‘Trust me. I know what I’m doing.”
It’s sometimes possible to ‘get a sense’ of an author by what they write. (Not always.)
I’ve talked about the work of Judge David Harvey, New Zealand’s ‘internet judge’ quite a bit here on The Paepae. (See these posts.) I admire him.
Because my interests in media/internet/publishing intersect with the sort of cases he handles, I’ve read of few of his judgements. I think one of the first was his September 2010 Decision that convicted blogger Cameron Slater on multiple counts of breaching name suppression orders through ‘coded messages’ on his Whale Oil hate blog1. (Good work.)
I sometimes read Judge Harvey’s blog The IT Countrey Justice — it can go waaaay over my head, I admit, at times, but I read it now and then. (I don’t think I’m quite his target audience).
How ‘gagging’ can make things worse
One judgement Judge Harvey highlighted on his blog recently was P Courtney J’s decision Wishart v Murray — a ruling which has implications for anyone running an online discussion forum or Facebook page (or blog!) that routinely small-P publishes other people’s comments which could be perceived as defamatory. That’s relevant to discussion we’ve had here recently. Obviously.
This isn’t the time or place to go into that case in detail (read about it at Judge Harvey’s blog – Facebook Friends: 3rd Party Comments and Publication for Defamation), but superficially (insert my ‘I am not a lawyer’ disclaimer here) …
The defendants set up a Facebook page and Twitter account apparently specifically designed to disparage and encourage a boycott of Ian Wishart’s book about Macsyna King (mother of the Kahui twins).
A number of extremely negative statements (like, really bad) were [allegedly] made about Ms King and Mr Wishart by the defendants through those platforms, as well as during interviews on RadioLIVE, as promotion for their boycott campaign.
In addition to the statements the defendants themselves made on RadioLIVE, Twitter and the Facebook page, third-party Facebook commenters, many of them anonymous (sigh), got feral, and [allegedly] ‘defamed’ the plaintiffs some more. Ian Wishart and his supporters climbed in to defend him from the allegations on Facebook. That inflamed debate even more — and the administrators/defendants responded by apparently BLOCKING Wishart and some of his supporters (!!) from the Facebook page. (I know, right?)
Note: Judge Courtney’s decision (there’s a link to it on Harvey’s blog) was on an application to ‘strike out’ Wishart’s statement of claim, NOT the actual defamation proceedings. Defamation actions are typically very expensive, long-winded affairs with much legal argy-bargy. This was just a preliminary skirmish.
It seems to me a key component in the dispute behind the defamation case — in addition to the defendants’ own statements — was that action, blocking them from the Facebook page, which appeared to stifle open public debate. The judgement quotes one of the defendants explaining his reasoning:
…the purpose of doing this was not to prevent Mr Wishart from telling his side of the story. His comments, and those of some of his supporters generated a significant number of responses, including some abusive and inappropriate comments. Once it became apparent to me that this occurred I blocked Mr Wishart and a small number of his vocal supporters as a way to discourage misuse of the page. To keep the debate as balanced as possible I posted links to pages setting out Mr Wishart’s version of events …
Well, that didn’t work out too well, did it?
As I see it, that (asymmetrical?) ‘blocking’ action denied Team Wishart (him and his supporters) their opportunity to ‘put their side of the story’ and to openly, publicly challenge or correct assertions being made about their competence, character and motivations by third parties — many anonymous — that they naturally took offence to. As I read the judgement, effectively gagging them in that way was perceived as aggravating the grievance.
It’s my long-time policy, based on a value of fairness, to welcome responses to my posts on The Paepae (and to third party comments) and to encourage open participation from all ‘sides’ of a debate about any of the issues raised here, especially contentious ones, whether I ‘agree’ with them or not. (I even have a fairly high tolerance for trolls, like ‘Craig’.)
It’s also my habit (as it is others’), to directly address criticisms of myself in other forums where such critique is published, while being mindful of The curse of hypervigilence. My recent posts at the NZConservative and The Leading Edge blogs and elsewhere, where I’ve copped it fairly harshly about my post Is this what we want? Internet ‘take down’ and indefinite gagging orders?, are recent instances of that.
So, if I’d been in Ian Wishart’s shoes, being openly and anonymously smeared and maligned while blocked from responding, I would be frustrated and furious, too. Wouldn’t you? The judgement says he’s suing for $8 million. (As an aside: Now imagine being the blogger subject to Judge Harvey’s indefinite gagging order. What must that be like? Because the demonisation of her hasn’t stopped.Hmmm.)
I also follow Judge Harvey on Twitter — which can be fun. I recommend it, if you’re a twit like me. (joke)
You may remember when Judge Harvey withdrew from the Kim Dotcom extradition case because of his pun at Nethui: ‘We have met the enemy and he is US‘. That wasn’t actually Judge Harvey’s tweet, but a ‘Twitter storm’ is how the quip got out. Gah!
Last week I quoted from Judge Harvey’s recent (controversial?) ‘restraining order’ decision (link above) and in passing, highlighted this comment…
… It should also be noted that [the applicant] has completed a law degree, passed her professionals and has been admitted as a Barrister and Solicitor of the High Court and as such must be found to be a person of good character.
While I certainly don’t question his conclusion in this instance, I did have a wee chuckle, and suggested the use of such bald criteria could be seen as amusing, if you actually know any lawyers socially.
As it turned out, a lawyer I spoke to at the weekend, (who reads my blog, bless his cotton socks) told me he laughed at Judge Harvey’s comment when he read it too. He said something like: “Right on, Peter. I get a monthly bulletin [probably Law Talk – ed.] listing a stream of lawyers up on all sorts of charges … censured/fined/struck off … hahaha!” 🙂
Of course they’re only human. (That expression always reminds me of the wonderful spoof: ‘Leave John Key Alone‘.)
Which made Judge Harvey’s tweet the other night (below) all the more funny. Look at his cheeky adaptation of 1980s cop comedy Sledge Hammer‘s famous catchphrase: ‘Trust me. I know what I’m doing.”
– P
Click to enlarge (warning: foul language)
1 Convictions which Cameron Slater, with typical microscopic self-awareness, compares to speeding tickets (see right). [Disclosure: I’m not pure, either. And I have ‘earned my share’ of actual speeding tickets. Bad, bad Peter.]
Facts are stated to the best of my knowledge and commentary is my honest opinion. Corrections or clarifications are always welcome by email. Comments are open. [Please don’t be silly enough to think any of what you read above is a substitute for your own legal advice.]
– Best wishes, Peter Aranyi © 2013 All rights reserved.
Ah, I wondered if that statement about the character of lawyers was meant to be ironic, even if on face value it appeared to say that lawyers were somehow a protected breed. It’s hard to know without having an insight into the person.
I’m pretty sure Judge Harvey saves his intentional irony for his tweets, Lucia Maria.
I can’t imagine he’d risk placing any deliberate ambiguity in a judicial decision.
-P
Yes, Peter, absolutely. 🙂
Although the statement can definitely be defended by His Honour as not in an way ironic whatsoever (hell, the Law Society still considers us to be of good character – how could the Law Society be wrong!?! Are you impugning the Law Society???), I’m sure His Honour indulged himself in a wee chuckle, knowing he could defend his irony!
https://twitter.com/onThePaepae/status/350136384591380482
Fevered conspiracy theorists, start your Mention Mapps…
You couldn’t possibly be taking aim at a certain high-profile blogger now, could you, Peter? One might almost believe you had a vendetta… 🙂
To quote Miss Piggy: “Who? Moi?”.
Bloody bloggers. 🙂
Hi Peter,
Thanks for highlighting the Wishart case – it had previously escaped my attention (so many things in life to read, but so little time!).
In general, I’d have to say that Mr Wishart’s case seems to be somewhat precious. Did he really expect that he’d become a popular fellow by airing for profit Ms King’s story?
Reading the judgment (much of it torturous, probably due to the evidently torturous nature of Mr Wishart’s pleadings as a self-represented litigant…), seems to deal with Mr Wishart complaining that Mr Murray a) didn’t think he was very nice individual for parlaying with likes of Ms King in the first place; b) thought he was a cad for offering Ms King money for her story; c) insinuated Mr Wishart’s literary work was rubbish. Which don’t strike me as particularly strong ground for a defamation suit, given that Mr Murray seems to have fairly good grounds for an honest opinion and honest belief defence. (At the risk of being defamatory, I’ve got to say that Mr Wishart’s work has gone downhill since he became a born-again Christian and set about trying to prove that evolution is a liberal conspiracy…).
And frankly, even if he did somehow succeed in that part of his defamation suit, how does he intend to prove the level of damages? Surely anyone reading Mr Murray’s twitter posts and Facebook page wasn’t going to buy Mr Wishart’s book anyway…
Anyhow, moving on to the interesting part of the judgment, whether Mr Murray can be liable for the defamatory statements of others…
My immediate reaction was that the decision that Mr Murray can be liable for third party postings wasn’t particularly surprising. It seemed self-evident that the moderator of a Facebook page who took active steps to block access and delete content would be found to be responsible for defamatory content that remained on the page. By leaving it up there, they’ve taken responsibility for that content – they bear the consequences.
Admittedly, I wasn’t aware of just how divergent some of the international case law was. Those are some wildly differing decisions that are cited!
Of course, it’s a decision that’s highly relevant to bloggers such as yourself… If someone brings to your attention a comment from one such as I which is potentially defamatory, you may end up on the wrong end of a defamation suit if you don’t take positive steps to remove it…
And that raises those nasty little issues about free speech! Should a blogger be forced to undertake research to ensure that every comment made by a third party contains no defamatory research? Or should the legal test be that a blogger has to already know of or be actively alerted to the presence of defamatory material before they’d be considered liable?
The Wishart decision seems to infer that an element of recklessness is enough – that if a blogger is aware that defamatory content *might* be posted by those making comments, he may be liable for the contents of those posts, even if unaware of them (the latter half of para 120 of the judgment being the most pertinent from my brief reading). Is the Judge suggesting that sites should be shut down or that blanket bans be placed on people commenting, if whoever runs the site is aware that defamatory content might be posted? It seems that the Judge is suggesting that Mr Murray could be liable for defamatory content that he hadn’t seen, and that hadn’t even been brought to his attention, simply because the history of the Facebook page suggested that defamatory content would probably end up being posted. Or am I reading the judgment in the wrong way? (And of course, it is merely a minor introductory skirmish, not a definitive judgment…)
I’ve noted you’ve suffered the occasional bit of flak from those who accuse you of being overly censorious on comments regarding contentious issues such as the Flannagan v Sperling case. You should perhaps consider yourself merely prudent, given the sometimes hysterically defamatory nature of some of the commentary that has been posted on various blog sites (note that I don’t pretend to know what you may or may not have censored from your comments sections – all I know is that some individuals, who appear to have some strange and undisclosed vested interests in that legal cesspool, have some very unpleasant ways of expressing themselves!)
But what about the main thrust of your post – that gagging (i.e. the blocking of Mr Wishart) may in essence be an aggravating feature? I’m not sure what the Judge means by the reference at para 120 to blocking Wishart and his followers. Is it being suggested that Wishart has a right to access to a third party page, in order to check what’s being published about him?
After all, let’s refer to “real world” analogies, such as the old-fashioned notice board – so, Mr Murray has a notice board at the local club that he runs, and starts posting comments about Mr Wishart; other people post notices of their own, attacking Mr Wishart, and Mr Wishart causes a ruckus; at which point Mr Murray trespasses him from the club; would it be considered an aggravating feature that Mr Wishart is no longer able to wander into the club house to see what others have stuck up on the notice board about him?
In the context of the case, is Mr Wishart really that impaired that he can’t quickly create a fake Facebook ID in order to check up on the presumably horrible things being said about his personal character and writing skills?
Certainly, the so-called attempt to provide “balance” by blocking Mr Wishart and his “vocal” supporters didn’t really work out… I’m generally a big fan of free speech – blocking dissenters is usually the mark of someone who doesn’t have a particularly great argument… Generally, I’d say let idiots (like the anonymous Scrubone – to refer back to the infamous Flannagan v Sperling case) hang themselves with the noose that they provide – by their own writings will they be considered venomous, villainous and venal… (Admittedly, the curse – or blessing, depending on one’s viewpoint – of anonymity is that there are no “real world” consequences for the viciousness of your average Scrubone, which perhaps does provide a justification for censorship.)
Anyhow, a) excuse my long-windedness (it’s a particular fault of mine!); b) apologies if I’ve let my general dislike of post-“Winebox Enquiry” Wishart colour my interpretation of the Wishart v Murray judgment; and c) as always, my thanks for the opportunity to comment on your blog!
Thanks for your comments (and free advice!) Jay.
re This section…
“Of course, it’s a decision that’s highly relevant to bloggers such as yourself… If someone brings to your attention a comment from one such as I which is potentially defamatory, you may end up on the wrong end of a defamation suit if you don’t take positive steps to remove it…
And that raises those nasty little issues about free speech! Should a blogger be forced to undertake research to ensure that every comment made by a third party contains no defamatory research? Or should the legal test be that a blogger has to already know of or be actively alerted to the presence of defamatory material before they’d be considered liable?
The Wishart decision seems to infer that an element of recklessness is enough – that if a blogger is aware that defamatory content *might* be posted by those making comments, he may be liable for the contents of those posts, even if unaware of them …”
Yes, I see that idea that commenting ability should be disabled if ‘defamatory content *might* appear’ as untenable, with all due respect to Judge Courtney.
But that said, I CLOSED a comment thread on the 2012 restraining order application because it go too bruising.
From my journalism days, I’ve always regarded the ‘right of reply’ (or right to refute another person’s statements — about you or someone you care about — on the same media platform as they were made) as a safety valve. That only seems fair, and, as you say, espouses a ‘free speech’ value.
But speaking as ‘moderator’, it seems to me there is a line, or there should be, where certain types of statement or epithet (thief! liar! swindler! etc) should just be removed.
Differing accounts of contentious events, I think, can safely be left to stand side-by-side … and let readers make their own judgement.
In the context of public debate or discussion, sometimes assertions are made that, left to stand unchallenged, could create an impression. That’s why I make an effort to address what I see as ‘incorrect’ assertions about me or my actions when I get a chance. I recommend that approach — bearing in mind the important, but oh-so-often overlooked distinction between evidence and proof.
It may sound self-serving to say this, but I always try to be fair and let people respond to what’s said about them (by me or others) if they so choose … so long as they do so without trying to merely assassinate the character of the person telling ‘the other side’ of the story.
—
re
” … Mr Wishart complaining that Mr Murray a) didn’t think he was very nice individual for parlaying with likes of Ms King in the first place; b) thought he was a cad for offering Ms King money for her story; c) insinuated Mr Wishart’s literary work was rubbish. Which don’t strike me as particularly strong ground for a defamation suit, given that Mr Murray seems to have fairly good grounds for an honest opinion and honest belief defence.
Nicely-put, Jay. Yeah, taking offence is quite different to ‘being defamed’.
” …would it be considered an aggravating feature that Mr Wishart is no longer able to wander into the club house to see what others have stuck up on the notice board about him?”
Good question. Dunno, but gee, it would annoy the hell out of me.
– P
Hi Peter,
I noted the stick you got on various forums when you closed your 2012 thread. Some denizens of the online community slated you as being hypocritical (and still do), given your usual support of freedom of speech as protected by our Bill of Rights.
I personally think your policy is admirably fair – when “certain types of statements or epithet” cross a line, they have no right to insist on their views remaining on your blog (their views can always be re-expressed without that offensive and possibly defamatory quality, surely…). At the end of the day, my view is that you are the moderator of this blog and you have the right to insist on a certain quality of language, and indeed the right to protect yourself against legal action such as that taken by Mr Wishart.
I agree with you re the right of reply “on the same media platform” as which the statement was made. It seems a basic tenant of fairness that any anyone should be able to face their accuser in that same forum. (It’s always vexed me how TV shows such as Fair Go, Campbell Live, Target, et al, have editorial carte blanche to ruin reputations, but ensure that self-publication of apologies for any of their reputation-ruining mistakes are given but a few seconds of air time…).
As you say, differing accounts of contentious events can safely be left to stand side-by-side. It’s something that the Flannagan side of the Flannagan v Sperling seem to have forgotten – that regardless of the emotional battle-lines that some players seem to have drawn, not all of the facts and issues are so cut and dried as to have been resolved by a Court judgment.
And as you point out, there is indeed a distinction between evidence and proof. A particularly important distinction… I’ve lost count of how many hearings I’ve been involved in where one side’s beautifully built up set of evidence has crumbled beneath examination, because of a few nasty little facts that constituted proof of a different persuasion. Anyone can give evidence – that don’t necessarily make it true, y’know…
Thanks for your comments Jay. I appreciate hearing your view.
re your “It’s always vexed me how TV shows such as Fair Go, Campbell Live, Target, et al, have editorial carte blanche to ruin reputations, but ensure that self-publication of apologies for any of their reputation-ruining mistakes are given but a few seconds of air time….”
Yes, it’s always struck me as shameful and iniquitous too. Nobody likes being forced to admit they got it wrong, but I sense that the do-the-bare-minimun-we-can-get-away-with approach to apologies and retractions stems from visceral unwillingness on the part of many in the news media (it may even be ‘cultural’) to admit to error. We’ll do it within the family, but most are not so willing to publish a retraction.
It happens all the time, as I highlighted with this post, to the chagrin of some good people at The NBR …
Why has @TheNBR been so #slippery about their apology to Phil Kitchin and @DomPost?
I actually think the lack of ‘balance’ with respect to corrections is one of the factors behind the news media (as a group) routinely ranking in the toilet as far as polls measuring public views of ‘trustworthiness’ show. Down there with politicians.
I don’t know how lawyers fare. 🙂
– P
I rather liked Judge Harvey’s handling of a recent fraud case:
“Give me some credit, Ms Cranston, for knowing a little bit – not a lot – but a little bit about how technology works. It doesn’t work that way.”
Woman admits holiday fraud after e-mail blunder
Hi Bevan, yes, thanks for sharing.
Judge Harvey certainly has a gift for wry understatement.
– P
[…] their sites by third parties (made in the same judge’s finding Wishart vs Murray & Ors we discussed last year) I wonder if this judgement will have a cooling effect on internet comments? Fat chance, […]