that in the event such meaning was taken they regret it.”

In the statement, the three politicians said they would make no further comment.

If Mallard and Little had said that a few months ago they could have saved themselves a lot of money.

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What happened to the claims this would never go to court?

July 18th, 2012 at 10:00 am by David Farrar

Stuff reports:

ACC Minister Judith Collins begins court action against Labour MPs Trevor Mallard and Andrew Little for defamation today.

The High Court list for Auckland yesterday named Judith Anne Collins v Trevor Colin Mallard and Another for first call before Justice Geoffrey Venning.

Collins has accused the two MPs of defaming her in relation to a leaked email from former National Party president Michelle Boag.

Boag had emailed Collins about a case involving ACC claimant Bronwyn Pullar, who blew the whistle on ACC inadvertently releasing her details about thousands of ACC claimants.

Defamation cases often take some time to come to court with both sides jockeying to set the terms of the case.

Today’s hearing is a face-to-face conference for lawyers to plot out the case’s timetable and sort out how it is going to be run.

Both sides have retained senior and experienced counsel with Collins being represented by Queen’s Counsel Julian Myles and Mallard and Little represented by Wellington lawyer John Tizard.

Collins is not seeking damages – just a declaration that the statements made were untrue and defamed her, and of course her costs.

UPDATE: The application by Mallard and Little for a stay of proceedings until the report of the Privacy Commissioner is done was declined by the Judge. The settlement hearing is in November (the report is due in September anyway, but could of course be delayed) and the trial in February 2013.

 

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Is the taxpayer funding Mallard and Little’s legal fees

June 27th, 2012 at 11:00 am by David Farrar

Judith Collins has stated she is paying for her own expenses in the defamation suit against Trevor Mallard and Andrew Little. She had the option of applying for taxpayer funding, but chose not to.

Has anyone confirmed whether or not the taxpayer is funding the legal costs for Trevor Mallard and Andrew Little? It would certainly be within the rules, for them to be funded  out of David Shearer’s parliamentary budget – but have they chosen to do so?

If they lose, and have to pay Collins’ legal expenses (she is not seeking damages, just a declaration and costs) will that also be funded by the taxpayer?

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Collins seeks a declaration, not damages

May 30th, 2012 at 4:00 pm by David Farrar

Vernon Small at Stuff reports:

Justice Minister Judith Collins is not seeking damages, but wants the court to declare she was defamed and to award her costs in her case against two Labour MPs.

This is a very smart move. It means that Mallard and Little can’t claim she is seeking to make money out of her lawsuit – she just want their (alleged) lies to be found to be false and defamatory. They had the choice of withdrawing their comments at no cost early on, or doing it at a later stage by which time there will be considerable costs (but not damages) attached to it.

Canterbury University law Professor Ursula Cheer said it was unusual not to seek damages.

“The most common remedies sought are an apology and damages.”

The provisions allowing a declaration had hardly ever been taken up, but they were a symbolic way to clear your reputation.

That was the point of including them in the law.

One could say that no one believes anything Trevor says anyway, so there was no point in taking proceedings. but it is possible there are some acolytes out there who do take his talk of anonymous e-mails proving his allegations, as literally true.

Collins has filed her claim in the High Court at Auckland despite the MPs being based in Wellington and the alleged defamatory comments being made in Wellington. As justice minister, Collins knew Auckland had the longest waiting list for civil hearings, Little said.

Umm Judith is an Auckland MP, and lives there most of the time. Where the comments were made has little bearing as they were broadcast on national radio. It seems pretty clear the ones trying to delay the case and Little and Mallard with their unsuccessful attempts to avoid being served.

Again, I look forward to their statements of defence. I hope Trevor especially refers to the anonymous e-mail he seems to be relying on, as I am sure the Judge will find that definitely constitutes proof.

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Only yourself to blame

May 23rd, 2012 at 10:00 am by David Farrar

Radio NZ reports:

Labour MP Andrew Little is critical of the way he was served papers on behalf of ACC Minister Judith Collins who is suing him and fellow MP Trevor Mallard.

Mr Little says a man emerged from the darkness on Monday night, shone a torch in his eyes and served him the papers as he got out of a taxi at his house.

Mr Little says the way the papers were served is typical of Judith Collins’ approach.

It is very hard to have sympathy for Andrew when he of course could have done what 99% of people do when a lawyer asks for an address for service – supply one. But if you’re going to go all macho and boast about how you will not co-operate, then don’t think you can take the moral high ground that you get served getting out of a taxi.

Incidentally the server rather than being a thug, had a nice sense of humour as it seems his words were “You’re served Mr Little, but no fries with that I’m afraid”.

He now has 25 days to file a statement of defence, but says he does not believe Ms Collins intends the matter to go to trial.

I’m pretty sure Andrew also said he never expects Judith to file in court.

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Trevor goes undercover

May 19th, 2012 at 3:30 pm by David Farrar

Danya Levy at Stuff reports:

Labour’s MP Trevor Mallard says he’ll be driving an unmarked car to avoid having papers served on him, as he and fellow MP Andrew Little laugh off defamation proceedings against them by ACC Minister Judith Collins.

If they were really laughing about it, they’d be keen to have their day in court. The poor duo in fact seem very anxious not to end up in court before the election having to detail the proof for their claims.

Trevor is already reporting to unmarked cars. Will he go further and start wearing a disguise? Will he refuse to turn up to electorate clinics, in an attempt to delay his day in court? His constituents may not be too happy with an MP that might shirk his duties so he can remain in hiding.

Mallard said he hadn’t defamed Collins and he had a good understanding of defamation law.

He has faced several legal threats but has only been sued for defamation once, by former NZ First MP Tuku Morgan.

This is what you call a partial truth. Someone should ask how often has he had to settle out of court or do an apology? I think he had to do three just to Rosemary Bradford.

Prime Minister John Key said the Labour MPs ”could run but can’t hide”.

Heh.

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Doublespeak

May 16th, 2012 at 1:00 pm by David Farrar

Stuff reports:

A Whangarei childcare centre is planning legal action against the New Zealand Aids Foundation (NZAF) for slander.

The centre said NZAF made false comments about it, which have ruined its reputation – but NZAF said the centre needed to acknowledge it has made “really poor decisions”.

I would note it is very very hard for an organisation to win a defamation suite, as if I cam correct they have to show actual damage, not just reputational damage.

The centre received “mixed messages” about the level of care the boy needed and had never “excluded, expelled, or shut out” the boy, but rather asked him to stay at home while a care plan was established, Tipene said.

I’m sorry but that is an exclusion. It is doublespeak to argue otherwise.

More than 20 other early childhood centres in Northland have offered a space to the boy, without having to develop care plans, a NZAF spokeswoman said.

Restores may faith in the basic decency of Kiwis.

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A smart decision

April 3rd, 2012 at 9:00 am by David Farrar

John Hartevelt at Stuff reports:

ACC Minister Judith Collins will continue defamation action against two Labour MPs and Radio NZ – but she will not use taxpayer cash to fund it.

Collins this afternoon said the alleged defamation against her last week had occurred in relation to her carrying out duties as Minister for ACC.

She wrote to Labour MPs Andrew Little and Trevor Mallard threatening legal action, but they had not responded.

“Even though I am fully entitled to do so, I have not asked Cabinet for funding,” Collins said.

“I trust that Mr Mallard and Mr Little are prepared to fund their own defence.”

Both MPs have indicated they would pay for their own defence in any legal proceedings.

Collins said Radio NZ had responded to her letter last week but they too still faced legal action.

“There would be no cost and no case to answer if Mr Mallard, Mr Little and Radio New Zealand told the truth and presented their evidence,” Collins said.

If there was any evidence I suspect we would have seen it by now.

A very smart decision not to obtain crown funding. All the focus would have gone onto that issue, rather than the merits of the case.

Also in such tight fiscal times, the Government would face questions about how it can afford to fund a lawsuit, but not xxxxx.

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Who pays?

April 2nd, 2012 at 6:24 am by David Farrar

Adam Bennett at NZ Herald reports:

A spokeswoman for Ms Collins was unable to say whether the minister had asked for Crown funding but did say the matter would cost the taxpayer nothing if Mr Mallard apologised or backed up his remarks with evidence.

Wellington lawyer Graeme Edgeler said that while there were instances of the Crown paying legal costs for ministers who were the target of defamation proceedings, he could not recall ministers receiving taxpayer funding when they were the plaintiffs.

Furthermore, “this doesn’t really seem government-related at all”.

“This is an offence to Judith Collins’ personal reputation.”

Even though any damages and costs awarded if the suit was successful would go back to the Crown, the case was “really for her personal benefit”.

My view is that when the Minister is a defendant, then the Crown should pay the legal costs. But I am uneasy with the notion of the Crown paying legal costs for a Minister as a plaintiff to sue other MPs and a media outlet. It may be permissable within the Cabinet Manual rules, but that doesn’t make it a good idea.

Apart from anything else it would allow Mallard and Little to portray themselves as martyrs with the resources of the state being used to try and silence them.

If it is privately funded, then it is a very different matter in terms of how the public will view it.

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Collins taking defamation action against Mallard, Little and Radio NZ

March 29th, 2012 at 10:05 am by David Farrar

John Hartevelt at Stuff reports:

ACC Minister Judith Collins is taking defamation action against two labour MPs and a news organisation, her spokeswoman says.

I understand the MPs are Trevor Mallard and Andrew Little, and the media organisation is Radio New Zealand.

It will be fascinating if it proceeds, to see the proof Trevor and Andrew have to back up their assertions.

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Blogs and Defamation

September 19th, 2011 at 4:00 pm by David Farrar

Craig Sisterton at NZ Lawyer writes:

Now, a recent Canadian judgment has ignited discussion about how the law of defamation applies, or not, to such blogging debates, and whether ‘anything goes’ in the blogosphere. Baglow v Smith, 2011 ONSC 5131 was a summary judgment decision of the Ontario Superior Court of Justice, dismissing an action in defamation involving political bloggers on the Internet.

The plaintiff, a left-wing blogger known by the moniker Dr Dawg (a retired bureaucrat and former executive with the Public Service Alliance of Canada), claimed that the defendants defamed him by making statements that exceeded the boundaries of their normally acrimonious political debate on the Internet. He complained that the defendants, a right-wing blogger and the owners and operators of the right-wing FreeDominion message board, defamed him by branding him “one of the Taliban’s most vocal supporters” on the message board. The words referred back to an ongoing discussion, on the plaintiff’s own blog and other websites, where the parties had vigorously debated the validity of the detention for seven years in Guantanamo Bay and subsequent military trial of Omar Khadr, a Canadian citizen who was captured by American forces as a 15 year old during the ‘War on Terror’.

The Court noted that the parties had aggressively berated each other, and often employed colourful derogatory language about the other and their beliefs. Although the plaintiff had the opportunity to respond to the ‘Taliban supporter’ comment, he chose not to do so, other than by way of a different online persona, Ms Mew, commenting that the defendants had crossed the line and that it would serve them right if Dr Dawg sued. The defendants brought a summary judgment motion to dismiss the action on the basis that the statements were not defamatory or, alternatively, that the defence of fair comment applied.

Judge Annis held that the comment was not defamatory, and said his conclusion was bolstered by the location of the debate, “namely that the alleged defamatory words were made in the context of an ongoing blogging thread over the Internet” (at [58]).

“Internet blogging is a form of public conversation,” said the Judge at [59]. “By the back and forth character it provides an opportunity for each party to respond to disparaging comments before the same audience in an immediate or a relatively contemporaneous time frame.” Blogging is distinguishable from other forms of publication of defamatory statements, and is more akin to live debate, he added at [60]-[61]. Such a context should be “considered as a contextual factor” when determining whether a statement is defamatory

I blogged on this case previously. It may turn out to be a significant one in future.

Judge Annis noted, at [85], that there was “nothing in the blogging threads which would suggest that there was any personal or inherent express malice on the part of the defendants directed at the plaintiff, as opposed to the mutual contempt of the parties for each other’s opinions and actions as evidenced by their postings”.

So, does this decision mean that it might be ‘game on’ for bloggers and commenters when it comes to slagging off those with a differing political opinion?

I don’t think it is game on, but generally you don’t want people running to the courts over a flame war. Hell I could have sued a number of blogs for defamation over comments they have made about me – especially those seeking to attack my business. But at the end of the day most of those making the defamatory comments have so little credibility it is hard to imagine it being worthwhile.

In a practical sense, says Price, we should bear in mind that bloggers defame each other (and other people) all the time and very rarely sue over it. So the judgment’s practical effect “may not be terribly great”, even if it was adopted here in New Zealand. However, the case is “a marker laid down” showing that the Courts are prepared to consider whether there is something distinct about speech on the Internet, at least in the context of political threads. “It revolves around the idea that the best remedy for bad speech is more speech rather than legal liability,” says Price. “It can be seen as reflecting the importance of political speech. It incentivises rights of reply. It recognises that defamation suits seem a disproportionate response to online bun fights. I suspect that these ideas will continue to affect the development of the law, though I suspect that the solution in this case (‘it’s not defamatory’) is not the best way to address them. Better would be a form of qualified privilege for people participating in such debates in good faith.”

There’s some comments from me, as well as those from Steven Price.

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Leigh drops case

September 19th, 2011 at 7:00 am by David Farrar

Kate Chapman at Stuff reported:

It is a brave woman who takes on a government alone.

But with her professional reputation in tatters and a successful communications career hanging by a thread, Erin Leigh felt she had few options left.

It also takes a rich woman to challenge the establishment and, despite a recent Supreme Court ruling in her favour, Ms Leigh has had to abandon her defamation suit against the Environment Ministry and former deputy secretary Lindsay Gow. …

Ms Leigh has been caught up in the Christchurch earthquakes and felt financially unable to carry on the legal battle.

While happy with the result, she regretted not being able to carry on her own fight.

We should all remember the Leigh case in future, in case Labour tries to position itself as a champion of whistle-blowers.

Ms Leigh says his claims of her incompetence were completely untrue. She also laughs at accusations of being a National lackey.

“I’d always been a Labour Party voter. The first MP that I voted for was actually Trevor Mallard.

“It was beyond my imagination at that point that they would actually make up a whole lot of stuff that wasn’t true.”

That was the culture of the times. If you spoke out, you were dealt to.

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Erin Leigh wins in Supreme Court

September 16th, 2011 at 1:12 pm by David Farrar

Kate Chapman at Stuff reports:

The woman who accused Labour MP Trevor Mallard and a top public servant of destroying her reputation has won an appeal to the Supreme Court.

In 2007, whistleblower Erin Leigh accused Mallard, then Environment Minister, of defamation.

This was after she raised questions about political interference and alleged former minister David Parker pushed for Clare Curran to be appointed to a communications role with the Ministry.

All three Labour members involved are currently sitting Members of Parliament.

At the time Mallard was asked an oral question on the matter in Parliament and spoke negatively about Leigh.

He told the House she had “repeated competence issues” and said Curran had been appointed to “fix up the mess”.

The Ministry’s then Deputy Secretary Lindsay Gow had been appointed to provide Mallard with written and oral briefings before he answered the question.

Unable to sue Mallard, who was protected by parliamentary privilege, Leigh subsequently sued Gow for defamation.

Gow contended that his written and oral communications to the minister were also covered by absolute privilege and that the claims should therefore be struck out.

But the High Court, Court of Appeal, and now Supreme Court ruled that it was a matter of qualified, not absolute, privilege.

It will be very interesting if this now proceeds to a substantive hearing. Maybe Trevor, David and Clare will have to give evidence?

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Online defamation

September 6th, 2011 at 8:06 am by David Farrar

An interesting ruling from the Ontario Superior Court, as reported by the International Forum for Responsible Media:

On 30 August 2011 the Ontario Superior Court of Justice handed down judgment in the case of Baglow v. Smith, 2011 ONSC 5131. The decision suggests that an allegedly defamatory statement made in a debate on a blog or internet forum may not be found to be defamatory if the plaintiff previously engaged in the debate but did not respond to the statement despite having the opportunity to do so.

As far as I know, this is the first ruling of this type.

The plaintiff claimed that the defendants defamed him by making statements that exceeded the boundaries of their normally acrimonious political debate on the Free Dominion internet message board. The plaintiff complained that the defendants defamed him by branding him “one of the Taliban’s more vocal supporters”. The parties had aggressively berated each other on the message board, and often employed colourful derogatory characterizations. Although the plaintiff had the opportunity to respond to the impugned statements on the message board, he did not do so. The defendants brought a summary judgment motion to dismiss the action on the basis that the statements were not defamatory or, alternatively, that the defence of fair comment applied.

Mr. Justice Annis concluded that the impugned statements were not defamatory and granted summary judgment dismissing the action.

I’m glad of that. I doubt anyone would take a forum comment calling someone a Taliban supporter to be literal.

What is interesting is the comments made obiter by the Judge:

a statement is not derogatory when made in a context that provides an opportunity to challenge the comment and the rules of the debate anticipate a rejoinder, unless the statement is wholly outside the scope of the debate or otherwise so outrageous as to prevent meaningful argument from continuing.”

It will be very interesting to see if this view is shared by other Judges. He carried on:

“[58] Although I am satisfied that the words complained [of] are not capable of damaging the reputation of the plaintiff, I am of the view that there is another contextual factor that would further bolster this conclusion, namely that the alleged defamatory words were made in the context of an ongoing blogging thread over the Internet.

[59] Internet blogging is a form of public conversation. By the back and forth character it provides an opportunity for each party to respond to disparaging comments before the same audience in an immediate or a relatively contemporaneous time frame.

[60] This distinguishes the context of blogging from other forms of publication of defamatory statements. One exception could be the live debate, of which blogging constitutes the modern written form.

Heh I could be sued by a number of National MPs for comments I’ve made about them, while chairing debates :-)

It is noted:

70] Bringing an action on the comment in mid-debate runs contrary to the rules and has the effect of chilling discussion. If allowed, it places the opposing party in a defensive mode, rather than an offensive one, strategically putting that party at a disadvantage.  …

I suspect the next time there is an online defamation case, these obiter comments will be cited by the defendant. It will be fascinating to find out if any other courts agree.

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Blogger being sued

April 15th, 2011 at 9:00 am by David Farrar

Andrea Vance at Stuff reports:

ACC Minister Nick Smith has asked for an urgent report after it emerged that a senior ACC doctor is suing a sexual abuse victim for $250,000.

The woman, who blogs under the name Jax, says she was denied counselling for sexual abuse, and posted comments about Sensitive Claims Unit senior medical adviser Peter Jansen on a website. …

Ms Sepuloni asked Health Minister Tony Ryall, who was standing in for Dr Smith, if the ACC minister would investigate.

“Does he think fair treatment includes a senior medical adviser at ACC, Dr Peter Jansen, suing an ACC claimant, a victim of sexual abuse, for $250,000 for speaking her mind on a blog about the appalling treatment of sexual abuse victims under his watch?” she asked.

Jax says her blog has only 15 followers. “So let me see if I get this straight … a blog of 15 followers has done more than $250,000 worth of damage to a man who has never granted a single woman seeking compensation for sexual abuse a mere percentage of that amount?”

I don’t know how many followers Jax has, but what she may be over-looking is that if you google “Peter Jansen”, her blog comes up high on the first page of results. This means anyone searching for info on him, will probably see her blog.

I also note that Jax has blogged many many times or Dr Jansen. One of her comments is:

I am not stupid or dumb. Dr Peter Jansen who implemented these “INHUMANE” changes is hoping if he makes things too damn hard we’ll either go away or kill ourselves like two people I know already …

Accusing someone of hoping that claimants will kill themselves is pretty highly defamatory (in my opinion) unless one can prove it to be true. Some of her other comments are as bad.

Jax has every right to rail against ACC. But she would be better to attack the organisation, not individuals within it. It is not totally surprising that Dr Jansen has responded with a lawsuit.

While the lawsuit is not surprising, it is ill-advised in my opinion. The publicity from the lawsuit will result in many many more people knowing about the comments, potentially increasing the damage to Dr Jansen.

Also Dr Jansen may have overlooked that people are quite good at putting things into context. I doubt many NZers would jump to a conclusion about Dr Jansen, just because of the criticisms made by Jax on her blog. It’s not the Lancet. It’s one disaffected person’s opinion.

If I sued for every defamatory comment made about me online, I’d be in court at least once a week.

A possible compromise here might be that Jax refers to Dr Jansen only by title (removing her blog from google searches on his name) and he drops the lawsuit. I don’t know either of them, and they don’t know me, so I doubt my 2c of opinion is of any consequence. if it does go to court, it will at least be an interesting court case.

UPDATE: Dr Jansen has issued a statement:

“It is my belief, supported by independent legal advice, that I have been defamed. All that I am seeking is for the offending comments to be withdrawn and for a public apology to be issued. Money has never been an issue, this is about my professional reputation. If that redress is provided, I will of course halt the legal action that I have initiated as a private citizen.”

Dr Jansen also categorically denies the accusation made by Carmel Sepuloni MP in the House yesterday that he “accessed private information about a victim of sexual abuse and used it to initiate legal action”. He has asked the Chief Executive of ACC to initiate a review of the Corporation’s records to confirm this.

d

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SST v Edwards

February 11th, 2011 at 10:00 am by David Farrar

Brian Edwards has been threatened with a defamation suit by lawyers acting for the Sunday Star-Times. I think the SST is over-reacting, especially as all Edwards has done is publish four sworn affadavits saying Amanda Hotchin did not speak the words attributed to her by the Sunday Star-Times. Edwards has been careful to say he does not know who is correct, and has mainly been calling for the SST to rebut the affadavits.

The SST are refusing to, on the basis of a possible lawsuit by Hotchin.

I don’t know if the SST report of Mrs Hotchin’s words are correct or not. I will make the point that the reporter, Jonathan Marshall, is in the habit of recording his conversations as proof of what has been said to him. I do not know whether or not he recorded this particular exchange.

Mrs Hotchin has said it is too expensive to sue, and has instead effectively fought her side of the story on Dr Edwards’s blog. And I have certainly found it interesting to hear her side. However at the end of the day Brian Edwards can’t adjudicate on the veracity of the report, as he can’t compel a response from the SST.

Mrs Hotchin should file a formal complaint with the Sunday Star-Times, and if not satisified with their response, then complain to the press council. That would allow her affadavits to be tested against any evidence from the Sunday Star-Times. I am suspicious that she refuses to take this step – it does not need lawyers and costs basically nothing – it is her best chance of clearing her name.

But while Mrs Hotchin is not helping her own case by refusing to go down the route of the Press Council, I don’t think it is a good look for a newspaper to use nastygram legal letters to try and shut up a blogger – these are the tactics normally used by the subjects of newspaper investigations – not newspapers themselves.

The SST could simply have responded to the affadavits with an invitation for Mrs Hotchin to complain to the Press Council, and stating they are confident in their version of events.

Threatening Dr Edwards with defamation is also very stupid. It guarantees more and more people will know about the issue, and gets the story into the mainstream media.

Hopefully common sense will preval and Mrs Hotchin will go down the press council avenue for adjudication, and the Sunday Star-Times will keep its specialist defamation lawyers on a leash.

UPDATE: A reader has pointed out to me that the Hotchins themselves have been pretty quick to use lawyers also to threaten defamation. An (offline) HoS story reported in May 2010:

As with Amanda, few who know Mark are willing to talk on the record. Robert Alloway, managing director of Allied Farmers, the firm that absorbed Hanover assets in controversial deal at the end of last year, says the men behind Hanover have a reputation for sending out letters from law firm Chapman Tripp.

“They have deep pockets and aren’t afraid to reach into them. Whether it’s Bruce Sheppard, or me, or anyone saying anything you’d call an opinion, you’d get a letter. Typically I can set my watch by it. If it’s in a Saturday paper, I’ll get a letter on the Tuesday,” he says.

I also understand the Hotchins had their own law firm send lawyers letters to other media, threatening them if they repeated the SST story.

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