Kiwiblog

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.

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.

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?

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.

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.

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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.

The Herald reports:

Nelson MP Nick Smith says he is “delighted” a $15 million defamation lawsuit against him has been settled out of court.

“It’s been a very draining five years. The settlement involved some payment but was less than the legal costs would have been for the scheduled six week hearing,” Dr Smith said outside court. …

Counsel for the parties appeared in the High Court today to announce an agreement had been reached, but the terms were confidential.

Dr Smith said that no public money was involved in the settlement.

Having a $15 million lawsuit hang over you would be no easy thing. Most defamation suits will punish but not destroy you. This suit would have, if successful, bankrupted Nick. No money, no house to live in, no job.

So it must be a great relief to have it settled. I don’t know the terms of the settlement of course but even the fact there has been one is significant because my understanding is Smith and Wakeling had been prepared to settle years ago, but the Plaintiff insisted on a day in court. However a recent case in appellate courts made the burden of proof harder for the plaintiff, so this may have helped encourage a settlement.

Some readers may have followed the case of Liskula Cohen who was called a skank and “psychotic lying whore” on a blogger.com blog. Google owns these.

Cohen regarded this as defamatory and went to court to sue the author, and as part of that the court ordered Google to reveal the identity of the author.

Google complied and supplied the e-mail address used to register the blog. And this allowed Cohen to deduce that a Rosemary Port was the author.

Now to my mind, this is how it should be. If you defame someone anonymously, then your identity will be revealed.

Port, rather than apologise for her slander, is now saying she will sue Google for A$18 million for revealing her email address.

I think Port needs to get over herself and get a grip. Google was ordered by a court to reveal her address. I can’t see she has any chance of success.

An article in the Herald on public law and lobbying, mainly focused on Mai Chen.

That said, about a third of the firm’s work is litigation, and her current workload includes two particularly high-profile cases. She has been hired by former Auckland District Health Board member Tony Bierre to sue former Prime Minister Helen Clark for defamation over comments she made during the Labtests fiasco. Chen is also acting for National Party advisers Crosby/Textor, who are suing journalist Nicky Hager over comments he made to Radio New Zealand.

Both those law suits look fascinating.

The HoS reports that the Police are investigating brochures put out on the eve of the election by Nicholas Keesing, against Labour’s Epsom candidate Kate Sutton. Sutton Several Epsom residents complained to the Chief Electoral Officer, who has referred it to the Police.

Sutton is a former President of the Auckland University Students’ Association.

Now Keesing authorised the brochures he put out, so why is this a matter for the Police? If they are defamatory is this not a civil issue?

Section 199A of the Electoral Act 1993 says:

Every person is guilty of a corrupt practice who, with the intention of influencing the vote of any elector, at any time on polling day before the close of the poll, or at any time on any of the 2 days immediately preceding polling day, publishes, distributes, broadcasts, or exhibits, or causes to be published, distributed, broadcast, or exhibited, in or in view of any public place a statement of fact that the person knows is false in a material particular.

And what is the punishment for a corrupt practice. Under s224(1) it is up to two years in jail, and/or up to $40,000 fine.

If the Police prosecute, it will be up to a court to decide if the statements of facts in the brochure are false or not. For that reason, I would ask that people take care with their comments.

UPDATE: Have corrected story. Sutton did not complain. Several residents complained to the local Returning Officer who passed them on to the Chief Electoral Officer.

Hot Topic has done what looks to be a lawyer dictated apology and retraction to the Listener:

In fact Mr Hansford was not sacked by The Listener, and nor did The Listener seek to censor or suppress Mr Hansford’s views. Hot Topic and AUT Media Ltd accept that The Listener and its editor have a strong commitment to environmental issues, and that there was no basis for any of the criticisms expressed on this site of either The Listener or its editor, or of the editorial integrity and independence of The Listener. Hot Topic and AUT Media Ltd unreservedly withdraw those statements an apologise to The Listener and to Pamela Stirling for the distress caused by our publication.

While blogs, like any publication, are not immune from the responsibility of good faith and accuracy, it seems fairly heavy handed to sic the lawyers onto a blog rather than using the opportunities blogs provide to provide rebuttal and the other side of the story. I hope this isn’t the start of a trend.

The SST reports on how an American multinational timber company, Osmose,  is suing Nick Smith and a local scientist for $15 million each. Nick has already had $300,000 in legal costs and it is likely his bills will reach $500,000.  It is worth remembering this is costs to be met from after tax income. On an MPs salary, take home pay is only around $71,000 a year, so the cost is more than the entire take home pay for seven years.

The company of course has the right to take legal action if it thinks comments made were defamatory and hurt their business.  They have to prove actual lost income to succeed (so I understand). But if as reported, the company is refusing any offer to settle, you wonder if the motivation is to destroy Nick and Dr Wakeling rather than have the record set straight and receive compensation.

Nick has been sued before – ironically for the first time by the Exclusive Brethren. But all the other cases have been won or settled.