Sometimes It Is Better To Be A Mad Dog

You have probably read by now that media commentator Brian Edwards is being threatened with defamation proceedings, after he published a blog post* casting doubt on the veracity of a story in the Sunday Star Times by Jonathan Marshall. Marshall’s story claimed that Mark Hotchin’s wife made disparaging remarks about Hanover investors, a remark reminiscent of Marie Antoinette’s “let them eat cake” line.

Amanda Hotchin has disputed that she said anything of the sort, and she has obtained signed affidavits to back up her account. The post by Edwards that drew the ire of the SST’s lawyer suggests that Marshall’s story may not be accurate.

There was nothing remarkable in Edwards’ post. So it seems extraordinary that the SST editor would get so worked up over what at first glance appears to be perfectly reasonable speculation on Edwards’ part.

I’m not a media lawyer, but I’ve written a few demand letters in my time, and it struck me as I read Edwards’ description of the threatening letter he received that I would not have chosen to write a letter in that way.

For starters, you would have to question the wisdom of writing such a letter to a well know media figure. The issue is all over the blogosphere now, and thousands more will now see what the SST didn’t want Edwards to publish as a result of the publicity. I don't know what Edwards' normal readership is, but I bet it's gone up tenfold over this affair. So had I been acting for Fairfax I would have challenged my client to explain exactly what they hoped to achieve by the letter.

But if you’re going to issue threats, make them hurt. Give the sucker a deadline to comply with your demand and make sure they know that if they don’t comply all hell will break loose. Litigation’s a dirty business, but if you have to fight then do it properly. If you're the client's angry rottweiler struggling to break loose from the leash the other side might just think twice about picking a fight. But don’t pick a fight unless you really have to.

So if there’s no deadline for compliance, why issue the demand in the first place? And why phrase it in such weak terms, i.e. “Our client expects you to immediately remove the defamatory material…” etc. It all suggests that the threat is an empty one and that the client is letting off steam. Sometimes a client will have no intention of taking action, but will want to make the other party think otherwise. This kind of bluff tactic is common. But if you don't want your bluff called then why issue such a weak and waffly letter?

The other thing I wouldn’t put on a letter are the words “not for publication”. I understand this is common practice with some types of demand letters (e.g. defamation and take-down notices), but, really, what does it achieve? It is unlikely that the recipient is bound by any obligation not to disclose information that was unsolicited and which the recipient has no good reason to consider as being genuinely confidential. Most successful actions for breach of confidence arise where there is some relationship between the discloser and the recipient, and where the nature of the relationship means it is reasonable for the discloser to expect the information imparted to be treated as confidential. There is some case law suggesting that the receipt of unsolicited information that is marked as confidential might in some situations impose an obligation of confidence on the recipient, but I really would be surprised if publication of an unsolicited and unwelcome threat letter of the sort received by Edwards would amount to a breach of confidence.

But, most of all, the “not for publication” wording tells the recipient that the complainant doesn’t want this story hitting the media. If you’re going to insist that someone doesn’t publish a threatening letter you send, you should make sure the recipient is so shit-scared and intimidated by the letter that they immediately comply, and do so with their tail between their legs. Otherwise they’ll just end up pissed off and will do the exact opposite of what you intended.

This is not meant to be an attack on the lawyer who sent the letter. I don’t know what the lawyer’s instructions were from her client, and for all I know she may have told her client all of these things, but the client may have refused to be reasoned with. Clients can be like that.

So now everyone knows about the allegations by Mrs Hotchin, and the threat to sue Edwards still looks empty. It’s all over the blogosphere. That doesn’t mean that bloggers like Edwards should have immunity from defamation. I don’t subscribe to Cactus Kate’s view that there is an “NZ Bloggers Union”, and if there is one I sure as hell am not a member (compulsory union membership? Ugh!). Bloggers who cross the line should be held to account. But, though I am not a media law expert, it is hard to see how Edwards’ blogsite musings could be genuinely regarded as defamatory.**

* You’ll have to find the post yourself. In the unlikely event that Edwards is sued for defamation, I don’t want to be a party to proceedings because I linked to what he said. If you can’t find it on Google within 30 seconds you don’t deserve to be using this internet thing.

** Steven Price, who is a media lawyer, sees potential for a defamation action, but agrees that the tone of the letter suggests the SST won't sue.