Defamation hoax leaves blogger red-faced

A blogger desperate for attention hoped that stealing someone else's logo and
putting it at the top of his post would increase his web traffic. Sadly, it failed.

A publicity stunt backfired badly yesterday, after an Auckland blogger was caught faking a threat by Colin Craig to sue him for defamation.

So Who Won?

Judith Collins has settled her defamation suit against Trevor Mallard and Andrew Little.

Some are calling it a victory for Collins, others for Little and Mallard. Eddie and Anthony Robins at The Standard call it for the Labour MPs, while David Farrar calls it for Collins.

Who Is To Blame For The Collins Suit Farce?

The Timaru Herald doesn't approve of Trevor Mallard or Andrew Little making a game out of evading Judith Collins' document servers.

Parliamentary politics is often viewed as something of a circus, and if what goes on in Wellington doesn't quite qualify yet, should it sink to that level any time soon, there's a sideshow already running to help members of the House feel at home. 

The ongoing saga of ACC Minister Judith Collins and her attempts to sue Labour MPs Trevor Mallard and Andrew Little over comments she said defamed her, in relation to the recent ACC privacy breach, has become nothing short of farcical. To the point that one is forced to wonder what possible positive purpose it can now serve for either party. 

Not that the right of Ms Collins to take action in response to a perceived slight on her reputation should be questioned, but it must be proving an unwelcome distraction for her party, the needs of which surely outweigh her own. It's hardly been a smooth recent ride for National.

The editorial questions the wisdom of Collins' actions in suing Mallard and Little, but it also condemns the Labour pair.

Certainly Messrs Mallard and Little have contributed to the farcical nature of this process. Having undertaken to make life as difficult as possible for those charged with serving legal papers on them, they have helped to set off a game of cat and mouse that has reached ridiculous proportions.  

The latest episode came yesterday when Mr Mallard said he was served papers by an elderly woman, purportedly a victim of poor hospital treatment, on whose behalf an appointment had been arranged with him. 

"She pulled out the papers and told me I was served and I said `thank you very much' and took a photo of her," Mr Mallard said. He then posted the picture on his Twitter account, ensuring extensive media coverage.

There's a distinction to be drawn between what is legally permissible and what is politically wise. Collins may well be entitled to sue Mallard and Little for defamation, and one can only assume someone in her legal team thinks she has a winnable case. If this is not the case, and if her case is legally as doomed as it seems to this non-expert in defamation law, then Collins' only hope may be to pressure her opponents into settling with her before the matter goes to court. The statements made by Mallard and Little to date suggest there is no realistic prospect of a settlement any time soon.

Politically this seems like a high risk venture for Collins. If she loses her credibility will be shot, and her opponents will never stop gloating.

But what of Mallard and Little? Are they wrong to have evaded the document servers for so long? Certainly not legally: they were entitled to make Collins' people work hard to serve them.

Nor am I convinced that politically it is as bad a look as the Timaru Herald seems to indicate. If you're faced with a daft lawsuit that appears to be motivated by spite, why should you co-operate with the plaintiff at all? If the actions of Mallard and Little achieve anything, they are to highlight how ludicrous Collins' suit is.

The usual suspects on the right have pinned the blame on Mallard and Little, without questioning why Collins is engaging in this behaviour. Some of the commentary on sites like Kiwiblog about Mallard and Little make what the two Labour MPs said about Collins appear very tame indeed. Those who serially defame should probably not be so eager to see politicians sue over perceived reputational slights.

An Apology To Judith Collins

Dear Ms Collins,

Your threat to sue two MPs and one news outlet for defamation left me in a panic. Had I exposed myself to litigation? I had to rush back and read a number of my blogposts, in case the language I used might in any way have offended you.

You are clearly not a person to be messed with. I'm sure many of your colleagues admire your habitual aggression in dealing with your political opponents (and with any taxpayer-funded news outlets that get in the way), and you are certainly living up to your "Crusher" nickname. Finally. How many cars have you had crushed to date? Two? Three?

Naturally, some people might take exception to your actions, on the basis that you are using the legal system in an effort to squash any sort of public discussion of your role in the ACC scandal.

You do have a natural advantage over some of your opponents, what with being a senior lawyer and knowing the legal system so well. Goodness, you were a former Auckland District Law Society President, and New Zealand Law Society Vice-President.

So it's understandable that you would fly to the law the moment someone challenged your version of events in the ACC scandal.

It's also handy that you have the money to use the court system to your advantage, because your government has managed to all but destroy the legal aid system, and legal aid lawyers are becoming few and far between. Litigation is a rich man's (and woman's) sport.

I expect your lawsuit will cost you a pretty penny, even if you get mates' rates. It will also cost your opponents thousands of dollars, even though for the life of me I can't quite see what wrongs Mr Little and Mr Mallard committed against you. You clearly take your reputation seriously, and appear willing to pursue those who transgress against you in what appears at best to be a speculative lawsuit. Still, I suppose you know how the system works, and no doubt you'll be hoping the defendants back down in the end.

I'd love to know exactly what wrong you think Radio New Zealand committed against you. They were merely the conduit through which the alleged defamatory remarks passed. Now you and I know that's not necessarily a defence against defamation, but it's still pretty tough on a public broadcaster struggling with a budgetary freeze. What were they meant to do? Pre-record all interviews and then submit all criticisms of your performance to your office for vetting?

So anyway, I am writing to apologise to you. For anything I may have ever said or done to offend you. For being critical of your performance and the performance of your government. For implying that the Key government habitually uses intimidation and legal processes to stifle political dissent.

Clearly your reputation is of such importance to you that no form of criticism can be countenanced. As one who has been critical of National and of your performance as a minister, this puts me at risk of being sued by you.

I don't wish to be sued, so please accept my apology.

Labour To Blame For Legal Costs

The Finance Minister has confirmed that Treasury is yet again revising its budgetary estimates.

Bill English has long predicted that the government's books will be in surplus by the 2014/15 financial year.

However, a predicted massive hike in legal costs to the Crown has forced Treasury to take another look at the Government's accounts.

In particular, the prospect of ministers resorting in the future to taxpayer-funded litigation each and every time anyone says anything mildly critical about them, is expected to add a significant amount to the cost of running the country.

Treasury officials are particularly concerned that it would not be hard for anyone to come up with plenty of damning things to say about most members of John Key's Cabinet.

Mr English today urged restraint, saying that the country could not afford any more criticism of Government ministers.

"We are in tough economic times," said Mr English, "and that means we must all make sacrifices.

"I'm confident that the taxpayers of New Zealand understand that in the current environment it just isn't financially responsible for people to go about criticising members of this government."

Mr English said he did not accept that his ministerial colleagues were wasting taxpayer money by resorting to ridiculous lawsuits in order to stifle criticism.

"People like Judith Collins have a right to use legal action to cling desperately to what little reputation they have left.

"And let's not lose sight of the fact that the real culprits are the Labour opposition. Labour are entirely to blame for this expected litigation blowout.

"If the likes of Trevor Mallard and Andrew Little would just stop exposing our incompetence we wouldn't have any need to sue them."

Collins Lawsuit: What On Earth Is She Thinking?

The decision by Judith Collins to sue Trevor Mallard, Andrew Little and Radio New Zealand for defamation must be leaving her National Party colleagues shaking their heads.

It is a highly risky move, because if Collins backs down or loses her case, it will potentially destroy her ministerial career.

The ACC scandal seems to be growing bigger and bigger. It's too early to say that the stink rising up from this mess will bring the government down, but it has the potential to do considerable harm to National.

It it also astounding that Collins would sue a media outlet over this matter. If she and her colleagues had any self-awareness, they would understand that since the "teapot tape" affair the media have turned against John Key's government. Regardless of Collins' real motives behind the lawsuit against Radio New Zealand, her actions are bound to be viewed as just another example of National trying to silence the media.

I'm not the defamation law guy (I'm sure Mr Price or Mr Edwards will be along soon), but it's not entirely clear to me that anything defamatory has been said by either Mallard or Little about Collins. On the other hand, given Collins' litigious frame of mind, I'm not inclined to repeat anything they said that could potentially be construed as defamatory.

Additionally, the defendants will have potential defences available to them. Moreover, Mallard and Little might use the absolute privilege afforded to legal proceedings as a means of throwing more muck at Collins.

And if Collins wins, what then? I'm not convinced she'll get an apology from Mallard or Little, and it's unclear whether she would get a substantial damages award over remarks that seem largely innocuous.

Even if Collins wins she may lose.

Cairns Case Reinforces The Obvious

The reaction in the news media to the notion that someone can be sued for defamation over what they tweet is intriguing. It almost seems as if people are surprised by the Cairns libel case judgment.

The trial was a fascinating one to follow, not least because it involved two famous cricket people and allegations of corruption. However, the fact that the libellous statement occurred via Twitter did not appear to cause the court any particular difficulties. It should be clear to anyone with even a passing acquaintance with defamation laws that what you tweet can be just as damaging as what you put on Facebook or post on a blog. 

I can only think that the Cairns case has a novelty value to it because it is one of the first libel cases involving Twitter, and of course because it involves a famous New Zealand sportsman. But the case seemed to turn on whose witnesses were more reliable, rather than on any particular interpretation of the law regarding social media.

The Cairns case reinforces the fact that England is a great place to go if you want to sue for libel, provided you have the cash. Does it suddenly expose intemperate social media users to legal risks that never before existed? Not so much.

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.

Karam Sues

So Joe Karam has had enough of having his name and reputation besmirched, and is now suing.

David Bain supporter Joe Karam has started legal action against several individuals for defamation.
Mr Karam said he had issued two claims in the High Court at Auckland against members of the Justice for Robin Bain Group (JFRB) and counterspin.co.nz, and the Trade Me website.

I did wonder if this might happen. I suspect David Bain is fair game, because anyone who calls him a murderer would be able to use the defence of truth - after all, how does Bain show it isn't true? In a civil case where the legal test is balance of probabilities (rather than beyond reasonable doubt), he'd probably lose.

Not so Karam. He has been the subject of much colourful commentary over the last year or so. Kent Parker commented on this site a few times after I criticised the online petition to deny Bain compensation, and other supporters of the "get Bain" campaign joined in. They clearly dislike Karam. Karam believes some of them have crossed the line and defamed him.

Because the matter is before the court, I'll say no more. But this promises to be a fascinating legal battle.